EX Parte Evans
EX Parte Evans
Opinion of the Court
OPINION
In his application for a writ of habeas corpus, applicant contends that the Texas Department of Criminal Justice — Parole Division (TDCJ) improperly and without due process placed “Special Condition X” (sex-offender conditions) on him after he had been released on mandatory-supervision parole. Based on the evidence in the
I.
The judge of the convicting court is the original factfinder in post-conviction habe-as corpus proceedings. Thus, this Court gives great deference to the convicting court’s findings of fact, conclusions of law, and recommendations, as long as they are supported by the record.
On October 29, 2001, applicant pled guilty to two counts of reckless injury to a child involving his two baby girls, Jasmine and Jade Evans. According to the prosecutor who handled the case, at no time “did [he] ever view the case as a sex crime, nor did [he] see anything in the case to indicate any sexual intent or conduct which concerned me.”
Applicant was sentenced to ten years in prison on each count. According to TDCJ records, he was “released to parole”
He wanted to become a nutritionist and registered for classes at the El Paso Community College.
But once applicant arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposi
The file material indicates the offender had been caring for two month old twin daughters. The children were taken to the hospital with broken legs, skull fracture, and bruising on the buttocks. Bright red spots were also found in the vaginas of both victims. The offender claimed he may have wiped them too hard causing the bleeding. He also stated when changing their diapers he would insert his finger in their vaginas in order to be sure there was no feces in their vaginas. He also said he would [pinch] their butts to play with them and this was how the bruising occurred.7
Applicant submitted a written response, stating that he was unable to obtain the court records from his daughters’ pediatrician that clarified that there were no bruises on the daughters’ buttocks; the markings were “strawberry patches” which are frequently found on African and Asian babies. Applicant also stated that the girls’ doctor explained in court that the bright red spots on their vaginas were diaper rash because applicant did not clean them sufficiently when changing their diapers. Applicant also clarified that he did not clean his daughters’ private parts with his bare finger, but rather with a baby wipe. He stated that the statements written by the El Paso parole officer have been “mistakenly opinionated.”
Nonetheless, applicant’s El Paso parole officer recommended that the Board panel impose “Special Condition X” — the Sex-Offender Program. Her transmittal also includes a statement that applicant “was deceptive” during a polygraph examination
These sex-offender conditions included, inter alia:
• Enroll in and participate in a treatment program for sex offenders;
• Not communicate directly or indirectly with the victims of “the sex offense”;
• Not participate in any volunteer activities without prior written approval of the parole officer;
• Not enroll in or attend any institution of higher learning, including a community college, without prior Board approval and notification to the victims of “the sex offense”;
• Not view, possess, purchase, or subscribe to any photographs, literature, magazines, books or visual media that depict sexually explicit images;
*548 • Submit to polygraph examinations as approved by the parole officer and Board;
• Not attend any program that includes participants who are 17 years of age or younger or go within 500 feet of anywhere that children commonly gather, including schools, day care facilities, playgrounds, public swimming pools;
• Not become involved in dating, marriage or platonic relationships with anyone who has children 17 years old or younger without written approval by the parole officer;
• Not reside with, have unsupervised contact with, or cause to be contacted, any child 17 years or younger in person, by telephone, correspondence, video or audio device, unless the offender is the legally recognized parent of the child;
• Not own, maintain or operate computer equipment without written authorization from the parole officer;
• Not own, maintain, or operate photographic equipment, including still photos, videos, or any electronic imaging equipment unless approved in writing by the parole officer; and
• Submit to a search of the person, motor vehicle, place of residence, and property, without a warrant at any time, day or night.
Immediately after these sex-offender conditions were imposed, applicant went downhill. He lost his job as a tile-installer because he could not drive to work without going through child-safety zones. He did not dare visit his two daughters because he did not have the parole officer’s written approval. He became stressed and anxious because he could not resume his college work,
On October 16, 2008, applicant’s parole officer, along with five other parole officers, came to his home and searched it. One officer found a cell phone on applicant’s bed that had a picture of a nude woman on it. Several other pictures of nude women were found in his cell phone online photo album. The six parole officers found various items in a black footlocker, including two pornographic DVDs and two disposable cameras with undeveloped film. The parole officers also found a Bowie knife in a shoe box.
Four days later, applicant was given notice of a motion to revoke parole, in which the parole officer alleged nine violations, all based upon the results of the search, and all but one of which involved violations of “Special Condition X.” Applicant’s pro
Applicant’s father, stepbrother, stepmother, employer, and uncle all appeared and testified on his behalf. Applicant testified that he had his cell phone since 2007 when he was in Lubbock and that the parole officer knew about it and had expressed no concern about it. Joseph Ga-larza, applicant’s stepbrother, testified that the disposable cameras were his and the pictures were of him and his family. Roxanne Evans testified that she owns the home that applicant had been living in. She said that the black footlocker belonged to her deceased son, Greg, and it contained letters written to her other son, Christopher, as well as the two pornographic DVDs, and the cameras and photographs owned by Joseph Galarza.
Nonetheless, the hearing officer found that applicant had violated the sex-offender conditions by his (1) possession of several photographs on his cell phone depicting sexually explicit images; (2) possession of the two pornographic DVDs found in the footlocker; (3) possession of homemade, sexually explicit videos on his cell phone; (4) use of the internet on his cell phone to send and receive sexually explicit images; and (5) possession of a cell phone with still picture and video capability. The hearing officer found that the other allegations, including the sole non-sex-offender violation, were not proven.
Applicant’s attorney filed a Motion to Reopen Revocation Hearing, once again arguing that “Special Condition X” was imposed on applicant without due process of law and without a factual basis. He noted that “the basis to put Applicant on special condition X was three sentences in hundreds (100s) of pages of material related to Applicant’s injury to a child offense.” And the parole officer had taken those sentences out of context.
Applicant’s parole was revoked, and he was returned to prison. Eighteen months later, applicant filed his application for a writ of habeas corpus in the convicting court. Based upon the evidence in the record, the trial judge made the following findings:
1. Applicant was not convicted of a sex offense. He was convicted of two counts of injury to a child.
2. Based upon the trial court’s personal recollection of the facts adduced at Applicant’s trial, there was no evidence of sexual abuse of Applicant’s victims.
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5. The State imposed Special Condition “X,” and thereafter Applicant’s parole was revoked for violation of Special Condition “X.”
6. The Trial Court finds that Applicant was not afforded due process before the imposition of sex offender conditions.
II.
In concluding that applicant was not afforded due process before the imposition of sex-offender conditions, the trial judge relied on the federal district court’s reasoning in Meza v. Livingston.
Both the federal district court and the Fifth Circuit Court of Appeals agreed with Meza. The Fifth Circuit’s opinion is particularly important because it clarified exactly how much process is constitutionally due before sex-offender conditions may be imposed upon a parolee who has not been convicted of a sex offense.
Accordingly, the Fifth Circuit, after discussing four Supreme Court decisions,
(1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;
(2) disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;
(3) a hearing in which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;
(4) the right to confront and cross-examine witnesses, unless good cause is shown;
(5) an impartial decision maker;
(6) a written statement by the factfinder as to the evidence relied on and the*551 reasons it attached sex offender conditions to his mandatory supervision.25
The only difference in the reasoning and result reached by the federal district judge and the Fifth Circuit was that the latter held that the State was not required to provide the parolee with counsel for purposes of the evidentiary hearing.
The same minimal due-process procedures found wanting in Meza were used in applicant’s case. The habeas judge in the present case relied upon the specific holding in Meza and also found the following:
The procedural history of Meza [is] very similar to this case. Applicant in this case was not convicted of a sex offense. The State gave notice of intent to impose sex offender conditions — Special Condition “X,” but Applicant was not allowed to appear at the hearing, present his own witnesses, nor confront or cross-examine the State’s witnesses.
It would certainly seem that the procedural posture in Meza is similar to that in this case.
III.
TDCJ, acting through the Office of the Attorney General, makes four general arguments. First, applicant has received all of the due process he was entitled to under Ex parte Campbell.
A. Our decision in Ex parte Campbell followed much of the Fifth Circuit’s reasoning in Coleman. Now that the Fifth Circuit has clarified Coleman, we shall clarify Ex parte Campbell.
In its first two arguments, TDCJ claims that the due-process rights set out in Meza apply only to those inmates who were released on mandatory supervision under the pre-1996 law because Mr. Meza himself was released under the pre-1996 law. Now that release on mandatory supervision is discretionary, TDCJ argues, inmates who are released under “discretionary” mandatory supervision are not entitled to due process before the imposition of “Special Condition X.”
If logic is any guide, this is exactly backwards. Before the enactment of “discretionary” mandatory supervision, all inmates whose good time plus actual time in prison equaled the total length of their sentence were absolutely required to be released on parole.
Thus, under the current law, if an inmate poses a threat to society — sexu
But applicant was released on mandatory supervision because the Board did not find that he posed a threat to society. He was released with SISP conditions, but without “Special Condition X.” He abided by his SISP conditions and was released from them after successful completion of parenting and anger-management classes. It was only after he had been a successful parolee for eighteen months that his new El Paso parole officer set in motion the procedure to impose sex-offender conditions on him.
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 pose to society. Indeed, the Fifth Circuit’s opinion in Meza stated that “if Meza were an inmate instead of a parolee, the Wolff standard [the same due-process standard that the Meza court adopted]
TDCJ argues that the bare-bones due-process procedure of notice and an opportunity to respond that we set out in our decision in Ex parte Campbell — a case dealing with the imposition of sex-offender conditions on a releasee who had a prior sex-offense conviction of some type — also suffices for those released on discretionary mandatory supervision who have no prior sex-offense convictions.
As its third argument for why applicant should not obtain relief, TDCJ argues that applicant’s parole was not revoked specifically for violations of “sex-offender treatment.” True enough, but applicant was revoked because of the violation of conditions contained in “Special Condition X.” And, as applicant argues, none of those sex-offender conditions should have been imposed on him without the due-process procedures required by Meza. TDCJ relies on the Fifth Circuit’s decision in Williams v. Baliará,
“Special Condition X,” but rather the entire panoply of stigmatizing and highly invasive requirements of “Special Condition X.” The Fifth Circuit posed the crucial issue in its first paragraph:
Texas parolee, Raul Meza, who has never been convicted of a sex offense, sued [the TDCJ defendants] for violations of his right to due process after the defendants attached sex offender conditions to his mandatory supervision. This court has made clear that sex offender conditions may only be imposed on individuals not convicted of a sex offense after the individual has received due process. Meza alleges that before sex offender conditions were attached to his mandatory supervision, inadequate process was provided. Thus, this case requires us to determine whether the process utilized by the defendants in this case is constitutionally sufficient.51
From this introductory paragraph and the lengthy discussion and constitutional analysis that follows, we cannot conclude that the Fifth Circuit intended that the due-process requirements applied only to one or two of the sex-offender conditions set out in “Special Condition X.”
TDCJ also cites an apparently unreported district court order, Carter v. Thaler,
C. We need not remand for another hearing concerning the fiscal impact of Meza on TDCJ.
TDCJ argues here, just as it did in the federal district court and the Fifth Circuit, that it is too expensive to provide a due-process evidentiary hearing before imposing sex-offender conditions on those who have never been convicted of a sex offense. TDCJ states that approximately 33,000 inmates were released last year on parole, mandatory supervision, or discretionary mandatory supervision. But that number is irrelevant as it includes the entire cohort of releasees, including DWI felons, drug addicts and dealers, thieves, and all manner of non-sex offenders. The relevant figure is the number of potential releasees who have not been convicted of a sex offense, but for whom TDCJ seeks the imposition of “Special Condition X.” And surely that is a very small number indeed because TDCJ may refuse to release those inmates (subject to discretionary mandatory supervision or parole) who currently pose a threat — sexual or otherwise — to society.
In Meza, the district judge noted that the “State argues that it will be financially burdensome to increase procedural protections for offenders whose parole it hopes to condition on sex-offender-conditions.”
Therefore, we agree with the habeas judge in this case that, under Meza, applicant is entitled to the relief he seeks: immediate reinstatement of his release on mandatory supervision and removal of “Special Condition X” from the terms of his parole. The mandate shall issue on this date. A copy of this opinion shall be delivered to TDCJ.
. See Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex.Crim.App. 2007); see also Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App. 2008) (describing the role of the trial judge in habeas proceedings as " ‘the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed fact issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief' ”) (quoting Ex parte Simpson, 136 S.W.3d 660, 668 (Tex.Crim.App. 2004)).
. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.App. 2006); see also Ex parte Simpson, 136 S.W.3d at 668 (noting that this Court's role is to “review the trial court’s factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law.”).
. Ex parte Van Alstyne, 239 S.W.3d at 817.
. In his letter concerning applicant, the Assistant District Attorney also stated, "Unless there has been documentation of conduct since the time of his conviction which would indicate reasons for concern, I cannot see a reason to register this convicted felon as a sex offender.”
. “An inmate released to mandatory supervision is considered to be released on parole.” Tex. Gov’t Code § 508.147(b).
. "Super Intensive Supervision Program.”
. There is nothing in the record that explains the source of this information, but presumably it was taken from an underlying offense report and/or medical records. We cannot assess the reliability or context of this information because there is no back-up document to substantiate it. Applicant's counsel states that this information was contained in portions of a very lengthy offense record and medical records, but that it was taken out of context.
. Applicant’s explanation is consistent with the prosecutor’s opinion that applicant’s offense did not involve sexual abuse and with the trial judge's similar conclusion.
. The transmittal states that applicant was deceptive when he stated that "he did nothing wrong” that led to his convictions for injury to a child. But that deception says nothing about sexual misconduct, as the offense concerned physical misconduct.
.Again, there is nothing in the record to show what type of evaluation was involved, how long it lasted, or the factual basis for "Bill Magee’s” conclusion. Applicant said that this therapist, who had a contractual relationship with the Parole Board, interviewed him for eight minutes. Applicant’s attorney stated that Mr. Magee "had a financial interest in finding that Applicant met the criteria for special condition X, due to the fact if Applicant was placed on special condition X, Mr. Magee would provide the treatment
Applicant later submitted a report from Dr. Walter Quijano, a clinical psychologist, who conducted a clinical interview as well as the Millón Clinical Multiaxial Inventory-Ill (MCMI-III). Applicant tested "in a socially favorable light,” but also high for anxiety. He did not appear to meet the criteria of antisocial personality disorder. Dr. Quijano concluded that "there appears to be no basis for classifying [applicant] as a sexual offender.” His diagnostic impression was that applicant had "adjustment disorder with anxiety and depressed mood, secondary to imposition of [Special Condition] X." He also diagnosed adult antisocial behavior based on the offense of conviction.
. Previously, applicant had a 3.5 average in his basic classes at community college.
. 623 F.Supp.2d 782 (W.D.Tex. 2009), affd zn pari, 607 F.3d 392 (5th Cir. 2010).
. Id. at 785.
. Id. at 784.
. Id. at 785.
. Id. at 786.
. Id. at 789.
. Meza v. Livingston, 607 F.3d 392, 395 (5th Cir. 2010).
. 395 F.3d 216 (5th Cir. 2004).
. Meza, 607 F.3d at 397 (quoting Coleman, 395 F.3d at 225).
. Id.
. Id. at 401-03 (concluding that "the current Texas procedures for providing parolees with their Coleman notice does not meet the constitutional requirements for due process.”).
. The Meza court, like several other federal circuit courts, see note 44 infra, discussed
. Id. at 411.
. Mat412.
. Id. at 411, 413 ("Given the substantial cost to the State to provide counsel to parolees facing registration and sex therapy and the Supreme Court precedent discussed above, we conclude that the State is not required to provide counsel to Meza.”).
. Of course we are not bound by Fifth Circuit precedent on federal constitutional issues, Magouirk v. Phillips, 144 F.3d 348, 361 (5th Cir. 1998) (state courts located in the Fifth Circuit "are not bound by Fifth Circuit precedent when making a determination of federal law”).
. 267 S.W.3d 916 (Tex.Crim.App. 2008).
. Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010).
. TDCJ argues, "Because [applicant] was released to discretionary mandatory supervision, he is not entitled to the additional due process described in Meza, which applies only to inmates released to mandatory supervision under the pre-1996 statutes.” TDCJ Brief at 8. TDCJ has attached a short, undated, and apparently unpublished, opinion from the Fifth Circuit clarifying its prior opinion in Meza, by noting that it addressed the pre-1995 version of the mandatory release statute, not the amended version which made release on mandatory supervision discretionary.
. See 1977 Tex. Gen. Laws 925 (currently codified, as amended, in Tex. Gov’t Code § 508.001, et seq.).
. See House Comm. Report, Bill Analysis, Tex. H.B. 1433, 74th Leg., R.S. (1995) (amending then Tex.Code Crim. Proc. art. 42.18, § 8(c) and adding subsection (c-1), now codified at Tex. Gov’t Code § 508.149) (noting that "mandatory supervision has turned into an automatic open door for prisoners out of the Texas Department of Criminal Justice (TDCJ) institutional division. Once eligible inmates reach an average of 48% of their total sentence, the Pardons and Parole Board has no discretion or decision making power regarding their release.... [T]he purpose of this Act is to give the Pardons and Parole Board a lever to close the ‘automatic open door' of mandatory supervision .... Inmates will not be released to mandatory supervision if the parole panel determines the release of the prisoner would endanger the public.”). The amendment creating "discretionary” mandatory supervision was enacted in 1995, but did not go into effect until September 1, 1996.
. See, e.g., Bill Minutaglio, Hating Raul, Dallas Morning News, Jan. 2, 1994 (Dallas Life), at 6 (lengthy article setting out the history of Meza’s murder of Kendra Page, his release on mandatory supervision, and his movement from El Paso, Witchita Falls, San Antonio,
. See generally Ex parte Geiken, 28 S.W.3d 553, 555 (Tex.Crim.App. 2000) (discussing the 1995 changes to the mandatory supervision statute which became effective Sept. 1, 1996).
. Tex. Gov’t Code § 508.149(b)(2).
. Coleman v. Dretke, 395 F.3d 216, 225 (5th Cir. 2004) ("The Texas Department of Criminal Justice is authorized by Texas law to impose reasonable conditions on parole to serve the interests of protecting the community and rehabilitating the parolee. When those conditions impact a liberty interest of the parolee, they may be imposed only with justification. The Department may condition Coleman’s parole on sex-offender registration and therapy only if he is determined to constitute a threat to society by reason of his lack of sexual control. Absent a conviction of a sex offense, the Department must afford him an appropriate hearing and find that he possesses this offensive characteristic before imposing such conditions.”) (footnote omitted).
. 28 S.W.3d 553 (Tex.Crim.App. 2000).
. Id. at 558.
. Id. at 560.
. 211 F.3d 953, 958 n. 6 (5th Cir. 2000) ("The new Texas Mandatory Supervision law adds a dimension of discretion to the Mandatory Supervision scheme, providing that if a parole panel determines that the inmate's accrued good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation and the inmate’s release would endanger the public, he may not be released to mandatory supervision.”).
. See Coleman, 395 F.3d at 223-25.
. Meza v. Livingston, 607 F.3d at 409. The Fifth Circuit stated that “Meza can claim at least the same process of an inmate, but as a parolee, he should generally be entitled to more favorable treatment than inmates.” Id. The court also noted that "the Board already provides parolees with written notice that sex-offender conditions may be imposed as a condition of parole. Similarly, the decision to impose sex-offender conditions is currently made by the Board, an impartial decision maker. The other requirements listed here, however, are not currently part of the Board’s procedures.” Id. n. 14. The Fifth Circuit's message appears to be that its due-process procedural requirements set out in Meza apply to all inmates who might be paroled or released on mandatory supervision,
. Id. at 408.
. As the Fifth Circuit stated in Coleman, "We can hardly conceive of a state's action bearing more 'stigmatizing consequences’ than the labeling of a prison inmate as a sex offender.” 395 F.3d at 223 n. 27 (internal quotation marks and citation omitted). Several other federal circuits have held the same in requiring due-process procedural protections and evidentiary hearings before labeling either an inmate or releasee a "sex offender” and imposing special conditions upon him as a result. See, e.g., Renchenski v. Williams, 622 F.3d 315, 326-31 (3d Cir. 2010) (holding that only after due process has been afforded may sex-offender conditions be imposed on an inmate who has not been convicted of a sexual offense because "[i]t is largely without question — and Defendants do not claim otherwise — that the sex-offender label severely stigmatizes an individual, and that a prisoner labeled as a sex offender faces unique challenges in the prison environment”; setting out Meza-like due-process procedures that must be afforded the prison inmate prior to such labeling); Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999) (Due Process Clause gave rise to an independent liberty interest in not being labeled a sex offender; "[a]n inmate who has never been convicted of a sex crime is entitled to due process before the state declares him to be a sex offender.”); Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 1997) (before an inmate who has never been convicted of a sex offense may be labeled as a "sex offender,” he "is entitled to the procedural protections outlined by the Supreme Court in Wolff [v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)]”).
. In Campbell, the inmate had a prior conviction for indecent exposure. 267 S.W.3d at 918, 921-23.
. 267 S.W.3d at 933 n. 6 (Cochran, J., concurring).
. See note 44 supra.
. 466 F.3d 330 (5th Cir. 2006).
. Id. at 332 n. 2.
. Id.
. Meza, 607 F.3d at 395 (internal citation to Coleman omitted; emphasis added).
. No. A-l 0-CA-065-LY (W.D.Tex. Jan. 6, 2011) (not designated for publication).
. Id. In a note, the district judge cited the additional staff and costs that TDCJ testified would be incurred by providing due process, but expressed skepticism that "so many additional employees would be necessary to add elements to extant procedures.” Id. at 793 n. 20.
. Id. The court explained that
The grave risk of error that envelops the procedures used by the Board is most troubling. By not allowing the parolee to review the evidence presented against him, he is unable to correct any misinformation placed in his packet that the Board reviews.*557 By not allowing the parolee to appear before the Board, the Board must act without mitigating or clarifying evidence from the parolee. By not allowing the parolee to confront opposing witnesses, the parolee is unable to refute damning statements made against his interest and the Board is unable to evaluate the credibility of the parolee against that of opposing witnesses.
Id. Indeed, that is precisely what applicant asserts in the present case. If the original trial prosecutor and judge can be credited, TDCJ made an inaccurate decision in concluding that applicant was a sex offender, and it made that decision because applicant was not allowed to see the evidence against him, call witnesses, cross-examine the witnesses against him, and have a neutral factfinder enter specific findings based on the evidence. This case is a good example of why the procedural protections adopted in Meza are essential to enhance the accuracy of a decision as to whether a person who has not been convicted of a sex offense is, nonetheless, a sex-offender who should be subjected to the invasive and stigmatizing "Special Condition X.”
Concurring Opinion
concurring.
I disagree with the Court’s statement that Meza
Conditions ordering sex offender registration and therapy were found to infringe on liberty interests inherent in the Fourteenth Amendment because those conditions are “highly stigmatizing and invasive.”
Appellant’s parole was not revoked for any failure to register or undergo therapy. It was revoked for his failure to abide by other conditions that were not at issue in Meza. Most of the violations involved conditions that denied the right to possess, send, or receive sexually explicit images. The remaining violation involved a condition that denied the right to possess a cell phone with still picture and video capability. These conditions might or might not be considered “invasive,” but as mere prohibitions on certain types of activities, the conditions did not involve any stigma. Nevertheless, these conditions were a significant departure from the conditions previously imposed upon applicant, under which he had been living successfully, and applicant had a due process right to be heard before his parole conditions were modified so significantly.
In Meza, release was mandatory. In the present case, release had already occurred. The question of whether a hearing is required if release is discretionary or if conditions are imposed at the time of release is not before us. I think the Court speaks too broadly when it suggests that the procedures it now imposes would apply to any sex-offender conditions, regardless of re-leasee’s status or when those conditions are imposed.
With these comments, I concur in the Court’s judgment.
. Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010). As the Court acknowledges, Meza is not binding upon us, but we can consider the case for its persuasive value.
. See Court’s op. at 555.
. See Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000).
. See Meza, 607 F.3d at 401-10.
Reference
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- Ex Parte Johnathan EVANS, Applicant
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