EX PARTE MARCOS DOMINGUEZ (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-74,912-01

EX PARTE MARCOS DOMINGUEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. D-1-DC-05-500523 IN THE 167TH DISTRICT COURT

FROM TRAVIS 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 injury to a child and sentenced to eight years' imprisonment.

Applicant contends that the Board of Pardons and Paroles imposed "Special Condition X" as a condition of his parole without the due process required by current federal case law. Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010). The trial court agrees and recommends that the special conditions included in Special Condition X be removed unless and until applicant is granted the process mandated by the Meza decision.

The habeas record contains a response filed by the Attorney General objecting to the application on several grounds. Shortly after those objections were filed, the Travis County District Attorney filed an "Advisory" and Motion to Dismiss as Moot alleging that the Board of Pardons and Paroles voted on December 30, 2010 to withdraw "condition X" from Applicant's release. The State's pleadings were not verified and contained no documentation supporting the statement that the Parole Board had, in fact, taken such a vote. Applicant's habeas counsel responded, contending that the State's "averment" is an insufficient basis upon which to decide that the case is moot.

Applicant has alleged facts that, if true, might entitle him to relief. 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).

Applicant is represented by counsel. If the trial court elects to hold a hearing and applicant is no longer represented by counsel, the court 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 the Board of Pardons and Paroles has removed the sex offender special condition from Applicant's release and if not, whether they have established procedures to comply with Meza v. Livingston. (1)

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: March 2, 2011

Do not publish

1. 607 F.3d 392 (5th Cir. 2010)