Monday, December 04, 2017

CCA: Parole board cannot be made to follow statutes

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.


Anonymous said...

It's a fact that we the citizens of Texas are the persons that have to follow the States Rules, No Judges, Prosecuters,or Pro Bonos have to follow any laws.
If they can't follow the rules set up by the states they should be terminated

Steven Michael Seys said...

Whitmire was right when he suggested that the entire parole system ought to be scrapped and replaced from scratch with proper oversight. My only suggestion is to ensure that the replacement is fully worked out before removing the current broken system.

Bill Habern said...

If the CCA is unable to make a realistic decision on this issue, I'll bet I know some federal judges in the Western District, Austin Division, where I have been involved in litigation on several occasions, who have had no difficulty with consistently suggested to the Parole Board had better follow the statutes set out by the legislature. Then those federal judges have proceeded to insure those statutes were followed.


There is a statutory right to be considered for parole, pursuant to the guidelines established by the Board and the legislature. There is no constitutional absolute right to parole. I'm not going into the mandatory supervision quagmire.
The current BPP is much better than it was during the overcrowded, Richards administration, McDuff days of the 80's and early 90's. They are no longer releasing inmates directly from Ad-Seg to fill a quota, and there have been no recent scandals involving convict's family members bribing parole Board members. That may be due to the reduction of political appointments to the Board. They do an adequate job dealing with a difficult and dangerous subject.
Also, Mr. Habern, you have made a very successful career as a parole attorney. Please don't use public blogs for info-mmercials.

Unknown said...

Re:Simpler Fine- I began a 20 year sentence in 1991, day-for-day. First time up for parole in 1996, I got a 3 year set off. Reason: nature of crime. Possibly 80% of the inmates that I talked to got the reason. Just as it had been for many years, I never was able to stand before a parole panel, just a roving parole counselor.I got 7 set-offs for the same reason which defies definition. I saw no changes whatsoever in the parole system between 1991 and 2011. You say it has changed, and maybe suggesting it has,changed for the better? Apparently you have no intimate knowledge of the system from the perspective of being on the inside. They seem to be doing the same thing still, as,I periodically exchange letters with three inmates whom I knew well at my last unit. As for accusing Mr. Habern of an infomercial, I did not have that distorted perception. Mr. Habern is a very good advocate for inmates and donates his time and expertise to a very good advocacy group. He was only stating fact based on his experience with a very corrupt system.

George said...


Seems to me that you are a parole board apologist. Why of course they have a "tough job" but nobody is twisting their arms to take the job, are they now? Would it be too much to ask that they at least follow the statutes of our state? These pompous idiots on our state supreme court that ruled that they don't have to follow the statutes are regressive and expect the citizens to remain living in the past as far as our approach to criminal justice issues are concerned.

As far as your comment concerning Bill Habern goes, I have to agree with Larry Coffin. It's evident you don't know Mr. Habern, because if you did perhaps you wouldn't have commented in such a manner ---- but wait, you probably would have anyway since that's just what some people do. "Please don't use public blogs for showing your ignorance."

Anonymous said...

I agree with Larry Coffin, the Parole Board continues to throw up ''Nature of Crime", to use to deny parole. This is a crock of b.s. The inmate knows the nature of the crime they committed. But if an inmate has served over twenty years, been working over fifteen years and no cases, took classes to improve themselves, they should be paroled!!!!! But it seems all the good things they have done, is not counted as an improvement. This attitude belongs in the stone age. The parole board should be required to educate themselves and come out of the stone age. If they cannot do their jobs, they should be replaced!!!! I am ashamed of Texas!!!!

Anonymous said...

The Parole Board is nothing but political appointees! They are also very corrupt too. There is no rhyme or reason to who or when they release someone. Nothing but double standards. How about this? They rubber stamp 99% of those parole files because they simple don't read them. Their after parole programs (Gateway, SAPF) are nothing more than to put money in companies pockets and end up costing the families more money. Tough job? Hardly! Paid for doing very little? Sure. How about the ones who get the appointments in state agencies after making a 55k political donation? Look no further than the last Head honcho over TCJB.

Anonymous said...

@Larry Coffin — I find you not mentioning what you were convicted for in 1991 to be telling. I can see a situation where you are required to serve a 20 year sentence day-for-day for a serious crime. I can also see a situation in which you are appropriately denied parole for the nature of your crime throughout your entire sentence. Since you don’t provide much info other than being denied parole on a 20 year sentence, I’m surprised commenters appear to be siding with you regarding your parole denials.

Plus, you mention that the parole system is corrupt. Please tell me how the parole board is corrupt — is someone taking bribes or doing something else illegal to deny your parole? Or does the fact that you were completely denied parole on a 20 year sentence automatically render the system corrupt? Not justifying the parole system or the parole board, but this is the system we have until we have a new one.

@Habern — if you feel you can do some good for Morris Johnson in the federal courts, maybe you should take up his cause and make a bigger name for yourself. Not saying you can or can’t, but it’s all very easy to say what you said from the sidelines.

I tend to think that you aren’t interested because, as GFB states, Morris’s case is complicated due to the number and types of his sentences. This case is not a surefire winner in federal court. Plus, the legal authority cited by Judge Keller about habeas not being available for statutory violations is well established precedent. While I’m not a CCA apologist, the reasoning in Morris is sound.

Steven Michael Seys said...

Let's get an anecdotal account with all the facts. In 1984, my wife was murdered by a team of serial killers in the DFW mid cities area. With the use of perjury and conjecture, and the suppression of the facts of the case, I was convicted and sentenced to 99 years for a crime that I am a co-victim of. I became eligible for parole in 2004, and every set-off I received bore the same multiple choice paragraphs of excuses to reject my release. Finally, on November 17, 2016, the parole board voted to release me. The change in the board came about in the period from 2013 to 2015. Now there is at least some people being released who are not a threat to the public and have served over a third of their extremely long sentences. If it's merely cleaning house to get rid of the folks convicted before September 1987, or real change I can't say. Only there is a difference now.