EX PARTE STEPHEN EDWIN KNOERR (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,803-01

EX PARTE STEPHEN EDWIN KNOERR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 48,399-A IN THE 239TH DISTRICT COURT

FROM BRAZORIA 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 driving while intoxicated and sentenced to five years' imprisonment.

Applicant contends that he was denied any notice that he would be considered for release on mandatory supervision by the Texas Board of Pardons and Paroles under the discretionary mandatory-supervision statute, Tex. Code Crim. Proc. art. 42.18, § 8(c), before the Board denied him that release.

Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Retzlaff, 135 S.W.2d 45 (Tex. Crim. App. 2004). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for making findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), including requiring the office of General Counsel of the Texas Department of Criminal Justice to obtain and submit affidavits from the appropriate divisions of the department.

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 is still incarcerated on this cause and, if so, whether he was afforded adequate notice that he would be considered for release on mandatory supervision by the Texas Board of Pardons and Paroles under the discretionary mandatory-supervision statute. Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004). 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: November 5, 2008

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