New costs likely for jails, state from TDCJ's 'flagrant' violation of constitutional law

For the second time this month, the Texas Court of Criminal Appeals has told the Department of Criminal Justice and the Board of Pardons and Paroles to begin holding a lot more hearings to provide parolees due process, decisions which come with a high financial price-tag that's accounted for in neither the House nor Senate budgets.

Earlier, the CCA ruled that the Board of Pardons and Paroles couldn't apply sex-offender registration conditions ("Special Condition X," in the parlance) without a hearing when the offender hadn't been convicted of a sex offense. Nearly 7,000 parolees are affected by that one. Now, we learn from Liberty and Justice for Y'all of an important new case that, even though the defendant's habeas writ was denied, will almost certainly, radically change how TDCJ handles parole revocations, requiring preliminary hearings mandated by the US Supreme Court that the agency had been skipping because of convenience, funding, and a desire to help out prosecutors.

In Ex Parte Bohannan, the CCA denied relief because TDCJ belatedly held a "preliminary hearing" in order to moot the parolee's due process claim. The CCA agreed it was moot for him, but a concurring opinion (pdf) by Judge Michael Keasler, signed by three other judges, declared in the strongest possible language that the failure to provide preliminary hearings "violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law."

TDCJ filed an amicus brief in which it said there is "no reasonable expectation" that they'll anytime soon begin to hold such hearings, to which the concurrence said, "This is patently unacceptable. And if [TDCJ] 'reasonably expects' to continue this policy, it does so at its peril."  Extraordinary!

The concurrence even offered legal advice to parolees seeking relief in the future, declaring that while a habeas corpus writ "does not provide an adequate remedy at law ... to compel the Board to comply with its ministerial duty," a "mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed."

So if TDCJ complies with the advice from concurring CCA judges, or if the CCA later acts on a mandamus motion, the practical result will be that the state must hold many more hearings than in the past, and since the CCA is interpreting a US Supreme Court ruling, the Legislature can't pass a law getting around it. Moreover, counties would face an additional burden from offenders with "blue warrants" languishing in jail waiting for TDCJ to process them.

Complying with the opinion would have at least two major consequences. TDCJ would need to hold thousands of preliminary hearings that would've been skipped for alleged parole violators. And counties must hold parolees in jail longer while they await those hearings. Currently, parolees who receive preliminary hearings prior to revocation spend an average of 13 additional days in county jail compared to cases with only a revocation hearing, according to the 2009 annual report (pdf) of the Board of Pardons and Paroles.

The Houston Chronicle reported in December, "Each month, an average of 2,286 state parole violators are housed in Texas jails, a policy costing taxpayers at least $42 million a year. Harris County has the largest tab — estimated at $7.6 million." I'll guarantee that if parolees on blue warrants are each in jail an average of 13 additional days, you'll soon hear counties wailing like scalded cats when they realize the implications.

The opinion argues strongly for the Lege to pass pending legislation to let parolees jailed on blue warrants out on bail, a bill that Gov. Perry vetoed in 2007. It also argues for the state to reduce the number of technical parole revocations, since they'll now cost more for both the state and counties than in the past. TDCJ isn't prepared to handle all these additional hearings and the Lege hasn't budgeted for them.

That said, maybe it's not right to frame this opinion as placing an "additional" burden on TDCJ or the counties, because really they had that burden all the time and just weren't carrying their full weight. The state has been skating on parolees' rights in the name of cost and convenience for many years, with state courts going along to get along. So it's rather startling to see the CCA finally focused on parolee due process questions. They're opening a can of worms that won't close any time soon.