Ex Parte Glenn

TEAGUE, Judge, concurring.

For the reasons I have stated in the concurring opinion parte that I filed in Ex

Glenn, (Tex.Cr.App.1985),I 690 S.W.2d578 only concur. Henry parte GLENN.

Ex Charles No. 69056. Texas, Appeals of Criminal

En Banc. May 1985. Rehearing 24, 1985. July Denied Tatum, Dallas, appellant. for

John G. Lown, Wade, Henry Atty. Dist. & Ruth Dallas, Huttash, Atty., Asst. Dist. Robert Austin, Atty., for the State. State’s OPINION ONION, Judge. Presiding application post-conviction

This is corpus pursuant filed writ of habeas 11.07, Article V.A.C.C.P. was denied due

Applicant contends he enunciated process of law as Brewer, U.S. he was not af- in that L.Ed.2d revocation hear- required parole forded the Article claims ings. He further 22, V.A.C.C.P., has been violated parole hear- denied a revocation he was also, Tex.Cr.App., 652 See S.W.2d ing provided as therein. was convicted Applicant alleges he in 1966 and sen- County rape in Dallas imprisonment; years’ tenced to 99 1979; that while was released burglary of a parole he was convicted sen- County and was in Dallas habitation He al- imprisonment. years’ tenced to 25 burglary con- result of his leges that as a his 99 parole on parole his while on viction 579 23, 1982, year by July sentence was revoked the Board of the Governor issued his or- and Paroles revoking applicant’s parole previously Pardons ‍​​​‌​​‌‌​​‌‌‌​​‌‌‌​‌​​​​‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍and Governor der parole granted without the benefit of a revocation rape in connection with his hearing kind. tion. corpus application origi-

The habeas was Applicant evidentiary testified at nally convicting filed in the court as re- hearing being charged that after with bur- quired by Article officer, V.A.C.C.P. That glary parole he talked to his that he legal, his restraint was court concluded and burglary charge made bond on the and that ordered the rеcord in the cause forwarded regard no action was taken with to his Appeals. to the Court Criminal parole. burglary, After the conviction for officer, applicant parole related his This ordered the Court cause filed and inquiry, repeatedly assured him he would set, subsequently but ordered an evidentia- hearing. Depart- have a revocation At the ry hearing convicting in the court to fur- parole ment of Corrections counselor at develop surrounding appli- ther the facts him, Diagnostic response Unit told to cant’s contentions. Such a was request, assign- that two weeks after convicting and the conducted court made ment a unit he would be returned to findings of facts and conclusions of law. “Diagnostic” hearing. Ap- for a revocation record of same was transmitted to plicant was transferred to Goree and then this Court. parole to the Eastham Unit. He wrote a applicant The record shows was convict- promised counselor at Eastham who later rape ed of the offense of County Dallas hearing. Applicant then Bruce wrote in Cause No. F-66-3001-KJ sentenced Folkes, Huntsville, Inmate Counselor 16, years’ imprisonment to 99 on December him who told to write the Board of Pardons Applicant parole was released on on hearing. Applicant and Paroles about a 30, 1979, August subject to certain condi- Jackson, Member, wrote to Connie and to tions, including Legal Obligation: “Rule 7— Sommers, Gladys Director of Staff Servic- I obey Municipal, County, shall all State es. He received no answer. He then parole, and Federal laws.” appli- While on Bar оf Texas and the law wrote the State 15, cant was convicted on by June University at the of Texas and Uni- schools jury burglary of the offense of a of a Washington, versity of and the United 2, County. July habitation Dallas On attorney States Parole Board. An from 1981, punishment the court assessed his applicant the State Bar wrote that would years’ imprisonment as a second offend- (bur- eligible become on the new sentence iner Cause No. F-81-6068-RI. Sentence glary), gave no answer about the re- imposed July ap- was 1981. Notice of parole heаring. quested revocation of peal given.1 was Applicant prison testified he to the went After conviction was transfer- Morrissey deci- library law and found the Department red to the as a Corrections light Morrissey again In he wrote sion. burglary result of his conviction. It was requesting hearing. He was the Board 23,1981 September pre-rev- not until that a eligi- until he became then informed wait ocation of arrest warrant was is- burglary conviction. ble sued. No revocation February Applicant then visited 9,1982 pre-revoca- conducted. On June officer, Alaniz, who Abel tion warrant was withdrawn. On June sign of a get him to a waiver Board, tried to notice to and in without he hearing. Applicant stated applicant, absence of recommended to the eventually signed a written the revocation of the on refused Governor hearing. Appli- request burglary conviction. On for a basis 05-81-856-CR). Dallas 1. The conviction was affirmed Dallas — 1983—No. State, Appeals. (Tex.App.— Glenn v. anee,

cant felony charge related was later notified that his defenses to the new parole had been revoked. There had been alibi, etc., justify continuing like will not no parole. individual on Applicant testified he wanted a revoca- Dismukes testified the Board received a present in order to able to report violation of con- mitigating to the Board circumstances. He April ditions on 1981. It was decided not wanted to show he lived at home with his warrant, pre-revocation to issue a arrest father, employed, mother and that he was permit applicant but to Glenn to remain on burglary charge, that he still contested thе parole; applicant that after was convicted bring transcript and wanted to the trial of July pre-revocation in arrest warrant testimony the alibi to the attention of the September was issued on 1981. Dis- family Board and friends have tes- applicant mukes admitted was not afforded tify for him. revocation, timely hearing a on but inwas evidentiary hearing At the Heck- Glen Department virtue Corrections man, Commissioner, Green, Harry Parole year burglary. the new 25 sentence for On Watkin, Attorney, Staff Milton Parole Ex- 4, 1982, rule,” February the “automatiс aminer, Dismukes, Hugh Assistant 145.41(b)(5),came into effect. On Febru- Hearings, Coordinator of all with the 5, 1982, ary Alaniz Parole Officer was sent Board, testimony From their we testified. applicant response to his letter to see learn that after the decision the signed re- Applicant the Board. a written hear- Board for some time conducted two quest hearing. No hear- for a revocation ings, probable hearing, an on-site or cause held, 9, 1982, ing on June was hearing usually Diagnos- and a final pre-revocation was with- arrest warrant Department tiс Unit Corrections timely Board no Huntsville. Thereafter drawn because there had been changed procedure 10, 1982, its to a hear- owe-site hearing. day, The next June ing2 phases, hearing. in two a bifurcated Board, rule,” under the “automatic recom- parole The issue of violation was addressed applicant’s parole mended revocation of found, initially. If a violation was then the on the conviction which was the based new phase hearing proceeded adjustment to the parole or rules only violation of conditions parolee’s adjustment wherein the overall 23, 1983, July alleged. On the Governor parole since release on is considered before favorably acted on that revocation. parole is taken. action on the revocation evidentiary hear- At the conclusion of the § 4, 1982, 145.41(b)(5) February On found, alia, ing convicting inter court Rules of Pardons of the Texas Board burglary applicant was convicted provided and Paroles effective. It became habitation, formed the offense which in effect for a revocation without a revocation, prior to the parole basis of the under certain conditions. The witnesses rule,” “automatic effective date of the related this rule was known as the “auto- § requested a 145.41(b)(5); that felony matic rule” where there had been hearing by hearing, a “final” parolee conviction while the one; not receive and did the Board the basis of the revoca- and the same was pa- 10, 1982, recommended the Board June hearings tion. In such cases there are no without to the Gоvernor role revocation parolee It related where the is heard. evidence hearing, it record but had before felony guilt issues such as of the new conviction, recommendation burglary are not charge determined in other forums staff, ap- Board’s administrative from the stated that relitigated. The witnesses file, evi- transcription of plicant’s been a new where there has testimony defense applicant’s alibi circumstances, dence of tion, mitigating such as a convicting The record, burglary trial. from the good еmployment church attend- distinguished an on -site is to be from court recommended the had violated the terms of his order be held “void.” role. We shall now consider claims directly While the Court did not address process rights constitutional due have hearing, need for a final revocation been violated as requirements well as the circumstances, under such there was lan- 42.12, 22, of Article Y.A.C.C.P. guage indicating suggesting or that due process requires some form of final hear- Brewer, In Morrissey v. 408 U.S. ing. The Court observed that the Parole Commissionhad discretion Suрreme

the United States to revoke Court enunciat appropriate ed requirements minimal due at the time and for then stated: revocation. Before “Finally, practical aspect there is a revoked, preliminary or on-site consider, this, cases such as independent hearing before an officer must admits, which the or has been be held to determine probable whether plainly convicted of an offense constitut- cause exists to parolee believe that the has violation, ing parole a only remaining the probation. violated the conditions of Once inquiry is whether continued release is found, probable cause is a formal and final justified notwithstanding the violation.” hearing required alleged to evaluate the 89, Id. at 97 S.Ct. at 279. and violations to decide whether the evi Patterson, In (6th Moss v. 555 F.2d 137 dence warrants revocation. Cir.1977), that, the Court concluded al- hearing, At this latter Supreme the Court though the fact of a violation was conclu- parolee made clear must have an “[t]he sively trial, determined in the criminal the oppоrtunity show, to be heard and to if he parolee was hearing still entitled ‍​​​‌​​‌‌​​‌‌‌​​‌‌‌​‌​​​​‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍to a can, conditions, he that did not violate the may present mitigating where he or she or, did, that mitiga- circumstances if evidence to contest the revocation. See suggest the violation does not Shepard also v. United States Board of 488, warrant revocation.” Id. at 92 S.Ct. at Parole, (2nd Cir.1976).3 541 F.2d 322 (Emphasis supplied.) 2603. McNutt, (9th In Heinz v. 582 F.2d 1190 The Court also made clear that this hear- Cir.1978), the Court noted that revo- ing must comply with procedural certain cation considerations differ from those requirements: notice, written disclosure to in sentencing involved for a criminal convic- parolee him, the against evidence an Washington tion. There the held Court the opportunity to be present heard and to process statute involved due violated evidence, documentary witnesses and permitted was unconstitutional as it insofar right witnesses, to cross-examine adverse a automatic revocation of without hearing body, neutral and a written state- hearing persons benefit of a final con- ment the factfinder as to the evidence parole, victed of a while on even upon relied revoking and the reasons for though parole provided conviction while on parole. 489, Id. at 92 S.Ct. 2593. probable to violation cause believe 78, Moody In Daggett, v. 429 U.S. 97 occurred. See also United States Ex rel. 274, (1976), S.Ct. 50 L.Ed.2d 236 the Su- Revis, (7th Cir.1975), Hahn v. 520 F.2d 632 preme that, Court held where a federal grounds, vacated on other 560 F.2d 264 already had been convicted of a (7th Cir.1977). crime, new the need for preliminary hearing required by longer Twenty-nine days before the deci- Morrissey no Heinz sion, provided Washington Supreme existed because the conviction Court requisite probable regarding cause to believe that the reached the same result (1977). Shepard was vacated and remanded for con- On remand light Moody Daggett, supra, Appeals sideration in apparently v. the Court of reversed and remanded Moody to determine if had rendered case to the district court as moot. 554 F.2d 64 (2nd Cir.1977). timely hearing moot the issue. 429 U.S. Oregon parolee per- Vrieling an Akridge, re Wash.2d

state statute In go Washington state. Parole (1978). mitted to to There the P.2d 1050 Court there in a consolidated was later revoked holding stated its narrow hearing before a officer for the opportunity an to requires have Compact offi- Administrator. subsequent explain why a conviction should cause, probable cer found determined that revocation. not result had in fact several violations oc- Heinz, Citing Akridge and Wash and made recommendations the curred again in ington Supreme Court In re Hav parole in rolee not be allowed to remain on 621, 618 P.2d 1011 erty, 94 Wash.2d Washington to hold for actiоn give parolee oppor held that failure to Oregon parole board. That board later ad- tunity explain why subsequent convic ministratively without further revoked revocation, not result in tion should Oregon Appeals hearings. The Court parole was administra parolee’s when the hearing in ‍​​​‌​​‌‌​​‌‌‌​​‌‌‌​‌​​​​‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍Wash- found the consolidated burgla tively revoked convictionfor require- ington the due satisfied parolee’s ry parole, while on violated Morrissey.4 ments of Reversal or- process right final under due to a the record did not show derеd because Emery Oberquell, Morrissey. See also proper parolee. notice (1981); Wash.2d 630 P.2d 1352 Hunt, 308 In ex rel. Bertrand v. State and Health Dept. Pierce v. Social State (La.1975), Supreme Louisiana So.2d 760 Services, 97 Wash.2d 646 P.2d 1382 regarding rev- upheld a state statute (1982). a parole upon of conviction of felo- ocation hold, however, that Another line of cases parole in Here the was ny that state.5 it is consti process due is not violated and parole board automatically revoked revocation hear delay tutional to the final In determin- following felony a conviction. ing parolee has been convicted where the applied, ing Morrissey the Court whether during parole or con of crimes committed a upon the admonition therein that relied court, upon guilty pleas open fined his relitigate issues determined parolee cannot issued based and where a detainer has been as when against him in other forums such parole to take ef upon violation warrants conviction of revocation is based on parolee-prisoner is released fect when such stated, “The les- The another crime. v. subsequent detention. Reese from Morrissey is unmistakable son teaches Parole, F.2d Board 530 United States violation, noth- parolee clear. If the admits Cir.1976) (9th cert. den. 429 U.S. 231 has process Due been ing required. else is 609; L.Ed.2d Moultrie v. 97 S.Ct. 50 procedural and regard to satisfied. With (5th Cir.1972); F.2d 551 Coro Georgia, 464 wrote: rights, the Court substantive Parole, v. Board nado United States pa- of a prosecution arrest and “[T]he Cir.1977). (10th 551 F.2d 275 itself, is, in criminal offense rolee for a evils and against the adequate protection Further, sepa two it has been held that was in- which hearings possible re abuses parole are not rate parolee’s guard against. tended to proper consolidated quired and a law, strict stan- under in a court of process. Vrieling v. trial may satisfy due Ore in a criminal required Parole, proof Or.App. 21 dards Board gon State the rules of evidence (1975). prosecution and 534 P.2d 516 State, 102 S.W.2d quirements. v. Whisenant Gagnon Scarpelli, 411 U.S. v. (Tex.Cr. App.1977). (1973), held that the Mor- pro applied rissey requirements to revocation of part: providеs in 15:574.10 5. La.Sta.Ann.—R.S. has held that Texas bation cases. This Court pro revoking probation procedure affords a state of person in this a is convicted "When Morrissey Gag- greater rights parole, or than felony bationer committed while a Scarpelli, supra, Texas uni of the date and that the as non v. be deemed revoked role shall felony.” process tary hearing procedure due re satisfied commission of the proceed- not procedure apply appro- which to such a find the same reasons eithеr ing, parolee protec- afford the far more priate compelling or to the a ease of hearing procedures than do the set has been violator who convicted of in Morrissey.” forth subsequent crime or is confined ** plea guilty open own court. process The Court concluded that the due It is to relate Morrissey also difficult Morrissey were requirements of not intend- There, petitioner. Brewer to either fully applicable be when revocation ed to is cases were state both convictions with parolee’s on a based conviction of other case, subsequent parole, in each parole. crimes while on Thus final revo- attempted to be revoked not on the necessary cation as a not due subsequent bases of a arrest and requirement process under the circum- tion, strength stances of a final conviction.6 on the of a Accord: Hunt, asserting ex rel. officer’s report State Bertrand v. 325 So.2d a number of (La.1976); Hunt, restrictions, rel. State ex Clark v. violations of most of which (La.1976). So.2d 438 subject could be tо controversion.” seen, As can be the authorities are not The Court in also stated: Reese in accord fully as to what is due parolee “Another is contention that the parolee when the has been convicted of a is present mitigating entitled to circum- offense while on which is a circumstances, Mitigating stances. like parole. of the violation conditions This beauty, may eyes found in the regard is to with whether final beholder, few, and no doubt there are a if despite must be held the convic- any, suffering penal confinement who do Some tion. cases hold that Morrissey re- not explain find such circumstances to quires a final to evaluate con- plight. their own This is gainsay not to facts, give tested relevant that in some cases those circumstances opportunity explain before the Board convincing be sound and constitute why the conviction should not result present material to to the board. parole revocation. Others noted that Mor- however, There nothing, peti- either rissey teaches relitigate cannot suggesting tion befоre us here there are him against issues determined in other fo- circumstances, or, so, mitigating if what rums, and that after conviction a final they imagine just are. It is difficult to hearing nothing superfluous7 role is but mitigating what Reese can claim as an unnecessary and burden on state degree violation of first crime bur- parole system. glary, or what Marine can claim as miti- In Reese v. United States Board Pa of gating crime of violation bank role, supra, the Court wrote: robbery.” appears “But it that Morrissey clear the We need not answer due written within the framework of a question the issue as we conclude before us upon situation where the facts which the by statutory provision is determinéd this proceeding entire revocation is which also relies. by alleged based could be contested § 42.12, 22, V.A.C.C.P., provides Article uncertainty It was violator. that which part: process required promptly due re- by probable hearing prisoner person or a solved cause and a “Whenever a * * * subsequent pardon granted final is accused We do conditional by preliminary can be 6. The had been accorded a one conclusion that reached hearing body Texas. was in fact ... that and convicted of other crimes while Hunt, In State ex rel. Bertrand 308 So.2d 760 that his constitutes a violation of conviction (La.1960), the Court stated: parole." of one of the conditions "... the final could be nothing superfluous only since there is parole, mandatory conditions; a violation of his der the same or modified

supervision, pardon or conditional on in- or complaint by formation and a law en- “(5) recommend revocаtion and re- officer, forcement or officer quest governor to issue a revoca- shall be entitled to be heard on such warrant, provided that this action charges designee before the Board or its only shall be taken when the releasee regulations under such and rules as the has during committed offense however, may adopt; provided, Board the time of his or her release and has public hearing said be a hearing shall been convicted the trial court level penal and and ninety days shall be held within sentenсed incarceration offense, for the the date of under a whether arrest warrant issued conviction appealed or not. by the Board of Pardons and Paroles or by time place “(A) Governor and and set Revocation of administrative (5) paragraph Board....” release under of this accomplished subsection shall be ad- recognizes provisions The State proceeded and a ministratively release § 22 of Article but contends that against hereunder shall not be entitled applicant’s parolе was revoked under the to an release administrative provisions 145.41(b)(5) of the Rules of hearing; the Texas Board of Pardons and Paroles ‍​​​‌​​‌‌​​‌‌‌​​‌‌‌​‌​​​​‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍“(B) panel After the has acted under (eff. 1982), Register, Feb. Texas Vol. (b)(5) section, subsection of this further (Dec. 4, 1981); p. No. Reg- Texas proceedings be in shall accord with ister, (Jan. 22, 1982). p. Vol. No. § 145.53(205.03.03.020) (re- of this title argues It applicant’s parole was re- lating to Revocation of Administrative voked under this “automatic rule” and that (Parole, Mandatory Supervi- Release necessary. was not Recommendation; sion) Proclamation; Section provides: 145.41 Warrant). “§ 145.41(001.) Allegation Viola- “(C) Should releasee’s conviction Disposition. tion: Review Initial competent a court of be reversed “(a) At such time as the Board learns jurisdiction he or she shall be then allegation an of violation of one or entitled of the admin- to reinstatement more terms and conditions of release previously revoked istrative release releasee, administrative Board hereunder, upon notification of the shall refer parole panel the matter to a judicial provi- board of action and said for review initial determination of copy sion to the of a certified board disposition. effectuating re- judicial order “(b) A parole panel shall review the versal; however, provided, information make an initial determi- against a may proceed board releasee nation to: the subsection on the reinstated under “(1) governor request the to order allegation(s) of vio- basis of prerevocation the issuance aof war- against re- previously lation filed rant; yet disposed leasee of.” but not “(2) order the issuance of a notice of recognizes pre- that the The State allegation of administrative release vi- Septem was issued on revocation warrant olations; § 23, 145.41(b)(5) did ber 19818 and “(3) continue the release of the al- 4, February until not become effective leged pending disposition § violator 1982, 145.41b(5) gov argues any charges; procedure the time erned the

“(4) by disposition Legislature The make final of the was revoked. § 22 by matter virtue of of Articlе continuation release un- the enactment by applicant 8. clear this record. The time of of the under warrant is not made arrest this provided statutorily 2593, 42.12 shall 33 L.Ed.2d 484 the Board of public be entitled to a hearing before the 145.41(b)(5) Pardons and Paroles’ Rule designee Board or its under such rules and violative of the due clause of the regulations adopted by the Board. Under Fourteenth Amendment to the Federal grant authority this by the Board cannot my Constitution. It is also belief that such its abrogate rules statutorily granted rule is violative of due course of law right public hearing. enacting In provision Constitution, of the State as well § 145.41(b)(5),the Board was without the being 42.12, as violation Art. Sec. scope of authority, its no matter how seem- V.A.C.C.P. economical, ingly logical and reasonable Board, however, The is correct in its ar- the rule be.9 gument that in the prisoner, event a who has been released on discretionary parole, Thus was entitled to a has been convicted of felony offense, hearing before the Board or designee its person such is not entitled to a prеliminary despite the conviction for a felony commit or on-site See Moody Daggett, v. § ted while on despite said 145.- U.S. 41(b)(5)(A). parte Maceyra, See Ex (1976). However, unless prisoner (Tex.Cr.App.1985)(Opinion S.W.2d waives right to a “final” hearing, State’s Motion for Rehearing). The Gover he must be afforded a “final” hearing by nor’s revoking parole order based Governor, Board before the pursuant to Board’s recommendation is hereby set Board, recommendation may order Applicant aside. is now entitled to the prisoner’s revoked. heаring provided 22 of Article 42.12 Brewer, supra; Art. which Sec. he has su- long sought, in absence of an pra. thereof, affirmative waiver intelligently and voluntarily made. regard We do not I concur. day

the 90 time limitation in said statute as barring forever revocation of under the circumstances here described.

Applicant is entitled to the relief for which he prays. It is so ordered.

TEAGUE, Judge, concurring. correctly holds that Charles majority parte Ex Ezell JOHNSON. unlawfully re- parole was Henry Glenn’s No. 69395. Pardons and the Board of voked because hear- him a “finаl” Paroles failed to accord Texas, Appeals Court of Criminal Governor, acting on the rec- ing before the En Banc. Board, ordered ommendation May role revoked. I only concur because I am afraid that majority opinion may misinterpreted

by the members and officials of the Board

of Pardons and Paroles. my

It is firm light belief that in of Mor Brewer, rissey 408 U.S. argued 9. The State has that the could as well as residence and evidence etc., relitigate validity burglary place employment, ‍​​​‌​​‌‌​​‌‌‌​​‌‌‌​‌​​​​‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍appli- not all which testimony presented; tion but that nevertheless the alibi cant wanted that a now was before the Board at the time of revocation would not result in a different conclusion.

Case Details

Case Name: Ex Parte Glenn

Court Name: Court of Criminal Appeals of Texas

Date Published: May 22, 1985

Citation: 690 S.W.2d 578

Docket Number: 69056

Court Abbreviation: Tex. Crim. App.