Constitutional and Statutory Rights for release on Discretionary Mandatory Supervision in Texas

 Posted on January 09, 2020 in Parole

I’m writing a series of blog posts on what constitutional rights you have, or don’t have, during the parole review process.

In my first article, I explained why inmates have no constitutional protection during normal parole review.

In this post, I focus on another type of statute-based parole review called discretionary mandatory release, which is controlled by Texas Government Code Section 508.149. Part (a) of the statute explains which inmates are eligible for mandatory release. See my post here for more information on eligibility. Part (b) provides a framework for parole boards to use when deciding if an inmate should be released to mandatory supervision.

Additionally, section 508.149 creates two parallel sets of rights for all eligible inmates, one set based on fundamental due process protections, and the second based on statute-based procedural guarantees for subsequent reviews if an inmate is initially denied release.

1. Constitutional Rights

Texas used to have a mandatory release law for inmates. It was colloquially known as “short way.” But after 1996, the Texas Legislature passed a new law requiring parole boards to consider the following two factors before releasing an inmate under “mandatory release:” (1) whether an inmate’s accrued good conduct time is not an accurate indicator of rehabilitation and (2) if the inmate’s release would endanger the public.

The Texas Court of Criminal Appeals ruled that the post-1996 law created a due process right by requiring the parole board to consider the two factors described above. See Ex Parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004).

In Retzlaff, the issue was one of fair notice. Retzlaff had to file two writ applications to get the Board of Pardons and Paroles (BPP) to meet minimum due process standards. During his first review, BPP told Retzlaff that he would be reviewed for discretionary mandatory release by a certain date, but then voted two weeks prior to that date. The Court of Criminal Appeals held that the BPP had to provide sufficient advance notice of when they would vote. But in a classic case of trying to get by with minimal bureaucratic change, the BPP simply told Retzlaff during his next discretionary mandatory review that he should submit his paperwork “as soon as possible.” They didn’t vote until more than 10 months later.

Retzlaff again challenged BPP with a writ, forcing the Court of Criminal Appeals to not just rule incrementally in his favor, but provide a more complete due process framework for Texas Parole Boards, which is as follows:

1. Provide the defendant notice of the specific month and year of his projected release under discretionary mandatory supervision; and
2. issue this notice at least 30 days in advance of the decision month to give an inmate sufficient time to prepare whatever materials he has for the board.

These protections aren’t great, but they are in line with Supreme Court rulings on the minimal due process required under such statutes.

2. Statutory Rights and Protections

The mandatory release statute also creates a second set of procedural rights for inmates who qualify for discretionary mandatory release. Any inmate who qualifies for consideration for release under this statute gets three chances in front of the parole board. So, if the board denies release to the inmate under authority of Section 508.149(b), it must, within two years, give the inmate two more opportunities to convince them that his time served and good conduct time show that he has been rehabilitated and that his release will not endanger society.

Importantly, for each subsequent consideration for release to discretionary mandatory supervision, the inmate has the same set of due process rights – at least 30 day’s notice of the specific month in which the board will consider release. See Ex Parte Hill, 208 S.W.3d 462 (Tex. Crim. App. 2006).

In summary, an inmate’s constitutional right to reasonable notice applies to all Texas parole board discretionary mandatory release decisions, and an inmate gets three total chances for a release vote.