EX PARTE ALEX DAVILA (other)

OF TEXAS

NO. AP-76,040

EX PARTE ALEX DAVILA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 96-0461-A IN THE 22ND JUDICIAL DISTRICT COURT

FROM HAYS 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 tampering with a government record, and was sentenced to twelve years imprisonment.

Applicant contends, inter alia, that his mandatory supervision was improperly revoked on the basis of his failure to submit to a polygraph examination and evaluation for sex offender counseling. Applicant alleges that the sex offender related conditions of mandatory supervision should never have been imposed in his case, because he has never been convicted of a sex offense, and that he therefore has a due process right to be free from sex offender classification and conditions.

This Court remanded to the trial court to determine whether Applicant had previously been convicted or adjudicated guilty of a reportable offense under Article 62.001(5) of the Texas Code of Criminal Procedure. On remand, the Texas Department of Criminal Justice, Parole Division has provided an affidavit stating that Applicant does not have a prior reportable conviction as defined by Article 62.001(5) of the Texas Code of Criminal Procedure. The supplemental record indicates Applicant was indicted for the offense of indecent liberties with a child in North Carolina in 1992, but failed to appear. Although a warrant was issued for his arrest, Applicant was already incarcerated in Texas by the time North Carolina authorities located him, and the State of North Carolina declined to extradite Applicant.

We order that this application be filed and set for submission to determine whether a releasee

who has never been convicted of a reportable offense, but who has had unresolved charges for an offense with a sexual component, and who had the opportunity to dispute the unresolved charges but failed to do so may be required to comply with sex offender conditions of mandatory supervision. The parties shall brief the issues.

Further, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. Tex. Code Crim. Proc. art 26.04. The trial court shall send to this Court, within 30 days of the date of this order, a supplemental transcript containing either the order appointing counsel or a statement that Applicant is not indigent. All briefs shall be filed with this Court on or before January 19, 2009.

Filed: November 26, 2008

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