EX PARTE MORGAN ASHBY HARRIS JR. (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-28,759-04
EX PARTE MORGAN ASHBY HARRIS JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 12622 IN THE DISTRICT COURT 
OF CHEROKEE 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 unauthorized use of a motor vehicle and sentenced to ten years' imprisonment and a ten-thousand dollar fine. The Twelfth Court of Appeals affirmed his conviction. Harris v. State, No. 12-96-00309-CR (Tex. App.-Tyler, delivered December 31, 1997).

Applicant is currently being held by TDCJ for this cause. He contends that he is entitled to time credit for time spent in federal custody on an unrelated charge and therefore his sentence has been discharged. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Pizzalota, 610 S.W.2d 486 (Tex. Crim. App. 1980). 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 Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit listing Applicant's sentence begin date, when Applicant was taken into TDCJ custody, the dates of any mandatory supervision release or parole release, the dates of any revocation of such releases, the dates of any detainers placed by TDCJ on Applicant while he was in federal custody, and the release dates of such detainers. The affidavit should state whether or not Applicant is receiving credit for any time spent outside of TDCJ's physical custody, including any time spent on mandatory supervision, or when he was in federal custody pursuant to a TDCJ detainer. Finally, the affidavit should indicate whether or not Applicant has submitted his claim to the time credit resolution system of TDCJ, and if so, the date when the claim was submitted.

The trial court may also order depositions, interrogatories or a hearing. It appears that Applicant is represented by counsel. 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 wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant 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 his 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 receiving the proper time credit on his sentence from TDCJ. 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 16, 2009

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