Could the Texas Board of Pardons and Paroles use a staff hearing officer for a final parole-revocation hearing without violating due process?

Texas AG Opinion JM-494: Parole Revocation Hearing Officers

Plain-English summary

The Board of Pardons and Paroles asked whether staff hearing officers could conduct final revocation proceedings consistently with the cited Supreme Court due-process rule. The opinion identified the governing requirement as a "neutral and detached" decisionmaker at the hearing stage. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

The opinion concluded that the Board acted within its statutory authority by assigning final revocation hearings to staff hearing officers. The staff officer conducted the hearing and submitted a report, while "The final disposition is made by the Board." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

JM-494 found no due-process violation when the hearing officer was neutral and detached. Its summary said the Board could delegate hearings to such officers "to make recommendations to the Board" without violating the Fourteenth Amendment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the final revocation hearing have to be conducted by the full parole board?

No. JM-494 concluded that the Board could delegate the hearing to a staff hearing officer under article 42.12, section 22. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Did the staff hearing officer need to be a judge or lawyer?

The opinion quoted Morrissey as saying that a traditional parole board satisfied the rule even though its members "need not be judicial officers or lawyers." JM-494 focused on neutrality and detachment rather than professional title. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

What made a staff hearing officer unacceptable?

The officer could not be directly involved in supervising the case and had to be neutral and detached. JM-494 discussed Shepard v. Taylor, where a hearing examiner who had recommended and obtained the violation warrant failed that requirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Who made the final decision?

The Board did. The opinion described staff and Board review of the hearing officer's report and stated: "The final disposition is made by the Board." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Background and statutory framework

Article 42.12, section 22 entitled an accused parolee, mandatory releasee, or conditional-pardon recipient to a conditional right to be heard before the Board or its designee under Board rules. The rules provided for a neutral and detached staff hearing officer and later review of the officer's report. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Morrissey required due process because revocation threatened a loss of liberty. JM-494 read the decision as setting basic guidance while leaving states responsible for writing their own procedures. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Citations and references

• Texas Constitution article IV, section 11
• Code of Criminal Procedure article 42.12, sections 12(d), 21(a), and 22
• 37 T.A.C. sections 145.45, 145.48, 145.49, and 145.50
• Fourteenth Amendment to the United States Constitution
• Morrissey v. Brewer, 408 U.S. 471, 484 (1972)
• Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980)
• Martinez v. State, 635 S.W.2d 762, 766 (Tex. App. - Corpus Christi 1982, no writ)
• Colorado County Federal Savings & Loan Association v. Lewis, 498 S.W.2d 723, 727 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.)
• Shepard v. Taylor, 433 F. Supp. 984, 986-87 (S.D.N.Y. 1977)
• People ex rel. Shippens v. Smith, 458 N.Y.S.2d 371 (1982)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0494
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0494.pdf

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

May 19, 1986

Mr. A. Neal Pfeiffer
Chairman
Texas Board of Pardons and Paroles
P. O. Box 13401, Capitol Station
Austin, Texas 78711

Opinion No. JM-494

Re: Whether the Board of Pardons and Paroles may conduct release hearings through an independent hearing officer

Dear Mr. Pfeiffer:

You have requested our opinion regarding the use of a staff hearing officer by the Texas Board of Pardons and Paroles ("Board") to conduct final revocation proceedings. Specifically, you ask whether 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. Brewer, 408 U.S. 471, 484 (1972).

It is well settled law that a proceeding to revoke probation portends a possible deprivation of liberty, and as such, the application of appropriate due process of law is constitutionally required. Morrissey v. Brewer, 408 U.S. 471, 484 (1972); see also Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980).

Morrissey, supra, held that due process requires that the person or persons conducting the final revocation hearing be "neutral and detached." Id. The Court found that this test is satisfied by "a traditional parole board, members of which need not be judicial officers or lawyers." Id. at 489.

The proceedings of the Board are administrative rather than criminal in nature. See Martinez v. State, 635 S.W.2d 762, 766 (Tex. App. - Corpus Christi 1982, no writ). Article IV, section 11 of the Texas Constitution initially created the Board of Pardons and Paroles. This provision grants the governor the power, conditioned upon the Board's recommendation, to grant reprieves and commutations of punishment and pardons. In 1983, article IV, section 11 was amended by vote of the people to make the Board a statutory rather than a constitutional agency. 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 authority to revoke paroles and issue warrants for the return of a paroled prisoner. Acts 1983, 68th Leg., ch. 232, at 974.

The Board, pursuant to section 22 of article 42.12 of the Code of Criminal Procedure, has adopted administrative rules to govern revocation procedures. See 37 T.A.C. § 145.00 et seq. (1985).

Sec. 22. Whenever a parolee, mandatory releasee, or a person 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 conditional right to be 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 reasonable time (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 directly involved in the supervision of the case. Rule 145.48 details the hearing duties and procedures of the hearing officer. Moreover, Rules 145.49 and 145.50 outline the procedures used for review of the hearing officer's report by the staff and Board. The final disposition is 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 Savings & 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 staff officer to conduct a final hearing comports with the due process standard required by Morrissey, supra.

The United States Supreme Court in Morrissey cautioned that the duty to write a code of procedure was the responsibility of the states and not the Court. Morrissey v. Brewer, 408 U.S. 471, 488. Thus, the Court only sought to guide the 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 hearing. Cohen & Gobert, The Law of Probation and Parole, § 14.07 (1983).

In Shepard v. Taylor, 433 F. Supp. 984, 986-87 (S.D.N.Y. 1977), the district court did not address the question of whether the use of two staff hearing examiners rather than a "traditional parole board" to conduct the final revocation hearing violated the principle of Morrissey. The district court merely held that since one of the staff hearing examiners was the official who recommended and obtained the parole violation warrant, the situation contravened the requirement of Morrissey because that examiner was not "neutral and detached." 433 F. Supp. 984, 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 Morrissey. Cf. People ex rel. Shippens v. Smith, 458 N.Y.S.2d 371 (1982).

SUMMARY

The Texas Board of Pardons and Paroles may delegate, pursuant to section 22 of article 42.12 of the Code of Criminal Procedure, its authority to conduct final revocation hearings to neutral and detached hearing officers to make recommendations to the Board without violating the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General