Hon. Clyde Whiteside                 Opinion NO. M-1178
Chairman
Board of Pardons and Paroles         Re:   Possible retroactive
Room 501, John H. Reagan Bldg.             application of Morrisse
Austin, Texas 78701                        v. Brewer with +
                                                          regar
                                           on sight hearings in
                                           Parole Revocation pro-
Dear Mr, Whiteside:                        ceedings.

     This is in response to your recent letter which, except
for formal parts, is quoted in its entirety:

          "The Board of Pardons and Paroles would like your
          official legal opinion as to whether or not this
          Board is required to have a retroactive prelimin-
          ary parole revocation hearing on Texas cases where
          parole has been officially revoked prior to the
          Morrissey Decision.  Said decision being styled
          John J. Morrissey and G. Donald Booher vs, Lou B.
          Brewer, Warden, et al,, as handed down June 29,
          1972. The opinion being delivered by Chief
          Justice Burger# United States Supreme Court,"

     The following pertinent portions of the Morrissee Opinion
are set forth2

               "We begin with the proposition that the
          revocation of parole is not part of a criminal
          prosecution and thus the full panoply of rights
          due a defendant in such a proceeding does not
          apply to parole revocations.,*
                           * * *

               WWe now turn to the nature of the process
          that is due, bearing in mind that the interest
          of both State and parolee will be furthered by
          an effective but informal hearing.  In analyzing
          what is due, we see two important stages in the
          typical process of parole revocation,

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Hon. Clyde Whiteside, Page 2      (M-1178)


              II
                   0   The first stage occurs when the
                       0   0


          parolee is arrested and detained, usually at
          the direction of his parole officer. The second
          occurs when parole is formally revoked.



              "With respect to the preliminary hearing
          before this officer, the 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,



              "There must also be an opportunity for a
          hearing, if it is desired by the parolee, prior
          to the final decision on revocation by the parole
          authority,  This hearing must be the basis for
          more than determining probable cause: it must
          lead to a final evaluation of any contested re-
          levant facts and consideration of whether the
          facts as determined warrant revocation.



              "We do not reach or decide the question
          whether the parolee is entitled to the assistance
          of retained counsel or to appointed counsel if he
          is indigent,

              "We have no thought to create an inflexible
          structure for parole revocation procedures,   The
          few basic req&ements    set out above, which are
          applicable to future revocations of parole,
          should not impose a great burden on any State's
          parole system,"   (Emphasis added,)

     In view of the prior history of the rule announced, its
purpose and effect, and the effect on the administration of
justice of a retrospective application of such a rule, and the
further doctrine that the Supreme Court is neither required to
apply, nor prohibited from applying,a decision retrospectively,
we have concluded that the preliminary parole revocation hearing



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,




    Hon. Clyde Whiteside, Page 3      (M-1178)



    requirement will be given only prospective effect,, Linkletter
    v0 Walker, 381 U.S. 618, 85 S,Ct. 1731 (1965).

         In view of the provision last quoted above and the fore-
    going considerations, it is the opinion of this office that
    the requirements of Morrissey v0 Brewer, supra, are to be pro-
    spectively applied, and it is not necessary for the Board to
    grant on-sight hearings to persons whose paroles were revoked
    prior to June 29, 1972,

                               SUMMARY

              The procedural rules established in Morrisse
         Brewer,     U.S,     40 L-W, 5016, are on+y prospec-
         tive in Flicationi   commencing June 29, 1972, and are
         therefore not applicable to revocation prior to June
         29, 1972.




                                             General of Texas

    Prepared by Howard M, Fender
    Assistant Attorney General

    APPROVED
    OPINION COMMITTED:

    Kerns Taylor, Chairman
    W. E, Allen, Co-Chairman

    Glenn Brown
    Lang Baker
    Bob Lattimore
    Jack Sparks

    SAMUEL D. MCDANIEL
    Staff Legal Assistant

    ALFREDWALKER
    Executive Assistant

    NOLA WHITE
    First Assistant

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