Meza v. Livingston

Case: 09-50367 Document: 00511117955 Page: 1 Date Filed: 05/20/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 09-50367 May 20, 2010

Lyle W. Cayce
Clerk
RAUL MEZA,

Plaintiff-Appellee - Cross-Appellant
v.

DIRECTOR BRAD LIVINGSTON, Executive director of the Texas
Department of Criminal Justice, in his official capacity; DAVID GUTIERREZ;
CHARLES AYCOCK; CONRITH DAVIS; JACKIE DENOYELLES; THOMAS
LEEPER; JUANITA GONZALEZ; RISSIE L. OWENS; STUART JENKINS;

Defendants-Appellants - Cross-Appellees

Appeals from the United States District Court for the
Western District of Texas

Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Texas parolee Raul Meza, who has never been convicted of a sex offense,
sued the defendants, all employees of the Texas Board of Pardons and Paroles
(“the Board”) and the Texas Department of Criminal Justice–Parole Division
(“the Department”), for violations of his right to due process after the defendants
attached sex offender conditions to his mandatory supervision. This court has
made clear that sex offender conditions may only be imposed on individuals not
convicted of a sex offense after the individual has received due process. Coleman
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v. Dretke, 395 F.3d 216 (5th Cir. 2004) (Coleman I), reh’g and en banc denied,
409 F.3d 665 (5th Cir. 2005) (Coleman II). Meza alleges that before sex offender
conditions were attached to his mandatory supervision, inadequate process was
provided. Thus, this case requires us to determine whether the process utilized
by the defendants in this case is constitutionally sufficient.
We agree with the district court that the current procedures do not pass
constitutional muster. However, we do not agree that Meza is owed all of the
process afforded by the district court.

I.
In 1982, Meza pleaded guilty to the murder of a nine-year-old girl and was
sentenced to thirty years imprisonment.1 While in prison, Meza was sentenced
to an additional four years in prison for possession of a deadly weapon in a penal
institution.
In 1993, Meza was released from custody and placed under mandatory
supervision.2 In 1994, Meza violated the conditions of his supervision by
returning home fifteen minutes after the state-imposed curfew. The State
revoked Meza’s mandatory supervision and re-incarcerated him until 2002.
In 2002, Meza was re-released from prison under mandatory supervision.
T EX. G OV’T C ODE § 508.0441(a)(2) provides that “Board members and parole
commissioners shall determine: . . . conditions of parole or mandatory
supervision, including special conditions . . . .” Using this authority to impose

1
Meza was convicted of aggravated robbery in 1977 and was released on parole in 1981.
He was out on parole when he committed the murder in 1982.
2
At the time Meza was convicted, Texas penal law provided that a prisoner must be
released on mandatory supervision when the length of his calendar time in prison plus good-
conduct time earned equaled the total length of his sentence. See 1977 Tex. Gen. Laws 925
(currently embodied in TEX . GOV ’T CODE § 508.001, et seq.). The Board had no discretion in
whether Meza was released on mandatory supervision.

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“special conditions,” the Board placed more restrictive conditions on Meza than
it imposed in 1993, including Super Intensive Supervision Program condition,3
Special Condition O.06,4 Special Condition O.99,5 Special Condition M, and
Special Condition X. Special Condition X required, among other things, that
Meza participate in sex offender therapy.6 Special Condition M required that
Meza register as a sex offender. Meza was required to register as a sex offender
in 2002 when he was released on mandatory supervision. The condition that he

3
The Super Intensive Supervision Program condition requires Meza to live in a
community residential facility for 180 days, comply with the facility rules, attend educational
and vocational training classes, not go within 500 feet of places where children commonly
gather (“child-safety zones”), and wear an electronic-monitoring device at all times.
4
The Special Condition O.06 requires, among other things, that Meza not enter child-
safety zones.
5
The Special Condition O.99 prohibits Meza from leaving the Travis County
Correctional Complex (“TCCC”) without a supervising parole officer.
6
Under Special Condition X, the Board may require that the parolee: (1) must
participate in the Sex Offender Therapy Program; (2) cannot participate in programs that
include as participants individuals 17 years of age or younger; (3) may have no unsupervised
contact with any person 17 years of age or younger; (4) cannot reside with any person 17 years
of age or younger unless approved in writing by a supervising parole officer; (5) cannot leave
the county of residence without written permission of a supervising parole officer; (6) may not
date, marry, or engage in a platonic relationship with any person who has children 17 years
of age or younger unless approved in writing by a supervising parole officer; (7) must be
electronically monitored; (8) may not enroll in, attend, be employed by, or volunteer for an
institution of higher learning without Board approval; (9) may not own, maintain, or operate
computer equipment without written permission of a supervising parole officer; (10) may not
own, maintain, or operate photographic equipment without written permission of a
supervising parole officer; (11) must notify any prospective employer in writing regarding
criminal history if directed to by a supervising parole officer; (12) be evaluated to determine
need for sex offender counseling; (13) may not be employed by or attend any sexually-oriented
business; (14) may not intentionally or knowingly communicate with the victim or guardian
of the victim of the instant offense; (15) may not participate in any volunteer activities without
prior written approval of a supervising parole officer; (16) may not view, possess, or purchase
any literature or videos that depict sexually-explicit images, or communicate through any
telecommunication device for sexually-explicit purposes; (17) submit to a search of the person,
motor vehicle, residence, and property by a supervising parole officer; (18) submit to polygraph
examinations; and (19) abide by an established curfew. All of these conditions were imposed
on Meza.

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register as a sex offender was lifted in April 2005. Today, Meza is no longer
required to register as a sex offender.
These sex offender conditions were imposed on Meza by the Board because
Meza allegedly sexually assaulted the nine-year-old girl he murdered in 1982.
It is unclear from the record how the Board obtained evidence that Meza
sexually assaulted his victim in 1982, but it is undisputed that Meza was never
convicted of a sexual offense.
Because of the sex offender and other conditions attached to Meza’s
mandatory supervision, Meza has been unable to leave TCCC since his release
from prison in 2002, despite the fact that the conditions of his mandatory
supervision only required that he remain at TCCC for 180 days. In order for
Meza to leave TCCC, he must arrange for a residence, which, in turn, requires
him to secure employment. Thus far, Meza has been unable to secure
employment. Part of the reason Meza alleges that he has been unable to secure
employment is because of the conditions imposed on him by the Board. To leave
TCCC, Meza must be escorted by a parole officer. The Department controls the
availability of parole officers. Between 2002 and 2005, Meza was only allowed
to leave TCCC twice: once for a job interview and once to visit a hospital
emergency room. Meza must also obtain approval for any job prospects from his
parole officer. Meza has thus far been denied all job prospects by his parole
officer. He was denied one job prospect because of its proximity to a child-safety
zone. 7 He was denied another job prospect because he would have to cross a
child-safety zone to reach the job site. He was denied another job prospect
because it required that Meza have a driver’s license and the Parole Division
Director for Meza’s region would not allow Meza to obtain a driver’s license at
the time of the application. Meza was not allowed to apply for one job because

7
The job was a clerical position on the tenth floor of a downtown office building. The
child-safety zone was located across the street.

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the Department would not allow Meza to undergo a urinalysis, as was required
in the application process.8
In 2004, this court released its opinion in Coleman v. Dretke, 395 F.3d 216
(5th Cir. 2004) (Coleman I), reh’g and en banc denied, 409 F.3d 665 (5th Cir.
2005) (Coleman II). Coleman I held that if a defendant is not convicted of a sex
offense, the defendant’s parole may only be conditioned on sex offender
registration and therapy if the defendant is “afforded a hearing meeting the
requirements of due process” in which it is determined that the defendant
“constitute[s] a threat to society by reason of his lack of sexual control.” Id. at
225. At the time Coleman I was decided, Meza was required to register as a sex
offender and attend sex offender therapy.
In light of Coleman I, the Texas Board developed a procedure for providing
due process to individuals who were not convicted of a sex offense but could
have sex offender conditions attached to their parole or mandatory supervision
under Texas law. Counsel for the Board developed the following process. First,
the Board provides written notice to the parolee that his parole or mandatory
supervision may be conditioned on sex offender registration and treatment.9 The
parolee has thirty days to respond with any written statements or documents to
contest imposition of this condition. Upon the parolee’s response (or lack
thereof), the Department puts together a packet on the parolee. The packet

8
The reason Meza was not allowed to undergo a urinalysis was that Mesa would have
to travel through a child-safety zone in order to reach the location where he was to take the
urinalysis. Meza’s attorney filed a complaint with the Department about not allowing Meza
to undergo a urinalysis, but the Department never responded to the complaint. The Parole
Division Director for Meza’s region testified at trial that he did not think the complaint needed
a response.
9
At oral argument, the defendants stated that the initial recommendation that sex
offender conditions should be imposed on an individual’s parole or mandatory supervision is
made by the parole officer. There is no requirement that there be evidence of past or present
sexual deviancy in order for the parole officer to make this initial recommendation.

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includes the parolee’s complete parole file, psychological evaluations, polygraph
tests, and social, education, employment, and medical histories, etc. Neither the
parolee nor any attorney he retains is allowed to see the packet. The
Department sends the packet to a panel of the Board. A representative from the
Department offers a short presentation (ten to thirty minutes) of the packet and
the parolee’s background to the Board. Neither the parolee nor his attorney is
allowed to attend the panel’s hearing or present facts or arguments on behalf of
the parolee to the panel. After hearing the Department’s presentation and
reviewing the packet, the Board votes on whether the parolee’s parole or
mandatory supervision should be conditioned on sex offender registration or
therapy. The parolee is then notified of whether sex offender registration or
therapy is required. The panel does not produce any written findings or inform
the parolee of the facts on which the Board based its decision. The parolee may
not appeal the Board’s decision.
In February 2005, Meza received notice that his mandatory supervision
might be conditioned on sex offender registration and therapy. Meza was given
thirty days to submit a statement or documentation to contest the imposition of
sex offender conditions. He did not submit any statement or documentation.
After reviewing Meza’s packet as prepared by the Department, the Board panel
conditioned his mandatory supervision conditioned on sex offender registration
and therapy. The Board subsequently notified Meza of its decision.
In 2005, Meza brought this § 1983 action for injunction against members
of the Department and a number of individual parole officers in their official
capacities (collectively, “the defendants”). The suit sought to enjoin the
defendants from imposing sex offender conditions without due process and from
continuing to subject him to qualitatively different conditions of confinement
without due process. Meza also alleged violations of his Fourteenth Amendment
equal protection rights. Finally, Meza sought attorney’s fees and costs.

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The district court found that Coleman I required that a parolee such as
Meza who was not convicted of a sex crime receive procedural due process before
any sex offender condition could be imposed. The district court found that the
procedural protections given to Meza by the Board were constitutionally
insufficient and delineated the minimum due process Meza was entitled to
receive as follows:

(1) written notice in advance of the hearing; (2) disclosure of the
evidence on which the State is relying; (3) a hearing, scheduled
sufficiently after the notice to permit Meza to prepare, at which he
will have the opportunity to be heard in person, represented by
counsel, and to present documentary evidence in his support; (4) an
opportunity at the hearing to call witnesses and confront and cross
examine State witnesses, “except upon a finding, not arbitrarily
made, of good cause for not permitting each as to a particular
witness”; (5) an independent decision maker; and (6) a written
statement by the fact-finder as to the evidence relied upon and the
reasons for the decision.

Meza v. Livingston, 623 F. Supp. 2d 782, 796 (W.D. Tex. 2009) (citation omitted).
Because the Board failed to provide Meza with that level of process, the district
court ordered the Board to provide Meza with an appropriate hearing consistent
with its guidelines before imposing sex offender conditions on his parole. The
district court dismissed without prejudice Meza’s remaining claims, awarded
Meza costs for the prosecution of his case, and dismissed the defendants’ motion
for summary judgment.
The defendants timely appealed the district court’s order. Meza also
timely filed a cross-appeal.
We review the constitutional issues presented in these appeals de novo,
United States v. Locke, 482 F.3d 764, 766–67 (5th Cir. 2007) (citations omitted),

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and the grant of an injunction for abuse of discretion, Lake Charles Diesel, Inc.
v. General Motors Corp., 328 F.3d 192, 195 (5th Cir. 2003) (footnote omitted).

II.
Procedural due process under the Fourteenth Amendment of the United
States Constitution is implicated where an individual is deprived of life, liberty,
or property, without due process of law. U.S. C ONST. amend. XIV, § 1, cl. 3. The
Supreme Court has adopted a two-step analysis to examine whether an
individual’s procedural due process rights have been violated. The first question
“asks whether there exists a liberty or property interest which has been
interfered with by the State; the second examines whether the procedures
attendant upon that deprivation were constitutionally sufficient.” Kentucky
Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted).
A.
The district court held that an individual has a liberty interest such that
due process is implicated when there is “any State sex-offender condition
imposed on a parolee who has not been convicted of a sex crime.” Meza, 623 F.
Supp. 2d at 792. The defendants do not dispute that Meza has a liberty interest
in being free from sex offender registration and therapy, but they maintain that
Meza does not have a liberty interest in being free from the other conditions that
the Board may attach to his mandatory supervision under Special Condition X.
Additionally, the defendants argue that sex offender registration is not at issue
in this case because Meza was only required to register as a sex offender from
2002 to 2005; he is no longer required to register as a sex offender.
Meza counters that the Board misreads the district court’s opinion as
finding a liberty interest in all sex offender conditions that may be imposed
under Special Condition X. Instead, Meza argues that the only sex offender
conditions in which he has a liberty interest are those which require that he (1)

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participate in a sex offender treatment program, (2) be evaluated for sex offender
counseling, (3) submit to polygraph examinations, and (4) be labeled as a sex
offender. Meza also disagrees with the defendants’ position that sex offender
registration is not at issue. According to Meza’s attorney at oral arguments, “the
parole office considers Meza to be a sex offender . . . . The Department tells Mr.
Meza’s potential employers that he is a sex offender.” Thus, Meza asserts that
while he currently is not required to put his name on the sex offender registry,
the Department continues to operate as if his name were on the sex offender
registry.
As an initial matter, we agree with Meza that sex offender registration is
a condition at issue in this case. We reach this conclusion for two reasons. First,
it is impossible for the defendants to un-ring the bell that was rung when Meza
was required to register as a sex offender. The stigma that attached to Meza
when he was required to register remains, regardless of whether his name is
currently on a sex offender registry. See Coleman II, 409 F.3d at 668 (“The
stigma aspect of the case is thus not mooted by the state’s decision to remove
Coleman from its sex offender registry.”). The stigmatizing effects of registering
as a sex offender still follow Meza and are reinforced by the Department when
it continues to tell Meza’s potential employers that he is a sex offender.
Second, sex offender registration is of concern in this case because “a
defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice,” even in cases
in which injunctive relief is sought. City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982); accord Northeastern Fla. Chapter of Assoc. Gen
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 661–62 (1993); Cooper
v. McBeath, 11 F.3d 547, 550–51 (5th Cir. 1994); Resident Council of Allen
Parkway Village v. United States Dep’t of Housing & Urban Dev., 980 F.2d 1043,
1048 (5th Cir. 1993). It is clear that the alleged wrongful behavior of the

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Board—requiring Meza to register as a sex offender without due process of
law—could recur to Meza if his mandatory supervision is revoked again.
Moreover, at trial, an Administrator for the Board testified that as many as
6,900 current inmates are subject to have sex offender conditions, including sex
offender registration, imposed upon them in the future, despite the fact that they
have not been convicted of a sex crime. Thus, the Board may continue to use the
same procedures for these 6,900 inmates that Meza complains of in this case.
If the Board removes the registration requirement before the court can review
the adequacy of the process, the Board’s practice will remain in effect and evade
court review.
Having determined that sex offender registration and therapy are at issue
in this case, we find it is unnecessary to examine whether Meza has a liberty
interest in any of the other sex offender conditions. Meza alleges he has a liberty
interest in being required to (1) participate in a sex offender treatment program,
(2) be evaluated for sex offender counseling, (3) submit to polygraph
examinations, and (4) be labeled as a sex offender. Based on the Department’s
Policy and Operating Procedure entitled “Sex Offender Treatment and
Polygraph Examination Guidelines” that was submitted into evidence, as well
as the Coleman I court’s description of sex offender therapy, see 395 F.3d at 224,
being evaluated for sex offender counseling and submitting to polygraph
examinations may be considered part of sex offender treatment. Thus, the
conditions complained of by Meza fall into two categories: sex offender
registration and sex offender counseling. As these are the only sex offender
conditions that Meza asserts he may have a liberty interest in, we find it
unnecessary to determine what, if any, liberty interest Meza may have in the
other conditions attached to his mandatory supervision.
This court’s ruling in Coleman I guides our decision of whether Meza has
a liberty interest in sex offender registration and therapy. In Coleman I, the

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defendant was convicted of burglary in 1986. He was released on parole in 1991.
While on parole, the defendant was indicted for aggravated sexual assault of a
child and indecency with a child by contact. The defendant pleaded guilty to and
was convicted of misdemeanor assault. He was never convicted of any sex
offense. Thereafter, the defendant’s parole was revoked and he was
reincarcerated.
In January 2001, the Coleman I defendant was released on mandatory
supervision. In February 2001, the parole panel imposed two requirements on
the defendant’s parole: first, he had to register as a sex offender, and second, he
had to attend sex offender therapy. The defendant was not given advance notice
of the hearing in which the parole panel imposed these requirements. The
defendant registered as a sex offender, but did not attend sex offender therapy.
Because the defendant violated the terms of his parole, his parole was revoked
in July 2001.
The defendant challenged his parole revocation in a habeas petition,
alleging a violation of the Due Process Clause of the Fourteenth Amendment.
Relying primarily on Vitek v. Jones, 445 U.S. 480 (1980), we held that “prisoners
who have not been convicted of a sex offense have a liberty interest created by
the Due Process Clause in freedom from sex offender classification and
conditions.” Coleman I, 395 F.3d at 222. The court found a liberty interest
existed because sex offender registration and therapy were highly stigmatizing
and invasive conditions that were “qualitatively different” from other conditions
regularly attached to parole. Id. at 223. Because the State admitted it provided
the defendant with no procedural protections, this court found that the
defendant’s due process rights were violated. We noted, however, that the State
was “not precluded from further efforts to add these same conditions to [the
defendant’s] parole upon proper notice . . . .” Id. at 225.

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Based on Coleman I, it is clear that Meza had a liberty interest in being
free from being required to register as a sex offender and participate in sex
offender therapy. Other circuits have reached this same conclusion. E.g., Gwinn
v. Awmiller, 354 F.3d 1211, 1217 (10th Cir. 2004); Kirby v. Siegleman, 195 F.3d
1285, 1291–92 (11th Cir. 1999); Neal v. Shimoda, 131 F.3d 818, 829–30 (9th Cir.
1997).10
B.
Given that Meza has a liberty interest in being free from sex offender
registration and therapy, we now examine whether the procedures provided by
the defendants to Meza were constitutionally sufficient. Thompson, 490 U.S. at
460 (citations omitted).
When an individual is convicted of a sex offense, no further process is due
before imposing sex offender conditions. See Conn. Dep’t of Pub. Safety v. Doe,
538 U.S. 1, 7–8 (2003); Jennings v. Owens, __ F.3d __, 2010 WL 1267163 (5th
Cir. 2010). The individual “convicted of a sex crime in a prior adversarial
setting, whether as the result of a bench trial, jury trial, or plea agreement, has
received the minimum protections required by due process.” Neal, 131 F.3d at
831. Meza, however, was not convicted of a sex offense, and he neither

10
The Eighth Circuit found that under a particular Minnesota statute no due process
is required to impose sex offender conditions on an individual’s probation, despite the fact that
the individual has not been convicted of a sex offense. See Gunderson v. Hvass, 339 F.3d 639,
644–45 (8th Cir. 2003). Minnesota statute § 243.166 provides that a “person shall register [as
a sex offender] if . . . the person was charged with . . . and convicted of [criminal sexual conduct
under section 609.342] or another offense arising out of the same set of circumstances.” In
Gunderson, the alleged sex offender was originally charged with sexual assault, but
negotiated a plea agreement for third degree assault. The Eighth Circuit found that because
the third degree assault conviction arose from the same set of circumstances as the alleged
sexual assault, the alleged sex offender met the statutory criteria for being required to register
as a sex offender.
We see no indication the Eighth Circuit would reach this result in Meza’s case because
Texas does not have a statute similar to the Minnesota statute. Even if Texas did have a
similar statute, Meza was not charged with or convicted of a sex offense so the State could not
prove that he was charged with a non-sex offense that arose out of the same set of
circumstances as a sex offense.

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stipulated nor judicially admitted that he sexually assaulted his murder victim
in 1982.11 Thus, under our cases, he is owed procedural due process before sex
offender conditions may attach. See Coleman I, 395 F.3d at 221.
Thus far, the previously described procedure provided by the Board is the
only process Meza has received. To determine whether this process meets
constitutional muster, we rely on the balancing test in Mathews v. Eldridge, 424
U.S. 319 (1976). The Mathews v. Eldridge balancing test offers three distinct
factors for a court to weigh in considering whether the procedural due process
provided is adequate:

First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedure used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.

Id. at 335 (citation omitted).
The first factor is the private interest affected. “Courts are in agreement
that imposing a sex offender registration requirement and treatment affects a
substantial right, because it compels a serious deprivation of liberty and creates
stigmatizing consequences.” United States v. Jimenez, 275 F. App’x 433, 442
(5th Cir. 2008) (citing Coleman II, 409 F.3d at 668; Neal, 131 F.3d at 829)
(unpublished). “We can hardly conceive of a state’s action bearing more
‘stigmatizing consequences’ than the labeling of a prison inmate as a sex

11
According to the joint agreed stipulated facts, Meza only admitted that he sexually
assaulted his victim as part of his sex offender treatment. According to Meza’s attorney at oral
argument, Meza was required to make this admission as part of his treatment. Meza’s
attorney stated, “If Mr. Meza did not make that admission during the sex offender treatment,
his parole would have been revoked and he would have been returned to prison for refusing
to take part in the treatment process.” The State did not dispute this statement.

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offender.” Neal, 131 F.3d at 829 (9th Cir. 1997). Based on cases from this court
and other circuits, we are convinced that Meza has a significant interest in being
free from sex offender registration.
The defendants seek to minimize any interest Meza has in being free from
sex offender therapy. In Coleman II, this court equated the consequences of
being required to attend sex offender therapy with the consequences of being
required to register as a sex offender. “[B]y requiring [a parolee] to attend sex
offender therapy, the state label[s] him a sex offender—a label which strongly
implies that [the parolee] has been convicted of a sex offense and which can
undoubtedly cause ‘adverse social consequences.’” Coleman II, 409 F.3d at 668
(quoting Vitek, 445 U.S. at 492). The consequences of attending sex offender
therapy, combined with the highly invasive nature of the therapy,12 leave us no
doubt that Meza also had a significant interest in being free from sex offender
therapy.
The second factor is the risk of erroneous deprivation. Under the current
Texas system there is a high risk that the Board will make erroneous findings
because the parolee is kept in the dark about the evidence being considered by
the Board in reaching its decision. Critically, the parolee has no opportunity to
correct errors in the packet provided to the Board. Damning information may
incorrectly be placed in the wrong parolee’s packet. Facts may be erroneously

12
Meza has undergone sex offender therapy similar to the therapy prescribed for the
parolee in Coleman I. The Coleman I court described sex offender therapy as follows:

“[S]ex offender treatment is different than traditional psychotherapy in that
treatment is mandated, confrontational, structured, victim centered, focused on
behaviors, and confidentiality is not maintained.” Treatment can include
“interventions with psychopharmacological agents,” polygraph exams to
determine sexual history, and use of penile plethysmographs to “modify deviant
sexual arousal and enhance appropriate sexual arousal.”

Id. at 224 (quoting the Council for Sex Offender Treatment’s website); accord Jennings, __
F.3d at __ n.8, 2010 WL 1267163, at *4.

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or unfairly slanted against the parolee. Under the current procedure, the
parolee has no opportunity to correct false information or provide an explanation
for any adverse information. Neither the parolee nor his attorney may even see
the completed evidentiary packet on which the Board bases its decision of
whether to require the parolee to register as a sex offender and attend sex
offender therapy. At trial, it was estimated that there are currently 6,900
prisoners who will potentially need to receive Coleman notice upon their release.
In compiling 6,900 parolee packets, human error will inevitably occur and
parolees may be falsely accused of sexually-deviant behavior. By simply
granting the parolee the right to review his packet, such human errors could be
avoided. For this reason, the current Texas system creates a high risk of
erroneous deprivation.
The third factor that we must weigh in the balancing test is the
Government’s interest. Undoubtedly the State has a significant interest in
rehabilitating sex offenders prior to their reentry into society, as well as
monitoring sex offenders while on parole. See McKune v. Lile, 536 U.S. 24,
32–33 (2002). Also, the State certainly has an interest in keeping the costs of
providing notice to individuals like Meza as low as constitutionally permissible.
The Board Administrator who predicted at trial that 6,900 offenders currently
incarcerated may at some point require notice pursuant to Coleman I also
estimated that to provide these offenders with the process afforded in parole
revocation hearings could cost $750,000. Therefore, requiring more procedural
protections would cause the State to incur significant additional costs.
Taking the Mathews v. Eldridge factors into consideration, we conclude
that the current procedure provided to parolees who have never been convicted
of a sex offense and who face possible sex offender registration and therapy is
constitutionally insufficient. While the State has a significant interest in
avoiding additional costs, Meza’s liberty interest in being free from the stigma

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No. 09-50367

of registering as a sex offender and avoiding highly invasive sex offender therapy
is palpable. When balancing these significant interests with the likelihood of
erroneous decision-making, we are convinced that the current procedure is
unconstitutional. The grave risk of error that envelops the procedures used by
the Board is most troubling. By not allowing the parolee to review the evidence
presented against him, he is unable to correct any misinformation placed in his
packet that the Board reviews. By not allowing the parolee to appear before the
Board, the Board must act without mitigating or clarifying evidence from the
parolee. By not allowing the parolee to confront opposing witnesses, the parolee
is unable to refute damning statements made against his interest and the Board
is unable to evaluate the credibility of the parolee against that of opposing
witnesses.
In sum, after weighing the factors of Mathews v. Eldridge, we find that the
current Texas procedure for providing parolees with their Coleman notice does
not meet the constitutional requirements for procedural due process.

III.
Having determined that the process afforded to Meza is constitutionally
insufficient, we must now determine what process is required.
“[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
“‘[P]rocess’ is not a term with a clear definition and the nature of the procedure
required to comply with the due process clause depends on many factors
concerning the individual deprivation.” R ONALD D. R OTUNDA & J OHN E. N OWAK,
T REATISE ON C ONSTITUTIONAL L AW: S UBSTANCE AND P ROCEDURE § 17.7 (4th ed.
2008). The Supreme Court has afforded a broad spectrum of process depending
on the deprivation at issue. To determine the amount of process due in this case,

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we first examine similar Supreme Court cases involving the deprivation of rights
of prisoners and parolees.
A.
In 1972, the Supreme Court issued the landmark decision Morrissey v.
Brewer, in which the Court determined that parolees had a liberty interest in
avoiding parole revocation. Having found that a liberty interest was present, the
Court then decided the minimum process owed to a parolee before parole may
be revoked. The Court held that a parolee was owed, at a minimum:

(a) written notice of the claimed violations of parole; (b) disclosure
to the parolee of evidence against him; (c) opportunity to be heard
in person and to present witnesses and documentary evidence; (d)
the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing
confrontation); (e) a “neutral and detached” hearing body such as a
traditional parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the factfinders as
to the evidence relied on and reasons for revoking parole.

Morrissey, 408 U.S. at 489. The Court specifically did “not reach or decide the
question of whether the parolee is entitled to the assistance of retained counsel
or to appointed counsel if he is indigent.” Id.13

13
The following year, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court found that
the right to counsel in parole revocation hearings must be made on a case-by-case basis. The
Gagnon Court stated:

[T]he decision as to the need for counsel must be made on a case-by-case basis
in the exercise of a sound discretion by the state authority charged with
responsibility for administering the probation and parole system. Although the
presence and participation of counsel will probably be both undesirable and
constitutionally unnecessary in most revocation hearings, there will remain
certain cases in which fundamental fairness—the touchstone of due
process—will require that the State provide at its expense counsel for indigent
probationers or parolees.

Id. at 790.

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Two years after Morrissey, in Wolff v. McDonnell, 418 U.S. 539 (1974), the
Court examined the procedural due process protections owed to an inmate in
prison disciplinary proceedings that could result in the loss of the inmate’s good-
time credits. The Court held that the inmate was owed: (1) written notice of the
claimed violation that enables the inmate to marshal the facts and prepare a
defense; (2) an opportunity “to call witnesses and present documentary evidence
in his defense when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals”; and (3) a “written statement by the
factfinders as to the evidence relied on and reasons for the disciplinary action.”
Id. at 563–66. The Court also recognized that the committee that conducted the
prisoner disciplinary proceedings was sufficiently impartial, implying that such
impartiality was a requirement of due process. Id. at 570–71. Finally, the Wolff
Court found that an inmate was not entitled to confront and cross-examine
witnesses and did not “have a right to either retained or appointed counsel.” Id.
at 567–70.
Thus, the Wolff Court found that inmates facing a possible loss of good-
time credits were owed less process than parolees facing a possible revocation of
parole; specifically, inmates were not entitled to confront and cross-examine
witnesses, while parolees in Morrissey were entitled to this procedural
protection. Also, Wolff afforded inmates no absolute right to present testimony
or other evidence that would compromise safety and correctional goals. In
finding that parolees and inmates were not owed the same process, the Wolff
Court noted that “one cannot automatically apply procedural rules designed for
free citizens in an open society, or for parolees or probationers under only limited
restraints, to the very different situation presented by a disciplinary proceeding
in a state prison.” Id. at 560. Justice White, writing for the majority,
distinguished the revocation of parole—the deprivation at issue in

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Morrissey—from the loss of good-time credits—the deprivation at issue in
Wolff—by stating:

Revocation of parole may deprive the parolee of only conditional
liberty, but it nevertheless “inflicts a ‘grievous loss’ on the parolee
and often on others.” Simply put, revocation proceedings determine
whether the parolee will be free or in prison, a matter of obvious
great moment to him. For the prison inmate, the deprivation of
good time is not the same immediate disaster that the revocation of
parole is for the parolee. The deprivation, very likely, does not then
and there work any change in the conditions of his liberty. . . . The
deprivation of good time is unquestionably a matter of considerable
importance. The State reserves it as a sanction for serious
misconduct, and we should not unrealistically discount its
significance. But it is qualitatively and quantitatively different
from the revocation of parole or probation.

In striking the balance that the Due Process Clause demands,
however, we think the major consideration militating against
adopting the full range of procedures suggested by Morrissey for
alleged parole violators is the very different stake the State has in
the structure and content of the prison disciplinary hearing. That
the revocation of parole be justified and based on an accurate
assessment of the facts is a critical matter to the State as well as the
parolee; but the procedures by which it is determined whether the
conditions of parole have been breached do not themselves threaten
other important state interests, parole officers, the police, or
witnesses—at least no more so than in the case of the ordinary
criminal trial. Prison disciplinary proceedings, on the other hand,
take place in a closed, tightly controlled environment peopled by
those who have chosen to violate the criminal law and who have
been lawfully incarcerated for doing so. Some are first offenders,
but many are recidivists who have repeatedly employed illegal and
often very violent means to attain their ends. They may have little
regard for the safety of others or their property or for the rules
designed to provide an orderly and reasonably safe prison life.
Although there are very many varieties of prisons with different
degrees of security, we must realize that in many of them the
inmates are closely supervised and their activities controlled around
the clock. Guards and inmates co-exist in direct and intimate

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contact. Tension between them is unremitting. Frustration,
resentment, and despair are commonplace. Relationships among
the inmates are varied and complex and perhaps subject to the
unwritten code that exhorts inmates not to inform on a fellow
prisoner.

Id. at 560–62 (citations omitted). In discussing why inmates in particular were
not owed the right to confront and cross-examine witnesses, but parolees were
extended that protection, the Court said:

Confrontation and cross-examination present greater hazards to
institutional interests. If confrontation and cross-examination of
those furnishing evidence against the inmate were to be allowed as
a matter of course, as in criminal trials, there would be considerable
potential for havoc inside the prison walls. Proceedings would
inevitably be longer and tend to unmanageability. These procedures
are essential in criminal trials where the accused, if found guilty,
may be subjected to the most serious deprivations, Pointer v. Texas,
380 U.S. 400 (1965), or where a person may lose his job in society,
Greene v. McElroy, 360 U.S. 474, 496–497 (1959).

Id. at 567.
Five years after Wolff, the Court was again called upon to determine the
amount of procedural due process owed to inmates. In Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1 (1979), the Court answered the question
of how much due process was owed to inmates when they become eligible for
parole and the Board must make the purely discretionary call of granting or
denying parole. The Court stated that “[p]rocedures designed to elicit specific
facts, such as those required in Morrissey . . . and Wolff, are not necessarily
appropriate to a . . . parole determination.” Id. at 14. The Court found that
Nebraska’s scheme of providing the inmate with an informal process in which
the Board of Pardons and Paroles was able to interview the inmate met
constitutional scrutiny:

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At the Board’s initial interview hearing, the inmate is permitted to
appear before the Board and present letters and statements on his
own behalf. He is thereby provided with an effective opportunity
first, to insure that the records before the Board are in fact the
records relating to his case; and second, to present any special
considerations demonstrating why he is an appropriate candidate
for parole. Since the decision is one that must be made largely on
the basis of the inmate’s files, this procedure adequately safeguards
against serious risks of error and thus satisfies due process.

Id. at 15. The Court found that the Parole Board was not required to provide a
formal hearing or “to specify the particular ‘evidence’ in the inmate’s file or at
his interview on which it rest[ed] the discretionary determination” on, because
such would “provide at best a negligible decrease in the risk of error.” Id. at
14–16.
The Court again assessed the amount of process due to another class of
inmates the following year in Vitek v. Jones, 445 U.S. 480 (1980). In Vitek, a
Nebraska statute allowed for an inmate to be involuntarily transferred to a
mental hospital after a physician found that the inmate suffered from a mental
disease or defect and could not be given proper treatment in the prison. Id. at
483. Before being transferred under the Nebraska statute, prisoners were
provided with no process to contest the transfer. The prisoner in Vitek
challenged the constitutionality of the statute, arguing that he had a liberty
interest implicating the Due Process Clause of the Fourteenth Amendment in
not being transferred to a mental hospital.
The Vitek Court agreed that the prisoner had a liberty interest, stating
that “the stigmatizing consequences of a transfer to a mental hospital for
involuntary psychiatric treatment, coupled with the subjection of the prisoner
to mandatory behavior modification as a treatment for mental illness, constitute
the kind of deprivations of liberty that requires procedural protections.” Id. at
494. Upon reaching that conclusion, the Court found that the prisoner was owed

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the following process before he could be transferred to a mental hospital: (1)
written notice that a transfer to a mental hospital was being considered; (2) a
hearing, sufficiently after the notice, at which disclosure to the prisoner was
made of the evidence being relied upon and at which an opportunity to be heard
in person and to present documentary evidence was given; (3) an opportunity at
the hearing to present testimony of witnesses by the defense and to confront and
cross-examine witnesses called, unless good cause was shown for why such
confrontation and cross-examination should not be permitted; (4) an independent
decision maker; (5) a written statement by the fact finder as to the evidence
relied on and the reasons for action; (6) the availability of qualified and
independent assistance, which may be an attorney, but need not be; and (7)
effective and timely notice of all the foregoing rights. Id. at 494–95 (majority
opinion), 499–500 (Powell, J., concurring). Thus, except for the right to counsel,
the Vitek Court granted the inmate facing involuntary transfer to and
confinement in a mental hospital the full panoply of due process rights available
to a defendant facing a criminal trial. This exceeded the process allowed the
inmate seeking discretionary parole in Greenholtz, the inmate facing the loss of
good-time credits in Wolff, and even the parolee facing possible parole revocation
in Morrissey.
Four of the Justices were persuaded that the inmate in Vitek had a right
to counsel. Writing for the plurality, Justice White stated:

The District Court did go beyond the requirements imposed by prior
cases by holding that counsel must be made available to inmates
facing transfer hearings if they are financially unable to furnish
their own. We have not required the automatic appointment of
counsel for indigent prisoners facing other deprivations of liberty,
but we have recognized that prisoners who are illiterate and
uneducated have a greater need for assistance in exercising their
rights. A prisoner thought to be suffering from a mental disease or

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defect requiring involuntary treatment probably has an even greater
need for legal assistance, for such a prisoner is more likely to be
unable to understand or exercise his rights. In these circumstances,
it is appropriate that counsel be provided to indigent prisoners
whom the State seeks to treat as mentally ill.

445 U.S. at 496–97 (citations omitted). The majority, however, did not hold that
an inmate facing involuntary mental institution had a right to counsel. Instead,
the majority found that due process was satisfied by providing the inmate the
assistance of a “qualified and independent adviser who is not a lawyer.” Id. at
499 (Powell, J., concurring). Justice Powell, in his concurrence, wrote:

I do not believe, however, that an inmate must always be supplied
with a licensed attorney. . . . “Due Process has never been thought
to require that the neutral and detached trier of fact be law trained
or a judicial or administrative officer.” Parham v. J.R., 442 U.S. 584,
607 (1979). In that case, we held that due process is satisfied when
a staff physician determines whether a child may be voluntarily
committed to a state mental institution by his parents. That
holding was based upon recognition that the issues of civil
commitment “are essentially medical in nature,” and that “‘neither
judges nor administrative hearing officers are better qualified than
psychiatrists to render psychiatric judgments.’” Id., at 607, 609,
quoting In re Roger S., 19 Cal. 3d 921, 942, 569 P. 2d 1286, 1299
(1977) (Clark, J., dissenting).

In my view, the principle that due process does not always require
a law-trained decisionmaker supports the ancillary conclusion that
due process may be satisfied by the provision of a qualified and
independent adviser who is not a lawyer.

Id. (citations omitted). The Vitek Court ultimately adopted Justice Powell’s
position and only afforded the inmate the assistance of a qualified and
independent advisor. Id. at 497 (majority opinion).
Reading these four principal procedural due process cases clarifies the
spectrum of due process rights that the Court has developed. On one end of the

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spectrum is the consideration of discretionary parole in Greenholtz in which the
Court afforded minimal due process consisting essentially of an interview of the
inmate who has an opportunity to verify that the Board has his correct file
before it. In Wolff, when faced with the deprivation of good-time credits, the
Court granted the inmate slightly more procedural protections, including notice
of the violation and a limited right to present evidence at a hearing if safety and
correctional goals of the institution are not compromised. The Court found that
even more process was owed in Morrissey when the deprivation at issue
concerned parole revocation. And finally, in Vitek, except for the right to
counsel, the Court determined that the full panoply of due process was required
before involuntarily transferring a prisoner to a mental institution.
The Court has crafted this spectrum based on the specific factors
surrounding the deprivation at issue. When deprivation of the liberty interest
leads to stigmatizing and physically-invasive consequences, the Court grants
greater procedural protections, as it did in Vitek. See Wolff, 418 U.S. at 565–66.
However, where the rights of inmates are implicated, when providing additional
process creates security risks or provides a negligible decrease to the risk of
error, the Court is less willing to afford additional process. See id. at 562
(discussing security risks); Greenholtz, 442 U.S. at 14 (discussing risk of error).
If the deprivation of liberty will cause certain, immediate adverse consequences
to the parolee or prisoner, the Court provides more due process than when the
deprivation of liberty is uncertain and may occur at a later date. See Wolff, 418
U.S. at 560–61. Because fewer security concerns are at issue and the liberty
deprivations are more immediate and certain, the Court generally finds that
parolees are owed more process than inmates. See id. at 560; Morrissey, 408
U.S. at 489.
B.

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With this range of possible due process protections in mind, we must now
determine where on the spectrum Meza falls.
In evaluating this spectrum, we begin by concluding that the lowest level
of due process provided by the above discussed cases, the Greenholtz standard,
to be inapplicable in this case because of the distinction between the liberty
deprivations at issue. In Greenholtz, the Court considered the process due for
resolving an inmate’s claim to parole—a purely discretionary call by the Board.
Meza, on the other hand, is entitled under Texas law to be released under
mandatory supervision in 2002. If Meza failed to register as a sex offender
between 2002 and 2005, or does not participate in sex offender therapy
currently, he will immediately lose the mandatory supervision that Texas law
requires he receive.
Furthermore, the nature of the rights at issue makes the instant case
distinguishable from Greenholtz. Registering as a sex offender and participating
in sex offender therapy is highly stigmatizing and invasive. Being denied
discretionary parole is neither stigmatizing nor invasive. Therefore, because of
the differing nature of the rights, we find that the Greenholtz standard is
inapplicable in this case.
Having found the Greenholtz standard inapplicable, we next examine the
liberty deprivation at issue in Wolff. While there are numerous differences
between the loss of good-time credits and the imposition of sex offender
conditions, there are also similarities. In Wolff, prisoners were entitled to
receive good-time credits, see Wolff, 418 U.S. at 545 n.6, just as Meza was
entitled to be released on mandatory supervision. Thus, revoking a prisoner’s
good-time credits and imposing sex offender conditions on parole both have the
effect of inhibiting a liberty interest to which the inmate or parolee is entitled.
If Meza were an inmate instead of a parolee, the Wolff standard would
likely apply. Two circuits have so held. See Gwinn, 354 F.3d at 1219; Neal, 131

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F.3d at 831. Meza can claim at least the same process of an inmate, but as a
parolee, he should generally be entitled to more favorable treatment than
inmates. See Wolff, 418 U.S. at 560–62. Applying Wolff, we find that Meza is
owed, at a minimum: (1) written notice that sex offender conditions may be
imposed as a condition of his mandatory supervision, (2) disclosure of the
evidence being presented against Meza to enable him to marshal the facts
asserted against him and prepare a defense, (3) a hearing at which Meza is
permitted to be heard in person, present documentary evidence, and call
witnesses, (4) an impartial decision maker, and (5) a written statement by the
factfinder as to the evidence relied on and the reasons it attached sex offender
conditions to his mandatory supervision.14
We are persuaded that Meza is owed at least these protections because
under the Mathews v. Eldridge balancing test, these additional procedural
protections help create a constitutionally-permissible system. Disclosing to
Meza the evidence to be used against him greatly decreases the possibility that
the Board will rely on incorrect information inadvertently placed in Meza’s
packet. Allowing Meza to be heard in person decreases the possibility that the
Board will misinterpret any information provided in the packet. Further, it
provides the Board with the opportunity to evaluate Meza’s credibility in
resolving any factual disputes and allows an exchange between the Board and
Meza such that the Board can consider mitigating information and evaluate
Meza as a person. Providing a written statement as to the evidence relied upon
by the Board promotes fairness in the process; “the provision for a written record
helps to insure that administrators, faced with possible scrutiny by state officials

14
We note that the Board already provides parolees with written notice that sex
offender conditions may be imposed as a condition of parole. Similarly, the decision to impose
sex offender conditions is currently made by the Board, an impartial decision maker. The
other requirements listed here, however, are not currently part of the Board’s procedures.

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and the public, and perhaps even the courts, where fundamental constitutional
rights may have been abridged, will act fairly.” Wolff, 418 U.S. at 565.
It is true that these additional due process requirements will increase
costs to the State, but these increased costs are outweighed by the serious
deprivation to a parolee unjustly required to register as a sex offender or
participate in sex offender therapy. Moreover, we do not find the additional
costs imposed on the State to be overly burdensome given that these are the
same protections the State is constitutionally required to provide to inmates
facing the possible loss of good-time credits. The loss of good-time credits, as
Justice White articulated, is a significant loss, but it is less significant than
requiring a parolee to register as a sex offender or attend sex offender therapy.
“We can hardly conceive of a state’s action bearing more ‘stigmatizing
consequences’ than the labeling of a prison inmate as a sex offender.” Coleman
I, 395 F.3d at 223 n.27 (citing Neal, 131 F.3d at 829). Because Meza’s interest
in being free from sex offender conditions is greater than an inmate’s interest in
good-time credits, Meza is owed, at a minimum, the same process due to inmates
under Wolff.
In addition to the procedural protections discussed above, the district court
also granted two additional due process rights that were not granted to inmates
in Wolff: (1) the right to confront and cross-examine the State’s witnesses unless
good cause is shown and (2) the right to counsel. We examine each of these due
process rights to determine whether they should be afforded to Meza.
In Morrissey, when faced with the issue of parole revocation, the Court
granted the parolee the right to confront and cross-examine witnesses, unless
good cause was shown for why the parolee should not be allowed this procedural
protection. 408 U.S. at 489. The Wolff Court, however, denied inmates this
right, primarily because of the security threat the inmates posed inside the
prison walls. “If confrontation and cross-examination of those furnishing

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evidence against the inmate were to be allowed as a matter of course, as in
criminal trials, there would be considerable potential for havoc inside the prison
walls.” Wolff, 418 U.S. at 567. The safety concerns of Wolff are not present with
parolees because parolees cannot wreak the same havoc within prison walls that
inmates may cause. Thus, the Wolff rationale for not allowing confrontation and
cross-examination are inapplicable in the instant case and Meza should be
granted the right to confront and cross-examine adverse witnesses unless the
State can show good cause in a particular case why this right should not be
granted.
The district court also found that Meza was entitled to counsel. While the
right to counsel is a fundamental right for individuals facing criminal charges,
U.S. C ONST. amend. VI, the Court has declined to find it part of the panoply of
due process protections that must be automatically afforded parolees or inmates.
See Gagnon, 411 U.S. at 790 (finding that the need for counsel at parole
revocation hearings must be made on a “case-by-case basis”). In Vitek, when
examining the due process protections that should be afforded to inmates facing
involuntary confinement in a mental institution, the four members of the Court
who wanted to provide all inmates facing transfer to a mental hospital a right
to counsel reasoned that “[a] prisoner thought to be suffering from a mental
disease or defect requiring involuntary treatment probably has an even greater
need for legal assistance, for such a prisoner is more likely to be unable to
understand or exercise his rights.” Vitek, 445 U.S. at 496–97 (citations omitted).
In this case, the concerns of the plurality of the Vitek Court are not
present. No claim is made that Meza is suffering from a mental disease that
may cause him to be unable to understand or exercise his rights. Instead, he is
faced with the question of whether he can control his sexual desires such that
he is not a threat to society. Thus, the reasons the Vitek plurality would have
granted a right to counsel are not present. Given the substantial cost to the

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State to provide counsel to parolees facing registration and sex therapy and the
Supreme Court precedent discussed above, we conclude that the State is not
required to provide counsel to Meza.
In sum, we find that on the spectrum of due process rights afforded by the
Court in analogous cases, requiring a parolee who has not been convicted of a sex
offense to register as a sex offender or participate in sex offender therapy
requires more process than was provided to the inmate in Wolff, but less process
than was provided in Vitek. In other words, we find Meza is due: (1) written
notice that sex offender conditions may be imposed as a condition of his
mandatory supervision; (2) disclosure of the evidence being presented against
Meza to enable him to marshal the facts asserted against him and prepare a
defense; (3) a hearing at which Meza is permitted to be heard in person, present
documentary evidence, and call witnesses; (4) the right to confront and cross-
examine witnesses, unless good cause is shown why this right should not be
granted; (5) an impartial decision maker (which we assume the Board will be);
and (6) a written statement by the factfinder as to the evidence relied on and the
reasons it attached sex offender conditions to his mandatory supervision.

IV.
In addition to the aforementioned procedural due process claims, the
defendants and Meza raise additional separate arguments on appeal.
A.
The defendants argue that two individuals—Brad Livingston, the
Executive Director of the Department, and Stuart Jenkins, the Director of the
Department’s Parole Division—enjoy immunity under the Eleventh Amendment
and may not be sued. This argument is based on the assertion that Livingston
and Jenkins work for the Department and the Department does not have the

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authority to provide Meza with the type of hearing he requests. That authority,
the defendants allege, rests solely with the Board.
The State’s argument is without merit. The Department plays an integral
role in determining a prisoner’s mandatory supervision conditions. The
Department prepares the file reviewed by the Board. The Department orally
presents the packet to the Board. The Department controls the implementation
of many of the conditions, such as controlling when a parole officer escort is
available. Though the Board is the entity that makes the final decision
regarding a parolee’s conditions of parole or mandatory supervision, the
Department plays a key role in helping the Board reach that determination, and
thus should also be accountable for any constitutional violations that may exist.
Under Ex Parte Young, a state official may be sued in his official capacity
for injunctive relief without violating the Eleventh Amendment. 209 U.S. 123,
159–60 (1908). In this case, because the Department plays an integral role in
determining and executing a prisoner’s mandatory supervision conditions, Meza
may seek injunctive relief against Livingston and Jenkins; they do not enjoy
Eleventh Amendment immunity.
B.
Meza argues that he has an equal protection claim against the defendants
under the class-of-one theory. He also asserts that he has a liberty interest in
three non-sex offender conditions—(1) requiring him to reside at TCCC pursuant
to the Super Intensive Supervision Program (“SISP”), (2) requiring him to have
a parole escort to leave TCCC pursuant to Special Condition O.99, and (3)
prohibiting him from entering “child safety zones” pursuant to SISP—as well as
a liberty interest in the imposition of all of these conditions together.
The district court did not consider Meza’s equal protection claim or non-sex
offender due process claims. Instead, the court stated: “Because the Court has
concluded that Coleman’s ‘appropriate hearing’ mandate requires more robust

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procedural protections than the State’s current Coleman review, the Court does
not today reach these remaining claims and will dismiss them without
prejudice.” Meza, 623 F. Supp. 2d at 797.
Although Meza’s equal protection and due process claims for the non-sex
offender conditions are not patently frivolous, they have not been developed by
the district court and “[p]rudence dictates that we allow the lower court[] to
consider [these] question[s] in the first instance.” Austin v. United States, 509
U.S. 602, 622–23 (1993); accord United States v. 92,203.00 in United States
Currency, 537 F.3d 504, 510 (5th Cir. 2008). Thus, we vacate the district court’s
dismissal without prejudice on these claims and remand those issues to the
district court to decide in the first instance.

CONCLUSION
For the forgoing reasons, we find that Meza has a liberty interest in being
free from sex offender registration and therapy, and this interest is significant.
When Meza’s interest is balanced against the State’s significant interest in not
incurring additional costs, and the high risk of error that may occur based on the
State’s current due process protections, we find that the State’s procedures do
not satisfy constitutional due process. Instead, the State must afford Meza the
following procedure: (1) written notice that sex offender conditions may be
imposed as a condition of his mandatory supervision; (2) disclosure of the
evidence being presented against Meza to enable him to marshal the facts
asserted against him and prepare a defense; (3) a hearing at which Meza is
permitted to be heard in person, present documentary evidence, and call
witnesses; (4) the right to confront and cross-examine witnesses, unless good
cause is shown; (5) an impartial decision maker; and (6) a written statement by
the factfinder as to the evidence relied on and the reasons it attached sex
offender conditions to his mandatory supervision. Additionally, we find that

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No. 09-50367

defendants Livingston and Jenkins do not enjoy qualified immunity under the
Eleventh Amendment.
As such, we AFFIRM the district court’s conclusion as to the process the
State must furnish Meza in all respects except that we do not agree that the
State is required to provide Meza with counsel. Further, we VACATE the
district court’s order dismissing without prejudice Meza’s equal protection and
due process claims relating to the non-sex offender conditions attached to his
mandatory supervision and REMAND those issues to the district court to decide
in the first instance. We remand the case for entry of an order consistent with
this opinion and further proceedings as required.
AFFIRMED, in part,
VACATED, in part,
and
REMANDED.

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No. 09-50367

WIENER, Circuit Judge, concurring in part and dissenting in part.

I concur in the entirety of the panel majority’s Opinion with one exception:

I must dissent from its failure to specify that qualified and independent

assistance — which may be an attorney, but need not be, as spelled out in Vitek

for mentally impaired inmates — must be afforded to a non-sex offender parolee

like Meza. The class comprising parolees who have never been convicted of sex

offenses should be entitled to no less process than is afforded to the class

comprising inmates who will remain in custody and merely face transfer from

a prison to a mental institution. The disparity in the level of the liberty interest

of parolees vis a vis that of inmates is significantly greater than the disparity in

the relatively small, secondary liberty interest of inmates who, like the one in

Vitek, merely face being transferred from prison to a mental institution. In

comparison, the need for qualified and independent non-lawyer assistance by a

mentally competent parolee might well equal or even exceed the need for such

assistance by many an inmate with mental issues. Indeed, the case can be made

for the proposition that a substantial majority of mentally competent former

inmates who are on parole are nevertheless so limited intellectually and so

under-educated that their need of such assistance is at least as great as that of

many mentally disturbed inmates. When considered in light of the Supreme

Court’s recognition that the label of sex-offender is the most stigmatizing of all

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No. 09-50367

those encountered in any of these cases, the panel majority’s failure to afford

non-attorney assistance to parolees like Meza cannot be justified, particularly

given that such assistance can be provided by the State with relatively little

difficulty and at relatively modest cost. Because I conclude that failure to

require such assistance for non-sex offender parolees like Meza violates their

Due Process rights, I respectfully dissent from the otherwise proper holding of

the panel majority.

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