This is a continuation of ABCs and 123s of Parole Law: An Introduction to Parole Law Pt.1 in the December 2020 issue of Voice for the Defense and ABCs and 123s of Parole Law: An Introduction to Parole Law Pt.2 in the January/February 2021 issue of Voice for the Defense.
For starters, let’s review basic parole eligibility. Offenders convicted of aggravated offenses will serve ½ of their sentence before becoming eligible for parole. Good conduct time is not awarded to these offenders. Offenders convicted of non-aggravated offenses will be eligible for parole upon serving 25% of their sentence. This 25% includes actual custody time and good conduct time. For simplicity’s sake, we calculate good conduct time as 1 day credited for each day in custody. Therefore, offenders are actually eligible for parole on non-aggravated offenses after serving just 1/8 of their sentence.
Let’s say it’s a leisurely Monday afternoon and a potential new client walks into your office. The client mentions that they were arrested for a misdemeanor DWI on Friday night and were given a PR bond the same day. You think to yourself, “Great, I’ve handled many DWI’s in the past, I can’t wait to get started.” Then the client says, “Oh, by the way, I’m also on parole! I might have a Blue Warrant; can you get it lifted? If not, how long will I be in custody? What will happen if I am convicted of the new offense?” As you slump back in your chair, you realize, I need to speak to a parole attorney ASAP. Before you pick up the phone to call my office, this article will provide you a guide to some of the common issues presented in these situations.
So, let’s talk about parole revocations and how you can advise your client when presented with this scenario. Parole revocation caselaw starts with the landmark Supreme Court decision Morrissey v. Brewer, 408 U.S. 471 (1972). In Morrissey, the Court held that parole revocations are not part of a criminal prosecution and thus the “full panoply of rights does not extend to parole revocations”. The Court did hold that parole revocation hearings do call for “some orderly process, however informal”. The Morrissey holding establishes the following minimum rights of due process in parole revocation hearings:
- Written notice of claimed parole violations;
- Disclosure to the parolee of evidence against him;
- Opportunity to be heard in person and to present witnesses and documentary evidence;
- The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
- A “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
- A written statement by the fact finders as to the evidence relied on and reasons for revoking parole.
Why Might a Blue Warrant be Issued?
First and foremost, all offenders are given parole conditions that they must abide by when released on parole/discretionary mandatory supervision (“DMS”). Failure to abide by of any of these conditions could result in a violation being filed and a parole warrant (aka, Blue Warrant) being issued. Offenders who are on parole/DMS may be subject to Blue Warrants for technical or new offense violations. These Blue Warrants are NO BAIL.
Technical violations typically include:
- Failure to report
- Delinquent parole fees
- Positive drug tests
- Failure to reside in an approved location
- Home monitoring/curfew violations
- Class C and up offenses.1
When will a Blue Warrant be issued?
Traditionally, a Blue Warrant will be issued anytime an offender is accused of a technical or new offense violation. Recently, there have been some changes to Blue Warrant issuance.
Technical violations will still continue to result in Blue Warrants. Those hearings will be conducted within 41 days of the blue warrant being executed.
New Offense violations are now subject to new rules. TDCJ-Parole Division (“Parole Division”) will now issue Blue Warrants upon notice of a new offense under different parameters. They will no longer “automatically” issue Blue Warrants due to a new offense violation. Blue Warrants for new offenses will be issued according to a new tier system.
Offenses in the first tier (Murder, Sexual Assault, etc.) will result in Blue Warrants being issued automatically. Those cases will have both preliminary and revocation hearings within 41 days.
All other offenses will not result in an automatic warrant issuance. Instead, those offenders will be free to post bond on their new offense and resume parole supervision. Once those cases are indicted, the Parole Division may staff those cases to determine if a warrant shall be issued. If no Blue Warrant is issued, the offender will continue on supervision until the case is adjudicated. Upon adjudication, the Parole Division may issue a warrant and proceed to a hearing.2
Please be careful with these situations involving a Blue Warrant and a new criminal charge. Often, a client will bond out prior to the Blue Warrant issuance. This usually happens when an offender is arrested on a weekend and the Blue Warrant doesn’t issue until Monday morning (for those offenses subject to automatic warrant). If the offender is later taken into custody on the parole hold, they will not be “in custody” on the new criminal case. A consideration should be made into raising their bond on the criminal case so the client gets credit for both the parole case and the new law violation.
Where will hearing take place?
Once a Blue Warrant is executed the preliminary/revocation hearing will take place in the county where the client is located, not necessarily where the violations occurred. That is, the county the warrant was executed in determines where the hearing will take place. So a client who is reporting to parole in Dallas but was arrested in Houston, will have their hearing in Houston. (If the basis for the Blue Warrant was for a new criminal offense, the client may be “bench warranted” back to the county where the criminal offense is pending.)
Who is present at the hearing?
Hearings are presided over by hearing officers, who are employees of the Texas Board of Pardons and Paroles (“Parole Board”), not the Texas Department of Criminal Justice (“TDCJ”). The hearing officers conduct hearings to determine whether a violation occurred and make recommendations to the Parole Board. In these hearings, the hearing officer presides over the case much like a judge in a courtroom. Hearing officers examine witnesses, rule on admission of evidence, and make rulings regarding motions and objections, among other duties.3 The parole officer, employed by the Parole Division, acts much like a prosecutor in a courtroom. The offender is present at the hearing along with their attorney, if one has been appointed or retained. As mentioned earlier, the Hearing Officer may examine witnesses in addition to the parole officer and offender/attorney.
Who gets a Hearing and when are they informed about the Allegations?
Every offender accused of a violation is entitled to a hearing. The offender (and attorney if appointed/retained) must receive the hearing packet (aka, discovery) within 3 days of a preliminary hearing and 5 days before a revocation hearing. Prior to scheduling a hearing, the offender will be asked if they want to have a hearing or waive it. As a general rule, it is advisable to never waive a hearing.
Does the Offender have a right to Counsel?
While an offender may hire an attorney, there is no automatic right to counsel in parole revocation hearings. However, the Parole Board can appoint an attorney in certain situations. The Board may appoint an attorney based on the following factors:
- Whether the offender is indigent;
- Whether the offender lacks the ability to articulate or present a defense or mitigation evidence in response to the allegations; and
- The complexity of the case and whether the offender admits the alleged violation.4
This request for an attorney can come from the offender, parole officer, or hearing officer. In my experience, the Parole Board errs on the side of caution and will not hesitate to appoint an attorney to an offender they believe cannot adequately represent themselves; this usually happens because of a low IQ or mental illness.
What types of hearings are there?
There are two types of hearings: preliminary and revocation.
A preliminary hearing will take place if an offender is accused of a new law violation. The burden to sustain an allegation is low: probable cause. If probable cause is found, the case is usually continued to a later date to hold a revocation hearing after the criminal case is adjudicated.5 The client will remain in custody pending the outcome of the criminal case and the subsequent revocation hearing.
Revocation hearings are held for technical-only violations and for new offense violations that have been adjudicated in court. At this hearing, the burden is preponderance of the evidence. Please note, that just because a criminal case was dismissed, DOES NOT mean there will not be a revocation hearing. The burden is preponderance, not beyond a reasonable doubt!
What are the Preliminary and Revocation Hearing Procedures?
Both preliminary and revocation hearings have two parts, a fact-finding and an adjustment portion.
The first part is considered the fact-finding portion, much like a trial. Documentary evidence is submitted, and testimony is taken from witnesses who are subject to cross-examination. Likewise, objections can be made to introduction of documents or testimony. The offender can testify if they so chose.
In preliminary hearings, the parole officer usually submits the Probable Cause affidavit as evidence to support their burden. Clients should be warned that any testimony they give is under oath and can be used against them as impeachment at trial. Therefore, most of the time it is inadvisable for a client to testify at preliminary hearings.
Due to the low burden, success for offenders at preliminary hearings is generally low. However, the offender can call witnesses to the hearing. These witnesses could include law enforcement, eyewitnesses, and even the alleged victim(s). As all testimony is under oath and recorded, this could be useful for impeachment at a subsequent trial.
If the requisite burden is not met at either type of hearing, the case will not advance any further. This would be akin to a Directed Verdict at a trial.
If the requisite burden is met, the hearing will move on to the adjustment portion, which is akin to a sentencing hearing at a trial. During this part, the parole officer will testify as to the offender’s adjustment during supervision. They will advise the hearing officer as to the offender’s overall compliance with parole conditions, prior warrants, employment status, drug test results, and home plan verification.
Offenders can also testify, submit documents, and present live witness testimony during this stage. Most cases are won or lost at this stage.6 Even though there may be a finding as to an allegation at a revocation hearing, the evidence presented at the adjustment portion may make the difference between a revocation and a less severe punishment. It is vital to present mitigating factors during the adjustment portion. This is the only opportunity the hearing officer will have to gather information about the offender’s life, hardships, accomplishments, and lessons learned.
Mitigating factors might include:
- Client’s character
- Good moral standing in the community
- Job skills
- Employment history
- Mental health concerns
- Medical issues, etc.
- Future educational, professional, and personal goals
At the conclusion of the hearing, the parole officer will make a recommendation. The hearing officer will then conclude the hearing without making a recommendation. The hearing officer will type up a report and send it to the local Parole Board with their recommendation. A Parole Board analyst reviews the file and makes their recommendation to the Board who then issues their decision. The Board’s decision is later tendered to the offender in person.
What are the possible outcomes?
The Board has 30 days to issue a ruling on the case. A majority of the 3 voters is required for a ruling. The Board can then:
- Accept the findings of the Hearing Officer and Analyst, (most common)
- Overrule their findings, or
- Send the case back to the Hearing Officer for further development of factual or legal issues.
If the Board accepts the findings, they will then determine what sanction to impose. Generally, the Parole Board takes a graduated sanctions approach to violations. The possible outcomes from a revocation hearing are:
- Return to Supervision (possibly with new or modified conditions)
- Intermediate Sanction Facility (ISF)
- Substance Abuse Punishment Facility (SAFP)
Can you appeal the results?
An offender can only appeal a Board’s decision if the vote was to REVOKE. If so, then the offender has 60 days from the Board’s decision to file a Motion to Reopen. This motion must be based on:
- Newly discovered evidence,
- Findings of fact that are not supported by preponderance of credible evidence or are contrary to law, or
- Procedures followed in the hearing are violative of the law or Parole Board Rules.7
What happens after the Parole Board’s decision?
If offender is returned to supervision, they will be released from custody and resume parole supervision. If ordered to go to ISF or SAFP, they will wait in the county jail until a bed opens and then be transferred. Upon completion of ISF or SAFP, the offender will resume parole supervision. Even though offenders ordered to attend ISF and SAFP will be housed in prison to complete their program, this is not considered a revocation. For offenders who are revoked, they will remain in the county jail until they are transferred to TDCJ.
What about street time credit for those who are revoked?
If the offender is sentenced to ISF or SAFP, they will eventually be returned to supervision upon successful completion of the program. If the client is revoked, however, the stakes are much higher. Most offenders are worried about losing their street time if revoked for parole. Certainly, offenders who are revoked will get credit for the time they spent in custody prior to being paroled and any time they spent in custody after the blue warrant was executed. However, they may not keep their street time.
To determine if an offender will keep their street time, we must look at two things: their criminal convictions and how long they have been on parole. Offenders will get credit for street time upon revocation if:
- They have no current or previous convictions for offenses in 508.149 of the Government Code (DMS disqualifying offenses), and
- They must have been on parole/DMS for at least ½ of their supervision term at the time the Blue Warrant was issued.
Being eligible for DMS is not as much of a concern for offenders going to prison but it has greater impact on revocations. Now you can see why although DMS has “lost its bite” for many offenders when up for review, it is crucial in determining street time credit.
To be clear, if an offender is currently on parole for or has ever been convicted of a 508.149 offense, they will NEVER be eligible to “keep” their good time upon revocation now or in the future!
Additionally, upon revocation any good conduct time the offender earned prior to being released on parole/DMS will be forfeited.8
Let’s take a look at some examples to give you a good understanding of parole revocations and street time.
- Client has no prior felony convictions.
- Client is sentenced to 8 years for DWI.
- Client was eligible for parole after serving 25% of their sentence
- 1 year of actual time + 1 year of good time=25%
- Client was granted parole after serving 1 year of actual time.
- Client is placed on parole for remainder of sentence: 7 years
- Client is on parole for 5 years and is then revoked.
What about street time? Is client DMS eligible? YES. (No convictions for 508.149 offenses)
Has offender completed at least ½ of their parole at time of Blue Warrant: YES.
Therefore, client will return to prison with 1 year of actual time served plus 5 years of street time. In essence, client has “banked” 6 years towards their sentence. The client does lose the 1 year of good conduct time, but that is eclipsed by the street time credit.
- Offender has 2 previous felony convictions for POCS.
- Client is sentenced to 8 years for DWI.
- As in the prior example, let’s assume client was granted parole at their first review after serving 1 year of actual time.
- The client is placed on parole for the remainder of sentence: 7 years
- Client is on parole for 3 years and is revoked.
What about street time? Is client DMS eligible? YES.
Has offender completed at least ½ of their parole at time of Blue Warrant? NO.
Therefore, client will return to prison without credit for any of their 3 years of street time. They will also lose the 1 year of good time they accumulated prior to being released. Client will go back to prison with just 1 year of custody credit.
- Offender has 2 previous felony convictions: A 1997 conviction for Aggravated Assault with a Deadly Weapon and a 2005 conviction for Evading Arrest in a Vehicle.
- Client was sentenced to 8 years for DWI.
- As in the above examples, client was released on parole after their first review after serving 1 year of actual time. The client is on parole for the remainder of sentence: 7 years.
- Client is on parole for 6.5 years and is revoked.
What about street time? Is client DMS eligible? NO (Aggravated Assault with a Deadly Weapon is a DMS disqualifier) No need to go to any further.
Due to the client not being eligible for DMS, they will return to prison without their 6.5 years of street time. They will also lose the 1 year of good time they accumulated prior to being released. This client will go back to prison with just 1 year of credit.
In the above examples, the offenders will re-enter the parole review process once they have the requisite credit. They will be eligible for parole just like any other offender. For offenders who “keep” their street time after being revoked, they may be eligible immediately upon returning to prison.
As you can see there are a lot of moving parts to the parole revocation process. Please feel free to contact me with questions regarding any parole topics.
- New Offenses do not need to be filed in court. Merely an allegation made to the parole officer of a criminal law offense may be enough to trigger a blue warrant.
- As this new policy has recently taken place, we do not know under what conditions a Blue Warrant will issue after adjudication.
- Texas Administrative Code, Title 37, Part 5, Rule 147.2.
- Texas Administrative Code, Title 37, Part 5, Rule 146.3.
- In the case of “automatic” Blue Warrants, the Revocation Hearing will be scheduled immediately after the Preliminary Hearing within the 41 day time frame.
- Adjustment testimony is taken during preliminary hearings even though there will likely be a revocation hearing taking place later. In most situations, adjustment testimony is therefore more important at the revocation hearing, as a decision whether to revoke or not is being made at that time.
- Texas Administrative Code Title 37, Part 5, Rule 146.11.
- 498.004 Texas Government Code.