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Mandatory Supervision in Private Corrections Facility Allowed in Texas
On June 29, 2005, the Texas Court of Criminal Appeals held that a prisoner
released to mandatory supervision may be confined to a community
corrections facility.
James McCurry, a Texas prisoner, was placed on mandatory supervision
pursuant to Texas Government Code § 508.001(1) and confined to the Ben Reid
Facility, a private correctional facility, as a condition of his mandatory
supervision. McCurry filed a state petition for a writ of habeas corpus
challenging his placement in Ben Reid without first having been given a
hearing. He alleged that confinement in Ben Reid was "qualitatively
different" from the punishment characteristically imposed upon mandatory
supervision releasers who had been convicted of similar crimes, and that it
had stigmatizing consequences. Thus, he alleged, pursuant to the recent
decision in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), he should have
been provided due process before being confined in Ben Reid.
The court held that §508.221, Texas Government Code, allows a parole panel
to impose any condition of mandatory supervision that it is authorized to
impose on a defendant placed on community supervision probation. This
includes a requirement to serve time at a community corrections facility.
Therefore, the court reasoned, McCurry failed to show that confinement in
Ben Reid was either "qualitatively different" from conditions authorized by
statute or a "stigmatizing classification" like the one in Coleman (where a
person who had not been convicted of a sex offense was required to register
as a sex offender and attend sex offender treatment as a condition of
mandatory supervision). Therefore, the appellate court concluded that
McCurry was not entitled to a hearing before being confined in Ben Reid as
a condition of mandatory supervision. See: Ex parte McCurry, 175 S.W.3d 784
(Tex.Crim.App. 2005).
released to mandatory supervision may be confined to a community
corrections facility.
James McCurry, a Texas prisoner, was placed on mandatory supervision
pursuant to Texas Government Code § 508.001(1) and confined to the Ben Reid
Facility, a private correctional facility, as a condition of his mandatory
supervision. McCurry filed a state petition for a writ of habeas corpus
challenging his placement in Ben Reid without first having been given a
hearing. He alleged that confinement in Ben Reid was "qualitatively
different" from the punishment characteristically imposed upon mandatory
supervision releasers who had been convicted of similar crimes, and that it
had stigmatizing consequences. Thus, he alleged, pursuant to the recent
decision in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), he should have
been provided due process before being confined in Ben Reid.
The court held that §508.221, Texas Government Code, allows a parole panel
to impose any condition of mandatory supervision that it is authorized to
impose on a defendant placed on community supervision probation. This
includes a requirement to serve time at a community corrections facility.
Therefore, the court reasoned, McCurry failed to show that confinement in
Ben Reid was either "qualitatively different" from conditions authorized by
statute or a "stigmatizing classification" like the one in Coleman (where a
person who had not been convicted of a sex offense was required to register
as a sex offender and attend sex offender treatment as a condition of
mandatory supervision). Therefore, the appellate court concluded that
McCurry was not entitled to a hearing before being confined in Ben Reid as
a condition of mandatory supervision. See: Ex parte McCurry, 175 S.W.3d 784
(Tex.Crim.App. 2005).
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Related legal case
Ex parte McCurry
| Year | 2005 |
|---|---|
| Cite | 175 S.W.3d 784 (Tex.Crim.App. 2005) |
| Level | State Supreme Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
Ex parte McCurry, No. AP-74, 175 S.W.3d 784 (Tex.Crim.App. 06/29/2005)
[1] IN THE COURT OF CRIMINAL APPEALS OF TEXAS
[2] No. AP-74,969
[3] 175 S.W.3d 784, 2005.TX
[4] June 29, 2005
[5] EX PARTE JAMES MCCURRY, APPLICANT
[6] ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY.
[7] The opinion of the court was delivered by: Hervey, J.
[8] Hervey, J., delivered the opinion for a unanimous Court.
[9] OPINION
[10] This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, Tex. Code Crim. Proc. Applicant was serving a ten-year sentence on a conviction for sexual assault of a child when he was placed on mandatory supervision pursuant to § 508.001(5), Tex. Gov't Code. Applicant was confined at the Ben Reid Correctional Facility (a private correctional facility) as a condition of his mandatory supervision.
[11] Applicant contends that the imposition of this condition without first providing him with a hearing to contest it violated due process.*fn1 He claims that this condition "is qualitatively different from punishment characteristically suffered by sex-offender parolees."
[12] Applicant relies on a Fifth Circuit decision in Coleman v. Dretke which held that a parole panel violated due process by imposing sex offender registration and sex offender therapy as conditions of an inmate's release to mandatory supervision without providing the inmate (who had never been convicted of a sex offense or otherwise found to be a sex offender) an opportunity to contest his sex offender status. See Coleman v. Dretke, 395 F.3d 216, 221-25 (5th Cir. 2004). Coleman applied the principle that due process guarantees an inmate some process before the government can impose conditions that are "qualitatively different" from the punishment characteristically suffered by a person convicted of the crime, and which have stigmatizing consequences. Id. Coleman decided that both of these factors were present in that case. Id. (due process provided inmate with liberty interest in freedom from stigma of sex offender classification and compelled sex offender treatment which was qualitatively different from other conditions which may attend an inmate's release).
[13] Applicant has not shown that his confinement in the Ben Reid facility is "qualitatively different" from conditions authorized by statute (see footnote 1) and characteristically imposed on many other convicted sex offenders who are placed on mandatory supervision. We are unable to conclude that this condition is "such a dramatic departure from the basic conditions of parole" for many other convicted sex offenders that due process mandates procedural protections. Id. Nor can we conclude that applicant's confinement in the Ben Reid facility is a "stigmatizing classification" like the one in Coleman where an inmate who had never been convicted of a sex offense nevertheless was classified as a sex offender with stigmatizing consequences. Id. Applicant, therefore, was not entitled to a hearing to contest his confinement in the Ben Reid facility as a condition of his mandatory supervision.
[14] Habeas corpus relief is denied.
[15] Publish
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[16] *fn1 The applicable statutes put an inmate on notice that a parole panel may impose as a condition of mandatory supervision any condition that a court may impose on a defendant placed on community supervision under Article 42.12, Tex. Code Crim. Proc. See §508.221, Tex. Gov't Code. A court may require as a condition of community supervision that a defendant serve time in a community corrections facility such as the Ben Reid Facility. See Article. 42.12, §§ 11, 12, 18, Tex. Code Crim. Proc.; Article 42.13 § 1(b)(2), Tex. Code Crim. Proc. Applicant, therefore, was on notice that this condition could have been imposed as a condition of his mandatory supervision.
[1] IN THE COURT OF CRIMINAL APPEALS OF TEXAS
[2] No. AP-74,969
[3] 175 S.W.3d 784, 2005.TX
[4] June 29, 2005
[5] EX PARTE JAMES MCCURRY, APPLICANT
[6] ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY.
[7] The opinion of the court was delivered by: Hervey, J.
[8] Hervey, J., delivered the opinion for a unanimous Court.
[9] OPINION
[10] This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, Tex. Code Crim. Proc. Applicant was serving a ten-year sentence on a conviction for sexual assault of a child when he was placed on mandatory supervision pursuant to § 508.001(5), Tex. Gov't Code. Applicant was confined at the Ben Reid Correctional Facility (a private correctional facility) as a condition of his mandatory supervision.
[11] Applicant contends that the imposition of this condition without first providing him with a hearing to contest it violated due process.*fn1 He claims that this condition "is qualitatively different from punishment characteristically suffered by sex-offender parolees."
[12] Applicant relies on a Fifth Circuit decision in Coleman v. Dretke which held that a parole panel violated due process by imposing sex offender registration and sex offender therapy as conditions of an inmate's release to mandatory supervision without providing the inmate (who had never been convicted of a sex offense or otherwise found to be a sex offender) an opportunity to contest his sex offender status. See Coleman v. Dretke, 395 F.3d 216, 221-25 (5th Cir. 2004). Coleman applied the principle that due process guarantees an inmate some process before the government can impose conditions that are "qualitatively different" from the punishment characteristically suffered by a person convicted of the crime, and which have stigmatizing consequences. Id. Coleman decided that both of these factors were present in that case. Id. (due process provided inmate with liberty interest in freedom from stigma of sex offender classification and compelled sex offender treatment which was qualitatively different from other conditions which may attend an inmate's release).
[13] Applicant has not shown that his confinement in the Ben Reid facility is "qualitatively different" from conditions authorized by statute (see footnote 1) and characteristically imposed on many other convicted sex offenders who are placed on mandatory supervision. We are unable to conclude that this condition is "such a dramatic departure from the basic conditions of parole" for many other convicted sex offenders that due process mandates procedural protections. Id. Nor can we conclude that applicant's confinement in the Ben Reid facility is a "stigmatizing classification" like the one in Coleman where an inmate who had never been convicted of a sex offense nevertheless was classified as a sex offender with stigmatizing consequences. Id. Applicant, therefore, was not entitled to a hearing to contest his confinement in the Ben Reid facility as a condition of his mandatory supervision.
[14] Habeas corpus relief is denied.
[15] Publish
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[16] *fn1 The applicable statutes put an inmate on notice that a parole panel may impose as a condition of mandatory supervision any condition that a court may impose on a defendant placed on community supervision under Article 42.12, Tex. Code Crim. Proc. See §508.221, Tex. Gov't Code. A court may require as a condition of community supervision that a defendant serve time in a community corrections facility such as the Ben Reid Facility. See Article. 42.12, §§ 11, 12, 18, Tex. Code Crim. Proc.; Article 42.13 § 1(b)(2), Tex. Code Crim. Proc. Applicant, therefore, was on notice that this condition could have been imposed as a condition of his mandatory supervision.