Judge: Parole officials can be held liable over sex offender restrictions

5-21-2012 Texas:

In the latest rebuke of state policies for classifying parolees as sex offenders, an Austin federal judge has ruled that top state parole officials can be held personally liable for continuing missteps.

U.S. District Judge Lee Yeakel of Austin, in an order issued late Friday, blasted the state's continuing refusal to provide due process hearings before imposing restrictive sex-offender conditions on felons never convicted of a sex crime.

Yeakel for the first time ruled that the seven-member state Board of Pardons and Paroles, 12 parole commissioners, state parole director Stuart Jenkins and other parole officials can face monetary damages for their actions.

It's a significant determination that, if not reversed on appeal, could prove costly for both the officials and taxpayers, if several pending inmate lawsuits are successful.

A jury verdict in another case two years ago cost the state approximately $80,000, officials involved in that case said earlier.

"The state has not reached the end of their rope. They're way past the end of it. They're in free fall," said Denton attorney Richard Gladden, who hailed the order as significant in curtailing a long-standing state policy of classifying as sex offenders convicts who have no sex crime conviction without a full hearing in which they can challenge the designation.

"There's nothing to stop another trial now except a settlement," Gladden said. "It's just a question of how much in damages will be awarded."

Rissie Owens, chairwoman of the state Board of Pardons and Paroles, and other parole officials were not available to comment Monday. A spokesman said the ruling was under review.

The order was the latest setback for the Texas Board of Pardons and Paroles and state corrections officials, who have insisted for years that, to ensure public safety, they could impose the stringent conditions on parolees without a due process hearing.

Although previous court rulings have required the hearings, the state has not routinely offered them until recently — and only then under certain circumstances.

Yeakel's order — the latest ruling to indicate that federal courts have lost their patience with the state — came in a suit filed by parolee Buddy Jene Yeary.

Last fall, the judge blocked the state from enforcing the sex offender restrictions — officially known as Special Condition X — on Yeary, an unusual step for a judge to take.

According to state records, Yeary pleaded guilty to drug charges in 2003 in Johnson County, south of Fort Worth, and was sentenced to 25 years in prison. Though he was initially indicted on charges of aggravated sexual assault of a child, his sentence order states that "the sex offender registration requirements (in state law) do not apply to the defendant," according to the suit.

Despite that, state records show that when Yeary was paroled in the summer of 2007, parole officials required him to register as a sex offender, placed him under the restrictive sex-offender conditions of release and ordered him to participate in a sex offender treatment program.

In his order Friday, Yeakel ruled that the state has for six years been aware that it must provide hearings to parolees in such cases and that officials' continuing failure to do so leaves them open to liability.

"In light of the resistance of the state of Texas to providing parolees with the procedural due process guaranteed them by the Constitution, even after receiving repeated mandates from federal and state courts, the court is unconvinced that Texas will not return to its unconstitutional policies and practices," the 31-page order states.

"Any stigmatic injury suffered by Yeary due to the imposition and continued enforcement of Special Condition X may entitle Yeary to compensatory damages."

Yeakel refused to dismiss Yeary's lawsuit, as state officials had asked. Instead, he said it would head to a trial.

He did dismiss as a defendant in the case parole board general counsel Bettie Wells, who advises the board but does not vote on cases or set policies.

The ruling comes after years of legal decisions requiring state parole officials to provide hearings before they impose sex offender restrictions on felons never convicted of a sex crime.

In addition to federal courts, the state Court of Criminal Appeals last fall ordered the restrictions removed from the parole conditions for a Houston kidnapper because he was not afforded a due process hearing before they were imposed and because he had not been convicted of a sex crime. ..Source.. by Mike Ward