JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12545 

Auslln. TX. 78711.2549 

51214752501 

Telex 9101874-1367 

Telecopier 5121475-0286 

714 Jackwn. Suite 700 

Dallas. TX. 752024508 

ZlU742.8944 

4S24 Alberta Ave., Suite 160 

El Paso, TX. 799052793 

9151533.3484 

1001 Texas, suite 700 

Houston, TX. 77002~3111 

713/2235SS6 

806 Broadway, Suite 312 

Lubbock. TX. 794013479 

SOSf747-5239 

4309 N. Tenth, Suite B 

McAllen, TX. 79501.1685 

5121S82.4547 

200 Main Plaza. Suite 4W 

San Antonio. TX. 792052797 

51212254191 

An Equal Opportunity1 

Affirmatlve Action Employer 

The Attorney General of Texas 

riy 19, 1986 

Mr. A. Neal Pfeiflier Opinion No. 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~~uested our opinion regarding the use of a staff 

hearing officer by the Texas Board of Pardons and Paroles ("Board") to 

conduct final revocation proceedings. Specifically, you ask whether 

the use of these staff hearing officers Is in compliance with minimum 

due process standards articulated by the United States Supreme Court 

in Morrissey v. 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:le board, members of which need not be judicial 

officers or lawyers." - Id. at 489. 

The proceed:lngs of 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 Constitution initially created 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?aople to 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 revoke paroles and issue warrants for the 

return of a paroled prisoner. Acts 1983, 68th Leg., ch. 232, at 974. 

p. 2251 
Mr. 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 administrative rules to govern revocation procedures. See 37 T.A.C. 5145.00 et seq. (1985). - 

Sec. 22. Whanever a parolee, mandatory 

releasee, or a parson granted a conditional pardon 

is accused of a violation of his parole, mandatory 

supervision, or conditional pardon on information 

and complaint by a law enforcement officer or 

parole officer, he shall be entitled to a conditional right to t'e heard on such charges before 

the Board or its designee under such rules and 

regulations as the Board may adopt. . . . 

Administrative Rule 145.45 provides that a hearing shall be scheduled 

and conducted within a re,lsonable time (70 days) after arrest on a 

Board issued pre-revocation warrant at or near the site of arrest with 

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 supervision of the case. 

Rule 145.48 details the hearing duties and procedures of the hearing 

officer. Moreover, Rules 1145.49 and 145.50 outline the procedures 

used for review of the hearing officer's report by the staff and 

Board. The final disposit:lon is 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 Criminal Procedure in delegating its 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'd n.r.e.); see 

also Attorney General Opinion JM-244 (1984). We must now decide 

whether the use of the t,taff officer to conduct a final hearing 

comports with the due procass standard required by Morrissey, *. 

The United States Supctcme Court in Morrlssey cautioned that the 

duty to write a code of procedure was the responsibility of 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 

revocation procedures. We are not aware of any court decision which 

has prohibited the use of a staff hearing officer as a "neutral and 

detached" hearing officer of a parole agency to conduct final 

revocation hearings wherein 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 Sheppard v. Taylor, 433 F. s~pp. 984, 986-87 (S.D.N.Y. 1977), 

the district court did not address the question of whether the use of 

two staff hearing examinerh rather than a "traditional parole board" 

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

to conduct the final revocation hearing violated the principle of 

Morrissey. The district caurt merely held that since one of the staff 

hearing exsminers was the official who recommended and obtained the 

parole violation warrant, the situation contravened the requirement of 

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. 458 N.Y.S.2d 371, 198r 

SUMMARY 

The Texas Bo;lrd of Pardons and Paroles may 

delegate, pursuatt to section 22 of article 42.12 

of the Code of C,riminal Procedure, its authority 

to conduct final revocation hearings to neutral 

and detached hearing officers to make recommendations to the Board without violating the Due 

Process Clause of the Fourteenth Amendment to the 

United States Coostitution. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gr:neral 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney G#eneral 

RICK GILPIN 

Chairman, Opinion Committee! 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 2253