Texas Sex Offender Oversight Agency Faces Investigations, Calls for Reform
by Matt Clarke
An increasing number of attorneys, legislators and prisoner advocacy groups are calling for reforms to Texas laws governing the civil commitment of sex offenders, with many warning that the state’s civil commitment program may be unconstitutional due to the way it’s managed. As proof, they point to the fact that not one sex offender who has been civilly committed since 1999 has completed the program and been discharged.
At the same time, the newly-appointed director of the little-known Texas state agency charged with overseeing civilly committed sex offenders is struggling to overcome controversy in the wake of the former director’s resignation amid investigations into contract irregularities and dozens of legal challenges.
Marsha McLane, a program specialist with the Texas Board of Pardons and Paroles who boasts 30 years of criminal justice experience, was unanimously approved on May 3, 2014 to head the Texas Office of Violent Sex Offender Management (OVSOM) by the agency’s board.
The board also voted to accept the resignation of former director Allison Taylor, who quit after being embroiled in controversy surrounding attempts to quietly house civilly committed sex offenders in residential neighborhoods in Austin and Houston, and a botched plan to build a prison camp for offenders in rural Liberty County. The controversy also prompted the head of the OVSOM’s governing board to resign, citing a workload too heavy for a volunteer position.
The furor began when the agency, under Taylor’s direction, moved over two dozen civilly committed sex offenders into a house in the Acres Homes neighborhood in north Houston without informing the public or local officials. Strong neighborhood opposition led the OVSOM to relocate the offenders to an east Houston halfway house. Similar community opposition resulted from the agency’s attempt to place civilly committed offenders in a neighborhood in Austin.
Beyond those debacles came the revelation, reported by the Houston Chronicle, that the OVSOM had awarded a contract to build a prison-like camp designed to hold up to 100 civilly committed sex offenders about 40 miles northeast of Houston without informing local residents or lawmakers of the plan. Opposition was swift and fierce.
“Right in the middle of the controversy over Acres Homes, we now find out they were negotiating to move these men to Liberty [County], and they didn’t tell anyone, even though we asked them over and over what their plans were,” fumed state Senator John Whitmire, who chairs the Senate Criminal Justice Committee. “[Then-OVSOM director Alison Taylor] is acting irresponsibly. The governor’s office needs to get control of their appointees and this director.”
Further fueling public indignation was the fact that a part-owner of the company awarded the contract to build the camp, GMW & Associates, was a former Houston police officer who had been convicted of stealing up to $200,000 from the police officers’ union. Additionally, GMW had no experience with such construction projects and did not actually own the 10 acres of land on which the facility was to be built.
The Texas Comptroller’s Office later terminated the GMW contract because the firm was not incorporated in Texas when it submitted its bid. The contract is now under investigation by the Attorney General’s Office, the State Auditor’s Office and the Travis County Public Integrity Unit.
The OVSOM’s decisions to secretly move civilly committed sex offenders into the neighborhoods and sign a contract for the prison-like camp are also the focus of two separate criminal probes, including an investigation by the Texas Rangers into alleged contract irregularities and missing state records.
It was after the controversy surfaced that Dan Powers resigned as chairman of OVSOM’s board. Governor Rick Perry appointed Elizabeth “Christy” Jack, the deputy chief district attorney for Fort Worth, to replace Powers. The governor than appointed Katie McClure, a former prosecutor and victim’s advocate for Brazos, Tarrant and Ellis counties, to round out the agency’s three-member board.
When new director Marsha McLane first arrived at the OVSOM’s headquarters, she found her office in a state of disuse with dirty carpets, piles of dusty cardboard boxes, dead crickets, no computers and a telephone that would not connect her to other agency employees. She learned that Taylor rarely came to the office, instead mostly working from home.
“I can’t recall ever seeing anything like this,” McLane said. “The [executive director] and the deputy director are not available. The general counsel resigned. I’m literally having to start from scratch.”
McLane also had to deal with a growing number of issues surrounding the state’s civil commitment program and questions raised by attorneys, constitutional experts and mental health professionals about the way the program is operated. The program was originally designed to provide outpatient treatment to sex offenders diagnosed with a “behavioral abnormality,” but no one committed to the program has ever successfully completed it and been discharged.
Some two dozen lawsuits have been filed on behalf of sex offenders – many of whom suffer from severe mental illnesses – who have been returned to prison on third-degree felony charges for violating one or more of the 107 rules that program participants are expected to follow. Many of the violations are so minor, such as yelling or being late for a meeting, that if committed by anyone not civilly committed they would not constitute a crime.
Eric Janus, president and dean of the William Mitchell College of Law in St. Paul, Minnesota and an expert on the constitutionality of civil commitment, noted that charging offenders with a felony for rule violations is unique to Texas. It’s “highly problematic and a highly distinctive part of the Texas law,” he said. As evidence, Janus pointed to an agency report that indicated more than half of civilly committed offenders had been returned to prison for rule violations.
“What they’ve done in a sense is create a private criminal code for these people, in that they’ve criminalized behavior that for anybody else is not a crime. [Texas] seems to mix and match the civil and criminal [laws] in a very problematic way,” he stated.
The rule violations can be quite petty, according to Al Wilson, a former parole officer who worked for OVSOM as a case manager for 18 months beginning in 2009. His experiences on the job led him to conclude that the rules were intentionally designed to return civilly committed sex offenders to prison; he was reportedly fired for questioning whether that was fair.
Wilson, who supervised 10 offenders, interviewed them weekly, created their treatment schedules and accompanied them on trips for medical appointments or to visit the law library, said he saw one offender after another sent back to prison for minor rule infractions.
One example, Wilson recalled, was Israel Escobar, whose ankle monitor accidentally came off while he was playing basketball. Following procedure, Escobar immediately informed program officials. Regardless, a supervisor issued a violation and Escobar was arrested and taken to jail.
“I didn’t think it was right,” Wilson said. “In this particular case, it was really no fault of his own except that he was out there playing basketball. But they said he shouldn’t have been playing basketball. I thought that was excessive.”
He added, “If you want to keep them in prison, then by God just say that, be up front about it and just leave them there. But don’t have this ruse.”
“The only way out [of civil commitment] appears to be to die,” noted Harris County assistant public defender Nicolas Highes, who has represented several offenders. “That’s not how it’s supposed to work. In that regard, it’s clearly not constitutional. These people are just being kept locked up.”
Sentences for rule violations can be so severe that the chances are remote an offender will ever be released. For example, in January 2014, a Texas jury sentenced Bradton Dewayne Carter to 30 years in prison for violating requirements of the civil commitment program. He “physically and verbally assaulted a facility employee, failed to attend the required sex offender meetings, failed to give notice that he was leaving the facility and failed to operate his ankle GPS device properly,” according to The Courier, a Montgomery County paper.
Complicating the issue is a requirement under the Texas Health and Safety Code that a sex offender must have a “behavioral abnormality” that prevents self-control of sexual urges before being civilly committed. Because that term is legal and not medical, it is subject to interpretation by the same therapists whose livelihoods depend on keeping offenders in the program.
“It’s a subjective determination, in my view, and that’s where the legal issues start,” said Conroe attorney Scott Pawgan, who has represented several sex offenders. “This process has been sterilized by the state to the point where it favors getting people into this system and keeping them forever.”
Despite multiple challenges, the U.S. Supreme Court has upheld the civil commitment of sex offenders under the presumption that such programs provide treatment analogous to the civil commitment of the mentally ill. [See: PLN, Aug. 2002, p.17; Aug. 1997, p.1]. The high court has cautioned, however, that civil commitment would be unconstitutional if used solely to extend the incarceration and punishment of sex offenders. The Texas Supreme Court has upheld the state’s civil commitment program. See: In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005), cert denied, 126 S.Ct. 428.
Also spurring numerous legal challenges is the state’s practice of channeling all civil commitment cases through one judge, who won his position by successfully campaigning to be “a prosecutor to judge the predators.” State District Judge Michael Seiler of Montgomery County also publicly described the sex offenders he faces in court as “psychopaths.”
“The statute needs to be changed so that all the cases do not happen in Montgomery County,” stated Barbara Corley, who used to supervise civil commitment hearings for the State Counsel for Offenders, the publicly-funded office that represents sex offenders. “Everything shouldn’t be concentrated [before] one judge.”
During a court hearing in 2012 on housing options for about 40 offenders in the civil commitment program, Judge Seiler, a former assistant district attorney, prevented the offenders from testifying and told Corley to “be quiet” and threatened to “throw her out of the courtroom” when she tried to raise an objection, according to court transcripts.
“He effectively denied me the right to represent my clients,” she said.
“Judge Seiler makes apparent that he views his position as prosecutorial rather than impartial,” attorney Zachary Lee, with the State Counsel for Offenders, wrote in a motion asking for Seiler to be recused in the case of convicted sex offender Troy Plaisance. “Judge Seiler’s labeling of all sex offenders before him as ‘predators,’ before they are adjudicated as such connotes a bias.”
Seiler made headlines in 2011, when he was quoted in a news article about remarks he made to a meeting of Montgomery County Republican Women. Responding to a question about whether castration would be a successful strategy for stopping predators, Seiler said it would not because sexual offending is a mental illness. “The castration would have to kind of occur at neck level,” he was quoted as saying.
Sixteen times in the last four months of 2014, defense attorneys petitioned to have Judge Seiler recused from hearing civil commitment cases due to perceived bias; he was removed in eight of those cases. In addition, appellate courts have held that Seiler abused his discretion at least seven times in the past six years, reversing civil commitments and ordering new trials for the offenders.
Court records indicate that in four of the reversed cases, Seiler refused to allow testimony from expert witnesses for the defense, thereby preventing defense counsel from introducing the only evidence that could contradict prosecutors’ claims against their clients. On December 31, 2014, Senator Whitmire called for an investigation by the Commission on Judicial Conduct into Judge Seiler’s alleged bias and improprieties in civil commitment cases.
“From what I now know, it appears we have a court that’s showing strong indications it’s out of control and is legally jeopardizing the good purpose for why this program was established,” Senator Whitmire remarked. “To have one judge overseeing all the cases is not appropriate. It’s clear this guy is acting very bizarre and without a doubt is violating the constitutional rights of the defendants. That has to stop.”
According to OVSOM general counsel Jessica Marsh, as of January 26, 2015 there were 357 offenders in the state’s civil commitment program, including 175 in prison. A total of 370 sex offenders have been civilly committed since 1999; nine have died and four had their commitment orders overturned and have not been retried. She confirmed that no offenders have been successfully discharged from the civil commitment program in the past 15 years.
Sources: Houston Chronicle, Associated Press, www.krgv.com, www.yourhoustonnews.com, gritsforbreakfast.blogspot.com, www.expressnews.com, OVSOM
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Related legal case
In re Commitment of Fisher
|164 S.W.3d 637 (Tex. 2005), cert denied, 126 S.Ct. 428.
|State Supreme Court