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Due Process Required Before Imposition of Sex Offender Parole Conditions
On June 20, 2008, a Texas federal court held that a parolee’s right to receive due process before onerous sex offender conditions were imposed was clearly established in the Fifth Circuit.
Ray Curtis Graham, a Texas state parolee, was placed on Super-Intensive Parole Supervision when paroled on an attempted murder charge in 2003. When evaluating Graham for reduction of supervision level in 2007, the Parole Division (PD) of the. Texas Department of Criminal Justice “discovered” a 1982 Plea in Bar for Aggravated Rape in Graham’s file. Instead of recommending a reduction in supervision level, the PD recommended adding “Special Condition X,” the onerous sex offender conditions. Graham was given notice of hearing on the possible imposition of Special Condition X. A PD expert performed a psychological evaluation of Graham. He hired a lawyer who submitted a polygraph and retained psychiatrist’s evaluation. However, neither Graham, nor his lawyer were allowed to attend the hearing or allowed access to the PD’s psychological evaluation or other documentation which formed the basis of the PD expert’s oral recommendation. The Board imposed Special Condition X on Graham. Graham filed a civil rights suit in federal district court pursuant to 42 U.S.C. sec. 1983, alleging the procedures described above violated his due process rights.
Board officials testified that the Board considers the imposition of Special Condition X between two and five times each day and the hearings last between ten and thirty minutes with the decision being made immediately. Neither the parolee nor his attorney is allowed to attend the hearing, but a PD official appears in person and provides the Board with an oral and written summary of the PD’s case. The parolee’s file and evaluation are available, but the Board is not required to read them and it would take longer than 30 minutes if they did.
The defendants consisted of Parole Board members, Parole Board commissioners and PD officials. They filed numerous and duplicative motions to dismiss. The court held that this issue did not have to be raised as a habeas corpus action, denying dismissal on that basis. The court also held that the commissioner and PD defendants were not entitled to dismissal from the suit on the basis that they were not responsible for policy and rule making. Graham alleged the commissioners were responsible for conducting the hearings and had an unwritten policy that violated due process, and that the PD defendants had direct control over the information presented to the Board but withheld from Graham. This tied them sufficiently to the alleged denial of due process and dismissal was not warranted.
Graham alleged that the PD Director and Chair of the Parole Board enforced and/or promulgated policies that resulted in the denial of due process. He alleged that one Board member and two commissioners voted to impose Special Condition X on him. This sufficiently tied them to the alleged denial of due process. However, five other Board members were not tied to the due process denial and were dismissed from the suit in their individual capacities. The voters were entitled to absolute immunity in their individual capacity, but not in their official capacities. The other defendants were not entitled to qualified immunity because the right to due process before Special Condition X is imposed was clearly established by Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004). The court denied the motions to dismiss except as noted above. See: Graham v. Owens, USDC, W.D. Tx., No. 1:08-cv-00006-SS.
Ray Curtis Graham, a Texas state parolee, was placed on Super-Intensive Parole Supervision when paroled on an attempted murder charge in 2003. When evaluating Graham for reduction of supervision level in 2007, the Parole Division (PD) of the. Texas Department of Criminal Justice “discovered” a 1982 Plea in Bar for Aggravated Rape in Graham’s file. Instead of recommending a reduction in supervision level, the PD recommended adding “Special Condition X,” the onerous sex offender conditions. Graham was given notice of hearing on the possible imposition of Special Condition X. A PD expert performed a psychological evaluation of Graham. He hired a lawyer who submitted a polygraph and retained psychiatrist’s evaluation. However, neither Graham, nor his lawyer were allowed to attend the hearing or allowed access to the PD’s psychological evaluation or other documentation which formed the basis of the PD expert’s oral recommendation. The Board imposed Special Condition X on Graham. Graham filed a civil rights suit in federal district court pursuant to 42 U.S.C. sec. 1983, alleging the procedures described above violated his due process rights.
Board officials testified that the Board considers the imposition of Special Condition X between two and five times each day and the hearings last between ten and thirty minutes with the decision being made immediately. Neither the parolee nor his attorney is allowed to attend the hearing, but a PD official appears in person and provides the Board with an oral and written summary of the PD’s case. The parolee’s file and evaluation are available, but the Board is not required to read them and it would take longer than 30 minutes if they did.
The defendants consisted of Parole Board members, Parole Board commissioners and PD officials. They filed numerous and duplicative motions to dismiss. The court held that this issue did not have to be raised as a habeas corpus action, denying dismissal on that basis. The court also held that the commissioner and PD defendants were not entitled to dismissal from the suit on the basis that they were not responsible for policy and rule making. Graham alleged the commissioners were responsible for conducting the hearings and had an unwritten policy that violated due process, and that the PD defendants had direct control over the information presented to the Board but withheld from Graham. This tied them sufficiently to the alleged denial of due process and dismissal was not warranted.
Graham alleged that the PD Director and Chair of the Parole Board enforced and/or promulgated policies that resulted in the denial of due process. He alleged that one Board member and two commissioners voted to impose Special Condition X on him. This sufficiently tied them to the alleged denial of due process. However, five other Board members were not tied to the due process denial and were dismissed from the suit in their individual capacities. The voters were entitled to absolute immunity in their individual capacity, but not in their official capacities. The other defendants were not entitled to qualified immunity because the right to due process before Special Condition X is imposed was clearly established by Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004). The court denied the motions to dismiss except as noted above. See: Graham v. Owens, USDC, W.D. Tx., No. 1:08-cv-00006-SS.
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Related legal case
Graham v. Owens
| Year | 2008 |
|---|---|
| Cite | USDC, W.D. Tx., No. 1:08-cv-00006-SS |
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