Clifford v. Beto

• Decision Date: 17 August 1972
• Docket Number: No. 71-3101.,71-3101.
• Citation: 464 F.2d 1191
• Parties: William Bond CLIFFORD, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 1191 (1972)

William Bond CLIFFORD, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.

No. 71-3101.

United States Court of Appeals, Fifth Circuit.

August 17, 1972.

Crawford C. Martin, Atty. Gen. of Tex., Howard M. Fender, Clyde A. Whiteside, Austin, Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Walter P. Wolfram, Amarillo, Tex., for petitioner-appellee.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an appeal from the granting of an application for a writ of habeas corpus and the subsequent entry of an order requiring that petitioner-appellee be released on parole from the Texas State Penitentiary. The trial court found that appellee had been formally paroled by the completed acts of certain state officials and that the state's subsequent refusal to release him without fully disclosing its reasons amounted to a revocation of parole that was violative of appellee's right to procedural due process. We agree with appellant that the activities of the state officials did not constitute the granting of parole and that continuing appellee's incarceration was thus wholly proper, and we reverse.

The facts of this case are basically undisputed, but the chronology of events here involved is of sufficient importance to warrant our setting it out in some detail. Petitioner-appellee, William Bond Clifford, was convicted by a jury in state district court of assault with intent to commit murder with malice and was sentenced to serve an indefinite term in the state penitentiary of not less than two nor more than twelve years. His conviction was affirmed by the Texas Court of Criminal Appeals, Clifford v. State, 424 S.W.2d 233 (Tex.Cr.App. 1968), and the validity of that conviction is not before us.

Appellee began serving his sentence on March 8, 1968. On March 16, 1970, the process of obtaining his release on parole was begun when a one-page "Parole Summary" was prepared on his behalf for presentation to the Texas Board of Pardons and Paroles. Various trial officials were notified of the pendency of parole, in accordance with Texas law. On April 14, 1970, the Board reviewed the file and initialed the Parole Summary under the heading, "PAROLE SUBJECT TO APPROVED RELEASE PLAN." On April 24, 1970, the Governor of Texas signed the Parole Summary under the heading, "APPROVED." On April 28, 1970, the Board set a parole release date of June 2, 1970. On April 29, 1970, a district parole officer was sent a request to prepare a "Preparole Investigation Field Report," which he submitted on April 30, 1970, and which his area supervisor approved. On May 8, 1970, the Board, without notifying Clifford, who had already been sent to the pre-release center operated by the Texas Department of Corrections, withdrew its recommendation, stamped the Parole Summary "WITHDRAWN BY BOARD," and notified the Governor's office of its action. Appellee was thereafter denied release on parole.

After unsuccessfully seeking post-conviction relief from the state courts, appellee filed an application for a writ of habeas corpus in the United States District Court for the Northern District of Texas. The court below held on these facts that parole had formally been granted and that the action of the Board on May 8, 1970, was therefore tantamount to a revocation of parole. Ruling that this "revocation" must meet both constitutional standards of procedural due process and state statutory standards, the trial court ordered appellee released on parole unless the Board of Pardons and Paroles afforded him a hearing at which the Board would disclose its reasons for its action. The Board did conduct a hearing, but asserting a need for confidentiality, it refused to reveal to appellee some of the information it had used in deciding to withdraw its approval of parole. The trial court found that this withholding of information denied appellee an effective hearing and ordered his release on parole.

The crucial issue in this appeal is the threshold issue of whether appellee had been granted a parole that was later summarily revoked, or whether the process of obtaining parole simply never reached fruition. To resolve this issue it is necessary to understand the typical procedural path that leads to release on parole in Texas. The basic roadmaps include the Texas Constitution, art. IV, § 11, Vernon's Ann.St., the Texas Adult Probation and Parole Law, Vernon's Tex. Code Crim.Proc.Ann. art. 42.12, and regulations adopted by the Board of Pardons and Paroles pursuant to a legislative grant of rulemaking power, id. § 15 (d). In essence the Texas scheme typically charts a course that passes through each of the following steps, which are either specifically authorized by article 42.12 or formally or informally applied by the Board to all parole cases: (1) preparation of a Parole Summary § 15 (b) and (c); (2) notification of the pendency of parole to specified officials in the county where the prisoner was convicted § 15(e); (3) Board action approving continuation of the parole process, indicated by initialing the Parole Summary § 15(a) and (c); (4) Governor's approval, indicated by signing the Parole Summary § 15(a); (5) completion of preparole investigation, including field reports §§ 15(a) and (b), and 16; (6) determination of conditions to be attached to release on parole and affixing of those conditions on the Certificate of Parole §§ 12 and 15(d); (7) execution by both the Board of Pardons and Paroles and the prisoner of an agreement on the Certificate of Parole accepting the conditional release of the parolee; and (8) physical release from prison.

In the instant case, appellee never reached his intended destination, step (8), because the Board refused to allow him to accomplish step (7). At some point before the parole agreement was executed his journey was brought to an abrupt halt for reasons not fully disclosed to him. The dispositive question on appeal is one of determining at which step in the parole process a prisoner can be said to have been "paroled."

Appellee urges that "parole" occurs when the Governor indicates his approval by signing the Parole Summary sheet. To support this conclusion appellee refers us to the language of the Texas Constitution and certain statutes. Article IV, section 11 of the Texas Constitution gives the Governor power upon the recommendation of the Board to grant reprieves, commutations of punishment, and pardons, to remit fines and forfeitures, and to revoke paroles and conditional pardons. Although the Governor is nowhere given the express power to parole prisoners, the power to grant pardons has been held to include the power to grant paroles, which are classified in Texas as conditional pardons. Ex parte LeFors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 (1957); Ex parte Rice, 72 Tex.Cr.R. 587, 162 S.W. 891 (1914). But determining that the Governor has power to grant a parole does not lead ipso facto to the conclusion that the Governor's signature on a Parole Summary form in the space marked "APPROVED" is a full exercise of that power. The statutes also must be examined to determine when a parole actually becomes effective, for the Texas Constitution, art. IV, § 11, specifically provides that the legislature shall have the authority to enact parole laws.

Appellee relies principally upon article 42.12, section 15(a), which provides that "All paroles shall issue upon order of the Board, duly adopted and approved by the Governor." Appellee argues that use of the words "shall issue" conclusively demonstrates that the Governor's signature indicating his approval is the final step in the parole process and that execution by the prisoner of the agreement to accept the conditions attached to his release is merely a ministerial matter having no bearing on the consummation of the parole...