                                                                                   PD-1505-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
April 27, 2015                                                  Transmitted 4/27/2015 10:33:51 AM
                                                                  Accepted 4/27/2015 10:43:50 AM
                                                                                   ABEL ACOSTA
                          Case No. PD-1505-14                                              CLERK



                 In the Court of Criminal Appeals of Texas


                   David Schlittler v. The State of Texas


                         On Discretionary Review
                      of Appeal No. 12-13-00269-CR
                 in the Twelfth Court of Appeals of Texas
                                 at Tyler


                         Appellant’s Reply Brief


                                  State Counsel for Offenders
                                  Attorney for Appellant

                                  Kenneth Nash
                                  Texas Bar No. 14811030
                                  P. O. Box 4005
                                  Huntsville, TX 77342
                                  Telephone no. 936-437-5291
                                  Facsimile no. 936-437-5295
                                  E-mail address: ken.nash@tdcj.texas.gov




            Oral Argument Requested and Previously Granted
                             Table of Contents

Table of Authorities……………………………………………………………...3-4

Reply Issues………………………………………………………………………...5

   1. Although a modified conservatorship order severely limited
   Schlittler’s possessory rights to his son, did Section 38.111, Penal
   Code, violate his fundamental liberty interest by criminalizing the
   exercise of his parental rights?

   2. By authorizing an ex-spouse to withhold her consent to an inmate’s
   right to contact his son, does Section 38.111, Penal Code, constitute
   an improper delegation of the State’s legislative power to a private
   party?

Summary of the Argument……………………………………………………….5-6

Argument………………………………………………………………………..6-14

Prayer……………………………………………………………………………...14

Certificate of Compliance…………………………………………………………14

Certificate of Service……………………………………………………………...15




                                      2
                           Table of Authorities

Cases

Garber v. Beard, 851 A.2d 222 (Penn. Cmwlth. 2004)……………………………9

G.J Deasy Investment, Inc. v. Mattox, 778 F.2d 1091 (5th Cir. 1985)…………….10

Hernandez v. McGinnis, 272 F.Supp.2d 223 (W.D. N.Y. 2003)…………………...9

Jannin v. State, 42 Tex. Crim. 631, 62 S.W. 419 (1901)…………………………10

Mitchell v. Smith, 817 N.W.2d 742 (Minn. App. 2012)……………………………9

Navin v. Iowa Department of Corrections, 843 F.Supp. 500
(N.D. Iowa 1994)…………………………………………………………………...9

N.E.W. v. Kennard, 952 F.Supp. 714 (D. Utah 1997)……………………………...9

Odenwalt v. Gillis, 327 F.Supp.2d 502 (M.D. Penn. 2004)………………………..9

Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52 (1976)…………………………………………………………………9

Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992)………………………………………………………………..9

Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998)…………………………10,11,12

Robinson v. Palmer, 841 F.2d 1151 (D.C. Cir. 1988)……………………………...9

Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009)…………………………………...8

Santosky v. Kramer, 455 U.S. 745 (1982)………………………………………….7

Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011)………………………………8

Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen,
952 S.W.2d 454 (Tex. 1997)……………………………………………………...11



                                     3
Troxel v. Granville, 530 U.S. 78 (1987)……………………………………………8

Wirsching v. Colorado, 360 F.3d 1191 (10th Cir. 2004)……………………………9

Wisconsin v. Yoder, 406 U.S. 205 (1972)…………………………………………..7

Constitutions

Art. III, Sec. 1, Texas Constitution………………………………………………..10




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                                     Reply Issues

      1. Although a modified conservatorship order severely limited Schlittler’s

possessory rights to his son, did Section 38.111, Penal Code, violate his

fundamental liberty interest by criminalizing the exercise of his parental rights?

      2. By authorizing an ex-spouse to withhold her consent to an inmate’s

constitutional right to contact his son, does Section 38.111, Penal Code, constitute

an improper delegation of the State’s legislative power to a private party?

                             Summary of the Argument

      1. Criminalization of Schlittler’s exercise a fundamental liberty

interest.

      Contrary to the State’s argument, it wasn’t the SAPCR court’s modified

conservatorship order, but the application of Section 38.111, Penal Code, which

infringed Schlittler’s fundamental liberty interest as a parent. Moreover, the State

has failed to discharge its burden of proving, and no court has yet to find, that

Schlittler has been an unfit parent, that the exercise of his parental rights will

jeopardize the health or safety of his son, or that the exercise of his parental rights

will potentially impose significant social burdens.




                                            5
      2. Improper delegation of the State’s legislative power to a private

party.

      A state may not confer upon a private person a power it cannot exercise

itself. Assuming the State even possesses such power to impair a father’s

fundamental liberty interest towards his son, subsection (a)(2) operates as an

improper delegation of a State’s legislative power to a private entity when

examined under the so-called Boll Weevil test described below; therefore, Section

38.111, Penal Code, as a whole cannot survive a strict-scrutiny review.

                                     Argument

      1. Criminalization of Schlittler’s exercise of a fundamental liberty

interest.

      Under the terms of the modified conservatorship order, the SAPCR court

severely limited Schlittler’s parental rights toward his son, B.S. On that basis, the

State argues, Section 38.111, Penal Code, did not abridge his fundamental liberty

interest. State’s Brief at 13-14. Despite “credible evidence” that Schlittler

sexually abused his former step-daughter, the SAPCR court found “that awarding

[him] access to the child [B.S.] would not endanger the child’s physical health or

emotional welfare and would be in the best interest of the child[,]” so the SAPCR

court awarded him supervised visitation “[e]very 1st, 3rd and 5th Saturday of each

month for a maximum time of two hours.” 6 R.R. (State’s Exhibit 2A, at 6-7).



                                          6
This supervised visitation schedule commenced on September 18, 2007. 6 R.R.

(Exhibit 2, at 23).

       Curiously, Schlittler allegedly violated section 38.111 on September 4, 2008,

(see C.R. at 9, 323), several months after the SAPCR court entered its modified

conservatorship order on November 11, 2007, (see 6 R.R. (State Exhibit 2, at 23)).

Even after Schlittler was sentenced to prison on April 3, 2008, for sexually

assaulting his former step-daughter (see 6 R.R. (State’s Exhibit 1)), the SAPCR

court’s modified conservatorship order remained in effect. Contrary to the State’s

argument, see State’s Brief at 13-14, it wasn’t the modified conservatorship order

which effectively severed Schlittler’s parental rights to his son, but the application

of the statute.

       The State may not interfere with Schlittler’s parental rights without first

showing that the exercise of his parental rights will jeopardize the health or safety

of his son or that the exercise of his parental rights will potentially impose

significant social burdens. Wisconsin v. Yoder, 406 U.S. 205, 233-34 (1972). As

argued in his initial brief, see Appellant’s Brief at 21, 24-25, there have been

absolutely no judicial findings that Schlittler has been an unfit parent,1 that the


1
        Because Schlittler was found guilty beyond a reasonable doubt of sexually assaulting is
former step-daughter, the State argues that there was no violation of his fundamental right to
parent his son; therefore, the State contends that it satisfied its due-process burden as described
in Santosky v. Kramer, 455 U.S. 745 (1982). State’s Brief at 16-17. The State’s reliance on
Santosky is mis-placed. In the Santosky case, the Supreme Court held that procedural due
process requires at least clear and convincing proof of permanent neglect before the State of New


                                                7
exercise of his parental rights will jeopardize the health or safety of his son, or that

the exercise of his parental rights will potentially impose significant social

burdens. Apparently dissatisfied with the SAPCR court’s modified

conservatorship order, the State (through Schlittler’s ex-wife) resorted to the

statute to accomplish what couldn’t be done in the SAPCR court.

       2. Improper delegation of the State’s legislative power to a private

party.

       The constitutionality of a statute, as applied, presents a legal question;

therefore, the case is reviewed de novo. Stockton v. Offenbach, 336 S.W.3d 610,

615 (Tex. 2011). Whether the State has impaired a parent’s right to exercise care,

custody, and control over his child is determined on a case-by-case basis. Troxel v.

Granville, 530 U.S. 78, 95-96 (1987) (Kennedy, J., dissenting). Here, the State

concedes that Section 38.111, Penal Code, should be subjected to a strict-scrutiny

analysis and that the statute should be upheld only if it is narrowly tailored to

promote a compelling state interest.2 State’s Brief at 15, 19-20. However, the



York could terminate the rights of parents in their natural children. Santosky, 455 U.S. at 747-
48. Besides using Schlittler’s conduct towards his former step-daughter as a circumstance to
justify an intrusion upon his fundamental right as a parent towards his son, the State can point to
no place in the record demonstrating that Schlittler has permanently neglected his son or has
been found to be an unfit parent of his son.

2
        Because Section 38.111, Penal Code, is a criminal statute and not a prison policy, the
State apparently agrees with Schlittler’s argument (see Appellant’s Brief, at 29-30, 42-43) that
the relaxed standard for review set forth in Turner v. Safley, 482 U.S. 78 (1987) does not apply.
Cf. Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009) (upholding TDCJ’s “negative mail” policy


                                                 8
State argues that, by conferring upon Schlittler’s ex-wife the decision to restrict all

contact with his son, the statute is narrowly tailored to promote the State’s

compelling interest to protect both Schlittler’s sexual-assault victim and her half-

brother. State’s Brief at 19, 22-23.

       As a general rule, a state may not confer upon a private person a power it

cannot exercise itself. Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 67-72 (1976) (invalidating a statutory provision conferring upon a

husband “a veto power exercisable for any reason whatsoever or for no reason at

all” over his wife’s constitutional right to an abortion during the first 12 weeks of

pregnancy). See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505

U.S. 833, 898 (1992) (“The husband’s interest in the life of the child his wife is



because Samford could communicate with his sons through his mother); Wirsching v. Colorado,
360 F.3d 1197 (10th Cir. 2004) (upholding a prison regulation denying Wirsching visitation with
his daughter because he was allowed to contact her by letter and telephone); Robinson v. Palmer,
841 F.2d 1151 (D.C. Cir. 1988) (upholding a visitation-suspension policy because it left open
some communication channels between inmate and excluded spouse); N.E.W. v. Kennard, 952
F.Supp. 714 (D. Utah 1997) (upholding Salt Lake County’s visitation policy disallowing visits
from children under 8 years of age because the inmate could request a “special visit” with his
children); Navin v. Iowa Department of Corrections, 843 F.Supp. 500 (N. D. Iowa 1994)
(upholding a visitation policy restricting unaccompanied minors because it did not operate as a
total prohibition); Hernandez v. McGinnis, 272 F. Supp.2d 223 (W.D. N.Y. 2003) (upholding a
non-permanent revocation of visitation privileges because the inmate had other means (by letter
and telephone) of maintaining contact with his family members); Odenwalt v. Gillis, 327
F.Supp.2d 502 (M.D. Penn. 2004) (upholding a no-contact policy because the inmate could
exercise non-contact visitation with his children); Garber v. Beard, 851 A.2d 222 (Penn.
Cmwlth. 2004) (upholding a prison policy disallowing contact visitation between sex offenders
and minor children because the policy permitted non-contact visitation); and Mitchell v. Smith,
817 N.W.2d 742 (Minn. App. 2012) (upholding the prison policy disallowing sex offenders to
visit minor children because it permitted communication through letter and telephone).



                                               9
carrying does not permit the State to empower him with this troubling degree of

authority over his wife.”).

       Assuming the State even possesses such power to impair a father’s

fundamental liberty interest towards his son, Schlittler contends that subsection

(a)(2) operates as an improper delegation of the State’s legislative power to a

private entity, i.e., his ex-wife. The Texas Constitution generally prohibits the

State from delegating governmental power to a private entity. Art. III, Sec. 1, Tex.

Const.;3 Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). See Jannin v.

State, 42 Tex. Crim. 631, 62 S.W. 419 (1901) (wherein this Court remarked that

allowing railroads to place an endorsement on tickets making trafficking in such

tickets a penal offense was a delegation of an unauthorized legislative authority).

See also G.J. Deasy Investment, Inc. v. Mattox, 778 F.2d 1091 (5th Cir. 1985)

(noting that “[t]here is a constitutional prohibition against delegation of legislative

power to private groups”).

       Whether the State has impermissibly delegated its legislative authority to a

private entity is subjected to a ‘more searching scrutiny’ through the Boll Weevil




3
       Article III, Section 1 provides: “The Legislative power of this State shall be vested in a
Senate and House of Representatives, which together shall be styled ‘The Legislature of the State
of Texas.’”



                                               10
test4 set forth in Proctor v. Andrews, 972 S.W.2d at 735, than delegations of

legislative authority to the executive or judicial branches of governments:

       1. Are the private delegate’s actions subject to a meaningful review
       by a state agency or other branch of government?

       2. Are the persons affected by the private delegate’s actions
       adequately represented in the decision-making process?

       3. Is the private delegate’s power limited to making rules, or does the
       delegate also apply the law to particular individuals?

       4. Does the private delegate have a pecuniary or other personal
       interest that may conflict with his or her public function?

       5. Is the private delegate empowered to define criminal acts or
       impose criminal sanctions?

       6. Is the delegation narrow in duration, extent, and subject matter?

       7. Does the private delegate possess special qualifications or training
       for the task delegated to it?

       8. Has the legislature provided sufficient standards to guide the
       private delegate in its work?

Meaningful Governmental Review

       The first factor weighs against the delegation. The statute provides no

procedure for Schlittler to compel a governmental branch or body to review his ex-

wife’s decision to withhold consent.



4
       The Boll Weevil test is derived from Texas Boll Weevil Eradication Foundation, Inc. v.
Lewellen, 952 S.W.2d 454 (Tex. 1997). Proctor v. Andrews, 972 S.W.2d at 735.



                                              11
Adequate Representation of Affected Persons

      The second factor weighs against the delegation. The statute contains no

mechanism for Schlittler to “have a say,” Proctor v. Andrews, 972 S.W.2d at 736,

in his ex-wife’s decision to withhold consent.

Delegation of Rule Application as well as Rule-Making

      The third factor weighs against the delegation. The application of the statute

against Schlittler rested solely with his ex-wife. Moreover, she exercised her

power to withhold consent in derogation of Schlittler’s right to supervised

visitation delineated within the modified conservatorship order. 6 R.R. (State’s

Exhibit 2A, at 6-7).

Conflict of Interest

      The fourth factor weighs against the delegation. As the State acknowledges,

see State’s Brief at 18, 22-23, Schlittler’s ex-wife has a “private interest as stake,”

Proctor v. Andrews, 972 S.W.2d at 736, to the extent that Schlittler’s attempt to

communicate with his son “undermined the mother’s authority and rights,” State’s

Brief at 23.

Criminal Authority




                                           12
      The fifth factor weighs against the delegation. By withholding her consent,

Schlittler’s ex-wife defined his attempt to contact his son as a third-degree felony

under the statute’s express terms as set forth in subsections (a)(2) and (d).

Narrow Delegation

      Besides swallowing the narrowly-tailored requirement of the compelling-

state-interest test, the sixth factor weighs heavily against the delegation. The

delegation is not narrow in duration, extent, and subject matter. The statute

conferred upon Schlittler’s ex-wife veto-proof power to prohibit all parental

contact until B.S. attained majority.

Special Qualifications or Training

      The seventh factor weighs against the delegation. The statute imposes no

special qualifications or training upon Schlittler’s ex-wife before she elects to

withhold her consent to the enjoyment of his fundamental liberty interest as B.S.’s

parent.

Sufficient Standards

      Finally, the eighth factor weighs against the delegation. The statute lacks

any standards guiding Schlittler’s ex-wife in her decision to withhold her consent

to Schlittler’s contact with his son.

      In short, the statute flunked the Boll Weevil test miserably. Because

subsection (a)(2) operates as an unconstitutional delegation of the State’s



                                          13
legislative power upon a private party, subsection (a)(2) does not narrow the statute

as maintained by the Twelfth Court of Appeals, see Schlittler v. State, No. 12-13-

00269-CR, 2014 Tex. App. LEXIS 11904 at *6 (Tex. App.—Tyler, delivered

October 30, 2014, pet. granted); therefore, the statute cannot survive a strict-

scrutiny review because the statute is not narrowly tailored to accomplish a

compelling state interest.

                                        Prayer

        Schlittler prays that this Court declare Section 38.111, Penal Code,

unconstitutional as applied to him, and reverse the Twelfth Court of Appeal’s

judgment (and the trial court’s judgment) and dismiss the indictment filed in this

case.

                                        Respectfully submitted,

                                        State Counsel for Offenders
                                        Attorney for Appellant

                                        /s/ Kenneth Nash
                                        Texas Bar No. 14811030
                                        P. O. Box 4005
                                        Huntsville, TX 77342
                                        Telephone no. 936-437-5291
                                        Facsimile no. 936-437-5295
                                        E-mail address: ken.nash@tdcj.state.tx.us

                             Certificate of Compliance

        In compliance with Rule 9.4, Rules of Appellate Procedure, I certify that this

computer-generated document complies with the typeface requirements of Rule

                                          14
9.4(e) and is comprised of 2,129 words (excluding the matters listed in Rule

9.4(i)(1)).

                                        /s/ Kenneth Nash

                               Certificate of Service

       In compliance with Rule 9.5(e), Rules of Appellate Procedure, I certify that

a copy of the foregoing Appellant’s Reply Brief was served upon the State’s

attorney and upon the State Prosecuting Attorney noted below by one or more of

the following: certified mail (return receipt requested), facsimile transfer, or

electronic mail (e-mail), on April 27, 2015.

Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79105
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org

Lisa C. McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, TX 78711
Facsimile no. 512-463-5724
E-mail address: information@spa.texas.gov

                                        /s/ Kenneth Nash




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