Due Process in Probation Revocation Hearings

21 Feb Due Process in Probation Revocation Hearings

Texas prosecutors continue to assert that probation revocation proceedings are administrative in nature, and that therefore a defendant facing a probation revocation proceeding has only the rights required by due process. At the outset, it is essential to realize that the Court of Criminal Appeals of Texas explicitly held in Ex Parte Doan that these are not administrative proceedings. 369 S.W.3d 205, 212 (Tex. Crim. App. 2012).

As a result, any suggestion that probation revocation proceedings are administrative proceedings is simply incorrect as a matter of law.

However, Texas courts, including the Court of Criminal Appeals, hasten to note that this does not mean that a defendant in such a proceeding is entitled to all the procedural protections afforded to a defendant in a criminal prosecution. In fact, when these courts then consider what procedural protections are required in probation revocation proceedings, they rely on cases interpreting the requirements of due process.

There are two problems with this approach. First, it diminishes the distinction in cases like Doan between administrative proceedings and whatever probation revocation hearings are because, apparently, due process is all that is necessary in either type.

Second, and more importantly, Texas courts, including the Court of Criminal Appeals in Doan, misunderstand what due process requires. Put more specifically, they misunderstand the analysis that must be done in such hearings, whether they are administrative or not.

The problem is that Texas courts appear to be relying on the due process analysis of cases like Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). In 1976, however, the U.S. Supreme Court decided Mathews v. Eldridge, 424 U.S. 319, which supplied a new type of analysis for deciding what sort of procedures due process requires. True, the Court of Criminal Appeals has also relied on Vincent v. Texas, 449 U.S. 199 (1980), for instruction on due process requirements, but to rely on a per curiam opinion dismissing an appeal for want of a federal question is to read far too much into that case. Scarpelli and Morrissey were criminal cases, and Mathews was not, and perhaps that is why Texas courts have missed (or ignored) Mathews. Yet Scarpelli and Morrissey themselves relied on prior civil cases interpreting procedural due process—cases that were modified if not overruled by Mathews.

Thus, reliance on Scarpelli and Morrissey to provide the standard for procedural due process in criminal proceedings is in error.

Mathews introduced a three-part test for determining whether a particular proceeding depriving a person of life, liberty, or property complies with due process. In order to determine whether a particular procedural protection is required, a court must consider “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” What, then, does this mean in the context of criminal procedure?

To take one example, consider what the analysis would be if the question were whether due process requires confrontation of adverse witnesses at a probation revocation proceeding. The private interest at stake in a probation revocation proceeding is liberty, which would be a very strong interest compared with the types of interests usually considered in civil procedural due process cases. Second, because confrontation is particularly important to the truth-finding function, the probable value of this particular additional procedural protection would he high. Finally, allowing the defendant to confront adverse witnesses would add little to no fiscal or administrative cost to the proceeding, so the Government interest in this case would be, at worst, neutral. As a result, the Mathews balancing test would indicate that due process requires the right to confront adverse witnesses at a probation revocation hearing, which is consistent with Morrissey’s earlier observation that due process usually requires confrontation in similar (parole) circumstances.

It is likely that we would come to a similar conclusion about a whole host of criminal procedural protections. The question, then, is why Texas courts never analyze these issues under Mathews.