                                      The Attorney        General of Texas
                                                    December 30. 1983
  JIM MATTOX
  Attorney General



   Supreme Court Building            Mr. Ruben M. Torres                      Opinion No. JM-111
   P. 0. Box 12548                   Chairman
   Austin, TX, 78711. 2548           Board of Pardons and Paroles                   Construction of section
                                                                              Ret
   5121475-2501
                                     P. 0. Box 13401, Capitol Station         21(a) of article 42.12 of the
   Telex 9101874.1387
   Telecopier   5121475-0288         Austin, Texas   78711                    Code of Criminal Procedure

                                     Dear Mr. Torres:
   714 Jackson, Suite 700
   Dallas. TX. 75202-4506
   214/742-8944
                                          You have asked three questions regarding the arrest, detention,
                                     and transfer of parolees pursuant to article 42.12, section 21(a) of
                                     the Code of Criminal Procedure. In order to give a proper perspective
   4824 Alberta Ave., Suite 180      on the issues, a brief discussion of the applicable legislative
   El Paso, TX. 79905.2793           enactments and case law is necessary.
   9151533-3464

                                          As originally enacted, the first paragraph of section 21 of
-\Ol       Texas. Suile 700          article 42.12 of the Code of Criminal Procedure had read as follows:
       ,OUS,O~, TX. 77002-3111
   7131223-5886                                  Upon order by the Governor, the Board is
                                              authorized to issue a warrant for the return of
   606 Broadway, Suite 312
                                              any paroled prisoner to the institution from which
   Lubbock, TX. 79401.3479                    he was paroled. Such warrant shall authorize all
   8061747-5238                               officers named therein to return such paroled
                                              prisoner   to   actual   custody  in   the   penal
                                              institution from which he was paroled. Pending
   4309 N. Tenth, Suite B
   McAllen, TX. 78501-1685
                                              hearing, as hereinafter provided, upon any charge
   5121682-4547                               of parole violation, the prisoner shall remain
                                              incarcerated in such institution.
   200 Main Plaza, Suite 400
   San Antonio. TX. 78205.2797
                                     Acts 1965, 59th Leg., ch. 722, at 496.
       512,2254191
                                          In 1972 the United States Supreme Court declared that release on
                                     parole is a form of liberty that may not be denied without due process
       An Equal OpportUnityI         of law. Morrissey v. Brewer, 408 U.S. 471 (1972); see also Gagnon v.
       Affirmative Action Employer
                                     Scarpelli, 411 U.S. 778 (1973). In Norrissey the court held:

                                              due process would seem to require that some
                                              minimal inquiry be conducted at or reasonably near
                                              the place of the alleged parole violation or
                                              arrest and as promptly as convenient after arrest
                                              while information is fresh and sources are
                                              available . . . . Such an inquiry should be seen




                                                             p. 464
Mr. Ruben M. Torres - Page 2     (JM-111)




          as in the nature of a 'preliminary hearing' 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.

408 U.S. 471, 485 (1972). The Texas Code of Criminal Procedure does
not explicitly provide for such a hearing. You ask whether rules
adopted by the Board of Pardons and Paroles pursuant to article 42.12
of the Code of Criminal Procedure are sufficient to comport with the
due process requirements of Morrissey.

     As amended after the Morrissey case, article 42.12, section 21
now reads:

             (a) A warrant for the return of a paroled
          prisoner, a prisoner released to mandatory
          supervision, a prisoner released on emergency
          reprieve or on furlough, or a person released on a
          conditional pardon to the institution from which
          he was paroled, released, or pardoned my        be
          issued by the Board on order by the Governor when
          there is reason to believe that he has committed
          an offense against the laws of this State or of
          the United States, violated a condition of his
          parole, mandatory supervision, or conditional
          pardon, or when the circumstances indicate that he
          poses a danger to society that warrants his
          immediate return to incarceration. Such warrant
          shall authorize all officers named therein to take
          actual custody of the prisoner and return him to
          the institution from which he was released.
          Pending hearing, as hereinafter provided, upon any
          charge of parole violation or violation of the
          conditions of mandatory supervision, the prisoner
          shall remain incarcerated.

Acts 1977, 65th Leg., ch. 347, at 929.

     Subsequently, the Texas  Department of Corrections amended   its
rules regarding parole revocation by adding subsection (g) which
requires that the "revocation hearing . . . be held at or near the
location of the alleged violation or arrest . . ." Board of Pardons
and Paroles, 7 Tex. Reg. 293 (1982) (amending 37 Texas Administrative
Code, section 145.45).

    We will now address your questions:




                                 p. 465
Mr. Ruben M. Torres - Page 3   (JM-111)




             1. IS it appropriate to resolve the apparent
          conflict between section 21(a). article 42.12,
          Texas Code of Criminal Procedure, and Morrissey v.
          Brewer, in favor of a requirement that a parolee
          be detained on the authority of a board-issued
          prerevocation warrant be afforded a local hearing,
          as per 37 Texas Administrative Code, section
          145.45(g)?

             2. If the answer to the preceding question is
          in the affirmative, does the Board of Pardons and
          Paroles therefore have the authority to order the
          sheriff or a county to hold a parolee, detained on
          authority of a board-issued prerevocation warrant,
          pending the conduct of a revocation hearing
          pursuant to the board's rules in 37 Texas
          Administrative Code, sections 145.41-145.55?

             3. If the answer to both of the preceding
          questions is in the affirmative, in what position
          does this place the Department of Corrections when
          an   inmate   is    prematurely   and   improperly
          transferred by the county, in violation of the
          board's order, and presented st Texas Department
          of Corrections for admission?

     First, we conclude that there is actually no conflict between
section 21(a) of article 42.12 and the due process requirement of
Morrissey that a hearing "be conducted at or reasonably near the place
of the alleged parole violation or arrest . . . ." 408 U.S., at 485.
The administrative release revocation hearing established by 37 of the
Texas Administrative Code, section 145.45(g), pursuant to this due
process standard is not inconsistent with the provisions of article
42.12, section 21(a). Second, there is no need to consider whether
the Board of Pardons and Paroles has authority to order a local law
enforcement official to hold a detained parolee apart from the
directive in the board-issued prerevocation warrant, because it is
clear that it would be inappropriate for local law enforcement
authorities to release such a person prior to the conclusion or waiver
of the local revocation hearing. Finally, if representatives of a
county wherein a parolee has been detained on the basis of a
prerevocation warrant issued by the board seek to transfer such a
person to the Texas Department of Corrections prior to compl~etionor
waiver of the required hearing, we believe that the Texas Department
of Corrections must refuse to admit a parolee thus prematurely and
improperly moved.

     The wording of each of the three sentences in article 42.12,
section 21 was changed. In the first sentence, along with other




                               p. 466
Mr. Ruben M. Torres - Page 4   (JM-111)




changes not relevant here, the words "when there is reason to
believe . . ." were added. This addition seems consistent with the
description put forth in Morri;;ey of the initial hearing as being for
the purpose of determining whether there is probable cause or
reasonable ground . . ." In the second sentence, the words "take
actual custody of" were substituted for the words "return such
paroled" and the words "and return him to the institution from which
he was released" were substituted for the words "to actual custody in
the penal institution from which he was paroled." In the third
sentence the words "in such institution" were deleted. Obviously, the
original language of section 21 did not contemplate the local hearing
mandated for due process by Morrissey. The original language of the
second sentence apparently required that a paroled prisoner arrested
as authorized by this provision be returned immediately to custody in
the penal institution in which he last served. However, the language
of this sentence in section 21 as revised after Morrissee explicitly
bifurcates the matters  of taking custody of the paroled prisoner and
returning him to the penal institution where he last served. By so
doing, such language seems to permit the holding of a hearing of the
sort contemplated by Morrissey.      Likewise, the deletion of the
reference to incarceration "in such institution" from the third
sentence removes any impediment to the paroled prisoner's remaining at
the place of the alleged parole violation or arrest for the local
hearing which is to be held prior to his being returned "to the
institution from which he was released." Morrissey, supra. Hence,
the requirement of 37 Texas Administrative Code, section 45.45(g),
that "the administrative release revocation hearing shall   be held at
or near the location of the alleged violations or arrest . . ." not
only complies with the Morrissey mandate regarding constitutional due
process standards, but also is not in conflict with the provisions of
article 42.12, section 21(a) of the Code of Criminal Procedure.

     Following the 1977 changes in section 21(a). the Texas Department
of Corrections notified all Texas sheriffs that it would not accept
paroled prisoners detained pursuant to warrants issued by the Board of
Pardons and Paroles as authorized by section 21(a) without either the
completion or waiver of the on-site local hearing required by
Morrissey.   Since the amendments to section 21(a) separated the
detention of the alleged parole violators from their return to the
institution from which they were released, we conclude that the stated
Texas Department of Corrections policy was permissible under the
applicable state statute, as well as consistent with constitutional
due process requirements. Indeed, the warrant issued by the Board of
Pardons and Paroles appropriately orders that an alleged parole
violator arrested pursuant thereto "be held until such time as he may
be placed in the custody of an agent of the Texas Department of
Corrections . . . .u Because it is impermissible under Morrissey and
not required under section 21(a) to return such a detainee prior to
the local hearing, the language quoted from the warrant means that



                                p. 467
     Mr. Ruben M. Torres - Page 5    (~~-111)


,-



     such detainee must be held by the authorities who arrested him until
     the Texas Department of Corrections is authorized to take custody of
     him -- i.e. not until the completion or waiver of the Board of Pardons
     and Paroles administrative release revocation hearing. Moreover,
     article 2.18 of the Code of Criminal Procedure makes it a violation of
     duty for a sheriff to release a prisoner committed to jail by a
     warrant. See Attorney General Opinion M-918 (1971). Hence, a sheriff
     detaining -&  alleged parole violator pursuant to a prerevocation
     warrant is obligated to hold him until such detainee may be properly
     released to Texas Department of Corrections. Likewise, the Texas
     Department of Corrections may not appropriately accept an alleged
     parole violator from a sheriff without evidence of completion or
     waiver of the requisite local hearing.

          Insofar as the answers to similar questions posed in Attorney
     General Opinion WW-386 (1958) provide contrary results, they have been
     superceded by the dictates of Morrissey and the 1977 amendments to
     section 21(a).

                                    SUMMARY

                  The provisions of section 21(a) of article
r-             42.12 of the Code of Criminal Procedure are
               consistent with the requirement of a local parole
               revocation hearing imposed by both Morrissey v.
               Brewer, supra, and by 37 Texas Administrative
               Code, section 145.45(g). Local law enforcement
               authorities are required to hold an alleged parole
               violator detained on the basis of a prerevocation
               warrant until such time as the local hearing is
               completed or waived.    The Texas Department of
               Corrections is not authorized to accept transfer
               of any such detainee until completion or waiver of
               the local hearing required by due process
               standards and the rules of the Board of Pardons
               and Paroles.                    I            -




                                              JIM     MATTOX          I
                                              Attorney General of Texas

     TOM GREEN
     First Assistant Attorney General

     DAVID R. RICHARDS
-    Executive Assistant Attorney General




                                     p. 468
Mr.   Ruben M. Torres - Page 6   (JM-111)




Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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