Ex Parte MacEyra

690 S.W.2d 572, 1983 Tex. Crim. App. LEXIS 1281

Opinions

OPINION

W.C. DAVIS, Judge.

The applicant in this habeas corpus proceeding contends he is awaiting the results of an appeal in the wrong place. We agree.

Applicant was convicted of theft, and his punishment assessed at 10 years’ confinement. Prior to his filing of a timely notice of appeal he was transferred to the custody of the Department of Corrections (TDC).

While applicant was in the custody of TDC, the Governor revoked his parole on a previous conviction, upon the recommendation of the Board of Pardons and Paroles (the Board), and based upon the conviction for theft, but without the provision to applicant of notice by, or an opportunity to appear before, the Board.

It is uncontroverted that, without the revocation of applicant’s parole, his incarceration at TDC would be without authorization. See Art. 42.09, V.A.C.C.P., § 4. Applicant contends that the actions of the Governor and the Board in revoking his parole were in violation of his right to due process, and that he is therefore entitled to await the outcome of his appeal in the custody of the sheriff of Lampasas County or to be released on bail pending appeal.

We need not reach applicant’s due process contention, because we find the Board was without statutory authority in proceeding with the revocation of applicant’s parole without providing applicant with an opportunity to be heard.

Art. 42.12, V.A.C.C.P., § 22 provides in pertinent part:

“Whenever a prisoner or a person granted a conditional pardon is accused of a violation of his parole, mandatory supervision, or conditional pardon on information and complaint by a law enforcement officer or parole officer, he shall be entitled to be heard on such charges before the Board or its designee under such rules and regulations as the Board may adopt....” (Emphasis added)

Although the Board has promulgated rules pursuant to Art. 42.12, which rules purport to eliminate the right to be heard before the Board for those persons convicted of felonies while on parole, such rules may not subvert the statutorily granted right to be heard. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

We hold that the order purporting to revoke applicant’s parole is void. Applicant is therefore improperly in the custody of TDC, and is remanded to the custody of the sheriff of Lampasas County to await the outcome of his appeal.