Hampton, Randy Paul

• Court: Court of Criminal Appeals of Texas
• Decided: September 13, 2006
• Docket: WR-52,828-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-52,828-03 EX PARTE RANDY PAUL HAMPTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-2004-1082-E IN THE 367^TH JUDICIAL DISTRICT COURT

FROM DENTON COUNTY

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to two years' imprisonment.

Applicant contends that he is being improperly held on a parole revocation warrant without a revocation hearing, and that he has no new charges remaining unresolved at this time. Applicant also alleges that he is entitled to street time credit for time spent on parole, and that his sentence discharge date has passed. Therefore, Applicant argues that his continued confinement under the parole revocation warrant is illegal.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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). The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection.

The trial court may order the Texas Board of Pardons and Paroles and/or the Texas Department of Criminal Justice, Institutional Division to file an affidavit addressing whether Applicant is in custody pursuant to a pre-revocation warrant issued on March 31, 2006, and if so, whether he has received or waived a preliminary hearing or a revocation hearing. The affidavit should also set out the dates of Applicant's release on parole and return to custody, and the amount of time remaining on Applicant's sentence on both of those dates. The affidavit should indicate whether Applicant has any past or present convictions which would render him ineligible for street time credits under Tex. Gov't Code §§508.149(a) and 508.283. If Applicant is eligible to earn street time credits, the affidavit should address whether Applicant is entitled to street time credits for his latest period of release, and whether he is receiving such credits. Finally, the affidavit should indicate whether Applicant has received any new convictions since his release on parole, and if so whether he is currently serving sentences for any such convictions.

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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant is being held solely on the basis of a parole revocation warrant, and if so, for how long he has been held without a preliminary hearing and/or a revocation hearing. If Applicant has new charges, the court shall make findings as to whether those charges are currently pending, or whether they have been disposed, and if so, when. The court shall also make findings as to whether Applicant is entitled to street time credit for the period he was released on parole, and whether he would have discharged his sentence if the revocation hearing were held at this time. 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 90 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 13, 2006

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