Ex Parte Bohannan
2011 Tex. Crim. App. LEXIS 618
| Tex. Crim. App. | 2011Background
- Applicant was convicted of aggravated rape in 1983 and sentenced to 25 years; he did not appeal.
- In 2009 he was found to be a sexually violent predator and civilly committed for outpatient treatment.
- On Jan 26, 2009 he was released to mandatory supervision, and on Mar 31, 2009 a warrant issued for alleged parole-violation; he was arrested Apr 1, 2009.
- Parole violator warrant was issued Apr 1, 2009; grand jury indicts him for violating civil-commitment terms on Apr 27, 2009.
- Writ of habeas corpus was filed and a January 14, 2010 preliminary hearing occurred, which had not been held earlier due to TDCJ policy delaying hearings with pending charges.
- Court held the claim was moot under the capable of repetition, yet evading review doctrine and dismissed the habeas corpus petition, but reaffirmed Morrissey/ Cordova principles and mandated timely hearings in future cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim is justiciable under capable of repetition, yet evading review. | Bohannan argues continuing policy creates repetition and evades review. | State/TDCJ argues no reasonable expectation of repetition for this defendant. | Not justiciable under Weinstein doctrine. |
| Whether Morrissey/Cordova require a prompt preliminary hearing when a releasee is held on pending charges. | Morrissey requires prompt hearing; §508.2811 encodes this. | Hearing not required prior to adjudication; statutory reading disputed. | Morrissey/Mandamus require prompt hearing; future compliance required; current claim moot. |
Key Cases Cited
- Weinstein v. Bradford, 423 U.S. 147 (1975) (capable of repetition, yet evading review applies to similarly situated parties)
- Ex parte Nelson, 815 S.W.2d 737 (Tex.Crim.App. 1991) (parolee habeas challenges to detention basis; mootness discussed)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due-process right to prompt preliminary hearing; guidelines)
- Ex parte Cordova, 235 S.W.3d 735 (Tex.Crim.App. 2007) (parole revocation context; difference if confined on new charges)