Garza, Teodoro

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2020
• Docket: WR-91,330-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,330-01

EX PARTE TEODORO GARZA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-17-203397-A IN THE 403RD DISTRICT COURT FROM TRAVIS COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to driving while intoxicated and was sentenced to four years’

imprisonment. He did not appeal his conviction. Applicant filed this application for a writ of habeas

corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE

CRIM . PROC. art. 11.07.

Applicant contends that he is being denied due process in the parole revocation process.

Applicant alleges that while out on parole he was arrested for a new charge of driving while

intoxicated. A parole revocation warrant was issued and executed, but Applicant has been held for

more than 41 days without a parole revocation hearing and without being formally charged with the

new offense. Applicant alleges that he did not waive his right to a revocation hearing. He does not 2

state whether or not he has been afforded a preliminary hearing pursuant to Section 508.2811 of the

Texas Government Code.

Applicant has alleged facts that, if true, might entitle him to relief. Morrissey v. Brewer, 408

U.S 471, 488, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Accordingly, the record should be

developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC.

art. 11.07, § 3(d). The trial court shall order the Board of Pardons and Paroles’s Office of the

General Counsel to obtain a response from a person with knowledge of relevant facts. In developing

the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects

to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and

wants to be represented by counsel, the trial court shall appoint counsel to represent him at the

hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court

shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact as to whether Applicant has been advised of his

rights in the revocation process, whether he requested or has received a preliminary hearing, and

whether he has received a final revocation hearing. The trial court shall make findings of fact as to

whether Applicant was arrested for a new offense, and if so, whether he has been formally charged

with a new offense. The trial court shall make findings of fact and conclusions of law as to whether

Applicant is being afforded due process in the parole revocation process. The trial court may make

any other findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things, 3

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: September 16, 2020 Do not publish