News and Insights

A releasee (parolee) is entitled to a prompt preliminary hearing once the revocation process has been initiated by the execution of a revocation warrant. Morrissey v. Brewer, 408 U.S. 471 (1972). Due process, according to the Supreme Court of the United States in Morrissey v. Brewer, requires that a preliminary hearing be held “as promptly as convenient” after a parolee has been arrested to “determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”

In Ex Parte Bohannan, the applicant (parolee) filed an application for writ of mandamus arguing that the Texas Department of Criminal Justice (TDCJ) violated his constitutional rights by failing to hold a preliminary hearing when the State sought to revoke his parole.

While on parole for aggravated rape, applicant was arrested for monitoring violations. However, TDCJ did not hold the required preliminary hearing because it has a standing policy that it does not conduct preliminary hearings while there is a criminal case pending. Once applicant filed for habeas corpus, however, the TDCJ conducted the preliminary hearing. Even though he ultimately received the hearing that he sought, applicant nonetheless requested that the CCA intervene, arguing that his situation is not unique in Texas and that this problem is “capable of repetition, yet evading review” (an exception to the mootness doctrine).

TDCJ, in its brief to the CCA, stated its belief that it need not conduct such a hearing while a criminal case is pending because the court system conducts similar probable cause hearings and a preliminary hearing would only be redundant. In essence, TDCJ was saying they there is no need for them to follow the law.

Ultimately, the CCA held that the case was non-justiciable (moot), so it did not consider the substance of applicant’s claim. However, Judge Keasler, joined by Judges Price, Hervey and Cochran, penned a scathing concurrance wherein it warns the TDCJ that if it continues its policy of not granting preliminary hearings in parole revocation cases, “it does so at its own peril.”

The Supreme Court has not made any exceptions to [the preliminary hearing requirement]. Thus, contrary to the assertion of the Texas Department of Criminal Justice (TDCJ), as amicus curiae, such a hearing is not duplicative of any other prior probable cause determination. The failure to comply with Morrissey violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law. Indeed, TDCJ has admitted as much: “there is no reasonable expectation that the TDCJ will discontinue its policy of not providing a preliminary hearing when a releasee is being held on pending criminal charges . . . .” This is patently unacceptable. And if it “reasonably expects” to continue this policy, it does so at its peril.

The answer for future parolees: MANDAMUS.

Because a claim challenging the Board’s failure to provide a preliminary revocation hearing is non-justiciable, Article 11.07 does not provide an adequate remedy at law for a release to compel the Board to comply with its ministerial duty. But mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed.

Court Holds that Sex Offender Conditions Cannot be Added as a Condition of Parole for Cases That Do Not Involve a Sex Offense

Ex Parte Evans - The Texas Court of Criminal Appeals considered a case wherein sex-offender conditions were placed on a parolee for an offense other than a sex offense.

In October of 2001, Appellant pled guilty to two counts of reckless injury to a child (not a sexual offense). He was sentenced to ten years in prison on each count. On October 25, 2006, Appellant was released to parole in Lubbock, Texas. He then asked for his parole to be transferred to El Paso, Texas, where his children lived. Once he arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions.” He submitted a written response stating that he was unable to produce any documentation to show that the offense he had been convicted of was unrelated to anything sexual in nature other than the fact that the victim’s doctor had testified that the injuries were not sexual in nature.

Despite his dispute, his parole officer recommended that “Special Condition X” (the sex-offender program) be added as a condition of his parole.  From all accounts, immediately after the condition was imposed, Appellant went “downhill.”  He was not allowed to visit his children anymore.  Further, in October of 2008, Appellant’s parole officer and a handful of other officers searched the Appellant’s home. Inside, they found a cell phone on Appellant’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. Also, the officers found two pornographic DVD’s - all of which were unlawful for Appellant to possess while a registered sex offender.

Appellant’s parole was then revoked upon a motion by the State. At the hearing, Appellant argued that the conditions had been unconstitutionally imposed without due process and that the facts of his conviction did not justify such sex-offender conditions. His argument fell on deaf ears and he was returned to prison.

On a writ of habeas corpus, the trial judge found that Appellant had not been convicted of a sex offense, that there was no evidence of sexual abuse of his victims, and that he was not afforded due process before the imposition of the sex offender conditions. The trial judge relied on an opinion out of the 5th Circuit, Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009). That case had almost the exact same facts as Appellants case and the court in the Meza case found that due process had not been afforded in imposing sex-offender conditions as a condition of parole. Here, the CCA acknowledged the opinion but stated that the Meza opinion failed to clarify “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.”

The CCA then cited the Fifth Circuit’s analysis of this issue in the 2004 case, Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) which ultimately held that “a parolee who has not been convicted of a sex offense must be afforded the following procedures before sex-offender conditions may be imposed on him:

(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 fact finder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.”

The Court held that because these procedures were not offered to Appellant, he was entitled to the relief he sought: immediate release on mandatory supervision without sex-offender conditions, and, if TDCJ sought to re-impose such conditions he was entitled to the protection of the Meza due-process procedures. The Texas Department of Criminal Justice did chime in with four arguments advocating for the actions of the parole officer but the court shot them all down (see the original opinion for more detail).

What’s the take-away? It’s pretty simple my opinion: Due process must be afforded to individuals on parole when the State attempts to add sex-offender conditions on a parolee who has not been convicted of a sexually related offense.

Just for good measure, here are some helpful links pertaining to Sex Offenders and Sex Related Crimes:

Council on Sex Offender Treatment Home Page

Sex Offender Laws, Legislation-Rules and Sex Offender Legislation-Laws

Warrantless Search of Cell Phone | Fort Worth Criminal Defense Attorneys

Can an arresting officer search a person’s text messages as a “search incident to arrest?” The U.S. Court of Appeals for the 5th Circuit said YES in U.S. v. Curtis, but caveats that the search in the case occurred prior to the Supreme Court holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).

United States v. Curtis - In July 2007, officers obtained an arrest warrant for Appellant after he made a false statement on a credit application he submitted to a car dealership. (Seriously?) When the officers arrested Appellant he was driving his vehicle and talking on his cell phone. After he pulled over, Appellant placed the cell phone on the car’s center console. An officer took the phone out of the car and began looking at the text messages on it. Later, while Appellant was being processed at the jail the officer resumed looking at the text messages on the cell phone.

The 5th Circuit held that the search of the cell phone was constitutional since it took place incident to a lawful arrest and it was within Appellant’s reaching distance when the officers arrested him. The court followed U.S. v. Finley, 477 F.3d 250 (5th Cir.), which held that the police could search the contents of an arrestee’s cell phone incident to a valid arrest when it is recovered from the area within an arrestee’s immediate control.

Appellant argued that the officer’s search of the cell phone was unlawful in light of the Supreme Court’s holding in Gant, decided in 2009, which held in part that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of arrest.”

The court refused to apply the rule announced by Gant to a search incident to arrest that occurred before Gant was decided. Additionally, the court stated that even if it had ruled the search of the cell phone was unlawful, it would have refused to suppress the text messages under the good-faith exception to the exclusionary rule. The court noted that the good-faith exception applies to searches that were legal at the time they were conducted, but later determined to be unconstitutional by a subsequent change in the law.

My question is: Why did the officer feel he needed to search Appellant’s text messages? I’m pretty sure the iPhone does not have an app that turns the phone into a dangerous weapon. There should be no reason that the officer needed to conduct such a warrantless search. Luckily, however, this holding is narrow in that it appears that it does not apply to searches conducted after the Supreme Court decision in Gant.

UPDATE: Warrantless searches of cell phones are now unreasonable. 

What follows is an excerpt from the Texas Court of Criminal Appeals’ recent published decision in Ex Parte Gutierrez regarding the propriety of post-conviction DNA testing. It does not reflect new law on the subject, but is helpful as a refresher.  These are the statutory hurdles a person must jump in order to have the original evidence tested for DNA in hopes of proving his/her innocence:

There is no free-standing due-process right to DNA testing, and the task of fashioning rules to “harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice” belongs “primarily to the legislature.”  In Texas, Chapter 64 of the Code of Criminal Procedure requires the judge of the convicting court to order DNA testing when requested by a convicted person if it finds all of the following:

(1) evidence exists that by its nature permits DNA testing;

(2) the evidence was either:

(a) justifiably not previously subjected to DNA testing [because DNA testing i) was not available, or ii) was incapable of providing probative results, or iii) did not occur “through no fault of the convicted person, for reasons that are of such a nature that the interests of justice require DNA testing”]; or

(b) subjected to previous DNA testing by techniques now superseded by more accurate techniques;

(3) that evidence is in a condition making DNA testing possible;

(4) the chain of custody of the evidence is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

(5) identity was or is an issue in the underlying criminal case;

(6) the convicted person has established by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(7) the convicted person has established by a preponderance of the evidence that the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

An indigent convicted person intending to file a motion for post-conviction DNA testing now has a limited right to appointed counsel. That entitlement used to be absolute, but it is now conditioned on the trial judge’s finding “that reasonable grounds exist for the filing of a motion.” If all of the prerequisites set out above are met, the convicting court must order testing. Then, after “examining the results of testing under Article 64.03, the convicting court must hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Exculpatory DNA testing results do not, by themselves, result in relief from a conviction or sentence. Chapter 64 is simply a procedural vehicle for obtaining certain evidence “which might then be used in a state or federal habeas proceeding.”

Can a defendant waive his constitutional right to trial by six jurors (in County Court)?

The United States Supreme Court has held that a state-law scheme that imposed a jury of fewer than six members upon a defendant, even one accused of only a misdemeanor offense, violates the Sixth Amendment right to a jury trial. Ballew v. State, 435 U.S. 223 (1978). For Texans, Article V, Section 17, of the Texas Constitution provides: “A jury in the County Court shall consist of six persons [.]” Furthermore, Section 62.301 of the Texas Government Code provides, without explicit exception, that a jury in a County Court “is composed of six persons.” Conspicuously, the similar Government Code provision (Section 62.201) requiring a 12-person jury in a District Court contains an exception that allows the parties to dispense with the full complement of jurors.

So what is the rule? Must a County Court jury have six or can it have less? The Supreme Court and the Texas Constitution and statutes call for six jurors in a misdemeanor criminal trial. But may the defendant waive this requirement? This issue was recently decided by the Texas Court of Criminal Appeals in Ex Parte Garza.

In Ex Parte Garza, the defendant was set to be tried for misdemeanor DWI when one of the six petit jurors became ill and was hospitalized. The trial court continued the case for a few days in hopes that the ailing juror would recover, but he did not. The trial court then entertained the option of granting a mistrial for manifest necessity. The defense objected to the mistrial, stating that it has the jury that it wanted to hear the case. The defense requested another continuance or, in the alternative, to proceed to trial without the ailing juror. The trial judge denied the continuance and did not address the option of proceeding with fewer than six jurors. The trial court then granted a sua sponte mistrial over the defense objection.

When the case was reset for trial, the defendant filed a pre-trial application for writ of habeas corpus, alleging that because the trial court prematurely terminated the prior proceedings without having considered a less drastic alternative, his right against double jeopardy was violated. The trial court denied relief, but the 1st District Court of Appeals (Houston) reversed. “The Court of Appeals concluded that the trial court erred not to explore the less drastic alternative of conducting the trial without the full complement of six jurors.”

The CCA now affirms the judgment of the 1st Court of Appeals. Writing for the majority, Judge Price explained:

Once a defendant shows he is being tried for the same offense after declaration of a mistrial, to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of the mistrial. The State must demonstrate a “manifest necessity” for a mistrial, which is to say a “high degree” of necessity, and the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. That discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.

Regarding whether the trial court could have proceeded with only five jurors (as a less drastic alternative the mistrial), the CCA noted that “this Court and its predecessor, the Texas Court of Appeals, have held for more than a century that the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in County Court.” Quoting the Supreme Court in Ballew:

To deny [the accused] his power to [waive his right to a six person jury] is to convert a privilege into an imperative requirement.

Imposing such a requirement on Texas defendants was not something the CCA is willing to do. Citing a long history of cases dating back to the early 1900s, the CCA noted how Texas has consistently allowed a defendant to waive his right to trial by a full complement of jurors. Therefore, the CCA held that by terminating the trial proceedings without considering whether to allow the trial to proceed with five jurors, the trial court abused its discretion. Accordingly, a new trial is jeopardy barred.

Takeaway: Consistent with Texas jurisprudence for the last 120 years, a defendant may waive his right to trial by six jurors in a County Court and proceed with less than the full amount.

Presiding Judge Keller and Judge Cochran dissented without opinion.