Section 42-9-50. Preliminary hearing for parole or conditional release violator; ratification or overruling of decision of hearing officer by board; disposition of violator

   (a) Whenever a parolee or conditional releasee is arrested on a warrant issued by a member of the board for an alleged violation of parole or conditional release, an informal preliminary hearing in the nature of a court of inquiry shall be held at or near the place of the alleged violation. However, a preliminary hearing is not required if the parolee or conditional releasee is not under arrest on a warrant issued by the board, has absconded from supervision, has signed a waiver of a preliminary hearing, has admitted any alleged violation to any representative of the board in the presence of a third party who is not a representative of the board, or has been convicted of any crime in a federal court or in a court of this state or of another state.

(b) The proceeding shall commence within a reasonable time after the arrest of the parolee or conditional releasee. Its purpose shall be to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee or conditional releasee has committed acts which would constitute a violation of his parole or conditional release.

(c) The preliminary hearing shall be conducted by a hearing officer designated by the board, who shall be some officer who is not directly involved in the case. It shall be the duty of the officer conducting the hearing to make a summary or digest, which may be in the form of a tape recording, of what transpires at the hearing in terms of the testimony and other evidence given in support of or against revocation. In addition, the officer shall state the reasons for his decision that probable cause for revocation does or does not exist and shall indicate the evidence relied upon.

(d) It shall be the responsibility of the officer selected to conduct the preliminary hearing to provide the alleged violator with written notice of the time and place of the proceeding, its purpose, and the violations which have been alleged. This notice shall allow a reasonable time for the alleged violator to prepare his case.

(e) The officer selected to conduct the preliminary hearing shall have the power to issue subpoenas to compel the attendance of witnesses resident within the county of the alleged violation after notice of 24 hours. The subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county in which the hearing provided for by this Code section is held for an order requiring obedience. Failure to comply with the order shall be cause for punishment as for contempt of court. The manner of service of subpoenas and costs of securing the attendance of witnesses, including fees and mileage, shall be determined, computed, and assessed in the same manner as is prescribed by law for cases in the superior court.

(f) The officer selected to conduct the preliminary hearing shall also have power to issue subpoenas for the production of documents or other written evidence at the hearing provided for by this Code section; but upon written request made promptly and before the hearing, the officer may quash or modify the subpoena if it is unreasonable or oppressive or may condition denial of the request upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the documents or other written evidence. Enforcement of the subpoenas may be sought in the same manner as is provided in subsection (e) of this Code section for subpoenas to compel the attendance of witnesses.

(g) At the hearing, the alleged violator may appear and speak in his own behalf, may present witnesses to testify in his behalf, and may bring letters, documents, or any other relevant information to the hearing officer. He shall also have the right to cross-examine those who have given adverse information at the preliminary hearing relating to the alleged violation, provided that the hearing officer may refuse to allow such questioning if he determines that the informant would be subjected to risk of harm if his identity were disclosed.

(h) Should the hearing officer determine that probable cause for revocation exists, he shall then determine whether the alleged violator should be incarcerated pending his final revocation hearing or whether he should be set free on his personal recognizance pending that hearing. If an alleged violator who is set free on his personal recognizance subsequently fails to appear at his final hearing, the board may summarily revoke his parole or conditional release.

(i) The decision of the hearing officer as to probable cause for revocation shall not be binding on the board but may be either ratified or overruled by majority vote of the board. In the event that the board overrules a determination of the hearing officer that probable cause did not exist, the board shall then determine whether the alleged violator should be incarcerated pending his final hearing or whether he should be set free on his personal recognizance pending that hearing. If an alleged violator who is set free on personal recognizance subsequently fails to appear at his final hearing, the board may summarily revoke his parole or conditional release. Where a hearing officer has determined, after finding probable cause, that the alleged violator should be set free on his personal recognizance, the board may overrule that decision and order the alleged violator to be incarcerated pending his final hearing.

Ga. L. 1975, p. 786, § 2; Ga. L. 1981, p. 812, § 1.