WHAT IS A “COLEMAN REVIEW”?

This is a process where an offender who does not have a current or previous conviction for a sex related offense can challenge the Parole Division and the Parole Board for requiring them to be supervised as if they had such a conviction.

It was named after a decision that was handed down by the United States Court of Appeals for the Fifth Circuit.

When a parolee or inmate has, in his criminal or arrest history, instances or evidence of sexual misconduct, the Parole Division of TDCJ can ask the Board of Pardons and Paroles to impose sex offender conditions (Condition X) upon that parolee. This condition may be imposed on persons who have no sex offense conviction. The components of Condition X include:

• Child safety zones
• Polygraphs
• No internet access
• No possession of a computer
• No contact with minors
• Possession of a camera
• And more…

The Parole Division, upon a review of a file, may ask the Board to order the parolee to submit to an evaluation which includes a polygraph and an evaluation with a sex offender counselor. The offender is not given the results of the evaluation. He is given a month, after his notice from the Division, to respond to the proposed imposition of Condition X.

This system is constitutionally flawed. It does not:

o Allow for the full disclosure of evidence
o Allow for representation by an attorney
o Allow for the confrontation and cross-examination of witnesses
o Allow for presentation of favorable witnesses
o Allow parolee or his counsel to be present during the Board’s deliberations
o Include written findings of fact used by the Board as the basis for their decision.

*Coleman v. Dretke was a case that was decided on December 21, 2004. Tony Coleman had never been convicted of a sex crime. He was required by the Board to comply with sex offender conditions.

The Federal Court of Appeals for the Fifth Circuit held that:

• Sex offender conditions may only be placed on persons who are determined to “constitute a threat to society by reason of his lack of sexual control,” and,
  
• The Department must hold an appropriate hearing and find that the person possesses this offensive characteristic before imposing such conditions.

In response to this decision, the Parole Division and the Board devised the most minimal form of notice and hearing that they could draft. The offender was furnished with a short declaration that information was being submitted to the Board requesting that the offender be placed on a sex offender supervision caseload. The offender was given 30 days to submit whatever they wanted for the Board to consider.

However, the offender was never provided with the specific documents or information upon which the Board was going to base their decision, thereby depriving the offender of any meaningful opportunity to examine or to rebut the allegations. No hearing was ever provided. The offender could not appear before the Board; they could not present witnesses or cross examine the hearsay documents provided by the Department. The Board never had to issue any written findings or conclusions to support their decision to require the offender to comply with sex offender conditions

The “Coleman Review,” as currently performed does not follow the simple language of the order shown above. When you look at the failure to follow the Court’s order combined with the Constitutional flaws, the only conclusion that can be reached is that the process is a sham.

WHAT HAS CHANGED?

On March 24, 2009, United States District Judge Lee Yeakel handed down findings of fact in Meza v. Livingston, C.N. A-05-CA-1008-LY.

Raul Meza had been convicted of murdering a nine year old girl. He admitted to sexually assaulting her during the course of the murder, although he never received a conviction for the sex offense. Meza alleged in his petition that the State violated his due-process rights by imposing sex offender condition on his parole.

Judge Yeakel held that Meza:

• Never had a hearing prior to the imposition of sex offender conditions
• Was never provided disclosure of the evidence against him
• Was not allowed to have an attorney
• Not able to confront and cross-examine the witnesses or evidence against him
• Could not subpoena witnesses on his own behalf
• Was not allowed to be present during the deliberations
• Was never provided with findings of fact by the Board to support their decision

Judge Yeakel concluded that the due process afforded Meza was a sham.

He held that minimum due process, like that in parole revocation hearings, was required. These rights include:

• Notice of the proposed condition
• Disclosure of evidence by the State
• The right to confront and cross-examine
• The right to subpoena witnesses and present witnesses on his behalf
• The right to be represented by an attorney
• Written findings of fact upon which the Board relied.

The Court also held that the due process rights applied to ALL components of the sex offender condition.

This ruling gives a person the right to challenge imposition of all the components, including, but not limited to:

o Participation in sex offender counseling
o Polygraphs
o Child safety zone exclusion
o No contact with minors
o No internet access
o Possession of a camera

On August 6, 2009, United States District Court Judge Sam Sparks issued his decision in Graham v. Owens, C.N. A-08-CA-006-SS.

Graham was in a position similar to Meza and filed his action alleging violation of Due Process.

Judge Sparks also ruled in favor of the Applicant and held that Graham was not afforded an appropriate hearing as required in Coleman. The Judge also ordered that a specific finding was required that the parolee constituted a threat to society by reason of his lack of sexual control before the parolee could be subject to sex offender conditions.

The Judge noted in his order that no such finding had ever been made and that none had been made in any of the offenders who are currently on sex offender caseloads in the absence of a conviction for a sex crime.

Unfortunately, federal litigation can take years and costs can exceed $100,000.00. This places relief out of the reach of most individuals.

THERE IS AN OPTION TO FEDERAL LITIGATION.

On August 19, 2009, the Texas Court of Criminal Appeals considered the Application for Writ of Habeas Corpus of Tremont Williams (No. WR-63,250-02 and 03).

Williams alleged that TDCJ violated his Due Process rights when sex offender conditions had been imposed on him when he had never been convicted of a sex offense. The trial court tried to summarily dispose of the matter by denying Williams a hearing and recommending that the Court of Criminal Appeals deny relief in the matter.

The Court of Criminal Appeals, while rarely entertaining such Writs, saw merit to William’s petition. The Court referred the case back to the trial court for resolution which could include a hearing on the merits and affidavits of evidence from the TDCJ General Counsel. The trial court was directed to make findings of fact by the Court of Criminal Appeals.

State court writs filed under Code of Criminal Procedure Article 11.07 have specific deadlines. Decisions can be made and possible relief may be obtained in a shorter time frame, with much less expense. This does not mean that State court litigation is inexpensive, as you should expect fees in the range of $25,000 to $35.000.

Remember: these cases are still in litigation (i.e. the appeals process). However, with three decisions that are favorable to the applicant, I believe that the Courts are:

• Interested in these issues, and
• Inclined to grant relief.

I have long maintained that the Parole Division’s and the Parole Board’s practices in the imposition of sex offender conditions was constitutionally deficient. It is apparent that these Due Process claims are finally receiving the serious attention of the Federal and State Courts. The trend is now favorable to the offender.

This office accepts cases challenging the imposition of sex offender conditions. It is my view that relief is possible for offenders who have been unconstitutionally placed on this most onerous and stigmatizing sex offender caseload.

* The complete finding for Coleman v. Dretke case can be found here http://vlex.com/vid/coleman-vs-dretke-19557909