The issue of whether Texas can impose sex offender conditions on parolees who had not been convicted of a sex crime has been litigated for over a decade. Legal challenges have resulted in a series of defeats for parole officials in both state and federal courts, which have held that Condition “X” restrictions are such an infringement on a person’s liberty that a prisoner or parolee who has not been convicted of a sex offense must be afforded a hearing before such conditions can be imposed.
Condition “X” restrictions include prohibitions on: the possession or operation of computer or photographic equipment; visiting any location where minors regularly congregate; establishing a dating, matrimonial or platonic relationship with a person who has minor children; having any contact (directly or indirectly) with minors; or enrolling in a college or university. Other requirements include registering as a sex offender; attending sex offender treatment programs; agreeing to warrantless searches at any time; taking regular polygraphs concerning the parolee’s sexual history; and taking “penile plethysmographs” in which a pressure-measuring device is attached to the penis and monitored while the parolee is shown pictures, to gauge sexual response.
The hearing required before Condition “X” is imposed has about the same level of due process protections as a parole revocation hearing. This means that parolees must be presented in advance with the evidence to be used against them, and must be given an opportunity to attend the hearing, present evidence and cross-examine witnesses. Texas is not required to provide parolees with attorneys, but must allow an attorney to represent them if they hire one.
Faced with a fresh state court loss, Ex Parte Evans, 338 S.W.3d 545 (Tex.Crim.App. 2011) [PLN, Feb. 2012, p.48], in which the Texas Court of Criminal Appeals followed the reasoning of previous Fifth Circuit cases [See: PLN, Feb. 2010, p.20; Sept. 2009, p.20], the parole board apparently decided that – at least for 176 parolees – it was better to simply remove the sex offender designation than to hold 176 hearings. The board is also considering petitions filed by another 300 parolees who were never convicted of a sex offense but have sex offender designations.
Texas legislators have questioned the appropriateness of the expense of closely monitoring thousands of parolees who have not been convicted of sex crimes but are under Condition “X” sex offender parole restrictions. Those expenses are even greater when one factors in the cost of repeatedly defending the practice in court – and consistently losing.
Source: U.S. Politics
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