Attorney General Opinion JM-0494

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 revoca- tion 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 condi- tional 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 recommenda- tions 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