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        The Honorable   William H. Sk&on,                Opinion No.   H-   312
        Chairman
        Board of Pardons and Paroles                     Re:   Appointment of
        Room 501. John H. Reagan Building                      Attorneys  to rep-
        Austin,  Texas 78701                                   resent indigent
                                                               prisoners  at on-site
                                                               parole revocation
        Dear Mr.   Skelton:                                    hearings.

            You have asked our opinion on two questions relating to the appoint-
        ment of counsel to represent alleged parole violators at a preliminary
        revocation hearing.   Your first question is:

                “[Dloes the Board have the responsibility  and/or the
                authority to provide the attorney for the alleged
                parole violator who requests an On-Site Hearing or
                for whom an attorney is required or deemed neces-
                sary by the Hearing Authority? ”

             In Morrissey    v0 Bmer,     408 U.S. 471 (197i),   the United States
        Supreme Court concluded that the requirements         of due process neces-
        sitated several procedural     safeguards   in the parole revocation process.
        One of these is the requirement     that a preliminary   hearing be conducted
        at or near the place of the arrest or alleged violation to determine
        whether there is probable cause or reasonable        ground to believe that
        the arrested parolee has committed acts which constitute a parole
        violation.   Morrissey,    supra. at 485.   The Court in Morrissey    found
        it unnecessary    to decide whether the parolee was entitled to the
        assistance   of counsel.

            The necessity    of counsel for parolees    facing revocation proceedings
        was discussed iniegnon       v. Scarpelli,   411 U.S. 778, 36 L. Ed. 2d 656
        (1973).   The Court refused to adopt an inflexible rule and indicated
        that the decision as to the need for counsel would have to be made on a
        case-by-case    basis in the exercise    of the sound discretion  of the state




                                         p.   1443
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The Honorable    William   H. Skelton,   page 2    (H-312)




parole authority.   Therefore,   the Board has the responsibility
of considering  the facts of each case to determine whether counsel
is required.   To guide parole boards discharging   their responsibi&ty
the Court said:

             “It is neither possible nor prudent to attempt
        to formulate a precise and detailed set of guidelines
        to be followed in determining when the providing of
        counsel is necessary      to meet the applicable duo pro-
        cess requirements.        The facts and circumstances         in
        preliminary     and final hearings    are susceptible     of almost
        infinite variation,    and a considerable     discretion   must be
        allowed the responsible       agency in making the decision.
        Presumptively,      it may be said that counsel should be
        provided in cases where, after being informed of his right
        to request counsel,     the probationer     or parolee makes
        such a request,     based on a timely and colorable        claim
        (i) .%Fat he has not committed the alleged violation of
        the conditions upon which he is at liberty: or (ii) that,
        even if the violation is a matter of public record br is
        uncontested,     there are substantial reasons which jus-
        tified or mitigated the violation and make revocation
        inappropriate     and that the reasons are complex or other-
        wise difficult to develop or present.         In passing on a
        request for the appointment of counsel,          the responsible
        agency also should consider,        especially    in doubtful
        ca8es.    whether the probationer      appears to be capable
        of speaking effectively     for himself.     In every’ case in
        which a request for counsel at a preliminary           or final
        hearing is refused,     the grounds. for refusal should be
        ntated succinctly in the record. ” (36 L. Ed. 2d at 666-667)

    Shortly before the Supreme Court announced its decision in Gagnon
v. Scarpelli,   supra. a panel of the United States Court of Appeals for
the Fifth Circuit decided Cottle v. Wainwright,     477 F. 2d 269 (5th Cir.
1973).   Expressly   declining to reach the due process   issue which sub-
sequently formed the basis for the Scamelli     decision,   the Fifth
Circuit held under the equal protection clause that an indigent parolee
was entitled to appointed counsel in revocation proceedings       if retained
counsel would have been permitted.       The Supreme Court vacated the




                                 p.   1444
The Honorable       William     H. Skelton,   page,3   (H-312)




judgment in Cattle and remanded the cause to the Fifth Circuit,
for further proceedings    in light of Scarpelli    [Wainwright v. Cottle,
        U.S.       ,  38  L. Ed.  2d 138 (1973)],   even though, according
to the dissent of Justices Douglas and Blackman,           the decision in
Scarpelli,“is inapposite’%    a consideration     of Cottle.
                                                     --        Cottle is
now pending before the Circuit and the decision ultimately            reached
in that case may expand the responsibility        of the Board.     See,
Lane v. Attorney General of the United States, 477 F. 2d 847 (5th
Cir. 1973).

     Since the Board has the responsibility      to provide counsel in
certain cases the remaining aspect of your first question requires a
determination     of the Board’s authority to provide counsel.         The Board
is required by statute to provide parole revocation hearings,            to
adopt rules and regulations      to govern these hearings,      and ,after   the
hearing to recommend       to the Governor that the prisoner’s       parole be
continued,    revoked or modified.      Article 42.12,   Sec. 22, Vermn’s
Texas Code of Criminal Procedure.           Since it is necessary    to provide
counsel for certain indigent parolees       in order to fulfill this statutory
mandate,     we believe the Board by necessary       implication   has the
authority to provide counsel.        Terre11 v. Sparks, ,135 S. W. 5!9 (Tex.
1911).
     The Board has some discretion in determining           the manner, in
which counsel is to be provided.        Appointment of counsel is one
possibility;   however,   even though many attorneys will be willing
to accept the Boards appointment to represent          an indigent prisbrser,
see, Texas Bar Association,        Code of Professional      Responsibility,
=2-16,       EC 2-25,   we know of no means by which the Board can
compel an attorney to provide such representation,

     Other alternatives   the Board may want to consider are the estab-
lishment   of a f&schedule     ,fdr use in the employment    of private
attorneys [see generallyt     Article 26.05,   Texas Code of Criminal
Procedure],    or the establishment    of an office of legal counsel to pro-
vide such representation.       Since these and other possible proposals
are not before us we express no opinion as to’the legality of estab-
lishing or funding any particular     plan.

    Your   second    question     asks:

        “Does the District Judge of the county in which the
        parolee is in custody have the authority or res-
        ponsibility to provide the attorney? ”
                                      p.   1445
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The Honorable    William   H. Skelton,   page 4   (H-312)




     District Courts ar=e authorized to appoint counsel for indigents
in many situations,   e.g. t Articles  16. 01, 26.04,  26. 05, 42,12,   Set, 3b,
Vernon’s     Texas Code of Criminal Procedure:      however,   the parole
revocation process,    unlike a trial or a revocation    of probation,  does
not take place in the courts0    When parole is to be revoked a court
has no case or controversy      before it, and therefore,    we believe it
would have no jurisdiction    to appoint an attorney to represent a
prisoner in a hearing before some other authority.

                              SUMMARY

             The Board of Pardons and Paroles has the responsibility
        and authority to provide counsel for indigent prisoners
        whose parole is to be revoked.      An attorney should be pro-
        vided when the parolee disputes the allegation    of a violation
        or offers substantial reasons to justify or mitigate the via-
        lation of the conditions of parolee, Attention must be given
        to the parolee’s  ability to speak for himself,

                                           Very   truly yours,
                                           A



                                           JOHN L. HILL
                                           Attorney General      of Texas




DAVID M. KENDALL,          Chairman
Opinion Committee




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