EX PARTE JOE BILL TURNER (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-46,696-03

EX PARTE JOE BILL TURNER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W296-80637-98(WC)(3)

IN THE 219TH JUDICIAL DISTRICT COURT

FROM COLLIN 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 assault of a public servant and sentenced to fifteen years' imprisonment.

Applicant contends that he was denied adequate notice that he would be considered for release on mandatory supervision by the Texas Board of Pardons and Paroles under the discretionary mandatory-supervision statute, Tex. Code Crim. Proc. art. 42.18, § 8(c).

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. App. 2000); Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004).

In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order the Texas Department of Criminal Justice's Parole Division to file an affidavit stating the dates of any notices sent to Applicant informing him that he would be reviewed for release to discretionary mandatory supervision, and the dates upon which any such reviews took place. The trial court may also use any means set out in Tex. Code Crim. Proc. art. 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 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 was afforded adequate notice that he would be considered for release on mandatory supervision in 2004 by the Texas Board of Pardons and Paroles under the discretionary mandatory-supervision statute. Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004). If the trial court finds that Applicant was not provided with timely and adequate notice of his 2004 review, the trial court shall also make findings as to whether Applicant has been reviewed for release to discretionary mandatory supervision since that time, and if so, whether he was provided with adequate notice of any such subsequent review. 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: February 27, 2008

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