EX PARTE ANDRES ANTONIO LOPEZ (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-17,385-03

EX PARTE ANDRES ANTONIO LOPEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 34,480 IN THE 27TH DISTRICT COURT

FROM BELL 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance with intent to deliver and sentenced to eighteen years' imprisonment.

Applicant contends that he is being denied credit for time spent in custody on the following dates: August 2, 2001 to February 28, 2002; April 9, 2003 to May 19, 2003; October 4, 2007 to January 18, 2008; and June 20, 2009 to August 20, 2009. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988). 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 shall order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit stating whether Applicant was credited with the above time. The affidavit shall also state whether Applicant has submitted him claim to the time credit resolution system of TDCJ, and if so, the date his claim was submitted.

The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id. 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 him 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 him administrative remedies as required by Tex. Gov't Code § 501.0081(b)-(c). The trial court shall then make findings as to whether Applicant was credited with the proper amount of time spent in 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 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: June 15, 2011

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