EX PARTE STEVEN GILBERT (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-17,545-12 
EX PARTE STEVEN GILBERT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 6754A IN THE FIRST JUDICIAL DISTRICT

COURT FROM JASPER 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 pleaded guilty, was convicted of burglary of a habitation and sentenced to thirty years' imprisonment. Applicant did not appeal his conviction.

Applicant alleges that he was arrested pursuant to a parole revocation warrant on January 21, 2009, but has not been given a preliminary hearing as required by Gov't Code, Section 508.2811 or a final parole revocation hearing as required by Gov't Code Section 508.282(a)(1)(A).

Applicant has alleged facts that, if true, might entitle him to relief. Morrissey v. Brewer, 408 U.S. 471, 485, 92 S. Ct. 2593, 2602 (1972). 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 stating whether a parole revocation warrant was issued for Applicant, and if so, when that warrant was issued and whether he is in custody pursuant to that warrant. The affidavit shall also state whether Applicant has been given a preliminary hearing or a parole revocation hearing and if not, the reasons he has not been given a hearing.

The trial court may also order depositions, interrogatories or a hearing. 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 regarding whether Applicant is being held pursuant to a parole revocation warrant, and if so, whether he was given a timely preliminary hearing or a parole revocation hearing. 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: January 20, 2010

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