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August 17, 2011

Texas giving up unilateral branding as sex offenders those not convicted of sex crimes

This interesting piece from the Austin American Statesman reports on notable developments with sex offender designations in Texas.  The piece is headlined "Some Texas parolees freed of sex offender label; After losses in court, state changes how it deals with those not convicted of sex crimes," and here are excerpts:

After years of fighting in court against giving parolees a hearing before they are classified as sex offenders, state officials have begun dropping the sex offender designations — in some cases without administrative hearings, according to parole attorneys.

Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles, and Stuart Jenkins, parole director for the Texas Department of Criminal Justice, who have steadfastly defended the past policy in court, could not be reached for comment Tuesday.

The change occurred after an 8-0 ruling by the Texas Court of Criminal Appeals in May affirmed what several federal courts previously had ruled: The parole board cannot unilaterally decide whether to brand a prisoner as a sex offender if he or she has not been convicted of a sexual offense.

By officials' earlier estimates, as many as 6,900 of the 80,600 parolees could be affected by the change. To review those cases would require perhaps as many as 1,000 hearings a week — an impossible number, some parole officials had said.

The change caps more than a decade of court challenges, including at least five high-profile court decisions branding the action without hearings unconstitutional...

Attorneys who have seen parolees' Condition X designations removed said the policy change is long overdue. "This is a huge change," Austin attorney Gary Cohen said. "The law has been clear for years on this. But it just shows the institutional mentality of parole officials: Instead of doing the right thing, they resist and resist and resist and continue losing in court. If they had (changed the policy) years ago, as they should have, they would have saved a lot of money and litigation."

Bill Habern, a Riverside attorney who filed several of the cases that resulted in adverse decisions for parole officials, agreed. "That May decision was the nail in their coffin," he said. "There are thousands of cases that could be affected."

August 17, 2011 at 01:19 PM | Permalink


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This is actually a huge deal. The (Republican-appointed) federal judge who ruled the state was violating parolee due process rights wrote in one ruling that Texas' parole board chair must be some combination of "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed" for not following repeated admonitions by the court. At one point he ruled she was personally liable for the board thumbing its nose at federal courts (though in the end the judge issued no specific sanctions against her, merely ordering the prison policies changed).

I've been wondering whether the board's years-long recalcitrance on this might open them up to Sec. 1983 civil liability, maybe even on some class action basis. This was undoubtedly a "pattern and practice" that flew in the face not just of federal court rulings but advice from their own legal counsel, dragging on many years longer than it should have if officials in the executive branch had been willing to abide by clear-as-a-bell federal court decisions.

Posted by: Gritsforbreakfast | Aug 19, 2011 11:40:58 AM

Damn Texans!

Posted by: Huh? | Aug 22, 2011 2:54:37 PM

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