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The Honorable William H. Sk&on, Chairman Opinion No. H- 312
Board of Pardons and Paroles Room 501. John H. Reagan Building Austin, Texas 78701

Dear Mr. Skelton: Re: Appointment of Attorneys to represent indigent prisoners at on-site parole revocation hearings.
You have asked our opinion ontwo questions relating to the appointment ofcounsel to represent alleged parole violators at apreliminary revocation hearing. Your first question is:

“[Dloes the Board have the responsibility and/or the authority toprovide the attorney for the alleged parole violator who requests an On-Site Hearing or for whom an attorney is required or deemed neces

### saryby the Hearing Authority? ”
In Morrissey v0 Bmer, 408 U.S. 471 (197i), the United States Supreme Court concluded that the requirements of due process necessitated several procedural safeguards in the parole revocation process. One ofthese is the requirement that apreliminary hearing be conducted at or near the place ofthe arrest or alleged violation to determine whether there is probable cause or reasonable ground tobelieve that the arrested parolee has committed acts which constitute aparole violation. Morrissey, supra. at 485. The Court inMorrissey found itunnecessary to decide whether the parolee was entitled to the assistance of counsel.
The necessity ofcounsel for parolees facing revocation proceedings was discussed iniegnon v. Scarpelli, 411U.S. 778, 36 L. Ed. 2d 656 (1973). The Court refused toadopt aninflexible rule and indicated that the decision as to the need for counsel would have tobe made ona case-by-case basis inthe exercise ofthe sound discretion ofthe state

p. 1443. .

The Honorable William H. Skelton, page 2 (H-312)

parole authority. Therefore, the Board has the responsibility ofconsidering the facts ofeach case to determine whether counsel is required. To guide parole boards discharging their responsibi&ty the Court said:

“It is neither possible nor prudent to attempt to formulate aprecise and detailed set ofguidelines tobe followed in determining when the providing of counsel is necessary tomeet the applicable duo process requirements. The facts and circumstances in preliminary and final hearings are susceptible ofalmost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, itmay be said that counsel should be provided in cases where, after being informed ofhis right to request counsel, the probationer or parolee makes such a request, based onatimely and colorable claim (i) .%Fathe has not committed the alleged violation of the conditions upon which he is at liberty: or (ii) that, even if the violation is amatter ofpublic record br is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. Inpassing ona request for the appointment of counsel, the responsible agency also should consider, especially in doubtful ca8es. whether the probationer appears to be capable of speaking effectively for himself. Inevery’ case in which a request for counsel at apreliminary or final hearing is refused, the grounds. for refusal should be ntated succinctly inthe record. ” (36 L.Ed. 2dat 666-667) Shortly before the Supreme Court announced its decision in Gagnon v. Scarpelli, supra. apanel ofthe United States Court ofAppeals for the Fifth Circuit decided Cottle v. Wainwright, 477 F. 2d 269 (5th Cir. 1973). Expressly declining to reach the dueprocess issue which subsequently formed the basis for the Scamelli decision, the Fifth Circuit held under the equal protection clause that anindigent parolee was entitled to appointed counsel in revocation proceedings if retained counsel would have been permitted. The Supreme Court vacated the

p. 1444The Honorable William H. Skelton, page,3 (H-312)

judgment in Cattle and remanded the cause to the Fifth Circuit, for further proceedings inlight ofScarpelli [Wainwright v. Cottle,

U.S. , 38 L.Ed. 2d 138 (1973)], even though, according to the dissent ofJustices Douglas and Blackman, the decision in Scarpelli,“is inapposite’% a consideration ofCottle. Cottle is -- nowpending before the Circuit and the decision ultimately reached in that case may expand the responsibility of the Board. See, Lane v. Attorney General ofthe United States, 477 F. 2d 847 (5th Cir. 1973).
Since the Board has the responsibility to provide counsel in certain cases the remaining aspect ofyour first question requires a determination ofthe Board’s authority to provide counsel. The Board is required by statute toprovide parole revocation hearings, to adopt rules and regulations to govern these hearings, and 

### ,after the hearing to recommend to the Governor that the prisoner’s parole be continued, revoked or modified. Article 42.12, Sec. 22, Vermn’s Texas Code of Criminal Procedure. Since itis necessary toprovide counsel for certain indigent parolees in order to fulfill this statutory mandate, we believe the Board by necessary implication has the authority to provide counsel. Terre11 v. Sparks, ,135S.W. 5!9 (Tex. 1911). The Board has some discretion in determining the manner, in which counsel is tobe provided. Appointment ofcounsel is one possibility; however, even though many attorneys will be willing to accept the Boards appointment to represent anindigent prisbrser, see, Texas Bar Association, Code ofProfessional Responsibility, =2-16, EC 2-25, we know ofnomeans bywhich the Board can compel an attorney toprovide such representation,
Other alternatives the Board may want to consider are the establishment ofaf&schedule ,fdr use in the employment of private attorneys [see generallyt Article 26.05, Texas Code of Criminal Procedure], or the establishment ofan office oflegal counsel to provide such representation. Since these and other possible proposals 

### are not before us we express no opinion as to’the legality ofestablishing or funding any particular plan.
Your second question asks:
“Does the District Judge ofthe county inwhich the parolee is in custody have the authority or responsibility to provide the attorney? ” p. 1445. ,

The Honorable William H. Skelton, page 4 (H-312)

District Courts ar=eauthorized to appoint counsel for indigents in many situations, e.g. t Articles 16.01, 26.04, 26. 05, 42,12, Set, 3b, Vernon’s Texas Code of Criminal Procedure: however, the parole revocation process, unlike atrial or a revocation ofprobation, does not take place inthe courts0 When parole is tobe revoked a court has no case or controversy before it, andtherefore, we believe it would have nojurisdiction to appoint an attorney to represent a prisoner in ahearing before some other authority.
SUMMARY
The Board ofPardons and Paroles has the responsibility and authority to provide counsel for indigent prisoners whose parole is to be revoked. An attorney should be provided when the parolee disputes the allegation ofa violation or offers substantial reasons tojustify or mitigate the vialation ofthe conditions ofparolee, Attention must be given to the parolee’s ability to speak for himself, Very truly yours, A

JOHN L. HILL Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

po 1446