Retzlaff, Ex Parte Thomas Christopher ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 74,772

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EX PARTE THOMAS CHRISTOPHER RETZLAFF, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM BELL COUNTY

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   Cochran, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson and Holcomb, JJ., joined. Keller, P.J., filed a dissenting opinion in which Keasler, J., joined. Hervey, J., filed a dissenting opinion in which Keasler, J., joined.

O P I N I O N

We withdraw our previous opinion and substitute this opinion. The constitutional issue presented in this writ application is whether notice that a person will be reviewed for release on mandatory supervision at some unspecified time "before [his] projected release date" constitutes timely notice consistent with due process. We hold that it does not.

I.

Applicant was convicted of Possession of a Weapon in a Prohibited Place ⁽¹⁾ in March 1998 and sentenced to eight years in prison. He was eligible for release on discretionary mandatory supervision on April 19, 2001. On December 20, 2000, a parole panel prospectively denied him release on mandatory supervision. Applicant claims that he was not sent notice that a parole panel would be considering whether to release him at that time. The same thing happened in 2001. He was told that a parole panel would review him for release in December, 2001, but a parole panel then voted to deny his mandatory supervision release on November 13, 2001- two weeks before the earliest date he was scheduled to be reviewed. Applicant filed a writ of habeas corpus, alleging that he had been deprived of due process because a parole panel reviewed his case before the month scheduled. ⁽²⁾

On August 21, 2002, this Court agreed with applicant and granted him what we thought was the appropriate relief- another hearing with sufficient advance notice of its timing so that he would have an opportunity to submit relevant information to the Board of Pardons and Paroles before it made a decision. ⁽³⁾ Ten months later applicant filed another writ complaining that "the Board pulled the same stunt as before." This time, it informed applicant on March 7, 2002, that it would review him for release on mandatory supervision at some unspecified future date, but that he should submit any additional written materials that he would like the Board to review "as soon as possible." ⁽⁴⁾ That unspecified date turned out to be some ten months later, on January 16, 2003, but applicant was not informed of that date until he received a denial letter afterwards.

Applicant now claims that he "was denied a meaningful opportunity to be heard when the Parole Board conducted a hearing in [his] case on a date for which [he] had not been given notice." He argues that the "ambiguous, vague" notice that he had received on March 7, 2002, was "was just as defective" as the notice he had received in 2001, and that the Board therefore violated his right to due process under the Fifth and Fourteenth Amendments.

II.

From 1977 until 1987, an eligible inmate whose "actual calendar time" plus "accrued good conduct time" equaled the term of his sentence was automatically released on mandatory supervision and treated as if he were on parole. ⁽⁵⁾ "[M]andatory supervision was originally created to ensure parole custody for all prisoners in order to prevent recidivism." ⁽⁶⁾ It was intended to provide the inmate with a supervised transition from prison to the local community and to ensure that parole officers would provide the releasee with guidance, control, assistance, and support. Beginning in 1987, amendments to that statute made some inmates, those convicted of especially serious offenses and those who had used a deadly weapon in committing their crime, ineligible for release on mandatory supervision. ⁽⁷⁾ Those inmates were either released on regular parole or required to serve their entire sentence. Nonetheless, some of those who were required to be released on mandatory supervision were not rehabilitated and still constituted a danger to the public.

Therefore, in 1995, the Texas Legislature amended the mandatory supervision statute to permit a parole panel to exercise some discretion in deciding whether a person who was eligible for release on mandatory supervision should, nonetheless, be kept in custody. ⁽⁸⁾ Under the revised Government Code section, "[a]n inmate may not be released to mandatory supervision if a parole panel determines that:

(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and

(2) the inmate's release would endanger the public." ⁽⁹⁾

This statute is a "failsafe" mechanism to protect society from the inappropriate release of those who are not truly rehabilitated and who would constitute a present danger to the public. Under the current provision, an inmate who is eligible for release on mandatory supervision will be released unless the parole panel makes these two specific findings. Given the wording of the statute, an eligible inmate has a vested, statutory entitlement to release on mandatory supervision, but it is a defeasible interest-one that may be defeated, but only if the parole panel makes these findings in its review.

We must assess the gravity of the interests at stake in this review-the inmate's interest in liberty and society's interest in safety-in determining what process is due under the federal constitution. The parole panel has great discretion in the regular parole review process as an inmate does not have a statutorily vested liberty interest in being released on parole. ⁽¹⁰⁾ Under the Texas Government Code, however, a parole panel has much less discretion in denying an inmate release on mandatory supervision. The statute vests a liberty interest in the eligible inmate, and the statutory presumption is slanted toward release. ⁽¹¹⁾ The parole panel must justify non-release.

The two statutory findings that justify non-release are predictive judgments based upon discrete factual conclusions and subjective appraisals. Necessarily, then, they are highly contingent upon accurate, up-to-date information and explanation. The due process goal in any parole board review is to "minimize the risk of erroneous decisions." ⁽¹²⁾ Thus, "the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." ⁽¹³⁾

Timely notice to the inmate that he will be reviewed for mandatory release gives him the opportunity to provide written input, marshal evidence of his custodial behavior, clarify adverse material in his file, provide letters, references, and information concerning possible employment or housing. To be effective, this notice must be given sufficiently in advance of the mandatory supervision release review date to allow the inmate to prepare and submit any such information. On the other hand, material submitted too early may be out-of-date or superceded by other information or events by the time the review is actually undertaken. ⁽¹⁴⁾ Timely notice, which provides sufficient opportunity to submit relevant, up-to-date information by affected parties, is a rudiment of due process, and it reassures both the individual and society that "fair dealing rather than caprice will govern the affairs of men." ⁽¹⁵⁾

In Greenholtz, the Supreme Court addressed, inter alia, the notice required by the Due Process Clause of the Fourteenth Amendment in the context of parole hearings, a more discretionary decisionmaking hearing than that under the Texas mandatory supervision statute. In that context, the Supreme Court noted that the Nebraska parole board provided constitutionally adequate notice because it

informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements; on the day of the hearing it posts notice of the exact time. There is no claim that either the timing of the notice or its substance seriously prejudices the inmate's ability to prepare adequately for the hearing. ⁽¹⁶⁾   

It therefore reversed the court of appeals' decision which had required the Nebraska parole board to give the inmate advance notice of the exact time of the hearing, as well as a list of factors that the board would consider. The Supreme Court found this unnecessary as a component of due process. The Court, in Greenholtz, adopted a functional test concerning the adequacy of notice: the inmate must show not only deficiencies in the notice, but how those deficiencies adversely affect him. ⁽¹⁷⁾ In that case, the Nebraska inmates failed to show that they would be adversely affected in their ability to submit timely supportive materials because the parole board gave them advance notice only of the month of their parole hearing, not the exact time and date.

Given an inmate's vested liberty interest set out in the mandatory supervision statute, we conclude that written notice that an inmate will be reviewed at some unspecified time in the future, coupled with a request that he submit relevant materials "as soon as possible," is constitutionally deficient notice. It fails to specify any relevant time frame, and it is so vague that it poses an unacceptable risk of adversely affecting an inmate. With this type of notice, an inmate could be reviewed the day after the notice was sent and therefore his materials could not be submitted in time, or he could be reviewed in ten to twelve months, in which case his materials may be entirely out-of-date. This notice is, from a constitutional due process standpoint, the same as no notice at all.

Following the Supreme Court's reasoning in Greenholtz, we hold that, in the normal case, ⁽¹⁸⁾ an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. We also hold that he must be given at least thirty days advance notice that he will be reviewed in the specified month so that he has a sufficient opportunity to submit materials on his behalf.

Applicant has also alleged harm. He states:

In the case at hand, applicant was harmed because had he known that his parole hearing was going to be conducted on January 16, 2003, he would have used all of the time right up to that date to have letters of support submitted by his wife and children and friends; thus, giving the Board the chance to consider this relevant and material information prior to its making a decision- this is the very same set of circumstances and allegations that were made in the prior Writ application that the Court of Criminal Appeals granted!  

Although the generic notice that the Board gave applicant in March, 2002, was sufficient to put him on notice that he would be reviewed some day, our order of August 21, 2002, surely led him to believe that he would receive "timely notice" before his next review.

Given the repeated failures to provide adequate and timely notice to this particular applicant, ⁽¹⁹⁾ we conclude that applicant is entitled to the specific habeas corpus relief that he has requested- a new review "as soon as possible." Because the mandatory supervision statute requires release unless a parole panel makes specific findings, we find that Thomas Christopher Retzlaff's continued incarceration is illegal and unconstitutional unless, within sixty days, a parole panel has given him timely notice of a review to be held before the fifty-ninth day and has provided him at least thirty days to submit whatever explanatory material he wishes the panel to consider. Under our statute, the onus is on a parole panel to invoke the review process and make its findings, not on the eligible inmate to request a review. Without a parole panel's two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, the Texas Department of Criminal Justice-CID must release an eligible inmate to mandatory supervision.

Copies of this opinion will be delivered to the Texas Department of Criminal Justice-CID and to the Texas Board of Pardons and Paroles.

Cochran, J.

Delivered: May 19, 2004.

Publish

1. Tex. Pen. Code § 46.03.

2.

See Ex parte Shook, 59 S.W.3d 174 (Tex. Crim. App. 2001). In that case, we explained that:

when the Board gives the inmate notice of a specific date on which the hearing is scheduled to take place, the inmate is entitled to rely on that information and accordingly has until that date to submit relevant information on his behalf. If the Board holds the hearing for such consideration on a date earlier than the specific date the inmate has been notified that the hearing will take place, then the inmate has been misled by the notice and denied the full opportunity he was told he would have in order to submit relevant information to the Board.

Id. at 176.

3. Specifically, we ordered the Board to "consider Applicant for mandatory release and provide him with timely notice that such consideration will occur."

Ex parte Retzlaff, No. 74,412, slip op. at 2 (Tex. Crim. App. 2002) (not designated for publication). We do not have any record that the Board provided applicant with an additional review and timely notice of that review based upon our order.

4. This notice is a standardized form which states, in pertinent part: "Before your projected release date, the Board will review your file and all available records to determine if you will be released." This document does not inform the inmate of his projected release date.

5.

See former Tex. Code Crim. Proc. art. 42.18, § 8(c).

6.

H.B. 1433 Comm. Report (Amended), 74^th Leg. (April 11, 1995).

7. Tex. Gov't Code §§ 508.147 & 508.149.

8.

See H.B. 1433 Comm. Report (Amended), 74^th Leg. (April 11, 1995) ("[t]he purpose of this Act is to give the Pardons and Parole Board a lever to close the 'automatic open door' of mandatory supervision. ... This legislation allows for discretionary release by the Pardons and Parole Board for all inmates, while still providing for the original intent of the legislation, supervised release, in most instances").

9. Tex. Gov't Code

§ 508.149(b).

10.

See Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. App. 2000) (noting that while the parole system in Texas creates no presumption of release on parole, the mandatory supervision statute does).

11.

Id. ("[u]nlike parole, which requires that the Board vote in favor of release, the mandatory supervision statute requires that the offender be released absent Board action to the contrary").

12.

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 13 (1979) (discussing what process is constitutionally due for state parole board hearings).

13.

Id.

14.

See Geiken, 28 S.W.3d at 560 (noting that "[t]he option of providing the Board with information supportive of release is of little practical use if the inmate is unaware that such a review will be taking place"); see also Ex parte Shook, 59 S.W.3d 174, 175 (Tex. Crim. App. 2001) (reiterating prior holding that constitutional due process requires Board to give inmates timely advance notice of their review for release on mandatory supervision).

15.

Morrissey v. Brewer, 408 U.S. 471, 499 (1972) (Douglas, J., dissenting).

16.

Greenholtz, 442 U.S. at 14 n.6.

17.

Id.

18. We recognize that there may be logistical peculiarities in a particular case-or small class of cases-that could make designation of a specific month for review impractical.

19. Section 508.149(d) of the Texas Government Code provides that a parole panel determination not to release an inmate on mandatory supervision is immune from administrative or judicial review, but it does provide the inmate with two further opportunities for re-review within the following two years. Tex. Gov't Code § 508.149(d). The wording of this provision indicates that, after three unsuccessful annual reviews, an inmate need not be reviewed again for release on mandatory supervision. This applicant's first two reviews were made without sufficient due process notice. For this, his last review, he is entitled to a "speedy and effectual" habeas remedy.