Randall…Bnlivar # 1719379
Ellis Unit
1697 FM 980 ,
Huntsville, Texas 77343

" August 10, 2015

Clerk cf the Ec¢urt, `V/A c-ZKT/f/£b m’¢//
Texas Cc)urt of Criminal Appeals 711 14 3430 de€- ibm /5-57
P.q. an 12303 _
Austin, Texas 76711

RE:-Documents for filing with the Buurt GEE§;;::{%IFJEJ UHJ
REF~; ©©URT ©F' C`”? mci "NAL APPEALS
E§f;§j§§ff§§ AUS 17 2015
_ mn:79,35u_03
near clerk uf the court; A@@M©@Si@,©g@l’#<

En:insed.piease find my AMENDED MEMURANDuM-DF LAm IN suPPDRT oF'APPLIcATIuN
FDR mRIT UF HABEAS cuRPus REQUESTING~RELIEF FRDM~A PARULE'REVUCATIUN HEARING...
fur filing in cause Nu. mR-79,35u-01.

Additionally; also find enclosed my DEMAND FUR ADJUDICATIUN DN THE MERITS
Fnr Filing in Cause NDS. MR-79,354-01; UR-79,354-02; and wR-?Q,BEL-UB.

Thank you For your time and effort$ on this matter. Gnd Bless You!
Respectfully 5ubmitted,

¢//M”

cc:
State Prosecuting Attorney
File

:}»Cl 534-01
_ l

EAUSE NU. UR-79,354-U1

EXjPARTE `IN THE EUURT UF

RANDALL BULIVAR CRIMINAL APPEALS

q»uxx»x»x»

Applicant STATE UF TEXAS

 

AMENDED MEMDRANDUM UF [AU IN SUPPURT DF
APPLlCATIUN FUR URIT UF HABEAS EURPUS
REQUESTING RELIEF FRUM A PARULE REUUCATIUN HEARINE IN EAUSE NU. DG-ERF-UEU?
FMW FRUM THE 105TH DISTRIET EDURT DF KLEBERE EUUNTY, TEXAS

 

TU THE HDNURABLE JUDGESFUF SAID EDURT:

Applicant, Randall Bolivar, repectfully submits this AMENDED MEMDRANDUM
UF LAU IN SUPPURT UF APPLIEATIUN'FUR MRIT DF HABEAS EURPUS REQUESTING RELIEF
FRDM A PARULE REVUCATIDN`HEARINE IN EAUSE NU. QE-ERF-0501 FRUM'THE`1UBTH
DISTRICT"EDURT UF KLEBERG EUUNTYy TEXAS, pursuantrto Article 11.07 of the

Téxas Code of Criminal Procedures (ECP).
PRELIMINARV STATEMENT DN MUUTNESE

Un February 27, 2007, Mr. Boivar plead guilty to Possession of Marihuana and
was sentenced to 5 years deferred adjudication. Upon motion by the State, the
Applicant's probation was revoked, and he was sentenced to 15 years confinement
in the T§xas Department of Criminal Justice (TDCJ). In May 2012, Mr. Bolivar
was erroneously released on parole, and transfered to the custody of Tennessee
officials. Mr. Bolivar returned to Texas after his release from the Dickson
Eounty, Tennessee 5heriff's Uffice. Mr. Bolivar was issued a Parole Eertificate
by TDCJ-Parole Division, Parole Ufficer Flor Duran, and signed the three-party
agreement to abide by the terms and conditions of parole. AfterrTDCJ officials
realized"the error, TDEJ issued a warrant for Applicant's arrest, and Mr. ""55
Bolivar voluntarily returned to custody pending resolution. TDEJ officials held
a revocation/erroneous release bearing, and Mr. Bolivarts parole was revoked.
The issuance of the warrant and the denial of due process/course of law render

Mr. Bolivar‘s current incarceration on the 15 year sentence illegal.

”"*Subsequent to his parole revocation in the present case, Mr. Bolivar was

sentenced to a 45 year term of confinement in Cause No. DQ-CR-ZBGQ-A. ordered

to be served consecutively with the sentence he is currently serving.er.
Bolivar is not currently earning time credits ever since his date of conviction,
and will continue to NUT earn any time credits until his first sentence ceases
to operate. EEP art. h2.UB. The first sentence ceases to operate on the date *`
the Texas Board of Pardpns"and'Paroles (BPP) designates as the date the inmate
would have been released on parole, as if serving only a single sentence. Tew?
Eov't. Code, Sec. 508.150. n

” The issuance of the'Farcle Eertificate on June B, 2012 was effective and in
full force at the moment Mr. Bolivar agreed to the terms and signed the three-
party agreement between TDCJ, BPP, and Mr. Bolivar. Under HALE, the laws that
apply to an erroneously released offender should be the same as if he were

correctly and intentionally released by a designation of the BPP.

Although erroneous, Mr. Bolivar's release and issuance of a Parole Eertific-
ate must be treated as a designation by the BPP and the time served since June

8, 2512 must be credited toward Cause No. U9¥ER-2569-A, as that is the date

his previous sentence ceased to cperate.

Mr. Bolivar had a valid liberty interest in the time from his release on
parole to the time of his conviction in Cause No. UQ-CR-ZBSQ-A. Time that
would have been spent with his family (2 very young daughters), and aiding his
defense counsel in his subsequent convictionx Additionally, Mr. Bolivar has a
valid interest in the future street time lost due to the imposition of
consecutive sentences. Mr. Bolivar is a fairly young man at the age of 34 years
old. It is reasonable to believe he would be released. if he served the entire
45 year sentence, day for day.'However, Mr. Bolivar becomes parole eligible
on the h5 year sentence once he has served one half of the sentence, which would
22.5 years. And because Mr. Bolivar was awarded jailtime credits for the time
served awaiting trial under indictment, it is safe to presume that Mr; Bolivar
could expect to be released from prison during his lifetime, seeing as how he
would be parole eligible in the subsequent sentence before the age of 50§
Hwoever, as it stands, Mr. Bolivar is not currently earning any time credits
on the 45 year sentence, and he will not do so until such time as the 15 year
sentence ceases to operate. Therefore, the claims in this application are not

moot.

In addition to time credits, Mr. Bolivar has a financial interest in the loss
of Disability Compensation Benefits provided by the U.S. Department of Veteran's
Affairs (VA), stemming from his Service-Connected injuries during his Honorable'
5ervice in the U.S. Army Infantry, which is a collateral consequence of his
conviction. The VA procedures, under Title 38 U;S.C., allow for a reduction in
VA Disability Compensation payments 60 days after a conviction of felony grade.
The date of conviction triggers the start of the 60 day grace period, NDT ARRESTv
0R PRE-TRIAL DETENTIDN§ Under VA rules, Mr. Bolivar was entitled to receive n
compensation payments at the full rate upon his parole either on May 31, 2012
or June B, 2012, up until 60 days after his subsequent conviction on January 9,
2014. Here, the State has denied Applicant his interest in property without due
process/course of law, because his revocation and return to custody was a
violation of his due process and due course of law rights. Therefore, under
either theory, but most especially once combined, the claims made'in this

application are not moot.

STATEMENT REEARDING JURISDICTIUN

Mr. Bolivar's Application for writ of Habeas Corpus is properly before this
Eourt pursuant“to Art. 11.07, CEP. Because the Eourt has not ruled on the merits
of Mr. Bolivar's original application, this amendmenttis proper. See'BANKS v.
DRETKE, 540 u.s. 569, 69# (2006).

STATEMENT 0F FACTS

0n Febreuary 27, 2007, Mr. Bolivar plead guilty to Possession of Marijuana
in the 105TH District Eourt of Kleberg Eounty and was sentenced to five years
deferred adjudication. 0n February 5, 2000,.Kleberg County filed.a Motion to
Revoke Eommunity Supervision and to Adjudicate Guilt for allegations related to
pending drug charges out of Dickson County, Tennessee, and the Btate subsequently
amended that motion on September 17, 2000. These motions were never heard. 0n
March 16, 2011, the State filed a 5econd Amended Motion to Revoke Community
Supervision and to nadjudicate Guilt adding allegations of Murder and Aggravated
Assault with a Deadly Ueapon, The Court found the Murder allegation to be NOT
TRUE; while it found the Aggravated Assault with a Deadly weapon, along with
other counts, to be True and sentenced Mr. Bolivar to 15 years in the TDCJ-

Institutional Division on April ZB, 2011,

0n May 11, 2012 the 105TH Distrcit Court entered a Judgment Nunc Pro Tunc
3

awarding jailtime credits, and based on these credits, Mr. Bolivar became parole

neligibleoon December 22, 2010 or prior.

0n May 31, 2012, TDEJ released Mr. Boivar,:on parole, into the custody of
Dickson Bounty, Tennessee to face the charge of Possession of Marijuana. Mr.
Bolivar plead guilty on June 6, 2012, and Tennessee officials released Mr. Bolivar
after contacting and receiving instructions from TDCJ to do so. Mr. Bolivar
returned to Brownsville, Texas and reported to the Harlingen District Parole
0ffice on June B, 2012. At the Harlingen Parole 0fficey TDCJ officials executed
the Parole Certificate, assigned him a parole officer, provided him with a
letter of verification of his parole, and released him on parole. At no time was

Mr. Bolivar ineligible to be released on parole.

Later thattday, on June B, 2012, TDCJ issued a warrant for the retaking of
administratively released prisoner. Mr. Bolivar turned himself into local law

enforcement authorities on June 9, 2012, and has been in custody since.

0n August 3, 2012, a revocation/erroneous release hearing was held at the
Mchnnell Unit in Beeville, Texas. Mr. Bolivar requested subpoenas issue for
several witnesses, but BPP7TDEJ failed to issue subpoenas. The hearing proceeded
without the witnesses present, despite Mr. Bolivar's oral request that the
witnesses at least be made available telephonically. The hearing officer found
that Mr. Bolivar was erroneously released, and based her decision primarily on"
an affidavit by an employee of the TDCJ-Parole Division, who was not present

nor unavailable.

0n April B, 2013, Applicant filed a pro se Application for writ of Habeas
Eorpus in accordance with Art. 11.07 of the Texas Eode of Criminal Procedure. ”
'This Court granted the writ and remanded to the trial court for findings of fact
on September 3, 2013;

0n January 9, 201#, a jury convicted Mr. Bolivar of the Murder previously
found to be not true by proponderance of the evidence, and sentenced him to 45
years confinement in Cause No. 09-CR-2069-A, to run consecutively with his
previous 15 year sentence. 0n April‘1h, 2014 Mr. Bolivar filed a Pro Se Notice
of Advisory to inform the Eourt of the_new conviction, and advising it of the
order of a EUNSEEUTIVE SENTENEE and VA Benefits. This Court dismissed his writ

as moot on April 30, 201&. Applicant filed a Pro Se Motion For Reconsideration,

|.\

which was denied.

Mr. Bolivar's conviction in Eause No. 09-0R-2069-A is currently on appeal to
the Thirteenth Court of Appeals. That appellate court has already remended the
case once by written Urder on`March 11, 2015. The cause number in that case is

13-14-00157-0R.
`ARGUMENT
PREMATURELY DISMISSED AS MO0T

Simply stated; a case is moot when the issues presented are no longer "live"
or the parties lack a legally cognizable interests in the outcome. See CDUNTY 0F
L.A. v. DAVIS, 99?5T0t. 1379, 1303 (1979). Two prongs must be met in order to be
qualified as moot. First, it can be said with assurance that "there is no~
reasonable expectation..." that the alleged violation will recur. U.S. v. w.T.
ERANT 00., 73 S.Et. 094, 097 (1953). Second, interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.
DEFUNIS v.`UDEEUARD, 94 S.Et. 1704 (1974). when BBTH conditions are satisfied it
may be said that the case is moot because neither party has a legally cognizable

interest in the final determination of the underlying questions of fact and law.

In-the case at bar, Applicant has two live controversies. First, he was
deprived of liberty for approximately 19 months, and still has a valid interest
in future street time. Second, without a doubt, Mr. Bolivar is entitled to back-
pay from VA once this matter is properly resolved. Eiven the amount of time and
Compenaation due, it is in the tens of thousands of dollars Mr. Bolivar has a

significant financial interest in.

Additionally, at no point did any party move the Court to dismiss the instant
as moot. Clearly the Court*s action was premature. But even upon proper motion
by a party, "the burden”of demonstrating mootness is a heavy ons." wEST V.
SECRETARY 0F DEPT. 0F TRANSPURTATIUN, 2067E.3d 920, 924-925 (9TH Cir. 2000).
"[I]n deciding a mootness issue, 'the question is not whetherrthe precise relief
sought at thertime the application for an injuction was filed is still available.
The question is whether there can be any effective relief.'" Id., at 925. Here,
Applicant may no longer be eligible to be released from custody completely, but

he is able to be released to parole on the 15 year sentence, earn credit toward
the 45 year sentence, and receive backpay from the VA.
- 45

The Court's duty to adjudicate the merits of the case is aptly noted in
wRIGHT & MILLER, 13A FEDERAL PRACTIEE`AND PRUCEDURE § 3533.3 at 278 ("... the
central responsibility remains unchanged- decision should not be denied if a
wothwhile remedy can be given."). And in this case, there is a significant "F“

amount of remedy and relief that may be given to the Applicant.

ERDUND UNE: The warrant issued by TDEJ (warrant # 06471842) is invalid on its`
face, because Mr. Bolivar was at all times parole eligible and noiother
requirements of Tex. Gov't. Code § 508.252 were met.

The warrant issued is invalid on its face, because it did not state a valid
reason for Mr. Bolivar's return to custody. The warrant was issued under the
authority of Tex. Gov't. Eode § 508.252, which provides that a warrant or summ-
ons may be issued to retake a releasee into custody for one of the following
four reasons:

(1) There is reason to believe that the person has been released although
NOT ELIGIBLE for release;

(2) The person has been arrested for an offense;

(3) There is a document that is self-authenticating as provided by Rule
902, Texas Rules of Evidence, stating that the person violated a rule
or condition of release; or

(4) There is reliable evidence that the person has exhibited behavior
during the person's release that indicates to a reasonable person that
the person poses a danger to society that warrants the person's
immediate return to custody. Tex. Gov't. Code § 508.252.

Here, Mr. Bolivar was eligible for release on parole on December 22, 2010,
and the warrant was issued on June 8, 2012. At the time TDEJ issued the warrant,
Mr. Bolivar was eligible for release on parole. Mr. Bolivar was not arrested for
an offense after having been released, Mr. Bolivar was arrested in 2009, long
before his release on parole in 2012, and no subsequent arrest exsists to prov-
ide a basis for therissuance of a warrant, TDCJ failed to allege any violation
of a rule or condition of parole. In fact, TDEJ affirmatively states that no
violation was committed. (5ee Rudi Martinez Affidavit). Finally, TDCJ has not
alleged any behavior exhibited by Mr. Bolivar while released that poses a danger
to society. To the contrary, Mr. Bolivar immediately turned himself into the
local authorities when he saw that a warrant had been issued through the local

news.
Additionally, the Martinez affidavit was executed on June 25, 2012- 17 days

after the warrant was issued. Even if this affidavit, incorrectly asserting
ineligibility*for parole,wwould be sufficient to support issuance under Tex.
Gov't. Code § 508.252 (3), it is not a valid basis for the warrant, because it
was not executed until well after the warrant was issued and Mr. Bolivar was

taken into custody.

Therefore, the warrant issued to take Mr. Bolivar back into TDCJ custody was
invalid at the time it was executed, and Mr. Bolivar's subsequent incarceration
is a violation of the 4TH AMENDMENT'S warrant requirement, the Texas Eonstitution,

abd Tex. Gov't. Eode § 508.252.'

GRDUND Tw0+ The Erroneous Release Hearing is non-existenttunder Teaxs statutes
and held in violation of Mr. Bolivar's due process/due course of law rights

under the 14TH Amendment of the U.S. Eonstitution and Article I 5ec. 9, Texas
Eonstitution. v '

Under the MORRISEY doctrine, a release is entitled minimal due process
requiremnets prior to revocation. This includes a preliminary or on-site hearing
before an independent hearing officer held to determine whether probable cause
exists to believe that the parolee has violated the conditions of probation. The
releasee "must have an opportunity to be heard and to show, if he can, that he
did not violate the conditions." ld. at 488. A revocation hearing must comply F
with certain procedural requirements: written notice, disclosure to the parolee
of the evidence, the right to cross-examine adverse witnesses, a neutral hearing
body, and a written statement by the factfinder as to the evidence relied upon
and the reasons for revoking parole. EX PARTE GLENN, 690 S.w.Zd 578, 581 507’ 1
(ccA 1935).

0n June 8, 2012, Mr. Bolivar reported to the Harlingen District Parole 0ffice
where he was issued a Certificate of Parole and entered into a binding agreement
with BPP and TDCJ to abide by the terms and conditions of parole. He was further
provided with a separate document verifying his release from custody and in
parole status. He was placed under the supervision of District Parole foicer
Flor Duran. A parole certificate becomes "effective and in force" once
"conditions are agreed to signed, and accepted by the offender." 37 Tex. Admin.
Eode § 145.20 (2002)(Tex. Board of Pardons and Paroles,,Parole Process). The
fact that Mr. Bolivar's Parole Certificate was not issued following a vote by a
3-member_parole panel is not a bar to his subsequent release on parole being an

valid release.

j

lt is obvious from the facts that BPP/TDEJ had no intention of releasing
Mr. Bolivar to parole; however, that does not change the fact that they did. Mr.
Bolivar's release to parole, although erroneous, is still a release to parole.
He is_a "releasee serving an unauthorized conditional release;" and the law that
governs releasees is applicable in this case, EX PARTE HALE, 117 S.w.Zd 866, 872.
Therefore, he is entitled to the same due process under MURRISSEY v. EREwER, 408
U.S. 471 (1972).

As noted above, even though Mr. Bolivar specifically requested a preliminary

_hearing, he was NOT afforded one in violation of MORRISSEY'5 mandates.

0nce again, the BPP/TDCJ officials held what was called both an Erroneous
Release Hearing and a Revocation Hearing. However, an Erroneous Release Hearing
is nowhere to by found in statute, or even in BPP/TDEJ policies. An allegation
of an erroneous release must be presented in a Revocation Hearing. And the same
rules must apply as any other revocation hearing, including a violation of a

rule or condition of parole. That did not occur in this case.

I. Evidence was legally insufficient to support revocation under the Due Process
Elause of therFUURTEENTH AMENDMENT of the`U.S. Eonstitution and the Due Course
of Law Clause under the Texas Eonstitution, in that the State failed to allege
and prove a violation to support revocation of parole.

The revocation hearing was a violation of Mr. Bolivar's due process rights,
because at the time of thetrelease Mr. Bolivar was eligible for release on parole'
and the State failed to allege any violations of parole. A releaseethas a
significant interest in his continued liberty that entitles him to a limited
right to due process/course of law, and that liberty interest is not`rendered
moot by a valid incarceration on a new charge. EX PARTE 8N0w, 899 S.w.2d 201
(r;cA1995). b

The Btate's sole accusation at the hearing was that Mr. Bolivar was "ineligible
release." (1C.R. 41). The Hearing 0fficer relied on an affidavit from Rudi ”“rt `
Martinez, Program Specialist l, warrants Section-TDEJ, which stated "0ffender
is not eligible for release until a future unknown date or the Maximum date of

02-01-2024." (10.R. 44). ln a subsequent affidavit executed on the same day,

Martinez affirms that no violations§or arrests occurred while on supervision.

‘L

(1C.R. 60). Additionally, the hearing officer relied on Mr. Bolivar's

"Commitment lnquiry§" which clearly rebuts Martinez's assertion that Mr. Bolivar
was not eligible for release until an unknown future date. The Eommitment

Inquiry clearlyv shows that Mr. Bolivar became parole eligible on "12-22-2010."
(1E.R. 45). Furthermore, the hearing made the specific finding that "offender

has met the initial parole eligibility date for all instant offenses." (10.R. 38).

II. Admission of testimonial hearsay constitutes a violation of the Eonfrontation
Clause of the U.S. Bonstitution. -

The hearing officer admitted two affidavits executed by Rudi Martinez as
substantive evidence, and notednfinding that Mr. Bolivar's retocationewasebased
on one of them. (10.R. 37). 80th affidavits were admitted over Applicant's ““F“
objections as a Business Record Affidavit "used in the normal course of business
and the author has no vested interest in the outcome of the hearing." Id. at 36.
Under the MDRRISSEY doctrine, a releases is entitled to minimal due process prior
to a revocation, which includes the opportunity to cross examine adverse witnes-

ses. GEENN, 690 5.w.2d at 581.

”“rThe Texas Rules of Evidence (TRE) apply in parole hearings. 37 TAC § 147.22.
"Hearsay" is defined as "a statement, other than one made by the declarant

while testifying at the trial or hearing offered in evidence to prove the truth

of the matter asserted." TRE 801(d). Certain business records are admissable as

an exception to the hearsay rule. TRE § 803 (6). In the absence of live testimony
they must be accompanied by a properly executed affidavit in order to be self-
authenticating. TRE § 902 (10). The purpose of the 8usiness Record Affidavit is

to authenticate the records attached and allow admission of records that would
otherwise be excluded as inadmissable hearsay without requiring live testimony.
Therefore, the records are the substantive evidence, not the affidavit itself.
Furthermore, a properly executed business record affidavit must include assertions
that the records attached: (1) were made at or near the time; (2) author had
personal knowledge or made from information transmitted by a person with knowledge
(3) kept in the course”of regularly conducted business activity; (4) it was the
regular practice of that business to make the record; and (5) executed by the

custodian of records. TRE § 902 (10)1

Here, the affidavit the hearing officer based her finding on meets none of

q

. the requirements of a business affidavit. The affidavit in this case states that
Rudi Martinez was employed as a Erogram Specialist l, warrants Section-TDEj, then
recites a "synopsis of events leading to the issuance of the lneligible Release
warrant for offender Bolivar, Randall." (10.R. 43). The admitted affidavit merely
recites statements that are hearsay that do not meet any of the requirements of

exceptions or exclusions.

Furthermore, admission of Martinez's testimonial hearsay constitutes a
violation of Mr. Bolivar's rights under the Confrontation Elause. ln ERAwFURD;
the Supreme Eourt identified types of statements that are part of a "core class
'of 'testimonial statements'" that include:

(1T3ex parte in-court testimony_or its functional equivalent-that is,
material such as affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used prosecut-
orially; and '

(2) extajudicial statements... contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or to"fe""f
confessions. ERAwFDRD v. wASHlNETUN, 541 U.S. 36, 51-52 (2004)

Furthermore, where testimonial statements are at issue, the SIXTH`AMENDMENT

demands unavailability and a prior opportunity for cross-examination. ld. atFEB.

Here, Mr, Bolivar objected to admission of Martinez’s Affidavit on the
grounds that he was denied his right to confront and cross-examine the author.
(1E.R. 36). The hearing officer overruled his objection on the grounds that the
affidavit wasaadmissable as a 8usiness Record Affidavit. As`demonstrated above,
the admitted affidavit does not meet the requirements of the 8usiness Record
Affidavit and includes testimonial statements as outlined in ERAwFURD. Martinez
executed the affidavits for the purpose of the admission at the revocation
hearing and would resoanbly expect the statements be used for the purpose of
prosecution. Therefore, admission of the Martinez affidavits were a violation of

1

Mr. Bolivar's right to confront witnesses under CRAwFURD and MORRI58EY.

Although the rules governing revocation hearing allow for testimony by
written statementsy the witness must have been personally served with a subpoena
and a showing of good cause for the failure to appear. 37 TAE § 147.5. The record
does not indicate that Rudi Martinez was ever personally served with a subpoena,
and the hearing report is void of any good cause for Martinez's absence at the

hearing, Rather, the record tends to show that Martinez was never served with a

\O

sobpoena. Therefore, this is not a valid reason for a denial of Mr. Bolivar's

right to confront an adverse witness.

III. Denial of Mr. Bolivar's request of issuance of subpoenas of witnesses and
documents constitute a violation of his due process/course of law rights to be
heard and present witnesses and documentary evidence.

Prior to the revocation hearingy Mr. Bolivar submitted a sworn motion reque-
sting that issuance of subpoenas for::(A) four employees of TDCJ be served with
subpoenas to provide live testimony on his behalf; and (8) documents in the
custody of TDEJ_be provided to Mr. Bolivar for the purpose of_presenting

evidence that he was in fact parole eligible at the time of his release.

Under MORRISSEY's doctrine, a releasee is entitled to minimal due process
prior to a revocation, which includes the opportunity to be heard and to
present witnesses and documentary evidence. GLENN, 690 S.w.2d at 581. A hearing
officer has the authority to issue subpoenas. 37 TAE § 147.2.

Here; Mr. Bolivar requested in a written motion signed on July 29, 2012 that
subpoenas be issued to aid in his defense. However; the hearing officer failed
to issue such subpoenas and denied his written mqtion requesting the subpoenas
on the grounds that Mr. Bolivar announced ready to proceed without a continuan-
ce. However, the record reflects that Mr. Bolivar also submitted a written
motion for witnesses to be allowed to appear telephonically. This motion was
also denied. Mr. Bolivar then orally moved that the witnesses be allowed to
testify telephonically. The hearing officer denied this motion citing that all
testimony must be live. (1E.R. 36). [This contradicted her previous ruling on
Applicant's objection to the Rudi Martinez affidavit.] lndeed, this'is inaccur-
ate as testimony may be presented by written statement, if a witness has been
personally served with a subpoena and fails to appear upon finding of good '

cause by the hearing officer. 377TAC § 147.5.

The actions and rulings of the hearing officer of a denial of Mr. Bolivar's
right to present witnesses and documentary evidence is a clear abuse of discre-
tion. The hearing officer’s failure to issue the subpoenas requested prevented
Mr. Bolivar from presenting the witnesses, because the four witnesses were TDEJ

employees and the documents were in the sole possession of the State. Failure

\\‘

to issue the subpoenas effectively tied Mr. Bolivar's hands in his effort to "

present evidence in his defense.

GRDUND THREE: Releasee‘s Eertificate of Parole was illegally voided by the State
'depite compliance by Releasee, which is in violation of the three-party agree-
ment/contract that resulted in an illegal revocation/restraint.

lt is the Applicant's position that his three-party agreement/contract with
BPP and TDEJ was illegally voided because the Btate (BPP and TDEJ) failed to
execute the terms and conditions which they were required to adhere to within

the agreement and state statutes.

ln EX PARTE SEYMUUR, 231 5.w.2d 448 (EBA 1950), the court determined that av
conditional pardonf(or in this case, parole) is a contract between pardoned
person and the State, and its acceptance is an agreement to be bound by terms

thereof. Statutes in Texas interchange pardons and paroles within the statutes.v

lt is doubtful that the State will argue that their own contracts are so
ambiguous and vague that they require this Court to make an interpretation of
the Bertificate of Parole, and its relevant statutes. Even so, this Eourt has
previously held that a parole certificate can not be voided without meeting
procedural requirements required under the law. The Btate must employ minimum
requirements of due process/course of law in order to revoke parole. EX PARTE
MATHIS, 899 5.w.2d 203 ( EEA 1995). As shown in Erounds 0ne and Two, the Etate

failed in meeting the minimum requirements.

Mr. Bolivar entered into an agreement with BPP (facsimile signature of BPP

Ehairperson, Rissie 0wens), and TDCJ (signature of TDEJ-Parole Division 0fficer,

Flor Duran). (Exhibit #1). See 37 TAE § 145.20.

The wnited States Supreme Eourt in HEwlTT V. HELMS, 103 S.Et. 864 and SANDIN
v. 00NNER, 115 S.Et. 2293 made clear that a "liberty interest" may be created

by a state statute. rule, agreement or order. ln HEwlTT v. HELMB, the EDurt
held that mandatory language in connection with substantive predicates :?t“*i

establishes that a statute, rule or agrrement has created a "liberty interest"
and once created, is enforcable bv the Due Process Clause of AMENDMENTS 5 and
14- However, in SANDIN, the Eourt specifically stated that the only time a

\&

liberty interest shall be acknowledged is when the prisoner demonstrates that

the state's actions statute created in him an expectation of remaining free. ln
this case, Applicant contends that the Texas Administratice Bode and Eertificate
of Parole,jcombined with the fact that he was actually released, created a
legitimate expectation that he would remain free on parole if he abided by the
terms and conditions of the agreement, Thus, his revocation and voiding of his
Certificate 6f Parole was illegal under Supreme Court precedents,,and this

Courts prior holdings. Therefore, Applicant's parole should be reinstated.

GROUND"FO0R: Does the Board of Pardons and Parole Ehairperson have the authority
to administratively release a person eligible for parole'from custody under
current State laws?

Under the Tex. Eov't.:Eode, sec. 508.141, is the WAuthority to Eonsider and
order Release on Parole," just as stated in 37 TAC 145.2 (a); and 06d§r037HTAE
1&1,1 (a), the "presiding officer reports directly to the governor and serves
as ther administrative head of the board. The presiding officer acts as spokes-
person for the board." while a releases requires a parole panel approval, under
current rules, the Bhairperson has been endowed sufficient authority and
'discretion to be considered a panel. Rule 141.7. "the presiding officer (chair)
shall designate the composition of each panel." Thus, the Ehairperson may
designate herself as a engle-member panel and vote to release a person in

custody, and eligible for parole, if she so chooses.

lndeed, Rule 141.51 clearly state that "These rules are prescribed for the
performance of the constitutional and statutory powers and functions vested in
the board. In”no'event shall they or any of them be construed ss s limitation
or restriction upon exercise of any'discretion by the board or by“s parole

panel;"

As the administrative head and spokesperson for the board, Ms. 0wens exercised
her authority and discretion- without limitation or restriction- to consider
and order the Applicant released on parole. Applicant can not be now arbrtarily

deprived of this administrative release granted by the administrative head.

GRUUND FIVE: Applicant claims he is ACTUALLY lNNO0ENT of the allegation made
against him during the parole revocation hearing.

|3

The State alleged that Mr. Bolivar was "ineligible release" from "Eameron
'Eounty, Texas" on /about "June 8, 2012;"

However, Mr. Bolivar was released from TDEJ custody on May531, 2012 from the
Huntsville Unit which is located in walker County, Texas. He was transfered to
the custody of Tennesse officials.”Applicant was then released from Tennessee
custody on June 65 2012 from Dickson Bounty, Tennessee, At all times during

this prosess, Applicant was eligible for parole.

Therefore, Mr. Bolivar makes his claim of ACTUAL INNDCENEE;of a parole
revocation allegation. Applicant has spent/countless hours attempting to find
case law on this matter, and has found none. Applicant believes this to be a

novel claim in Eriminal Law which this Honorable Eourt has not addressed.
EUNELUSIDN

’Mr. Bolivar argues that the State has deprived him?of'his state-created
liberty interests of jailtime credits and future street time, as well as his
VA benefits. He has an inherent and sacred right to be secure in his liberty
once released from custody. Furthermore, he has a right to be protected in his
property interests from arbitary actions by the State that would deprive him‘
of his benefits and compensation earned from his Honorable Military 5ervice.
For those reasons, both said and unsaidg Applicant is entitled to the relief

requested.
PRAVER FOR RELIEF

Applicant prays for the Court to reinstate parole in Eause No. 06-0RF-0501
withhan effective date of June 8, 2012.

Applicant further prays the Court order the 107TH District Eourt of Cameron
Dounty, Texas to"enter an order granting jailtime credits-from January 9, 2014
to the date of then order, in Eause No. 09-0R-2869-A.

Applicant further prays the Eourt will order copies of these orders be sent

to TDEJ and Department of.Veterans Affairs, Houston Regional 0ffice.

Respectfully 5 bmitted,

Randall Bolivar, Pro`Se

_Applicant
Ellis Unit, TDEJ # 1719379

Huntsville, Texas 77343

VERIFIEATIUN

5TATE 0F TEXAS

¢03¢03¢0'~'

EUUNTY 0F wALKER
AFFIDAVIT

l, Randall Bolivar, being presently incarcerated within TDEJ-EID, 0;8. Ellis
Unit, located in walker County, Texas, declare under penalty of perjury without
the United States, that'I have the above and foregoing memorandum of law
and demand for adjudication, and that every allegation and fact stated therein

and herewith are true, correct, and complete pursuant to Title 28 050 § 1746 (1).

Executed on August 10, 2015. _» <;Zz;%gzz:gz:¢§:ZF

Randall Bolivar, Affiant

 

BERTIFICATE 0F 5ERVIEE
l, Maria 5. Rey, certify that a true and correct copy of the above and foregoing
documents have been served on opposing counsel for the State at:

§§tate Prosecuting Attorney

P.0. Box 12405
Austin, Texas 78711
Signed on August /EE,.2015.
Maijla 5.& '

 

