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Texas Court of Criminal Appeals Rules Against Parole Board on Imposition of Sex Offender Restrictions on Non-Sex Offenders
by Matt Clarke
The Texas Court of Criminal Appeals held that the Texas Board of Pardons and Paroles was required to provide due process in the form of a hearing similar to a parole revocation hearing before imposing onerous sex offender restrictions (Special Condition X) on prisoners who had been or were about to be released on parole or mandatory supervision, and who were not previously convicted of a sex offense.
Johnathan Evans was convicted of reckless injury of his two two-month-old daughters, sentenced to prison and later paroled under Super-Intensive Supervision Parole (SISP), with a stipulation that he complete anger management and parenting classes before being allowed to see his children again. Seventeen months later, he had completed the classes and was taken off SISP. He then moved across the state to El Paso to be near his daughters. He planned to take classes at El Paso Community College to become a nutritionist.
His new parole officer served him with a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions” containing allegations that Evans had sexually abused his daughters. Evans filed a response contesting the allegations, but the Special Condition X was imposed nonetheless. Evans was not allowed to view the evidence against him, appear at the hearing or cross-examine witnesses.
Special Condition X required Evans to enroll in sex offender treatment; not contact his daughters; not attend any program that included participants under 17 years of age; not go within 500 feet of any place where children commonly gather; not have any kind of contact – including by correspondence, telephone or video – with anyone under 17 years of age; receive parole board approval before enrolling in higher education classes, participating in volunteer activities, becoming involved in a relationship with anyone with children under 17 years of age, or owning, maintaining or operating computer, photographic or video equipment; and submit to a warrantless search of his person, vehicle, residence and property at any time. Unable to see his daughters, drive to work (due to child safety zones) or go to college, Evans’ life rapidly deteriorated.
Five months after the imposition of Special Condition X, police searched Evans’ residence and discovered a cell phone with a camera and a picture of a naked woman on it, pictures of naked women in his cell phone’s online photo album and two pornographic DVDs. His parole was revoked for violations of Special Condition X. He was returned to prison where he filed a state petition for writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure, alleging denial of due process in the imposition of Special Condition X. Following a hearing in which the criminal trial judge and prosecutor testified that Evans’ original crime had no sexual component, the trial court recommended that relief be granted.
The Court of Criminal Appeals noted that the U.S. Court of Appeals for the Fifth Circuit had already twice ordered the parole board to use minimal due process procedures when imposing Special Condition X on a person not convicted of a sex offense. [See: PLN, Feb. 2010, p.20; Sept. 2009, p.20]. This specifically required advanced written notice; disclosure of evidence; a hearing at which the person is allowed to be present, present evidence, call witnesses and cross-examine witnesses; an impartial decision-maker; and a written statement by the factfinder stating the evidence relied upon and the reasons for imposing sex offender conditions. The Court noted that under Texas law, “a parole panel may impose ‘Special Condition X’ upon a parolee only if it determines that the parolee ‘constitute[s] a threat to society by reason of his lack of sexual control.’”
The Court of Criminal Appeals specifically rejected the state’s claim that the previous Fifth Circuit decisions did not apply to prisoners, parolees or persons already released under the post-1996 mandatory supervision laws. It also rejected the argument that the cost of giving hearings to the 6,900 non-sex offense parolees upon whom Special Condition X had already been imposed was too expensive. Accordingly, the Court ordered that Evans be reinstated on mandatory supervision without Special Condition X. See: Ex parte Evans, 338 S.W.3d 545 (Tex.Crim.App. 2011).
The Texas Court of Criminal Appeals held that the Texas Board of Pardons and Paroles was required to provide due process in the form of a hearing similar to a parole revocation hearing before imposing onerous sex offender restrictions (Special Condition X) on prisoners who had been or were about to be released on parole or mandatory supervision, and who were not previously convicted of a sex offense.
Johnathan Evans was convicted of reckless injury of his two two-month-old daughters, sentenced to prison and later paroled under Super-Intensive Supervision Parole (SISP), with a stipulation that he complete anger management and parenting classes before being allowed to see his children again. Seventeen months later, he had completed the classes and was taken off SISP. He then moved across the state to El Paso to be near his daughters. He planned to take classes at El Paso Community College to become a nutritionist.
His new parole officer served him with a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions” containing allegations that Evans had sexually abused his daughters. Evans filed a response contesting the allegations, but the Special Condition X was imposed nonetheless. Evans was not allowed to view the evidence against him, appear at the hearing or cross-examine witnesses.
Special Condition X required Evans to enroll in sex offender treatment; not contact his daughters; not attend any program that included participants under 17 years of age; not go within 500 feet of any place where children commonly gather; not have any kind of contact – including by correspondence, telephone or video – with anyone under 17 years of age; receive parole board approval before enrolling in higher education classes, participating in volunteer activities, becoming involved in a relationship with anyone with children under 17 years of age, or owning, maintaining or operating computer, photographic or video equipment; and submit to a warrantless search of his person, vehicle, residence and property at any time. Unable to see his daughters, drive to work (due to child safety zones) or go to college, Evans’ life rapidly deteriorated.
Five months after the imposition of Special Condition X, police searched Evans’ residence and discovered a cell phone with a camera and a picture of a naked woman on it, pictures of naked women in his cell phone’s online photo album and two pornographic DVDs. His parole was revoked for violations of Special Condition X. He was returned to prison where he filed a state petition for writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure, alleging denial of due process in the imposition of Special Condition X. Following a hearing in which the criminal trial judge and prosecutor testified that Evans’ original crime had no sexual component, the trial court recommended that relief be granted.
The Court of Criminal Appeals noted that the U.S. Court of Appeals for the Fifth Circuit had already twice ordered the parole board to use minimal due process procedures when imposing Special Condition X on a person not convicted of a sex offense. [See: PLN, Feb. 2010, p.20; Sept. 2009, p.20]. This specifically required advanced written notice; disclosure of evidence; a hearing at which the person is allowed to be present, present evidence, call witnesses and cross-examine witnesses; an impartial decision-maker; and a written statement by the factfinder stating the evidence relied upon and the reasons for imposing sex offender conditions. The Court noted that under Texas law, “a parole panel may impose ‘Special Condition X’ upon a parolee only if it determines that the parolee ‘constitute[s] a threat to society by reason of his lack of sexual control.’”
The Court of Criminal Appeals specifically rejected the state’s claim that the previous Fifth Circuit decisions did not apply to prisoners, parolees or persons already released under the post-1996 mandatory supervision laws. It also rejected the argument that the cost of giving hearings to the 6,900 non-sex offense parolees upon whom Special Condition X had already been imposed was too expensive. Accordingly, the Court ordered that Evans be reinstated on mandatory supervision without Special Condition X. See: Ex parte Evans, 338 S.W.3d 545 (Tex.Crim.App. 2011).
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Related legal case
Ex parte Evans
| Year | 2011 |
|---|---|
| Cite | 338 S.W.3d 545 (Tex.Crim.App. 2011) |
| Level | State Court of Appeals |
| Injunction Status | N/A |