Untitled Texas Attorney General Opinion

. .
The Honorable William H. Sk&on, Opinion No. H- 312
Chairman
Board of Pardons and Paroles Re: Appointment of
Room 501. John H. Reagan Building Attorneys to rep-
Austin, Texas 78701 resent indigent
prisoners at on-site
parole revocation
Dear Mr. Skelton: hearings.
You have asked our opinion on two questions relating to the appoint-
ment of counsel to represent alleged parole violators at a preliminary
revocation hearing. Your first question is:
“[Dloes the Board have the responsibility and/or the
authority to provide the attorney for the alleged
parole violator who requests an On-Site Hearing or
for whom an attorney is required or deemed neces-
sary by the Hearing Authority? ”
In Morrissey v0 Bmer, 408 U.S. 471 (197i), the United States
Supreme Court concluded that the requirements of due process neces-
sitated several procedural safeguards in the parole revocation process.
One of these is the requirement that a preliminary hearing be conducted
at or near the place of the arrest or alleged violation to determine
whether there is probable cause or reasonable ground to believe that
the arrested parolee has committed acts which constitute a parole
violation. Morrissey, supra. at 485. The Court in Morrissey found
it unnecessary to decide whether the parolee was entitled to the
assistance of counsel.
The necessity of counsel for parolees facing revocation proceedings
was discussed iniegnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656
(1973). The Court refused to adopt an inflexible rule and indicated
that the decision as to the need for counsel would have to be made on a
case-by-case basis in the exercise of the sound discretion of the state
p. 1443
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The Honorable William H. Skelton, page 2 (H-312)
parole authority. Therefore, the Board has the responsibility
of considering the facts of each case to determine whether counsel
is required. To guide parole boards discharging their responsibi&ty
the Court said:
“It is neither possible nor prudent to attempt
to formulate a precise and detailed set of guidelines
to be followed in determining when the providing of
counsel is necessary to meet the applicable duo pro-
cess requirements. The facts and circumstances in
preliminary and final hearings are susceptible of almost
infinite variation, and a considerable discretion must be
allowed the responsible agency in making the decision.
Presumptively, it may be said that counsel should be
provided in cases where, after being informed of his right
to request counsel, the probationer or parolee makes
such a request, based on a timely and colorable claim
(i) .%Fat he has not committed the alleged violation of
the conditions upon which he is at liberty: or (ii) that,
even if the violation is a matter of public record br is
uncontested, there are substantial reasons which jus-
tified or mitigated the violation and make revocation
inappropriate and that the reasons are complex or other-
wise difficult to develop or present. In passing on a
request for the appointment of counsel, the responsible
agency also should consider, especially in doubtful
ca8es. whether the probationer appears to be capable
of speaking effectively for himself. In every’ case in
which a request for counsel at a preliminary or final
hearing is refused, the grounds. for refusal should be
ntated succinctly in the record. ” (36 L. Ed. 2d at 666-667)
Shortly before the Supreme Court announced its decision in Gagnon
v. Scarpelli, supra. a panel of the United States Court of Appeals for
the Fifth Circuit decided Cottle v. Wainwright, 477 F.2d 269 (5th Cir.
1973). Expressly declining to reach the due process issue which sub-
sequently formed the basis for the Scamelli decision, the Fifth
Circuit held under the equal protection clause that an indigent parolee
was entitled to appointed counsel in revocation proceedings if retained
counsel would have been permitted. The Supreme Court vacated the
p. 1444
The Honorable William H. Skelton, page,3 (H-312)
judgment in Cattle and remanded the cause to the Fifth Circuit,
for further proceedings in light of Scarpelli [Wainwright v. Cottle,
U.S. , 38 L. Ed. 2d 138 (1973)], even though, according
to the dissent of Justices Douglas and Blackman, the decision in
Scarpelli,“is inapposite’% a consideration of Cottle.
-- Cottle is
now pending before the Circuit and the decision ultimately reached
in that case may expand the responsibility of the Board. See,
Lane v. Attorney General of the United States, 477 F.2d 847 (5th
Cir. 1973).
Since the Board has the responsibility to provide counsel in
certain cases the remaining aspect of your first question requires a
determination of the Board’s authority to provide counsel. The Board
is required by statute to provide parole revocation hearings, to
adopt rules and regulations to govern these hearings, and ,after the
hearing to recommend to the Governor that the prisoner’s parole be
continued, revoked or modified. Article 42.12, Sec. 22, Vermn’s
Texas Code of Criminal Procedure. Since it is necessary to provide
counsel for certain indigent parolees in order to fulfill this statutory
mandate, we believe the Board by necessary implication has the
authority to provide counsel. Terre11 v. Sparks, ,135 S. W. 5!9 (Tex.
1911).
The Board has some discretion in determining the manner, in
which counsel is to be provided. Appointment of counsel is one
possibility; however, even though many attorneys will be willing
to accept the Boards appointment to represent an indigent prisbrser,
see, Texas Bar Association, Code of Professional Responsibility,
=2-16, EC 2-25, we know of no means by which the Board can
compel an attorney to provide such representation,
Other alternatives the Board may want to consider are the estab-
lishment of a f&schedule ,fdr use in the employment of private
attorneys [see generallyt Article 26.05, Texas Code of Criminal
Procedure], or the establishment of an office of legal counsel to pro-
vide such representation. Since these and other possible proposals
are not before us we express no opinion as to’the legality of estab-
lishing or funding any particular plan.
Your second question asks:
“Does the District Judge of the county in which the
parolee is in custody have the authority or res-
ponsibility to provide the attorney? ”
p. 1445
. ,
The Honorable William H. Skelton, page 4 (H-312)
District Courts ar=e authorized to appoint counsel for indigents
in many situations, e.g. t Articles 16. 01, 26.04, 26. 05, 42,12, Set, 3b,
Vernon’s Texas Code of Criminal Procedure: however, the parole
revocation process, unlike a trial or a revocation of probation, does
not take place in the courts0 When parole is to be revoked a court
has no case or controversy before it, and therefore, we believe it
would have no jurisdiction to appoint an attorney to represent a
prisoner in a hearing before some other authority.
SUMMARY
The Board of Pardons and Paroles has the responsibility
and authority to provide counsel for indigent prisoners
whose parole is to be revoked. An attorney should be pro-
vided when the parolee disputes the allegation of a violation
or offers substantial reasons to justify or mitigate the via-
lation of the conditions of parolee, Attention must be given
to the parolee’s ability to speak for himself,
Very truly yours,
A
JOHN L. HILL
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
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