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Notice Required in Texas Parole Date Rescission
Notice Required in Texas
Parole Date Rescission
In an en banc opinion, the Texas Court
of Criminal Appeals has held that the parole board must provide a prisoner prior notice of a hearing before reconsidering its decision to grant the prisoner mandatory supervision release.
Charles Albert Barry, a Texas state prisoner, received notice that he would be released on his mandatory release date. However, he was not released on that date because, without notifying him, the parole board reversed its decision. Barry filed a petition for a writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure.
Under Texas Government Code § 508.149(b) the parole board may overrule prisoners' mandatory release dates. In Ex Parte Geiken, 28 S.W.3d 553 (Tex.Crim.App. 2000) [PLN, June 2001], the court held that a prisoner had a right to a meaningful opportunity to be heard prior to a decision being made about mandatory release and this implied that the prisoner must be given prior notice of a pending hearing on the matter and an opportunity to submit evidence in the prisoner's favor. In this case, the court held that the right to a meaningful opportunity to be heard also means that the prisoner must be given prior notice of a pending hearing reconsidering a decision to release a prisoner on mandatory release. Because this was not done, the court granted relief and ordered that Barry be reconsidered for mandatory release after being provided timely notice of when the reconsideration would take place. See: Ex Parte Barry, 109 S.W.3d 510 (Tex.Crim.App. 2003). g
Parole Date Rescission
In an en banc opinion, the Texas Court
of Criminal Appeals has held that the parole board must provide a prisoner prior notice of a hearing before reconsidering its decision to grant the prisoner mandatory supervision release.
Charles Albert Barry, a Texas state prisoner, received notice that he would be released on his mandatory release date. However, he was not released on that date because, without notifying him, the parole board reversed its decision. Barry filed a petition for a writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure.
Under Texas Government Code § 508.149(b) the parole board may overrule prisoners' mandatory release dates. In Ex Parte Geiken, 28 S.W.3d 553 (Tex.Crim.App. 2000) [PLN, June 2001], the court held that a prisoner had a right to a meaningful opportunity to be heard prior to a decision being made about mandatory release and this implied that the prisoner must be given prior notice of a pending hearing on the matter and an opportunity to submit evidence in the prisoner's favor. In this case, the court held that the right to a meaningful opportunity to be heard also means that the prisoner must be given prior notice of a pending hearing reconsidering a decision to release a prisoner on mandatory release. Because this was not done, the court granted relief and ordered that Barry be reconsidered for mandatory release after being provided timely notice of when the reconsideration would take place. See: Ex Parte Barry, 109 S.W.3d 510 (Tex.Crim.App. 2003). g
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Related legal case
Ex Parte Barry
| Year | 2003 |
|---|---|
| Cite | 109 S.W.3d 510 (Tex.Crim.App. 2003) |
| Level | State Court of Appeals |
Ex parte Barry, No. 74, 109 S.W.3d 510 (Tex.Crim.App. 07/02/2003)
[1] IN THE COURT OF CRIMINAL APPEALS OF TEXAS
[2] No. 74,642
[3] 109 S.W.3d 510, 2003.TX
[4] July 2, 2003
[5] EX PARTE CHARLES ALBERT BARRY, JR., APPLICANT
[6] ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM TAYLOR COUNTY
[7] The opinion of the court was delivered by: Johnson, J.
[8] Johnson, J., delivered the opinion of the Court, joined by Meyers, Price, Keasler, Hervey, Holcomb and Cochran, J.J. Keller, P.J., concurred in the result. Womack, J., dissented.
[9] OPINION
[10] This is a post-conviction application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc., art. 11.07. Applicant was convicted of possession of methamphetamine, enhanced by two prior felony convictions. Pursuant to a plea agreement, he was sentenced to three years confinement in the Institutional Division of the Texas Department of Criminal Justice ("TDCJ").
[11] Applicant contends that he was approved for release on discretionary mandatory supervision, but was not released on his scheduled date nor was he given prior notice that the Board of Pardons and Paroles ("Board") was reconsidering its decision to release him.
[12] The trial court has provided to this Court findings of fact and conclusions of law with respect to this writ application and has included two affidavits, both from the assistant director of the review and release-processing section of TDCJ's parole division. Those affidavits indicate that applicant was approved for mandatory-supervision release and sent notice on April 9, 2002, that he would be released on his projected release date, July 2, 2002. However, applicant was not released on his scheduled release date because the Board subsequently withdrew its previous approval. The affidavits also state that the department records do not reflect that applicant was notified that the Board was reconsidering his release.
[13] In Ex parte Geiken, 28 S.W.3d 553, 560 (2000), we held that an inmate is entitled to a meaningful opportunity to be heard by the Board before it makes a decision concerning his release. Meaningful opportunity to be heard means that the Board must provide an inmate with prior notice that the inmate is to be considered for mandatory supervision release so that the inmate may then make use of his ability to tender to the Board, or have tendered on his behalf, information in support of release. Id., and Ex parte Shook, 59 S.W.3d 174 (Tex. Crim. App. 2001).
[14] Because the Board, without notice to applicant, reversed its decision to release applicant to mandatory supervision, it denied him the required meaningful opportunity to be heard. Relief is granted. The Board is ordered to reconsider applicant for mandatory release and to provide him with timely notice of when such reconsideration will occur.
[15] En banc
[16] Publish
[1] IN THE COURT OF CRIMINAL APPEALS OF TEXAS
[2] No. 74,642
[3] 109 S.W.3d 510, 2003.TX
[4] July 2, 2003
[5] EX PARTE CHARLES ALBERT BARRY, JR., APPLICANT
[6] ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM TAYLOR COUNTY
[7] The opinion of the court was delivered by: Johnson, J.
[8] Johnson, J., delivered the opinion of the Court, joined by Meyers, Price, Keasler, Hervey, Holcomb and Cochran, J.J. Keller, P.J., concurred in the result. Womack, J., dissented.
[9] OPINION
[10] This is a post-conviction application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc., art. 11.07. Applicant was convicted of possession of methamphetamine, enhanced by two prior felony convictions. Pursuant to a plea agreement, he was sentenced to three years confinement in the Institutional Division of the Texas Department of Criminal Justice ("TDCJ").
[11] Applicant contends that he was approved for release on discretionary mandatory supervision, but was not released on his scheduled date nor was he given prior notice that the Board of Pardons and Paroles ("Board") was reconsidering its decision to release him.
[12] The trial court has provided to this Court findings of fact and conclusions of law with respect to this writ application and has included two affidavits, both from the assistant director of the review and release-processing section of TDCJ's parole division. Those affidavits indicate that applicant was approved for mandatory-supervision release and sent notice on April 9, 2002, that he would be released on his projected release date, July 2, 2002. However, applicant was not released on his scheduled release date because the Board subsequently withdrew its previous approval. The affidavits also state that the department records do not reflect that applicant was notified that the Board was reconsidering his release.
[13] In Ex parte Geiken, 28 S.W.3d 553, 560 (2000), we held that an inmate is entitled to a meaningful opportunity to be heard by the Board before it makes a decision concerning his release. Meaningful opportunity to be heard means that the Board must provide an inmate with prior notice that the inmate is to be considered for mandatory supervision release so that the inmate may then make use of his ability to tender to the Board, or have tendered on his behalf, information in support of release. Id., and Ex parte Shook, 59 S.W.3d 174 (Tex. Crim. App. 2001).
[14] Because the Board, without notice to applicant, reversed its decision to release applicant to mandatory supervision, it denied him the required meaningful opportunity to be heard. Relief is granted. The Board is ordered to reconsider applicant for mandatory release and to provide him with timely notice of when such reconsideration will occur.
[15] En banc
[16] Publish