EX PARTE DOMINGO LUCIANO (other)

OF TEXAS

NO. WR-63,698-03

EX PARTE DOMINGO LUCIANO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 96-CRF-491 IN THE 105TH DISTRICT COURT

FROM KLEBERG 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 sexual assault and sentenced to seven years imprisonment.

Applicant contends, inter alia, that he is being denied credit on this conviction for time spent in confinement after he was convicted and sentenced, specifically for time spent in the Maverick County jail from January 7 through April 24 of 2008. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex. Crim. App. 2006). 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.

According to Applicant s pleadings, he has not been in TDCJ s continuous custody since the time of his conviction and was apprehended pursuant to a parole-revocation warrant, though he contends he was never released to parole. The trial court shall order the Texas Department of Criminal Justice s Office of the General Counsel to file an affidavit listing Applicant s sentence begin date and detailing the dates Applicant has been in custody pursuant to this sentence. General Counsel s affidavit shall note the dates of issuance of any warrants and/or detainers leading to the revocation of parole or Applicant s post-conviction apprehension. The affidavit should state whether or not Applicant is receiving credit for any of the time spent out of custody. 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. 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. 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 being properly credited for time served and, if applicable, time out of custody. 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 claims 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: May 12, 2010

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