Hearings on Parole Violations — Appointment of Counsel for Indigents
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When the director of probation and parole issues a warrant for the retaking of a parolee pursuant to § 40-28-607, the board is charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to the violation. After being notified that a warrant has been executed and a probable cause hearing has been held or waived, the board shall, as soon as practicable, hold a parole revocation hearing and consider the case of the parole violator, who shall be given an opportunity to appear personally before a board member or hearing officer and explain the charges made. A probable cause hearing shall not be necessary if a parole revocation hearing is held within fourteen (14) days of the service of the warrant.
A laboratory report regarding a parolee's drug test may be admissible in any parole revocation proceeding, even though the laboratory technician who performed the test is not present to testify, when accompanied by an affidavit containing at least the following information:
The identity of the certifying technician;
A statement of qualifications from the certifying technician;
A specific description of the testing methodology;
A statement that the method of testing was the most accurate test for this particular drug;
A certification that the results were reliable and accurate;
A declaration that all established procedures and protocols were followed; and
A statement of acknowledgment that submission of false information in the affidavit may subject the affiant to prosecution for the criminal offense of perjury pursuant to § 39-16-702.
The board shall, within a reasonable time, act upon the charges, and may, if it sees fit, require the prisoner to serve out in prison the balance of the maximum term for which the prisoner was originally sentenced, calculated from the date of delinquency or such part thereof, as it may determine, or impose the punishment as it deems proper, subject to § 40-28-123.
At a revocation hearing for a prisoner paroled from a department of correction facility, the board may also, in conjunction with revocation of the prisoner's parole for reasons other than the commission of a new felony offense, reparole the prisoner effective upon the department's certification that the prisoner has successfully completed a diversion program established by the department of correction pursuant to § 41-1-123. If the offender fails to successfully complete the program, the offender shall be scheduled for a preparole rescission hearing.
In any revocation hearing conducted by the board, or in cases of initial preliminary hearings, the board is authorized to appoint legal counsel for an indigent individual where necessary in obedience to the requirements of the supreme court of the United States. For this purpose, the supreme court of Tennessee shall prescribe by rule the nature of costs for which reimbursement may be allowed, and the limitations on and conditions for the reimbursement of costs as it deems appropriate in the public interest, subject to this part. The rules shall also specify the form and content of applications for reimbursement of costs to be filed under this section.
The administrative director of the courts shall administer this subsection (d) and rules promulgated pursuant to subdivision (d)(1), and shall audit and review all applications for reimbursement of cost. Upon finding payment to be in order, the administrative director of the courts shall process the payment thereof out of money appropriated for that purpose.
Costs incurred by the state in providing legal counsel shall be minimized insofar as is possible and practicable by the appointment by the board of counsel from any legal services group functioning in the county in which the proceedings are held if the group is supported in whole or in part from federal, state, county or municipal moneys.
This subsection (f) shall apply to a paroled prisoner who is reincarcerated while awaiting a parole revocation preliminary hearing, a parole revocation hearing, or a parole rescission hearing, or following revocation or rescission of parole, and the sole reason the paroled prisoner was arrested and reincarcerated was because the paroled prisoner was charged with a new offense. Upon receipt of notification that the prisoner's revocation or rescission case, which was previously decided by the board, merits further review based upon the circumstances under which the new offense was dismissed, the board shall waive the time limitation for appeal, as set in rule by the board, and any limitation based on previously filed appeals, in order that the prisoner may submit evidence of any of the following events:
The charge or charges against the paroled prisoner that resulted in the arrest of the prisoner for a parole violation were dismissed or retired based on the merits of the case;
A no true bill was returned by a grand jury on the charge or charges;
A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
The paroled prisoner was arrested and released, without being charged.
The notification required by subdivision (f)(1) may be in written or electronic form and shall be submitted by:
The district attorney general from the judicial district in which the charges were brought or the district attorney general's designee;
The judge in the court where charges were brought;
The department of correction;
The prisoner's attorney, provided that the notification is also signed by one (1) of the officials in subdivisions (f)(2)(A)-(C); or
The prisoner, provided that the notification is also signed by one (1) of the officials in subdivisions (f)(2)(A)-(C).
Upon verification of the authenticity of the submitted notification, which shall occur within ten (10) business days from receipt of the notification, and submission of evidence of the occurrence of one (1) or more of the events in subdivision (f)(1)(A)-(D), the board, or the board's designee, shall conduct a hearing on the record to determine if:
One (1) of the events in subdivision (f)(1)(A)-(D) has occurred involving a charge against a parolee that was committed while on parole; and
The parolee was reincarcerated solely because of this charge and the parolee remains incarcerated while awaiting a parole revocation or rescission hearing or because the parolee's parole was revoked or rescinded.
If, after the board or the board's designee conducts a hearing on the record, the board determines that the events described in subdivisions (f)(3)(A) and (B) have occurred, the board may vote to order the release and reinstatement on parole of the prisoner in accordance with applicable law. If released and reinstated, any sentence credits that may have been lost while the paroled prisoner was incarcerated shall also be reinstated. The number of votes required to release and reinstate the prisoner's parole shall be determined in accordance with the rules of the board.
The hearing conducted pursuant to this subsection (f) shall be scheduled on the next available docket upon the occurrence of the events defined in subdivisions (f)(1)-(3), and shall be conducted no later than thirty-five (35) days from verification of the notification required by subdivision (f)(1).