Texas Attorney General Opinion: JM-111 Page: 3 of 6
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Mr. Ruben M. Torres - Page 3 (JM-111)
1. Is it appropriate to resolve the apparent
conflict between section 21(a), article 42.12,
Texas Code of Criminal Procedure, and Morrissey v.
Brewer, in favor of a requirement that a parolee
be detained on the authority of a board-issued
prerevocation warrant be afforded a local hearing,
as per 37 Texas Administrative Code, section
2. If the answer to the preceding question is
in the affirmative, does the Board of Pardons and
Paroles therefore have the authority to order the
sheriff or a county to hold a parolee, detained on
authority of a board-issued prerevocation warrant,
pending the conduct of a revocation hearing
pursuant to the board's rules in 37 Texas
Administrative Code, sections 145.41-145.55?
3. If the answer to both of the preceding
questions is in the affirmative, in what position
does this place the Department of Corrections when
an inmate is prematurely and improperly
transferred by the county, in violation of the
board's order, and presented at Texas Department
of Corrections for admission?
First, we conclude that there is actually no conflict between
section 21(a) of article 42.12 and the due process requirement of
Morrissey that a hearing "be conducted at or reasonably near the place
of the alleged parole violation or arrest . . ." 408 U.S., at 485.
The administrative release revocation hearing established by 37 of the
Texas Administrative Code, section 145.45(g), pursuant to this due
process standard is not inconsistent with the provisions of article
42.12, section 21(a). Second, there is no need to consider whether
the Board of Pardons and Paroles has authority to order a local law
enforcement official to hold a detained parolee apart from the
directive in the board-issued prerevocation warrant, because it is
clear that it would be inappropriate for local law enforcement
authorities to release such a person prior to the conclusion or waiver
of the local revocation hearing. Finally, if representatives of a
county wherein a parolee has been detained on the basis of a
prerevocation warrant issued by the board seek to transfer such a
person to the Texas Department of Corrections prior to completion or
waiver of the required hearing, we believe that the Texas Department
of Corrections must refuse to admit a parolee thus prematurely and
The wording of each of the three sentences in article 42.12,
section 21 was changed. In the first sentence, along with other
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-111, text, 1983; (texashistory.unt.edu/ark:/67531/metapth272551/m1/3/: accessed December 11, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.