State ex rel. Shriver v. Stoker

640 S.W.2d 549, 1982 Tenn. LEXIS 358

• Court: Tennessee Supreme Court
• Decided: October 25, 1982
• Status: Published

Opinions

OPINION

HARBISON, Chief Justice.

This action was commenced as a petition for writ of mandamus against the Acting Director of Paroles to require him to issue a revocation warrant pursuant to T.C.A. § 40-3617. The parole officer at whose instance the action was brought testified that he knew that his request for a revocation warrant did not comply with the policies and guidelines of the Board of Paroles. Nevertheless it has been his insistence throughout the litigation that the Director was required to issue a revocation warrant upon request of the parole officer, whether or not that request complied with the policies of the Board or reflected anything other than the parole officer’s own subjective conclusion that a warrant was justified. The Chancellor held that the writ of mandamus would not lie under these circumstances. We are of the opinion that his conclusion was correct and that his judgment, which was in part reversed by the Court of Appeals, should be reinstated.

Insofar as we can tell from the very brief record, no question was made at trial as to the validity of the guidelines or policies of the Board. Certainly no evidence as to defective adoption or promulgation has been preserved for review. Neither the pleadings nor the summary of oral testimony which was supplied for the record on appeal, under stipulation of counsel that it contained all of the evidence relevant to the issues, make any reference to alleged invalidity of the Board’s policies or guidelines.¹

The sole reliance of appellant throughout the litigation has been» upon the word “shall” appearing in T.C.A. § 40-3617 as follows:

“If the parole officer having charge of a paroled prisoner shall have reasonable cause to believe that such prisoner has violated the conditions of his parole in an important respect, the parole officer shall report such facts to the director of paroles, who thereupon shall issue a warrant for the retaking of such prisoner and his return to the designated state prison.”

Appellant concedes that it is the prerogative of the Board to define violation of the conditions of parole “in an important respect.” The parole order in this case and any conditions which it contained were not introduced into evidence and are unknown to us.² If the officer made any written report in this case, it also has not been filed. Only a brief summary of his trial testimony has been included in the record.

The statute uses the term “reasonable” which ordinarily refers to an objective, rather than a subjective, standard. It requires that the parole officer report the facts which he has obtained to his superior, who is expressly required to supervise his work under other provisions of the relevant statutes, T.C.A. § 40-3605(a)(4).

It is nevertheless the insistence of appellant that the Director has no discretion upon receiving a written report from a parole officer to determine whether or not the parole officer’s conclusions are or are not “reasonable,” whether the facts presented do or do not show “reasonable cause” to believe that a violation “in an important respect” has occurred, or to evaluate the report in light of the Board’s established policies concerning parole revocation.³ This seems to us to be contrary to the entire spirit and purpose of the statutes. In our opinion, only if the Director approves the report of the officer is he required to issue the warrant and set in motion the revocation machinery. The statute makes it clear that it is the Director, not the parole officer, who “shall” issue the warrant, and this only after receipt of the facts from the officer whom it is his duty to supervise.

The issuance of a revocation warrant involves the arrest and re-incarceration of the prisoner. It sets in motion a series of procedures including a preliminary hearing and a revocation hearing. T.C.A. §§ 40-3618 and 3619. It seems to us that the Director of Paroles must have discretion to review the reports of his subordinates, to evaluate them and to determine whether the significant step of issuing a warrant is justified upon the information obtained by the parole officer.

The judgment of the Court of Appeals is reversed. That of the Chancellor is affirmed and the cause is dismissed. All costs are taxed to appellant.

COOPER and BROCK, JJ., and HUM-PHREYS, Special Justice, concur. DROWOTA, J., files dissenting opinion.

1 . At oral argument in this Court, counsel for appellant stated that he did not contend that the policies in question were invalid or beyond the authority of the Board. He stated that this was immaterial to the position of appellant.

2 . See T.C.A. § 40-3614.

3 . Under the guidelines quoted in the record, generally a warrant was issued in cases of “new charges” only upon conviction of the parolee, except for fugitives, Class X felons and habitual criminals. None of those exceptions applied to this case,, nor has the prisoner ever been tried for or convicted of any subsequent offense according to statements of counsel. See generally T.C.A. § 40-3620 regarding revocation upon conviction.