A. At any time during release on parole the board or the director may issue a warrant for the arrest of the released prisoner for violation of any of the conditions of release, or issue a notice to appear to answer a charge of violation. The notice shall be served personally upon the prisoner. The warrant shall authorize the superintendent of the institution from which the prisoner was released to return the prisoner to the actual custody of the institution or to any other suitable detention facility designated by the board or the director. If the prisoner is out of the state, the warrant shall authorize the superintendent to return him to the state.

B. The director may arrest the prisoner without a warrant or may deputize any officer with power of arrest to do so by giving him a written statement setting forth that the prisoner has, in the judgment of the director, violated the conditions of his release. Where an arrest is made without a warrant, the prisoner shall not be returned to the institution unless authorized by the director or the board. Pending hearing as provided by law upon any charge of violation, the prisoner shall remain incarcerated in the institution.

C. Upon arrest and detention, the board shall cause the prisoner to be promptly brought before it for a parole revocation hearing on the parole violation charged, under rules and regulations the board may adopt. If violation is established, the board may continue or revoke the parole or enter any other order as it sees fit.

D. A prisoner for whose return a warrant has been issued shall, if it is found that the warrant cannot be served, be a fugitive from justice. If it appears that he has violated the provisions of his release, the board shall determine whether the time from the date of the violation to the date of his arrest, or any part of it, shall be counted as time served under the sentence.

History: 1953 Comp., § 41-17-28, enacted by Laws 1955, ch. 232, § 17; 1959, ch. 31, § 1; 1963, ch. 301, § 12.

Cross references. — For state board of probation and parole as referring to corrections division, see 33-1-7 NMSA 1978.

No violation of due process rights. — Defendant's due process rights are not violated by a deferral of a parole revocation hearing, following service of an intervening sentence. The granting of a writ of habeas corpus to defendant by the district court was error. Moody v. Quintana, 1976-NMSC-070, 89 N.M. 574, 555 P.2d 695.

Meaning of section. — It is not within the meaning of this section to require a hearing subsequent to the granting of a parole, which is contingent upon approval of a parole "plan" and the various other steps necessary for release but prior to actual release. To give the statute any other construction would be to destroy the object sought to be accomplished by the legislature. Williams v. N.M. Dep't of Corrs., 1972-NMSC-086, 84 N.M. 421, 504 P.2d 631.

Board under no obligation to issue warrant. — This section is intended to permit the board to determine whether to issue a warrant for the parole violator's return and to consider the matter of his parole revocation. The board is not obligated to issue such a warrant, and if it does not do so the parolee continues on parole. Conston v. N.M. State Bd. of Prob. & Parole, 1968-NMSC-129, 79 N.M. 385, 444 P.2d 296.

Credit for time spent out of custody. — Denial of credit for time spent out of custody after breach of parole conditions is not contemplated or permitted. Conston v. N.M. State Bd. of Prob. & Parole, 1968-NMSC-129, 79 N.M. 385, 444 P.2d 296.

Imprisonment not part of sentence. — Imprisonment for noncompliance with parole matters is not a term of imprisonment which can be imposed by sentence, as such imprisonment results only after sentence has been imposed. State v. Gonzales, 1981-NMCA-086, 96 N.M. 556, 632 P.2d 1194.

Subsection C relates to procedure when violation occurs. — Subsection C regarding a parole revocation hearing relates to the statutory procedures to be followed when an inmate released on parole is charged with violating any of the conditions of release. Williams v. N.M. Dep't of Corrs., 1972-NMSC-086, 84 N.M. 421, 504 P.2d 631.

Prisoner is not on parole from time original resolution is passed, and an order of rescission does not take from him a vested right without due process of law. Williams v. N.M. Dep't of Corrs., 1972-NMSC-086, 84 N.M. 421, 504 P.2d 631.

Parole begins upon actual release. — Until the prisoner is actually released, the board has the power to "reopen and advance, postpone or deny a parole which has been granted." Williams v. N.M. Dep't of Corrs., 1972-NMSC-086, 84 N.M. 421, 504 P.2d 631.

Parolee must sign parole agreement. — There must be an acceptance of the terms and conditions of the parole agreement, which must be signed by the convict, before the said parole becomes legally effective to secure his release from the institution. Williams v. N.M. Dep't of Corrs., 1972-NMSC-086, 84 N.M. 421, 504 P.2d 631.

Board may revoke "pending" parole without revocation hearing. — Where the necessary steps to complete petitioner's release on parole had not been accomplished, the parole board's action in revoking a "pending" parole was within the discretion of the board, and petitioner was not entitled to a parole revocation hearing. Williams v. N.M. Dep't of Corrs., 1972-NMSC-086, 84 N.M. 421, 504 P.2d 631.

Only under limited circumstances may director order rehearing. — Field services division director acted within his statutory and inherent authority in ordering a new preliminary revocation hearing when the initial hearing officer's finding of no probable cause for revocation was based on an erroneous legal conclusion. This decision should not be interpreted as allowing the director to order a rehearing when he is merely dissatisfied with the result of the initial hearing. Only upon a clear misapplication of the law or for other strong and compelling reasons should this authority be exercised. Barnett v. Malley, 1977-NMSC-065, 90 N.M. 633, 567 P.2d 482.

Right to due process by waiver of counsel was not violated. — Where defendant was notified twice of defendant's right to be represented by counsel at defendant's parole revocation hearing; defendant elected to waive representation at the preliminary hearing stage and confirmed the waiver of counsel at the parole revocation hearing; and defendant had no difficulty presenting a defense and explanations for the parole violations, defendant did not establish that the waiver of counsel at the parole revocation hearing resulted in a violation of due process. State v. Triggs, 2012-NMCA-068, 281 P.3d 1256.

Deferral of parole revocation hearing following service of an intervening sentence is without prejudice and does not violate a defendant's due process rights where the parole violation was established by an intervening conviction. Moody v. Quintana, 1976-NMSC-070, 89 N.M. 574, 555 P.2d 695.

Right to counsel at hearing discretionary. — The state authority charged with the responsibility for administering the probation and parole system has discretion to determine the need for counsel at revocation hearings on a case-by-case basis, but if the determination is made to supply counsel to indigent parolees, then counsel must be made available and given the opportunity to participate in any subsequent rehearings. Barnett v. Malley, 1977-NMSC-065, 90 N.M. 633, 567 P.2d 482.

Term "as it sees fit" gives board restricted powers. — While the authority granted the board under this section to enter any order "as it sees fit" might seem to be sufficiently broad to permit a denial of credit of eight and one-half months as time served on a sentence during which time parolee was not in custody, the use of such language was not intended to grant unrestricted power. Conston v. N. M. State Bd. of Prob. & Parole, 1968-NMSC-129, 79 N.M. 385, 444 P.2d 296.

No court review of revocation decision. — Laws 1909, ch. 32, § 5, having conferred upon superintendent of penitentiary the power to retake and reimprison paroled convicts, his revocation of a parole was in the exercise of a sole discretion, not reviewable by the courts. Ex parte Vigil, 1918-NMSC-117, 24 N.M. 640, 175 P. 713.

Parole violator is to be treated as escaped prisoner and liable, when arrested, to serve out the unexpired term of his maximum possible imprisonment, excluding the time of his absence. 1912 Op. Att'y Gen. No. 12-878.

Board determines what time counts as time served. — Whether the time from the issuance of a warrant for violation of the parole to the date of arrest of the parole violator is to be counted as time served is to be determined by the parole board. 1955 Op. Att'y Gen. No. 55-6304.

Parole supervisor may personally arrest violator. — There is no authority for the director of parole or a parole supervisor to issue a warrant in the name of the parole board. A parole supervisor can personally arrest a parole violator and, if he does, he must furnish a written statement setting forth the facts of violation and this is sufficient for the detention authorities to hold the parolee. The parole supervisor, by issuing a written statement that there has been a violation of parole in his judgment, may deputize an officer to arrest a parole violator and this statement is sufficient authority to hold the parolee. 1955 Op. Att'y Gen. No. 55-6335.

Right to make bail. — Parole violation, and commission of crime while on parole, gives rise to two separate and distinct proceedings. Accordingly, a parolee if accused of a crime is entitled to bail, as an accused in a criminal case, the same as any other person. But as a parolee, he is not entitled to make bail. This might be academic if the parole board revokes the parole and returns the man to prison for parole violation. On the other hand, the parole board may not find a violation and would permit continuation of the parole, in which case the man has every right to bail in accordance with law, as if he had never been convicted. If charges have been filed, and the parolee makes bail, it follows that nonetheless the parole authorities can arrest and detain pending investigation of parole violation, or violations at a subsequent time. 1958 Op. Att'y Gen. No. 58-171.

Criminal justice department bears cost for arrested parolee. — A parolee arrested pursuant to this section is in the control and custody of the state penitentiary, and the department of corrections (corrections department) must bear the cost of such control and custody. 1970 Op. Att'y Gen. No. 70-62.

State penitentiary responsible for parolee's medical costs. — Where a parolee from the state penitentiary is arrested for a parole violation, placed in a county jail, attempts suicide, and is rushed to a hospital, he is in the legal custody and control of the state penitentiary when he injured himself, and the state penitentiary, not the county, is responsible for the medical costs. 1968 Op. Att'y Gen. No. 68-26.

Law reviews. — For note, "Due Process, Equal Protection and the New Mexico Parole System," see 2 N.M.L. Rev. 234 (1972).

For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 59 Am. Jur. 2d Pardon and Parole §§ 84, 96 to 98, 100 to 102, 106, 110, 112, 113.

Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

67A C.J.S. Pardon and Parole §§ 61, 64, 67, 79, 80, 83.