Thursday, August 18, 2011

Did parole board dawdling create civil liability for Texas on sex-offender conditions?

The parole board has been quietly removing sex-offender restrictions - so-called "Condition X" - it placed on some 7,000 parolees who had never been convicted of a sex offense, reports the Austin Statesman's Mike Ward:
The change occurred after an 8-0 ruling by the Texas Court of Criminal Appeals in May affirmed what several federal courts previously had ruled: The parole board cannot unilaterally decide whether to brand a prisoner as a sex offender if he or she has not been convicted of a sexual offense.

By officials' earlier estimates, as many as 6,900 of the 80,600 parolees could be affected by the change. To review those cases would require perhaps as many as 1,000 hearings a week — an impossible number, some parole officials had said.
In June, an attorney who's knowledgeable on the subject predicted to Grits "that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings," which turned out to be exactly what's happening. Attorney Gary Cohen told Ward, "If they had (changed the policy) years ago, as they should have, they would have saved a lot of money and litigation."

My question: Should we now expect a class action lawsuit from parolees who've lived for years under wrongfully assigned sex offender conditions? A federal judge already said parole board chair Rissie Owens' behavior in the face of wrongfully assigned sex-offender conditions was some combination of "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed." Given that, I wouldn't be surprised if the board's dawdling has created significant civil liability for the state. It'd be hard to argue that this wasn't a "pattern and practice," and a federal court has already ruled their due process rights were violated.

MORE: From the Austin Statesman.

See related Grits posts:


rodsmith said...

lol that's one of the reasons they are NOT doing hearings but simply removing the illegal conditons. A hearing would simply be another legal courtroom where their illegal actions would be aired and more documentation generated for the future lawsuits!

Criminal Justice Reforms LLC said...

All of those who did not have a sex crime and were able to receive parole that included the so named Condition X, also known as the Coleman Rule, had to attend either a 4month or 18 month program at the Hightower Unit in Dayton, TX. Many received an FI-4R from parole, meaning they were to take the 4 month program and be released on parole, but due to the backlog of persons required to take the program it was often over a year before this would occur. Also, due to the sex offender constraints put on this person it was much more difficult to secure housing that would be approved by parole and the local community, let alone the difficulty of finding employment. Some inmates, in for non sex related crimes, would discharge there time because of the sex offender issues.

Anonymous said...

They were charged with a sexual offense but as part of plea bargaining they got their charges dropped down.

The Parole Division shall ensure that an offender who meets the following criteria has been provided with notice that Special Condition “X” may be imposed:
An offender who has a current conviction for a non-sexual offense when criminal sexual behavior
was exhibited during the offense. Current offenses with a sexual element are offenses that the
offender was serving at the time of release and the hearing process was completed prior to the
sentence expiring.
A. Examples include but are not limited to cases where the offender was indicted for a sex offense,
but pled guilty or nolo contendre to a non-sex offense as a result of a plea bargain or where the
offender was convicted of a more serious offense in lieu of a sex offense conviction.

Gritsforbreakfast said...

2:19, that quote only says some unknown fraction of offenders with Condition X pled down from sex offenses, not all of them by any stretch. Moreover, sometimes there's a reason those plea bargains happen, like when prosecutors are unable to prove the more serious charges.

Anyway, all they had to do was hold hearings to determine whether the circumstances you describe were actually the case. But the parole board chose flout due process and eschew such hearings. So even in cases where the facts are as you describe, Condition X could still be applied if the parole board would just do their job and follow the law.

rodsmith said...

i would say it's still illegal to use ANY conduct that was not charged....tried...and got a conviction beyond a reasonable know the legal constutional standard in this country. anything else is a non-starter.

The Homeless Cowboy said...

I honestly didnt know the board had that kind of authority. Im a bit thunderstruck as to why any person existing in reality would give the Texas Parole Board that type of authority and expect not to end up exactly where we are. Somebody needs to wipe the tobbacco juice off of their chin and revisit this decision. Good GOD people what were you thinking????????

Soronel Haetir said...


So long as the board holds a hearing and can show by a preponderance of the evidence that the condition is warranted they board would be in the clear.

And this is the correct standard because being released on parole is neither a right or is the inmate required to accept the condition. They could chose to remain incarcerated for the full prison term rather than live under the condition they find so unacceptable. And apparently in TX there is no such thing as a split sentence where the judge orders some term of prison followed by some term of parole or supervised release, so if the prison term expires that's it for being watched by the parole system

rodsmith said...

no soronel actualy the lawyers have taken the constution and totaly reversed it. UNDER that document if you have not been tried and CONVICTED of it! it DIDN'T HAPPEN!

to think you can legally use conduct that DIDN'T HAPPEN in ANYTHING is the hight of stupidity and one of the things that has DESTROYED this country!

rodsmith said...

as for this statement!

"They could chose to remain incarcerated for the full prison term rather than live under the condition they find so unacceptable."

Hell the prison works union would love that one! Seeing as texas prisons are starting to close!

so under your reasoning they should volunatly stay in facilitys that are out of date, falling apart, under staffed and DANGEROUS just to keep a bunch of criminal politicans from violating their constutional right!

roycommi said...

Actually if you haven't been convicted of something doesn't mean it didn't happen and that you didn't do it.

All of this comes form the Raul Meza hearing. That SOB raped and murdered a 9 year old. He plead down to a lesser offense. Pretending he didn't commit a sex offense and doesn't therefore deserve special condition X is just being willfully ignorant.

I mean FFS that man murdered a child and destroyed a family and your crying because maybe the fact he cant go near a mcdonalds wasn't done fairly?

Soronel Haetir said...


I would prefer that most felons would be executed, but I also want the forms followed exactly. So yes, I do see vast problems with the prior practice of the Texas parole board. They were lazy and eventually got spanked for it.

Anonymous said...

Grits writes in a previous post quoting the Judge,
“The [Parole] Board as a whole seems to regard the procedural due process rights at issue ... as annoying pests that plague and torment it through no fault of its own."
These Texas corrections dipshits have always felt that way about federal court orders. That’s the root cause why the Texas corrections empire has become such a cost burden to the taxpayers. So much so that money has been taken from schools. Today I heard that because of education cuts some school districts are charging 600.00 a year to have their children bussed to school.
"Her inattention is mystifying, and it shows her to be some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed,' "
What can we expect from these affirmative action state employees? I mean seriously people!
By the republican elite police state mentality taking money from education and feeding corrections we can all be as dumb as a field hand and fed into corrections either as an employee or an offender.

Kevin Stouwie said...

I do not understand how people who post comments expect to have their comments taken seriously and yet do not have the cajones to attach their names to their comments. "Anonymous said..."

This civil rights issue is very serious, and Special Condition "X" is really quite onerous. While it is certainly true that some parolees would have been given Special Condition "X", most of them would not have had it put in place. Moreover, ALL of them deserved to have the opportunity for an impartial hearing before indiscriminately forcing it on them.

That wasn't administratively convenient, and it was, remarkably, easier to ignore Federal Judges than to honor their orders.

It's sad that it took an 8-0 CCA opinion (a group that is not exactly known as a friend to the accused) to smack them over the head and tell them to wake up and smell the coffee.

sunray's wench said...

Cowboy ~ the Governor is the only person who can remove a BPP member from office as far as I understand it. The BPP have absolutely no accountability and can do pretty much whatever they choose until a big enough court comes along with the balls to stop them - and even then the BPP will prevaricate for as long as possible before actually doing as they have been told.

This is the BPP who arbitrarily issue denials based on "nature of offence" and "insufficient time served" - neither of which the inmate can do anything about, and both of which directly contradict the laws in TX that state when inmates have served enough time to become eligible for parole consideration, and which offences become eligible at specific stages of incarceration.

The day TX sees parole as an afirmative action rather than a negative one, will be a good day.

Alex S. said...

How about this situation: Defendant convicted pre-1970 of date rape and serves short prison sentence. Fast forward to 2000-whatever and same defendant is released on parole for drug possession and has conditon X ACOP (as condition of parole). Texas sex offender registration law doesn't apply to pre-1970 convictions but parole board mandates treatment and living in halfway house with sex offenders ACOP. Can the parole board mandate condition X when conviction pre-dates 1970? No hearing given.