*1 appearance eral and foreclosed subse-
quent hearing
special appearance.
on its
Hale,
See St. Louis and S.F.R.
Co.
(1918);
Tex.
also Personam 2031b, “Long-Arm” Art. The Texas Juris- Statute; Appearance diction and the Challenge in Texas and Else- Jurisdiction where, 317-318 Tex.L.Rev.
Therefore, judgment reverse the we appeals it court of relates to the jurisdictional question. In all other re-
spects judgment we affirm the of the court appeals thus, we affirm the trial judgment entirety. court’s in its Victor MACEYRA.
No. 69163. Texas, Appeals Court of Criminal En Banc. Sept. Rehearing May Denied *2 applicant’s pa- the revocation with providing applicant with an
role without opportunity to be heard. V.A.C.C.P., 42.12, provides in
Art.
part:
pertinent
person grant-
prisoner
or a
“Whenever
pardon
accused of a
ed a conditional
parole, mandatory super-
violation of his
vision,
pardon on informa-
or conditional
complaint by a law enforcement
tion and
officer,
enti-
he shall be
officer
pro
Maceyra,
se.
Victor
charges
on such
before
tled to be heard
Huttash,
Austin,
Atty.,
State’s
Robert
designee under such
the Board or its
for the State.
regulations
as the Board
rules and
added)
(Emphasis
adopt....”
Before the court en banc.
promulgated
Although the
Art.
rules
to
which
rules
OPINION
right
to be heard
purport to eliminate
DAVIS, Judge.
W.C.
persons
for those
convict-
before
corpus pro-
The
this habeas
ed of felonies while
ceeding
awaiting
he is
the results
contends
statutorily granted
may not subvert
wrong
appeal
place.
in the
We
Morrissey v.
right to be heard.
agree.
2593,
471,
punishment years’ at 10 confine- assessed purporting the order to hold that We filing timely ment. Prior to his of a notice Appli- applicant’s parole is void. revoke custody appeal he was transferred to the custody improperly cant is therefore (TDC). Department of Corrections TDC, custody of is remanded to the Lampasas County to await the sheriff custody of applicant was in the While appeal. the outcome of TDC, parole on a the Governor revoked his conviction, previous upon the recommenda- Paroles
tion of the Board of Pardons and
ON STATE’S MOTION
OPINION
(the Board),
upon
the conviction
based
REHEARING
FOR
theft,
provision
appli-
but without
Judge.
ONION, Presiding
by,
opportunity to
cant of notice
or an
post-convic-
involves
before,
proceeding
This
the Board.
corpus
for writ of habeas
application
that, without
It
is uncontroverted
11.07, V.A.C.C.P.
brought under Article
his incar-
applicant’s parole,
revocation of
held
original
this Court
submission
authori-
would be without
ceration at TDC
Paroles was
Pardons and
42.09, V.A.C.C.P.,
Board of
Art.
zation. See
authority
proceed
statutory
of the without
that the actions
Applicant contends
parole without
applicant’s
revoking his
the Board in
Governor and
opportunity
applicant with
providing the
right
due
of his
parole were
violation
in Article
provided
heard as
to to be
he
entitled
process, and that
is therefore
opinion
held
Court’s
Y.A.C.C.P.
appeal in the
outcome of his
await the
applicant’s
revoke
purporting to
order
Lampasas County
“the
custody of the sheriff
parole is void.”
pending appeal.
on bail
or to be released
convict-
applicant was
shows
The record
applicant’s
reach
We need not
robbery on December
aggravated
contention,
Board
ed of
we find the
cess
because
sen-
County and was
Lampasas
authority
proceed-
statutory
without
was
years’ imprisonment
tenced to 15
on Janu-
formation and complaint by a law en-
ary
1977 in the 27th District Court. No
forcement
parole officer,
officer or
appeal
was taken. Later
was
shall be entitled to be heard on such
released on
One of the
con-
charges
the Board or
designee
its
before
ditions or rules was that he not violate
under such rules and
municipal, county, state or federal laws.
may adopt.” (Emphasis
supplied.)
*3
charged
onWhile
he was
with com-
Section 145.41 of the
of
Rules
the Texas
mitting burglary of a habitation. He was
provides:
Board of Pardons and Paroles
by jury
July
convicted
of that offense on
Ҥ
(001.) Allegation Viola-
I45.4I
8, 1982,
punish-
and the court assessed his
tion: Review and
Disposition.
Initial
years’ imprisonment
ment at 10
the
“(a) At such time as the Board learns
concurrently
sentence to run
with the sen-
allegation
of violation of one or
aggravated
tence in the earlier
robbery
more
by
terms and conditions of release
conviction. After
was transfer-
releasee,
an administrative
Department
red to the
of Corrections on
shall refer
parole panel
the matter to a
20, 1982,
July
burglary
virtue of the
for review and initial determination of
conviction,
gave
appeal
he
notice of
from
disposition.
July
that conviction which was filed
“(b)
A
panel shall
review
information and make an initial determi-
19, 1982,
August
the Board of Par-
nation to:
dons and Paroles met
145.-
“(1) request
governor
to order
41(b)(5),Rules of the Texas Board of Par-
prerevocation
the issuance of a
war-
applicant’s
dons and Paroles to consider
rant;
parole and make an initial determination of
“(2)
disposition.
was held without
order the issuance of a notice of
appli-
allegation
notice to and in the
vi-
absence
of administrative release
olations;
cant. The Board recommended to the Gov-
(on
applicant’s parole
aggravated
ernor
“(3) continue the release of the al-
conviction)
robbery
be revoked for violation
leged
pending disposition
violator
(condition)
of Rule
No.
his
7 of
release
any charges;
felony
that he had been convicted of the
“(4)
disposition of the
make final
Burglary
offense of
of a Habitation. On
by continuation of release un-
matter
16, 1982,
November
the Governor
conditions;
der the same or modified
applicant’s parole
State
Texas revoked
appli-
and issued an arrest
for the
warrant
“(5)
re-
recommend revocation and
cant.
quest
governor
to issue a revoca-
application applicant
In his habeas
warrant, provided that this action
process
contends was denied due
of law
releasee
only
shall be taken
when the
Brewer,
Morrissey
as enunciated in
v.
during
has committed a
offense
2593, 2595,
U.S.
92 S.Ct.
33 L.Ed.2d
and has
the time of his or her release
We need not answer the consti
court level
at the trial
been convicted
process
tutional
due
penal
sentenced to
incarceration
issue before us is controlled
the statu
offense,
whether conviction
tory provision upon
which the
appealed or not.
also relies.
“(A)
of administrative
Revocation
§ 22, V.A.C.C.P.,
provides
(5)
of this
paragraph
release under
part:
accomplished ad-
shall be
subsection
proceeded
ministratively
a release
person
prisoner
“Whenever a
or a
not be entitled
against hereunder shall
granted
pardon
a conditional
is accused
release revocation
administrative
parole, mandatory
to an
of a violation of
hearing;
pardon on in-
supervision, or conditional
“(B)
Supreme
panel
Morrissey
After the
under
true that in
has acted
It is
Court,
discussing
process require-
(b)(5)
section,
further
subsection
ments,
made clear that a
cannot
proceedings shall be in accord with
against him
relitigate issues determined
(re-
(205.03.03.020)of this title
145.53
forums
as when the
other
lating to Revocation of Administrative
of another
is based
conviction
(Parole, Mandatory Supervi-
Release
Morrissey
408 U.S. at
crime.
Proclamation;
sion) Recommendation;
at
Warrant).
much
The State contends that it is
more
“(C)
conviction
Should
releasee’s
maintain
economical for
State to
competent
reversed
court of
§ 145.41(b)(5);
automatic revocation rule of
jurisdiction then he or she shall be
parolee’s
fully protect-
rights
are
admin-
entitled to reinstatement of the
ed;
policy of
that it has never been the
previously revoked
istrative release
*4
in
parolee
to have a
confined
the
Board
hereunder, upon
the
notification of
the result
Department of Corrections as
of
judicial
provi-
of said
action and
board
remaining
felony
while
on
a new
conviction
copy
to the board of
certified
of
sion
parole
felony
on an older
conviction where
effectuating the re-
judicial
the
order
represented
new conviction
a violation
the
versal;
however,
provided,
the
granted
with an
parole
of
in connection
may proceed against a releasee
board
conviction;
mitigating circum-
older
that no
under the
on the
reinstated
subsection
allowing
presented
justify
stances
could
any
allegation(s)
of
of the
of vio-
basis
parole
remain on
he has
parolee to
where
previously
against
lation
the re-
filed
parole
violated his
conditions
commit-
yet
not
disposed
leasee but
of.”
ting felony
for which he has been convict-
is now
rehearing
ed and
incarcerated.
argues
the State
the Board
adopt
regulations
is authorized to
rules and
§
Rules,
enacting
145.41(5)
its
the
In
of
governing parole
non-felony
In
revocation.
however,
Board,
scope
the
of
was without
cases,
designated
the
conviction
Board has
seemingly
authority, no
eco-
its
matter how
agents,
“hearing
its
offi-
own
denominated
nomical, logical
the rule
and reasonable
parole
cers” to hear violation of
cases. See
a violation
may seem where there has been
Rules of the Texas
of Pardons and
Board
committing
parolee
a felo-
parole
of
the
§§
145.47(6)
Paroles,
145.45(i),
141.111 and
in conviction
ny offense which has resulted
In
falling
147.1-147.7.
within
cases
in a district court.
the
of the
rule
ambit
automatic revocation
§
42.12, 22, gives the Board the
145.41(b)(5)],
argues,
the State
the
[§
rules
relat-
right to make
Board of Pardons and
has de
Paroles
facto
cannot
hearing,
the Board
ing to the
but
District
the State
designated the
Court of
granted
abrogate
statutorily
the
its
of
in which the criminal trial on the
Texas
hearing.
right to a
“desig-
felony
new
offense is
its
held as
§ 22,
light
reading of said
A mere
purposes
nee”
22 of Article
for the
a number
interpretation, raises
the State’s
42.12, V.A.C.C.P.
all, the issue of
questions. First of
urges
merely
the Board has
II,
The State
powers, Article
Tex.
separation of
to
fact-finding responsibility
Board,
its
agency
deferred
Constitution, may
the
forum;
court is
government,
that the district
another
the
Executive Branch of
the
to
constitutionally required
court,
without
statutorily and
with or
designate a district
be the
greater procedural
knowledge,1
safe-
afford the
consent or
its
hearings on
agent
conducting
guards
protections
Board
than the
Board’s
Putting aside the
required
parole violations?
to afford.
designees under Article
as its
nothing
the courts
record to show
siders
There is
this
notify
attempted
notified or
42.12, §
con-
this
district courts of
state that
separation
powers,
any request
tion of the
of the
we made
for a
until such
42.12, 22, pro-
further note that Article
post-conviction
time as he filed his
writ of
vides the
is entitled to be heard on
is,
corpus.
however,
habeas
There
no
charges” referring to
“such
violations of
showing
affirmative waiver of such
Nothing
in this record shows that
hearing.
copy
“charges”
brought
had
of the
been
We are aware that
Court
to the attention of
district court or
interpreted
a forerunner of Article
fact,
applicant.
upon
served
§ 22, supra,2
regard
to this matter.
does not
instant case it
Lewis,
In Ex
170 Tex.Cr.R.
sought
Board
to invoke the revocation
(1960),
simply
S.W.2d 900
it was
said: “The
cedure until after the conviction in district
impose any mandatory
statute does not
court,
“charges” were not even
and the
duty upon the board to initiate and conduct
is not
drafted until then. The district court
hearing.”
reasoning
There was no
from
required, during
prosecution
of an of-
otherwise,
language
statute3 or
upon
fense
indictment or
informa-
authority. Subsequently
and no citation of
tion,
if
to turn aside and determine
spent
sought
an inmate
credit for time
“charges”
pa-
upon
have
served
been
a hear-
which was revoked without
rele-
rolee-defendant or to hear evidence
Sellars,
ing.
In Ex
577
Glenn,
similar,
implications
tional
Ex
690
language
is still somewhat
(Tex.Cr.App. delivered this
request
S.W.2d 578
nothing
there is
to indicate that
hearing.
There has
prerequisite
is a
for
in all
day), they are not resolved because
statutory language so indicat
never been
in the stat-
we find the answer
the causes
Further,
process
ing.
the due
decision
Along
way we also find that the
ute.
impact. It has been
Morrissey has had its
rule “without the
promulgated
it is the
of the Board of
held that
burden
authority, no matter how seem-
scope of its
Parole,
parolee,
proper
to see that a
not the
economical, logical
ingly
and reasonable
hearing is conducted. See Preston
conclude,
...,” and
the rule
seem
(6th Cir.1974);
496 F.2d
274
Piggman,
therefore,
that we need not reach
(D.C.Cal.
F.Supp.
Sigler,
Tunks v.
455
constitutionality.
of its
1976).
holding
are
that in enact-
Essentially we
that, in
affirma-
We hold
absence of an
22, supra, the clear
ing Article
waiver,
knowingly
intelligently and
tive
legislative
that “a
is enti-
intent is
States,
given,
Brady v.
397 U.S.
Cf.
United
hearing
parole revocation
tled to the
[so
1463, 1468,
L.Ed.2d
made,
though
request is
provided],” and
no
(1970), parolee
pa-
to the
is entitled
waiver, intelligent-
without “an affirmative
hearing provided in Article
role revocation
577),
stat-
(p.
knowingly given,”
ly and
42.12, 22, supra, independent
any
“give every
mandates that the Board
ute
requirements.
request
is es-
process
No
personally heard at
right
to be
trigger
sential to
the entitlement to such a
proceedings,”
parole revocation
hearing.
are
statutory
Lewis and Sellars
Johnson,
(Tex.Cr.App.
trilogy raising causes a common reg- and authority promulgate is, tion. That when the Board of Pardons charged effectively deny any ulations (“Board”) and Paroles comes to consider Legisla- right to be heard. The parolee the revoked, is to whether what delegated nor au- ture neither enacted has who, by being convict- cess is due for an provide Board to thority for the ed of a offense committed while rule,” Rule 145.- as “automatic released on is shown to have violat- sug- 41(b)(5) The State is characterized. validly imposed obligation and condi- ed economy,” “an gests the rule is obey tion of release that the “shall approval “it should receive Municipal, County, and Federal all State 1 suggestion to that But merit Court.” laws?” Department to decide. Legislative is for course, are the Due Pro- Implicated, of policy lies public Such determination of the Fourteenth Amendment cess Clause Depart- of the Judicial outside the realm of the United States to the Constitution ment. §I, Article 19 of the Due Course Clause of join opin- I Texas, observations With those as the Constitution of the State quartet of causes ions of the Court V.A.C.C.P. well as Article today. However, we decide though discuss the constitu- we moot; restraint, case, ac- matter is now another under cordingly is raised in The same opin- unpublished per curiam made to but since it has been applicant finally discharged application. his sentences has ion we have dismissed custody longer consequence is no TEAGUE, Judge, concurring.
For the reasons I have stated in the concurring opinion that I filed in Ex
Glenn, (Tex.Cr.App.1985),I 690 S.W.2d578 only concur. Henry GLENN. Charles
No. 69056. Texas, Appeals of Criminal Court En Banc. May 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 filed writ of habeas V.A.C.C.P. was denied due Applicant contends he Morrissey enunciated process of law as U.S. (1972), he was not af- in that L.Ed.2d *7 revocation hear- required parole forded the 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 provided therein. was convicted Applicant alleges he in 1966 and sen- County rape in Dallas imprisonment; years’ tenced to 99 1979; that while on 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