Schlittler, David ( 2015 )

PD-1505-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/27/2015 10:03:06 AM
Accepted 3/27/2015 10:43:48 AM
March 27, 2015
ABEL ACOSTA
Case No. PD-1505-14 CLERK
In the Court of Criminal Appeals of Texas
David Schlittler v. The State of Texas
On Discretionary Review
of Appeal No. 12-13-00269-CR
in the Twelfth Court of Appeals of Texas
at Tyler
Appellant’s Brief
State Counsel for Offenders
Attorney for Appellant
Kenneth Nash
Texas Bar No. 14811030
P. O. Box 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5279
E-mail address: Ken.Nash@tdcj.texas.gov
Oral Argument Requested and Previously Granted
Identity of Judge, Parties, and Counsel
Trial Court Judge
Deborah Oakes Evans
Parties
The State of Texas
David Schlittler (Appellant)
Trial Counsel
Allyson Mitchell (attorney for the State)
904 E. Market St.
Palestine, TX 75801
Barbara Law (attorney for Schlittler)
P. O. Box 4005
Huntsville, TX 77342
Appellate Counsel
Kenneth Nash (attorney for Schlittler)
P. O. Box 4005
Huntsville, TX 77342
Melinda Fletcher (attorney for the State)
P. O. Box 1744
Amarillo, TX 79105
Discretionary Review Counsel
Kenneth Nash (attorney for Schlittler)
P. O. Box 4005
Huntsville, TX 77342
Melinda Fletcher (attorney for the State)
P. O. Box 1744
Amarillo, TX 79105
2
Table of Contents
Identity of Judge, Parties, and Counsel…………………………………………….2
Index of Authorities……………………………………………………………...4-9
Statement of the Case………………………………………………………….10-11
Statement Regarding Oral Argument……………………………………………..11
Issues Presented………………………………………………………………..11-12
1. Did the Twelfth Court of Appeals err by holding that Section
38.111, Penal Code, as applied to Schlittler, does not violate the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution?
2. Did the Twelfth Court of Appeals err by holding that Section
38.111, Penal Code, as applied to Schlittler, does not violate the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution?
Statement of the Facts…………………………………………………………12-13
Summary of the Argument………………………………………………………..13
Argument………………………………………………………………………14-49
Prayer……………………………………………………………………………...49
Certificate of Compliance…………………………………………………………50
Certificate of Service……………………………………………………………...51
3
Index of Authorities
Cases
Bartels v. Iowa, 262 U.S. 404 (1923)……………………………………………..17
Beard v. Banks, 548 U.S. 521 (2006)…………………………………...31,33,44,46
Beck v. State, 583 S.W.2d 338 (Tex. Crim. App. 1979)…………………………..19
Bell v. Wolfish, 441 U.S. 520 (1979)…………………………………………..15,16
Board of Education of Independent School District No. 92
of Pottawatomie County v. Earls, 536 U.S. 822 (2002)…………………………..24
Buck v. Bell, 274 U.S. 200 (1927)………………………………………………...28
Burson v. Freeman, 504 U.S. 191 (1992)……………………………………...26,29
Caban v. Mohammed, 441 U.S. 380 (1979)………………………………………21
Cannady v. State, 11 S.W.3d 205 (Tex. Crim. App. 2000)……………………….37
Carter v. Carter Coal Co., 298 U.S. 238 (1936)………………………………….20
Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App. 1994)…………………........37
Citizens United v. Federal Election Commission,
558 U.S. 310 (2010)…………………………………………………………...18,37
City of Cleburne, Texas v. Cleburne Living Center,
473 U.S. 432 (1985)………………………………………………………………40
Clark v. Jeter, 486 U.S. 456 (1988)……………………………………………….37
Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974)…………………………………………………………...27,28
Cutter v. Wilkinson, 544 U.S. 709 (2005)………………………………………...43
4
Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012)……………………..19
Doe v. Prosecutor, Marion County, Indiana,
705 F.3d 694 (7th Cir. 2013)………………………………………………………19
Eisenstadt v. Baird, 405 U.S. 438 (1972)…………………………………………16
Engel v. Vitale, 370 U.S. 421 (1962)……………………………………………...17
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)…………………………….19
Farrington v. Tokushige, 273 U.S. 284 (1927)…………………………………...17
Fisher v. University of Texas at Austin, 570 U.S. ___,
133 S. Ct. 2411 (2013)………………………………………………………….26,41
Flores v. State, 904 S.W.2d 129 (Tex. Crim. App. 1995)………………………...39
Frontiero v. Richardson, 411 U.S. 677 (1973)……………………………………39
Ginsberg v. New York, 390 U.S. 629 (1968)……………………………………...17
Griswold v. Connecticut, 381 U.S. 479 (1965)…………………………………...16
Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997),
cert. denied, 525 U.S. 978 (1998)………………………………………….15,27,28
Holt v. Hobbs, 574 U.S. ___, 135 S. Ct. 853 (2015)………………………………43
Illinois ex rel. McCollum v. Board of Education of School District No. 71,
Champaign County, Illinois, 333 U.S. 203 (1948)………………………………..17
In re J.W.T., 872 S.W.2d 189 (Tex. 1995)………………………………………..17
In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006)………………………………..14
Ingraham v. Wright, 430 U.S. 651 (1977)……………………………………..15,24
Jacobson v. Massachusetts, 197 U.S. 11 (1905)………………………………….24
5
Johnson v. California, 543 U.S. 499 (2005)…………………………….30,31,43,44
Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988)……………………..41
Kansas v. Hendricks, 521 U.S. 346 (1997)……………………………………….29
Korematsu v. United States, 323 U.S. 214 (1944)………………………………...29
Lanza v. New York, 370 U.S. 139 (1962)……………………………………...35,48
Lassiter v. Department of Social Services of Durham County,
452 U.S. 18 (1981)…………………………………………………………17,18,21
Lawrence v. Texas, 539 U.S. 558 (2003)……………………………………….....19
Lehr v. Robertson, 463 U.S. 248 (1983)…………………………………………..21
Lewis v. Casey, 518 U.S. 343 (1996)……………………………………….15,35,48
Little v. Streater, 452 U.S. 1 (1981)………………………………………………18
Loving v. Virginia, 388 U.S. 1 (1967)…………………………………………….16
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)…………….37
Massiah v. United States, 377 U.S. 201 (1964)…………………………………...20
May v. Anderson, 345 U.S. 528 (1953)…………………………………………...17
Meyer v. Nebraska, 262 U.S. 390 (1923)…………………………………………17
Michael H. v. Gerald D., 491 U.S. 110 (1989)…………………………………...14
M.L.B. v. S.L.J., 519 U.S. 102 (1996)……………………………………………..39
Moore v. City of East Cleveland, 431 U.S. 494 (1977)………………………..14,28
Morrissey v. Brewer, 408 U.S. 471 (1972)………………………………………..15
Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977)………….25
6
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)……………………………33,46
Overton v. Bazetta, 539 U.S. 126 (2003)…………………………16,23,32,33,45,46
Pell v. Procunier, 417 U.S. 817 (1974)………………………………………..36,49
Pierce v. Society of Sisters, 268 U.S. 510 (1925)……………………………...17,18
Plyler v. Doe, 457 U.S. 202 (1982)………………………………………...22,37,38
Price v. Johnston, 334 U.S. 266 (1948)…………………………………………...15
Prince v. Massachusetts, 321 U.S. 158 (1944)……………………………………24
Procunier v. Martinez, 416 U.S. 396 (1974)……………………………16,34,39,47
Quilloin v. Walcott, 434 U.S. 246 (1978)…………………………………..17,21,39
Reed v. Reed, 404 U.S. 71 (1971)…………………………………………………40
Regents of the University of Michigan v. Ewing,
474 U.S. 214 (1985)………………………………………………………………26
Roe v. Wade, 410 U.S. 113 (1973)………………………………………………..17
Romer v. Evans, 517 U.S. 620 (1996)…………………………………………….41
Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009)………………………………33,46
Santosky v. Kramer, 455 U.S. 745 (1982)………………………………….18,24,39
School District of Abington Township, Pennsylvania v. Schempp,
374 U.S. 203 (1963)………………………………………………………………17
Shaw v. Murphy, 532 U.S. 223 (2001)………………………………….31,32,44,45
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)…………………...42
Smith v. Organization of Foster Families, 431 U.S. 816 (1977)………………….21
7
Stanley v. Illinois, 405 U.S. 645 (1972)…………………………………………...39
Thornburgh v. Abbott, 490 U.S. 401 (1989)……………….16,34,35,36,39,47,48,49
Troxel v. Granville, 530 U.S. 57 (2000)………………………………...14,16,22,24
Turner v. Safley,482 U.S. 78 (1987)……..…………………...16,30-35,42-45,47,48
United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013)………………….16
Vacco v. Quill, 521 U.S. 793 (1997)…………………………………………..37,41
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)……………………..24
Washington ex rel. Seattle Trust Title Co. v. Roberge,
278 U.S. 116 (1928)…………………………………………………………........20
Washington v. Glucksberg, 521 U.S. 702 (1997)…………………………………26
Washington v. Harper, 494 U.S. 210 (1990)……………………………30,33,43,46
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972)…………………….22
West v. Atkins, 487 U.S. 42 (1988)………………………………………………..20
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943)………………………………………………………………17
Wirsching v. Colorado, 360 F.3d 1191 (10th Cir. 2004)…………………………..23
Wisconsin v. Yoder, 406 U.S. 205 (1972)…………………………………………17
Wolff v. McDonnell, 418 U.S. 539 (1974)………………………………………...16
Zablocki v. Redhail, 434 U.S. 374 (1978)………………………………………...37
Constitutions
Amendment XIV, Constitution of the United States…………………………..14,36
8
Statutes
Section 153.009(a), Family Code……………………………………………........28
Section 155.001(a) and (c), Family Code…………………………………………25
Section 161.001, Family Code……………………………………………………25
Section 38.111, Penal Code………………………………………………........10,19
Rules
Rule 78.1(c), Rules of Appellate Procedure………………………………………49
9
Statement of the Case
On November 18, 2010, an Anderson County grand jury returned an
indictment charging Schlittler with violating Section 38.111, Penal Code (Improper
Contact with Victim),1 alleged to have occurred on or about September 4, 2008.
C.R. at 9-11. Thereafter, on May 15, 2013, a jury found Schlittler guilty as
charged in the indictment and assessed his punishment at 8 years’ confinement in
1
Section 38.111, Penal Code, provides as follows:
(a) A person commits an offense if the person, while confined in a correctional
facility after being charged with or convicted of an offense listed in Article
62.001(5), Code of Criminal Procedure, contacts by letter, telephone, or any other
means, directly or through a third party, a victim of the offense or a member of
the victim’s family, if:
(1) the victim was younger than 17 years of age at the time of the
commission of the offense for which the person is confined; and
(2) the director of the correctional facility has not, before the person
makes contact with the victim:
(A) received written and dated consent to the contact from:
(i) a parent of the victim;
(ii) a legal guardian of the victim;
(iii) the victim, if the victim is 17 years of age or older at
the time of giving the consent; or
(iv) a member of the victim’s family who is 17 years of age
or older; and
(B) provided the person with a copy of the consent.
(c) It is an affirmative defense to prosecution under this section that the contact
was:
(1) indirect contact made through an attorney representing the person in
custody; and
(2) solely for the purpose of representing the person in a criminal
proceeding.
(d) An offense under this section is a Class A misdemeanor unless the actor is
confined in a correctional facility after being convicted of a felony described by
Subsection (a), in which event the offense is a felony of the third degree.
(e) In this section, “correctional facility” means:
(1) any place described by Section 1.07(a)(14); or
(2) a “secure correctional facility” or “secure detention facility” as those
terms are defined by Section 51.02, Family Code.
10
the Texas Department of Criminal Justice (TDCJ). C.R. at 300 and 304; 4 R.R. at
149; 5 R.R. at 39. That same day the trial court entered a judgment adjudicating
guilt and imposing sentence in accordance with the jury’s verdicts. C.R. at 323-24;
5 R.R. at 39-40. On October 30, 2014, the Twelfth Court of Appeals affirmed the
trial court’s judgment. Schlittler v. State, No. 12-13-00269-CR, 2014 Tex. App.
LEXIS 11904 at *8 (Tex. App.—Tyler 2014, pet. granted). (Neither party filed a
motion for rehearing.) Thereafter, on February 25, 2015, this Court granted
Schlittler’s timely-filed petition for discretionary review.
Statement Regarding Oral Argument
This case presents issues of first impression, namely, whether the State can
constitutionally criminalize a father’s efforts to contact his son in derogation of his
fundamental liberty interest protected by the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution.
Schlittler has requested (and this Court has afforded him) an opportunity to further
explicate by oral argument various Supreme Court precedents as those precedents
should inform this Court’s resolution of the issues delineated below.
Issues Presented
1. Did the Twelfth Court of Appeals err by holding that Section 38.111,
Penal Code, as applied to Schlittler, does not violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution?
11
2. Did the Twelfth Court of Appeals err by holding that Section 38.111,
Penal Code, as applied to Schlittler, does not violate the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution?
Statement of the Facts
At all times material to this case, Schlittler was confined at TDCJ’s Joe F.
Gurney Unit for the aggravated sexual assault of his step-daughter, B.M. 3 R.R. at
19, 84-87; 6 R.R. (State’s Exhibit No. 1). On November 11, 2007, B.M.’s mother,
Laurie Mitchell, obtained a modified conservatorship order2 restricting Schlittler’s
contact with his son, B.S. 3 R.R. at 87-89, 96-97; 6 R.R. (State’s Exhibit No. 2).
On July 21, 2008, Schlittler dispatched a series of messages through an
acquaintance (Bonita Ralston) to his son via Internet social websites, repeatedly
expressing his love to his son and to have his son convince his half-sister (B.M.) to
recant her “lie.” 3 R.R. at 25-43, 97-99. Mitchell testified that at no time did she
consent to Schlittler’s efforts to contact B.S. after the modified conservatorship
order was entered. 3 R.R. at 100. Moreover, she reported Schlittler’s unauthorized
2
Mitchell and Schlittler divorced in 1998 when B.S. was 3 years old. 3 R.R. at 84.
Schlittler was “permanently enjoined from having any contact at all with [B.S.] except during
periods of possession. * * * [Schlittler was] permanently enjoined from any contact with [B.S.],
direct or indirect, including without limitation, communication through Bonita Ralston, or
anyone acting in concert with [Schlittler] and through any means, including, but not limited to
telephonic, Instant Messaging, Email, Chatroom, Text Messaging, written communication, or in
person communication except for those periods of possession granted herein.” 6 R.R. (State’s
Exhibit 2).
12
contacts to the Dallas Police Department and her family-law attorney (who, in turn,
alerted prison officials). 3 R.R. at 101.
Schlittler moved the trial court to declare Section 38.111, Penal Code,
unconstitutional (as applied to him) for impairing a fundamental right protected by
the Due Process Clause and the Equal Protection Clause. C.R. at 26-31. At a pre-
trial proceeding the trial court heard and denied the motions. C.R. at 83, 308; 1
R.R. at 6-8 (Pretrial Motion). Thereafter, the trial court entered findings of fact
and conclusions of law in support of its ruling. C.R. at 81-85. After the
conclusion of the evidentiary phase of the trial, Schlittler re-urged his motions
which the trial court again denied. 4 R.R. at 124.
Summary of the Argument
Because section 38.111 bans all communication (whether directly or
indirectly) between Schlittler and his son, the statute violates Schlittler’s due
process and equal protection rights. The State has not and cannot articulate a
compelling interest (in derogation of Schlittler’s fundamental liberty interest) to
prohibit all forms of contact between Schlittler and his son; therefore, section
38.111 does not withstand strict scrutiny (and the Twelfth Court of Appeals erred
when it held otherwise). Moreover, section 38.111 does not even satisfy Turner’s
more relaxed reasonable-relation test for reviewing prison rules and regulations.
13
Argument
1. Due Process Clause
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides:
No State shall . . . deprive any person of life, liberty, or property,
without due process of law[.]
This provision guarantees more than fair process; it also includes a substantive
component that provides “heightened” protection against governmental
interference with certain fundamental rights and liberty interests. Troxel v.
Granville, 530 U.S. 57, 65 (2000) (plurality opinion).3 See Moore v. City of East
Cleveland, 431 U.S. 494, 543 (1977) (White, J., dissenting) (stating that “the
[Supreme] Court regularly proceeds on the assumption that the Due Process Clause
has more than a procedural dimension”). According to the Supreme Court’s
“established framework,” the following issues must be resolved: (1) Does the
person have an interest protected by the Constitution? If so, (2) what is the extent
of the State’s interest in limiting that right? Michael H. v. Gerald D., 491 U.S.
110, 147 (1989) (Brennan, J., dissenting). “It is a bedrock principle of judicial
restraint that a right be lodged firmly in the text or tradition of a specific
3
See In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (following the Troxel plurality
opinion).
14
constitutional provision before [the Supreme Court] will recognize it as
fundamental.” Lewis v. Casey, 518 U.S. 343, 367 (1996) (Thomas, J., concurring).
The Twelfth Court of Appeals concedes “that, ordinarily, parents have a
fundamental interest in the care, custody, and management of their children.”
Schlittler, 2014 Tex. App. LEXIS 11904 at *4-5. However, in a rather facile
fashion the court determined that “[t]he statute, as applied, did not deprive
[Schlittler] of a fundamental interest capriciously or arbitrarily[,]” id. at *5, and
that “[t]he State has a compelling interest in protecting victims of criminal activity,
and their families, even if they are all members of the same family[,]” id., citing
Henderson v. State, 962 S.W.2d 544, 562 (Tex. Crim. App. 1997), cert. denied,
525 U.S. 978 (1998). As argued below, section 38.111 is not a proper exercise of
that compelling interest to protect from B.S. from his father. Instead, section
38.111 is overbroad in the context of this case.
As a prisoner, Schlittler recognizes that he no longer enjoys many of the
same rights of free citizens. Price v. Johnston, 334 U.S. 266, 285-86 (1948).
However, as a convicted prisoner he does not forfeit all constitutional protections
by reason of his conviction and confinement in prison. Bell v. Wolfish, 441 U.S.
520, 545 (1979). And although “his incarceration deprives him of the freedom ‘to
be with family and friends and to form the other enduring attachments of normal
life[,]’” Ingraham v. Wright, 430 U.S. 651, 669 (1977), quoting Morrissey v.
15
Brewer, 408 U.S. 471, 482 (1972), he hasn’t forfeited all right of intimate
association, Overton v. Bazzetta, 539 U.S. 126, 131 (2003). “Prison walls do not
form a barrier separating prison inmates from the protections of the Constitution.”
Turner v. Safley, 482 U.S. 78, 84 (1987) (holding that prisoners retain the right to
marry, id. at 94-99). That is, “[t]here is no iron curtain drawn between the
Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539,
555-56 (1974). That being said, just because prisoners retain certain constitutional
rights does not mean that these rights are not subject to reasonable restrictions and
limitations. Bell v. Wolfish, 441 U.S. at 555. But, “[w]hen a prison regulation or
practice [or, as here, a state statute] offends a fundamental constitutional guarantee,
federal courts will discharge their duty to protect constitutional rights.” Procunier
v. Martinez, 416 U.S. 396, 405-06 (1974), partially overruled by Thornburgh v.
Abbott, 490 U.S. 401, 413-14 (1989).
The liberty interest impaired in this case, i.e., the interest of parents in the
care, custody, and control of their children, is perhaps the oldest of the
fundamental liberty interests recognized by the Supreme Court.4 Troxel v.
4
The Supreme Court has readily intervened in matters regarding marriage and birth. See,
e.g., Loving v. Virginia, 388 U.S. 1 (1967) (invalidating Virginia’s miscegenation statute);
United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013) (invalidating the Defense of
Marriage Act which withheld federal recognition of otherwise lawfully-contracted same-sex
marriages); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating Connecticut’s statute
prohibiting the dispensation of contraceptives to married persons); Eisenstadt v. Baird, 405 U.S.
438 (1972) (invalidating New York’s statute prohibiting the dispensation of contraceptives to
16
Granville, 530 U.S. at 65. This right is even far more precious than people’s
property rights. Lassiter v. Department of Social Services of Durham County, 452
U.S. 18, 38 (1981) (Blackmun, J., dissenting), citing May v. Anderson, 345 U.S.
528, 533 (1953) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923).5 See In re
J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1995) (stating that the “‘natural right’”
existing between parents and their children is one of “‘constitutional
dimensions’”). See also Ginsberg v. New York, 390 U.S. 629, 639 (1968)
(“[C]onstitutional interpretation has consistently recognized that the parents’ claim
to authority in their own household to direct the rearing of their children is basic in
the structure of our society.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We
unmarried persons); and Roe v. Wade, 410 U.S. 113 (1973) (invalidating Texas’ statute
prohibiting abortion).
5
For examples of cases in which the Supreme Court has shielded parental rights from
governmental intrusion, see, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that a statute
requiring English-only instruction must yield to the parents’ rights to have their children
educated suitable to their station in life); Bartels v. Iowa, 262 U.S. 404 (1923) (same);
Farrington v. Tokushige, 273 U.S. (1927) (same); Pierce v. Society of Sisters, 268 U.S. 510
(1925) (holding that Oregon cannot through its compulsory education laws trump a parent’s
decision to enroll his child in a private or parochial school as opposed to a public institution);
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating a state
board of education’s resolution compelling its students to salute the flag and recite the pledge
over the objections of their parents as practicing Jehovah’s Witnesses); Illinois ex rel. McCollum
v. Board of Education of School District No. 71, Champaign County, Illinois, 333 U.S. 203
(1948) (invalidating an Illinois school board’s policy of providing religious instruction over
parental objection); Engel v. Vitale, 370 U.S. 421 (1962) (invalidating a New York school
district’s regulation requiring its students to recite daily a prescribed Regent’s prayer over
parental objections); School District of Abington Township, Pennsylvania v. Schempp, 374 U.S.
203 (1963) (invalidating a Pennsylvania statute and a Baltimore school-board rule requiring their
students to publicly read, at the opening of each school day, excerpts from the Bible and to recite
the Lord’s Prayer contrary to the preferences of their parents as observant Unitarians or
professed atheists); and Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that Wisconsin’s law
requiring children to attend the ninth and tenth grades of school violated their parents’ rights as
practicing members of an Amish Christian sect).
17
have recognized on numerous occasions that the relationship between parent and
child is constitutionally protected.”); Santosky v. Kramer, 455 U.S. 745, 753
(1982) (stating that the “freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth Amendment”); and Pierce
v. Society of Sisters, 268 U.S. 510, 535 (1925) (stating that “[t]hose who nurture [a
child] and direct his destiny have the right, coupled with the high duty, to
recognize and prepare him for additional obligations.”). “Surely there can be few
losses more grievous than the abrogation of parental rights.” Lassiter v.
Department of Social Services of Durham County, 452 U.S. at 40 (Blackmun, J.,
dissenting).
The importance of this interest [in the continuation of the family unit
and the raising of their own children] cannot easily be overstated.
Few consequences of judicial action are so grave as the severance of
natural family ties. Even the convicted committed to prison and
thereby deprived of his physical liberty often retains the love and
support of family members.
Santosky v. Kramer, 455 U.S. at 787 (Rehnquist, J., dissenting) (Italics added).
Because section 38.111, as applied to Schlittler,6 impinges upon his
fundamental interest in the care, custody, and management of his child, B.S., the
State must show a compelling interest to curtail his parental rights and must do so
as narrowly as possible. See Citizens United v. Federal Election Commission, 558
6
A statute is unconstitutional “as applied” when it deprives a person of a protected right
although the statute is an otherwise valid enactment “in the legitimate exercise of state power[.]”
Little v. Streater, 452 U.S. 1, 16 (1981).
18
U.S. 310, 340 (2010); and Beck v. State, 583 S.W.2d 338, 343 (Tex. Crim. App.
1979) (“Since criminal penalties are exacted in an area permeated with the most
fundamental of First Amendment interests, the statutory scheme involved must be
subjected to exacting and close scrutiny.”).7 To satisfy that requirement, the
Twelfth Court of Appeals maintains that section 38.111(a)(2) sufficiently narrows
the scope of the statute. Schlittler, 2014 Tex. App. LEXIS 11904 at *5-6 (“[T]he
statute acknowledges that, in some instances, the parent or legal guardian of the
victim may deem it appropriate for the person who committed the offense to
contact the victim or a member of the victim’s family.”). But how can a statute
that totally deprives a father of any form of contact with his son be construed as
narrow in any sense of the word?!
Subsection (a)(2) does not narrow the breadth of the statute.8 Instead,
subsection (a)(2) improperly delegates legislative authority to a private person to
7
See Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (wherein this Court recently
invalidated part of a Texas statute proscribing the online solicitation of a minor as
unconstitutionally overbroad). See also Lawrence v. Texas, 539 U.S. 558 (2003) (striking down
Texas’ so-called sodomy law as not furthering a legitimate state interest which can justify its
intrusion into a homosexual person’s private life); Doe v. Prosecutor, Marion County, Indiana,
705 F.3d 694 (7th Cir. 2013) (striking down a state statute as not narrowly tailored to serve the
state’s interest because the statute prohibited sex offenders’ substantially protected speech rather
than specifically targeting the evil of improper communications to minors); and Doe v. City of
Albuquerque, 667 F.3d 1111 (10th Cir. 2012) (striking down a city ordinance that prohibited
registered sex offenders from using the city’s public libraries as violative of their First
Amendment right to receive information).
8
Section 38.111(c) establishes an affirmative defense if the contact “was (1) indirect
contact made through an attorney representing the person in custody; and (2) solely for the
purpose of representing the person in a criminal proceeding.” Curiously, section 38.111 would
not permit an inmate’s attorney to contact the victim or the victim’s family member in order to
19
consent (or withhold consent) for contact between a convicted person and his
family member. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S.
116 (1928) (holding that Seattle’s comprehensive zoning ordinance delegating to a
super-majority of private property owners of adjoining land the power to consent,
or not, to issue a permit to erect a philanthropic home for children or for elderly
persons violated the Due Process Clause of the Fourteenth Amendment).
Delegating governmental authority to a private person can invite several forms of
abuse. As here, the unconstitutional delegation binds the State to the decision or
inaction of the private person, makes no provision to review the private person’s
decision, does not bind the private person to an official duty, and subjects the
aggrieved party to the private person’s caprice. Roberge, 278 U.S. at 122. Accord
Eubank v. City of Richmond, 226 U.S. 137, 143-44 (1912); and Carter v. Carter
Coal Co., 298 U.S. 238, 310-12 (1936). But the State cannot shield itself from a
constitutional violation by acting through a non-governmental entity. See Massiah
v. United States, 377 U.S. 201 (1964) (holding that Massiah’s constitutional right
to counsel was violated because his confession was obtained surreptitiously by a
co-defendant working in concert with federal law-enforcement agents); and West v.
Atkins, 487 U.S. 42 (1988) (holding that a private physician acted under color of
represent the inmate at a civil proceeding, including a hearing on a motion to modify a
conservatorship order.
20
state law for Eighth Amendment purposes when he contracted with North Carolina
to provide medical care for its prisoners).
A state statute offends the Due Process Clause if it attempts “‘to force the
breakup of a natural family, over the objections of the parents and their children,
without some showing of unfitness and for the sole reason that to do so was
thought to be in the children’s best interest.’” Quilloin v. Walcott, 434 U.S. at 255,
quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 (1977)
(Stewart, J., concurring in judgment).9 As explained below, no court has found
Schlittler to be an unfit parent of his biological son, nor has any court ever
determined that it was in B.S’s best interest to have absolutely no contact with his
father. Rather, B.S. was born during the term of Schlittler’s marriage to his ex-
wife. 4 R.R. at 7. After they divorced, Schlittler enjoyed “standard” visitation
with his son, and his son even lived with him “full-time” for about 3 months while
his ex-wife worked in Colorado. 3 R.R. at 84-85; 4 R.R. at 8, 11-12. Cf. Lassiter
v. Department of Social Services of Durham County, 452 U.S. at 34 (Burger, C.J.,
concurring) (involving “the parental rights of a mother under lengthy sentence for
murder who showed little interest in her son”).
9
Schlittler perceives recurring trends in the Supreme Court’s decisions concerning fathers
vis à vis their biological children: a father’s fitness to be a parent and his involvement in his
child’s life. Compare Caban v. Mohammed, 441 U.S. 380 (1979) (a case in which the father
participated in the rearing of his child) to Lehr v. Robertson, 463 U.S. 248 (1983) (a case in
which the father never established a relationship with his child).
21
To reiterate, Schlittler was convicted of sexually assaulting his former step-
daughter (B.M.), not his biological son (B.S.). As applied to Schlittler, section
38.111 swept much too broadly. Schlittler’s relationship with his biological son
was not implicated in his crime upon his former step-daughter. Apart from the fact
that B.S. is B.M.’s half-brother, B.S. was a mere bystander to B.M.’s accusation
against Schlittler, her former step-father. But, by including “a member of the
victim’s family,” section 38.111 is “breathtakingly broad” (to borrow from Troxel
v. Granville, 530 U.S. at 67) as applied to Schlittler. The State has no compelling
interest in casting a net so widely to ensnare hapless individuals like Schlittler’s
own son.10
The State asserted that “[p]rotecting a minor sexual assault victim from
undue trauma is a compelling state interest.” C.R. at 43.11 Schlittler does not
10
B.S.’s interests were also implicated by section 38.111, as applied here. See Troxel v.
Granville, 530 U.S. at 86 (Stevens, J., dissenting) (“There is at a minimum a third individual,
whose interests are implicated in every case to which a [child-custody] statute applies—the
child.”). See also Plyler v. Doe, 457 U.S. 202, 219-20 (1982) (stating that children should not be
penalized for the illegal conduct of their parents); accord, id. at 238 (Powell, J., concurring); and
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972) (stating that illegitimate
children should not bear responsibility for their parents’ adulterous behavior).
11
The Office of House Bill Analysis rendered the following critique of H.B. 2890 (later
codified as Section 38.111, Penal Code):
Prior to the 77th Legislature, there was no law to punish those who contacted
without consent a victim through letter, telephone, or other means while the
offender was confined in a correctional facility after being charged with or
convicted of certain sexual offenses. In cases of sexual assault of children, the
receipt of a letter or telephone call from the offender can be devastating to the
child and the child’s family. House Bill 2890 creates an offense if a person while
confined in a correctional facility after being charged with or convicted of a
certain sexual offense contacts the victim without consent. * * *
22
quarrel with that assertion. As a sexual abuse victim, B.M. should be protected
from further physical and/or psychological exploitation. See Overton v. Bazzetta,
539 U.S. at 133 (“Protecting children from harm is a legitimate goal.”). But it is
not B.M. with whom the State alleged Schlittler made an improper contact, but his
own biological son, B.S., who was not his sexual-assault victim. It is on that basis
that Schlittler contends the State has infringed his right to nurture his own son, not
his sexual-assault victim. The State made no attempt to even articulate a
compelling interest to interfere with Schlittler’s fundamental right as a parent
toward his own son; therefore, the State’s conduct under the auspices of section
38.111 is arbitrary and capricious. In Wirsching v. Colorado, 360 F.3d 1191 (10th
Cir. 2004) the Tenth Circuit stated:
[¶] In assessing Mr. Wirsching’s arguments, we do not discount the
importance of his relationship with his children. Even inside the
prison walls, that relationship is generally deserving of some form of
protection. The complete ban upon Mr. Wirsching’s visits with his
children is indeed a harsh restriction, significantly more severe than
the ban on family visits upheld in Overton. Prison officials should be
careful to ensure that restrictions upon visitation with a prisoner’s
children are justified by the circumstances, and they should seriously
consider less draconian restrictions—such as closely monitored,
noncontact visitation. * * *
Id. at 1201 (Italics added) (agreeing with the lower court that Wirsching may
maintain contact with his children through means other than visitation supports the
reasonableness of the Colorado Department of Corrections’ policy).
23
Schlittler recognizes that his parental rights to his biological son are not
absolute, Troxel v. Granville, 530 U.S. at 88 (Stevens, J., dissenting),12 but the
State has not, and cannot, articulate a compelling interest to completely sever that
right, a right which survives his incarceration. Schlitter was convicted and
sentenced for sexually molesting his former step-daughter, B.S.’s half-sister.
There was never any allegation or proof that he also molested—sexually or
emotionally—his son, B.S. In determining that there was “a compelling interest to
protect the child and [sic] that overrides David Schlittler’s right to communicate
with his son[,]” C.R. at 80, the trial court never found that Schlittler was an unfit
parent of his son.13 Rather, the SAPCR court14 appointed Schlittler as B.S.’s
12
See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) (holding that Massachusetts may
pursuant to its general police powers and child-labor laws regulate the activities of children in
street preaching and selling religious materials in derogation of their parents’ rights as practicing
Jehovah’s Witnesses); id. at 166-67 (stating in dicta that a parent cannot claim freedom from
compulsory smallpox vaccination on religious grounds because the right to practice one’s
religion freely does not include liberty to expose the community or his child to communicable
disease or the latter to ill health or death, citing Jacobson v. Massachusetts, 197 U.S. 11 (1905);
Ingraham v. Wright, 430 U.S. 651 (1977) (upholding the Dade County school system’s policy of
inflicting reasonable corporal punishment, without prior parental consent, for students’
disciplinary infractions); Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (upholding
a school district’s policy of requiring all grade school and high school students to submit, over
parental objection, to drug testing in order to participate in the school district’s athletic
programs); and Board of Education of Independent School District No. 92 of Pottawatomie
County v. Earls, 536 U.S. 822 (2002) (upholding a school district’s policy of requiring all middle
and high school students to submit, over parental objection, to drug testing in order to participate
in any extracurricular activity).
13
There was testimony to suggest that Schlittler attempted to contact his son (through an
intermediary) in an effort to have his son convince his half-sister to recant her allegation of
sexual abuse. 3 R.R. at 29-30. The trial court, however, did not expressly find that Schlittler
manipulated his son for some selfish purpose. See C.R. at 78-80. But even if Schlittler had done
so, the fundamental liberty interest of a natural parent in the care, custody, and management of
his child “does not evaporate” simply because he has not been a model parent. Santosky v.
24
possessory conservator with specified rights and duties. 6 R.R. (State’s Exhibit 2A
(not admitted for proffer before the jury, 3 R.R. at 95)). Further, the SAPCR court
awarded Schlittler supervised visitation with his son every first, third and fifth
Saturday of each month for a maximum amount of two hours. Id. Therefore, the
SAPCR court did not bar Schlittler from all contact with his son. But, alas, what
couldn’t be accomplished through the Family Code (because none of the grounds
for involuntary termination of a parent-child relationship would apply, see Section
161.001, Family Code), the Penal Code could do so—and with punitive
consequences.
Despite articulating the proper level of scrutiny (i.e., compelling state
interest) of statutes that trench upon a fundamental interest, the Twelfth Court of
Appeals validated section 38.111’s impairment of Schlittler’s relationship with his
underage son because “[i]t seems indisputable that protecting children is a
legitimate government interest.” Shlittler, 2014 Tex. App. LEXIS 11904 at *5
(Italics added). In the realm of substantive due process, basic constitutional law
instructs that the “legitimate interest” test is used to scrutinize statutes that do not
impair a fundamental right. See, e.g., Ohio Bureau of Employment Services v.
Hodory, 431 U.S. 471 (1977) (holding that, because Ohio’s unemployment-
Kramer, 455 U.S. at 753 (holding that a “clear and convincing” proof standard is constitutionally
required in parental-termination proceedings).
14
A “SAPCR” court has continuing jurisdiction over a suit affecting a parent-child
relationship. Section 155.001(a) and (c), Family Code.
25
compensation statute conferred no discernible fundamental interest, the statute’s
labor-dispute provision (disqualifying non-striking workers from unemployment
benefits) bore a rational relation to a legitimate state interest); Regents of the
University of Michigan v. Ewing, 474 U.S. 214 (1985) (holding that, because a
medical student did not have a substantive due-process right to re-take a
nationally-standardized medical examination, the University faculty reasonably
exercised its professional judgment to deny him that opportunity); and Washington
v. Glucksberg, 521 U.S. 702 (1997) (holding that, because there is no substantive
due-process right of competent, terminally-ill adults to commit suicide,
Washington’s statute banning physician-assisted suicide was reasonably related to
several legitimate state interests). Strict scrutiny demands a “searching
examination.” Fisher v. University of Texas at Austin, 570 U.S. ___, 133 S. Ct.
2411, 2419 (2013). Moreover, “[i]t is a rare case in which [the Supreme Court
has] held that a law survives strict scrutiny.” Burson v. Freeman, 504 U.S. 191,
211 (1992) (plurality opinion). “Strict scrutiny must not be strict in theory but
feeble in fact.” Fisher, 133 S. Ct. at 2421 (vacating the Fifth Circuit’s judgment
and remanding the case for a more rigorous analysis of UT’s admissions policy).
On that score, the Twelfth Court of Appeals accorded section 38.111 a feckless
analysis only.
26
The Twelfth Court of Appeals relied principally upon Henderson v. State,
962 S.W.2d at 560-63, to overrule Schlittler’s substantive due-process claim.
Schlittler, 2014 Tex. App. LEXIS 11904 at *5-6. In Henderson this Court upheld
Section 19.03(a)(8), Penal Code (making it a capital offense to murder a child
under 6 years of age) against an equal-protection challenge because those persons
who murder young children forfeit their fundamental right to life. This Court
determined that section 19.03(a)(8) “is rationally related to serve the government’s
interests in protecting young children and expressing society’s moral outrage
against the murder of young children.” Henderson, 962 S.W.2d at 562.
Henderson is inapposite here. Schlittler did not perpetrate a crime upon his own
son; therefore, the State’s specific effort to bar Schlittler from all contact with his
son is not rationally related to its general interest in protecting young children. In
short, section 38.111 (and the Twelfth Court of Appeals’ interpretation of that
statute) presents an “irrebutable presumption” (which the Supreme Court criticized
in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 648 (1974)) that
Schlittler’s son must, at all times and in all respects, be protected from his own
father.
27
Additionally, this Court intimated that the State’s interest in protecting
children decreases with age.15 Henderson, 962 S.W.2d at 562-63. Here, B.S. was
18 years of age when he testified on May 15, 2013. 4 R.R. at 40. By
extrapolation, B.S. was approximately 13 years old when Schlittler attempted to
contact him. B.S. was not a young child, and Henderson does not support a whole-
sale rejection of Schlittler’s fundamental right to family; therefore, section 38.111
sliced too deeply into Schlittler’s relationship with his own flesh and blood.16 See
Moore v. City of Cleveland, 431 U.S. at 498 (plurality opinion) (invalidating a
city’s housing ordinance as an overly intrusive regulation of the family and not
rationally related to a permissible governmental objective). Hence, Schlittler’s
substantive due-process right towards his son “required a more individualized
determination” than the Twelfth Court of Appeals afforded it. See Cleveland
Board of Education v. LaFleur, 414 U.S. at 645.
The Supreme Court has yet to enunciate a bright-line rule for identifying a
compelling governmental or state interest. The court has, however, provided a few
examples through its case holdings: (1) to prevent the birth of feeble-minded
children who might lead lives of crime or indigency, see Buck v. Bell, 274 U.S. 200
15
Upon request at a bench trial, the SAPCR judge “shall interview in chambers a child 12
years of age or older and may interview in chambers a child under 12 years of age to determine
the child's wishes as to conservatorship or as to the person who shall have the exclusive right to
determine the child's primary residence.” Section 153.009(a), Family Code.
16
Now that B.S. is an adult, section 38.111 cannot impede Schlittler’s contact with his son
because Schlittler’s ex-wife no longer manages B.S.’s life.
28
(1927) (upholding the compulsory sterilization of a feeble-minded woman who
was the daughter of a feeble-minded woman and who had already given birth to a
feeble-minded child); (2) to promote national security, see Korematsu v. United
States, 323 U.S. 214 (1944) (upholding the exclusion of Americans of Japanese
ancestry during WWII in order to prevent espionage and sabotage in certain
threatened areas);17 (3) to preserve public health and safety, see Kansas v.
Hendricks, 521 U.S. 346 (1997) (upholding Kansas’ paradigm for the involuntary
commitment of sexually-violent predators); and (4) to avoid violating explicit
constitutional protections, see Burson v. Freeman, supra (reconciling a person’s
right to engage in political free speech with another person’s right to vote, and
upholding Tennessee’s law prohibiting the solicitation of votes or distribution of
campaign materials within 100 feet of the entrance of a polling place). In other
words, an interest must be necessary or crucial, rather than merely be preferred.
Preventing a father’s discourse with his teenage son hardly amounts to a
compelling state interest.
The Supreme Court has established a more deferential standard for
reviewing prison policies, rules or regulations trenching upon inmates’
fundamental rights. A prison policy, rule or regulation will withstand
17
Although the dissent interpreted the Supreme Court’s opinion as applying the rational
basis test, Korematsu v. United States, 323 U.S. at 234-35 (Murphy, J., dissenting), the majority
upheld the military order in question here as “commensurate with the threatened danger.” Id. at
219-20.
29
constitutional scrutiny if it is “reasonably related” to “legitimate security interests”
and does not constitute “an exaggerated response to [the prison’s] rehabilitation
and security concerns.” Turner v. Safley, 482 U.S. 78, 91 (1987) (invalidating a
Missouri regulation restricting inmate marriages, yet upholding its regulation
prohibiting inmate-to-inmate correspondence). This standard has been applied
only to rights that are “inconsistent with proper incarceration.” Johnson v.
California, 543 U.S. 499, 510 (2005) (retaining the traditional “strict scrutiny” test
for all claims of racial discrimination arising in a prison environment and
invalidating the California Department of Corrections’ policy of housing inmates
of the same race in two-man cells).
Schlittler notes that the standard for reviewing prison regulations set forth in
Turner primarily concerns the maintenance of order and security within prisons.
Washington v. Harper, 494 U.S. 210, 224 (1990) (“We made quite clear that the
standard of review we adopted in Turner applies to all circumstances in which the
needs of prison administration implicate constitutional rights.”). Section 38.111
doesn’t concern itself with institutional security but purportedly with the protection
of victims and their families from further exploitation and victimization. But, in
order to be thorough, Schlittler will also analyze section 38.111 under the Turner
test.
30
Under Turner’s deferential standard, four factors are considered. First, is
there a valid, rational connection between the prison regulation and the legitimate
and neutral governmental interest put forward to justify it? Second, are there
alternative means of exercising the right open to prison inmates? Third, what
impact will accommodation of the asserted right have on guards, other inmates,
and the allocation of prison resources generally? And fourth, are there ready
alternatives available to the prison for achieving the legitimate penological
objectives? Turner v. Safley, 482 U.S. at 89-90; Shaw v. Murphy, 532 U.S. 223,
229-30 (2001) (upholding Montana’s restrictions on prisoners’ communications to
other inmates because prisoners do not possess a First Amendment right to provide
legal assistance that enhances the protections otherwise available under Turner).
These Turner reasonableness factors “boil down to a tailoring test[.]” Johnson v.
California, 543 U.S. at 523, fn. 3 (Stevens, J., dissenting). And the “real task in
this case is not balancing these factors, but rather determining whether [the prison
administration] shows more than simply a logical relation, that is, whether [it]
shows a reasonable relation.” Beard v. Banks, 548 U.S. 521, 533 (2006) (plurality
opinion) (stating that Turner requires prison authorities to show more than a
formalistic logical connection between a regulation and a penological objective[,]”
id. at 535).
31
Examined under the first Turner factor, section 38.111 creates an all-or-
nothing proposition. A person falling within the purview of section 38.111 is
subject to the whim of the other parent or legal guardian of the inmate’s child. If
the other parent or legal guardian consents to the “contact,” then the contact may
occur; if not, then there shall be no contact. It is beyond cavil that a child sexual-
assault victim deserves protection from further injury. See Overton v. Bazetta, 539
U.S. at 133 (“Protecting children from harm is also a legitimate goal[.]”). But
what can justify depriving a father of all contact with his son who was not his
sexual-assault victim? There is none. And because there is none, section 38.111 is
an exaggerated response to the threat of harm to a person who just happened to be
a member of the victim’s family. See Turner v. Safley, 482 U.S. at 91. Because
the connection between the regulation and the asserted goal is arbitrary or
irrational, section 38.111 fails, irrespective of whether the other Turner factors tilt
in its favor. Shaw v. Murphy, 532 U.S. at 229-30.
The second Turner factor collapses onto the first factor. Because section
38.111 empowers a parent or legal guardian with the authority to withhold consent,
the statute criminalizes an inmate’s attempt to contact his son who might be the
family member of the inmate’s sexual-assault victim. As such, there are no
alternative means for Schlittler to exercise his right of association with his son. Cf.
Turner v. Safley, 482 U.S. at 92 (upholding Missouri’s inmate-to-inmate
32
correspondence prohibition because, among other things, it did not deprive
prisoners of all means of expression); O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987) (upholding New Jersey’s prisoner work-requirement regulation although it
conflicted with Muslim inmates’ attendance at weekly congregational services
because Muslim inmates were not deprived of all forms of religious exercise);
Washington v. Harper, supra (upholding Washington’s policy of compulsory
treatment of dangerous, seriously mentally-ill prisoners if the treatment is in their
medical interest and if there are administrative procedures in place for them to
challenge the treatment decision); Overton v. Bazetta, supra (upholding
Michigan’s restriction on inmate visitation with minors under the age of 18
because the restriction did not extend to an inmate’s children, grandchildren, or
siblings); Beard v. Banks, supra (upholding Pennsylvania’s prison policy of
denying certain items—e.g., newspapers, magazines, and family photographs—to a
group of specially dangerous and recalcitrant inmates so that the items could
restored to them later as a reward for improving their behavior); and Samford v.
Dretke, 562 F.3d 674 (5th Cir. 2009) (upholding Texas’ enforcement of its
“negative mail” policy as not violative of Samford’s First Amendment right of
association with his sons because he had other means of communicating with
them).
33
Under the third Turner factor, any accommodation of Schlittler’s right to
contact his son will have only a de minimis impact on guards, other inmates, and
the allocation of prison resources generally. Turner v. Safley, 482 U.S. at 98.
TDCJ currently manages elaborate inmate visitation, telephone, mail and e-
messaging (jpay.com) systems (see General Information Guide for Families of
Offenders located at
http://tdcj.state.tx.us/documents/General_Information_Guide_for_Families_of_Off
enders.pdf) within its extensive 125-unit operation. With a few key strokes on a
TDCJ computer keyboard, B.S. could have been quickly added to Schlittler’s
approved contact list.
And under the fourth Turner factor, the State had other ready alternatives
available for achieving its legitimate penological objectives rather than banning
Schlittler from all contact with his son. The State could have limited Schlittler’s
contact with his son to written correspondence and/or telephonic communication
and perhaps censored his letters or telephone calls for improper communication of
matters touching upon his original conviction for Aggravated Sexual Assault
without impermissibly burdening his constitutional right of free speech as an
incarcerated person. See Procunier v. Martinez, supra (holding that censorship of
prisoner mail is justified under certain circumstances); and Thornburgh v. Abbott,
supra (holding that prison regulations affecting the sending of publications to
34
prisoners will be upheld if reasonably related to legitimate penological interests).
Additionally, the State could have monitored any personal visits from his son in
order to interdict the discussion of any sensitive matters described above. See
Lanza v. New York, 370 U.S. 139 (1962) (holding that a jail visitation room was
not constitutionally immune area from electronic surveillance).
Although the State may “regulate the time and circumstances” under which
Schlittler contacts his son, Turner v. Safley, 482 U.S. at 99, the State has no
legitimate penological interest to bar Schlittler from all contact with his son whom
he did not sexually violate and who was not involved in the underlying aggravated
sexual assault prosecution. Indeed, because the purported interest here (i.e.,
protecting sexual-assault victims from further victimization) is unrelated to the
suppression of Schlittler’s parental right to nurture is own son, section 38.111
cannot survive even Turner’s less exacting reasonable-relationship test, a standard
which the Supreme Court has asserted “is not toothless.” Thornburgh v. Abbott,
490 U.S. at 414 (upholding the U. S. Bureau of Prisons’ regulations restricting the
content of publications its prisoners may receive as reasonably related to legitimate
penological interests).
Under the Turner deferential reasonableness standard, “the exercise of
[fundamental] freedoms may of course be regulated and constrained by their
custodians, [but] they may not be obliterated either actively or passively.” Lewis v.
35
Casey, 518 U.S. 343, 405 (1996) (Stevens, J., dissenting) (holding that a district
court failed to apply the Turner deferential standard with respect to certain
inadequacies with the Arizona Department of Corrections’ prison law libraries).
Thus, a prison regulation may not bar all inmate contact with a family member or
outside entity. Thornburgh v. Abbott, 490 U.S. at 425-26 (Stevens, J., dissenting).
See Pell v. Procunier, 417 U.S. 817, 826 (1974) (“So long as reasonable and
effective means of communication remain open and no discrimination in terms of
content is involved, we believe that drawing such lines [to limit face-to-face
visitation], prison officials must be accorded latitude.”). Section 38.111 bans all
contact by an inmate to a victim of the offense or a member of the victim’s family
whether “by letter, telephone, or any other means, either directly or through a third
party[;]” therefore, even under Turner’s more relaxed reasonableness standard,
section 38.111 is unconstitutional as applied to Schlittler.
2. Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides:
No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.
36
A state statute implicating that provision is reviewed with “strict scrutiny” if it
classifies persons in such a manner that it interferes with a fundamental right.18
See Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000); Clark v. Jeter,
486 U.S. 456, 461 (1988) (stating that “classifications affecting fundamental rights
are given the most exacting scrutiny”); and Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307, 312 (1976) (stating that a statute “requires strict scrutiny” if
it “impermissibly interferes with the exercise of a fundamental right” [footnotes
omitted]). To survive a strict scrutiny review, the discriminatory classification
must promote a compelling governmental interest and be narrowly tailored to
achieve that interest. Casarez v. State, 913 S.W.2d 468, 473 (Tex. Crim. App.
1994). And “[w]hen a statutory classification significantly interferes with the
exercise of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to effectuate only those
interests.” Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (striking down a
Wisconsin statute barring persons with child-support arrearages from marrying).
The State must bear the burden to prove that the infringement furthers a
compelling state interest and is narrowly tailored to achieve that interest. See
Citizens United v. Federal Election Commission, 558 U.S. 310, 340 (2010); and
18
Although the Equal Protection Clause creates no substantive rights, Vacco v. Quill, 521
U.S. 793, 799 (1997), it provides just as much protection as the Due Process Clause, Plyler v.
Doe, 457 U.S. 202, 213 (1982).
37
Plyler v. Doe, 457 U.S. 202, 216-7 (1982) (treating “as presumptively invidious
those classifications . . . that impinge upon the exercise of a ‘fundamental
right’”).19
The class created by Section 38.111, Penal Code, comprises persons
confined in a correctional facility after being charged with or convicted of certain
sexual or sexually-motivated offenses. By its terms, section 38.111 does not apply
to violent offenses which are not sexual or sexually motivated. Hence, non-sexual
murderers, kidnappers, and robbers are excluded from the class created by section
38.111. Without analysis, the Twelfth Court of Appeals disagrees, stating tersely:
The class created is defined by the particular crime committed, not the
broader factor of being a convict who currently resides in a
correctional facility. [citation omitted] The crimes carved out by
Section 38.111 all involve physical and emotional harm of a
particularly sensitive nature. The need to protect victims of these
particular crimes, as well as their families, justifies the classification.
[citations omitted]
Schlittler, 2014 Tex. App. LEXIS 11904 at *7.
Although perhaps not a member of a “suspect” class per se,20 Schlittler does
enjoy a fundamental right of society with his biological son.
19
The Supreme Court “has recognized that certain forms of legislative classification, while
not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these
limited circumstances [the Court has] sought the assurance that the classification reflects a
reasoned judgment consistent with the ideal of equal protection by inquiring whether it may
fairly be viewed as furthering a substantial interest of the State.” Plyler v. Doe, 457 U.S. at 217-
18 (footnote 16 omitted).
38
Choices about marriage, family life, and the upbringing of children
are among associational rights this Court has ranked as “of basic
importance in our society,” [citation omitted] rights sheltered by the
Fourteenth Amendment against the State’s unwarranted usurpation,
disregard, or disrespect.
M.L.B. v. S.L.J., 519 U.S. 102, 487 (1996) (holding that Mississippi may not
condition an appeal from a trial-court decree terminating parental rights on the
affected parent’s ability to pay record preparation fees). For equal-protection
purposes, a father’s interest in the companionship, care, custody, and management
of his child is “cognizable and substantial.” Quilloin v. Walcott, 434 U.S. 246, 248
(1978), citing Stanley v. Illinois, 405 U.S. 645, 651-52 (1972) (“The private
interest here, that of a man in the children he has sired and raised, undeniably
warrants deference and, absent a powerful countervailing interest, protection.”).
Therefore, the interests of Schlittler and his biological son is a liberty interest to be
protected “from arbitrary governmental invasion.” Procunier v. Martinez, 416
U.S. 396, 418 (1974), partially overruled by Thornburgh v. Abbott, 490 U.S. 401,
413-14 (1989). Accord Santosky v. Kramer, 455 U.S. at 774 (Rehnquist, J.,
dissenting) (“I do not disagree with the majority’s conclusion that the interest of
parents in their relationship with their children is sufficiently fundamental to come
20
To be considered “suspect,” the classification must be based on “‘immutable
characteristics’” such as race, gender, and natural origin. Flores v. State, 904 S.W.2d 129, 130
(Tex. Crim. App. 1995), citing Frontiero v. Richardson, 411 U.S. 677 (1973).
39
within the finite class of liberty interests protected by the Fourteenth
Amendment.”).
The Twelfth Court of Appeals maintains that section 38.111 “provides equal
treatment for all class members’ fundamental rights of parenting.” Schlittler, 2014
Tex. App. LEXIS 11904 at *7. Specifically,
[t]o apply the statute to some members of the class but not to those
class members whose parental rights might be affected, like
[Schlittler], would result in a failure to protect their victims from
further victimization, thereby reducing the effectiveness of the statute.
Moreover, such an application could lead to subjective and arbitrary
determinations of which convicted sex offenders are exempt and
would create an equal protection violation.
Id. Ergo, the court concludes that the statute, as applied to Schlittler, does not
violate the Equal Protection Clause because the statute has equal application to the
class members. Id. Clearly the court applied a more relaxed standard for
reviewing the constitutionality of a statute that classifies persons when a
fundamental liberty interest is not involved. See, e.g., Reed v. Reed, 404 U.S. 71
(1971) (invalidating as illegitimate and irrational an Idaho statute preferring a male
over a similarly-situated female for appointment as administrator of the estate of a
person who died intestate); City of Cleburne, Texas v. Cleburne Living Center, 473
U.S. 432 (1985) (employing a “lesser standard of scrutiny” to review a municipal
zoning ordinance denying a special use permit for the operation of a group home
for mentally-retarded persons because mental retardation is not a suspect
40
classification); Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988)
(upholding a North Dakota statute allowing some school boards, but not others, to
assess a fee for transporting students between their homes and the public schools as
not discriminating against a suspect class or interfering with a fundamental right);
Romer v. Evans, 517 U.S. 620 (1996) (holding that a Colorado constitutional
amendment that neither burdened a fundamental right nor targeted a suspect class,
i.e., sexually-oriented minorities, for disfavored treatment nevertheless violated the
Equal Protection Clause because the amendment bore no rational relation to some
legitimate end); and Vacco v. Quill, 521 U.S. 793 (1997) (holding that New York’s
statute prohibiting assisted suicide neither infringed upon fundamental rights nor
involved suspect classifications and that the distinction between assisting suicide
and withdrawing life-sustaining treatment had a rational basis).
Additionally, from its finding that “[t]he need to protect victims of these
particular crimes, as well as their families, justifies the classification[,]” Schlittler,
2014 Tex. App. LEXIS 11904 at 7, the Twelfth Court of Appeals subjected section
38.111 to a less exacting standard of constitutional review than strict scrutiny
requires. Strict scrutiny demands a “searching examination.” Fisher v. University
of Texas at Austin, 570 U.S. ___, 133 S. Ct. 2411, 2419 (2013). “Strict scrutiny
must not be strict in theory but feeble in fact.” Id. at 2421 (vacating the Fifth
41
Circuit’s judgment and remanding the case for a more rigorous analysis of UT’s
admissions policy).
Although a state is not constrained in the exercise of its police power to
mark a class of offenders (or a family of offenses) for “special treatment,” the
statute creating the classification is, however, subjected to a “strict scrutiny”
review if the statute abridges a fundamental right. Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 540-41 (1942) (holding that Oklahoma’s forced
sterilization law of only habitual criminals ran afoul of the Equal Protection Clause
because the statute deprived them of their fundamental right of procreation). The
Twelfth Court of Appeals made no attempt whatsoever to distinguish Skinner and
blithely ignores that section 38.111 singles out for prosecution only sex offenders,
but not other run-of-the-mill violent criminals. In doing so, the statute impinges
upon Schlittler’s fundamental right to family in violation of the Equal Protection
Clause.
The Supreme Court has established a more deferential standard for
reviewing prison policies, rules or regulations trenching upon inmates’
fundamental rights. A prison policy, rule or regulation will withstand
constitutional scrutiny if it is “reasonably related” to “legitimate security interests”
and does not constitute “an exaggerated response to [the prison’s] rehabilitation
and security concerns.” Turner v. Safley, 482 U.S. 78, 91 (1987) (invalidating a
42
Missouri regulation restricting inmate marriages, yet upholding its regulation
prohibiting inmate-to-inmate correspondence). This standard has been applied
only to rights that are “inconsistent with proper incarceration.” Johnson v.
California, 543 U.S. 499, 510 (2005) (retaining the traditional “strict scrutiny” test
for all claims of racial discrimination arising in a prison environment and
invalidating the California Department of Corrections’ policy of housing inmates
of the same race in two-man cells). Cf. Holt v. Hobbs, 574 U.S. ___, 135 S. Ct. 853
(2015) (invalidating Arkansas’ prison policy requiring inmates to shave their facial
hair as violative of Holt’s religious liberties).21
Schlittler notes that the standard for reviewing prison regulations set forth in
Turner primarily concerns the maintenance of order and security within prisons.
Washington v. Harper, 494 U.S. 210, 224 (1990) (“We made quite clear that the
standard of review we adopted in Turner applies to all circumstances in which the
needs of prison administration implicate constitutional rights.”). Section 38.111
doesn’t concern itself with institutional security but purportedly with the protection
of victims and their families from further exploitation and victimization. But, in
order to be thorough, Schlittler will also analyze section 38.111 under the Turner
test.
21
The Supreme Court applied the standard for review prescribed by the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq.
RLUIPA codifies the “compelling governmental interest” standard. Cutter v. Wilkinson, 544
U.S. 709, 722-23 (2005) (upholding RLUIPA’s institutionalized-persons provision as not
offensive to the First Amendment’s Establishment Clause).
43
Under Turner’s deferential standard, four factors are considered. First, is
there a valid, rational connection between the prison regulation and the legitimate
and neutral governmental interest put forward to justify it? Second, are there
alternative means of exercising the right open to prison inmates? Third, what
impact will accommodation of the asserted right have on guards, other inmates,
and the allocation of prison resources generally? And fourth, are there ready
alternatives available to the prison for achieving the legitimate penological
objectives? Turner v. Safley, 482 U.S. at 89-90; Shaw v. Murphy, 532 U.S. 223,
229-30 (2001) (upholding Montana’s restrictions on prisoners’ communications to
other inmates because prisoners do not possess a First Amendment right to provide
legal assistance that enhances the protections otherwise available under Turner).
These Turner reasonableness factors “boil down to a tailoring test[.]” Johnson v.
California, 543 U.S. at 523, fn. 3 (Stevens, J., dissenting). And the “real task in
this case is not balancing these factors, but rather determining whether [the prison
administration] shows more than simply a logical relation, that is, whether [it]
shows a reasonable relation.” Beard v. Banks, 548 U.S. 521, 533 (2006) (plurality
opinion) (stating that Turner requires prison authorities to show more than a
formalistic logical connection between a regulation and a penological objective[,]”
id. at 535).
44
Examined under the first Turner factor, section 38.111 creates an all-or-
nothing proposition. An inmate within the class of offenders established by section
38.111 is subject to the whim of the other parent or legal guardian of the inmate’s
child. If the other parent or legal guardian consents to the “contact,” then the
contact may occur; if not, then there shall be no contact. It is beyond cavil that a
child sexual-assault victim deserves protection from further injury. See Overton v.
Bazetta, 539 U.S. 126, 133 (2003) (“Protecting children from harm is also a
legitimate goal[.]”). But what can justify depriving a father of all contact with his
son who was not his sexual-assault victim? There is none. And because there is
none, section 38.111 is an exaggerated response to the threat of harm to a person
who just happened to be a member of the victim’s family. See Turner v. Safley,
482 U.S. at 91. Because the connection between the regulation and the asserted
goal is arbitrary or irrational, section 38.111 fails, irrespective of whether the other
Turner factors tilt in its favor. Shaw v. Murphy, 532 U.S. at 229-30.
The second Turner factor collapses onto the first factor. Because section
38.111 empowers a parent or legal guardian with the authority to withhold consent,
the statute criminalizes an inmate’s attempt to contact his son who might be the
family of member of the inmate’s sexual-assault victim. As such, there are no
alternative means for Schlittler to exercise his right of association with his son. Cf.
Turner v. Safley, 482 U.S. at 92 (upholding Missouri’s inmate-to-inmate
45
correspondence prohibition because, among other things, it did not deprive
prisoners of all means of expression); O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987) (upholding New Jersey’s prisoner work-requirement regulation although it
conflicted with Muslim inmates’ attendance at weekly congregational services
because Muslim inmates were not deprived of all forms of religious exercise);
Washington v. Harper, supra (upholding Washington’s policy of compulsory
treatment of dangerous, seriously mentally-ill prisoners if the treatment is in their
medical interest and if there are administrative procedures in place for them to
challenge the treatment decision); Overton v. Bazetta, supra (upholding
Michigan’s restriction on inmate visitation with minors under the age of 18
because the restriction did not extend to an inmate’s children, grandchildren, or
siblings); Beard v. Banks, supra (upholding Pennsylvania’s prison policy of
denying certain items—e.g., newspapers, magazines, and family photographs—to a
group of specially dangerous and recalcitrant inmates so that the items could
restored to them later as a reward for improving their behavior); and Samford v.
Dretke, 562 F.3d 674 (5th Cir. 2009) (upholding Texas’ enforcement of its
“negative mail” policy as not violative of Samford’s First Amendment right of
association with his sons because he had other means of communicating with
them).
46
Under the third Turner factor, any accommodation of Schlittler’s right to
contact his son will have only a de minimis impact on guards, other inmates, and
the allocation of prison resources generally. Turner v. Safley, 482 U.S. at 98.
TDCJ currently manages elaborate inmate visitation, telephone, mail and e-
messaging (jpay.com) systems (see General Information Guide for Families of
Offenders located at
http://tdcj.state.tx.us/documents/General_Information_Guide_for_Families_of_Off
enders.pdf) within its extensive 125-unit operation. With a few key strokes on a
TDCJ computer keyboard, B.S. could have been quickly added to Schlittler’s
approved contact list.
And under the fourth Turner factor, the State had other ready alternatives
available for achieving its legitimate penological objectives rather than banning
Schlittler from all contact with his son. The State could have limited Schlittler’s
contact with his son to written correspondence and/or telephonic communication
and perhaps censored his letters or telephone calls for improper communication of
matters touching upon his original conviction for Aggravated Sexual Assault
without impermissibly burdening upon his constitutional right of free speech as an
incarcerated person. See Procunier v. Martinez, supra (holding that censorship of
prisoner mail is justified under certain circumstances); and Thornburgh v. Abbott,
supra (holding that prison regulations affecting the sending of publications to
47
prisoners will be upheld if reasonably related to legitimate penological interests).
Additionally, the State could have monitored any personal visits from his son in
order to interdict the discussion of any sensitive matters described above. See
Lanza v. New York, 370 U.S. 139 (1962) (holding that a jail visitation room was
not constitutionally immune from electronic surveillance).
Although the State may “regulate the time and circumstances” under which
Schlittler contacts his son, Turner v. Safley, 482 U.S. at 99, the State has no
legitimate penological interest to bar Schlittler from all contact with his son whom
he did not sexually violate and who was not involved in the underlying aggravated
sexual assault prosecution. Indeed, because the purported interest here (i.e.,
protecting sexual-assault victims from further victimization) is unrelated to the
suppression of Schlittler’s parental right to nurture is own son, section 38.111
cannot survive even Turner’s less exacting reasonable-relationship test, a standard
which the Supreme Court has asserted “is not toothless.” Thornburgh v. Abbott,
490 U.S. at 414 (upholding the U. S. Bureau of Prisons’ regulations restricting the
content of publications its prisoners may receive as reasonably related to legitimate
penological interests).
Under the Turner deferential reasonableness standard, “the exercise of
[fundamental] freedoms may of course be regulated and constrained by their
custodians, [but] they may not be obliterated either actively or passively.” Lewis v.
48
Casey, 518 U.S. 343, 405 (1996) (Stevens, J., dissenting) (holding that a district
court failed to apply the Turner deferential standard with respect to certain
inadequacies with the Arizona Department of Corrections’ prison law libraries).
Thus, a prison regulation may not bar all inmate contact with a family member or
outside entity. Thornburgh v. Abbott, 490 U.S. at 425-26 (Stevens, J., dissenting).
See Pell v. Procunier, 417 U.S. 817, 826 (1974) (“So long as reasonable and
effective means of communication remain open and no discrimination in terms of
content is involved, we believe that drawing such lines [to limit face-to-face
visitation], prison officials must be accorded latitude.”). Section 38.111 bans all
contact by an inmate to a victim of the offense or a member of the victim’s family
whether “by letter, telephone, or any other means, either directly or through a third
party[;]” therefore, even under Turner’s more relaxed reasonableness standard,
section 38.111 is unconstitutional as applied to Schlittler.22
Prayer
Schlittler prays that this Court declare Section 38.111, Penal Code,
unconstitutional as applied to him, and in accordance with Rule 78.1(c), Rules of
Appellate Procedure, that this Court reverse the Twelfth Court of Appeal’s
judgment (and the trial court’s judgment) and dismiss the indictment filed in this
case.
22
Although Schlittler brought the Turner standard to the Twelfth Court of Appeals’
attention, see Appellant’s Brief at 16-19, the court did not even mention Turner in its opinion.
49
Respectfully submitted,
State Counsel for Offenders
Attorney for Appellant
/s/ Kenneth Nash
Texas Bar No. 14811030
P. O. Box 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5279
E-mail address: Ken.Nash@tdcj.texas.gov
Certificate of Compliance
In accordance with Rule 9.4, Rules of Appellate Procedure, I certify that this
computer-generated document complies with the typeface requirements of Rule
9.4(e) and is comprised of 9,680 words (excluding the items exempted in Rule
9.4(i)(1)).
/s/ Kenneth Nash
50
Certificate of Service
I certify that a true and correct copy of the foregoing Appellant’s Brief was
served upon the State’s attorney and upon the State Prosecuting Attorney noted
below by one or more of the following: certified mail (return receipt requested),
facsimile transfer, or electronic mail (e-mail), on March 27, 2015.
Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79105
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org
Lisa C. McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, TX 78711
Facsimile no. 512-463-5724
E-mail address: information@spa.texas.gov
/s/ Kenneth Nash
51