            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. AP-76,363



              EX PARTE MICHAEL WAYNE BOHANNAN, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NUMBER C-1-008898-0201732-J
             IN THE CRIMINAL DISTRICT COURT NUMBER ONE
                          TARRANT COUNTY

     K EASLER, J., filed a concurring opinion in which P RICE, H ERVEY, and
C OCHRAN, JJ., joined.

                               CONCURRING OPINION

       I join the Court’s opinion . The Applicant’s claim is non-justiciable, and a dismissal

of the application is warranted. The non-justiciability determination, however, does not leave

similarly situated individuals without a remedy.

       A releasee is entitled to a prompt preliminary hearing once the revocation process has

been initiated by the execution of a revocation warrant.1 Due process, according to the



       1
         Morrissey v. Brewer, 408 U.S. 471, 485-87 (1972); Moody v. Daggett, 429 U.S.
78, 86 n.7 (1976).
                                EX PARTE BOHANNAN CONCURRING OPINION—2

Supreme Court of the United States in Morrissey v. Brewer, requires that a preliminary

hearing be held “as promptly as convenient” after a parolee has been arrested to “determine

whether there is probable cause or reasonable ground to believe that the arrested parolee has

committed acts that would constitute a violation of parole conditions.” 2 Toward that end, the

Supreme Court has established the following guidelines:

               [T]he parolee should be given notice that the hearing will take
               place and that its purpose is to determine whether there is
               probable cause to believe he has committed a parole violation.
               The notice should state what parole violations have been
               alleged. At the hearing the parolee may appear and speak in his
               own behalf; he may bring letters, documents, or individuals who
               can give relevant information to the hearing officer. On request
               of the parolee, a person who has given adverse information on
               which parole revocation is to be based is to be made available
               for questioning in his presence.3

       The Supreme Court has not made any exceptions to this rule; therefore, the foregoing

rule constitutes a ministerial duty. A prior probable cause determination by a magistrate

issuing an arrest warrant or a grand jury cannot satisfy the explicit procedural due process

requirements set out in Morrissey. Neither instance permits the releasee to respond to the

allegations, present evidence, or confront his or her accuser (if requested and no good cause

exists to deny this right). So although a final probable cause determination is the end result

in all three instances, the means used to make that assessment are materially different in the



       2
        408 U.S. at 485; see also Ex parte Cordova, 235 S.W.3d 735, 736 (Tex. Crim.
App. 2007) (per curiam).
       3
           Morrissey, 408 U.S. at 486-87.
                                 EX PARTE BOHANNAN CONCURRING OPINION—3

preliminary hearing context. Thus, contrary to the assertion of the Texas Department of

Criminal Justice (TDCJ), as amicus curiae, such a hearing is not duplicative of any other

prior probable cause determination.

       The failure to comply with Morrissey violates a releasee’s constitutional rights, and

our experience with this issue establishes that the Board, pursuant to the policies established

by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly

established constitutional law. Indeed, TDCJ has admitted as much: “there is no reasonable

expectation that the TDCJ will discontinue its policy of not providing a preliminary hearing

when a releasee is being held on pending criminal charges . . . .”            This is patently

unacceptable. And if it “reasonably expects” to continue this policy, it does so at its peril.

       “Mandamus relief may be granted if the relator shows the following: (1) that the act

sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law.” 4

Because a claim challenging the Board’s failure to provide a preliminary revocation hearing

is non-justiciable, Article 11.07 does not provide an adequate remedy at law for a releasee

to compel the Board to comply with its ministerial duty. But mandamus clearly does. And




       4
         Deleon v. Dist. Clerk, 187 S.W.3d 473 (Tex. Crim. App. 2006) (quoting Winters
v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim.
App. 2003)); see also Dickens v. Court of Appeals, 727 S.W.2d 542, 545 (Tex. Crim.
App. 1987) (“Under the Texas Constitution, this Court has been granted broad power to
issue writs of mandamus: ‘Subject to such regulations as may be prescribed by law, the
Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ
of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo,
prohibition, and certiorari.’”) (quoting T EX. C ONST. A RT. V § 5).
                               EX PARTE BOHANNAN CONCURRING OPINION—4

in response to any future alleged violations on mandamus, as time is of the essence, it may

be necessary and appropriate for TDCJ and the Board, through their legal representatives,

to appear before us in person to answer any allegation that Morrissey’s mandate is being

disobeyed.

       With these comments, I join the Court’s opinion.




DATE FILED: May 11, 2011
PUBLISH
