BPP Retreats on Arbitrary Imposition of 'Sex Offender' Rules

On Wednesday, June 8, the rules committee of the Board of Pardons and Paroles met to consider immediate implementation of new "emergency rules" for determining when parolees can be saddled with release conditions normally reserved for sex offenders.

At issue is the agency's imposing very restrictive sex offender parole conditions on inmates not actually convicted of sex offenses. In several high-profile cases, including that of Raul Meza, who was convicted of the 1982 murder in Southeast Austin of eight-year-old Kendra Page, federal courts have ruled that the BPP procedures that impose those restrictions without a hearing violate a parolee's due process rights.

The board only recently adopted rules to address the due process issues, but did not act to make those rules universal for all Texas parolees who have not committed a sex offense, until this week – prompted, lawyers say, by a unanimous decision from the Court of Criminal Appeals last month in the case of Johnathan Evans. Evans was sentenced to 10 years in prison for injuring his two baby daughters in 2001; both the prosecutor and the trial judge found that there was no evidence that the children had been sexually abused. In 2006, Evans was released to parole in Lubbock; he was placed on intensive supervision and did so well that he was released from the extra scrutiny just seven months later. At that point Evans asked that his parole be transferred to El Paso, so he could be near his daughters and attend classes at El Paso Community College. Not long after he arrived in El Paso, however, Evans received notice from his new parole officer that sex offender restrictions – so-called "Special Condition X" – would be added to the conditions of his parole. According to the parole officer, Evans' case did have elements of a sex offense.

Evans tried to fight the new conditions, but they were quickly imposed. He lost his job because he couldn't drive to work without passing through a "child-safety zone," forbidden for sex offenders; after parole officers in October 2008 conducted a search of Evans' mother's house, where he was living, and found contraband – including "possession of a cell phone with still picture and video capability," and several "sexually explicit images" on that phone (none of children), the CCA wrote in its opinion, Evans' parole was revoked and he was sent back to prison.

On May 4, the CCA ruled that Evans should be released and that the sex offender provisions of his parole must be removed. Indeed, the court ruled that the BPP has not provided due process to offenders in Texas before imposing the extremely onerous requirements of Special Condition X. The BPP may deny an inmate release if there is evidence to believe that the inmate is still a threat; and when parole is being considered under normal circumstances, notice of that consideration for release and "an opportunity to be heard is sufficient due process." But when the "highly invasive" or "stigmatizing" conditions, such as in Special Condition X might be applied, a parolee – like Evans, who was already successfully living outside of prison – must be afforded greater due process, the court wrote. "It would certainly seem logical that a person who has already been released from prison because he did not constitute a threat to society is entitled to more due process protection from imposition of sex-offender conditions than a person who, like Meza, was required to be released from prison regardless of how grave a threat he might post to society," the court wrote.

Indeed, part of the heel-dragging from the BPP to make the rules universal has been their interpretation of the ruling in Meza that only inmates released under the same circumstances as Meza should be afforded the due process consideration. Meza was discharged on "mandatory release" parole (when good time and time served added to the imposed sentence), which was the situation explicitly addressed by the previous court decisions. Mandatory release morphed into the oddly named "discretionary mandatory release," in 1996, when the BPP was given more leeway to deny parole when circumstances might warrant it. Until this week, the BPP was loathe to apply the previous court decisions to this later group of inmates (as well as to all other parolees). However, lawyers say that the Evans decision has finally forced the BPP to act, by unifying the interests of all inmates facing imposition of Special Condition X provisions when their conviction was not for a sexual offense.

"So it's time to stop playing these games," says veteran parole attorney Bill Habern. Habern and his colleagues David O'Neil and Scott Pawgan (who litigated Evans' case pro bono) have handled a number of these kinds of cases and are pleased that the court has finally pushed the BPP to act. "They finally got dumped in the grease," he said. "When you can't get [CCA Presiding] Judge [Sharon] Keller to rule in favor of a state law enforcement agency [like the BPP], you know it's pretty bad."