On Tuesday, August 9, 2022, the U.S. District Court for the Western District of Texas, in an opinion written by U.S. District Judge Lee Yeakel, declared the Texas Department of Public Safety’s policy of classifying a person to be “extra-jurisdictional sex offender,” without first affording the person a pre-determination hearing (including notice and an opportunity to be heard), violates the right to procedural due process guaranteed by the Fourteenth Amendment to the U.S. Constitution. The case is Pierre v. Vasquez.
As some of you may know, the Texas Board of Pardons and Paroles, after the decision in Coleman v. Dretke, which was decided in 2005, has been required to comply with this constitutional principle for 17 years. However, the Texas Department of Public Safety has essentially thumbed its nose at Texas’ federal courts since the Coleman decision, and it has been happy to repeatedly lose case after case in federal court and merely pay out attorney’s fees to plaintiffs’ attorneys. Preferring to waste large sums of taxpayer dollars rather than comply with the U.S. Constitution, the Department, and its Director (Colonel Steven McCraw of Uvalde, Texas, infamy), has never changed its unconstitutional policy. It MUST do so now, as Judge Yeakel’s ruling expressly states it not only applies to Mr. Pierre, but it also applies “to those similarly situated to Pierre.”
This case, Pierre v. Vasquez, is significant; and it should force the Texas Department of Public Safety to refrain from making anymore “extra-jurisdictional sex offender” determinations until the Texas Legislature enacts a new law authorizing and funding hearings by the Department of Public Safety for this purpose. That may not occur, and perhaps cannot occur, until the next session of the Texas Legislature, and the next session does not begin until January of 2023.
More importantly, in the future, persons who otherwise would have been subjected to being arbitrarily classified as an “extra-jurisdictional sex offender” by the Texas Department of Public Safety and its “Sex Offender Registration Bureau,” without being provided with an opportunity to explain why the law does not authorize such a determination, will now be entitled to a pre-determination hearing before a neutral decisionmaker. I consider this an important, but very long-overdue, change in the abuse Texans have experienced since the sex offender registration regime was first enacted in Texas. We all should celebrate this result.
