REVISED APRIL 22, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50047

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 asParole Officer, within Region I ofthe Parole

Division of the Texas Department of Criminal Justice; LINDA MCCARVER, In

her official capacity as Supervisor of Parole Officers within Region I oftheParole

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 5, 2010

Lyle W. Cayce

Clerk
No. 09-50047

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

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
No. 09-50047

2The 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

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
No. 09-50047

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’TCODEANN.§ 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

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
No. 09-50047

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 ofthe 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

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 board5in 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 judgmentin 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. 
No. 09-50047

6

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
No. 09-50047

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 thatthe trial court may rule on it.” (quotation marks omitted)).

7

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 interestin the granting of parole, Greenholtz v. Inmates of the Neb. Penal

& Corr. Complex, 442 U.S. 1, 11 (1979), but a liberty interestis 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
No. 09-50047

8

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
No. 09-50047

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

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
No. 09-50047

9 Jennings interprets the parole board as advocating for the use of the “stigma-plusinfringement” 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 reputationalharm. 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 anunconstitutionalinfringement 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

requirementthatinmates labeledas sex offendersmust 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

plethysmographtreatment, is “‘qualitatively different’from other conditionswhich 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

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 ofthe 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
No. 09-50047

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

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.