Roberto Baez Cruz brought this civil rights complaint1 under Title 42, U.S.C., Section 1983, against named members of the Texas Board of Pardons and Parole (Parole Board, or Board) individually and in their official capacities alleging that certain of their rules and practices denied him due process and equal protection within the parole procedure. The plaintiff sought declaratory and injunctive relief, together with $1,000,000 in damages. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. We affirm.

Appellant was tried and convicted in 1967, within the courts of Texas, for murder with malice, and sentenced to life in prison. He became eligible for parole, under Texas law, in 1971. He has been denied parole from 1971 through 1975 for reasons of "past assaultive behavior" and that he was a "narcotics user", problems which Cruz alleges are not treated at the Ellis Unit of the Texas Department of Corrections, the prison in which Cruz is confined.

Cruz's complaint, when read liberally, makes two general allegations of denial of due process and equal protection. Appellant states that sociologists and psychiatrists and related programs and services are afforded inmates within the Texas prison system other than the Ellis Unit at which those services are not available. Therefore, Cruz concludes that he is the victim of the Parole Board's geographic discrimination in that factors of rehabilitation, denied Cruz because of the limited opportunities of the Ellis Unit, are favorably considered by the Board in the cases of prisoners from other units of the Texas prison system. The sole reason, according to Cruz, that he was denied parole is that he is confined at the Ellis Unit.

Cruz also contends that he has been denied due process and equal protection by the Parole Board because he has not, despite his requests, been appointed a lawyer to represent him before the Board. He contends that due process requires, under the facts of this case, that a lawyer be appointed to represent him before the Board. Cruz's secondary contention in this regard is founded upon his observation that both Texas law and the Parole Board rules provide that retained counsel may appear before the Board on behalf of prisoners that can afford such counsel yet no provision is made for the appointment of counsel to represent indigent prisoners before the Board. Cruz alleges that he is indigent, that he has requested counsel be appointed to represent him before the Board, that his request has been denied, and that consequently he is being discriminated against on the basis of his indigent status.

We note initially that a Sec. 1983 complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 1957, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80. The allegations of the complaint, especially a pro se complaint, must be read in a liberal fashion, Haines v. Kerner, 1972, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652; Cruz v. Beto, 1972, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263, and they must be accepted as true in testing their sufficiency, Haines v. Kerner, supra, Cruz v. Beto, supra.

Cruz asserts that the Board has denied him due process because: (1) the Board arbitrarily and capriciously denied him a parole solely because he is confined in the Ellis Unit of the Texas prison system, (2) the Board's stated grounds for denial of Cruz's parole, "past assaultive behavior" and "narcotics user" do not take cognizance of Cruz's allegations that the Ellis Unit provides inadequate programs to treat these disorders, (3) the Board denied Cruz the opportunity to personally appear before them to state his case, and (4) the Board would not appoint Cruz counsel to appear before them.

The extent of due process to which a prisoner is entitled when applying for an eligible for parole has given rise to considerable confusion within the different circuits. In Childs v. United States Board of Parole, 1974, 67 U.S.App.D.C. 268, 511 F.2d 1270, the District of Columbia Circuit held that "the parole decision must be guided by minimal standards of due process ..." The Second and Fourth Circuits have apparently reached similar conclusions, although the precedential value of their decisions is doubtful in light of the Supreme Court's disposition of them. See United States ex rel. Johnson v. Chairman of New York State Board of Parole, 2 Cir.1974, 500 F.2d 925, vacated as moot, sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289; Bradford v. Weinstein, 4 Cir.1975, 519 F.2d 728, cert. granted 1975, 421 U.S. 998, 95 S. Ct. 2394, 44 L. Ed. 2d 664, judgment vacated as moot, 1975, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350. We considered the question of due process in the granting of parole and reached an opposite conclusion in Scarpa v. United States Board of Parole, 5 Cir. en banc 1973, 477 F.2d 278, judgment vacated and remanded for a determination of mootness, 1973, 414 U.S. 809, 94 S. Ct. 79, 38 L. Ed. 2d 44, dismissed as moot, 5 Cir.1973, 501 F.2d 992. Scarpa was stripped of value as a precedent by its dismissal for mootness,2 which consigned it to limbo along with United States ex rel. Johnson v. Chairman of New York State Board of Parole, supra, and Bradford v. Weinstein, supra.

However, Judge Bell's recent opinion for this Court in Brown v. Lundgren, 5 Cir.1976, 528 F.2d 1050, cer. denied --- U.S. ----, 97 S. Ct. 308, 50 L. Ed. 2d 283, 1976, limits any contentions appellant might make concerning the extent of the due process rights due him in the parole granting context. The prisoner, in that case, sought to challenge by means of habeas corpus the parole release process of the United States Board of Parole. We held:

"At the constitutional level, there is a clear distinction between the loss of a statutory privilege once obtained and the denial of that same privilege, never given. While the threatened loss of a privilege may be 'grievous' and therefore require some degree of procedural due process protection, see, e.g., Morrissey v. Brewer, 1972, 408 U.S. 471, 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484, the denial of that privilege may only be subject to the procedural demands of the particular enabling statute. Thus, while parole revocation and prison discipline are clearly within the ambit of the Due Process Clause of the Fifth and Fourteenth Amendments, the mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a 'grievous loss' if denied by the parole board. We thus disagree with the characterization by the Court of Appeals for the District of Columbia of the denial of parole as a deprivation of 'the valuable features of conditional liberty' equivalent to the loss involved in parole revocation that mandates due process protection. Childs v. United States Board of Parole, 1974, 167 U.S.App.D.C. 268, 511 F.2d 1270, 1278.

In any context where it is asserted that constitutional due process is required, the basic, threshold question is whether there is a 'grievous loss' of either a liberty or property interest. If there is no such loss, then the second question of whether the particular challenged procedure comports with fundamental fairness is never reached. In short, we find that the denial of parole as distinguished from the revocation of parole as in Morrissey, supra, is not a 'grievous loss', and we therefore do not consider whether the procedures of the parole board deny constitutional due process." [Footnote omitted]

Brown v. Lundgren, supra, at 1052-1053. See further, Shaw v. Briscoe, 5 Cir.1976, 541 F.2d 489, [decided October 29, 1976], where Brown v. Lundgren is relied upon in a state prisoner context.

Our decision does not rest entirely upon Brown v. Lundgren. In Cook v. Whiteside, 5 Cir.1974, 505 F.2d 32, we considered a case presenting many of the same problems as are present here in a similar factual context. In Cook a Texas state prisoner brought suit under Sec. 1983 against individual members of the Texas Board of Pardons and Paroles seeking injunctive and declaratory relief, alleging he had been denied due process and equal protection rights in the parole granting process. We held that in the absence of factual averments to support his allegations that the parole board's actions were arbitrary and capricious, Cook's contentions were insufficient to state a claim upon which relief could be granted.3 We further held, citing Buchanan v. Clark, 5 Cir. 1971, 446 F.2d 1379, cert. denied 404 U.S. 979, 92 S. Ct. 347, 30 L. Ed. 2d 294, that the refusal of the Board to appoint Cook counsel did not deny him due process. See further, Sexton v. Wise, 5 Cir.1974, 494 F.2d 1176, 1178. Cf. United States ex rel. Richerson v. Wolff, 7 Cir.1975, 525 F.2d 797, which is supportive in part of the district court holding here, but differs from Brown v. Lundgren in holding that rudimentary due process requirements govern the granting or withholding of parole.

We find without merit appellant's contentions centering on "geographic discrimination", upon which he bases his argument that he was arbitrarily and capriciously denied parole because he was confined at the Ellis Unit rather than elsewhere. Attached as Exhibit C to plaintiff's complaint are pages from a pamphlet4 stating the Criteria for Parole Selection adopted by the Board in its consideration of which prisoners are entitled to and should be granted parole. While several facets of rehabilitation are listed by the Board within these criteria, it appears that the broad range of circumstances the Board considers insures that inmates of the Ellis Unit are not foreclosed from consideration for parole, assuming that the Unit is as bereft of rehabilitative opportunity as the complaint aserts. Any suggestion that the Board is arbitrarily and capriciously failing to follow its own regulations is mere speculation, totally unsupported by factual averments, and is hence insufficient to support a Sec. 1983 complaint. Cook v. Whiteside, supra.

a. If the total situation seems to favor the inmate's release on parole, his case may be further considered for parole.

b. If there is a request for additional information.

c. If any action may be deferred to a specific future date.

d. If the inmate may be required to serve all of his sentence.

"Within one year after a prisoner's admittance to the penal or correctional institution and at such intervals thereafter, as it may determine, the Board shall secure and consider all pertinent information regarding each prisoner, except any under sentence of death, including the circumstances of his offense, his previous social history and criminal record, his conduct, employment and attitude in prison, and the reports of such physical and mental examinations as have been made."

Cruz's contentions that he has been denied equal protection because of the alleged "geographic discrimination" by the parole board, while intriguing conceptually, are without merit. Aside from the bare allegation that the Board views with disfavor the inmates at Ellis when the time comes for a decision as to whether to grant an inmate parole, the plaintiff has stated no factual basis in support of his charges. Cruz alleges no "invidious discrimination" based on such considerations as race, religion, national origin, or poverty against inmates of the Ellis Unit. While an exhibit attached to Cruz's complaint indicates a minimal statistical disparity between the paroles granted inmates of the Ellis, Walls, and Diagnostic Units of the Texas Department of Corrections,5 it is surprising that this disparity is not greater when we recall that Ellis Unit is a maximum security unit housing high security risk prisoners presenting potentially higher parole risk problems. Assuming there exists a basis for the complaint that rehabilitative programs generally available to Texas prisoners are unavailable to inmates of the Ellis Unit, no facts are alleged even suggesting discrimination by the Board in granting paroles as between inmates of Ellis Unit and those lodged at other units in the State system.

                           ELLIS UNIT
                 TEXAS BOARD OF PAROLE REPORTS
                        SELECTED TABLES
                           TABLE XII
      PAROLES GRANTED, ADULT PRISONERS, BY TYPE OF OFFENSE
                              1973
----------------------------------------------------------------
OFFENSE                      DECISIONS  PAROLES  PERCENT PAROLED
----------------------------------------------------------------
ALL OFFENSES                    955       441
---------------------------  ---------  -------
WILLFUL HOMICIDE                 65        21         32.3
NEGLIGENT MANSLUGHTER            40        17         42.5
ARMED ROBBERY                   265       123         46.4
UNARMED ROBBERY                  32        15         46.8
AGGRAVATED ASSAULT               51        21         41.1
FORCIBLE RAPE                    43        17         39.5
ALL OTHER SEX OFFENSES           37        26         70.2
BURGLARY                        140        64         45.7
THEFT OR LARCENY                 39        17         43.5
VEHICLE THEFT                    21        11         52.3
FORGERY OR LARCENY BY CHECK      19        11         57.3
OTHER FRAUD                      15         9         60.0
VIOLATIONS OF DRUG LAWS         160        73         45.6
VIOLATIONS OF ALCOHOL LAWS       13         8         61.5
ALL OTHERS                       15         8         53.3
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
TABLE
	TEXAS
	DEPARTMENT OF CORRECTIONS
	ELLIS UNIT
	HUNTSVILLE, TEXAS 77340
	R.M.COUSINS
	WARDEN
	PHONE: 713 295-7042
                           WALLS UNIT
                 TEXAS BOARD OF PAROLE REPORTS
                        SELECTED TABLES
                           TABLE XII
      PAROLES GRANTED, ADULT PRISONERS, BY TYPE OF OFFENSE
                              1973
----------------------------------------------------------------
OFFENSE                      DECISIONS  PAROLES  PERCENT PAROLED
----------------------------------------------------------------
ALL OFFENSES                    836       389
---------------------------  ---------  -------
WILLFUL HOMICIDE                 59        33         55.9
NEGLIGENT MANSLAUGHTER           33        16         48.4
ARMED ROBBERY                   244       105         43.3
UNARMED ROBBERY                  29        14         48.2
AGGRAVATED ASSAULT               46        21         45.6
FORCIBLE RAPE                    39        19         48.7
ALL OTHER SEX OFFENSES           35        15         42.8
BURGLARY                        133        60         45.1
THEFT OR LARCENY                 19         9         47.3
VEHICLE THEFT                    15         8         53.3
FORGERY OR LARCENY BY CHECK      12         7         58.3
OTHER FRAUD                      11         6         54.5
VIOLATIONS OF DRUG LAWS         151        70         46.3
VIOLATIONS OF ALCOHOL LAWS       10         6         60.0
ALL OTHERS                      000       000         00.0
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
TABLE
	TEXAS
	DEPARTMENT OF CORRECTIONS
	ELLIS UNIT
	HUNTSVILLE, TEXAS 77340
	R.M.COUSINS
	WARDEN
	PHONE: 713 295-7042
                        DIAGNOSTIC UNIT
                 TEXAS BOARD OF PAROLE REPORTS
                        SELECTED TABLES
                           TABLE XII
      PAROLES GRANTED, ADULT PRISONERS, BY TYPE OF OFFENSE
                              1973
----------------------------------------------------------------
OFFENSE                      DECISIONS  PAROLES  PERCENT PAROLED
----------------------------------------------------------------
ALL OFFENSES                    111       56
---------------------------  ---------  -------
WILLFUL HOMICIDE                 12        7          58.3
NEGLIGENT MANSLAUGHTER            7        4          57.1
ARMED ROBBERY                    11        6          54.5
UNARMED ROBBERY                   5        2          40.0
AGGRAVATED ASSAULT                6        2          33.3
FORCIBLE RAPE                     4        1          25.0
ALL OTHER SEX OFFENSES            3        2          66.6
BURGLARY                         14        6          42.7
THEFT OR LARCENY                 11        5          45.4
VEHICLE THEFT                     8        5          62.5
FORGERY OR LARCENY BY CHECK       6        4          57.3
OTHER FRAUD                       5        3          60.0
VIOLATIONS OF DRUG LAWS          13        6          46.1
VIOLATIONS OF ALCOHOL LAWS        2        1          50.0
ALL OTHERS                        4        2          50.0

Of crucial importance in this connection is the admitted fact that the Board has no control whatever over the conditions or facilities provided within each unit, and has no part in determining which prisoners are assigned to any of the several units. Those are functions which Cruz and his counsel correctly concede are committed by law to the Texas Department of Corrections and the Texas Board of Corrections.6 The Board of Pardons and Paroles may not therefore be held accountable for any constitutional deprivations allegedly brought about by the terms, conditions or situs of confinement.

Cruz's contention that he is entited to have counsel appointed to represent him before the Board is groundless in the light of the holdings of Cook v. Whiteside and Buchanan v. Clar, supra, that due process does not require counsel at parole application proceedings.7 The question remains whether the Equal Protection Clause requires that the state appoint counsel for indigents because retained counsel may appear before the Board. This determination requires that we first examine Texas parole procedures in detail.

Texas Code of Crim.Proc. Art. 42.12 (Vernon's Supp.1975-76) provides in part that:

"Sec. 15(b). Within one year after a prisoner's admittance to the penal or correctional institution and at such intervals thereafter, as it may determine, the Board shall secure and consider all pertinent information regarding each prisoner, except any under sentence of death, including the circumstances of his offense, his previous social history and criminal record, his conduct, employment and attitude in prison, and the reports of such physical and mental examinations as have been made.

"Sec. 18. The Board shall formulate rules as to the submission and presentation of information and arguments to the Board for and in behalf of any person within the jurisdiction of the Board.

"All persons presenting information or arguments to the Board shall submit therewith an affidavit stating whether any fee has been paid or is to be paid for their services in the case, the amount of such fee, if any, and by whom such fee is paid or to be paid."

Rules and Regulations, Texas Department of Corrections, as approved by the Texas Board of Corrections, July 9, 1973, Sec. 7.6, (Cruz Exhibit G) provides that:

"Hearings and Interviews on Behalf of Inmate by Others

"The Board furnishes no forms for application for paroles and has set no technical rules for presentation and/or arguments.

"Any interested person or members of the family may appear before the Board on behalf of an inmate with or without legal counsel." [Emphasis in original]

But it by no means follows from the Board's policy of permitting appearances by counsel with interested persons on behalf of an inmate applying for parole that the Board must appoint counsel for indigent inmate parole applicants upon request.

The Seventh Circuit, in Ganz v. Bensinger, 7 Cir.1973, 480 F.2d 88, speaking through Judge (now Justice) Stevens, examined a situation almost identical to that here. In Ganz an indigent Illinois state prisoner sought to obtain counsel to represent him before the parole board. The Court of Appeals after rejecting a due process claim to entitlement to appointed counsel, considered whether in light of provisions of Illinois law permitting retained counsel to be heard before the Board equal protection considerations required that counsel be appointed for indigent prisoners. The court held:

"The briefs of both parties persuasively indicate that even if the presence of counsel may be desirable at parole release hearings, a lawyer is not indispensable to the effective conduct of such hearings. Unlike the actual importance of a transcript on an appeal from a criminal conviction, or the participation of counsel in the appellate process, this rule of the Illinois Parole Board, in the words of Justice Frankfurter, does not "make lack of means an effective bar to the exercise" of the indigent's opportunity to obtain parole. Justice Frankfurter commented on the impact of the unavailability of a transcript on indigent defendants as a class:

"Law addresses itself to actualities. It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man's purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.

"To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by a State, would justify a latter-day Anatole France to add one more item to his ironic comments on the 'majestic equality' of the law. "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' (John Cournos, A Modern Plutarch, p. 27.)

"The State is not free to produce such a squalid discrimination. If it has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity." Griffin v. Illinois, 351 U.S. 12, 23-24, 76 S. Ct. 585, 592, 593, 100 L. Ed. 891 (Mr. Justice Frankfurter concurring).

That analysis also explains the holding in Douglas v. California that counsel must be appointed to represent the indigent defendant on his first appeal from a criminal conviction, for otherwise "any real chance he may have had of showing that his appeal has hidden merit" is denied to each member of the indigent class. 372 U.S. 353, 356, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811. Speaking for the Court, Mr. Justice Douglas then expressly noted that the holding did not extend to discretionary hearings, or to procedures in which the applicant might have successive opportunities for relief. Indeed, even in proceedings in which a person has a constitutional right to representation by a lawyer, the Supreme Court has indicated that there is no parallel requirement that counsel be provided for the indigent.

We hold the Equal Protection Clause does not require the Illinois Pardon and Parole Board either (1) to repeal its rule permitting inmates to have the assistance of counsel, or (2) to provide such assistance for all inmates at state expense." [Footnotes omitted]

Ganz v. Bensinger, supra, at 90-91.

The previously quoted provisions of Texas Law and Parole Board Rules demonstrate that the parole proceedings under consideration are not adversary in the traditional sense. In light of our prior determination of appellant's due process arguments, Cruz cannot now assert that formal or ritualistic proceedings indicative of a full blown hearing, such as the presentation of evidence, and the calling and the examination and cross-examination of witnesses, are part of the Texas parole process. The informal, unstructured procedures for considering parole application to the Texas Board of Parole do not present a forum in which the special analytical, research or forensic skills of the lawyer are necessary, nor even likely to prove particularly helpful. Cf. Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656. We reject the contention that the Texas procedure operates to deny a meaningful and fair consideration by the Board of Parole application of an indigent prisoner because he is unable to afford counsel. Ganz v. Bensinger, supra.8

The judgment of the district court dismissing Cruz's complaint for failure to state a cause of action is

AFFIRMED.