No. 13803 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

DANIEL H. LOPEZ, 

Petitioner, 

ROGER CRIST, Warden, 

Montana State Prison, 

Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Petitioner: 

Peter M. Meloy argued, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles Graveley, County Attorney, Helena, Montana 

Nick A. Rotering argued, Helena, Montana 

Submitted: May 4, 1978 

Filed: 

@AV a I- 1 7478 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

 his is an original proceeding wherein petitioner, Daniel 

H. Lopez, seeks release from custody to parole status through a 

writ of habeas corpus. 

Petitioner plead guilty to a charge of rape in Missoula 

County and was sentenced to a 20 year term in the state prison in 

1970. On September 22, 1975, petitioner was 2aroled by the Board 

of Pardons and transferred to the supervision of a parole officer 

in Helena, Montana. Be left Montana shortly thereafter, without 

the permission of his parole officer, but returned upon being told 

by his parole officer that he would not be charged with a parole 

violation for leaving the state. Petitioner then enrolled in a 

concentrated employment program in Helena. 

Petitioner was arrested in Helena on November 7, 1975, on 

a parole violation, issued because he was a suspect in a sexual 

assault case in Lewis and Clark County. An on-site hearing on the 

alleged parole violation was held on November 26, 1975. The hearing 

examiner found probable cause to hold petitioner pending a full 

hearing on the alleged parole violation. Petitioner was returned 

to the state prison. 

A hearing before the Board of Pardons set for December 18, 

1975, was continued at petitioner's request to enable him to obtain 

an attorney. The Board set January 29, 1976, as the new hearing 

date. Petitioner did not appear at this hearing, and the Board 

deemed his failure to appear a waiver of his right to a hearing 

and revoked his parole. Petitioner's allegation that a prison 

guard refused to allow him to attend that hearing was not disputed 

by respondents. 

Trial in Lewis and Clark County on the sexual assault 

charge resulted in an acquittal on July 8, 1976. Petitioner was 

returned to custody at the state prison following that trial. 
On ~pril 25, 1977, Lopez petitioned this Court for a writ 

of habeas corpus. We remanded the petition to the District Court, 

~ewis and Clark County, for hearing and determination. Following 

a hearing, by order filed August 18, 1977, the District Court 

directed the Board of Pardons to provide petitioner with a full 

hearing on his parole revocation. The District Court also ruled 

that petitioner was not entitled to release from custody to parole 

status pending that hearing. Petitioner then filed an appeal with 

this Court challenging the District Court's denial of his petition 

for release to parole status pending his revocation hearing. 

Before that appeal could be heard, the Board of Pardons 

set a hearing on petitioner's parole revocation pursuant to the 

District Court's order. On December 29, 1977, after several delays, 

petitioner appeared before the Board of Pardons for the hearing on 

the merits of his parole revocation. The Board found there was 

insufficient evidence to warrant revocation and voted to restore 

petitioner's parole. However, the Board did not release petitioner 

to parole. Rather, it ordered him to appear at the next Board 

meeting, in January 1978, to present an acceptable parole plan. 

Petitioner appeared at that meeting and presented two 

parole plans. Neither was acceptable to the Board. There was 

some opposition, apparently from law enforcement authorities from 

Missoula and Lewis and Clark Counties, to petitioner being paroled in Montana, and the Board therefore suggested he submit an 

out-of-state parole plan. 

On April 6, 1978, petitioner filed a second petition for a 

writ of habeas corpus with this Court, alleging his continued detention is illegal. Petitioner contends he is entitled to immediate 

release from custody and return to parole status. Respondent Department of Institutions contends the state has the power to keep 

petitioner in custody until he submits an acceptable new parole 

plan. 
Both sides concede the Board of Pardons and the Department 

of Institutions have broad discretionary powers regarding parole 

matters. Parole is a matter of grace, not of right, and whether 

a convict is behind walls or walking the streets on parole, he 

remains subject to the sentence imposed and to the regulatory action of the parole authorities. State ex rel. Herman and Roy v. 

Powell, (1961), 139 Mont. 583, 589, 367 P.2d 553; Petition of 

LaDoux, (1964), 144 Mont. 9, 11, 393 P.2d 778. 

The imposition of parole conditions and the supervision of 

parolees are mandated by administrative regulation and statutory 

law. See: MAC 20-3.10(6)-S10060; sections 95-3214 and 95-3306, 

R.c.M. 1947. Clearly, parole authorities have the duty, in the 

exercise of their sound discretion, to control and condition parole 

as best suits the needs of society as well as the parolee. 

Parole statutes and case law establish guidelines for the 

granting and revocation of parole, but none embrace the precise 

question here--whether a parolee who, after a full revocation hearing, has been bound by the Board of Pardons not to have violated 

his parole may nevertheless be confined pending submission of an 

acceptable new parole plan. 

In Morrissey v. Brewer, (1972), 408 U.S. 471, 92 S.Ct. 2593, 

33 L Ed 2d 484, the Supreme Court of the United States held that 

due process requires at least an informal hearing prior to the 

revocation of parole. The Supreme Court recognized the importance 

of parole status as an underlying consideration supporting due 

process protections, stating: 

"* * * the liberty of a parolee, although 

indeterminate, includes many of the core 

values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee 

and often others. * * *" Morrissey, 33 L Ed 2d 

495. 

Here, the Board's determination that there was insufficient 

evidence to revoke petitioner's parole establishes that his "indeter- 
minate liberty" should be restored. Respondents' argument that 

petitioner must first submit an acceptable parole plan is not 

wholly without merit. However, under the circumstances, petitioner should not have to carry that burden alone. The parole 

authorities have, in this case, an affirmative duty to actively 

aid petitioner in developing a realistic, acceptable plan. It 

is 

must be recognized that petitioner/ in prison only because the 

authorities made an erroneous decision that he had violated the 

terms of his parole. Surely petitioner, under these circumstances, 

is entitled to the total cooperation and active efforts of the 

authorities in finding an acceptable parole plan. 

Petitioner is entitled to release from custody to parole 

status. The authorities are given thirty days from the date of 

this decision to develop and approve a parole plan for petitioner. 

If at the end of thirty days such plan has not been approved and 

the petitioner released, petitioner is ordered released from prison, with the authorities ordered to supervise the out-of-prison 

activities of petitioner commensurate with his status as a parolee. 

,----. 

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2 g. J/&dL 

f Justice 1' 

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We Concur: