JIM MATTOX Attorney General

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An Equal Opportunity1 Affirmatlve Action Employer 

# The Attorney General of Texas

riy 19, 1986

Mr. A.Neal Pfeiflier OpinionNo. JM-494 Chail?Ilan Texas Board of Pardons and lb?:Whether the Board of Pardons Paroles and Paroles may conduct release P. 0. Box 13401,Capitol Station hearings through an independent Austin,Texas 7fLill hearing officer

Dear Mr. Pfeiffer:

You have re~~uestedour opinion regarding the use of a staff hearing officerby the Texas Board of Pardons and Paroles ("Board")to conduct final revocation proceedings. Specifically, you ask whether the use of these staffhearing officers Is in compliancewith minimum due process standards articulatedby the United States Supreme Court inMorrisseyv. B:~FI, 408 U.S. 471, 484 (1972).

It is well settled law that a proceeding to revoke probation portends a possi'ble deprivation of liberty, and as such, the application of appropriate due process of law is constitutionally required. Morrissey v. Brewer, 408 U.S. 471, 484 (1972); see also Caddellv. State,%05 S.W.2d 275, 277 (Tex.Grim.App. 1980).
Morrissey, ,3npra, held that due process requires that the person(s) conducting the final revocation hearing be "neutral and derached." Id. The Court found that this test is sitlsfied by "a traditional paro:leboard, members of which need not be judicial officersor lawyers." Id. at 489. - The proceed:lngsof the Board are administrative rather than criminal in nature. See Martinez v. State, 635 S.W.2d 762, 766 (Tex. APP. - Corpus Christi-82, no writ). Article IV, section 11 of the Texas Constitutioninitiallycreated the Board of Pardons and Paroles. This provision grants the governor the power, conditioned upon the Board's recommendation, to grant reprieves and commutations of punishment and pgtrdons. In 1983. article IV, section 11 was amended by vote of the I?aopleto make the Board a statutory rather than a constitutional al:ency. The legislature amended sections 12(d) and 21(a) of article 42.12 of the Code of Criminal Procedure to give the Board the sole ar.thority to revokeparoles and issuewarrants for the return of a paroledprisoner. Acts 1983, 68thLeg., ch. 232, at 974.

p. 2251Mr. A. Neal Pfeiffer - Pago 2 (JM-494)

The Board,pursuant to section 22 of article 42.12 of the Code of Criminal Procedure has adopted administrativerules to govern revocationprocedures. See 37 T.A.C. 5145.00 et seq. (1985). -
Sec. 22. Whanever a parolee, mandatory releasee,or a parson granteda conditionalpardon is accused of a violation of his parole,mandatory supervision, or conditionalpardon **on** information and complaint by a law enforcement officer or parole officer, he shall be entitled to a conditional right to t'eheard on such charges before the Board or its designee under such rules and regulationsas the Boardmay adopt.

. . . AdministrativeRule 145.45provides that a hearing shallbe scheduled and conducted within a re,lsonabletime (70 days) after arrest on a Board issuedpre-revocationwarrant at or near the site of arrestwith few exceptions. 37 T.A.C. §145.45. Rule 145.45(i)provides for the hearing to be conducted by a "neutral and detached staff hearing officer"who is not directiy involved in the supervisionof the case. Rule 145.48 details the hearing duties and procedures of the hearing officer. Moreover, Rules 1145.49and 145.50 outline the procedures used for review of the hearing officer's report by the staff and Board. The final disposit:lonis made by the Board. We believe that the Board has acted within its authority under section 22 of article 42.12 of the Code of CriminalProcedure in delegatingits authority to conduct final revocation hearings to a staff hearing officer. See Colorado County Federal S@ngs and Loan Association v. Lewis, 498 S.W.2d 723, 727 (Tex.Civ. App. - Austin 1973,writ ref'dn.r.e.); see also Attorney General Opinion JM-244 (1984). We must now decide whether the use of the t,taffofficer to conduct a final hearing comportswith the dueprocass standardrequiredby Morrissey, *.

The United States SupctcmeCourt in Morrlssey cautioned that the duty towrite a code of procedurewas the responsibilityof the states and not the Court. Morrissay v. trewer, 408 U.S. 471, at 488. Thus, the Court only sought to guide t e state's authority in establishing revocationprocedures. We are not aware of any court decisionwhich has prohibited the use of a staff hearing officer as a "neutral and detached" hearing officer of a parole agency to conduct final revocationhearingswherein a written report is submitted to a parole board to make a final determination. On the other hand, most courts have concentrated on the "neutral and detached" qualification of the person conducting the hearkg. Cohen & Gobert, The Law of Probation and Parole, 914.07 (1983).

In Sheppardv. Taylor, 433 F. **s~pp.** 984, 986-87 (S.D.N.Y. 1977), the district courtdid not address the question of whether the use of two staff hearing examinerh rather than a "traditionalparole board"

p. 2252.‘- Mr. A. Neal Pfeiffer - Page 3 (JM-494)

to conduct the final revocation hearing violated the principle of Morrissey. The district caurtmerelyheld that since one of the staff hearing exsminers was the official who recommended and obtained the paroleviolationwarrant, the situationcontravenedthe requirementof Morrissey because that exan:Lner was not "neutral and detached." 433 P. Supp. 984, at 986. Accordingly, we conclude that the Board may delegate its authority to conduct a final revocation hearing to a "neutral and detached" hearing officer without contravening the due process requirements of Morrisse Cf. People ex rel. Shippens V.
e. 458N.Y.S.2d 371, 198r

SUMMARY

The Texas Bo;lrdof Pardons and Paroles may delegate, pursuatt to section 22 of article 42.12 of the Code of C,riminalProcedure, its authority to conduct final revocation hearings to neutral and detachedhearing officers to make recommendations to the Board without violating the Due Process Clause of the FourteenthAmendment to the United StatesCoostitution.

JIM MATTOX AttorneyGeneral of Texas

JACKHIGHTOWER First AssistantAttorney Gr:neral

MARY KELLER ExecutiveAssistantAttorney General

ROBERT GRAY SpecialAssistantAttorney G#eneral

RICK GILPIN Chairman,Opinion Committee!
Preparedby Tony Guillory AssistantAttorney General

p. 2253