Federal judge: Parole board members may be personally liable for 'Condition X' due-process violations

Last year Grits wondered aloud if the Texas Board of Pardons and Paroles had created massive civil liability for themselves and the state by continuing to defy the federal judiciary over the application of "Condition X," which is a battery of sex-offender conditions (basically everything except public registration, including residency restrictions, etc.) applied as a condition of parole, even though the parolee has never been convicted of a sex offense. Now a federal judge has answered that question, "Yes," reported Mike Ward at the Austin Statesman ("Judge: Parole officials can be held liable over sex-offender restrictions," May 22). If the ruling stands, and the parole board doesn't change its ways, its members could start having to pay out of their own pockets. The story opened:

In the latest rebuke of state policies for classifying parolees as sex offenders, an Austin federal judge has ruled that top state parole officials can be held personally liable for continuing missteps.

U.S. District Judge Lee Yeakel of Austin, in an order issued late Friday, blasted the state's continuing refusal to provide due process hearings before imposing restrictive sex-offender conditions on felons never convicted of a sex crime.

Yeakel for the first time ruled that the seven-member state Board of Pardons and Paroles, 12 parole commissioners, state parole director Stuart Jenkins and other parole officials can face monetary damages for their actions.

It's a significant determination that, if not reversed on appeal, could prove costly for both the officials and taxpayers, if several pending inmate lawsuits are successful.

This ruling has been years and years in the making. A jury has already held once that parole board members should be held personally liable for intentionally violating parolee rights in this fashion. Judge Sam Sparks overruled jurors at the time, but not before saying of parole board Chair Rissie Owens, "Her inattention is mystifying, and it shows her to be some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed.'" Apparently Sparks' colleague Judge Yeakel has finally lost patience.

At one point parole officials swore in court the board had assigned Condition X to around 7,000 parolees, but later offered lower figures. Nobody seems to know for sure, but everyone agrees it's more than the number for which the parole board could reasonably hold individualized hearings. To be clear: The question before the court isn't whether Condition X might be appropriate in some cases, it's whether there must be some sort of due process before assigning that tag, or can the parole board do it by fiat? They feds aren't saying the parole board can't do assign Condition X where there's no sex-crime conviction, just that they can't do it without showing cause in a hearing. Here's Ward again, tying together the pieces:

In his order Friday, Yeakel ruled that the state has for six years been aware that it must provide hearings to parolees in such cases and that officials' continuing failure to do so leaves them open to liability.

"In light of the resistance of the state of Texas to providing parolees with the procedural due process guaranteed them by the Constitution, even after receiving repeated mandates from federal and state courts, the court is unconvinced that Texas will not return to its unconstitutional policies and practices," the 31-page order states.

"Any stigmatic injury suffered by Yeary due to the imposition and continued enforcement of Special Condition X may entitle Yeary to compensatory damages."

One of the reasons this has dragged on so long is that the cases come up one at a time, so even if the parole board loses one case they don't change their policies on all the others. So, for example, in 2009 a jury awarded personal damages of $21,250 against board chair Rissie Owens to Ray Curtis Graham for assigning him Condition X while denying him a required "Coleman" hearing for 576 days. Judge Sparks declined at that point to hold parole board members personally liable, instead vesting liability with the agency. So they just kept doing it. Will parole board members begin following the courts' repeated directives now that they have some skin in the game?

See related Grits posts:

• Tidbits from the parole board's 'self-evaluation'
• Federal judge bench slaps parole board over assigning sex-offender conditions without due process
• Did parole board dawdling create civil liability for Texas on sex-offender conditions?
• New parole rules require due process for sex-offender conditions
• Court: Parole board can't impose sex-offender conditions without evidentiary hearing
• Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"
• Federal judge: Parole board may have improperly labeled thousands as 'sex offenders'
• Federal litigation seeks individualized review of sex-offender cases by parole board