                               The Attorney         General of Texas

JIM MATTOX                                      riy 19, 1986
Attorney General


Supreme Court Building         Mr. A. Neal Pfeiflier               Opinion No. JM-494
P. 0. BOX 12545
Auslln. TX. 78711.2549
                               Chail?Ilan
51214752501                    Texas Board of Pardons and          lb?: Whether the Board of Pardons
Telex 9101874-1367                Paroles                          and Paroles may conduct release
Telecopier  5121475-0286       P. 0. Box 13401, Capitol Station    hearings through an independent
                               Austin, Texas   7fLill              hearing officer
714 Jackwn.   Suite 700
Dallas. TX. 752024508          Dear Mr. Pfeiffer:
ZlU742.8944
                                    You have re~~uested our opinion regarding the use of a staff
                               hearing officer by the Texas Board of Pardons and Paroles ("Board") to
4S24 Alberta Ave., Suite 160
El Paso, TX. 799052793
                               conduct final revocation proceedings. Specifically, you ask whether
9151533.3484                   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).
1001 Texas, suite 700
Houston, TX. 77002~3111
                                    It is well settled law that a proceeding to revoke probation
713/2235SS6
                               portends a possi'ble deprivation of liberty, and as such, the
                               application of appropriate due process of law is constitutionally
806 Broadway, Suite 312        required. Morrissey v. Brewer, 408 U.S. 471, 484 (1972); see also
Lubbock. TX. 794013479         Caddellv. State,%05 S.W.2d 275, 277 (Tex. Grim. App. 1980).
SOSf747-5239

                                    Morrissey, ,3npra, held that due process requires that the
4309 N. Tenth, Suite B         person(s) conducting the final revocation hearing be "neutral and
McAllen, TX. 79501.1685        derached." Id. The Court found that this test is sitlsfied by "a
5121S82.4547                   traditional paro:le board, members of which need not be judicial
                               officers or lawyers." -Id. at 489.
200Main Plaza. Suite 4W
San Antonio. TX. 792052797          The proceed:lngs of the Board are administrative rather than
51212254191                    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.
An Equal Opportunity1
Affirmatlve Action Employer
                               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.thorityto 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,lsonabletime (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:lonis 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 SupctcmeCourt 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:Lnerwas 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,riminalProcedure, 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




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