Powers, John

• Court: Court of Criminal Appeals of Texas
• Decided: January 13, 2021
• Docket: WR-92,135-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,135-01

EX PARTE JOHN POWERS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-19-200989-A IN THE 299TH DISTRICT COURT FROM TRAVIS COUNTY

Per curiam.

ORDER

Applicant was convicted of unauthorized possession of a firearm by a felon and sentenced

to two years’ imprisonment. 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, but no information or indictment has been

filed. 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 any new

offense. Applicant alleges that he did not waive her right to a revocation hearing. 2

Applicant has alleged facts that, if true, might entitle him to relief. TEX . GOV ’T CODE Sec.

508.282; 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 Texas Department

of Criminal Justice’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 if Applicant is

represented by counsel, and if not, 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.

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,

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 3

by the trial court and obtained from this Court.

Filed: January 13, 2021 Do not publish