A copy of the Texas Board of Pardons and Paroles sheet outlining “Special Condition 1

‘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

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 JUDICIAL DISTRICT COURT TH

FROM BRAZORIA COUNTY

COCHRAN, J., filed a concurring opinion in which WOMACK, J., joined.

O P I N I O N 

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)” upon him as a condition of his release on parole. 1
Campbell Concurring Opinion Page 2

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.

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:
Campbell Concurring Opinion Page 3

 The 1984 police offense report stated that applicant entered the apartment of a sixty- 2

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).”

 According to the 1989 offense report, three young girls and a young boy saw applicant 3

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. 

Arrest for Attempted Sexual Assault–Plead to Misdemeanor Assault

(Allegedly tried to rape an adult white female). Arrest for Indecency With a 2

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). Awaiting Sex Offender assessment prior to release from 3

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
Campbell Concurring Opinion Page 4

 Applicant’s uncle, a retired school superintendent, told the parole officer that applicant 4

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.

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
Campbell Concurring Opinion Page 5

 Because applicant had been previously convicted of “a” sex crime, although not a 5

“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 (5 Cir. 2004), are required in this

th

instance.

 In Coleman, the Fifth Circuit did not elaborate on precisely what type of notice and 6

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.

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. Instead, it provided him with 5

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
Campbell Concurring Opinion Page 6

 In Texas, the average cost per day to imprison an inmate in 2006 was $42.54; the 7

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).

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

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

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