Inside the belly of the beast: Your Constitutional Rights during Texas Parole Review

 Posted on December 22, 2019 in Parole

This is the first of a series of blogs I intend to right about what rights, if any, you get during various phases of the parole process.

This particular article focus on an inmate’s first contact with the Texas Board of Pardons and Parole – the initial parole review.

1. The Rights You Lose Along the Way

Most attorneys and even most of their clients have a general familiarity with what rights the United States Constitution affords them during a traffic stop, investigation, arrest, plea, or trial. We’ve all heard of the right to remain silent, the right to have an attorney, and the right to confront the witnesses the State wants to call against you.

But after you’ve been convicted, you lose most of the those rights.

There’s an obvious reason why: either you’ve actively waived your rights pursuant to a plea agreement, or you used your rights during a jury trial and lost. You’re an inmate, a probationer, or a felon . Your rights have been expended, and now you’re in the belly of the beast — the Texas prison system.

Sounds dramatic. But for a convicted person, it is that dramatic. Their goal now is to serve the time without too much trouble and get out as soon as possible.

2. The First Step Towards Release – The Parole Letter

For most inmates, that letter letting them know they are in the parole review process comes surprisingly fast. Once they’ve got a parole review date, they start focusing on a game plan. But they’re worried, because even though there’s a review date on that letter, there’s also a disclaimer: the parole board can potentially vote at any time during the review process.

That disclaimer causes serious stress. You mean the board could vote like right now even though the official review date is six to four months away?!? How can I possibly be ready for the board?

The next thought almost any inmate (and their family) has is, what rights do I have during the process? All the familiar rights have come and gone . . . is there anything left to protect me as I get ready for my review?

3. Because Texas Parole Review is Discretionary, No Due Process Rights Attach

If you’re serving a prison sentence, you don’t have a constitutional liberty interest in early release. That means you can’t claim your “due process” rights were violated during normal parole review.

In Greenholtz v. Nebraska, 89 S. Ct. 2100 (1978), the Supreme Court held that a State can create a liberty interest if they pass a parole review statute that gives inmates a reasonable expectation of release. The key to figuring out if a statute creates such an expectation is to look for magic words such as “shall,” as in the board shall release an inmate to parole when he has served 50% percent of his sentence (that’s not the law in Texas, just a hypothetical example).

An inmate retains an expectation of release even if a statute adds exceptions or conditions, such as a person shall be released except if his conduct while incarcerated indicates he has violent tendencies, etc.

But normal Texas parole review is entirely discretionary (I’ll talk about a different procedural mechanism for parole release in Texas, called discretionary mandatory supervision, in a later post). There’s no magic “shall” type words to give inmates a reasonable hope to be on the street. In Texas, it’s clear that the parole board has full discretion on who goes and who stays. So during you review you don’t get any due process rights.

What does this mean, practically speaking?

First, the Board of Pardons and Parole has no obligation to provide you specific notice of when the board will vote. So, yes, even though your parole review notice letter provides a date, the board can really vote on your release at any time prior to that date. It doesn’t matter if this is fair or not — the board can do what it wants.

Second, you don’t have a right to be heard. Technically, the Board could vote on your release without providing you any opportunity to present arguments or evidence. Fortunately, the Board does allow you to submit a packet or other evidence. But it’s up to you to get the board favorable information as soon as possible! The board can vote before you’ve had a chance to get that nice letter from your mom you’ve been waiting for. And if they do vote early, you have no recourse (a few rare exceptions apply that are outside the scope of this post).

With no due process protections to rely on, your parole strategy must be aggressive, preemptory, and smart. What does that mean? It means having documents in front of the voting board as soon as possible. It also means thinking way outside the box of the normal boring parole packet. It means finding out how Texas assess your risk to society, and countering that assessment with specific information to alleviate the board’s (often misguided) concerns.

Talk to a good parole attorney to learn more about what any potential parolee should do to increase their odds of release.