Ex parte Hurd, 66838
| Decision Date | 08 April 1981 |
| Docket Number | No. 66838,66838 |
| Citation | 613 S.W.2d 742 |
| Parties | Ex parte Joe Michael HURD. |
| Court | Texas Court of Criminal Appeals |
This is a post-conviction application for writ of habeas corpus that is before this Court pursuant to Art. 11.07, V.A.T.C.C.P.
The commencement of this cause, by the record on appeal, was on November 22, 1972, when petitioner was convicted of two felonies and assessed two five-year sentences to be served in the Texas Department of Corrections, hereinafter referred to as T.D.C., with both sentences to be served concurrently. No appeal was taken from these two convictions and petitioner was transferred to T.D.C. Petitioner remained incarcerated in T.D.C. until January 10, 1975, when he was paroled by the State of Texas. The parole was short lived as he was again convicted and sentenced to three years' confinement in T.D.C. on September 22, 1975, for two new felony offenses committed on March 18, 1975 and April 12, 1975. These sentences were also to be served concurrently. Petitioner appealed these convictions to this Court and they were affirmed on October 11, 1978.
We are told by the "master's" findings 1 that petitioner was arrested for "a parole violation" on October 21, 1975, in Harris County and was thereafter transferred to T.D.C.
By the record, we learn that in 1975, if a person went to court in Harris County and was convicted, but put his case on appeal, and his sentence was 15 years or less then, if the person were in the Harris County jail, the District Clerk's office of that county did nothing as far as notifying the Harris County Sheriff's office of what happened in court. 2
Our mandates of affirmance were subsequently received by the Harris County District Clerk's office on October 31, 1978.
At this point, we summarize the above:
11/22/72 Petitioner was sentenced to five years' confinement in T.D.C. and was transferred from Harris County to T.D.C.
1/10/75 Petitioner was released on parole from T.D.C.
9/22/75 Petitioner was again sentenced on new cases to three years in T.D.C., but this time he put his cases on appeal, but did not make the bail set and remained incarcerated in Harris County until 10/21/75.
10/21/75 Petitioner was returned to T.D.C. as a parole violator.
2/6/76 Petitioner was released from T.D.C. because he discharged his 1972 sentences. By a certificate signed by the chief of the records of T.D.C., no 'detainers' were lodged against him.
10/27/78 Mandates from the Court of Criminal Appeals issued.
10/31/78 The mandates were received by the Harris County Clerk's office from this Court. 3
We also learn from the hearing held before "the master" that petitioner was confined at the "Harris County Detention Center" and it was the "detention center's" function or duty or responsibility to request that a "detainer" be lodged by T.D.C. officials on behalf of Harris County against the inmate, as the "detention center" was where "the chain was pulled" and the trip to T.D.C. began. 4
However, the "detention center" would not necessarily know that a "detainer" should be lodged against an inmate by T.D.C. officials due to the fact that, unless they received a "delivery order" from the clerk of the court, they would not know to request T.D.C. to put a "detainer" against an inmate.
The Clerk's office has the responsibility to prepare the "commitment and delivery order," but, in reference to the 1975 convictions, this order was not prepared because, as the clerk of the court tells us through his testimony, if a defendant put his case or cases on appeal and did not request a transfer to T.D.C. and received no more than 15 years, even if he remained incarcerated in the Harris County jail, no "delivery order" was prepared. Although the Harris County Clerk's office received our mandates on October 31, 1978, it was not until November 6, 1978 that an alias capias or warrant for petitioner's arrest issued. Petitioner's whereabouts were then unknown. However, by the record, no communications between the clerk's office or the Sheriff's office or T.D.C. ever occurred. 5
Petitioner tells us through his testimony that when he returned to T.D.C. on October 21, 1975, he was under the "assumption" he was sent there to complete serving his 1972 sentences, as well as his 1975 sentences. But he, as well as T.D.C., was unaware of the cases then pending in this Court and the upcoming "warrants in nubibus." 6 So, on February 6, 1976, T.D.C. officials released petitioner as he had discharged the sentences they showed he was serving.
Petitioner was thereafter arrested in the State of Utah on August 28, 1980, when his "warrants in nubibus" vested, and returned to Harris County 16 days later. Thereafter, through the cooperative efforts of the trial judge, Hon. Thomas Routt; a "master" appointed by the trial court, Fred Dailey; petitioner's counsel, Sharon E. Fobbs; and two members of the Harris County District Attorney's office, Susan Spruce and Don Smyth, petitioner is before this Court.
In Ex parte Esquivel, Tex.Cr.App., 531 S.W.2d 339 (1976), and Ex parte Tarlton, Tex.Cr.App., 582 S.W.2d 155 (1979), we observed that "absent an escape, a violation of parole or some fault on the part of the prisoner, a sentence must be continuous and a prisoner cannot be required to serve his sentence in installments." Through no fault of Hurd or T.D.C., T.D.C. was not informed by Harris County when he was returned to T.D.C. on October 21, 1975. In Tarlton, supra, the petitioner received a life sentence, which he then placed on appeal but withdrew it on September 5, 1964. Prior thereto, on August 20, 1964, he was transferred to T.D.C. for a parole revocation, but T.D.C. was never made aware of the life sentence or its status. Seven years after he discharged the sentence for which he was placed on parole, which was subsequently revoked, his "warrant in nubibus," vested and, as a result thereof, Tarlton commenced serving his sentence. This Court ruled unanimously that Tarlton was entitled to flat time credit continuously from July 31, 1964, the date of his sentence. In Esquivel, supra, the facts showed that...
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