On March 3, 2004 the Texas Court of Criminal Appeals handed down their second opinion in Ex Parte Thomas Christopher Retzlaff. Retzlaff had complained in successive writs that he failed to receive timely notice of when his case would be voted on for release to Discretionary Mandatory Supervision. He alleged, and the Court agreed, that this failure deprived him of his constitutional right to due process and adversely affected his ability to submit relevant information to the Board on his behalf.

This issue illustrates a continuing dilemma with the decision making process employed by the Board of Pardons and Paroles in both ordinary parole reviews and in DMS (Discretionary Mandatory Supervision) reviews. Parole eligibility dates and Next Review dates for both parole and DMS cases are available and are specified as to month and year of review on the Board minute sheets. However, Board regulations permit the Board to actually vote on cases some months earlier than the date that the offender and family receive notice of. This results in families being caught off guard in the decision making process and often has the Board voting cases with less than complete information.

The decision making process is further complicated by the fact that the Parole Division, not the Parole Board, is the entity that actually notifies offenders of decisions and next review dates. You have probably seen the standardized form which states in part, “Before your projected release date, the Board will review your file and all available records to determine if you will be released.” This notice is vague and ambiguous at best.

The Court in Retzlaff held that notice that a person will be reviewed for release on mandatory supervision at some unspecified time “before his projected release date” does not constitute timely notice consistent with due process. The Court decision is rife with interesting language that has implications far beyond the facts and holdings in this particular case.

First, the Court acknowledges that the Board has great discretion in the regular parole review process because an offender does not have a statutorily vested liberty interest in being released on parole. However, they held that “Under the Texas Government Code, however, a parole panel has much less discretion in denying an inmate release on mandatory supervision. The statute vests a liberty interest in the eligible inmate, and the statutory presumption is slanted toward release. The parole board must justify non-release.”

The Court went further and said that “The two statutory findings that justify non-release are predictive judgments based upon discrete factual conclusions and subjective appraisals.”

The fact that the Court states that the presumption is slanted toward release and that in order to justify non-release the Board must rely upon factual conclusions and subjective appraisals may signify a willingness on the part of the Court to further examine the basis for non-release in case by case situations.

The Court goes on to talk about the importance of “timely notice”. They state that it gives the inmate the “opportunity to provide written input, marshal evidence of his custodial behavior, clarify adverse material in his file (emphasis added), provide letters, references and information concerning possible employment or housing.” The fact that the Court acknowledges the importance of addressing adverse file materials illustrates two important things. One is that the Court is apparently unaware that neither the offender nor counsel has access to such file materials and is therefore precluded from examining and challenging their accuracy but, more importantly, it implies that the ability to do so falls within the constitutionally defined parameters of due process!

The implications of the Court’s decision go further than the facts in Retzlaff and could affect the Board’s review of regular parole cases as well. They hold that “timely notice” is a rudimentary

element of due process, implying that such notice is also required in the non-vested liberty interest area of parole release. Under current Board regulations a case may be voted on for release to parole as early as four months prior to the review date that the offender has notice of. If, as the Court states, “Timely notice, which provides sufficient opportunity to submit relevant, up-to-date information by affected parties, is a rudiment of due process, and it reassures both the individual and society that fair dealing rather than caprice will govern the affairs of men” then no rational distinction can be draw between the process used in the voting of DMS and regular review cases. In fact, the Court quoted from the decision in Greenholtz whose language seems to condemn the early voting practices of the Board. The Supreme Court in Greenholtz noted that the Nebraska parole board provided constitutionally adequate notice because it “informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements”.

The Court of Criminal Appeals held specifically that “an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. We also hold that he must be given at least thirty days advance notice that he will be reviewed in the specific month so that he has a sufficient opportunity to submit materials on his behalf.”

Justice Hervey filed a dissenting opinion objecting to the remedy fashioned by the Court. The Court’s remedy was to order the release of the offender if the Board did not comply with the notice provision. Justice Hervey disagrees with the remedy but the most telling part of her dissent reveals a deep seated disgust with the actions of the Board. Justice Hervey writes that “Instead of putting the public at risk with the early release from prison of dangerous inmates because of the Board’s failure to comply with our orders, the Court should incarcerate the responsible Board officials under its contempt powers until they comply with the Court’s orders.”

This message should ring loudly in the ears of each Board member!

Note: Gary J. Cohen is an attorney whose practice over the last seventeen years has been limited to representing offenders in the parole review process and in parole revocation proceedings. He is the Chair of the Parole and Sentencing section of the Texas Criminal Defense Lawyers Association. He lectures frequently, has qualified as an expert witness in federal courts and has testified before many legislative committees as an expert in this area. He was a principal, along with the SRT group in the reformulation of the parole guidelines. He also, for the last eight years has been invited by the Chair of the Texas Board of Pardons and Paroles to participate in the state wide training of parole revocation hearing officers. He offices in Austin, Texas.

Encouraging Update on the Retzlaff Case – May 19^th New Opinion by the Texas Xourt of Criminal Appeals

On May 19th the Texas Court of Criminal Appeals withdrew their prior opinion in Retzlaff and substituted a new opinion. This was done in response to a Motion for ReHearing filed by the State. Fortunately, the results have not changed. The new Retzlaff opinion is almost identical to the old one and the changed language is not substantive as to the issue of notice. The Court remained firm in recognizing that an offender has a limited due process right to timely notice of the month and year in which he/she will be considered for release to discretionary mandatory supervision.

Most important is the fact that the Court left intact the following language:

"The due process goal in any parole board review is to minimize the risk of erroneous decisions. Thus, the quantum and quality of the process due in a particular situation depends upon the need to serve the purpose of minimizing the risk of error."

"Timely notice to the inmate that he will be reviewed for mandatory release gives him the opportunity to provide written input, marshal evidence of his custodial behavior, clarify adverse material in his file, provide letters, references, and information concerning possible employment or housing."

The Court held that the "timely notice" requirement demanded that the offender be given "at least thirty days advance notice that he will be reviewed in the specified month so that he has a sufficient opportunity to submit materials on his behalf."

Additionally, the Court noted in a footnote that the decision in Ex Parte Shook, 59 S.W. 3d 174 (Tex. Crim. App. 2001) required that when the Board gives notice of a specific date on which the hearing is scheduled to take place that the inmate has until that date to submit relevant information on his behalf.

The decisions in Retzlaff II and in Shook should eliminate the Board practice of voting DMS cases as early as four month prior to the projected release date. Voting on these case should only occur during the month specified and the offender is entitled to at least 30 days notice of when that date is calculated.

The additional language regarding a due process interest in clarifying "adverse material in his file" suggests that the Court was either unaware that no right to examine the offender's file exists, or, that the door may now be opened to further purse and define this very important access. Given the historical reluctance of the Board and the Parole Division to go beyond the exact wording of judicial opinions it will take another writ on this very issue to force change.

To paraphrase the words of Bob Dylan, the times may be a changing!