May, Jason Scott ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,279-01

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EX PARTE JASON SCOTT MAY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 21646-A IN THE 42^ND DISTRICT COURT FROM TAYLOR COUNTY

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   Per curiam.

O R D E R  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of forgery and sentenced to two years' imprisonment. He did not appeal his conviction.

Applicant contends that he is being illegally confined. He contends that despite being sentenced on October 26, 2006, and credited with 135 days of pre-sentence jail time, he has a discharge date of April 7, 2009. Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d

294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact.

The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), in that it shall order the Office of General Counsel at the Texas Department of Criminal Justice to file an affidavit in response to Applicant's claim. The affidavit should also state whether Applicant has submitted him claim to the time credit resolution system of TDCJ, and if so, the date his claim was submitted.

The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. C ode Crim. Proc. art. 26.04.

The trial court shall make findings of fact first as to whether Applicant has properly exhausted him administrative remedies as required by Tex. Gov't Code § 501.0081(b)-(c). The trial court shall then make findings as to whether Applicant is being illegally confined. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 30 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 45 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 10, 2008

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