









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-71,805-01


EX PARTE DANIEL EMERSON, JR., Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1985-592-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 was convicted of delivery of a
controlled substance and sentenced to twenty-five years' imprisonment. 
	Applicant contends that he is being denied flat time credit on this sentence.  He alleges that
he has not been out of custody since his sentence was imposed.  The habeas record contains nothing
to dispute Applicant's allegations.  Applicant has alleged facts that, if true, might entitle him to
relief.  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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), in
that it shall order the Texas Department of Criminal  Justice's Office of the General Counsel to file
an affidavit listing Applicant's sentence begin date, the dates of any previous releases to parole or
mandatory supervision, and the dates of issuance of any parole-revocation warrants leading to the
revocation of such parole or mandatory supervision.  The affidavit should state whether Applicant
is serving a sentence for, or has previously been convicted of, an offense which was listed in Tex.
Gov't Code § 508.149(a) at the time of Applicant's revocation.  The affidavit should also address
how much time was remaining on this sentence on the date that Applicant was released on parole
and/or mandatory supervision, and how much time Applicant spent on release before the issuance
of the parole-revocation warrant.  The affidavit should state whether or not Applicant is receiving
credit for any of the time spent on parole or mandatory supervision.  Finally, the affidavit should
indicate whether or not 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 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 has ever been released on parole or
mandatory supervision.  If so, the trial court shall make findings as to whether Applicant is eligible
to earn street time credit, and if so, whether he is entitled to credit for his time spent on release.  The
trial court shall also make findings as to whether Applicant is receiving the proper amount of time
credit for that time.  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: April 29, 2009
Do not publish
