New parole rules require due process for imposing sex offender conditions

The Board of Pardons and Paroles will no longer apply sex-offender restrictions - so-called "Condition X" - on parolees who've not been convicted of a sex offense without holding an evidentiary hearing, reports Jordan Smith at the Austin Chronicle, whose story on the subject opens:

On Wednesday, June 8, the rules committee of the Board of Pardons and Paroles met to consider immediate implementation of new "emergency rules" for determining when parolees can be saddled with release conditions normally reserved for sex offenders.

At issue is the agency's imposing very restrictive sex offender parole conditions on inmates not actually convicted of sex offenses. In several high-profile cases, including that of Raul Meza, who was convicted of the 1982 murder in Southeast Austin of eight-year-old Kendra Page, federal courts have ruled that the BPP procedures that impose those restrictions without a hearing violate a parolee's due process rights.

The board only recently adopted rules to address the due process issues, but did not act to make those rules universal for all Texas parolees who have not committed a sex offense, until this week – prompted, lawyers say, by a unanimous decision from the Court of Criminal Appeals last month.

An email sent out last week from parole attorney David O'Neil to the Texas Criminal Defense Lawyers Association listserv gave more detail on the changes, highlighting the less-than-stringent standard the parole board will use in such cases:

On Wednesday morning, the Parole Board rules committee met to consider emergency rules to implement procedures for hearings, the purpose of which will be to determine if sex offender conditions of parole may be imposed upon parolees who have not been convicted of a sex offense.  The hearings are a result of a series of court decisions that have held that due process must be afforded to a parolee who has not been convicted of a sex offense before the Parole Board may impose sex offender conditions on that parolee.  In Coleman v. Dretke, 395 F.3 216 (5^th Cir. 2004), the Fifth Circuit held that due process must be afforded a parolee in such circumstances, but declined to articulate the specific process that must be followed.

In Meza v. Livingston, 623 F. Supp. 2^nd 782 (West Div of Tx, Austin Division 3-24-09), affirmed 608 F3d 392 (5^th Cir. 2010), the Fifth Circuit laid out the specific process such a parolee must be afforded, but the Parole Board took the position that the Meza decision only applied to those offenders under old mandatory supervision law, thus denying due process to thousands of non sex offender parolees who have been placed on sex offender conditions. Finally, last month the Court of Criminal Appeals decided Ex parte Evans, #76,445 (CCA 5-4-11), in which the court emphatically stated that the due process set out in Meza applies to Texas parolees and not just those on mandatory supervision.  It was the Ex Parte Evans decision that required the Parole Board to resort to their emergency rule making authority. As you may recall, in January, TCDLA President Bill Harris transmitted TCDLA’s comments on the Coleman procedures the Parole Board proposed in response to Meza.  One of those comments specifically objected to the Board’s  failure to apply the proceedings to all non sex offender parolees subjected to sex offender conditions of parole.

Immediately after the Rules Committee recommended implementation of the new rules, the Parole Board approved those rules. In the Board’s workshop that followed their meeting, the Board members and Commissioners discussed certain other changes to policies regarding Coleman conditions. The Board announced that they no longer plan to consider sex offender conditions for non sex offender parolees unless there is a sexual component to their current  offense. (For example, considering parole on a conviction for  injury to a child where there were allegations of illegal sexual conduct related to that offense.) Until now, the Board had been basing their imposition of sex offender conditions on mere allegations of illegal sexual activity, even it occurred years (or decades) before the conviction for which the Board was considering  parole. During the workshop it was also made clear that the Board did not plan to impose a condition requiring sex offender registration unless such registration was already required under Chapter 62, CCP.

There are thousands of non-sex offender parolees who are currently on sex-offender conditions of parole without the benefit of the due process required by Meza. The Board is scheduled to begin hearings on those cases next week. The hearing officer will be a Parole Board Member or Commissioner. It will take some time to provide Coleman hearings for the thousands of parolees who were entitled to them. Parolees will be offered the option of waving their Coleman hearing.  If a parolee chooses to waive their hearing, they can count on the imposition of sex offender conditions. 

The Board also recognized that there are many non sex offender  TDCJ inmates who are currently being considered for parole.  They will be considering lesser due process requirements than those required by Meza for inmates, as opposed to parolees already out of TDCJ on parole when sex offender conditions are imposed.   If the Board takes that position, there will likely be future litigation on that issue.  Future litigation can also be expected regarding the standard of proof contained in the Board’s new rules.  TCDLA’s January comments on the Coleman procedures included objection to the preponderance standard that has been adopted in Coleman hearings, noting that the appropriate standard should be “clear and convincing”.

This is a big deal: Nearly 7,000 Texas parolees currently must comply with sex offender conditions even though they weren't convicted of a sex offense, often, as O'Neil says, based on "mere allegations of illegal sexual activity, even it occurred years (or decades) before the conviction for which the Board was considering parole."

This development is good news not just for the parolees affected but for local police departments who, going forward, won't have to perform as much additional monitoring required of those on the sex offender registry (see the correction below). But it raises the question of whether the Board of Pardons and Paroles is equipped to hold these extra hearings, as well as other new hearings the courts may soon require. The BPP received a slight bump in its budget under HB 1- to $18.2 million per year, up from $18.1 million estimated for FY 2010. But that doesn't include costs for thousands of extra hearings, and I wouldn't be surprised to see the Department of Criminal Justice having to rob other programs to cover the extra expense.

CORRECTION: A reader who understands these matters much better than I emailed to say:

Actually, they have not been required to register as sex offenders since 2004, when the Federal writ, ex parte Miller Branch, was decided. There was great wringing of hands and gnashing of teeth, but it all worked out. For information purposes, the Registration requirement is Parole Condition “M,” which can be found on the Board website. The Coleman case, is concerned with sex offender conditions of supervision, not registration. See, Condition “X” on the website. If a Coleman case (no sex offender condition) is being forced to register, it is a mistake. Granted, the Parole Division of TDCJ, in its vigor, has often tried to sneak condition “M” in on a Board panel.  So, the issue is not registration, and not a burden on local law enforcement, save and except for those “errors” committed by zealots in the Parole Division.
 
That being said, the difference between M and X is negligible, save and except for the public registration requirement. Also, the Board can choose components of X to impose, and omit some others, dependent on the case. Dave’s assertion of 7,000 is correct, but for Condition X, not registration. That is a totally different, and for all practical intents and purposes, a settled matter. The Parole Division of TDCJ, and the Board have been too zealous in their application of Condition X, and have ignored good legal advice from years ago about how this would eventually turn out.
 
While there are emergency rules for the new hearings, I predict that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings. Just my opinion. The reasoning of TDCJ not to have hearings was cost and logistics. The Board’s funds and manpower are miniscule by comparison.

See related Grits posts:

• Court: Parole board can't impose sex-offender conditions without evidentiary hearing
• Federal judge: Parole board may have improperly labeled thousands as 'sex offenders'
• Federal litigation seeks individualized review of sex-offender cases by parole board