Davis, Ex Parte Donald Fitzgerald

• Court: Court of Criminal Appeals of Texas
• Decided: October 10, 2007
• Docket: AP-75,777
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,777 EX PARTE DONALD FITZGERALD DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. C-372-007956-0964559-B IN THE 372^ND DISTRICT

COURT FROM TARRANT COUNTY

Per curiam.

O P I N I O N

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of theft and sentenced to two (2) years' imprisonment. Applicant did not appeal his conviction.

Applicant alleges inter alia that he was arrested on a parole revocation warrant on August 29, 2006, but has not been given a preliminary hearing.

On April 4, 2007, this Court remanded this application to the trial court to find out whether Applicant had been given a preliminary hearing and, if not, why he had not been given such a hearing. In response to our remand order, the trial court ordered the Texas Department of Criminal Justice, Parole Division to file an affidavit addressing the issue raised in this application for a writ of habeas corpus. The affidavit shows that Applicant has not been given a preliminary hearing because he has new charges pending and is being held pursuant to Gov't Code, Section 508.254. However, even if Applicant has new charges pending, he is still entitled to a preliminary hearing to determine whether probable cause or reasonable grounds exist which show that he violated the conditions of his parole. Tex. Gov't Code, § 508.2811. In Morrissey v. Brewer, the Supreme Court held that due process requires that a preliminary hearing be held "as promptly as convenient" after a parolee has been arrested to "determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed the acts that would constitute a violation of parole conditions." 408 U.S. 471, 485 (1972). See also Ex parte Cordova, No. Ap-75,771, 2007 Tex. Crim. App. LEXIS 1264, (Tex. Crim. App. Oct. 3, 2007) (Holding that Applicant was not given a preliminary hearing within a reasonable time.) We find that Applicant has not been given a preliminary hearing within a reasonable time and order the Texas Department of Criminal Justice, Parole Division to give Applicant a preliminary hearing within thirty (30) days of the issuance of this opinion.

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Filed: October 10, 2007

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