Meza v. Dir. Brad Livingston
| Decision Date | 20 May 2010 |
| Docket Number | No. 09-50367.,09-50367. |
| Citation | 607 F.3d 392 |
| Parties | Raul MEZA, Plaintiff-Appellee-Cross-Appellant,v.Director Brad LIVINGSTON, Executive director of the Texas Department of Criminal Justice, in his official capacity; David Gutierrez; Charles Aycock; Conrith Davis; Jackie Denoyelles; Thomas Leeper; Juanita Gonzalez; Rissie L. Owens; Stuart Jenkins, Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Scott Charles Medlock (argued), James C. Harrington, Texas Civ. Rights Project, Austin, TX, for Meza.
Thomas Matthew Lipovski (argued), Austin, TX, for all Defendants.
Celamine Cunniff, Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Livingston and Jenkins.
Bruce Russell Garcia, Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Gutierrez, Aycock, Davis, Denoyelles, Leeper, Gonzalez and Owens.
Appeals from the United States District Court for the Western District of Texas.
Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
Texas parolee Raul Meza, who has never been convicted of a sex offense, sued the defendants, all employees of the Texas Board of Pardons and Paroles (“the Board”) and the Texas Department of Criminal Justice-Parole Division (“the Department”), 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. Coleman v. Dretke, 395 F.3d 216 (5th Cir.2004) ( Coleman I) reh'g and en banc denied, 409 F.3d 665 (5th Cir.2005) ( Coleman II). 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.
We agree with the district court that the current procedures do not pass constitutional muster. However, we do not agree that Meza is owed all of the process afforded by the district court.
In 1982, Meza pleaded guilty to the murder of a nine-year-old girl and was sentenced to thirty years imprisonment.1 While in prison, Meza was sentenced to an additional four years in prison for possession of a deadly weapon in a penal institution.
In 1993, Meza was released from custody and placed under mandatory supervision.2 In 1994, Meza violated the conditions of his supervision by returning home fifteen minutes after the state-imposed curfew. The State revoked Meza's mandatory supervision and re-incarcerated him until 2002.
In 2002, Meza was re-released from prison under mandatory supervision. Tex. Gov't Code § 508.0441(a)(2) provides that “Board members and parole commissioners shall determine: ... conditions of parole or mandatory supervision, including special conditions ....” Using this authority to impose “special conditions,” the Board placed more restrictive conditions on Meza than it imposed in 1993, including Super Intensive Supervision Program condition,3 Special Condition O.06,4 Special Condition O.99, 5 Special Condition M, and Special Condition X. Special Condition X required, among other things, that Meza participate in sex offender therapy. 6 Special Condition M required that Meza register as a sex offender. Meza was required to register as a sex offender in 2002 when he was released on mandatory supervision. The condition that he register as a sex offender was lifted in April 2005. Today, Meza is no longer required to register as a sex offender.
These sex offender conditions were imposed on Meza by the Board because Meza allegedly sexually assaulted the nine-year-old girl he murdered in 1982. It is unclear from the record how the Board obtained evidence that Meza sexually assaulted his victim in 1982, but it is undisputed that Meza was never convicted of a sexual offense.
Because of the sex offender and other conditions attached to Meza's mandatory supervision, Meza has been unable to leave TCCC since his release from prison in 2002, despite the fact that the conditions of his mandatory supervision only required that he remain at TCCC for 180 days. In order for Meza to leave TCCC, he must arrange for a residence, which, in turn, requires him to secure employment. Thus far, Meza has been unable to secure employment. Part of the reason Meza alleges that he has been unable to secure employment is because of the conditions imposed on him by the Board. To leave TCCC, Meza must be escorted by a parole officer. The Department controls the availability of parole officers. Between 2002 and 2005, Meza was only allowed to leave TCCC twice: once for a job interview and once to visit a hospital emergency room. Meza must also obtain approval for any job prospects from his parole officer. Meza has thus far been denied all job prospects by his parole officer. He was denied one job prospect because of its proximity to a child-safety zone.7 He was denied another job prospect because he would have to cross a child-safety zone to reach the job site. He was denied another job prospect because it required that Meza have a driver's license and the Parole Division Director for Meza's region would not allow Meza to obtain a driver's license at the time of the application. Meza was not allowed to apply for one job because the Department would not allow Meza to undergo a urinalysis, as was required in the application process.8
In 2004, this court released its opinion in Coleman v. Dretke, 395 F.3d 216 (5th Cir.2004) ( Coleman I) reh'g and en banc denied, 409 F.3d 665 (5th Cir.2005) ( Coleman II). Coleman I held that if a defendant is not convicted of a sex offense, the defendant's parole may only be conditioned on sex offender registration and therapy if the defendant is “afforded a hearing meeting the requirements of due process” in which it is determined that the defendant “constitute[s] a threat to society by reason of his lack of sexual control.” Id. at 225. At the time Coleman I was decided, Meza was required to register as a sex offender and attend sex offender therapy.
In light of Coleman I, the Texas Board developed a procedure for providing due process to individuals who were not convicted of a sex offense but could have sex offender conditions attached to their parole or mandatory supervision under Texas law. Counsel for the Board developed the following process. First, the Board provides written notice to the parolee that his parole or mandatory supervision may be conditioned on sex offender registration and treatment.9 The parolee has thirty days to respond with any written statements or documents to contest imposition of this condition. Upon the parolee's response (or lack thereof), the Department puts together a packet on the parolee. The packet includes the parolee's complete parole file, psychological evaluations, polygraph tests, and social, education, employment, and medical histories, etc. Neither the parolee nor any attorney he retains is allowed to see the packet. The Department sends the packet to a panel of the Board. A representative from the Department offers a short presentation (ten to thirty minutes) of the packet and the parolee's background to the Board. Neither the parolee nor his attorney is allowed to attend the panel's hearing or present facts or arguments on behalf of the parolee to the panel. After hearing the Department's presentation and reviewing the packet, the Board votes on whether the parolee's parole or mandatory supervision should be conditioned on sex offender registration or therapy. The parolee is then notified of whether sex offender registration or therapy is required. The panel does not produce any written findings or inform the parolee of the facts on which the Board based its decision. The parolee may not appeal the Board's decision.
In February 2005, Meza received notice that his mandatory supervision might be conditioned on sex offender registration and therapy. Meza was given thirty days to submit a statement or documentation to contest the imposition of sex offender conditions. He did not submit any statement or documentation. After reviewing Meza's packet as prepared by the Department, the Board panel conditioned his mandatory supervision conditioned on sex offender registration and therapy. The Board subsequently notified Meza of its decision.
In 2005, Meza brought this § 1983 action for injunction against members of the Department and a number of individual parole officers in their official capacities (collectively, “the defendants”). The suit sought to enjoin the defendants from imposing sex offender conditions without due process and from continuing to subject him to qualitatively different conditions of confinement without due process. Meza also alleged violations of his Fourteenth Amendment equal protection rights. Finally, Meza sought attorney's fees and costs.
The district court found that Coleman I required that a parolee such as Meza who was not convicted of a sex crime receive procedural due process before any sex offender condition could be imposed. The district court found that the procedural protections given to Meza by the Board were constitutionally insufficient and delineated the minimum due process Meza was entitled to receive as follows:
(1) written notice in advance of the hearing; (2) disclosure of the evidence on which the State is relying; (3) a hearing, scheduled sufficiently after the notice to permit Meza to prepare, at which he will have the opportunity to be heard in person, represented by counsel, and to present documentary evidence in his support; (4) an opportunity at the hearing to call witnesses and confront and cross examine State witnesses, “except upon a finding, not arbitrarily made, of good cause for not permitting each as to a particular witness”; (5) an independent...
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