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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