Opinion on State’s Motion for Rehearing—this day decided
How later courts described this case
- Opinion on State’s Motion for Rehearing—this day decided
- Opinion on State’s Motion for Rehearing
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
Today the Court delivers opinions in a trilogy of causes raising a common question. That is, when the Board of Pardons and Paroles (“Board”) comes to consider whether parole is to be revoked, what process is due a parolee who, by being convicted of a felony offense committed while released on parole, is shown to have violated a validly imposed obligation and condition of release that the parolee “shall obey all Municipal, County, State and Federal laws?” 1
Implicated, of course, are the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and the Due Course Clause of Article I, § 19 of the Constitution of the State of Texas, as well as Article 42.12, § 22, V.A.C.C.P. However, though we discuss the constitutional implications in Ex parte Glenn, 690 S.W.2d 578 (Tex.Cr.App. delivered this day), they are not resolved because in all the causes we find the answer in the statute. Along the way we also find that the Board has promulgated a rule “without the scope of its authority, no matter how seemingly economical, logical and reasonable the rule may seem ...,” and conclude, therefore, that we need not reach the question of its constitutionality.
Essentially we are holding that in enacting Article 42.12, § 22, supra, the clear legislative intent is that “a parolee is entitled to the parole revocation hearing [so provided],” and though no request is made, without “an affirmative waiver, intelligently and knowingly given,” (p. 577), the statute mandates that the Board “give every parolee the right to be personally heard at parole revocation proceedings,” Ex parte Johnson, 690 S.W.2d 585 (Tex.Cr.App. this day decided).
In the matter of a parole revocation hearing Article 42.12, § 22 is so global in nature as to foreclose exception. That the statute authorizes the Board to hold the hearing “under such rules and regulations as the Board may adopt” does not bestow power and authority to promulgate rules and regulations effectively to deny any charged parolee the right to be heard. The Legislature has neither enacted nor delegated authority for the Board to provide for an “automatic revocation rule,” as Rule 145.-41(b)(5) is characterized. The State suggests the rule is “an economy,” such that “it should receive the approval of the Court.” But any merit to that suggestion is for the Legislative Department to decide. Such a determination of public policy lies outside the realm of the Judicial Department.
With those observations I join the opinions of the Court in the quartet of causes we decide today.
. The same question is raised in another case, but since it has been made to appear that the applicant has finally discharged his sentences and as a consequence is no longer in custody or under restraint, that matter is now moot; accordingly with an unpublished per curiam opinion we have dismissed his application.