(concurring in result):
With deference I restrict my concurrence to the decision of this Court that we affirm the trial court’s action in denying the writ but requiring a Morris-sey type hearing by the parole board. More especially, I do not agree that we should state in general terms that “. . . parole revocation need only consider whether or not the act was committed . . .” regardless of attendant circumstances.
It seems to me that Morrissey clearly states that the determination of a violation of a parole in fact is only “[t]he *966first step in a revocation decision . . 408 U.S. 471, 479, 92 S.Ct. 2593, 2599. The next step requires that “[t]he parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggests that the violation does not warrant revocation.” Morrissey, supra at 488, 92 S.Ct. at 2603. The parolee’s mental capacity at the time of the commission of the act charged as a violation of the terms of parole must surely be one circumstance to be considered in the ultimate decision, since conformity to the conditions of parole necessarily depends largely on volition.
It is true that in dealing with the appellant’s constitutional claim, the opinion states that it deals only with the pre-Morriss,ey requirements. I think it must be made clear that what is stated as to the nature of parole revocation hearings in general is not to be taken as an advisory opinion as to what may be considered post-Morrissey.