Special Condition “X”
A parolee does not have to be a convicted sex offender to be placed on sex offender conditions of parole, better known as Special Condition “X”. These conditions will almost certainly require that the individual participate in group sex treatment, abide by child safety zones, not have contact with minors, take polygraphs and comply with a host of other onerous conditions. A parolee is entitled to a Coleman hearing before these conditions may be imposed. It is never in the parolee’s best interest to waive the Coleman hearing. The sooner an experienced attorney is retained to oppose the imposition of sex offender conditions of parole, the better the chances of avoiding these conditions.
In Coleman v. Dretke, 395 F3d. 216 (5th Cir. 2005) reh’g and en banc denied, 409 F.3d 665 (5th Cir. 2005), the court recognized that sex offender conditions of parole could be imposed on individuals who had not been convicted of a sex offense. The court required that, in such cases, due process must be afforded prior to the imposition of such conditions. In that case, the court declined to specify the due process required. After Coleman, the Texas Board of Pardons and Paroles implemented a procedure whereby they simply notified an offender in writing that they were considering imposition of sex offender conditions and giving the offender 30 days to reply and tell the Board why such conditions should not be imposed. There was no notice of the evidence being considered, no right to a hearing, and no right to call or cross-examine witnesses.
Due Process
In Meza v. Livingston, 09-50367 (5th Cir. 5-20-10), rehearing denied en banc, (5th Cir. 10-19-10), the court concluded that it was a denial of due process to, among other things: deny discovery; not allow the parolee and counsel to be present at the hearing before a disinterested parole panel; not allow sufficient time to review the evidence and to prepare to examine or cross examine witnesses; not allow the parolee or his attorney to subpoena witnesses; not afford a written report stating the panel’s decision.
Initially, the Parole Board chose to apply Meza only to those under old law MS. It was not applied to parole cases until Ex Parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011) where the Court of Criminal Appeals held that, for individuals who have never been convicted of a sex offense, the Parole Board must provide due process (a Coleman hearing) before imposing sex offender conditions.
The Burden
At the Coleman hearing, the state must now prove that an offender “constitutes a threat to society by reason of his lack of sexual control” before sex offender conditions of parole may be imposed on one who has never been convicted of a sex offense.
Coleman, Meza, and Evans have considerable implications for individuals who have been arrested for or charged with sex offenses, but have never been convicted of a sex offense. If such an individual is later convicted of some other felony and then released to parole or MS, they will almost certainly be notified that the Parole Board is requiring them to undergo an evaluation (and sometimes a polygraph) to determine if the Board will try to impose sex offender conditions of parole based upon the prior alleged sexual misconduct.
Retain Counsel Immediately
It is immediately upon receiving the initial notification that the individual should retain counsel experienced in Coleman hearings. An individual who has not been convicted of a sex offense and who is being evaluated for sex offender conditions of parole has the right to retain their own licensed sex offender treatment provider to do that evaluation, as long as that treatment provider is on paroles approved list. The same applies for a polygraph examiner if a polygraph is being required. The individual also has the right to select their own approved polygraph examiner. As in the case of the treatment provider, it is strongly suggested that the individual retain counsel in time to select their own polygraph examiner. Polygraphs are not foolproof and are not generally admissible in court proceedings. An experienced attorney can often keep a failed polygraph out of evidence, or demonstrate its unreliability. This is critical since polygraphs are often given considerable weight, despite their unreliability.
An attorney experienced in Coleman hearings will be familiar with treatment providers and polygraph examiners who will perform a professional and reasonable evaluation/examination. Left to the assignment of a parole provided treatment provider or polygraph examiner, it is much more likely (if not almost certain) that sex offender conditions will be recommended by the treatment provider and approved by the Parole Board. If an adverse evaluation issues, it is all but certain that the Board will decide to pursue a Coleman hearing to consider imposition of sex offender conditions. All too often, the case is already won or lost by this point, as it is extremely difficult to convince the hearing officer or the Parole Board that sex offender conditions of parole should not be imposed in the face of an adverse evaluation. After completion of the evaluation, the Board will decide whether to consider the imposition of sex offender conditions of parole. In those cases where the Board decides to move forward, they will notify the person that they are entitled to what has come to be called a Coleman hearing.
Do Not Waive Your Rights
It is never in an individual’s best interest to waive the right to have a Coleman hearing. Waiving the right to a Coleman hearing makes it all but certain that sex offender conditions will be imposed.
Individuals placed on deferred adjudication or who are adjudicated delinquent for a sex offense under the Texas Family Code, and individuals whose attorneys are successful in getting dismissals or no bills in sex offense cases should preserve any evidence in those cases, including, but not limited to polygraphs, police reports and DA files (if provided during discovery), and other mitigating evidence. Since The Morton Act limits the release of discovery to a defendant, some discovery may not be available to the client, but they should request that their attorney preserve any evidence that may not be releasable, but that could be helpful in a future Coleman hearing. Additionally, where there is a dismissal, getting the court or the prosecutor to state on the record or in the dismissal order that there was no sexual component to an offense (where there is a conviction for a non sex offense as part of a plea bargain), or that the sex offense was dismissed for lack of evidence, can be helpful if the individual ever has to go through a Coleman hearing. Where the court or prosecutor makes the make such a statement on the record and there is no written documentation of the same, be sure to obtain a copy of that portion of the record, and preserve it.
Coleman hearings can, and have, taken place decades after an alleged sexual act. Exculpatory evidence is nearly impossible to locate that long after the event. It is even harder for someone who enters TDCJ for an offense far removed in time from the allegation of the sexual misconduct. How does one predict that a bogus sexual allegation will, perhaps decades later, be resurrected as a basis to impose sex offender conditions? Most people reasonably never consider that they might find themselves in TDCJ decades later, never mind that a bogus sex allegation may be resurrected from their youth.
For those offenders who do not have a conviction for a sex offense but who were placed on parole with sex offender conditions without the benefit of a Coleman Hearing prior to the Meza and Evans decision, the Board will provide for a Coleman hearing if they are advised that such a person has had sex offender conditions imposed without a hearing.