Ex Parte Campbell
Ex Parte Campbell
Concurring Opinion
filed a concurring opinion in which WOMACK, J., joined.
I join in the denial of relief to this habeas corpus applicant because he was given at least a minimal due-process opportunity to contest the appropriateness of imposing “Special Condition ‘X’ (Sex Offender Condition)”
Seventeen years before his current release on parole in 2006, applicant pled guilty to the Class B misdemeanor of indecent exposure. Twenty-two years before his release on parole, applicant pled guilty to misdemeanor assault. The factual allegations set out in the original police offense reports from these remote misdemeanor convictions are what led the parole board to consider the imposition of Special Condition X. Those allegations have never been tested in a court for their accuracy, and applicant was not convicted of the specific offenses originally filed against him.
The written notice given to applicant by the parole division stated its reasons for considering the imposition of sex-offender conditions:
Arrest for Attempted Sexual Assaults Plead to Misdemeanor Assault (Allegedly tried to rape an adult white female).2 *932 Arrest for Indecency With a Child-Plead to Public Lewdness [sic] (Allegedly exposed penis to persons who were 17 years of age or younger at a public park. Offender claims to have been urinating).3 Awaiting Sex Offender assessment prior to release from TDCJ-ID.
Applicant was told that he could submit a written statement and other documentation within thirty days to explain why the sex-offender conditions should not be imposed. He did not do so. The parole board then ordered that applicant submit to a sex-offender evaluation by a psychologist. He did so, and he explained his version of the events underlying the two previous misdemeanor convictions. The psychologist assumed that all of the facts within the original police offense reports were true, and therefore concluded that applicant was in denial of his likelihood to commit future sexual offenses. The psychologist’s report stated,
Based on the fact that he reported being unable to recall whether he did in fact attempt to rape the adult female, and that he denied intentionally exposing his penis to the children, a specific issue polygraph examination is also recommended in order to assist in [applicant’s] treatment planning.
The record does not reveal whether applicant was ever given a copy of the psychologist’s report. Applicant was not given a second opportunity to be heard before the parole panel voted to impose Special Condition X, including a child-safety zone, on him.
A month and a half after these sex-offender conditions were imposed, applicant candidly told his parole officer that he had been going to his father’s home to take a shower every afternoon because the “sponsor house” where he lived did not have hot water. Unfortunately, applicant’s father’s house is located within 500 feet of a child-care facility.
As the Court correctly notes, a conviction for the Class B misdemeanor of indecent exposure is a “sex” offense because (1) it is listed in Chapter 21 of the Penal Code entitled “Sexual Offenses,” and (2) it involves an intent “to arouse or gratify the sexual desire” of someone. A seventeen-year-old conviction for Indecent Exposure might not appear to be the sort of dangerous sex crime that the Texas Legislature had in mind when it enacted the stringent sex-offender registration and treatment statutes, but it does fit within a literal application of the law.
Nonetheless, the Parole Division wisely erred on the side of discretion and did not automatically impose Special Condition X
Once Special Condition X was imposed, it is not surprising that applicant would fail to abide by every one of its intrusive conditions and prohibitions. Taking hot showers at his father’s home, which happened to be located near a child-care facility, is not the sort of violation that would necessarily call for returning a parolee to a high-cost prison.
. A copy of the Texas Board of Pardons and Paroles sheet outlining “Special Condition 'X'" is included in TDCJ's amicus brief. Those conditions include (1) the mandatory enrollment in a sex offender treatment program; (2) a prohibition against entering any sexually oriented business or any business that provides “adult entertainment”; (3) a prohibition against communicating with the victim of the sexual offense or going near
. The 1984 police offense report stated that applicant entered the apartment of a sixty-year-old woman and that he grabbed her and moved his hand in between her legs. The report stated that she screamed, and applicant ran away and hid under the bed in her bedroom where the police officer found him. It would appear that there might have been problems with this case as the charges were reduced to simple misdemeanor assault. Applicant gave the sex offender psychologist the following explanation of that event: "When I was 18-years-old, I was drunk and I intended to break into a house. At first, they got me for sexual assault, but dropped it to attempted. What happened was the lady in the house started screaming when she saw me. She was an older lady and there was no sex.” When the psychologist asked him whether he had attempted to engage in sexual activity with the woman, applicant said, "I don’t think so; I was drunk.” The psychologist concluded that applicant was in need of sexual-offense-specific treatment, in part because he "does not accept responsibility for the attempted sexual assault, and he did not deny that he attempted to rape the adult female (he reported being unable to recall due to alcohol).”
. According to the 1989 offense report, three young girls and a young boy saw applicant walk up to them in the front yard and unzip his pants. The children said that applicant pulled out his penis, moved it around in his hand, and said, “Hey, look, girl.” The responding officer said that applicant was drunk at the time. Applicant told the sex-offender psychologist, "I was taking a leak in an area where there were kids. They dropped it to public lewdness.” He denied intentionally exposing himself to the children or anyone else.
. Applicant's uncle, a retired school superintendent, told the parole officer that applicant went to his father's home between 5:30 and 6:30 each evening. He said that everyone except the custodian had left the child-care facility by then.
. Because applicant had been previously convicted of “a” sex crime, although not a “reportable” sex offense, it is uncertain whether the procedural due-process protections mandated by the Fifth Circuit in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), are required in this instance.
. In Coleman, the Fifth Circuit did not elaborate on precisely what type of notice and hearing would suffice to support the parole board’s finding that a parolee would "constitute a threat to society by reason of his lack of sexual control.” 395 F.3d at 225.
.In Texas, the average cost per day to imprison an inmate in 2006 was $42.54; the average cost per day to maintain a parolee was $3.51, with an additional cost of $323.69 per year for treatment in the Special Needs Sex Offender Program. Legislative Budget Board, Criminal Justice Uniform Cost Report Fiscal Years 2004-2006 3, 6, 10 (2007).
Dissenting Opinion
filed a dissenting opinion in which MEYERS, JOHNSON and HOLCOMB, JJ„ joined.
The applicant was convicted of the offense of burglary of a building for purposes of committing theft. He was eventually released on parole, but was revoked because the parole panel found that he violated a condition of his release by entering a child safety zone. The applicant argues, inter alia, that the parole panel lacked the discretion to impose such a condition in his case, under Section 508.225(a) of the Texas Government Code.
In concluding that a child-safety-zone condition may be imposed as a condition of the applicant’s parole, the Court points to broad language in Section 508.221 of the Government Code granting a parole panel the authority to “impose as a condition of parole or mandatory supervision any condition that a court may impose on a defendant placed on community supervision under Article 42.12, Code of Criminal Procedure-”
The Court fails to see the whole picture. It is important to construe all of the eondi-tions-of-parole/mandatory supervision provisions contained in Chapter 508 of the Government Code in pari materia. Moreover, in view of Section 508.221’s reference to Article 42.12’s provisions governing conditions of community supervision, it is also important to construe the Government Code provisions in pari materia with provisions in the Code of Criminal Procedure governing conditions of community supervision. Let us begin with the Government Code.
CHAPTER 508
Chapter 508 of the Government Code pertains generally to parole and mandatory supervision in Texas. Subchapter F designates mandatory conditions — those that a parole panel must impose on certain offenders as a condition of their release on parole or mandatory supervision. Among those mandatory conditions is that found in Section 508.187.
In 1999, the Legislature enacted Section 508.225.
Does a parole panel nevertheless have discretion to impose a child-safety-zone condition upon this applicant because he has a prior conviction for indecent exposure? It seems clear enough that a parole panel is not required to impose that condition, since indecent exposure is not among the expressly enumerated offenses in Section 508.187(a). In any event, as noted earlier, under Section 508.187(a), it is the offense for which the releasee is “serving a sentence” that must be among those enumerated, not some prior offense. Expres-sio unius est exlusio alterius.
This maxim should apply with equal force to Section 508.225(a). By expressly enumerating the circumstances in which a parole panel “may” make parole or mandatory supervision contingent upon the imposition of a child safety zone, the Legislature has presumably indicated that such a condition may not otherwise be imposed (except, of course, where mandated by Section 508.187).
ARTICLE 42.12
Even if I were to entertain the Court’s assumption that Section 508.221’s general grant of authority could trump what I take to be Section 508.225’s specific limitation on that authority, I would still hold that the parole panel lacked authority to impose a child-safety-zone condition upon this applicant. Section 508.221 generally authorizes a parole panel to impose any condition that a trial court could impose upon a defendant as a condition of community supervision under Article 42.12. The Court points to general language in Article 42.12, Section 11(a) for the proposition that a trial court is authorized to impose any “reasonable condition” of community supervision,
Like Chapter 508 of the Government Code, Article 42.12 contains specific provisions that address the imposition of ehild-safety-zone conditions. In Article 42.12, Section 13B,
Also like Chapter 508 of the Government Code, Article 42.12 contains a specific provision governing when a trial court is authorized to impose a child safety zone as a condition of community supervision. Section 13D of Article 42.12 provides that a trial court “may” impose such a condition if it “grants community supervision to a defendant convicted of an offense listed in Section 3g(a)(l) or for which the judgment contains an affirmative finding under Section 3g(a)(2)[.]”
The applicant’s parole should not have been revoked on the basis of a condition of release that was unlawfully imposed upon him. I respectfully dissent.
. Tex. Gov’t Code § 508.225(a). This provision reads:
(a) If the nature of the offense for which an inmate is serving a sentence warrants the establishment of a child safety zone, a*927 parole panel may establish a child safety zone applicable to an inmate serving a sentence for an offense listed in Section 3g(a)(l), Article 42.12, Code of Criminal Procedure, or for which a judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure, by requiring as a condition of parole or release to mandatory supervision that the inmate not:
(1) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(2) go in or on, or within a distance specified by the panel of, a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
. See Majority Opinion at 922 ("Section 508.225 does not, however, specifically precluded the use of a child safety zone in other [than the specifically enumerated] circumstances.”)
. Id., citing Tex. Gov’t Code § 508.221.
. Tex.Code Crim. Proc. art. 42.12, § 11(a); George E. Dix & Robert O. Dawson, 43A Texas Practice: Criminal Practice and Procedure § 39.94 (2d ed. 2001).
. Majority opinion at 922-23.
. Tex. Gov’t Code § 508.187.
. Acts 1999, 76th Leg., ch. 56, § 2, eff. Sept. 1, 1999.
. "A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.” Black’s Law Dictionary 602 (7th ed. 1999). "It is a well-known rule of statutory construction in this State and elsewhere that the express mention or enumeration of one person, thing, consequence or class is tantamount to an express exclusion of all others.” Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App. 1979) (Opinion on State’s motion for rehearing); State v. Roberts, 940 S.W.2d 655, 659 (Tex.Crim.App. 1996).
. Williams v. State, 965 S.W.2d 506, 507 (Tex.Crim.App. 1998); Norman J. Singer & J.D. Sambie Singer, 2A Sutherland on Statutes and statutory construction § 47:24 (7th ed. 2007); 67 Tex. Jur.3d Statutes § 116 (2003), at 631— 33.
. See Tex. Gov’t Code § 508.255(c) ("This section does not apply to an inmate described by Section 508.187.”).
. Senate Bill 660 passed through both the Senate and House and their respective committees with no amendment and very little fanfare. According to the various bill analy-ses, its purpose was to ”create[ ] certain conditions for community supervision, parole, and mandatory supervision for certain violent offenders.” Apparently, the Legislature did not believe that the discretionary imposition
. Tex.Code Crim. Proc. art. 42.12, § 11(a).
. Majority opinion at 922.
. Id. at 923. See Tex.Code Crim. Proc. art. 42.12, § ll(i) ("A judge who grants community supervision to a sex offender evaluated under Section 9A may require the sex offender as a condition of community supervision to submit to treatment, specialized supervision, or rehabilitation according to offense-specific standards of practice adopted by the Council on Sex Offender Treatment.”). It is not at all clear to me that the applicant would necessarily qualify as a "sex offender” under Tex.Code Crim. Proc. Article 42.12, § 9A(a)(2). But even if he did, there is no indication that he was ever “evaluated” under that section at the trial court level, and so I cannot conclude that Section 11 (i) would authorize imposing offense-specific "treatment, specialized supervision, or rehabilitation” upon him as a condition of community supervision. Nor is it self-evident to me that imposition of a child safety zone constitutes "treatment, specialized supervision, or rehabilitation.”
. Id. at 922-23.
. Tex.Code Crim. Proc. art. 42.12, § 13B.
. Tex.Code Crim. Proc. art. 42.12, § 13D(a) reads:
(a) If a judge grants community supervision to a defendant convicted of an offense listed in Section 3g(a)(l) or for which the judgment contains an affirmative finding under Section 3g(a)(2), the judge, if the nature of the offense for which the defendant is convicted warrants the establishment of a child safety zone, may establish a child safety zone applicable to the defendant by requiring as a condition of community supervision that the defendant not:
(1) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(2) go in or on, or within a distance specified by the judge of, a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
. Acts 1999, 76th Leg., ch. 56, § 1, eff. Sept. 1, 1999.
. See Tex.Code Crim. Proc. art. 42.12, § 13B(c) ("This section does not apply to a defendant described by Section 13B.”).
Opinion of the Court
delivered the opinion of the Court
We filed and set this case to determine whether and under what circumstances a releasee who has never been convicted of a “reportable offense” may be required to comply with sex offender conditions of early release. We hold that the parole panel was authorized by statute to impose sex offender conditions in general, and a child safety zone condition in particular, upon this applicant, and we hold that these conditions were not imposed in violation of due process.
I. BACKGROUND
In 1992, applicant pleaded guilty to burglary of a building
On July 5, 2006, applicant was released on parole,
On August 11, 2006, the parole panel held a hearing on the matter. Applicant was not given the opportunity to attend this hearing. The parole panel voted to impose special condition “O” (other), ordering applicant to submit to a sex offender evaluation. On August 24, 2006, applicant submitted to a sex offender interview with Aaron P. Pierce, Ph.D. During the interview, Pierce asked applicant to explain his arrests for the two offenses outlined in the notice. With respect to the assault case, applicant replied that he was drunk and intended to break into a house. When asked whether he attempted to engage in sexual activity with the woman in the house, applicant stated, “I don’t think so; I was drunk.” With respect to the indecent exposure case, applicant said he was just “taking a leak in an area where there were kids.” Based upon those answers and other information obtained in the interview, Pierce recommended that applicant be required to complete “a sexual offense specific treatment program.”
On October 6, 2006, the parole panel imposed special condition X. Included within special condition X was a child safety zone condition. On October 11, 2006, applicant received notice of the additional conditions from his parole officer. The parole officer’s report indicated that applicant was under home confinement; was permitted to leave his residence only for work, church, medical emergencies, and sex offender treatment; and was prohibited from going within a certain distance, specified by the Board of Pardons and Parole, of premises where children commonly gather.
On November 27, 2006, applicant admitted to a parole officer that he had been going to his father’s house every day of the week between 5:30 and 6:30 p.m. and that he was aware that his father’s house was in a child safety zone.
In an application for a writ of habeas corpus, applicant contended that, after being paroled out on mandatory supervision, the parole panel “tacked on” sex offender registration and treatment programs in violation of his constitutional rights. He claimed that he “was never convicted of any sex related offenses to initiate said conditions.” He further claimed that the “child safety zone” condition should never have been applied to him and that he should be released back to mandatory supervision without sex offender conditions.
After designating issues and receiving an affidavit and various documents, the district court made the following findings of fact:
(1) [Applicant] has never been convicted or adjudicated guilty of a “reportable” offense as defined by Article 62.001(5), Code of Criminal Procedure;
(2) There was a sexual component to applicant’s prior offense of indecent exposure; however, it was applicant’s first*920 conviction for indecent exposure; therefore, it is not a reportable conviction under Article 62.001(5), Code of Criminal Procedure;
(3) Applicant did not violate conditions of mandatory supervision that resulted in the revocation of his mandatory supervision, because those conditions relating to sexual offenders did not apply to applicant.
Based on its findings of fact, the district court made the following conclusions of law:
(1) Applicant did not violate conditions of mandatory supervision that resulted in the revocation of his mandatory supervision, because those conditions relating to sexual offenders did not apply to applicant;
(2) Applicant is entitled to mandatory release without sex-offender related conditions.
II. ANALYSIS
Citing various statutes and relying upon Coleman v. Dretke>
A. Coleman
Coleman was released on parole on a burglary conviction.
Coleman argued that imposing sex offender registration and therapy as conditions of his early release, without affording the opportunity to contest his sex offender status, violated due process.
In addressing whether the sex offender conditions imposed on Coleman were a dramatic departure from the norm, the Fifth Circuit discussed the Supreme Court case of Vitek v. Jones,
Because the sex offender conditions imposed on Coleman implicated a liberty interest, the State could have legitimately imposed those conditions only if it had determined, after affording Coleman appropriate procedural protections, that Coleman constituted “a threat to society by reason of his lack of sexual control.”
B. Authorization to Impose the Condition at All
It is undisputed that applicant does not have a “reportable conviction” under the sex offender registration statute, which does not list assault or burglary with intent to commit theft, and lists only
Sections 508.186 and 508.187 address situations in which a parole panel must impose certain conditions, but those sections do not constrain the scope of a parole panel’s discretionary authority.
More importantly, section 508.221 confers broad, general authority on a parole panel to impose conditions of parole or mandatory supervision: “A parole panel may impose as a condition of parole or mandatory supervision any condition that a court may impose on a defendant placed on community supervision under article 42.12, Code of Criminal Procedure....”
Indecent exposure is a sex offense
The dissent contends that § 508.225, by authorizing the discretionary imposition of child safety zones for 3g offenders, impliedly prohibits the discretionary imposition of a child safety zone condition for non-3g offenses under the maxim expressio unius est exclusio alterius — expressing one thing implies the exclusion of what was not expressed.
First, the maxim expressed by the dissent is not an inflexible rule but is merely an aid in construction.
Second, the maxim operates only when a comprehensive treatment of the subject matter is intended or when addressing an exception to a general rule.
Section 508.221 confers general authority on parole panels to impose conditions of parole. Chapter 508 may in its totality constitute a comprehensive scheme with regard to the imposition of conditions of parole. But, according to the dissent, the implied prohibition against the discretionary imposition of child safety zones flows from the explicit grant of discretionary authority found in § 508.225. That section does not purport to comprehensively regulate parole conditions and is not framed as an exception to a general rule. Under Dallas, then, the express grant of authority to impose child safety zones for one class of offenders under § 508.225 does not override a parole panel’s general authority to impose a child safety zone condition on other classes of offenders.
Third, an express exclusion in the statutory scheme will negate the existence of implied exclusions. In Fondren v. State, the defendant was prosecuted for the (now non-existent) crime of abortion.
As we have observed, Chapter 508 does contain an express exclusion: orchiectomy is prohibited as a condition of parole or mandatory supervision. This exclusion suggests there are no other exclusions. If the Legislature had intended to prohibit child safety zones except where expressly provided, it could have expressly done so.
Fourth, the parole scheme does contain an express provision authorizing special conditions for sex offenders, including someone in appellant’s position, that would
The dissent further contends that, even if applicant qualified under § ll(i), “there is no indication that he was ever evaluated under that section at the trial court level.”
Finally, it is not self-evident to the dissent that imposition of a child safety zone constitutes “treatment, specialized supervision, or rehabilitation.”
It is worth noting, as well, that article 42.12, §§ 9A and ll(i) were enacted in 2003,
C. Notice and Opportunity to Respond
Assuming Coleman articulates the correct rule of law with respect to the due process right to some manner of hearing, we conclude that this due process right was not violated in applicant’s case because he was in fact provided with notice and an opportunity to respond. Even when a liberty interest exists in the early release context, due process does not require a live hearing at which the convicted person may be present.
Applicant was given notice that he would be considered for sex offender conditions; he did not avail himself of the opportunity to respond. And during the subsequent sex offender evaluation, applicant was allowed to offer explanations with respect to his prior offenses. Applicant complains that he was not given the opportunity to respond to Pierce’s sex offender evaluation report. But even in the mandatory supervision context, where we have acknowledged that a liberty interest in early release exists, we have not held that an inmate is entitled to notice of and an opportunity to respond to all the bad evidence the parole panel may have received concerning him.
We deny relief.
COCHRAN, J., filed a concurring opinion in which WOMACK, J., joined.
. See Tex. Pen.Code § 30.02. Applicant was charged with the variants of burglary that require proof of intent to commit theft or the commission or attempted commission of theft. See id., § 30.02(a)(1), (3).
. See id., § 12.42(d).
. See id., § 21.08.
. See id., § 22.01.
.Applicant's habeas application, the trial court’s findings, and this Court’s “file and set” order all refer to applicant having been released on mandatory supervision. Examination of the official records reveals, however, that applicant was released on parole, not mandatory supervision.
. The house was within 500 feet of what was either a "Head Start” school (according to the revocation allegations) or a day care center (applicant’s testimony). Applicant had previously been moved from that residence to his sponsor residence.
. 395 F.3d 216 (5th Cir. 2004).
. Id. at 219.
. Id.
. Id.
.Id.
. Id.
. Id.
. Id. at 221.
. Id.
. Id.
. Id. (internal quotation marks omitted).
. Id. at 222 (internal quotation marks omitted).
. 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980).
. Coleman, 395 F.3d at 222.
. Id. (citing Vitek).
. Id. at 223.
. Id.
. Id. at 222, 222 n. 26.
. Id. at 225.
. Id.
. See Tex.Code Crim. Proc. art. 62.001(5), and more specifically (5)(F).
. See Tex. Gov’t Code § 508.186 ("A parole panel shall require as a condition of parole or mandatory supervision that a releasee required to register as a sex offender under Chapter 62, Code of Criminal Procedure” fulfill certain conditions); id., § 508.187(b)("A parole panel shall establish a child safety zone” under certain circumstances with certain conditions).
. Tex. Gov’t Code § 508.225(a).
. See id., % 508.225, passim.
. Id., § 508.226.
. Id., § 508.221.
. Tex.Code Crim. Proc. art. 42.12, § 11(a).
. See the text of Tex. Pen.Code § 21.08 ("intent to arouse or gratify the sexual desire of any person”) and the title of Penal Code, Chapter 20 ("Sexual Offenses”).
. Tex.Code Crim. Proc. art. 42.12, § 9A(a)(2)(B).
. M,§ ll(i).
. Id., § 13B(a)(l)(B), (b)(2)(‘‘(a) If a judge grants community supervision to a defendant described by Subsection (b) and the judge determines that a child ... was the victim of the offense, the judge shall establish a child safety zone applicable to the defendant .... (b) This section applies to a defendant placed on community supervision for an offense ... (2) under Section 21.08 ... Penal Code.”).
. See dissent at 928. Although the dissent discusses § 508.197 and article 42.12, § 13B, it acknowledges that those provisions outline the circumstances under which the child safety zone condition is mandatory, rather than discretionary, and it does not appear to be contending that the mandatory provisions can by themselves give rise to an implied prohibition on a parole panel’s discretionary authority-
. Williams v. State, 965 S.W.2d 506, 507 (Tex.Crim.App. 1998).
. Id.
. Id.
. Dallas v. State, 983 S.W.2d 276, 278 (Tex.Crim.App. 1998)(‘‘if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded”).
. Id. at 278-80; see also TexCode Crim. Proc. art. 44.04(a)(authorizing misdemeanor bail but containing no language specifically authorizing conditions of bail), (c)(providing in felony cases that the court "may impose reasonable conditions on bail pending the finality of [the defendant’s] conviction”).
. Dallas, 983 S.W.2d at 279-80.
. There is a different aspect of Chapter 508 that does satisfy Dallas by prescribing an exception to a general rule: the mandatory provisions. The general rule is that the imposition of conditions by a parole panel is discretionary. Two statutes within Chapter 508 outline conditions that are mandatory under certain circumstances, creating exceptions to the general rule of discretion. By specifying the circumstances under which conditions are mandatory, the Legislature has impliedly indicated that no other circumstances involve mandatory conditions. The present case, however, involves when a discretionary condition may be imposed.
. 74 Tex.Crim. 552, 169 S.W. 411 (1914).
. Fondren, 74 Tex.Crim. at 560, 169 S.W. at 415.
. Fondren, 74 Tex.Crim. at 560, 169 S.W. at 415.
. Fondren, 74 Tex.Crim. at 560, 169 S.W. at 415.
. Fondren, 74 Tex.Crim. at 560, 169 S.W. at 415-16.
. Id.
. Dissent at 929 n. 14.
. Tex. Code Crim. Proc. art. 42.12, § 9A(a)(2)(B).
. Id., § 9A(b), (c).
. Indeed, as the dissent notes, the Legislature has elsewhere, in the context of mandatory conditions, expressly limited a condition-of-probation provision’s reach to a person who is actually placed on probation for the sex offense. Dissent at 929-30 (citing Tex. Code Crim. Proc. art. 42.12, § 13B(b)).
. Dissent at 929 n. 14 (emphasis added).
. Dissent at 929 n. 14.
. Council on Sex Offender Treatment, Rules and Regulations Relating to Council on Sex Offender Treatment, 22 Tex. Admin. Code § 810.68(1), p. 45 (2006). See also, § 810.64(d)(20), p. 29 (2006) (regarding possibility of supervised visits with children, client who has history of deviant sexual interest in children should be restricted from having access to children unless certain conditions are present).
. Acts 2003, 78th Leg., ch. 353, §§ 1, 2.
. Acts 1999, 76th Leg., ch. 56, §§ 1,2.
. Ex parte Geiken, 28 S.W.3d 553, 560 (Tex.Crim.App. 2000).
. See id., passim.
Reference
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