Parole Revocation Hearings
Mr. O’Neil has been successfully representing clients at parole revocation hearings for nearly two decades. In making a decision on retaining an attorney for a parole revocation hearing one should consider whether the attorney has experience in representing clients in parole revocation proceedings. Although a parole revocation hearing is, in many respects, similar to preparing for trial, the Parole Board has many unique procedural and evidentiary rules that can be used to the benefit of the parolee by an attorney who is familiar with those rules and how to use them to the client’s advantage. There is also the potential for substantial time credit issues that many attorneys may be unaware of unless they have experience in parole related matters. For example, if a parolee is facing a parole revocation on new criminal charges, as opposed to technical violations of parole, and that parolee is arrested and makes bond on the new charges but is subsequently arrested on a blue warrant (discussed below), the parolee will not be entitled to receive any time credit for the time he spends in jail on the blue warrant as long as the bond is in effect. The parolee will receive time credit towards the sentence for which they are on parole, but if they are still on bond for the new offenses, the courts have held that the parolee is not entitled to time credit for the time spent in jail awaiting disposition of the new charges, even though the parolee was in jail awaiting disposition of those charges. This is just one example why it is important to retain an attorney who understands the importance of parole law.
Parole Revocation Process Expert | David O'Neil
Mr. O’Neil understands the daunting nature of the parole revocation process. Not only is a parolee facing the loss of their freedom, they may also be facing the loss of all good time (parole credits earned in prison) and, in certain circumstances, the loss of all of street time (time spent on parole). This is another reason it is important to have an attorney who understand the law related to these parole matters.
In Texas a parole revocation warrant is called a blue warrant. Blue warrants are usually executed without any prior notice to the parolee. Once a warrant is issued, the parolee is arrested and incarcerated. Although the Parole Division may or must, in certain limited circumstances, issue a summons that allows the parolee to remain free pending disposition of the revocation proceedings, blue warrants are very often issued when a parole violation has occurred. An experienced parole attorney will know when a summons is required, and when a summons is an option that can be pursued.
Once arrested on a blue warrant, the due process aspects of the revocation procedure begin, regardless of whether the parolee is charged with a new crime or a technical violation. Once in custody, someone from the parole division will contact the parolee. That person will often attempt to have the parolee waive the right to the revocation hearing. If the parolee waives their right to a hearing, it is much more likely that parole will be revoked without the parolee ever having a chance to tell their side of the story.
Mr. O’Neil advises each of his client’s not to waive any of their rights, and not to discuss the facts of their cases with parole division personnel. If represented by an attorney, they should inform the parole division representative that their attorney has advised them not to discuss the facts of their case or waive any rights related to the parole revocation process. The parolee should immediately advise the parole division representative that they want both the preliminary hearing (if entitled) and the final revocation hearing, as well as all the rights to which they are entitled.
Parole Revocation Entitlements
In 1972, in Morrissey v. Brewer, 408 U.S. 471 (1972), the United States Supreme Court recognized that releasees have a substantial liberty interest in their freedom and that their liberty interest is protected by the Fourteenth Amendment of the United States Constitution. In that case the Court ruled that one facing a parole revocation hearing is entitled to:
- Written notice of the alleged violation;
- disclosure of the evidence against the parolee
- the opportunity to be heard, including the opportunity to present witnesses and documentary evidence;
- the opportunity to confront and cross-examine witnesses (unless there is a specific finding of good cause to deny such confrontation);
- a neutral and detached body to hear the evidence; and,
- a written statement by the factfinders as to the evidence relied upon for any decision to revoke.
The parolee also has the right to be represented by retained counsel. In certain limited circumstances, such as where mental health issues are involved or where the case is considered complicated enough to justify assistance, the parolee has the right to appointed counsel
Process of Revoking Freedom
The Supreme Court articulated a two-stage process for revoking a release’s freedom. The first stage is a preliminary hearing and occurs when the parolee is arrested and detained, usually at the direction of his parole officer. The preliminary hearing is to determine whether there is probable cause or reasonable grounds to believe that the elease committed the alleged parole violations. Due process requires that the determination that reasonable ground exists for revocation of parole be made by someone not directly involved in the case.
In 1997, the Texas Legislature enacted a statute providing that a parolee will not receive a preliminary hearing if they are only being charged with an administrative violation. This means that even though one may be entitled to a preliminary hearing (because probable cause has not been established), the Board may refuse to give one, despite the fact that it appears to be required by the Supreme Court’s mandate in Morrissey.
The second stage occurs when parole is formally revoked. There must be an opportunity for a hearing prior to the final decision on revocation by the parole authority. The parolee must have an opportunity to be heard and to show that he did not violate the conditions, or present mitigation evidence suggesting that the violation does not warrant revocation. The final revocation hearing must be held within a reasonable time after the parolee is taken into custody. In Morrissey, the Supreme Court suggested that a lapse of two months between the arrest and the final revocation hearing is not unreasonable. In Texas, the Board has 41 days from the date one is arrested to give them a hearing. However, the rule is subject to certain exceptions. If a parolee is arrested in another state, the 41-day rule does not take effect until they are back in Texas. And, if they have a new pending criminal case, the rule does not apply.
The parole revocation process is an administrative process. The standard in the revocation process (preponderance of the evidence) is different than the standard (beyond a reasonable doubt) in a criminal trial. The proceeding is less formal than a criminal trial, and the rules of evidence are not as strict.
At the conclusion of the revocation, the parole officer will make a recommendation to the hearing officer. The hearing officer will then prepare a written report with his recommendation and forward it to the Board. The Board will then make its decision. The Board does not have to accept the recommendation of either the parole officer or the hearing officer. The process usually takes 30 days. During this time, the parolee will remain incarcerated if a blue warrant is in effect. Please understand that in the event the parole violations alleged include new criminal charges that result in conviction(s), the record of conviction is all that is necessary to support a finding that a violation has occurred. A determination to revoke parole will almost certainly follow if the conviction is for a felony, and is likely to occur even in misdemeanor convictions. If "time served", probation, or deferred is granted in either case, the prospects for a decision not to revoke may improve substantially.
If a parolee is arrested out of state, they will be returned directly to the custody of the TDCJ-ID. This means that the hearing will be held in a prison unit instead of a county jail. It is the practice of TDCJ to have those parolees brought back to Texas from other states to be housed at the Byrd Unit near Huntsville, and to have the parole revocation proceedings conducted at that unit.
Motion to Reopen
If the Parole Board Panel votes to revoke parole, there is an administrative appeal called a Motion to Reopen where one can appeal a revocation on the grounds of substantial error in the revocation process or upon newly discovered information. This administrative appeal must be exhausted before one can challenge the revocation in court. A Motion to Reopen must be filed within 60 days of the decision to revoke parole, unless certain exceptional circumstances can be show.