       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                  ON MOTION FOR REHEARING
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                                          NO. 03-05-00277-CR




                                       Ex parte Thomas Retzlaff




       FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
            NO. 47,846-A, HONORABLE JOE CARROLL, JUDGE PRESIDING



               CONCURRING AND DISSENTING OPINION


                I joined in the Court’s original opinion in its entirety. On rehearing, I again join in the

majority’s opinion with the exception of its new disposition regarding condition 39, which prohibited

Retzlaff from threatening to file pro se civil litigation without first demonstrating to the trial court that

such litigation would not be frivolous. Particularly in light of our standard of review, I cannot agree

that condition 39 impermissibly infringes upon any First Amendment interests that Retzlaff possesses.

                Trial courts have broad discretion to determine the conditions of community

supervision. Kesaria v. State, 189 S.W.3d 279, 284 (Tex. Crim. App. 2006); Speth v. State, 6 S.W.3d

530, 533-34 (Tex. Crim. App. 1999). Article 42.12 of the Code of Criminal Procedure allows a trial

judge to “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.” Tex. Code Crim Proc. Ann. art.

42.12, §11(a) (West 2005). An appellate court’s review of the probation conditions imposed on a

defendant is limited to determining whether the trial court abused its discretion. Leblanc v. State,

908 S.W.2d 573, 574 (Tex. App.—Fort Worth 1995, no pet.); Todd v. State, 911 S.W.2d 807,

817 (Tex. App.—El Paso 1995, no pet.). This standard of review recognizes that trial judges with

first-hand familiarity with the circumstances of a case and the characteristics of a defendant – not

appellate courts reading a cold record – are best equipped to make the sensitive, fact-specific

judgments required when imposing probation conditions. Cf. Newbury v. State, 135 S.W.3d 22, 32

(Tex. Crim. App. 2004); Furr’s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 381 (Tex. 2001).

               A condition of supervision is not necessarily invalid because it interferes with

the exercise of a constitutionally protected right.      Ex parte Alakayi, 102 S.W.3d 426, 432

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). (Indeed, conditions of supervision are imposed

as an alternative to incarceration, a far more profound interference with one’s constitutional rights).

Probationary conditions are meant to assure that probation serves as a period of genuine rehabilitation

and that the community is not harmed by the probationer’s being at large. Lee v. State, 952 S.W.2d

894, 899 (Tex. App.—Dallas 1997, no pet.). Probationers do not enjoy the absolute liberty to which

every citizen is entitled, but only a conditional liberty properly dependent on the observance of the

supervisory conditions. Id. To determine whether a challenged condition improperly violates a

probationer’s constitutional rights, we must consider the purposes sought to be served by community

supervision, the extent to which constitutional rights enjoyed by law-abiding persons should be

accorded probationers, and the legitimate needs of law enforcement. Alakayi, 102 S.W.3d at 432.


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               In Lee, the defendant was placed on community supervision following his conviction

for indecency with a child. 952 S.W.2d at 896. Among the conditions of supervision were that the

defendant report regularly to his probation officer and that he have no contact with persons under

eighteen years of age. Id. After learning that the defendant, a Jehovah’s Witness, was going door-to-

door proselytizing for his religion, the trial court, concerned that this activity might bring the

defendant into contact with minors, ordered him to stop witnessing door-to-door. Id. The defendant

complied with this order, but continued his witnessing by telephone. Id. When questioned about this

by his probation officer, the defendant refused to answer on the ground that his religious activities

were none of the officer’s business. Id. The trial court revoked the defendant’s supervision for failing

to report his activities, and the court of appeals affirmed. The court held that the officer’s questions

regarding the defendant’s religious activities were directly related to the crime for which the defendant

was convicted, served the legitimate purposes of probation, and contributed to the defendant’s

rehabilitation. Id. at 900. In the court’s opinion, the questions did not exceed the defendant’s

diminished expectation of privacy while on probation. Id.

               In Alakayi, the defendant was placed on community supervision following a conviction

for sexual assault. 102 S.W.3d at 429. One of the conditions of supervision prohibited the defendant

from having any contact with persons under the age of seventeen, including his own ten-year-old son.

Id. Another prohibited the defendant from participating in any program or activity involving persons

under seventeen, which precluded the defendant from transporting his son to a daycare facility. Id.

at 430. These conditions also had the effect of prohibiting the defendant from living with his wife so

long as she was living with their son. Id. at 432. The defendant challenged the conditions as


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depriving him of his constitutional right to associate with his son and maintain his family. Id. at 431.

The court of appeals upheld the conditions, holding that the defendant did not meet his burden of

proving that the conditions were unreasonable under the circumstances of the case or that they violated

his family rights under the Constitution. Id. at 434.

               The district court did not abuse its discretion under the circumstances in imposing

condition 39 on Retzlaff. Retzlaff pleaded guilty to tampering with or fabricating physical evidence

in order to hide his thefts of books from the Bell County law library. Retzlaff was apparently using

the library as a resource for his many pro se civil lawsuits. As the trial court found, Retzlaff has used

pro se litigation “as a weapon” against those who have fallen into his disfavor for one reason or

another. The district court explained that conditions 39 and 40 were intended “to curb these

tendencies.” The majority does not dispute that condition 40 – which bars Retzlaff’s filing of future

lawsuits without court approval – has a genuine rehabilitative purpose that is directly related to

the offense for which Retzlaff was convicted and thus does not impermissibly infringe any

First Amendment interests Retzlaff may have. I would hold the same regarding conditions 39.

Although condition 39 does restrain whatever First Amendment interests Retzlaff may have in

threatening others with litigation, it serves the legitimate needs of probation and law enforcement and

was a proper exercise of the trial court’s discretion under the circumstances. I would add that both

conditions 39 and 40 also serve to protect the community from Retzlaff’s abusive use of litigation as

a weapon. Retzlaff has not met his burden of proving that condition 39 exceeds his diminished liberty

interests while on probation.




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               I would overrule Retzlaff’s challenge to the constitutionality of condition 39. I

respectfully dissent to the Court’s decision to grant relief as to that condition.




                                               ___________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Filed: May 15, 2007

Do Not Publish




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