Austin American Statesman 08/17/2011 Some parolees freed of sex offender label

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For more than three years, state parole officials fought to classify parolee Curtis Ray Graham as a sex offender, even though he’d never been convicted of a sex crime.

Several courts said they couldn’t do that without due process hearings. But little changed.

Then, in June, parole officials abruptly made an about-face. In short order, they removed the ankle monitoring bracelet that had tracked the East Texas minister’s every move and then withdrew the “Special Condition X” designation from his parole, which required Graham to attend sex offender therapy sessions and list himself on a statewide database. And they did it without a hearing.

“I felt like a heavy burden was lifted,” said Graham, who said he can now attend church freely, go to work without having to stick to a restricted schedule and even have a computer with Internet access.

After years of fighting in court against giving parolees a hearing before they are classified as sex offenders, state officials have begun dropping the sex offender designations — in some cases without administrative hearings, according to parole attorneys.

Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles, and Stuart Jenkins, parole director for the Texas Department of Criminal Justice, who have steadfastly defended the past policy in court, could not be reached for comment Tuesday.

The change occurred after an 8-0 ruling by the Texas Court of Criminal Appeals in May affirmed what several federal courts previously had ruled: The parole board cannot unilaterally decide whether to brand a prisoner as a sex offender if he or she has not been convicted of a sexual offense.

By officials’ earlier estimates, as many as 6,900 of the 80,600 parolees could be affected by the change. To review those cases would require perhaps as many as 1,000 hearings a week — an impossible number, some parole officials had said.

The change caps more than a decade of court challenges, including at least five high-profile court decisions branding the action without hearings unconstitutional — including Graham’s suit, which drew a strong rebuke from U.S. District Judge Sam Sparks of Austin in 2009.

Attorneys who have seen parolees’ Condition X designations removed said the policy change is long overdue.

“This is a huge change,” Austin attorney Gary Cohen said. “The law has been clear for years on this. But it just shows the institutional mentality of parole officials: Instead of doing the right thing, they resist and resist and resist and continue losing in court.

“If they had (changed the policy) years ago, as they should have, they would have saved a lot of money and litigation.”

Bill Habern, a Riverside attorney who filed several of the cases that resulted in adverse decisions for parole officials, agreed.

“That May decision was the nail in their coffin,” he said. “There are thousands of cases that could be affected.”

The May decision, which harshly criticized parole officials for continuing to impose Condition X without proper hearings, involved Johnathan Evans of Lubbock, who was convicted of injuring his two baby daughters and sentenced to 10 years in prison.

When he was paroled in October 2006, Evans was not placed under Condition X, according to court files. But when he moved to El Paso in 2008, his parole officer ordered it — and the parole board went along.

The classification occurred even though the prosecutor and the sentencing judge determined that there had been no sexual abuse of the girls, according to the May decision.

Parolees on Condition X have a much tougher time making it on parole than others. They are severely restricted in where they can live, what jobs they can take and where they can go. Many, like Graham, have to wear monitoring bracelets that track their every movement.

Many fail on parole and end up back in prison.

Over the past decade, parolees who years earlier had been caught urinating in public, or who faced sex-related charges from an angry ex-spouse who later recanted, were placed under Condition X.

Scott Pawgan, Evans’ attorney, said that had his client been allowed a hearing before the parole board saddled him with Condition X, the details of his case could have been properly aired.

“He never had that chance,” Pawgan said.

To properly place a parolee on Condition X, several courts have held, the parole board must provide a due process hearing in which the convict can review and challenge the evidence. The board must also make a finding that the parolee constitutes a threat to society by reason of a continued lack of sexual control and issue a report documenting the decision.

For those parolees like Graham who already have had Condition X removed, the change has brought new freedom while still on parole.

He said he recently purchased a Harley-Davidson motorcycle and is working with a prison ministry group to bring convicts still in prison to God and help them become law-abiding citizens once they get out.

“A lot of doors have been opening,” he said.

mward@statesman.com