The Austin Chronicle

BPP Retreats on 'Special Condition X'

By Jordan Smith, June 17, 2011, News

The rules committee of the Board of Pardons and Paroles met on Wednesday, June 8, to consider immediate implementation of new "emergency rules" for determining when parolees can be saddled with release conditions – known as Special Condition X – normally reserved for sex offenders. At issue is the agency's imposing of 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 of 8-year-old Kendra Page in Southeast Austin – federal courts have ruled that the BPP procedures imposing 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 it did not act until this week to make those rules universal for all Texas parolees who have not committed a sex offense. The changes were prompted, lawyers say, by a unanimous decision from the Texas Court of Criminal Appeals last month in an unrelated case involving Johnathan Evans, who was saddled with the conditions even though both prosecutors and the judge on his case agreed that his was not a sexually motivated crime.

On May 4, the Court of Criminal Appeals ruled that Evans be released, that the sex offender provisions of his parole be removed, and that the BPP has not provided due process to offenders in Texas before imposing the extremely onerous requirements of Special Con­di­tion X. The board may deny parole if there's evidence that the inmate is still a threat, and when parole is being considered under normal circumstances, notice of that consideration and "an opportunity to be heard is sufficient due process." But when "highly invasive" or "stigmatizing" conditions – such as those of Special Condition X – might be applied, a parolee must be afforded greater due process, the court wrote.

One of the reasons behind BPP's resistance to making the rules universal has been its interpretation of the Meza ruling. The parole board argued that only inmates released under the same circumstances as Meza should be afforded the due process consideration. Meza was discharged on "mandatory release" parole (having fulfilled his sentence with time served and "good time" credit for good behavior), which was the situation explicitly addressed by the previous court decisions. Until last week, the BPP was loathe to apply the standard to all other parolees. Lawyers say the Evans decision has finally forced the board to unify the interests of all inmates facing imposition of Special Condition X provisions when their convictions were not for sexual offenses.

"They finally got dumped in the grease," says veteran parole attorney Bill Habern. He 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 board to act. Referring to notoriously prosecution-friendly Court of Criminal Appeals Presiding Judge Sharon Keller, Habern said, "When you can't get Judge Keller to rule in favor of a state law enforcement agency [like the BPP], you know it's pretty bad."

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