292 S.E.2d 650 (W.Va. 1982), 15509, Rowe v. W.Va. Dept. of Corrections

Docket Nº:15509.
Citation:292 S.E.2d 650, 170 W.Va. 230
Party Name:Frank L. ROWE v. W. VA. DEPT. OF CORRECTIONS, W. Joseph McCoy, Commr.
Attorney:Charles R. Garten, Jr., Charleston, for petitioner., Jerry Dove, Asst. Atty. Gen., Charleston, for respondents.
Case Date:June 23, 1982
Court:Supreme Court of Appeals of West Virginia

Page 650

292 S.E.2d 650 (W.Va. 1982)

170 W.Va. 230

Frank L. ROWE


W. VA. DEPT. OF CORRECTIONS, W. Joseph McCoy, Commr.

No. 15509.

Supreme Court of Appeals of West Virginia.

June 23, 1982

[170 W.Va. 231] Syllabus by the Court

1. W.Va.Code, 62-13-2(d) (1965), expressly states that the final determination as to release of prisoners on parole is vested in the Board of Probation and Parole. This provision reinforces the language in W.Va.Code, 62-12-13, relating to the authority of the Board to grant parole.

2. The Parole Board's regulation, by requiring the Commissioner of Corrections' approval of the parolee's release plan as a condition subsequent to obtaining release on parole, has in effect delegated the ultimate decision as to release on parole to the Commissioner of Corrections.

3. It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority.

Page 651

Charles R. Garten, Jr., Charleston, for petitioner.

Jerry Dove, Asst. Atty. Gen., Charleston, for respondents.

MILLER, Chief Justice:

The petitioner, Frank L. Rowe, seeks a writ of habeas corpus, contending that he is being illegally confined by the Commissioner of Corrections (Commissioner), who has refused to release him, even though he has been granted a parole by the West Virginia Board of Parole (Board). The Commissioner's refusal is based on the fact that Rowe has not submitted an acceptable plan or program for release on parole. This case requires us to consider the validity of a regulation promulgated by the Board that conditions a prisoner's subsequent release on parole upon the development of a program for release acceptable to the Director of the Division of Correction, now the Commissioner of the Department of Corrections. 1

Rowe contends that the regulation is invalid because it conflicts with clear statutory language giving the Board sole discretion to grant or deny parole. Finding merit to Rowe's contention, we grant the writ of habeas corpus as moulded and remand the case to the Board for further proceedings.


The facts are not in dispute. Rowe was granted a parole on August 5, 1981, but he has not been released from custody because he has been unable to suggest a release plan acceptable to the Commissioner of Corrections. Pursuant to a regulation promulgated by the Board effective August 1, 1971, 2 Rowe was required, after parole had been granted by the Board, to suggest a parole program for approval by the Commissioner. Without such approval, the Board, under the regulations, will not execute an order of release. 3

[170 W.Va. 232] Seeking to comply with the requirements of the regulation, Rowe apparently proposed a plan that upon his release he would live with his wife who resides in Belpre, Ohio. This plan was rejected after an investigation was conducted and his wife expressed an unwillingness to have him in her home, believing that her life would be in danger and that he could not contribute any help to his sons or to her family. 4 Rowe

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subsequently proposed a plan calling for his release to the Veteran's Administration Hospital in Martinsburg, West Virginia. This plan was also rejected because the hospital is an evaluation center with a maximum stay period of eleven days.

Following the rejection of his two proposed plans for release, Rowe was advised by memorandum dated September 25, 1981, to submit a new plan. Rowe has not suggested an additional plan and remains incarcerated in the West Virginia State Penitentiary at Moundsville.


We believe the Legislature's enactments clearly manifest an intent to vest the Board with the exclusive authority to determine whether to release a prisoner on parole. As a point of departure, we observe that the Legislature gave the Board the authority to release prisoners on parole by the enactment of W.Va.Code, 62-12-13 (1955):5

"The board of probation and parole, whenever it shall be of the opinion that the best interests of the State and of the prisoner will be subserved thereby, and subject to the limitations hereinafter...

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