EX PARTE JIMMIE LEE HENDERSON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,404-01

EX PARTE JIMMIE LEE HENDERSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 40,993-B IN THE 78TH DISTRICT COURT

FROM WICHITA 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 robbery and sentenced to ten (10) years' imprisonment. The Second Court of Appeals dismissed his appeal. See Henderson v. State, No. 02-04-00554-CR, (Tex. App.- Fort Worth, 2005, no pet.) (not designated for publication).

Applicant contends that he is being denied credit for time spent confined on this cause number in a state jail facility in Florida. The trial judge has entered findings of fact and conclusions of law recommending that Applicant be granted 178 days time credit for time spent confined in Florida. However, the record does not contain any documentation verifying that Applicant was on parole during the period of time he was confined in Florida. Further, the record does not show whether the TDCJ has considered Applicant's time complaint and awarded him the time credit sought. 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 General Counsel's Office of the Texas Department of Criminal Justice to obtain affidavits from the appropriate TDCJ officials addressing: (1) whether Applicant has been placed on parole in this cause and, if so, the date he was placed on parole; (2) whether any parole-revocation warrants issued in this cause and, if so, the dates of the issuance of such warrants; (3) whether the TDCJ placed any detainers on Applicant while he was confined in Florida and, if so, the dates of such detainers; (4) whether Applicant has received credit for any period of time he was confined in Florida and, if so, the amount of time he was credited; and, (5) whether 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 judge shall also supplement the record with a copy of Applicant's record from the Florida Department of Corrections.

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 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 was on parole during the time he was confined in Florida, and, if so, whether a detainer was placed on him. The trial judge shall make findings of fact as to whether this conviction was the sole reason for Applicant's confinement in Florida and, if not, shall specify the reasons for Applicant's confinement. The trial judge shall also make findings of fact as to whether the TDCJ has given Applicant credit for the period of time he was confined in Florida and, if so, whether Applicant is receiving the proper amount of credit. 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: October 29, 2008

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