EX PARTE CLARENCE DAWSON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,129-01

EX PARTE CLARENCE DAWSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1991-601-C2A IN THE 54TH JUDICIAL DISTRICT COURT

FROM MCLENNAN 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 to burglary of a habitation and was sentenced to twenty years' imprisonment. He was released on parole, and his parole was subsequently revoked after he was convicted of a new felony offense.

Applicant contends, inter alia, that he was denied a parole revocation hearing. Under the Texas Government Code:

If a parole panel or designated agent of the board determines that a releasee or person granted a conditional pardon has been convicted of a felony offense committed while an administrative releasee and has been sentenced to a term of confinement in a penal institution, the determination is considered to be a sufficient hearing to revoke the parole or mandatory supervision or recommend to the governor revocation of a conditional pardon without further hearing, except that the parole panel or designated agent shall conduct a hearing to consider mitigating circumstances if requested by the releasee or person granted a conditional pardon.

Tex. Gov't Code § 508.281(b). Applicant alleges that he tried to request such a mitigation hearing, but that his parole was revoked without conducting such a hearing.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Williams, 738 S.W.2d 257, 261 (Tex. Crim. App. 1987). 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 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant was informed of his rights in the revocation process, and whether he invoked his right to a mitigation hearing. If Applicant did request a mitigation hearing, the trial court shall make findings as to when such a request was made, and as to whether such a hearing was conducted prior to the revocation of Applicant's parole. 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 23, 2008

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