                  REVISED APRIL 22, 2010
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                     FILED
                                                                     April 5, 2010
                                  No. 09-50047                      Lyle W. Cayce
                                                                         Clerk

DAVID BRIAN JENNINGS,

                                             Plaintiff - Appellee
v.

RISSIE OWENS, In her official capacity as Chairperson of the Texas Board of
Pardons and Paroles; STUART JENKINS, In his official capacity as Director of
the Parole Division of the Texas Department of Criminal Justice; IVY
ANDERSON-YORK, In her official capacity as Director Supervisor of Region I
of the Parole Division of the Texas Department of Criminal Justice; ERNESTO
ALVAREZ, In his official capacity as Parole Officer, within Region I of the Parole
Division of the Texas Department of Criminal Justice; LINDA MCCARVER, In
her official capacity as Supervisor of Parole Officers within Region I of the Parole
Division of the Texas Department of Criminal Justice,

                                             Defendants - Appellants



                 Appeal from the United States District Court
                      for the Western District of Texas


Before KING, BARKSDALE, and ELROD, Circuit Judges.
KING, Circuit Judge:
      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
                                       No. 09-50047

summary judgment for Jennings, ordering that the sex offender conditions be
removed from his parole. The Texas officials appeal. We REVERSE.
                                   I. BACKGROUND
       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


       1
         Texas law defines a “sex offender” as “a person who has been convicted or has entered
a plea of guilty for . . . Aggravated Kidnapping[], if the person committed the offense with the
intent to violate or abuse the victim sexually.” TEX. CODE CRIM. PROC. ANN. art. 42.12
§ 9A(2)(A) (Vernon 2005). The 2005 version of the Texas law is applicable in this case, as the
complained-of parole conditions were imposed on August 4, 2005.

                                               2
                                       No. 09-50047

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.
       In 1991, Jennings was released on parole. At that time, he was placed on
the Sex Offender Caseload; as a consequence, sex offender conditions were
imposed on his parole.2 His parole was revoked in 1998 after a hearing where
the parole board determined that Jennings had violated several of the sex
offender conditions on his parole. Specifically, the parole board found that
Jennings had violated prohibitions against: having contact with juveniles;
entering into a relationship with a person with a minor child; accepting
employment involving contact with a juvenile; and changing his residence
without prior permission.
       On May 23, 2005, Jennings was again released on parole. In August 2005,
Jennings’s parole officer requested that Special Condition X—conditions tailored
for sex offenders—be imposed on Jennings’s parole; the parole board granted the
request by a majority vote. The file that the parole board considered included



       2
        The conditions included: not accepting employment that involves unsupervised contact
with juveniles; not engaging in any type of unsupervised contact with juveniles; not being
alone with juveniles; not becoming involved in a dating, marriage, or corresponding platonic
relationship with an adult who has juvenile children without prior approval; not changing
residence or employment without prior approval; and enrolling and participating in sex
offender counseling. In 1994, Jennings’s parole conditions were slightly modified to add the
following restrictions: he could not reside with juveniles; he had to be available for scheduled
home visits; and he had to obtain permission to travel outside his county of residence.

                                               3
                                       No. 09-50047

his convictions for debit card abuse, forgery by passing, and aggravated
kidnaping, but not false imprisonment. The file also contained a brief factual
description of the aggravated kidnaping offense.
       Jennings refused to acknowledge the new conditions and moved before the
parole board for a modification of his conditions of parole, specifically
challenging the following three conditions:
       [The] offender shall
       Enroll in and participate in a treatment program for sex offenders
       as directed by the supervising parole officer. Offenders serving a
       sentence for an offense as defined in [TEXAS GOVERNMENT CODE
       ANNOTATED §] 508.187(a),[3] against a victim who is under 17, shall
       receive psychological counseling until such time as the treatment
       provider, in conjunction with the Parole Division, determines that
       treatment is no longer required. The Parole Division will submit a
       recommendation to withdraw the requirement to attend
       psychological counseling to the appropriate board panel in those
       instances where such action is deemed appropriate. . . .[4]
       Not become involved in dating, marriage, or [a] platonic relationship
       with any person who has children 17 years of age or younger unless
       approved in writing by offender’s supervising parole officer. . . .
       Not own, maintain, or operate computer equipment without a
       declared purpose and the written authorization of the offender’s
       supervising parole officer. If authorization is granted, the offender
       shall submit to a search of the computer hardware, software, files,
       and peripherals by any [Texas Department of Criminal Justice]
       parole or law enforcement official. Offender shall allow the



       3
          Section 508.187(a) refers to several TEXAS PENAL CODE sections, including
§ 20.04(a)(4), which penalizes aggravated kidnaping when committed “with the intent to
violate or abuse the victim sexually.” TEX. GOV’T CODE ANN. § 508.187(a) (Vernon 2005) (citing
TEX. PENAL CODE ANN. § 20.04(a)(4)).
       4
         The Texas sex offender therapy program includes treatment with a penile
plethysmograph; that is, a “strain gauge which is strapped to an individual’s genitals while
sexually explicit pictures are displayed in an effort to determine his sexual arousal patterns.”
Coleman v. Dretke (Coleman I), 395 F.3d 216, 223 n.28 (5th Cir. 2004) (internal quotation
marks omitted).

                                               4
                                      No. 09-50047

       supervising officer to install a specific computer program designed
       to track computer activity.
       The parole board denied his motion to modify his parole conditions, and
Jennings brought suit against the parole board5 in federal district court under
42 U.S.C. § 1983. Specifically, he argued that the imposition of the three sex
offender parole conditions violated his right to procedural due process, as he did
not receive notice or a hearing prior to imposition of the conditions.6 The district
court agreed and granted summary judgment in his favor, finding that Jennings
had a liberty interest in being free from the three parole conditions, as each
constituted a dramatic departure from the basic conditions of release. The
district court was particularly influenced by three facts: (1) Jennings was a
minor at the time of his conviction for aggravated kidnaping; (2) Jennings
committed the sex offense nearly thirty years before his 2005 release on parole;
and (3) the sex offender conditions were placed on Jennings when he was on
parole for debit card abuse—a non-sex-related offense. The district court also
found that the parole board had not afforded Jennings sufficient process before
imposing the sex offender conditions and concluded that “[s]imply classifying
someone as a sex offender does not provide the person with any notice that their
parole conditions would be radically changed at any later date.” The district
court declared the three sex offender conditions unconstitutional as applied to
Jennings and ordered that the three conditions be removed from his parole.


       5
        Specifically, Jennings sued a number of employees of the Texas Board of Pardons and
Paroles and the Texas Department of Criminal Justice (TDCJ) in their official capacities. The
named defendants are: Rissie Owens, Chairperson of the Texas Board of Pardons and Paroles;
Stuart Jenkins, Director of the Parole Division of TDCJ; Ivy Anderson–York, Director
Supervisor of Region I of the Parole Division of TDCJ; Ernesto Alvarez, Parole Officer within
the Parole Division of TDCJ; and Linda McCarver, Supervisor of Parole Officers within the
Parole Division of TDCJ. For simplicity, we refer to the named defendants as “the parole
board” for the remainder of this opinion.
       6
         The parole board acknowledges that Jennings did not receive notice or a hearing
before the sex offender conditions were imposed on his parole in August 2005.

                                             5
                                  No. 09-50047

           II. JURISDICTION AND STANDARD OF REVIEW
      The parole board timely appealed, and appellate jurisdiction is proper
under 28 U.S.C. § 1291. We review the district court’s grant of summary
judgment de novo. LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386
(5th Cir. 2007). Summary judgment is appropriate when “the discovery and
disclosure materials on file[] and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c); Breaux v. Halliburton Energy Servs., 562
F.3d 358, 364 (5th Cir. 2009). “A genuine issue of material fact exists if a
reasonable jury could enter a verdict for the non-moving party.” Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008). This court must take all the facts and
evidence in the light most favorable to the parole board, the non-moving party.
Breaux, 562 F.3d at 364.
                              III. DISCUSSION
      The parole board argues that the district court made two erroneous
conclusions: first, that Jennings retained a liberty interest in remaining free of
sex offender parole conditions after his 1979 conviction for aggravated
kidnaping; and second, that Jennings did not receive the minimum process due
him before imposition of the parole conditions. According to the parole board,
Jennings did not retain a post-conviction liberty interest because he was already
labeled a sex offender after his 1979 conviction; any parole conditions could not
impose any additional stigma upon him. The parole board also argues that due
process only requires that Jennings have notice and the opportunity to dispute
the label of sex offender, not the specific conditions imposed on his
parole—therefore, his 1979 conviction for a sex offense fulfilled the requisites of
due process. Jennings contends that the district court correctly found that he
retained a liberty interest in being free from the three sex offender conditions,
as his only sex offense conviction was in 1979, for conduct that he committed at

                                        6
                                        No. 09-50047

the age of 15, and the underlying crime for which he was currently on
parole—debit card abuse—was not a sexual offense.
       Procedural due process under the Fourteenth Amendment is implicated
where an individual is deprived of life, liberty, or property, without due process
of law. U.S. CONST. amend. XIV, § 1, cl. 3. Here, Jennings has not been deprived
of life or property; therefore, his claim hinges on whether he has been deprived
of a liberty interest without adequate procedural protections. Liberty interests
may be created under either federal law or state law. See Sandin v. Conner, 515
U.S. 472, 478–79 & n.4 (1995). The district court found that Jennings retained
a federally created liberty interest.7
       Supreme Court precedent on the dictates of procedural due process in the
context of parole is sparing. The Court has found that prisoners do not have a
liberty interest in the granting of parole, Greenholtz v. Inmates of the Neb. Penal
& Corr. Complex, 442 U.S. 1, 11 (1979), but a liberty interest is implicated where
a state seeks to revoke parole, Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
When evaluating the constitutionality of parole conditions, the Fifth Circuit has
reasoned by analogy to Supreme Court cases involving conditions of
confinement. See Coleman v. Dretke (Coleman I), 395 F.3d 216, 221–24 (5th Cir.
2004) (relying on Vitek v. Jones, 445 U.S. 480 (1980), and Sandin—both cases
involving challenges to conditions of confinement—in formulating standard for
determining whether liberty interest exists in parole conditions context).
       In Vitek v. Jones, the Supreme Court found that a liberty interest was
implicated when a Nebraska state prisoner was transferred from prison to a



       7
         Jennings argues for the first time on appeal that, in addition to a federally created
interest, Texas law creates a liberty interest that protects parolees from post-release
modifications of parole conditions. This argument has been waived and we decline to consider
it. See Brown v. Ames, 201 F.3d 654, 663 (5th Cir. 2000) (“To avoid being waived, an argument
must be raised to such a degree that the trial court may rule on it.” (quotation marks omitted)).


                                               7
                                   No. 09-50047

mental hospital. 445 U.S. at 494. There, the Court held that “changes in the
conditions of confinement having a substantial adverse impact on the prisoner
are not alone sufficient to invoke the protections of the Due Process Clause.” Id.
at 493. The Court noted that “commitment to a mental hospital ‘can engender
adverse social consequences to the individual’ and that ‘whether we label this
phenomen[on] “stigma” or choose to call it something else . . . we recognize that
it can occur and that it can have a very significant impact on the individual.’”
Id. at 492 (quoting Addington v. Texas, 441 U.S. 418, 425–26 (1979)) (alteration
omitted). In addition, the consequences of commitment to a mental institution
imposed “consequences [that] are qualitatively different from the punishment
characteristically suffered by a person convicted of a crime.” Id. at 493. Based
on these two points—stigmatizing social consequences and qualitative
differences—the Court determined that due process protections were required.
Id. at 494; see also Sandin, 515 U.S. at 484 (declining to find liberty interest
where prisoner was placed in solitary confinement without process, as this was
not an “atypical and significant hardship . . . in relation to the ordinary incidents
of prison life”).
      In Coleman I, we considered a procedural due process challenge to the
imposition of Texas sex offender parole conditions. 395 F.3d at 219. There,
Coleman was indicted on charges of aggravated sexual assault of a child and
indecency with a child by contact, but he ultimately pleaded guilty to
misdemeanor assault, and the sexual charges were dropped. Id. About a month
after his release on parole, and without giving Coleman advance notice or a
hearing, the parole panel imposed additional conditions on his parole, including
the requirements that he register as a sex offender and participate in sex
offender therapy. Id. Coleman challenged the imposition of the conditions as
violating his right to procedural due process. Id. In determining that Coleman
had a liberty interest, we analogized to Vitek and noted that the Supreme Court

                                         8
                                     No. 09-50047

relied on “the combination of stigma and compelled behavior modification
treatment” to find a liberty interest in that case. Id. at 222. We found the Texas
sex offender therapy program to be “‘qualitatively different’ from other
conditions which may attend an inmate’s release,” as it involved mandatory
behavior modification8 much like that described in Vitek. Id. at 223. We also
noted that, as Coleman had never been convicted of a sex offense, he had not
“had an opportunity to contest his sex offender status” and therefore the parole
conditions caused stigma. Id. at 221. Accordingly, we concluded that Coleman
had a liberty interest entitled to the protection of procedural process, as the state
had “imposed stigmatizing classification and treatment on Coleman without
providing him any process.” Id. at 223.
      We expanded on the holding that Coleman had suffered from stigma in a
per curiam opinion denying a motion for rehearing en banc. Coleman v. Dretke
(Coleman II), 409 F.3d 665 (5th Cir. 2005) (per curiam) (adopting and expanding
upon the reasoning of Coleman I). We noted that Fifth Circuit precedent on
stigma states that “a statement causes stigma if it is both false and implies that
the plaintiff is guilty of serious wrongdoing.” Id. at 668 (citing Vander Zee v.
Reno, 73 F.3d 1365, 1369 (5th Cir. 1996)). “[B]y requiring [Coleman] to attend
sex offender therapy, the state labeled him a sex offender—a label which
strongly implies that [he] has been convicted of a sex offense and which can
undoubtedly cause ‘adverse social consequences.’” Id. at 668 (quoting Vitek, 445
U.S. at 492).     “‘We can hardly conceive of a state’s action bearing more
stigmatizing consequences than the labeling of a prison inmate as a sex
offender.’” Id. (quoting Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997)). The
conclusion that the sex offender therapy condition stigmatized Coleman rested


      8
         Coleman I found that the Texas sex offender therapy program involved mandatory
behavior modification insofar as it treated offenders with a penile plethysmograph. Coleman
I, 395 F.3d at 223.

                                            9
                                        No. 09-50047

heavily upon the fact that he had never been convicted of a sex
offense—therefore, the label “sex offender” was false as applied to him. Id.; see
Vander Zee, 73 F.3d at 1369 (describing falsity as a “necessary element” for a
showing of stigma).9
       Here, the imposition of the three sex offender conditions—the sex offender
treatment program, the relationship restriction, and the computer-use
restriction10—would indeed cause stigma, if they were imposed on an individual
who, like Coleman, had never been convicted of a sex offense.                         However,
Jennings has been convicted of a sex offense. He pleaded guilty to aggravated
kidnaping and stipulated to the fact that he committed the kidnaping with the



       9
         Jennings interprets the parole board as advocating for the use of the “stigma-plus-
infringement” test used in reputational harm cases. He argues that this standard is not
applicable to procedural due process claims, citing to Connelly v. Comptroller of the Currency,
876 F.2d 1209 (5th Cir. 1989), and he contends that the liberty interests he has asserted are
not derived from allegations of reputational harm. However, as discussed above, both Coleman
opinions rely on Supreme Court precedent in the form of Vitek and Sandin for the proposition
that procedural due process claimants must establish stigma—in addition to qualitatively
different conditions—to claim an unconstitutional infringement of a liberty interest, regardless
of whether reputational harm is alleged. Jennings does not acknowledge or attempt to
distinguish the Coleman cases’ requirement of “stigma” in the sex offender parole conditions
context.
        Furthermore, this approach is also followed by the Ninth Circuit. In Neal v. Shimoda,
two inmates—one with a prior sex offense conviction, and one without—challenged Hawaii’s
requirement that inmates labeled as sex offenders must complete sex offender treatment before
becoming eligible for parole. 131 F.3d at 831. The Ninth Circuit found that the inmate who
had never been convicted of a sex offense did indeed have a liberty interest in not being labeled
a sex offender. Id. at 830. In reaching this conclusion, the Ninth Circuit analogized to Vitek
and found that “the stigmatizing consequences of the attachment of the ‘sex offender’ label
coupled with the subjection of the targeted inmate to a mandatory treatment
program . . . create the kind of deprivations of liberty that require procedural protections.” Id.
However, as to the second inmate, who had a prior sex offense conviction, no procedural due
process violation occurred. Id. at 831. Jennings fails to convince us that the standard from
the Coleman cases and Neal is inapplicable.
       10
          Coleman I held that the sex offender therapy program, to the extent it utilizes penile
plethysmograph treatment, is “‘qualitatively different’ from other conditions which may attend
an inmate’s release.” 395 F.3d at 223. We expressly do not rule on whether the relationship
restriction or the computer-use restriction are “qualitatively different” from regular parole
conditions, as these conditions do not impose new or additional stigma on Jennings.

                                               10
                                       No. 09-50047

intent to commit indecency with a child and with the intent to violate and
sexually abuse his eight-year-old victim. By imposing sex offender conditions on
Jennings, the parole board admittedly labels him as a sex offender. This label
is not false as applied to Jennings; it accurately reflects Jennings’s status, and
he had a full and fair opportunity to contest that status. See Coleman I, 395
F.3d at 221 (relying on fact that Coleman never had opportunity to contest his
sex offender status). Therefore, Jennings has not shown that he has a liberty
interest that was infringed in violation of his right to procedural due process
when the parole board imposed sex offender special conditions on his parole.11
                                  IV. CONCLUSION
       For the foregoing reasons, we REVERSE and REMAND for proceedings
consistent with this opinion.




       11
          As mentioned above, Jennings argues (and the district court found) that three
facts—(1) Jennings was only 15 years old when he committed the aggravated kidnaping; (2)
Jennings’s aggravated kidnaping conviction was entered in 1979, nearly 30 years before his
2005 release on parole; and (3) Jennings’s 2005 release on parole was from a conviction for
debit card abuse, a non-sexual offense—support the conclusion that the imposition of sex
offender conditions was a “dramatic departure,” i.e., a qualitative difference, from Jennings’s
sentence for debit card abuse. Notably, Jennings does not make the argument that these three
facts impact the stigma analysis required by Coleman; therefore, we do not consider it.

                                              11
