May a court impose sex offender status as a condition of probation for non-sexual offenses?

          If the Court is discussing imposing a condition intended for sex offenders on a defendant’s community supervision/deferred adjudication―when a defendant was charged, indicted, and confessed to a non-sexual offense―the attorney should argue that this violates the defendant’s substantive and procedural due process rights. If such conditions have been imposed, then the defendant should probably consult with an appellate lawyer.

  1. Waiver

The Court of Criminal Appeals has held that there are three types of rules, or rights, in our judicial system. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). In the first category are absolute, systemic requirements that must be complied with regardless of whether there is any request or objection. Id. The clearest instances of nonwaivable, nonforfeitable systemic requirements are those affecting the court’s jurisdiction. See Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). In addition, several other absolute requirements have been recognized. See Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim. App. 2002) (listing such requirements). In the second category are rules that must be implemented unless expressly waived. Marin, 851 S.W.2d at 279. This category includes some constitutional rights, including some procedural due process rights. A litigant is not deemed to have given up such a right unless “he says so plainly, freely, intelligently, sometimes in writing and always on the record.” Id., at 280. Finally, the third category contains rules that must be implemented upon request, including most of “the myriad evidentiary and procedural rules comprising our system.” Id. at 278.

  1. Procedural Due Process

The Due Process Clause of the Constitution of the United States reads: “nor State shall . . . deprive any person of life, liberty, or property, without due process of law:” U.S. Const. amend. XIV, § 1, cl. 3.

The Due Process Clause of the Texas Constitution is nearly identical to the federal due process clause and states: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. 19.

The Supreme Court has adopted a two-step analysis to examine whether an individual’s procedural due process rights have been violated. The first question “asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Kentucky Dep’t. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted).

  1. Coleman and Meza

In Coleman and in Meza, the Fifth Circuit Court of Appeals recently recognized that prisoners and parolees who have never been convicted of a sexual offense have “a liberty interest in being free from being required to register as a sex offender and[/or] participate in sex offender therapy. Other circuits have reached the same conclusion.” Meza v. Livingston, 607 F.3d 392, 401 (5th Cir. Tex. 2010); Coleman v. Dretke, 395 F.3d 216, 222 (5th Cir. Tex. 2004) (citing Vitek v. Jones, 445 U.S. 480 (1980)).

  1. Evans

In Evans, the Court of Criminal Appeals relied on Coleman and Meza and determined that before parole can be conditioned on sex offender registration and/or therapy, the parolee is entitled to all of the following procedural due process Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011):

1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;

2) disclosure of the evidence being presented against him to enable him to marshal the facts asserted against him and prepare a defense;

3) a hearing in which the person is permitted to be heard in person, present documentary evidence, and call witnesses;

4) the right to confront and cross-examine witnesses, unless good cause is shown;

5) an impartial decision maker; and,

6) a written statement by the factfinder as to the evidence relied upon and the reasons it attached sex offender conditions to his mandatory supervision. Id. at 555.

In coming to this conclusion, the Court of Criminal Appeals emphasized that the procedural due process announced in Coleman, and echoed in Meza, is nearly identical to the procedural due process that the United States Supreme Court has provided for an inmate before an inmate suffers a loss of “good time credits,” an involuntary transfer to a mental hospital, etc. Evans, 338 S.W.3d at 551 n.23 (citing to Wolff v. McDonnell, 418 U.S. 539 (1974)) The Court of Criminal Appeals reasoned that, “If an inmate is entitled to those [procedural] due-process protections, surely a parolee who had already been discretionarily released because he did not pose a danger to society is entitled to those [same procedural due-process] protections.” Id. at 554.

If these procedures were violated, then the best resolution for them is a motion for new trial, a direct appeal, and if the time has expired for those two options then a writ of habeas corpus.