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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Keller, P.J., filed a dissenting opinion joined by KEASLER, J.

DISSENTING OPINION  

   The State's motion for rehearing highlights several problems with the Court's original opinion: (1) TDCJ, not the parole board, releases offenders, (2) TDCJ, not the parole board, notifies offenders of their review date, (3) it is not always practical to specify a particular month or date for review because release dates sometimes fluctuate, and (4) thirty days notice is not always practical because some inmates have already approached the release date or will do so in less than thirty days. The Court's revised opinion remedies the first concern, and addresses but does not entirely resolve the third concern. It does not address the second and fourth concerns.

According to the pleadings filed on rehearing, the Board of Pardons and Paroles voted on over 18,000 discretionary mandatory supervision cases during the last fiscal year. The determinations are made by no more than eighteen individuals. And there are thousands of other parole-related decisions made each year by the Board. Inmates are currently given notice about nine months prior to a projected release or review date. ⁽¹⁾ The parole board's practice is to conduct a review no sooner than four months prior to the projected release or review date. It appears to me that this procedure meets due process standards under both this Court's caselaw and that of the United States Supreme Court.

While the Supreme Court in Greenholtz stated that Nebraska satisfied due process by informing the inmate "in advance of the month during which the hearing will be held," it did not say that due process requires the parole board to specify the specific month review takes place or to give at least 30 days notice of the review. ⁽²⁾ The Supreme Court has said that "due process is flexible and calls for such procedural protections as the particular situation demands." ⁽³⁾ "The quantum and quality of process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." ⁽⁴⁾ Notifying the prisoner nine months in advance and giving him at least five months time to respond sufficiently minimizes the risk of an erroneous decision. If the inmate has important information to offer, one would expect that he would take less than five months to submit such information. And, given the predictive and subjective nature of any decision regarding an inmate's suitability for release, it is highly unlikely that the basis of the Parole Board's decision would be seriously undermined by information obtained at the last minute.

Moreover, I continue to adhere to my position that, to be entitled to relief on a Geiken ⁽⁵⁾ lack of notice claim, the applicant must show that he has actually been denied a meaningful opportunity to be heard. ⁽⁶⁾ In this case, the applicant was given advance notice that he would be considered for mandatory supervision, and, if the affidavits attached to the State's motion for rehearing are believed, the applicant was not only afforded the opportunity to submit information in support of release but did in fact submit such information.

The considerations discussed above would be enough for me to urge the Court to reconsider the merits of the application, except that it now appears the applicant has been released to mandatory supervision. According to an April 23, 2004 affidavit of William W. Seigman, a parole panel approved applicant for mandatory supervision on April 21, 2004. So, both mine and the Court's concerns have become moot. It now makes little sense for the Court to fix its original opinion by issuing a revised opinion, when that revised opinion orders the parole board to do something it can no longer do - give advance notice of a mandatory release review when the inmate has already been released. Under the circumstances, we should withdraw our prior opinion and dismiss the application as moot.

KELLER, Presiding Judge

Date filed: May 19, 2004

Publish

1. The Board of Pardons and Paroles is not a party to this case. Neither is TDCJ. Their first opportunity to provide relevant information was, thus, on rehearing by way of an amicus brief. Much of the information in the pleadings on rehearing is, for this reason, presented to the Court for the first time.

2. Greenholtz v. Inmates of the Nebraska Penal & Correction Complex, 442 U.S. 1, 14 n. 6 (1979).

3. Id. at 12.

4. Id. at 13.

5. Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000).

6. Ex parte Shook, 59 S.W.3d 174, 176-177 (Tex. Crim. App. 2001).