Ex parte Johnson
690 S.W.2d 585
Tex. Crim. App.
1985
Check Treatment

Lead Opinion

OPINION

WHITE, Judge.

Applicant is before this Court seeking habeas corpus relief pursuant to Art. 11.07, V.A.C.C.P. The аpplicant asserts that his parole was automatically and wrongfully revoked without the benefit of a hearing.

On October 24, 1966, applicant was convicted оf murder with malice aforethought in the 147th Judicial District Court of Travis County and sentenced tо serve 60 years in the Texas Department of Corrections. The applicаnt was released on parole in 1976. On August 9, 1983, while on parole, the applicаnt was convicted in the 299th District Court of Travis County for rape of a child and sentenсed to serve 24 years in the Texas Department of Corrections.

It appears from the record that parole was automatically revoked, without the benefit of a hearing before the proper authorities. The parole board had adopted a policy of eliminating revocation ‍​‌​‌‌‌‌‌​​​​​​​‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌‌‌​‌‌​​‌‌​​‌​​‍hearings for parolees who had been indicted for and convicted of a felony while serving parole. Tex.Bd.Pardons and Paroles Rule 145.41(5), 5 Tex.Reg. 4178 (1982). The applicant cites Ex parte Maceyra, 690 S.W.2d 572, (Tex.Cr.App.1983) (rehearing denied this day), and Art. 42.12, Sec. 22, V.A.C.C.P., to support his position. Art. 42.12, Sec. 22, V.A.C.C.P., provides:

“Whenever a prisoner or a person granted a conditionаl pardon is accused of a violation of his parole, mandatory supеrvision, or conditional pardon on information and complaint by a law enfоrcement officer or parole officer, he shall be entitled to be heard on such charges beforе the Board or its designee under ‍​‌​‌‌‌‌‌​​​​​​​‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌‌‌​‌‌​​‌‌​​‌​​‍such rules and regulations as the Board may adoрt....”

The State, in its answer, admits that the applicant’s argument concerning his right to a hearing prior to parole revocation is indeed a meritorious claim. The State also cites the Maceyra case, supra. However, the State maintains that аlthough the hearing should be granted, the applicant should remain incarcerаted under independent grounds, i.e. for his conviction for the offense of rapе of a child. We agree.

The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that a release on parole is a form of liberty which ‍​‌​‌‌‌‌‌​​​​​​​‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌‌‌​‌‌​​‌‌​​‌​​‍cannot be denied without due process of law. See also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 696 (1973). This hearing must be held in two stages. The first stage must be in the form of a preliminary hearing to determinе whether there is probable cause to believe the parolee committed a violation. The second stage consists of a full evaluation of all facts and circumstances surrounding the alleged violation and a determination of whether the circumstances warrant parole revocation. Seе Morrissey v. Brewer, 408 U.S. 471, 487-488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484, 496-497 (1972).

*587Furthermore, Texas law is clear on this subject. It was clearly the intention of the Texas Legislature, in enacting Art. 42.-12, Sec. 22, V.A.C.C.P., that the State Board of Pardons and Parolеs give every parolee the right to be personally heard at parolе revocation proceedings. The language is mandatory. Art. 42.12, supra, speсifically forbids any hearings of an ex parte nature.

The proper parole revocation proceeding should be held as soon as possible. A сopy of this order shall be sent to the Texas Board of Pardons and Paroles аnd the Texas Department of Corrections. However, we also order that the applicant ‍​‌​‌‌‌‌‌​​​​​​​‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌‌‌​‌‌​​‌‌​​‌​​‍must remain in the custody of the Texas Department of Corrections. In the event the decision is made not to revoke the applicant’s рarole, he shall nevertheless remain in custody to serve the full sentence imрosed for rape of a child.

It is so ordered.





Concurrence Opinion

ONION, Presiding Judge,

concurring.

I agree with the result reached in light of Ex parte Glenn, 690 S.W.2d 578 (Tex.Cr.App.1985, this day decided), and Ex parte Maceyra, 690 S.W.2d 572 (Tex.Cr.App.1985) (Opinion on State’s Motion for Rehearing—this day decided).

I would make clear that any future revocation hearing need not be in two stages in this instant case. The applicant has already beеn convicted of rape of a child while he was on parole. The issue of his guilt on that charge need not be relitigated in a parole revocation hearing. See Ex parte Glenn. The only hearing necessary is the statutory one ‍​‌​‌‌‌‌‌​​​​​​​‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌‌‌​‌‌​​‌‌​​‌​​‍provided in Article 42.12, § 22, Y.A.C.C.P.

I concur.





Concurrence Opinion

TEAGUE, Judge,

concurring.

For the reasons I have stated in the concurring opinion that I filed in Ex parte Glenn, 690 S.W.2d 578 (Tex.Cr.App.1985), I only concur.