. . 

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 on two questions relating to the appointment of counsel to represent alleged parole violators at a preliminary 

revocation hearing. Your first question is: 

“[Dloes the Board have the responsibility and/or the 

authority to provide the attorney for the alleged 

parole violator who requests an On-Site Hearing or 

for whom an attorney is required or deemed necessary by 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 of these is the requirement that a preliminary hearing be conducted 

at or near the place of the arrest or alleged violation to determine 

whether there is probable cause or reasonable ground to believe that 

the arrested parolee has committed acts which constitute a parole 

violation. Morrissey, supra. at 485. The Court in Morrissey found 

it unnecessary to decide whether the parolee was entitled to the 

assistance of counsel. 

The necessity of counsel for parolees facing revocation proceedings 

was discussed iniegnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656 

(1973). The Court refused to adopt an inflexible rule and indicated 

that the decision as to the need for counsel would have to be made on a 

case-by-case basis in the exercise of the sound discretion of the state 

p. 1443 
. . 

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

parole authority. Therefore, the Board has the responsibility 

of considering the facts of each 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 a precise and detailed set of guidelines 

to be followed in determining when the providing of 

counsel is necessary to meet the applicable duo process requirements. The facts and circumstances in 

preliminary and final hearings are susceptible of almost 

infinite variation, and a considerable discretion must be 

allowed the responsible agency in making the decision. 

Presumptively, it may be said that counsel should be 

provided in cases where, after being informed of his right 

to request counsel, the probationer or parolee makes 

such a request, based on a timely and colorable claim 

(i) .%Fat he has not committed the alleged violation of 

the conditions upon which he is at liberty: or (ii) that, 

even if the violation is a matter of public 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. In passing on a 

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. In every’ case in 

which a request for counsel at a preliminary or final 

hearing is refused, the grounds. for refusal should be 

ntated succinctly in the record. ” (36 L. Ed. 2d at 666-667) 

Shortly before the Supreme Court announced its decision in Gagnon 

v. Scarpelli, supra. a panel of the United States Court of Appeals for 

the Fifth Circuit decided Cottle v. Wainwright, 477 F. 2d 269 (5th Cir. 

1973). Expressly declining to reach the due process issue which subsequently formed the basis for the Scamelli decision, the Fifth 

Circuit held under the equal protection clause that an indigent parolee 

was entitled to appointed counsel in revocation proceedings if retained 

counsel would have been permitted. The Supreme Court vacated the 

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

judgment in Cattle and remanded the cause to the Fifth Circuit, 

for further proceedings in light of Scarpelli [Wainwright v. Cottle, 

U.S. , 38 L. Ed. 2d 138 (1973)], even though, according 

to the dissent of Justices Douglas and Blackman, the decision in 

Scarpelli,“is inapposite’% a consideration of Cottle. Cottle is 

-- 

now pending before the Circuit and the decision ultimately reached 

in that case may expand the responsibility of the Board. See, 

Lane v. Attorney General of the United States, 477 F. 2d 847 (5th 

Cir. 1973). 

Since the Board has the responsibility to provide counsel in 

certain cases the remaining aspect of your first question requires a 

determination of the Board’s authority to provide counsel. The Board 

is required by statute to provide 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 it is necessary to provide 

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, ,135 S. W. 5!9 (Tex. 

1911). 

The Board has some discretion in determining the manner, in 

which counsel is to be provided. Appointment of counsel is one 

possibility; however, even though many attorneys will be willing 

to accept the Boards appointment to represent an indigent prisbrser, 

see, Texas Bar Association, Code of Professional Responsibility, 

=2-16, EC 2-25, we know of no means by which the Board can 

compel an attorney to provide such representation, 

Other alternatives the Board may want to consider are the establishment of a f&schedule ,fdr use in the employment of private 

attorneys [see generallyt Article 26.05, Texas Code of Criminal 

Procedure], or the establishment of an office of legal counsel to provide such representation. Since these and other possible proposals 

are not before us we express no opinion as to’the legality of establishing or funding any particular plan. 

Your second question asks: 

“Does the District Judge of the county in which 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=e authorized 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 a trial or a revocation of probation, does 

not take place in the courts0 When parole is to be revoked a court 

has no case or controversy before it, and therefore, we believe it 

would have no jurisdiction to appoint an attorney to represent a 

prisoner in a hearing before some other authority. 

SUMMARY 

The Board of Pardons 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 of a violation 

or offers substantial reasons to justify or mitigate the vialation of the conditions of parolee, 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 

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