40-28-122 - Hearings on parole violations Appointment of counsel for indigents. - Tennessee Statutes

40-28-122. Hearings on parole violations Appointment of counsel for indigents.

(a)  Whenever there is reasonable cause to believe that a parolee has violated parole and a parole violation warrant has been issued, the director of probation and parole may declare the parolee to be delinquent and the parolee will stop earning credit for service of the parolee's sentence from the date the warrant was issued until the removal of delinquency by the board. Upon revocation of parole, the time an inmate spent on parole shall not be considered as service of the sentence unless the board determines to grant all or part of the time to the inmate.

(b)  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.

(c)  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:

     (1)  The identity of the certifying technician;

     (2)  A statement of qualifications from the certifying technician;

     (3)  A specific description of the testing methodology;

     (4)  A statement that the method of testing was the most accurate test for this particular drug;

     (5)  A certification that the results were reliable and accurate;

     (6)  A declaration that all established procedures and protocols were followed; and

     (7)  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.

(d)  (1)  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 the provisions of § 40-28-123.

     (2)  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.

(e)  (1)  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 the provisions of this part. The rules shall also specify the form and content of applications for reimbursement of costs to be filed under this section.

     (2)  The administrative director of the courts shall administer the provisions of this subsection (e) and rules promulgated pursuant to subdivision (e)(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.

(f)  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.

[Acts 1937, ch. 276, § 12; C. Supp. 1950, § 11818.12 (Williams, § 11843.12); Acts 1978, ch. 929, § 5; T.C.A. (orig. ed.), § 40-3619; Acts 1989, ch. 227, §§ 41, 42; 1993, ch. 66, § 70; 1998, ch. 1049, § 25; 2001, ch. 323, § 1; 2001, ch. 355, § 1; 2006, ch. 666, § 2.]