Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: The constitutional issue presented in this writ application is whether notice that a person will be reviewed for release on mandatory supervision at some unspecified time “before [his] projected release date” constitutes timely notice consistent with due process. The habeas applicant claims that he “was denied a meaningful opportunity to be heard when the Parole Board conducted a hearing in [his] case on a date for which [he] had not been given notice.” He argues that the “ambiguous, vague” notice that he received on March 7, 2002, was “was just as defective” as the notice he received in 2001 (after which this court granted the applicant “what this court thought was the appropriate relief � another hearing with sufficient advance notice of its timing so that he would have an opportunity to submit relevant information to the Board of Pardons and Paroles before it made a decision”), and that the board therefore violated his right to due process under the Fifth and 14th Amendments. HOLDING: Granted. Given an inmate’s vested liberty interest set out in the mandatory supervision statute, the court concludes that written notice that an inmate will be reviewed at some unspecified time in the future, coupled with a request that he submit relevant materials “as soon as possible,” is constitutionally deficient notice. It fails to specify any relevant time frame, and it is so vague that it poses an unacceptable risk of adversely affecting an inmate. With this type of notice, an inmate could be reviewed the day after the notice was sent and therefore his materials could not be submitted in time, or he could be reviewed in 10 to 12 months, in which case his materials may be entirely out-of-date. This notice is, from a constitutional due process standpoint, the same as no notice at all. Following the U.S. Supreme Court’s reasoning in Greenholtz v. Inmates of the Nebraska Penal & Correction Complex, 442 U.S. 1 (1979), the court holds that, in the normal case, an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. The court also holds that he must be given at least 30 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. Given the repeated failures to provide adequate and timely notice to this particular applicant, the court concludes that applicant is entitled to the specific habeas corpus relief that he has requested � a new review “as soon as possible.” Because the mandatory supervision statute requires release unless a parole panel makes specific findings, the court finds that the applicant’s continued incarceration is illegal and unconstitutional unless, within 60 days, a parole panel has given him timely notice of a review to be held before the 59th day and has provided him at least 30 days to submit whatever explanatory material he wishes the panel to consider. The onus is on a parole panel to invoke the review process and make its findings, not on the eligible inmate to request a review. Without a parole panel’s two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, the Texas Department of Criminal Justice-CID must release an eligible inmate to mandatory supervision. OPINION: Cochran, J.; Meyers, Price, Womack, Johnson and Holcomb, JJ., join. DISSENT: Keller, P.J., filed a dissenting opinion in which Keasler, J., joined. “The State’s motion for rehearing highlights several problems with the Court’s original opinion: (1) TDCJ, not the parole board, releases offenders, (2) TDCJ, not the parole board, notifies offenders of their review date, (3) it is not always practical to specify a particular month or date for review because release dates sometimes fluctuate, and (4) thirty days notice is not always practical because some inmates have already approached the release date or will do so in less than thirty days. The Court’s revised opinion remedies the first concern, and addresses but does not entirely resolve the third concern. It does not address the second and fourth concerns.” DISSENT: Hervey, J., filed a dissenting opinion in which Keasler, J., joined. “The Court has apparently decided that it will provide the extreme remedy of applicant’s early release from prison (even though a parole panel has determined that this would endanger the public) if the parole panel does not meet the Court’s extra-statutory and arbitrary deadline for reviewing applicant for mandatory supervision release after “timely notice’ to applicant. All of this ignores the ultimate due process question and has the very real potential of putting the security of the public at risk. I must, therefore, respectfully dissent to this particular exercise of the judicial power.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.