Case No

. PD -1505- 14

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

A ppellant’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 PD-1505-14 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 4/27/2015 10:33:51 AM Accepted 4/27/2015 10:43:50 AM

ABEL ACOSTA CLERK2 T able of Contents
Table of Authorities ........................................................................3

- 4 Reply Issue s.................................................................................... 5 1. Although a modified conservatorship order severely limited Schlittler’s possess ory 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 Com

pliance..................................................................14
Certificate of Service ........................................................................153 T able 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 (5 th 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. 5 2 (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. 198 8) ....................................9 Samford v. Dretke , 562 F.3d 674 (5 th 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) ...............................................................114

Troxel v. Granville , 530 U.S. 78 (1987) ...................................................8 Wirsching v. Colorado , 360 F.3d 1191 (10 th Cir. 2004) .................................9
Wisconsin v. Yoder , 406 U.S. 205 (1972) ..................................................7
Constitutions Art. III, Sec. 1, Texas Constitution ........................................................105 Reply Issues 1. Although a modified conservatorship order severely limit ed Schlittler’s
possesso ry 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?
S ummary of the Argument
1. Criminalization of Schlittler’s exercise a fundamental liberty
interest. Contrary to the State’s argument, it wasn’t th e 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 y et 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.6

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.
A rgument 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 t o ward 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
sexual ly abuse d 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
emotion al welfare and would be in the best interest of the child[, ]” so the SAPCR court awarded him supervised visitation “[e]very 1 st , 3 rd and 5 th Saturday of each
month for a maximum time of two hours.” 6 R.R. (State’s Exhibit 2A , at 6

- 7 ).7

This supervised visitation schedule commenced on September 18, 2007. 6 R.R. (Exhibit 2, at 23). Curiously, Schlittler alleged ly violated section 38.111 on September 4, 2008, ( see C.R. at 9 , 323 ) , several months after the SAPCR court entered its modified

co nservatorship 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 Schli ttler’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. W isconsin 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, t he Supreme Court held that procedural due process requires at least clear and convincing proof of permanent neglect before the State of New8

exercise of his parental rights will jeopardize the health or safety of his son, or that the exercise of his parental rights will potentially impo se significant social burdens. Apparently dissat isfied with the SAPCR court’s modifi ed 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
pa rty. 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, a nd 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, t he 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 parent s in their natural child ren
. 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 permanen tly 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 (5 th Cir. 2009) (upholding TDCJ’s “negative mail” policy9

State argues that , by conferring upon Schlittler’s ex

- wife the decision to restrict all
contact with his s on, 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 s tate may not confer upon a private person a power i t 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 wif

e’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 (10 th Cir. 2004) (upholding a prison regulation denying Wirsching visitation with his daughter because he was allowed to contact her by letter and telephone); Robins on 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 vis itation 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 restrictin g 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); Ode n walt 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. Cmwl th. 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).10

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 imp roper delegation of the State’s legislative power to a private entity , i.e. , his ex

- wife . T he 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 unau thorized legislative authority).
See also G.J. Deasy Investment, Inc. v. Mattox , 778 F.2d 1091 (5 th Cir. 1985) (noting that “[t]here is a constitutional prohibition against delegation of legislative power to private groups”).
W hether 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 Leg islature of the State of Texas.’”11

test 4 set forth in Proctor v. Andrews , 972 S.W.2d at 735, than delegations of legislative authority to the executive o r judicial branches of government s: 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 decisio n
- 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 f or 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 735.12

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 Schlittle r res t ed 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 In terest 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

c ommunicate with his son “undermined the mother’s authority and rights,” State’s Brief at 23. Criminal Authority13

The fifth factor weighs against the delegation. By withholding her consent, Schlittler’s ex

- wife define d his attempt to contact his son as a t hird

- degree felony under the statute’s express terms as set forth in subsections (a)(2) and (d). Narrow Delegation
Besides swallowing the narrowly

- tailor ed 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 parenta l 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 Sch littler’s contact with his son. In short, the statute flunked the Boll Weevil test miserably

. Because subsection (a)(2) operates as an unconstitutional delegation o f the State’s14

legislative power upon a private party, subsection (a)(2) does not narrow the statute as maintained by the Twelfth Court of Appeals , s ee 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 s trict

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

. P rayer Schlittler prays that this Court declare Section 38.111, Penal Code, unconstitutional as applied to him, and reverse the Twelfth Court of A ppeal’s judgment (and the trial court’s judgment) and dismiss the indictment filed in this

case
. Respectfully submitted,
S tate Counsel for Offenders Attorney for Appellant
/s/ Kenneth Nash Texas Bar No. 14811030 P. O. Box 4005 Huntsville, T X 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, Rule s of Appellate Procedure, I certify that this

com puter

- generated document complies with the typeface requirements of Rule15

9.4(e) and is comprised of 2,129 words (excluding the matters listed in Rule 9.4(i)(1)).
/s/ Kenneth Nash
C ertificate of Service In compliance with Rule 9.5(e), Rules of Appe llate 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 , 201 5

. 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