NO. 07-03-0211-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C JUNE 18, 2004

______________________________ GARY REE D WALP, Appellant

v. STATE OFTEXAS a nd GARY L. JOHNSO N, EXECU TIVE DIR ECTOR

DEPARTM ENT OF C RIMINAL J USTICE, Appellees

_______________________________ FROM THE 75 TH DISTRICT COURT OF LIBERTY COUNTY; NO. 61,458; HON. C. T. HIGHT, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Appellant

Gary Reed Walp appeals the dismissal of his lawsuit against the State of Texa s and G ary L. Johnson, Executive Director of the Texas Department of Criminal Justice. On appeal, he presents eight issues in which he contends: 1) dismissal of hi s various causes of action asserted in his live pleading wasimproper given the “mootnessexception t est”; 2) he has a right to constitutionally challenge the conditions of his mandatory

supervision; 3) he has a right to due process in challeng i ng the State’s2

determination that compulsory sex offender treatment should be a condition of his mandatory

supervis ion; 4) h is right to free sp eech perm its him to assert his innocence viz his 1980 conviction for

aggravated sexual assault, to deny having used a deadly weapon in the commission of the offense, and to refuseto discl ose his s exual h istory an d though ts
as a condi tion of mandatory supervision; 5) his right against self-incrimination is violated bythe requirement that he give statements regarding his sexual history as a condition of compulso rysex offender treatment while o n mandato rysupervision; 6) his right to privacy permits him to refuse to take polygraph and plethysmograph tests a s a condition of compulso rysex offender treatment while on mandatory supervision; 7) he is entitled to a due process hearing to challenge the numeric risk level assigned him under article 62.035 of the Texas Code of

Criminal Procedure as part of his release on mandatory supervision; and 8) the trial court abused its discretion for “other reasons” in dismissi ng his l awsuit. We affirm thedismissa l of the t rial cou rt. Background Walp was convicted of aggravated sexual assau lt in 1 980. He originally filed his lawsuitas an indigent inmate against the State of T exas and Warden Lynn Smith of the Texas Depar

tment of Criminal Justice under Chapter 14 of the Texa s Civil Practice and Remedies Code. He participated in a sex offender treatment program while in prison, which program he allegedly completed. However, he was allegedly subjected to discipline for filing grievances with respect to his participation in the program. He also claimed to be scheduled for release from prison on mandatory supervision on July 2, 2003, and made a variety of compl aints reg arding th e State’s intent to subject h im to additional sex offender treatment while o n mandato ry superv ision.3

A hearing on the State’s motion to dismiss was held on September 27, 2001. At that hearing, Walp stated: “I have no objection to the [sex offender treatment

] program itself,
no. There is a little bitto learn there.” However, he did object to being forced to admit his guilt durin g treatment. At that hearing, the State raised the issue of whether the proper party had been sue d and ag reed to “s ee about getting a waiver

of service from Ga ry Johnson or the De partment.”The cou rt also a ppointed counsel for Walp. On January 6, 2003, Walp filed histhird amended original petition in whi ch he sued the State of Texas and Gar y L. John son, Executive Director of the Texas Department of Criminal Justice. There is no evidence in the record that Jo hnson was ev er served or waived service. In that petition, Walp sought 1) a declaration that the State viol a ted his rights of free speech and due process of law ( by requi ring him to admit his guilt and de nying him the opportunity to openly discuss his offense), 2) to enjoin the State fro m subjecting him to co mpulsory treatment

on manda tory

supervis ion with out a hea ring, 3) to enjoin the State from requiring him to a dmit hi s guilt, admit to using a deadly weapon, disclose his sex ual history, thoug hts, and f eelings , subject him t o polyg raph or plethysmograph tests, and waive liability against the treatment provid er s as part of his release on mandatory supervision, 4) to enjoin the State from issui ng a “blue wa rrant” to revoke his rele ase on ma ndatory s upervisi on for hi s refusal to do tho se th ings, 5) a declarat ion that articles 62.02 (sex offender registration) and 62.035 (sex offender risk level) of the Co de of C riminal P rocedure are uncon stitution al, and 6 ) to enjoi n the Sta te from applying article 62.035 to him without a hearing. At Walp’s request, the court entered
an order on February 13, 2003, terminating his court-appointed counse l. On February 21, 2003, thecourt di smissed t he lawsu it as frivolous.1 Though he c om plaine d be low abo ut losin g privile ges as a resu lt of his pa rticipati on in a tr eatment

pr og r am, his c omplaint s on appeal do not encompass thos e matters. I nstead, his a ll egati ons concer n acti on to which he may be s ubject once rel eased fr

om prison on mandatory supervisi on. And, that is the fram ewo rk within wh ich w e w ork. 4 Discussion In determining whether a claim is frivolous, the court may consider whether 1) the claim’s realistic chance of ultimate success is slight, 2) the claim has no arguable basis in lawor in fact, and 3) it is clear that the party cannot prove facts i n support of the claim. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §14.003 (Vernon 2002). We review the court’sruling for
an abuse of

discreti on. Montana v . Patterson, 894 S.W.2d 812, 814-15 (Tex. App.–Tyler 1994, no writ). When the trial court dismisse s a claim wit hout conducting a fact hearing,
we are limited to reviewing whether the claim ha d an a rguable basi s in law

. Sawyer v. Texas Departm ent of Cri

m. Justi ce, 983 S.W.2 d 310, 31 1 (Tex. A pp.–Hous ton [1 stDist.] 1998, pe t. denied ). Denial of Due Process 1 Walp asserts that he is entitled to a hearing to determine whether he is a proper candida te for compu lsory sex offender treatment as a condition of mandatory supervision. He posits that he is not

such a candidate because he is no lo nger a threat to public safety. According to the statute Walp cites, a parole panel “shall establish a child safet y zone applicable to a releasee if the pane l determi nes that a child .

. . was the victim of the offense, by requiring as a condition of parole or mandatory supervision tha t the releasee

. . . attend . . . psyc hological couns eling se ssions fo r sex off enders

. . . .” T EX
. G OV ’ T C ODE A NN
. §508.187(b)(2) (Vernon Supp. 2004 ). As can be seen, the requirement to undergo counseling is dependent upon the releasee having committed an offense against a child,2 The numeric ri sk leve l pur po rts to ga ug e th e se x off en de r’s propensi ty t o engage i n cri minal s exual

con duc t. T EX
. C ODE C RIM
. P ROC
. A NN . art. 62.035(c) (V ernon Sup p. 2004 ). 5 notupon whether his psychological condition indicatesthat he is likely to offend again. The latter condition being irrelevant to the application of §508.187(b)(2), appellant isnot entitled to a due pr

ocess he aring to address t hat fact q uestion. Connecti cut Dept. o f Pub. Sa fety
v. Doe , 538 U.S. 1, 7, 123 S.Ct. 1160, 1164-65, 155 L.Ed.2d 98, 1 05 (2003) (holding that Doe was not

entitled to a due process hearing to determinewhether he posed a danger for purposes of registering as a sex offender b ecause registration was dependent upon his having committed asex offe nse, not h is purpo rted dang erousnes s). Assuming arguendo that Walp complains about so me progr am other than that encompassed by §508.187(b)(2), he does not cite us to the te rms of any su ch progra m. Thus, we cannot say whether they can lawfully be imposed upon him or whether they fall within t he scopeof Connecticut Dept. of Pub. Safety v. Doe

. Walp also contends that he is en title d to a hearing to challenge any numeric risk level assigned him under art. 62.035 of the Texa s Code of Criminal Procedure as part of his release on mandatory supervision. 2 The contention is founded on the premise that the statute “denies[him] of ahearing

. . . .” Yet, u pon read ing the p rovision , one dis covers that itdoes not address the situation one wa y or the other. Nor does it state that the assignmentcannot be questioned. Thus, the trial court was entitle d t o conclude that the provisio n does no t deny hi m a heari ng in an y way. Furthermore, at the ti me his su it was di smi ssed, Walp ha d yet to be released on parole or mandatory supervision. Thus, whether he is assign ed a numeric risk leve l to6

which he objec

ts is utter speculation, as is whether a means will or will not be available for him to co ntest the assignme nt assumi ng he di sagrees w ith it. Self-Incrimination As to his cl aim abou t his sel f-incrimi nation “a s a condi tion of compulsory sex offender treatmenton mandatory supervision,” it too lacks substance. First, hefails to cite to anything o f reco rd purpor ting to i ndicate that he mu st incrim inate hi mself to s ecure mandatory

supervis ion. Second, and assuming arguendo that such a condi tion doe s exist, its impact, i f any, upo n him w ould be depende nt upon h is relea se on man datory supervision, the imposition of the requirement, and his refusal to comply with it. Since none of these circumstances had occurred b y the tim e he file d suit an d before the trial court dismissed it, their coming to fruition was simply speculation. In short, and again assuming thatthe State maintained a policy requiring him to incriminate himself, suit raising this claim
was premature

. In re Sha w, 117 S.W.3 d 520, 52 5 (Tex. A pp.–Beau mont 2003 , pet. denied) (ho ldi ng that speculation as to injuries that could result from a refusal to comply with an order to submit to a polygraph test which are merely contingent and have not yet accrued a re not rip e). Right to Refuse a Polygraph and Plethysm ograph Test, and to Free Speech As to the al legation s regardi ng the re fusal to underg o a polyg raph or pleth ysmograp h test and the invo cation of his rig ht to freespeech, each aga in relate s to his release on mandatory supervision. So tooare they dependent upon the State imposing upon him c ondition s of parol e that som ehow req uire him to underg o polygr aph or l ik e exa mina tion or forego any free speech right he may have. Walp cites us to nothing of record reasonably indicating that such conditions may be imposed . Nor doe s he citeus to7

anything of record reasonab ly sugge sting how the Sta te will react tohis refusal to undergo testing or to speak of things he cares not to discuss. Assuming arguendo that the State attemptsthat which he fear s, if it does nothing in response to his e nsuing conduct (whatever

that conduct may be), it can hardlybe said that he suffered any injury warranting judicial intervention. In short, pursuing these conjectural alle gatio ns via suit is also premature. Mootness As to the is sues involving w heth er his causes of action one throu gh seven were moot, we note that the trial court dismissed them “as frivo lous.” N ext, whi le he pu rports to argue, on appeal, why causes of action four through seven are meritorious, he does not do
so with regard to causes of action one throu gh three . Thus, any complaint about the dismissal of claims one through three on the ground of frivolou sness was waived due to the lackof briefi ng. Sunnyside Feedyard , L.C. v. M

etropoli tan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.–Amarillo 2003, no pet.). Finally, we addressed the meritoriousness, or lack thereof, of his allegations about causes of action four through seven in this opinion under the headings “Due Proces s,” “Self- incrimination,” and “Right to Refuse a Polygraph and Plethysm ograph T est, and to Free Sp eech.” “Other Reasons” Finally, Walp con tends tha t the tria l court e rred in d ismissin g his sui t f or “ot her reasons.”However, none of those reasons address the basis mentioned by thetrial co urt, i.e. frivolousness. Nor do they purport to show that his a llegations were not frivolous. For instance, he posits that

the proper parties were eventually served or joined and that the trial court failed to consider his “third amended original pe ti tion.” Yet, how those contentions8

affect the dismissal goes unexplained. Nor do we read them as addressing the basis upon which th e trial court reli ed in di smissing the suit

. In sum, we overrule each issue of Walp. Th e latter f

ailed to show tha t the tria l court abused its discretion in dismissing his suit as frivolous. Accordingly, the order of di smissal is affirmed.

Brian Quinn Justice