Campbell, Ex Parte Craig Ronald ( 2008 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,838
EX PARTE CRAIG RONALD CAMPBELL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 23,639-A IN THE 300 TH JUDICIAL DISTRICT COURT
FROM BRAZORIA COUNTY
K ELLER, P.J., delivered the opinion of the Court in which W OMACK, K EASLER,
H ERVEY, and C OCHRAN, JJ., joined. P RICE, J., filed a dissenting opinion in which
M EYERS, J OHNSON and H OLCOMB, JJ., joined. C OCHRAN, J., filed a concurring opinion
in which W OMACK, J., joined.
We filed and set this case to determine whether and under what circumstances a releasee who
has never been convicted of a “reportable offense” may be required to comply with sex offender
conditions of early release. We hold that the parole panel was authorized by statute to impose sex
offender conditions in general, and a child safety zone condition in particular, upon this applicant,
and we hold that these conditions were not imposed in violation of due process.
I. BACKGROUND
In 1992, applicant pleaded guilty to burglary of a building1 as an habitual offender2 and was
1
See TEX . PEN . CODE §30.02. Applicant was charged with the variants of burglary that
require proof of intent to commit theft or the commission or attempted commission of theft. See id.,
CAMPBELL - 2
sentenced to thirty-five years in prison. In addition to prior felony convictions, applicant also had
two prior misdemeanor convictions: one for indecent exposure3 and one for assault.4 According to
a police report in the indecent exposure case, applicant had exposed himself to four young children
who were playing on their front lawn. Applicant unzipped his pants, pulled his penis out, said,
“[H]ey girl, look,” and moved his penis around with his hand. A police report in the assault case
indicated that applicant had forced his way into a sixty-year-old woman’s home, tried to spread her
legs apart, and moved toward her genitals. The report indicated that the district attorney’s office had
originally advised the arresting officer to file an attempted sexual assault charge.
On July 5, 2006, applicant was released on parole,5 with special condition “L” – requiring
the maximum level of supervision. On July 10, 2006, the parole division of the Texas Department
of Criminal Justice notified applicant that it was considering requesting that a parole panel of the
Board of Pardons and Parole impose special condition “X” – sex offender conditions. The July 10th
notice informed applicant that he had a right to submit information on his own behalf to give reasons
why the sex offender conditions should not be imposed. The notice gave a deadline of August 7,
2006. Applicant did not submit a response.
§30.02(a)(1), (3).
2
See id., §12.42(d).
3
See id., §21.08.
4
See id., §22.01.
5
Applicant’s habeas application, the trial court’s findings, and this Court’s “file and set”
order all refer to applicant having been released on mandatory supervision. Examination of the
official records reveals, however, that applicant was released on parole, not mandatory supervision.
CAMPBELL - 3
On August 11, 2006, the parole panel held a hearing on the matter. Applicant was not given
the opportunity to attend this hearing. The parole panel voted to impose special condition “O”
(other), ordering applicant to submit to a sex offender evaluation. On August 24, 2006, applicant
submitted to a sex offender interview with Aaron P. Pierce, Ph.D. During the interview, Pierce
asked applicant to explain his arrests for the two offenses outlined in the notice. With respect to the
assault case, applicant replied that he was drunk and intended to break into a house. When asked
whether he attempted to engage in sexual activity with the woman in the house, applicant stated, “I
don’t think so; I was drunk.” With respect to the indecent exposure case, applicant said he was just
“taking a leak in an area where there were kids.” Based upon those answers and other information
obtained in the interview, Pierce recommended that applicant be required to complete “a sexual
offense specific treatment program.”
On October 6, 2006, the parole panel imposed special condition X. Included within special
condition X was a child safety zone condition. On October 11, 2006, applicant received notice of
the additional conditions from his parole officer. The parole officer’s report indicated that applicant
was under home confinement; was permitted to leave his residence only for work, church, medical
emergencies, and sex offender treatment; and was prohibited from going within a certain distance,
specified by the Board of Pardons and Parole, of premises where children commonly gather.
On November 27, 2006, applicant admitted to a parole officer that he had been going to his
father’s house every day of the week between 5:30 and 6:30 p.m. and that he was aware that his
CAMPBELL - 4
father’s house was in a child safety zone.6 Applicant stated that he went to his father’s house to eat
and shower because his sponsor house did not have hot water. Subsequently, applicant’s parole was
revoked for failure to follow the instructions of his parole officer and for failure to avoid child safety
zones.
In an application for a writ of habeas corpus, applicant contended that, after being paroled
out on mandatory supervision, the parole panel “tacked on” sex offender registration and treatment
programs in violation of his constitutional rights. He claimed that he “was never convicted of any
sex related offenses to initiate said conditions.” He further claimed that the “child safety zone”
condition should never have been applied to him and that he should be released back to mandatory
supervision without sex offender conditions.
After designating issues and receiving an affidavit and various documents, the district court
made the following findings of fact:
(1) [Applicant] has never been convicted or adjudicated guilty of a “reportable”
offense as defined by Article 62.001(5), Code of Criminal Procedure;
(2) There was a sexual component to applicant’s prior offense of indecent exposure;
however, it was applicant’s first conviction for indecent exposure; therefore, it is not
a reportable conviction under Article 62.001(5), Code of Criminal Procedure;
(3) Applicant did not violate conditions of mandatory supervision that resulted in the
revocation of his mandatory supervision, because those conditions relating to sexual
offenders did not apply to applicant.
Based on its findings of fact, the district court made the following conclusions of law:
6
The house was within 500 feet of what was either a “Head Start” school (according to the
revocation allegations) or a day care center (applicant’s testimony). Applicant had previously been
moved from that residence to his sponsor residence.
CAMPBELL - 5
(1) Applicant did not violate conditions of mandatory supervision that resulted in the
revocation of his mandatory supervision, because those conditions relating to sexual
offenders did not apply to applicant;
(2) Applicant is entitled to mandatory release without sex-offender related conditions.
II. ANALYSIS
Citing various statutes and relying upon Coleman v. Dretke,7 applicant contends that sex
offender conditions may be imposed only upon offenders who have a “reportable offense” under
Chapter 62. Alternatively, relying upon Coleman, applicant contends that sex offender conditions
were imposed upon him in violation of due process because (1) he had not been convicted of a
“reportable offense” that would justify imposition of sex offender conditions without a hearing, and
(2) he was not given advance notice that he was being considered for sex offender conditions and
an opportunity to respond. Because Coleman comprises a crucial part of applicant’s arguments, we
discuss it before turning to applicant’s contentions.
A. Coleman
Coleman was released on parole on a burglary conviction.8 While on parole, he was indicted
for aggravated sexual assault of a child and indecency with a child by contact.9 He pleaded guilty
to, and was convicted of, only assault, and his parole on the burglary conviction was revoked.10 He
was later released to mandatory supervision on the burglary offense, on the condition that he reside
7
395 F.3d 216 (5th Cir. 2004).
8
Id. at 219.
9
Id.
10
Id.
 CAMPBELL - 6
in a halfway house until employed.11 Over a month after that, without affording advance notice or
a hearing, a parole panel imposed two additional conditions of release: that he register as a sex
offender and that he attend sex offender therapy.12 Coleman failed to participate in sex offender
therapy, and as a result, his mandatory supervision release was revoked.13
Coleman argued that imposing sex offender registration and therapy as conditions of his early
release, without affording the opportunity to contest his sex offender status, violated due process.14
The Fifth Circuit explained that a procedural due process inquiry with respect to sex offender
conditions consisted of two elements: (1) whether the complaining party had a liberty interest in not
having sex offender conditions imposed on his early release, and (2) if so, whether the State provided
constitutionally sufficient procedures before imposing the conditions.15 The court further explained
that a liberty interest may arise from two sources: the Due Process Clause itself or state law.16 The
Fifth Circuit concluded that the Due Process Clause itself guarantees a prisoner some process before
the State can impose conditions “that are qualitatively different from the punishment
characteristically suffered by a person convicted of the crime, and which have stigmatizing
11
Id.
12
Id.
13
Id.
14
Id. at 221.
15
Id.
16
Id.
CAMPBELL - 7
consequences.”17 The court characterized restrictions that attend early release as “an established
variation on imprisonment of convicted criminals” and found that a condition of early release “may
present such a dramatic departure from the basic conditions of a parolee’s sentence that the state
must provide some procedural protections prior to its imposition.”18
In addressing whether the sex offender conditions imposed on Coleman were a dramatic
departure from the norm, the Fifth Circuit discussed the Supreme Court case of Vitek v. Jones,19
which held that due process requires procedural protections before an inmate may be involuntarily
committed to a mental institution.20 Based upon the combination of stigma and compelled behavior-
modification treatment, the Supreme Court held that involuntary commitment to a mental institution
implicated a constitutionally protected liberty interest.21 The Fifth Circuit found the facts of its case
to be materially indistinguishable from Vitek: sex offender classification and counseling were
stigmatizing, and the sex offender counseling involved intrusive, behavior-modifying techniques.22
Consequently, the sex offender conditions imposed upon Coleman were “qualitatively different”
from the usual conditions that attend an inmate’s release.23 The Fifth Circuit also cited cases from
17
Id. (internal quotation marks omitted).
18
Id. at 222 (internal quotation marks omitted).
19
445 U.S. 480 (1980).
20
Coleman, 395 F.3d at 222.
21
Id. (citing Vitek).
22
Id. at 223.
23
Id.
CAMPBELL - 8
the Ninth and Eleventh Circuits in support of the conclusion that “prisoners who have not been
convicted of a sex offense have a liberty interest created by the Due Process Clause in freedom from
sex offender classification and conditions.”24
Because the sex offender conditions imposed on Coleman implicated a liberty interest, the
State could have legitimately imposed those conditions only if it had determined, after affording
Coleman appropriate procedural protections, that Coleman constituted “a threat to society by reason
of his lack of sexual control.”25 “Absent a conviction of a sex offense,” the Fifth Circuit concluded,
the State must afford “an appropriate hearing” at which such a determination can be made.26
B. Authorization to Impose the Condition at All
It is undisputed that applicant does not have a “reportable conviction” under the sex offender
registration statute, which does not list assault or burglary with intent to commit theft, and lists only
a second conviction for indecent exposure.27 Applicant contends that Government Code sections
508.186, 508.187, and 508.225 specifically address when sex offender conditions in general, and
child safety zone conditions in particular, may be imposed. Because none of those statutes apply to
the offense of indecent exposure, he reasons that the parole panel lacks the authority to impose those
conditions in his case. We disagree.
Sections 508.186 and 508.187 address situations in which a parole panel must impose certain
24
Id. at 222, 222 n. 26.
25
Id. at 225.
26
Id.
27
See TEX . CODE CRIM . PROC. art. 62.001(5), and more specifically (5)(F).
CAMPBELL - 9
conditions, but those sections do not constrain the scope of a parole panel’s discretionary authority.28
Section 508.225 authorizes the imposition of a child safety zone condition for an inmate serving a
sentence for an offense falling under section 3g of the Code of Criminal Procedure if such a
condition is warranted by the nature of the offense.29 Section 508.225 does not, however,
specifically preclude the use of a child safety zone in other circumstances.30 In contrast, Chapter 508
does contain one instance in which the legislature specifically precluded something from being used
as a condition of release: an inmate may not be required to undergo an orchiectomy.31
More importantly, section 508.221 confers broad, general authority on a parole panel to
impose conditions of parole or mandatory supervision: “A parole panel may impose as a condition
of parole or mandatory supervision any condition that a court may impose on a defendant placed on
community supervision under article 42.12, Code of Criminal Procedure . . . .”32 In turn, article
42.12, section 11, provides, “The judge may impose any reasonable condition that is designed to
protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the
defendant.”33
28
See TEX . GOV ’T CODE §508.186 (“A parole panel shall require as a condition of parole or
mandatory supervision that a releasee required to register as a sex offender under Chapter 62, Code
of Criminal Procedure” fulfill certain conditions); id., §508.187(b)(“A parole panel shall establish
a child safety zone” under certain circumstances with certain conditions).
29
T EX . GOV ’T CODE §508.225(a).
30
See id., §508.225, passim.
31
Id., §508.226.
32
Id., §508.221.
33
T EX . CODE CRIM . PROC. art. 42.12, §11(a).
CAMPBELL - 10
Indecent exposure is a sex offense34 and a person who commits indecent exposure is
specifically identified as a “sex offender” by article 42.12, section 9A,35 so sex offender conditions
would seem “reasonable” under article 42.12, section 11. Moreover, in addition to its general grant
of authority, article 42.12, section 11 explicitly permits a judge who grants community supervision
to a sex offender identified by section 9A to require the probationer to “submit to treatment,
specialized supervision, or rehabilitation according to offense-specific standards of practice adopted
by the Council on Sex Offender Treatment.”36 Finally, under article 42.12, section 13B, a child
safety zone condition is a requirement of probation for an indecent exposure offense committed
against a child.37 Given the general authority granted to a parole panel to impose any condition of
probation permitted by article 42.12, it would be odd to prohibit the imposition of a child safety zone
as a condition of parole for a first-time indecent exposure offense when it would be required as a
condition of probation under article 42.12.
The dissent contends that §508.225, by authorizing the discretionary imposition of child
safety zones for 3g offenders, impliedly prohibits the discretionary imposition of a child safety zone
condition for non-3g offenses under the maxim expressio unius est exclusio alterius – expressing
34
See the text of TEX . PEN . CODE §21.08 (“intent to arouse or gratify the sexual desire of
any person”) and the title of Penal Code, Chapter 20 (“Sexual Offenses”).
35
T EX . CODE CRIM . PROC. art. 42.12, §9A(a)(2)(B).
36
Id., §11(i).
37
Id., §13B(a)(1)(B), (b)(2)(“(a) If a judge grants community supervision to a defendant
described by Subsection (b) and the judge determines that a child . . . was the victim of the offense,
the judge shall establish a child safety zone applicable to the defendant . . . . (b) This section applies
to a defendant placed on community supervision for an offense . . . (2) under Section 21.08 . . . Penal
Code.”).
CAMPBELL - 11
one thing implies the exclusion of what was not expressed.38 For several reasons, we find the
dissent’s argument to be unpersuasive.
First, the maxim expressed by the dissent is not an inflexible rule but is merely an aid in
construction.39 Though it “has had widespread legal application,” “it is not a rule of law and there
is nothing particularly legal about it.”40 The maxim is “a product of logic and common sense,
expressing the learning of common experience that when people say one thing they do not mean
something else.”41 In considering the application of a rule of logic and common sense to parole law,
courts should also consider the broad discretion the Legislature obviously intended to confer upon
the parole authorities to fashion appropriate conditions of parole.
Second, the maxim operates only when a comprehensive treatment of the subject matter is
intended or when addressing an exception to a general rule.42 An express grant of authority does not
by itself give rise to an inference that matters outside the express grant are prohibited. In Dallas, we
held that the express grant of authority to impose conditions of bail on appeal in felony cases did not
38
See dissent at 5. Although the dissent discusses §508.197 and article 42.12, §13B, it
acknowledges that those provisions outline the circumstances under which the child safety zone
condition is mandatory, rather than discretionary, and it does not appear to be contending that the
mandatory provisions can by themselves give rise to an implied prohibition on a parole panel’s
discretionary authority.
39
Will. v. State, 965 S.W.2d 506, 507 (Tex. Crim. App. 1998).
40
Id.
41
Id.
42
Dallas v. State, 983 S.W.2d 276, 278 (Tex. Crim. App. 1998)(“if statute specifies one
exception to a general rule or assumes to specify the effects of a certain provision, other exceptions
or effects are excluded”).
CAMPBELL - 12
result in an implied prohibition against imposing conditions of bail on appeal in misdemeanor
cases.43 While the entire statute addressing bail pending appeal could be accurately characterized
as comprehensive, the provision from which the court of appeals claimed the implied prohibition
flowed – addressing bail in felony cases – was not. We explained that the courts had inherent power
to impose conditions of bail in both felony and misdemeanor cases, and we held that the express
provision for conditions of bail in felony cases did not disturb the courts’ long-held inherent
authority with regard to misdemeanors.44
Section 508.221 confers general authority on parole panels to impose conditions of parole.
Chapter 508 may in its totality constitute a comprehensive scheme with regard to the imposition of
conditions of parole. But, according to the dissent, the implied prohibition against the discretionary
imposition of child safety zones flows from the explicit grant of discretionary authority found in
§508.225. That section does not purport to comprehensively regulate parole conditions and is not
framed as an exception to a general rule. Under Dallas, then, the express grant of authority to impose
child safety zones for one class of offenders under §508.225 does not override a parole panel’s
general authority to impose a child safety zone condition on other classes of offenders.45
43
Id. at 278-80; see also TEX . CODE CRIM . PROC. art. 44.04(a)(authorizing misdemeanor bail
but containing no language specifically authorizing conditions of bail), (c)(providing in felony cases
that the court “may impose reaonable conditions on bail pending the finality of [the defendant’s]
conviction”).
44
Dallas, 983 S.W.2d at 279-80.
45
There is a different aspect of Chapter 508 that does satisfy Dallas by prescribing an
exception to a general rule: the mandatory provisions. The general rule is that the imposition of
conditions by a parole panel is discretionary. Two statutes within Chapter 508 outline conditions
that are mandatory under certain circumstances, creating exceptions to the general rule of discretion.
By specifying the circumstances under which conditions are mandatory, the Legislature has impliedly
CAMPBELL - 13
Third, an express exclusion in the statutory scheme will negate the existence of implied
exclusions. In Fondren v. State, the defendant was prosecuted for the (now non-existent) crime of
abortion.46 He was prosecuted as an accomplice under the general accomplice statute that existed
at the time, article 79.47 Article 85 specified that there may be accomplices to all offenses except
manslaughter and negligent homicide.48 A separate statute specific to abortion, article 1072,
provided for a theory of accomplice liability with respect to abortion offenses.49 Despite the
abortion-specific provision in article 1072, this Court held that the general parties statute applied to
the offense of abortion.50 Significantly, this Court stated: “If the rule, expressio unius est exclusio
alterius, applies at all to this statute, it unquestionably is in favor of the construction we give to the
several articles, instead of the reverse, for as the statute expressly excepts manslaughter and
negligent homicide from the application of article 79, if the Legislature had intended to except
abortion it unquestionably would have said so and included that in article 85.”51
As we have observed, Chapter 508 does contain an express exclusion: orchiectomy is
prohibited as a condition of parole or mandatory supervision. This exclusion suggests there are no
indicated that no other circumstances involve mandatory conditions. The present case, however,
involves when a discretionary condition may be imposed.
46
74 Tex. Crim. 552, 169 S.W. 411 (1914).
47
Fondren, 74 Tex. Crim. at 560, 169 S.W. at 415.
48
Fondren, 74 Tex. Crim. at 560, 169 S.W. at 415.
49
Fondren, 74 Tex. Crim. at 560, 169 S.W. at 415.
50
Fondren, 74 Tex. Crim. at 560, 169 S.W. at 415-16.
51
Id.
CAMPBELL - 14
other exclusions. If the Legislature had intended to prohibit child safety zones except where
expressly provided, it could have expressly done so.
Fourth, the parole scheme does contain an express provision authorizing special conditions
for sex offenders, including someone in appellant’s position, that would logically include a child
safety zone: article 42.12, §11(i). As explained above, §508.221 permits the imposition of any
condition authorized by article 42.12, and article 42.12, §11(i) permits a judge who grants probation
to a §9A sex offender to require that the offender “submit to treatment, specialized supervision, or
rehabilitation according to offense-specific standards of practice adopted by the Council on Sex
Offender Treatment.” In a footnote, the dissent says that it is not at all clear that §11(i) applies to
applicant, but the dissent gives no explanation for its conclusion.52 “Sex offender” is defined by §9A
as “a person who has been convicted or has entered a plea of guilty or nolo contendere” for a listed
offense, including indecent exposure,53 of which applicant has been convicted. Because this
definition is to be used in conjunction with presentence investigation reports,54 it seems clear that
“has been convicted” includes prior convictions, and not just the conviction in the case in which the
defendant is placed on probation.55
The dissent further contends that, even if applicant qualified under §11(i), “there is no
52
Dissent at 7 n.14.
53
T EX CODE CRIM . PROC. art. 42.12, §9A(a)(2)(B).
54
Id., §9A(b), (c).
55
Indeed, as the dissent notes, the Legislature has elsewhere, in the context of mandatory
conditions, expressly limited a condition-of-probation provision’s reach to a person who is
actually placed on probation for the sex offense. Dissent at 8 (citing TEX . CODE CRIM . PROC. art.
42.12, §13B(b)).
CAMPBELL - 15
indication that he was ever evaluated under that section at the trial court level.”56 But applicant was
evaluated pursuant to an order by the parole panel, so the dissent’s objection seems be that a trial
court did not order the evaluation. Article 42.12 refers to the trial court because it is the probation
statute; at that point in the criminal process, the offender is in the trial court. Even if evaluation is
a prerequisite to application of Government Code §508.221, surely the point is not who orders the
evaluation, but simply that the offender be evaluated, as he was in this case.
Finally, it is not self-evident to the dissent that imposition of a child safety zone constitutes
“treatment, specialized supervision, or rehabilitation.”57 It is evident to us that it does. Under
“Issues to Be Addressed in Treatment,” the Rules and Regulations Relating to Council on Sex
Offender Treatment specify “Effective arousal or impulse control shall include methods to control
spontaneous deviant fantasies and to minimize contact with objects or persons within the deviant
fantasies.”58
It is worth noting, as well, that article 42.12, §§9A and 11(i) were enacted in 2003,59 after the
enactment of §508.225 (and its article 42.12 counterpart) in 1999.60 As the later enactment, §11(i)
56
Dissent at 7 n.14 (emphasis added).
57
Dissent at 7 n.14.
58
Council on Sex Offender Treatment, Rules and Regulations Relating to Council on Sex
Offender Treatment, 22 TEX . ADMIN . CODE §810.68(1), p. 45 (2006). See also, §810.64(d)(20),
p. 29 (2006) (regarding possibility of supervised visits with children, client who has history of
deviant sexual interest in children should be restricted from having access to children unless
certain conditions are present).
59
Acts 2003, 78th Leg., ch. 353, §§1, 2.
60
Acts 1999, 76th Leg., ch. 56, §§1, 2.
CAMPBELL - 16
would override any implied prohibition found in §508.225.
Applicant contends that Coleman shows that sex offender conditions are not “reasonable”
under these statutes. But Coleman was a construction of the Due Process Clause of the United States
Constitution, not of the Texas statute, and Coleman’s holding was about what process must be
afforded to the releasee before sex offender conditions may be imposed, not about whether sex
offender conditions may be imposed at all. In fact, Coleman contemplated that the imposition of sex
offender conditions would be legitimate if the releasee had previously been convicted of a sex
offense or if particularized justification for the conditions were developed at an “appropriate
hearing” afforded to the releasee. The remaining question (and the one that was at issue in Coleman)
is whether the parole panel deprived applicant of due process by failing to afford notice and an
opportunity to respond.
C. Notice and Opportunity to Respond
Assuming Coleman articulates the correct rule of law with respect to the due process right
to some manner of hearing, we conclude that this due process right was not violated in applicant’s
case because he was in fact provided with notice and an opportunity to respond. Even when a liberty
interest exists in the early release context, due process does not require a live hearing at which the
convicted person may be present.61 Rather, due process requires simply that the convicted person
be given timely notice in advance of the parole panel’s consideration of the matter and that he be
given an opportunity to submit any information that he feels may be relevant to the parole panel’s
decision.
61
Ex parte Geiken, 28 S.W.3d 553, 560 (Tex. Crim. App. 2000).
CAMPBELL - 17
Applicant was given notice that he would be considered for sex offender conditions; he did
not avail himself of the opportunity to respond. And during the subsequent sex offender evaluation,
applicant was allowed to offer explanations with respect to his prior offenses. Applicant complains
that he was not given the opportunity to respond to Pierce’s sex offender evaluation report. But even
in the mandatory supervision context, where we have acknowledged that a liberty interest in early
release exists, we have not held that an inmate is entitled to notice of and an opportunity to respond
to all the bad evidence the parole panel may have received concerning him.62
We deny relief.
Delivered: October 15, 2008
Publish
62
See id., passim.