Texas Must Afford Due Process before Imposing Sex Offender Conditions on Parolees
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Center for Missing and Exploited Children has reported that there are, on average, 234 registered sex offenders per 100,000 residents in the United States—a total of nearly 730,000such offenders, with more than 61,000 residing in the State of Texas, making this State second only to California’s approximately 123,000 registered sex offenders. An inherent tragedy behind these figures is that it is too easy for state officials to wrongfully classify a parolee as a sex offender while it is so hard to undo such a classification.
Take the case of J Evans who found himself wrongfully designated for sex offender conditions while on parole in Texas. The facts of the Evans case are disturbing, if not outright chilling, given the extreme stigma and hardship that comes with sex offender registration. Those facts are: In October 2001 he pled guilty to two counts of reckless injury to a child involving his two baby girls. The prosecutor in the case quite adamantly stated that at no time “did [he] ever view the case as a sex crime, nor did [he] see anything in the case to indicate any sexual or conduct which concerned me.” Even the trial judge who accepted Evans’ guilty plea said: “Based on the trial court’s personal recollection of the facts adduced at applicant’s trial, there was no evidence of sexual abuse of Applicant’s victims.”
Evans was given a 10-year prison term on each count of reckless injury to a child. He was released on parole in October 2006 to Lubbock where he lived with an uncle. His parole release carried the condition that he could not see his children until he took “anger-management and parenting classes.” Evans became a model parolee, so successful in fact that after only 17 months all of his parole conditions were removed. He was then allowed to see his children. Evansmade plans to become a nutritionist and, in fact, enrolled in such a class at the El Paso Community College where he had requested that his parole plan be transferred.
And this is where thing really began to go awry. Evans’ new parole officer in El Paso served him with a “Notice and Opportunity to Respond to Pre-Imposition of Sex Offender Special Conditions” in April 2006. The parole officer’s actions were based on the following material found in Evans’file: “The file material indicates the offender had been caring for two-month old twin daughters. The children were taken to the hospital with broken legs, skull fracture, and bruising on the buttocks. Bright red spots were also found in the vaginas of both victims. The offender claimed he may have wiped them too hard causing the bleeding. He also stated that when changing diapers he would insert his finger in their vaginas in order to be sure there were no feces in their vaginas. He also said he would [pinch] their butts to play with them and this is how the bruising occurred.”
Evans opposed the potential sex offender designation with a written response. In his response, he informed the parole officer that he could not “obtain the court records from his daughters’ pediatrician that clarified there were no bruises on the daughters’ buttocks; the markings were ‘strawberry patches’ frequently found on African and Asian babies.” Evans also informed the parole officer that this pediatrician had informed the trial court that the “bright red spots on their vaginas were diaper rash because [Evans] did not clean them sufficiently when changing their diapers.” Evans concluded his response with the observation that statements prepared by the El Paso parole officer in support of the “notice” of sex offender registration were “mistakenly opinionated.”
Notwithstanding the overwhelming evidence that Evans had not committed any sex crimes against his daughters, the El Paso parole officer requested that the Texas Board of Pardons and Parole place Evans under “Special Condition X” of the Sex-Offender Program. He told the board that Evans had been “deceptive” during a polygraph examination and that after a psychological evaluation, the psychologist recommended that Evans undergo “sex-offender counseling.” In June 2008, just three days after the El Paso parole officer submitted his request, the Board of Pardons and Parole imposed “Special Condition X” on Evans. This designation included the following conditions:
- Enroll in and participate in a treatment program for sex offenders;
- Not communicate directly or indirectly with the victims of ‘the sex offense’;
- Not participate in any volunteer activities without prior written approval of the parole officer;
- Not enroll in or attend any institution of higher learning, including a community college, without prior Board approval and notification to the victims of ‘the sex offense’;
- Not view, possess, purchase, or subscribe to any photographs, literature, magazines, books or visual media that depict sexually explicit images;
- Submit to polygraph examination as approved by the parole officer and Board;
- Not attend any program that includes participants who are 17 years of age or younger or go within 500 feet of anywhere that children gather, including schools, day care facilities, playgrounds, public swimming pools;
- Not become involved in dating, marriage or platonic relationships with anyone who has children 17 years old or younger without written approval of parole officer;
- Not reside with, have unsupervised contact with, or cause to be contacted with, any child 17 years or younger in person, by telephone, correspondence, video or audio device, unless the offender is the legally recognized parent of the child;
- Not own, maintain or operate computer equipment without written authorization from the parole officer;
- Not own, maintain, or operate photographic equipment, including still photos, videos, or any electronic imaging equipment unless approved in writing by the parole officer; and
- Submit to a search of the person, motor vehicle, place of residence, and property, without a warrant at any time, day or night.
Like most offenders faced with such daunting “sex offender” conditions, Evans’ life spiraled out of control. He “lost his job as a tile-installer because he could not drive without going through child-safety zones” and he could not visit his daughters “because he did not have the parole officer’s written approval.” Due to excessive anxiety and stress, “he could not resume his college work, and he could not use a computer, internet, camera or film. He developed headaches, irregular bowel movements, fatigue, and nausea. His sleep was poor and his appetite low. He lost fifteen pounds in six months. He told Dr. Quijano that if ‘Special Condition X’ were not removed, he would put himself back in prison so that he would not be on parole.”
Then the proverbial straw broke the camel’s back. Evans’ parole officer, with the support of five other parole officers, went to the parolee’s home and searched it. They discovered a cell phone on Evans’ bed which had a photo a nude woman on it, and stored on the phone was other photos of nude women. A search of a black footlocker revealed two pornographic DVDs, two disposable cameras with undeveloped film, and Bowie knife in a shoe box.
Four days later Evans’ parole officer served him notice of parole revocation based on nine violations derived from the search of the parolee’s residence—all involving violation of “Special Condition X.” Evans secured the pro bono assistance of an attorney who immediately filed a motion to dismiss the revocation proceedings on the premise that the Special Condition X conditions had been imposed on his client without due process of law, and that Evans’ criminal conviction did not warrant the Special Condition X designation. A revocation hearing was held in November 2008 and the following facts were established at that hearing:
- Evans’ father, uncle, stepmother, stepbrother and employer testified in support of his parole;
- Evans testified that he had had his cell phone since 2007 while in Lubbock and his parole officer had expressed no concern about it;
- Evans’ stepbrother testified that the disposable camera belonged to him along with the sexually explicit images; and
- Roxanne Evans testified that she owned the house in which Evans had been residing; that the footlocker in which the pornographic DVDs were found belonged to her deceased son.
The revocation hearing officer found 5 violations of the Special Condition X conditions but also concluded there had been insufficient evidence presented to prove the other allegations, including the sole non sex-offender violation. Evans’ parole was formally revoked and he was returned to the Texas prison system where he filed an application for a writ of habeas corpus in the trial court. The trial judge granted the writ application, finding that Evans had not been convicted of a sex offense but rather injury to a child; and based on the trial judge’s recollection, there had never been any evidence of sexual abuse in the case.
The state trial court relied upon a recent U.S. District Court decision, Meza v. Livingston, in which that federal court, following the lead of several other federal courts, discussed four U.S. Supreme Court decisions dealing with what procedural due process is available when the “deprivation of the liberty interest leads to stigmatizing and physically-invasive consequences.” The federal district court ruling was upheld by the Fifth Circuit Court of Appeals. The Fifth Circuit explicitly held that “a parolee who has not been convicted of a sex offense” must be provided with the following due process procedures before a sex-offender designation, with all its conditions, can be imposed on that offender:
- Written notice that sex offender conditions may be imposed as a condition of mandatory supervision;
- Disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;
- A hearing at which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;
- The right to confront and cross-examine, unless good cause is shown;
- An impartial decision maker; and
- A written statement by the factfinder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.
The two federal courts, and Evans’ trial court, concluded that the “current Texas procedures” do not meet these “constitutional requirements for due process.” The Texas Court of Criminal Appeals agreed, finding: “It would certainly seem logical that a person who has already been released from prison because he did not constitute a threat to society is entitled to more due process protection from imposition of sex-offender conditions than a person who, like Meza, was required to be released from prison regardless of how grave a threat he might pose to society. Indeed, the Fifth Circuit’s opinion in Meza stated that ‘if Meza were an inmate instead of a parolee, the Wolff standard [the same due process standard that the Meza court adopted] would likely apply’ to the decision to treat him as a sex offender. If an inmate is entitled to those due-process protections, surely a parolee who had already been discretionarily released because he did not pose a danger to society is entitled to those protections. As the Fifth Circuit stated, ‘Because fewer security concerns are at issue and the liberty deprivations are more immediate and certain, the [Supreme] Court generally finds that parolees are owed more process than inmates.’ Nor is there any hint or suggestion in the Meza opinion that its reasoning or result should logically apply to those who are required to be released under the pre-1996 amendments, but not to parolees or those released on discretionary mandatory supervision. The liberty interest of all three groups are the same, and the risk of an erroneous decision is the same.”
To make its point quite clear to the Texas Department of Criminal Justice, the Court of Criminal Appeals ordered the “immediate reinstatement of [Evans’] release on mandatory supervision and removal of ‘Special Condition X’ from the terms of his parole.”
We applaud the Court of Criminal Appeals for its thorough decision-making in this controversial area of the law—an area we have extensively dealt with in the past (here, here, here, and here). We only wish the state appeals, as well as the federal courts, would have issued an opinion expressly prohibiting the imposition of “sex offender” designation upon people not convicted of sex offenses. While the courts’ application of fundamental due process protections in these cases is a major leap forward, we simply cannot accept the premise that a non-sex offense conviction can warrant, under any circumstances, a sex-offender designation requiring the highly invasive limitations imposed by Special Condition X.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization