Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,340 Cases and Articles on TJV!
 
Federal Case Categories







Conditions on Sex Offender Parole Meet Due Process

Jennings v. Owens, Case No. 09-50047 (C.A. 5, Apr. 5, 2010)

Texas parolee David Jennings sued officials from the Texas Board of Pardons and Paroles and the Texas Department of Criminal Justice for procedural due process violations after the Board of Pardons and Paroles imposed sex offender special conditions on his parole. The district court granted summary judgment for Jennings, ordering that the sex offender conditions be removed from his parole. The Texas officials appeal. We REVERSE.

Appellee David Jennings was convicted in Texas state court in 1979 of aggravated kidnaping, a sex offense.1 He pleaded guilty and stipulated to the fact that he “abducted and restrained [the victim] with the specific intent to facilitate the commission of a felony offense, namely, indecency with a child, and with the specific intent to . . . violate and abuse [the victim] sexually.” Jennings was fifteen years old at the time of the underlying offense, and the victim was an eight-year-old boy who lived across the street from Jennings. Jennings was certified as an adult and sentenced to eight years’ imprisonment. According to Jennings’s deposition testimony in this case, he lured the victim into his car, drove approximately 50 miles to a motel, and rented a room, where the victim performed oral sex on Jennings. About an hour later, the two got back into Jennings’s car, where the victim undressed. After driving a few miles to a rural area, Jennings stopped; the victim got out of the car and refused to get back in, whereupon Jennings drove away, leaving the victim naked by the side of the road. Jennings was paroled in 1983.

In 1984, Jennings’s parole was revoked after he pleaded guilty to false imprisonment. Although no specific findings of fact were entered, the probable cause affidavit describes the underlying facts. The affidavit states that Jennings (then twenty-one years old) asked a thirteen-year-old boy if he would mow Jennings’s grandmother’s yard. The boy agreed, and he got in a car with Jennings. Jennings drove for some time, but when he stopped the car at a gas station, the boy got out of the car and told the station attendant that he did not know Jennings and did not want to go with him. When Jennings tried to get the boy back in the car, the attendant refused to let him leave with the boy.

Jennings was paroled again in 1985; soon after, in 1986, his parole was revoked once more after he pleaded guilty to forgery. Jennings’s sentence for the aggravated kidnaping was finally discharged in 1988. Shortly after his release, Jennings pleaded guilty to debit card abuse in 1989. He received a sentence of 25 years’ imprisonment, due to enhancements for the aggravated kidnaping and forgery convictions.
 

 

Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Constitutional Law
 
Circuit Court Judge(s)
Rhesa Barksdale
Jennifer Elrod
Carolyn King

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
entering into a relationship with a person with a minor child; accepting the texas sex offender therapy program includes treatment with a penile4 aggravated kidnaping was finally discharged in 1988. shortly after his release, conditions which may attend an inmate's release," as it involved mandatory plethysmograph treatment, is "`qualitatively different' from other conditions which may attend jennings did not retain a post-conviction liberty interest because he was already kidnaping, but not false imprisonment. the file also contained a brief factual 11 u.s. at 492). "`we can hardly conceive of a state's action bearing more 42 u.s.c. § 1983. specifically, he argued that the imposition of the three sex conditions caused stigma. id. at 221. accordingly, we concluded that coleman who, like coleman, had never been convicted of a sex offense. however, behavior modification much like that described in vitek. id. at 223. we also8 retained a liberty interest in being free from the three sex offender conditions, misdemeanor assault, and the sexual charges were dropped. id. about a month § 20.04(a)(4), which penalizes aggravated kidnaping when committed "with the intent to he had a full and fair opportunity to contest that status. see coleman i, 395 (5th cir. 2007). summary judgment is appropriate when "the discovery and jennings refused to acknowledge the new conditions and moved before the sex offender therapy, the state labeled him a sex offender--a label which coleman i held that the sex offender therapy program, to the extent it utilizes penile10 are not alone sufficient to invoke the protections of the due process clause." id. in the united states court of appeals the conditions included: not accepting employment that involves unsupervised contact2 jennings was paroled again in 1985; soon after, in 1986, his parole was the parole board argues that the district court made two erroneous marks omitted). minor at the time of his conviction for aggravated kidnaping; (2) jennings the label of sex offender, not the specific conditions imposed on his phenomen[on] "stigma" or choose to call it something else . . . we recognize that interest, regardless of whether reputational harm is alleged. jennings does not acknowledge restriction --would indeed cause stigma, if they were imposed on an individual10 jennings's car, where the victim undressed. after driving a few miles to a rural § 9a(2)(a) (vernon 2005). the 2005 version of texas law is applicable in this case, as the vander zee, 73 f.3d at 1369 (describing falsity as a "necessary element" for a (coleman ii), 409 f.3d 665 (5th cir. 2005) (per curiam) (adopting and expanding heavily upon the fact that he had never been convicted of a sex reno, 73 f.3d 1365, 1369 (5th cir. 1996)). "[b]y requiring [coleman] to attend hollins, 551 f.3d 322, 326 (5th cir. 2008). this court must take all the facts and sentence for debit card abuse. notably, jennings does not make the argument that these three may be created under either federal law or state law. see sandin v. conner, 515 united states court of appeals case: 09-50047 document: 00511069815 page: 3 date filed: 04/05/2010 facts--(1) jennings was only 15 years old when he committed the aggravated kidnaping; (2) showing of stigma).9 in vitek v. jones, the supreme court found that a liberty interest was case: 09-50047 document: 00511069815 page: 5 date filed: 04/05/2010 v. modifications of parole conditions. this argument has been waived and we decline to consider had a liberty interest entitled to the protection of procedural process, as the state 25 years' imprisonment, due to enhancements for the aggravated kidnaping and matter of law." fed. r. civ. p. 56(c); breaux v. halliburton energy servs., 562 involving challenges to conditions of confinement--in formulating standard for infringement" test used in reputational harm cases. he argues that this standard is not as his only sex offense conviction was in 1979, for conduct that he committed at kidnaping; and second, that jennings did not receive the minimum process due & corr. complex, 442 u.s. 1, 11 (1979), but a liberty interest is implicated where paroles and the texas department of criminal justice (tdcj) in their official capacities. the description of the aggravated kidnaping offense. where prisoner was placed in solitary confinement without process, as this was his convictions for debit card abuse, forgery by passing, and aggravated of law. u.s. const. amend. xiv, § 1, cl. 3. here, jennings has not been deprived confinement. see coleman v. dretke (coleman i), 395 f.3d 216, 221­24 (5th cir. cause affidavit describes the underlying facts. the affidavit states that jennings here, the imposition of the three sex offender conditions--the sex offender aggravated kidnaping, a sex offense. he pleaded guilty and stipulated to the1 case: 09-50047 document: 00511069815 page: 2 date filed: 04/05/2010 offender.'" id. (quoting neal v. shimoda, 131 f.3d 818, 829 (9th cir. 1997)). the noted that, as coleman had never been convicted of a sex offense, he had not jennings's grandmother's yard. the boy agreed, and he got in a car with interest, texas law creates a liberty interest that protects parolees from post-release treatment is no longer required. the parole division will submit a with any person who has children 17 years of age or younger unless sex offender status). therefore, jennings has not shown that he has a liberty no. 09-50047 home visits; and he had to obtain permission to travel outside his county of residence. it. see brown v. ames, 201 f.3d 654, 663 (5th cir. 2000) ("to avoid being waived, an argument boy back in the car, the attendant refused to let him leave with the boy. sex offender therapy program to be "`qualitatively different' from other texas law defines a "sex offender" as "a person who has been convicted or has entered1 disclosure materials on file[] and any affidavits show that there is no genuine debit card abuse, a non-sexual offense--support the conclusion that the imposition of sex receive psychological counseling until such time as the treatment at 493. the court noted that "commitment to a mental hospital `can engender no. 09-50047 case: 09-50047 document: 00511069815 page: 7 date filed: 04/05/2010 named defendants are: rissie owens, chairperson of the texas board of pardons and paroles; parole conditions context. offense--therefore, the label "sex offender" was false as applied to him. id.; see of life or property; therefore, his claim hinges on whether he has been deprived plaintiff - appellee two inmates--one with a prior sex offense conviction, and one without--challenged hawaii's ii. jurisdiction and standard of review had a liberty interest, we analogized to vitek and noted that the supreme court declared purpose and the written authorization of the offender's case: 09-50047 document: 00511069815 page: 11 date filed: 04/05/2010 approved in writing by offender's supervising parole officer. . . . mental hospital. 445 u.s. at 494. there, the court held that "changes in the id. at 492 (quoting addington v. texas, 441 u.s. 418, 425­26 (1979)) (alteration a plea of guilty for . . . aggravated kidnapping[], if the person committed the offense with the upon the reasoning of coleman i). we noted that fifth circuit precedent on relationship with an adult who has juvenile children without prior approval; not changing jennings. jennings drove for some time, but when he stopped the car at a gas rissie owens, in her official capacity as chairperson of the texas board of restriction or the computer-use restriction are "qualitatively different" from regular parole to track computer activity. liberty interest in the granting of parole, greenholtz v. inmates of the neb. penal "had an opportunity to contest his sex offender status" and therefore the parole conditions, as these conditions do not impose new or additional stigma on jennings. shall submit to a search of the computer hardware, software, files, not become involved in dating, marriage, or [a] platonic relationship of the parole division of the texas department of criminal justice; ernesto an inmate's release." 395 f.3d at 223. we expressly do not rule on whether the relationship recommendation to withdraw the requirement to attend jennings argues for the first time on appeal that, in addition to a federally created7 had "imposed stigmatizing classification and treatment on coleman without due process. jennings contends that the district court correctly found that he offender conditions on his parole. specifically, the parole board found that reasonable jury could enter a verdict for the non-moving party." brumfield v. instances where such action is deemed appropriate. . . .[4] following restrictions: he could not reside with juveniles; he had to be available for scheduled no. 09-50047 sexually explicit pictures are displayed in an effort to determine his sexual arousal patterns." under 28 u.s.c. § 1291. we review the district court's grant of summary before the sex offender conditions were imposed on his parole in august 2005. supervising parole officer. if authorization is granted, the offender before becoming eligible for parole. 131 f.3d at 831. the ninth circuit found that the inmate impose any additional stigma upon him. the parole board also argues that due no. 09-50047 jennings's deposition testimony in this case, he lured the victim into his car, it can occur and that it can have a very significant impact on the individual.'" sex offender parole conditions after his 1979 conviction for aggravated coleman i found that the texas sex offender therapy program involved mandatory8 intent to violate or abuse the victim sexually." tex. code crim. proc. ann. art. 42.12 program . . . create the kind of deprivations of liberty that require procedural protections." id. in coleman i, we considered a procedural due process challenge to the imposing the sex offender conditions and concluded that "[s]imply classifying the requirements that he register as a sex offender and participate in sex annotated §] 508.187(a), against a victim who is under 17, shall[3] request by a majority vote. the file that the parole board considered included conclusions: first, that jennings retained a liberty interest in remaining free of for the foregoing reasons, we reverse and remand for proceedings when evaluating the constitutionality of parole conditions, the fifth circuit has judgment de novo. lemaire v. la. dep't of transp. & dev., 480 f.3d 383, 386 know jennings and did not want to go with him. when jennings tried to get the the parole board denied his motion to modify his parole conditions, and supervising officer to install a specific computer program designed coleman was indicted on charges of aggravated sexual assault of a child and pardons and paroles and the texas department of criminal justice for implicated when a nebraska state prisoner was transferred from prison to a david brian jennings, parole or law enforcement official. offender shall allow the complained-of parole conditions were imposed on august 4, 2005. jennings, the parole board admittedly labels him as a sex offender. this label found that the parole board had not afforded jennings sufficient process before clerk for the fifth circuit facts impact the stigma analysis required by coleman; therefore, we do not consider it. on these two points--stigmatizing social consequences and qualitative not derived from allegations of reputational harm. however, as discussed above, both a state seeks to revoke parole, morrissey v. brewer, 408 u.s. 471, 482 (1972). jennings pleaded guilty to debit card abuse in 1989. he received a sentence of enroll in and participate in a treatment program for sex offenders specifically, jennings sued a number of employees of the texas board of pardons and5 [the] offender shall stuart jenkins, director of the parole division of tdcj; ivy anderson­york, director jennings interprets the parole board as advocating for the use of the "stigma-plus-9 the coleman cases and neal is inapplicable. the plaintiff is guilty of serious wrongdoing." id. at 668 (citing vander zee v. proposition that procedural due process claimants must establish stigma--in addition to jennings's parole officer requested that special condition x--conditions tailored violating his right to procedural due process. id. in determining that coleman sentence for an offense as defined in [texas government code i, 395 f.3d at 223. board" for the remainder of this opinion. an eight-year-old boy who lived across the street from jennings. jennings was furthermore, this approach is also followed by the ninth circuit. in neal v. shimoda, interest that was infringed in violation of his right to procedural due process i. background performed oral sex on jennings. about an hour later, the two got back into case: 09-50047 document: 00511069815 page: 9 date filed: 04/05/2010 the parole division of tdcj; and linda mccarver, supervisor of parole officers within the labeled a sex offender. id. at 830. in reaching this conclusion, the ninth circuit analogized the age of 15, and the underlying crime for which he was currently on providing him any process." id. at 223. psychological counseling to the appropriate board panel in those 2 coleman opinions rely on supreme court precedent in the form of vitek and sandin for the 3 where an individual is deprived of life, liberty, or property, without due process iv. conclusion sexually abuse his eight-year-old victim. by imposing sex offender conditions on district court was particularly influenced by three facts: (1) jennings was a 6 strongly implies that [he] has been convicted of a sex offense and which can not receive notice or a hearing prior to imposition of the conditions. the district6 relied on "the combination of stigma and compelled behavior modification texas parolee david jennings sued officials from the texas board of station, the boy got out of the car and told the station attendant that he did not of a liberty interest without adequate procedural protections. liberty interests no. 09-50047 case: 09-50047 document: 00511069815 page: 4 date filed: 04/05/2010 the parole board acknowledges that jennings did not receive notice or a hearing6 the sex offender caseload; as a consequence, sex offender conditions were parole for debit card abuse--a non-sex-related offense. the district court also 7 the parole division of the texas department of criminal justice; ivy the parole board timely appealed, and appellate jurisdiction is proper breaux, 562 f.3d at 364. conclusion that the sex offender therapy condition stigmatized coleman rested to vitek and found that "the stigmatizing consequences of the attachment of the `sex offender' case: 09-50047 document: 00511069815 page: 8 date filed: 04/05/2010 challenging the following three conditions: was fifteen years old at the time of the underlying offense, and the victim was iii. discussion labeled a sex offender after his 1979 conviction; any parole conditions could not (then twenty-one years old) asked a thirteen-year-old boy if he would mow offender parole conditions violated his right to procedural due process, as he did without prior permission. area, jennings stopped; the victim got out of the car and refused to get back in, constituted a dramatic departure from the basic conditions of release. the before king, barksdale, and elrod, circuit judges. for the western district of texas treatment program, the relationship restriction, and the computer-use fifth circuit supreme court precedent on the dictates of procedural due process in the label coupled with the subjection of the targeted inmate to a mandatory treatment with the specific intent to . . . violate and abuse [the victim] sexually." jennings april 5, 2010 someone as a sex offender does not provide the person with any notice that their case: 09-50047 document: 00511069815 page: 6 date filed: 04/05/2010 no. 09-50047 omitted)). jennings and ordered that the three conditions be removed from his parole. the parole board determined that jennings had violated several of the sex determining whether liberty interest exists in parole conditions context). or attempt to distinguish the coleman cases' requirement of "stigma" in the sex offender supervisor of region i of the parole division of tdcj; ernesto alvarez, parole officer within section 508.187(a) refers to several texas penal code sections, including3 hearing, the parole panel imposed additional conditions on his parole, including 2004) (relying on vitek v. jones, 445 u.s. 480 (1980), and sandin--both cases certified as an adult and sentenced to eight years' imprisonment. according to stigma states that "a statement causes stigma if it is both false and implies that committed the sex offense nearly thirty years before his 2005 release on parole; 8 intent to commit indecency with a child and with the intent to violate and as directed by the supervising parole officer. offenders serving a pardons and paroles; stuart jenkins, in his official capacity as director of not an "atypical and significant hardship . . . in relation to the ordinary incidents in 1991, jennings was released on parole. at that time, he was placed on treatment" to find a liberty interest in that case. id. at 222. we found the texas no. 09-50047 id. at 494; see also sandin, 515 u.s. at 484 (declining to find liberty interest no. 09-50047 and (3) the sex offender conditions were placed on jennings when he was on conditions of confinement having a substantial adverse impact on the prisoner u.s. 472, 478­79 & n.4 (1995). the district court found that jennings retained evidence in the light most favorable to the parole board, the non-moving party. consistent with this opinion. parole division of tdcj. for simplicity, we refer to the named defendants as "the parole a federally created liberty interest.7 we expanded on the holding that coleman had suffered from stigma in a in 1984, jennings's parole was revoked after he pleaded guilty to false characteristically suffered by a person convicted of a crime." id. at 493. based had a liberty interest in being free from the three parole conditions, as each parole--debit card abuse--was not a sexual offense. jennings brought suit against the parole board in federal district court under5 appellee david jennings was convicted in texas state court in 1979 of when the parole board imposed sex offender special conditions on his parole.11 road. jennings was paroled in 1983. imposition of texas sex offender parole conditions. 395 f.3d at 219. there, 2005 release on parole; and (3) jennings's 2005 release on parole was from a conviction for offender counseling. in 1994, jennings's parole conditions were slightly modified to add the differences--the court determined that due process protections were required. drove approximately 50 miles to a motel, and rented a room, where the victim 10 facilitate the commission of a felony offense, namely, indecency with a child, and 876 f.2d 1209 (5th cir. 1989), and he contends that the liberty interests he has asserted are imposed "consequences [that] are qualitatively different from the punishment on may 23, 2005, jennings was again released on parole. in august 2005, case: 09-50047 document: 00511069815 page: 10 date filed: 04/05/2010 is not false as applied to jennings; it accurately reflects jennings's status, and division of the texas department of criminal justice; linda mccarver, in appeal from the united states district court forgery convictions. behavior modification insofar as it treated offenders with a penile plethysmograph. coleman offender conditions was a "dramatic departure," i.e., a qualitative difference, from jennings's imposed on his parole. his parole was revoked in 1998 after a hearing where2 indecency with a child by contact, but he ultimately pleaded guilty to imprisonment. although no specific findings of fact were entered, the probable as mentioned above, jennings argues (and the district court found) that three11 9 court declared the three sex offender conditions unconstitutional as applied to applicable to procedural due process claims, citing to connelly v. comptroller of the currency, 4 not own, maintain, or operate computer equipment without a however, as to the second inmate, who had a prior sex offense conviction, no procedural due coleman v. dretke (coleman i), 395 f.3d 216, 223 n.28 (5th cir. 2004) (internal quotation residence or employment without prior approval; and enrolling and participating in sex parole board for a modification of his conditions of parole, specifically undoubtedly cause `adverse social consequences.'" id. at 668 (quoting vitek, 445 anderson-york, in her official capacity as director supervisor of region i case: 09-50047 document: 00511069815 page: 1 date filed: 04/05/2010 plethysmograph; that is, a "strain gauge which is strapped to an individual's genitals while reasoned by analogy to supreme court cases involving conditions of her official capacity as supervisor of parole officers within region i of the parole defendants - appellants f.3d at 221 (relying on fact that coleman never had opportunity to contest his omitted). in addition, the consequences of commitment to a mental institution after his release on parole, and without giving coleman advance notice or a jennings had violated prohibitions against: having contact with juveniles; for sex offenders--be imposed on jennings's parole; the parole board granted the adverse social consequences to the individual' and that `whether we label this summary judgment for jennings, ordering that the sex offender conditions be court agreed and granted summary judgment in his favor, finding that jennings process violation occurred. id. at 831. jennings fails to convince us that the standard from division of the texas department of criminal justice, provider, in conjunction with the parole division, determines that requirement that inmates labeled as sex offenders must complete sex offender treatment who had never been convicted of a sex offense did indeed have a liberty interest in not being kidnaping and stipulated to the fact that he committed the kidnaping with the stigmatizing consequences than the labeling of a prison inmate as a sex f.3d 358, 364 (5th cir. 2009). "a genuine issue of material fact exists if a fact that he "abducted and restrained [the victim] with the specific intent to violate or abuse the victim sexually." tex. gov't code ann § 508.187(a) (vernon 2005) (citing no. 09-50047 alone with juveniles; not becoming involved in a dating, marriage, or corresponding platonic of prison life"). and peripherals by any [texas department of criminal justice] with juveniles; not engaging in any type of unsupervised contact with juveniles; not being jennings's aggravated kidnaping conviction was entered in 1979, nearly 30 years before his must be raised to such a degree that the trial court may rule on it." (quotation marks tex. penal code ann. § 20.04(a)(4)). king, circuit judge: no. 09-50047 qualitatively different conditions--to claim an unconstitutional infringement of a liberty employment involving contact with a juvenile; and changing his residence revoked once more after he pleaded guilty to forgery. jennings's sentence for the him before imposition of the parole conditions. according to the parole board, parole conditions would be radically changed at any later date." the district imposed sex offender special conditions on his parole. the district court granted whereupon jennings drove away, leaving the victim naked by the side of the per curiam opinion denying a motion for rehearing en banc. coleman v. dretke no. 09-50047 f i l e d removed from his parole. the texas officials appeal. we reverse. alvarez, in his official capacity as parole officer, within region i of the parole lyle w. cayce offender therapy. id. coleman challenged the imposition of the conditions as procedural due process violations after the board of pardons and paroles 5 issue as to any material fact and that the movant is entitled to judgment as a procedural due process under the fourteenth amendment is implicated process only requires that jennings have notice and the opportunity to dispute jennings has been convicted of a sex offense. he pleaded guilty to aggravated parole--therefore, his 1979 conviction for a sex offense fulfilled the requisites of context of parole is sparing. the court has found that prisoners do not have a


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise