           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                       NO. PD-1547-10


                             Ex parte DUSTIN DOAN, Appellant


           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE THIRD COURT OF APPEALS
                            TRAVIS COUNTY


        Womack, J., delivered the opinion of the Court, in which Meyers, Price, Johnson,
Cochran, and Alcalá, JJ., joined. Johnson, J., filed a concurring opinion, in which Cochran and
Alcalá, JJ., joined. Keller, P.J., filed a dissenting opinion, in which Keasler and Hervey, JJ.,
joined.


       The issue in this case is whether the doctrine of res judicata applies to bar a prosecution

for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted

to revoke the defendant’s community supervision on the ground that he commmitted the same

offense.

       The Third Court of Appeals “h[e]ld that it does not, as [a] Brazos County [community-

supervision] revocation hearing did not involve the same parties that the Travis County theft
                                                                                            Doan — 2

prosecution does.”1 We hold that the two prosecutions did involve the same parties.

                                            I. Proceedings Below

       After the appellant was placed on community supervision in Brazos County, the Travis

County Attorney charged him with a misdemeanor theft in Travis County. The Brazos County

Attorney moved to revoke the appellant’s community supervision, alleging that the appellant had

committed the theft offense in Travis County. At the hearing on the motion to revoke the Brazos

County community supervision, the prosecutor called the appellant’s probation officer to the

stand to ask her how the appellant had violated the condition of community supervision that

prohibited committing other crimes. The appellant objected on the basis of hearsay, and the trial

judge sustained the objection. The prosecutor made no further effort to introduce evidence of the

theft. Finding that the State had failed to meet its burden of proof, the Brazos County court

denied the motion to revoke.

       In the theft prosecution in Travis County, the appellant filed a pretrial application for a

writ of habeas corpus seeking to bar any further prosecution of the theft offense under the

doctrine of issue preclusion. The trial court initially granted relief, but, when the State moved for

reconsideration on the basis that the Brazos County judge’s ruling was too vague to constitute a

final adjudication of a specific fact question, the trial court entered an order denying relief. This

appeal followed.

       In the Court of Appeals, the appellant argued that the trial court erroneously ruled that Ex

parte Tarver2 “demand[s] a specific finding of ‘Not true’ to an allegation in a motion to revoke


       1
           Ex parte Doan, 322 S.W .3d 896, 898 (Tex. App.— Austin, 2010).

       2
           725 S.W .2d 195 (Tex. Cr. App. 1986).
                                                                                                              Doan — 3

before the doctrine of [issue preclusion] may be invoked.” Without addressing that argument, the

Court of Appeals affirmed the trial court’s ruling based on its reading of Reynolds v. State,3 in

which (adopting the concurring opinion in Brabson v. State)4 we held that for issue-preclusion

purposes the Department of Public Safety and a district attorney’s office should not be

considered the same parties.

         While the Court of Appeals noted that the parties and circumstances in this case differ

from those in Reynolds and Brabson, it cited those cases in concluding that the Travis County

Attorney and the Brazos County Attorney were different parties for the purposes of issue

preclusion.5 The Court of Appeals gave two reasons: (1) The instant case did not involve a

person “criminally prosecuted twice for the same event,” so double-jeopardy protections were

inapplicable. (2) “[T]he Brazos County Attorney and the Travis County Attorney are independent

entities with no control over each others’ decision-making processes. This means, crucially, that

the Brazos County Attorney had no authority to represent the interests of the Travis County

Attorney.”

                                II. The Tension Between Reynolds and Brabson

         The fact that the Brazos and Travis County Attorneys do not control each others’

decision-making processes may well mean that they do not have “authority” to represent each

other in court, but the appellant presents us with a more fundamental argument. His assertion, in


         3
             4 S.W .3d 13, 17 (Tex. Cr. App. 1999).

         4
           976 S.W .2d 182, 186 (Tex. Cr. App. 1998) (W omack, J., concurring) (stating that the “crucial point” is
“whether or not in the earlier litigation the representative of the government had authority to represent its interests in
a final adjudication of the issue in controversy,” and concluding that “[t]he Department of Public Safety does not
have such general authority to represent the interests of prosecutors”).

         5
             Doan, 322 S.W .3d, at 901.
                                                                                                         Doan — 4

essence, is that in a community supervision revocation proceeding and in a criminal trial, both

styled, “The State of Texas v. Dustin Doan,” the State is the same party in both cases, regardless

of which prosecuting authority represents the State.

         At first glance, we appear to have decided that exact issue in Reynolds:

                 While there is some merit to the position that the Texas Department of
         Public Safety and a District Attorney represent the same client which is the
         citizens of this State, these governmental entities nevertheless should not be
         considered the same parties for [issue preclusion] purposes in cases like this. The
         citizens of this State have no power, as does a private litigant, to control the
         course of the litigation by the lawyers representing these governmental entities.
         These lawyers exercise governmental powers in the public interest. They do not
         represent any private citizen interest as does a private lawyer.6

Each sentence in that paragraph is accurate, on its own. But if the last three sentences are

understood as the basis for the holding in the first sentence, the rule becomes stunningly broad. If

the reason that the Dallas County District Attorney was not bound by an adverse determination

made in a hearing where a DPS attorney represented the State is because the citizens of Texas

could not control either attorney, then Reynolds would seem to make any government action

immune from claims of res judicata, because in our republican system the citizenry cannot

directly control any government attorney. Taken further, this rule could even seem to prevent

courts from requiring government appellate attorneys to stand by the actions and arguments of

government trial attorneys, as the citizens of Texas have no ability to control either and both are

exercising powers in the public interest.

         This has not been how we or the courts of appeals have understood Reynolds.7 That is


         6
             Reynolds, 4 S.W .3d, at 17.

        7
          See, e.g., Doan, 322 S.W .3d, at 900-01 (applying “the parties analysis set forth in Reynolds” by analyzing
whether the Travis County Attorney and Brazos County Attorney could control each other).
                                                                                                          Doan — 5

understandable, since Reynolds adopted the concurring opinion in Brabson. The Brabson

concurrence set forth a much narrower test for considering government agencies to be the same

party (or in privity) for purposes of res judicata: “whether or not in the earlier litigation the

representative of the government had authority to represent its interests in a final adjudication on

the merits.”8 This question, not the overly-broad blanket statement from Reynolds, is the correct

test for whether a judgment involving one government agency is res judicata in a suit involving

another government agency.

         To answer that question in this case, we must look at the procedures and issues involved

in the Brazos County revocation hearing and in the Travis County criminal prosecution, and ask

whether the government prosecutors had the same interests and authority to litigate to a final

adjudication.

                                   III. The Nature of Revocation Hearings

         A community supervision revocation hearing is distinct from a criminal trial, but are its

issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

To determine whether prosecutors in a revocation hearing can represent the interests of

prosecutors at future criminal trials, we must reexamine some of our prior notions of what

interests are at stake in revocation hearings.

         We have stated more than once that revocation proceedings are “administrative in

nature.”9 We began using the label as a result of confusion about federal law, and we have


        8
          Brabson, 976 S.W .2d, at 188 (W omack, J., concurring) (citing Sunshine Anthracite Coal Co. v. Adkins,
310 U.S. 381, 403 (1940).

        9
          Hill v. State, 480 S.W .2d 200, 202-03 (Tex. Cr. App. 1972) (op. on rehear.); see, e.g., Cobb v. State, 851
S.W .2d 871, 873 (Tex. Cr. App. 1993) (referring to revocation proceeding as an “administrative hearing”).
                                                                                              Doan — 6

expanded on that confusion over the years. Using the word “administrative” became a way of

stating that defendants in revocation hearings do not enjoy the same panoply of procedural rights

as defendants in criminal trials. This is true, as far as it goes, but our characterization of a judicial

proceeding as an administrative proceeding is, on its face, inaccurate. Moreover, we have used

the “administrative” label to imply that we would not strictly enforce procedural rules at

revocation hearings, which was an injudicious and inaccurate implication.

        The first case to refer to a revocation proceeding as “administrative” seems to have been

Hill v. State:

        A [community supervision] revocation hearing is not an adversarial proceeding, a
        civil action, or a criminal prosecution. Hyser v. Reed, [318 F.2d 225 (D.C. Cir.
        1963)]; Hood v. State, [458 S.W.2d 662 (Tex. Cr. App. 1970)] instead, it is
        administrative in nature, a means of protecting society and rehabilitating
        lawbreakers. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir.
        1970); United States ex rel. Lombardino v. Heyd, [318 F.Supp. 648 (E.D. La.
        1970)].10

None of the cited cases, however, supports the proposition that a Texas community supervision

revocation proceeding is “administrative in nature.” The only Texas case cited, Hood, states that

a community supervision revocation is not a “‘trial’ as that term is used by the Constitution,”

even if the act for which revocation is sought is a criminal offense, and therefore the appellant

was not entitled to a jury at his revocation hearing. Holding that a revocation hearing is not a

trial, though, does not mean that it is an administrative hearing, and Hood did not say that it did.

        The other cases either deal entirely with federal law or confuse federal law with the law

of another state.

        Hyser dealt with federal constitutional claims lodged by federal parolees against the


        10
             480 S.W .2d, at 202-03.
                                                                                         Doan — 7

federal government in relation to their parole revocation hearing before the United States Board

of Parole, an administrative agency.

       Sperling was a habeas corpus application by a federal parolee alleging that the United

States Board of Parole, an administrative agency, violated his federal constitutional rights by

revoking his parole based on illegally seized evidence.

       Lombardino was a federal case from Louisiana where the petitioner alleged that the state

trial court violated his federal constitutional rights by revoking his community supervision based

on illegally seized evidence. The federal district court in Lombardino rejected this claim because,

based on Hyser and Sperling, a community supervision proceeding is “administrative in nature.”

Lombardino ignored any differences between federal parole revocation proceedings, which

actually are decided by an administrative agency, and a Louisiana community supervision

revocation proceeding, which seems to have been held in an open court in front of a trial judge.

       None of these cases discuss the procedures of a Texas community supervision revocation

proceeding, and Hill offered no other explanation of why a revocation hearing was an

administrative hearing.

       If the precedents we cited in Hill seem to have ignored the distinctions between parole

and community supervision, and between federal and state law, there is good reason for that. Hill

was decided at a period of time in which the federal Supreme Court was establishing

constitutional due process standards for parolees and those on community supervision. Because

the procedure for revoking community supervision in Texas is unusually judicial and adversarial,

it was not obvious how the Texas community supervision system fit into the federal regime.
                                                                                                             Doan — 8

       The federal due-process minimum was established by Morrissey v. Brewer,11 in which the

Supreme Court held that before parole could be revoked by an administrative agency a parolee

was entitled to (1) a preliminary hearing before an officer other than the supervising parole

officer, to determine whether reasonable ground exists for revocation of parole, and (2) a hearing

before the parole authority before the final decision on revocation.12 In Gagnon v. Scarpelli,13 the

Court extended those due-process requirements to administrative-agency proceedings to revoke

probation.

       In community-supervision revocations in Texas, the Code of Criminal Procedure does not

provide for the preliminary hearing required by Morrissey and Scarpelli. Is this a denial of due

process? Apparently it is not. A Texas probationer presented to the Supreme Court the question,

“Does Texas Code of Criminal Procedure art. 42.12[,§ 21], which does not require state to hold a

preliminary hearing to determine probable cause to believe probationer has violated probation

condition, violate, either on its face or as applied, Fourteenth Amendment’s Due Process

Clause?” After granting review and hearing oral argument, in which the Court heard about

Texas’s judicial probation-revocation procedure that provides trial-like proceedings, the Supreme

Court dismissed the appeal “for want of a properly presented federal question.”14

       The Court’s decision that due process does not require Texas to hold a preliminary

hearing in probation revocation probably reflects the difference between the Texas system, which



       11
            408 U.S. 472 (1972).

       12
            Cf. T EX . G O V ’T C O D E §§ 508.281 & 508.2811 (providing two steps of hearings in parole revocation).

       13
            411 U.S. 778 (1973).

       14
            Vincent v. Texas, 449 U.S. 199 (1980) (per curiam).
                                                                                                            Doan — 9

is based in our courts, and the administrative system which was before the Court in Scarpelli. In

that case the Court noted that a probation-revocation hearing in an administrative agency is

unlike

         [A] criminal trial, [in which] the State is represented by a prosecutor; formal rules of evi-
         dence are in force; a defendant enjoys a number of procedural rights …. In short, a
         criminal trial under our system is an adversary proceeding with its own unique character-
         istics. In a revocation hearing, on the other hand, the State is represented, not by a
         prosecutor, but by a parole officer with the orientation [toward rehabilitation]; formal
         procedures and rules of evidence are not employed; and the members of the hearing body
         are familiar with the problems and practice of probation or parole.15

         A community supervision revocation proceeding in Texas bears little resemblance to the

administrative hearing described in Scarpelli. In Texas, the State is represented by a prosecutor,

the defendant does have a right to counsel,16 the hearing is before the judge,17 formal rules of

evidence do apply,18 and there may be appeal directly to a court of appeals.19 They are conducted

entirely within the judicial branch. The Rules of Evidence and the exclusionary rule to bar

illegally seized evidence apply fully in a Texas probation revocation hearing.20 Indeed, aside

from the burden of proof required to prove a community-supervision violation (preponderance of



         15
              411 U.S., at 789.

         16
              See T EX . C O D E C RIM . P RO . 42.12, § 21(d).

         17
              See id., § 21(b).

         18
         See T EX . R. E VID . 101(b) (Rules govern criminal proceedings except as provided by statute) & (d)(1) (not
mentioning probation-revocation hearings as one of the proceedings to which the Rules do not apply).

         19
           The thoroughly adversarial nature of a Texas community supervision revocation proceeding shows that
Hill was incorrect when, based on federal law, it stated that a revocation proceeding was “not an adversarial
proceeding.”

         20
           Compare T EX . R. E VID . 101(d) (list of criminal proceedings at which Texas Rules of Evidence are
inapplicable does not include revocation hearings) to, e.g., M ISS . R. E VID . 1101(b)(3) (Mississippi Rules of Evidence
inapplicable at revocation hearings). See Moore v. State, 562 S.W .2d 484, 486-87 (Tex. Cr. App. 1978).
                                                                                                        Doan — 10

the evidence, which is lower than the burden of proof beyond a reasonable doubt that is required

to prove a new criminal offense), there are few procedural differences between a Texas criminal

trial and a Texas community-supervision revocation proceeding.21

         Following Hill’s holding that revocation proceedings were administrative proceedings,

we applied administrative law to revocation hearings in Davenport v. State.22 After the trial court

denied the State’s motion to revoke Davenport’s community supervision, the State filed a second

motion for revocation two weeks later, alleging the exact same facts. This time the trial court

revoked.

         Davenport appealed to this court, alleging a violation of federal and state double-jeopardy

protections, as well as a violation of common law res judicata principles. After quoting a

previous case in which we held that jeopardy attached only in criminal trials that could result in

convictions, we held that double-jeopardy protections did not apply to a revocation proceeding

because it was

         a proceeding wherein the result is deemed to be neither a conviction nor acquittal
         … a proceeding that is not considered to be a trial, as that term is used and
         contemplated by the Constitution in reference to criminal cases … a proceeding
         which is not considered to be a criminal prosecution and is considered to be only
         administrative in nature.23

         Our statement that the hearing was “only administrative in nature” was a phrase that we

used in several cases as something of a pejorative to minimize the importance of procedural and


        21
             W hile we noted that the practice was “not recommended,” we have gone so far as to hold that it was not
error for a trial court to combine a revocation hearing with a trial on the merits for a new offense. See Moreno v.
State, 587 S.W .2d 405, 412-13 (Tex. Cr. App. 1979).

        22
           574 S.W .2d 73 (Tex. Cr. App. 1978) (implicitly overruled in part by Ex parte Tarver, 725 S.W .2d 195
(Tex. Cr. App. 1986)).

         23
              Id., at 75 (quotations and citations omitted).
                                                                                                           Doan — 11

evidentiary requirements in revocation hearings.24 This seems to be the same manner that we

have used the phrase in more recent cases.25

         In addressing Davenport’s res judicata claim, we held that “the supervision of [those on

community supervision] is an administrative function of the courts and not a judicial function.”26

We deterimined that “the doctrine of res judicata does not apply” to revocation proceedings

because “res judicata does not apply to administrative decision-making.”

         For this last proposition, we cited to three cases that dealt with administrative law. Two

of them, Bryant v. L.H. Moore Canning Company27 and Railroad Commission v. Phillips,28 dealt

with decisions by administrative agencies. The third, Killingsworth v. Broyles,29 seems to have

dealt with a county judge acting in his administrative capacity to approve or disapprove an

application for a license to sell beer. None of the proceedings in these cases seem to have been

formal, judicial proceedings like a revocation hearing.

         24
            See, e.g., Bradley v. State, 564 S.W .2d 727 (Tex. Cr. App. 1978) (“The hearing on a motion to revoke
[community supervision] is not a trial in a constitutional sense, and such a hearing being administrative in nature,
procedural and evidentiary requirements are not enforced as strictly as they would be in a criminal trial.” (citation
omitted)). This statement in Bradley may capture the flavor of our “administrative in nature” cases, but it cannot
actually be true. If the “procedural and evidentiary requirements” are themselves less strict in a revocation setting,
we would not be more lax in enforcing the requirements that did exist simply because it was an “administrative”
hearing. Strict enforcement of lax rules should not be confused with lax enforcement of strict rules.

         25
            See, e.g., Cobb, 851 S.W .2d, at 873 (referring to a community-supervision revocation proceeding as “an
administrative hearing” before determining that formal proof of the conditions of community supervision was not
required). Cobb’s note that a revocation proceeding was “an administrative proceeding” was immediately followed
by the observation that, “[y]et the Rules of Criminal Evidence are generally applicable to a revocation hearing.” Old
Rule of Criminal Evidence 101(b) stated that the Rules of Criminal Evidence “govern criminal proceedings in courts
of Texas .… ” The Rules of Criminal Evidence did not state that they applied to administrative hearings.

         26
              Davenport, 574 S.W .2d, at 76.

         27
           509 S.W .2d 432 (Tex. Civ. App.–Corpus Christi, 1974, no writ, cert. den. sub nom. Pope v. Texas, 419
U.S. 845 (1974)).

         28
              364 S.W .2d 408 (Tex. Civ. App.–Austin 1963, no writ).

         29
              300 S.W .2d 164 (Tex. Civ. App.–Austin 1957, no writ).
                                                                                           Doan — 12

       Killingsworth explained the difference between judicial and administrative proceedings:

“In judicial proceedings courts apply law to past facts which remain static and on the other hand

administrative bodies are concerned with fluid facts and changing policies.”30 It is true that, in

some respects, there is an “administrative” nature to a trial court’s decision in a revocation

hearing. Even if a community-supervision violation is proven, the trial court has the discretion to

continue or modify the terms of community supervision rather than revoking it, and the trial court

has the discretion to make this determination based on its weighing of policies, such as protecting

the public and rehabilitating the offender.

       The fact that a decision includes some policy considerations, however, does not turn a

distinctly judicial proceeding into an administrative one. Juries and trial courts weigh policy

considerations, with great degrees of discretion, when determining whether to sentence the

defendant to community supervision, but we would never characterize the punishment phase of a

trial as an administrative proceeding.

       A Texas community-supervision revocation proceeding involves the application of law to

past facts that remain static. It is conducted according to judicial rules before a trial judge, not an

administrative agency. Applying administrative law – the law that governs the decision-making

processes of administrative agencies – to revocation hearings has no basis in the Code of

Criminal Procedure. Community-supervision revocation proceedings are not administrative

hearings; they are judicial proceedings, to be governed by the rules established to govern judicial

proceedings.




       30
            Killingsworth, 300 S.W .2d, at 165.
                                                                                                          Doan — 13

                                                  IV. Application

         Our discussion of the many similarities between a Texas revocation proceeding and a

criminal trial makes apparent how distinct this case is from Reynolds. Reynolds sought to use a

ruling from an administrative license revocation hearing – a civil administrative hearing – in a

criminal trial.31 The vast difference in issues and procedure at these proceedings meant that the

Department of Public Safety was not capable of representing the interests of the Dallas County

District Attorney to a final adjudication.

         In this case, however, the issues and procedures were nearly identical in the Travis

County and Brazos County proceedings. In both proceedings, prosecutors plead and sought to

prove that the appellant committed the same act. Both were criminal, judicial proceedings with

nearly identical procedural rules, in which the State was represented by sworn prosecutors. The

Brazos County Attorney had the authority to litigate the matter to a final adjudication.32 The only

difference between the interests of the Brazos County Attorney and the Travis County Attorney

in this case is that one sought to prove theft in order to criminally punish the appellant for theft,

while the other sought to prove theft in order have the appellant’s criminal punishment from a

prior case altered to his detriment.

         This difference is sufficient to allow this case to escape the narrow grasp of the Double

Jeopardy clause.33 But as a matter of state law, a prosecuting authority who alleges a criminal


         31
              Reynolds, 976 S.W .2d, at 183.

         32
          See Tarver, 725 S.W .2d, at 199-200 (discussing ways in which trial courts ruling at a revocation
proceeding is a final judgment).

         33
          Id., 197. The dissent states that we are “overrul[ing], sub silentio, the holding in Ex parte Tarver that
double-jeopardy applies to probation revocations.” W e are not overruling Tarver.
         The question of whether Tarver ruled that double-jeopardy principles applied at a probation revocation
                                                                                                            Doan — 14

offense in a community supervision revocation hearing represents the same state interests as a

prosecuting authority who later alleges the same criminal offense in a trial. The Court of Appeals

erred in holding that two prosecuting authorities could not be the same party for res judicata

purposes.

         We reverse the Court of Appeals’s judgment and remand the case to that Court so that it

may consider the claims briefed by the parties.


Delivered June 20, 2012.
Publish.




hearing is more complex than the dissent implies. Tarver itself stated that “basic double jeopardy protections” would
not apply to revocation proceedings, before going on to hold that “collateral estoppel” – which, as the dissent
observes, can be based in either Constitutional law or common law – barred Tarver’s prosecution after the facts that
the prosecution was based on were found not true at a revocation hearing. W hile Tarver did cite to some federal
Supreme Court cases, it is not obvious whether Tarver’s holding was based in Constitutional law or common law;
given Tarver’s explicit statement that double-jeopardy principles were not implicated by revocation hearings, and
given that there were no prior cases from this court applying collateral estoppel, it is possible to read Tarver as using
the federal cases only as explanations of common-law doctrine.
           After reviewing our “administrative in nature” line of cases, Section III, supra, it appears that the primary
issue in Tarver was not whether collateral estoppel in that case was required by the federal Constitution, but, rather,
whether res judicata, whatever its basis, applied to administrative hearings. See Tarver, 725 S.W .2d, at 198-200.
Tarver overruled Davenport by holding that res judicata did apply to a revocation hearing because a revocation,
though “administrative in nature,” involved the trial court acting in a judicial capacity. Ibid. In essence, Tarver held
that, at a revocation hearing, the trial court was acting as an administrative agency acting as a trial court. It was only
in holding that “administrative collateral estoppel” applied to Texas revocation proceedings and in stating the rule of
collateral estoppel that Tarver used the reasoning of federal Supreme Court cases. See ibid.
