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Ex Parte Todd Warren Altschul

April 10, 2013

EX PARTE TODD WARREN ALTSCHUL, APPLICANT


ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 26673-M IN THE 23RD DISTRICT COURT FROM BRAZORIA COUNTY

Per curiam.

ORDER

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 possessing or concealing a deadly weapon in a penal institution and sentenced to twenty years' imprisonment.

Applicant contends that after the Board of Pardons and Paroles denied him parole for this offense on May 16, 2012, it improperly set-off his next parole review date for two years. He argues that his next review date should be one year from the date of the denial. According to the Administrative Code:

A case reviewed by a parole panel for parole consideration may be ...denied a favorable parole action ... and set for review on a future specific month and year (Set-Off). The next review date (Month/Year) for an offender serving a sentence listed in § 508.149(a), Government Code, may be set at any date after the first anniversary of the date of denial and end before the fifth anniversary of the date of denial. The next review date for an offender serving a sentence not listed in § 508.149(a), Government Code, shall be as soon as practicable after the first anniversary of the denial .... 37 Tex. Admin. Code § 145.12.

Applicant's conviction is not for an offense listed in Section 508.149(a), and there is not an affirmative deadly weapon finding on the judgment. See Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989); Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992); Tex. Code Crim. Proc. art. 42.12.§3g(a)(2). Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 findings of fact.

The trial court shall order the Texas Board of Pardons and Paroles to file an affidavit indicating its reason(s) for placing the two-year set-off. The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may also 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 and conclusions of law as to whether the two-year set-off in Applicant's case is in accordance with the applicable rules and whether it is proper, and 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Do not publish

20130410

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