             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. AP-75,838



                EX PARTE CRAIG RONALD CAMPBELL, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 23,639-A IN THE 300 TH JUDICIAL DISTRICT COURT
                           FROM BRAZORIA COUNTY

       C OCHRAN, J., filed a concurring opinion in which W OMACK, J., joined.

                                        OPINION

       I join in the denial of relief to this habeas corpus applicant because he was given at

least a minimal due-process opportunity to contest the appropriateness of imposing “Special

Condition ‘X’ (Sex Offender Condition)” 1 upon him as a condition of his release on parole.

       1
          A copy of the Texas Board of Pardons and Paroles sheet outlining “Special Condition
‘X’” is included in TDCJ’s amicus brief. Those conditions include (1) the mandatory enrollment
in a sex offender treatment program; (2) a prohibition against entering any sexually oriented
business or any business that provides “adult entertainment”; (3) a prohibition against
communicating with the victim of the sexual offense or going near that person’s business, home,
or school; (4) a prohibition against participating in any volunteer activities without the prior
written approval of the parolee’s supervising officer; (5) a prohibition against attending any
institution of higher learning without prior parole board approval; (6) a prohibition against the
purchase, possession, or viewing of any magazines, literature, or visual media that depict
sexually explicit images; and (7) the submission to polygraph examinations. For those whose
                                                           Campbell Concurring Opinion Page 2

One might reasonably question the wisdom of the parole board’s decision in this matter, but

it did not violate the Due Process Clause of the federal constitution.

       Seventeen years before his current release on parole in 2006, applicant pled guilty to

the Class B misdemeanor of indecent exposure. Twenty-two years before his release on

parole, applicant pled guilty to misdemeanor assault. The factual allegations set out in the

original police offense reports from these remote misdemeanor convictions are what led the

parole board to consider the imposition of Special Condition X. Those allegations have

never been tested in a court for their accuracy, and applicant was not convicted of the

specific offenses originally filed against him.

       The written notice given to applicant by the parole division stated its reasons for

considering the imposition of sex-offender conditions:



victims were under 17 years of age, the conditions also include (1) a prohibition against any
unsupervised contact with any child under 17 in person, by telephone, or by any electronic means
unless the parolee is the child’s parent; (2) a prohibition against forming any relationship (dating,
marriage, or platonic) with any person who has children under 17 without written approval by the
parolee’s supervising officer; (3) a prohibition against participating or attending any athletic,
civic, or cultural program if the participants include children under 17; and (4) a prohibition
against going “in, on, or within a distance specified by board policy of a premise where children
commonly gather, including a school, day care facility, playground, public or private youth
center, public swimming pool, or video arcade facility.” Additional conditions that a parole
officer may, in his discretion, impose include (1) a prohibition against leaving the approved
county without written permission; (2) a prohibition against owning or operating computer
equipment without written authorization, but if such authorization is given, submission to a
warrantless search of all such equipment “at any time, day or night, by any TDCJ parole or law
enforcement official”; (3) a prohibition against owning or operating photographic equipment
without written approval; (4) the notification of any prospective employer of the parolee’s
criminal history; (5) a written curfew requirement; and (6) the submission to searches of the
parolee’s person, car, home, or any other property at any time, day or night, without a warrant by
the parole officer.
                                                          Campbell Concurring Opinion Page 3

       Arrest for Attempted Sexual Assault–Plead to Misdemeanor Assault
       (Allegedly tried to rape an adult white female).2 Arrest for Indecency With a
       Child–Plead to Public Lewdness [sic] (Allegedly exposed penis to persons
       who were 17 years of age or younger at a public park. Offender claims to have
       been urinating).3 Awaiting Sex Offender assessment prior to release from
       TDCJ-ID.

       Applicant was told that he could submit a written statement and other documentation

within thirty days to explain why the sex-offender conditions should not be imposed. He did

not do so. The parole board then ordered that applicant submit to a sex-offender evaluation

by a psychologist. He did so, and he explained his version of the events underlying the two

previous misdemeanor convictions. The psychologist assumed that all of the facts within

the original police offense reports were true, and therefore concluded that applicant was in



       2
         The 1984 police offense report stated that applicant entered the apartment of a sixty-
year-old woman and that he grabbed her and moved his hand in between her legs. The report
stated that she screamed, and applicant ran away and hid under the bed in her bedroom where the
police officer found him. It would appear that there might have been problems with this case as
the charges were reduced to simple misdemeanor assault. Applicant gave the sex offender
psychologist the following explanation of that event: “When I was 18-years-old, I was drunk and
I intended to break into a house. At first, they got me for sexual assault, but dropped it to
attempted. What happened was the lady in the house started screaming when she saw me. She
was an older lady and there was no sex.” When the psychologist asked him whether he had
attempted to engage in sexual activity with the woman, applicant said, “I don’t think so; I was
drunk.” The psychologist concluded that applicant was in need of sexual-offense-specific
treatment, in part because he “does not accept responsibility for the attempted sexual assault, and
he did not deny that he attempted to rape the adult female (he reported being unable to recall due
to alcohol).”
       3
          According to the 1989 offense report, three young girls and a young boy saw applicant
walk up to them in the front yard and unzip his pants. The children said that applicant pulled out
his penis, moved it around in his hand, and said, “Hey, look, girl.” The responding officer said
that applicant was drunk at the time. Applicant told the sex-offender psychologist, “I was taking
a leak in an area where there were kids. They dropped it to public lewdness.” He denied
intentionally exposing himself to the children or anyone else.
                                                          Campbell Concurring Opinion Page 4

denial of his likelihood to commit future sexual offenses. The psychologist’s report stated,

       Based on the fact that he reported being unable to recall whether he did in fact
       attempt to rape the adult female, and that he denied intentionally exposing his
       penis to the children, a specific issue polygraph examination is also
       recommended in order to assist in [applicant’s] treatment planning.

The record does not reveal whether applicant was ever given a copy of the psychologist’s

report. Applicant was not given a second opportunity to be heard before the parole panel

voted to impose Special Condition X, including a child-safety zone, on him.

       A month and a half after these sex-offender conditions were imposed, applicant

candidly told his parole officer that he had been going to his father’s home to take a shower

every afternoon because the “sponsor house” where he lived did not have hot water.

Unfortunately, applicant’s father’s house is located within 500 feet of a child-care facility.4

That was why applicant had to move out of his family’s house into a “sponsor house.” Thus,

it was undisputed that applicant knew that it was verboten to visit his father’s home, even to

take a hot shower. Although applicant worked successfully at a full-time job, had avoided

drugs and alcohol, and was doing well on supervision, his parole was revoked, and he was

returned to prison.

       As the Court correctly notes, a conviction for the Class B misdemeanor of indecent

exposure is a “sex” offense because (1) it is listed in Chapter 21 of the Penal Code entitled

“Sexual Offenses,” and (2) it involves an intent “to arouse or gratify the sexual desire” of


       4
         Applicant’s uncle, a retired school superintendent, told the parole officer that applicant
went to his father’s home between 5:30 and 6:30 each evening. He said that everyone except the
custodian had left the child-care facility by then.
                                                         Campbell Concurring Opinion Page 5

someone. A seventeen-year-old conviction for Indecent Exposure might not appear to be the

sort of dangerous sex crime that the Texas Legislature had in mind when it enacted the

stringent sex-offender registration and treatment statutes, but it does fit within a literal

application of the law.

       Nonetheless, the Parole Division wisely erred on the side of discretion and did not

automatically impose Special Condition X on applicant.5 Instead, it provided him with

advance notice of its reasons for considering imposition of the sex-offender special

conditions and an opportunity to provide written documentation as to why those conditions

should not be imposed. It also gave him an opportunity to explain, during a personal

interview, to the parole board’s forensic psychologist why those conditions should not be

imposed. Applicant did not have any further recourse or forum in which to dispute the

psychologist’s report (if he was even given a copy of that report), but at least he had had

some small, informal opportunity to present his side of the story.6

       Once Special Condition X was imposed, it is not surprising that applicant would fail

to abide by every one of its intrusive conditions and prohibitions. Taking hot showers at his

father’s home, which happened to be located near a child-care facility, is not the sort of


       5
          Because applicant had been previously convicted of “a” sex crime, although not a
“reportable” sex offense, it is uncertain whether the procedural due-process protections mandated
by the Fifth Circuit in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), are required in this
instance.
       6
          In Coleman, the Fifth Circuit did not elaborate on precisely what type of notice and
hearing would suffice to support the parole board’s finding that a parolee would “constitute a
threat to society by reason of his lack of sexual control.” 395 F.3d at 225.
                                                         Campbell Concurring Opinion Page 6

violation that would necessarily call for returning a parolee to a high-cost prison.7 However,

the parole board’s action was authorized by law. I therefore agree that applicant has not

proven that he is entitled to relief on his claim.

Filed: October 15, 2008

Publish




       7
         In Texas, the average cost per day to imprison an inmate in 2006 was $42.54; the
average cost per day to maintain a parolee was $3.51, with an additional cost of $323.69 per year
for treatment in the Special Needs Sex Offender Program. LEGISLATIVE BUDGET BOARD ,
CRIMINAL JUSTICE UNIFORM COST REPORT FISCAL YEARS 2004-2006 3, 6, 10 (2007).
