an act is ministerial “where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment”
How later courts described this case
- an act is ministerial “where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment”
Written by the judges who cited it.
The opinion
WR-83,995-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/12/2015 12:00:12 PM
Accepted 10/12/2015 12:01:00 PM
ABEL ACOSTA
Nos. WR-83,995-01 and WR-83,995-02 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, RECEIVED
AT AUSTIN
COURT OF CRIMINAL APPEALS
10/12/2015
In re James Emil Tout ABEL ACOSTA, CLERK
Relator
Application for Writs of
Mandamus & Prohibition
Respectfully submitted by,
Gary J. Cohen
The Cohen Law Firm
9300 Research Blvd, Suite 300
Austin, Texas 78759-6553
garycohen@parolelaw.com
Tel. (512) 476-6201
Fax: (512) 477-5773
State Bar Card No. 04508300
David A. Schulman John G. Jasuta
Attorney at Law Attorney at Law
zdrdavida@davidschulman.com lawyer1@johnjasuta.com
State Bar Card No. 17833400 State Bar No. 10592300
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Attorney for Relator
Issue Presented
Whether an individual released on parole may be punished by
the Parole Division (“the Division”) of the Texas Department of
Criminal Justice (“TDCJ”), and the Board of Pardons & Paroles
(“the Board”) solely for having exercised his rights under the Fifth
and Fourteenth Amendments to the Constitution of the United
States.
i
Identity of Parties and Counsel
Pursuant to the Rules of Appellate Procedure
(“Tex.R.App.Pro.”), the following is a complete list of the names and
addresses of all parties to this cause so the members of the Court
may at once determine whether they are disqualified to serve or
should recuse themselves from participating in the decision of the
case:
Relator
James Emil Tout
TDCJ No. 1507933
West Texas Intermediate Sanctions Facility
2002 Lamesa Hwy.
Brownfield, Texas 79316
Represented by:
Gary J. Cohen
The Cohen Law Firm
9300 Research Blvd, Suite 300
Austin, Texas 78759-6553
garycohen@parolelaw.com
Tel. (512) 476-6201
Fax: (512) 477-5773
State Bar Card No. 04508300
David A. Schulman John G. Jasuta
Attorney at Law Attorney at Law
zdrdavida@davidschulman.com lawyer1@johnjasuta.com
State Bar Card No. 17833400 State Bar No. 10592300
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Identity of Parties and Counsel
ii
(CONT)
Respondents
David Gutiérrez Stuart Jenkins
Chairman Director
Board of Pardons & Paroles Parole Division of TDCJ
Post Office Box 13401 Post Office Box 13401
Austin, Texas 78711-3401 Austin, Texas 78711
Represented by: Represented by:
Bettie Wells Sharon Felfe Howell
General Counsel General Counsel
Post Office Box 13401 Post Office Box 4004
Austin, Texas 78711-3401 Huntsville, Texas 77342
iii
Table of Contents
Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Relator Has No Adequate Remedy at Law. . . . . . . . . . . . . 4
The Act Sought to Be Compelled is Purely Ministerial
and Relator Has a Clear Right to Relief. . . . . . . . . . . . . . . 7
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 21
iv
Index of Authorities
Federal Cases:
Gagnon v. Scarpelli, 411 U.S. 778 (1973). . . . . . . . . . . . . . 15
Hoffman v. United States, 341 U.S. 479 (1951). . . . . . . 10, 17
Lefkowitz v. Cunningham, 431 U.S. 801 (1977).. . . . . . 11, 17
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). . . . . . . . . . . 9, 15
Minnesota v. Murphy, 465 U.S. 420 (1984). . . . . . . . 9, 10, 17
Moore v. Commissioner of Internal Revenue,
722 F.2d 193 (5th Cir. 1984). . . . . . . . . . . . . . . 10, 11, 17
Morrissey v. Brewer, 408 U.S. 471 (1972). . . . . . . . . . . . . . . 8
Texas Cases:
Banales v. Thirteenth Court of Appeals,
93 S.W.3d 33 (Tex.Cr.App. 2002). . . . . . . . . . . . . . . . . . . 3
Bowen v. Carnes, 343 S.W.3d 805 (Tex.Cr.App. 2011). . . . . . 4
Buntion v. Harmon, 827 S.W.2d 945 (Tex.Cr.App. 1992). . . . 5
Chapman v. State, 115 S.W.3d 1 (Tex.Cr.App. 2003). . . . . . . 9
Dansby State, 448 S.W.3d 441 (Tex.Cr.App. 2014). . . . . . 2, 14
v
Index of Authorities
(CONT)
Texas Cases (CONT):
Dansby v. State, 05-10-00866-CR
(Tex.App. - Dallas; Apr. 9, 2012). . . . . . . . . . . . . . . . . . . 12
Dansby v. State, 05-10-00866-CR
(Tex.App. - Dallas; January 22, 2014) . . . . . . . . . . . . . . 13
Dansby v. State, 05-10-00866-CR
(Tex.App. - Dallas; June 15, 2015) . . . . . . . . . . . . . . . . . 14
Dansby v. State, 398 S.W.3d 233 (Tex.Cr.App. 2013). . . . . . 13
Ex parte Arnone, WR-60,218-02
(Tex.Cr.App. October 7, 2015). . . . . . . . . . . . . . . . . . . . . . 9
Ex parte Evans, 964 S.W.2d 643 (Tex.Cr.App. 1998). . . . . . . 5
Ex parte Taylor, 957 S.W.2d 43 (Tex.Cr.App. 1997). . . . . . . . 5
Ex parte Woodward, 619 S.W.2d 179 (Tex.Cr.App. 1981). . . 5
In re Bonilla, 424 S.W.3d 528 (Tex.Cr.App. 2014).. . . . . . . . . 7
In re McCann, 422 S.W.3d 701 (Tex.Cr.App. 2013). . . . . . . . . 4
In re State ex rel. Weeks,
391 S.W.3d 117 (Tex.Cr.App. 2013). . . . . . . . . . . . . . . 4, 7
State ex rel Curry v. Gray,
726 S.W.2d 125 (Tex.Cr.App. 1987). . . . . . . . . . . . . . . . . 7
vi
Index of Authorities
(CONT)
Texas Cases (CONT):
State ex rel. Hill v. Fifth Court of Appeals,
34 S.W.3d 924 (Tex.Cr.App. 2001). . . . . . . . . . . . . . . . . . 3
State ex rel. Holmes v. Third Court of Appeals,
885 S.W.2d 389 (Tex.Cr.App. 1994). . . . . . . . . . . . . . . . . 4
State ex rel. Lykos v. Fine,
330 S.W.3d 904 (Tex.Cr.App. 2011). . . . . . . . . . . . . . . . . 4
Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App. 1988). . . . 5
Stotts v. Wisser, 894 S.W.2d 366 (Tex.Cr.App. 1995). . . . . . . 4
Texas Dept. Of Corrections v. Dalehite,
623 S.W.2d 420 (Tex.Cr.App. 1981). . . . . . . . . . . . . . . 7, 8
Constitution of the United States:
Fifth Amendment. . . . . . . . . . . . . . . . . . . i, 2, 9, 12-15, 18
Fourteenth Amendment. . . . . . . . . . . . . . i, 2, 9, 12-15, 18
Texas Statutes & Codes:
Code of Criminal Procedure
Article 11.07 § 3, et seq., C.Cr.P.. . . . . . . . . 3, 5, 6, 17
vii
Nos. WR-83,995-01 and WR-83,995-02
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
In re James Emil Tout
Relator
Application for Writs of
Mandamus & Prohibition
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, James Emil Tout (“Relator”), by and through
his undersigned attorneys, Gary A. Cohen, John G. Jasuta, and
David A. Schulman, complaining of the actions of the Division and
the Board, and requesting that this Honorable Court issue its
writs of mandamus and prohibition, directed to the said
Respondents, and in support of such application would
respectfully show the Court as follows:
Statement of Facts
Relator was arrested in Williamson County for Driving While
Intoxicated on March 15, 2008. He pled guilty and was sentenced
to confinement for eight (8) years in the Texas Department of
1
Criminal Justice. Applicant was paroled on May 21, 2012, and,
having previously been convicted of attempted sexual assault of a
child, was placed on the “sex offender caseload.”
In July of 2015, Applicant was provided with notice of a
violation of the terms of his parole based on the invocation of his
Fifth Amendment rights as regards a polygraph examination. On
July 17, 2015, a hearing was conducted on the parole division's
request to revoke parole. After being given a copy of the opinion
in Dansby v. State, 448 S.W.3d 441 (Tex.Cr.App. 2014), and
related opinions, the hearing officer found no violation and
Applicant was released.
Almost immediately, Applicant was served with notice of
another scheduled polygraph. He reported as required, but again
invoked his Fifth Amendment right against self-incrimination. The
parole division then sought, once again, to revoke Applicant’s
parole, to punish him for the invocation of his Fifth Amendment
rights in regards to the polygraph examination.
2
Following a hearing on September 2, 2015, on the parole
division's request to revoke Applicant’s parole, the Board of
Pardons and Paroles ordered that Applicant be confined in an
intermediate sanctions facility (“ISF”). He is currently confined in
the West Texas ISF in Brownfield, Texas.
On October 6, 2015, Relator filed a post-conviction
Application for writ of habeas corpus under Article 11.07 § 3, et
seq., C.Cr.P. That application remains pending.
Argument & Authorities
To demonstrate an entitlement to mandamus relief, a relator
must demonstrate that he has “no adequate remedy at law” and
“the act sought to be compelled [was] purely ministerial.” State ex
rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 926-927
(Tex.Cr.App. 2001); Banales v. Thirteenth Court of Appeals, 93
S.W.3d 33, 34 (Tex.Cr.App. 2002).
[B]efore this Court will exercise its general mandamus power, we look to see
whether applicants have an adequate remedy at law, and whether the act they
seek to compel or prohibit is either purely ministerial, is to set aside an
unauthorized order, or else is the only act discretion will allow under the law and
the facts.
3
State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d
389, 408 (Tex.Cr.App. 1994); see also, Bowen v. Carnes, 343
S.W.3d 805 (Tex.Cr.App. 2011). Thus, in order to be entitled to
mandamus relief, Relator must show two things:
Ø that he has no adequate remedy at law, and
Ù that what he seeks to compel is a ministerial act.
In re State ex rel. Weeks, 391 S.W.3d 117, 121-122 (Tex.Cr.App.
2013). Similarly, prohibition relief is available only if the relator
shows that he has a clear right to the relief sought and no other
adequate legal remedy is available. See In re McCann, 422 S.W.3d
701, 704 (Tex.Cr.App. 2013); State ex rel. Lykos v. Fine, 330
S.W.3d 904, 907 (Tex.Cr.App. 2011).
Relator Has No Adequate Remedy at Law
It is clear that the regular appellate process (i.e., “direct
appeal”) “does not provide an adequate remedy even if it results in
a reversal and new trial.” Bowen, 343 S.W.3d at 813; see also
Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex.Cr.App. 1995);
4
Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex.Cr.App. 1992);
Stearnes v. Clinton, 780 S.W.2d 216, 225 (Tex.Cr.App. 1988).
A post-conviction application for writ of habeas corpus under
Art. 11.07 § 3, et seq., C.Cr.P., is the only procedural mechanism
for a person challenging confinement resulting from a final
conviction. Ex parte Woodward, 619 S.W.2d 179 (Tex.Cr.App.
1981). Claims that an individual has been denied due process in
the parole revocation process are cognizable in habeas corpus
proceedings under Article 11.07, C.Cr.P. Ex parte Evans, 964
S.W.2d 643, 646-647 (Tex.Cr.App. 1998); Ex parte Taylor, 957
S.W.2d 43 (Tex.Cr.App. 1997).
Thus, the only “legal remedy” available to Relator by which he
could challenge the legality of his current confinement would be
an application for post-conviction writ of habeas corpus under
Article 11.07, C.Cr.P. Like direct appeal, the “remedy” of post-
conviction habeas corpus, Relator asserts, is not an adequate
remedy within the meaning of the Court’s case law.
5
Even presuming that the potential delay involved in litigation
under Article 11.07, C.Cr.P., is insufficient to warrant the
issuance of mandamus/prohibition writs, there is a more
compelling reason. As is evidenced by this case, there is nothing
in the parole procedures which protects Relator from having to
relitigate these claims. Certainly the intent of both the division
and the Board to continue their actions have been clearly shown
in their continuing the unconstitutional demands for polygraph
examinations in this case.1
Relator was forced to litigate the issue during his residency in
Bell County. Despite his successful efforts in the parole revocation
held on July 17, 2015, Relator was forced to relitigate the same
issues in a revocation hearing on September 2, 2015.
Additionally, as the Court is well aware, unless and until
there is a published opinion on a given issue, both the Division
and the Board will continue to operate as if there was no such
1
Relator has received anecdotal information indicating that there are hundreds
of Texas parolees in the same circumstance as Relator.
6
opinion. Thus, the greater likelihood is that, even if Relator is
successful in the current habeas corpus litigation, he may be
forced to litigate the issue once again, unless the Division and the
Board are expressly forbidden from renewing their
unconstitutional efforts.
The Act Sought to Be Compelled is Purely Ministerial and
Relator Has a Clear Right to Relief
“An act is ‘ministerial’ if it constitutes a duty clearly fixed and
required by law.” State ex rel Curry v. Gray, 726 S.W.2d 125,
128 (Tex.Cr.App. 1987). It must be “accomplished without the
exercise of discretion or judgment.” Gray, 726 S.W.2d at 128.
The ministerial-act requirement is satisfied if the relator can
show a clear right to the relief sought. In re Bonilla, 424 S.W.3d
528, 533 (Tex.Cr.App. 2014). “A clear right to relief is shown when
the facts and circumstances dictate but one rational decision
under unequivocal, well-settled (i.e., from extant statutory,
constitutional, or case law sources), and clearly controlling legal
principles.” Weeks, 391 S.W.3d at 122; see also Texas Dept. Of
7
Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Cr.App.
1981)(an act is ministerial “where the law clearly spells out the
duty to be performed . . . with such certainty that nothing is left
to the exercise of discretion or judgment”). In the instant case,
Relator has a clear right to relief.
That a parolee is entitled to due process in a parole revocation
is without question. See Morrissey v. Brewer, 408 U.S. 471
(1972). Proceedings at a revocation hearing fall within the
protection of the Due Process Clause of the Fourteenth
Amendment. Morrissey v. Brewer, 408 U.S. at 482-483. Relator
asserts that any sanction imposed solely because of the exercise
of one’s constitutional right to remain silent denies that person
due process in violation of both Morrissey v. Brewer and the
Fourteenth Amendment. In the instant case, Relator’s rights to
due process have been violated, because he has been deprived of
his valuable liberty interest by being sent to an “Intermediate
Sanction Facility” (“ISF”) solely as punishment for his having
exercised his constitutional right to remain silent.
8
The Fifth Amendment privilege against self-incrimination
protects a person, including a person on community supervision,
from being required to provide information that would tend to
incriminate him. Chapman v. State, 115 S.W.3d 1, 5-6
(Tex.Cr.App. 2003).2 “He may choose to remain silent rather than
to respond to questions when the answers to those questions
would tend to incriminate him.” Chapman, 115 S.W.3d at 5. This
privilege permits a person “not to answer official questions put to
him in any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal
proceedings.” Chapman, 115 S.W.3d at 5, quoting Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973).
The State may not require a defendant on community
supervision “to choose between making incriminating statements
and jeopardizing his conditional liberty by remaining silent.”
2
See also Ex parte Arnone, WR-60,218-02 (Tex.Cr.App. October 7, 2015)(not
designated for publication)(slip op. at 2), in which the Court of Criminal Appeals
vacated a more than 12 year old conviction because “the adjudication of
Applicant’s guilt was his dismissal from sex offender treatment which was based
on failing two polygraph tests.”
9
Minnesota v. Murphy, 465 U.S. 420, 436 (1984). There are two
components to the exercise of the privilege against
self-incrimination: risk of incrimination and compulsion to
answer. See Murphy, 465 U.S. at 426. For there to be a risk of
incrimination, “it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could
result.” Hoffman v. United States, 341 U.S. 479, 486-487 (1951).
The risk of incrimination exists if the person “has reasonable
cause to apprehend danger from a direct answer.” Hoffman, 341
U.S. at 486. The privilege extends to disclosures that would
themselves support a conviction and “likewise embraces those
which would furnish a link in the chain of evidence needed to
prosecute the claimant . . ..” Hoffman, 341 U.S. at 486. The
privilege “applies only when the possibility of self-incrimination is
a real danger, not a remote and speculative possibility . . ..” Moore
v. Commissioner of Internal Revenue, 722 F.2d 193, 195 (5th
10
Cir. 1984). The compulsion element is satisfied when the
government threatens to inflict “potent sanctions” unless the
privilege is surrendered, or when the government threatens to
impose substantial penalties because a person elects to exercise
the privilege. Lefkowitz v. Cunningham, 431 U.S. 801, 805
(1977).
Relative to the Court’s inquiry is the case of Michael Edward
Dansby, Sr. In 2008, he pled guilty to the offense of indecency
with a child based on a 2005 assault on his granddaughter. The
trial court placed Dansby on five years of deferred-adjudication
community supervision and order him to comply with “sex
offender terms and conditions.”
Dansby complied with the vast majority, if not all, of the
requirements of his community supervision, except that he refused
to answer questions about his victims other than the complainant
in this case. Based on this refusal, he was determined to have
failed to participate fully in his treatment.
11
In August 2009, the State filed a motion to revoke Dansby’s
community supervision, and, based on his refusal to submit to the
polygraph examination as required, the trial court adjudicated
Dansby’s guilt. At the sentencing hearing, appellant acknowledged
that he understood that the modified conditions required him to
take and pass a polygraph examination as to his sexual history,
but he did not concede that he had agreed to forfeit his Fifth
Amendment rights. After revoking his community supervision, the
trial court sentenced appellant to eighteen years’ imprisonment.
On direct appeal, the Court of Appeals determined that the
trial court’s revocation of Dansby’s community supervision was
premised on reasons other than his invocation of the Fifth
Amendment, and it did not reach the merits of his Fifth
Amendment challenge. Dansby v. State, 05-10-00866-CR
(Tex.App. - Dallas; Apr. 9, 2012)(“Dansby I”)(not designated for
publication). The Court of Criminal Appeals reversed the
judgment of the Court of Appeals, however, holding that the Court
of Appeals had erred by concluding that Dansby’s discharge from
12
the sex offender treatment program was not a product of his
invocation of his Fifth Amendment privilege. Dansby v. State, 398
S.W.3d 233, 239, 242-243 (Tex.Cr.App. 2013)(“Dansby II”).
On remand, the Court of Appeals held that, because Dansby
did not object to the specific conditions of community supervision
at the time they were imposed or at any time prior to the filing of
the State’s motion to adjudicate, he forfeited his complaint that
the conditions violated his constitutional rights under the Fifth
Amendment. Dansby v. State, 05-10-00866-CR (Tex.App. -
Dallas; January 22, 2014)(“Dansby III”)(not designated for
publication).
Dansby again sought discretionary review, challenging the
Court of Appeals’ opinion on remand by asserting that he lacked
notice that the trial court’s conditions of community supervision
would require him to abandon his Fifth Amendment constitutional
right. The Court of Criminal Appeals granted Dansby’s petition
and again disagreed with the Court of Appeals’ analysis. The
Court determined that Dansby “was not placed on fair notice that
13
he would be required to waive his Fifth Amendment right as part
of” the conditions of community supervision. The court concluded
that Dansby “did not forfeit his complaint that his Fifth
Amendment rights were violated by his refusal to answer
questions during sex-offender counseling and a polygraph
examination about sexual-assault victims other than the
complainant in this case.” Dansby v. State, 448 S.W.3d 441, 452
(Tex.Cr.App. 2014)(“Dansby IV”).
On second remand, the Court of Appeals found that the
revocation of Dansby’s community supervision and the
adjudication of his guilt were the direct result of the violation of
his Fifth Amendment privilege not to provide information that
could be used to prosecute him. Dansby v. State, 05-10-00866-
CR (Tex.App. - Dallas; June 15, 2015)(“Dansby V”). Ultimately,
the Court of Appeals held that Dansby’s term of deferred
adjudication community supervision had to be reinstated. Dansby
V, slip op. at 15.
14
Based on the above and foregoing state and federal cases, it
is clear that a probationer has a right, under the Fifth and
Fourteenth Amendments to the Constitution of the United States
not be compelled to submit to a polygraph examination, when to
do so will require him to waive his asserted right against self-
incrimination. More specifically, a probationer retains the
privilege enjoyed by all citizens to refuse “to answer official
questions put to him in any . . . proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings.” Turley, 414 U.S. 70 at 77.
Accordingly, the next question is whether a parolee has the same
rights under the Fifth and Fourteenth Amendments to the
Constitution of the United States as a probationer.
Relator asserts that there is no difference between the parole
and probation revocation processes, as participants in both
processes enjoy a protectible liberty interest, safeguarded by the
Due Process Clause. Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973). Consequently, although on parole rather than probation,
15
Relator retained his constitutional right against self-incrimination.
Further, Relator would show that a State’s efforts to require
participation in polygraph testing constitutes impermissible
compulsion.
There are two important factors the Court should consider.
First, prior to the action of the Parole Division and the Parole
Board about which complaint is made, although “confined” in the
legal sense of being on parole, Relator was not physically confined.
He lived in the “free world,” albeit with the restrictions of being on
parole and the sex offender caseload. Relator has now been
deprived of his liberty and is physically confined in a TDCJ facility
nearly 400 miles away from where he was residing when the
events relevant to this litigation occurred. Second, the action
taken by the Parole Division and the Parole Board is, and was
designed “to punish, rehabilitate or reform an offender,” in
response to his failure to submit to the polygraph examination.3
3
See page three (3) of the “Board Policy” on the “Special Condition “ISF”
(Intermediate Sanction Facility)” dated September 1, 2015, attached as Exhibit “A”
hereto, and incorporated by reference the same as if fully copied and set forth at
length.
16
Conclusion
Other than his refusal to participate in a mandatory
polygraph examination, Applicant has fully complied with the
terms and conditions of his release on parole. As set out in
Murphy, and Hoffman, supra, the policy of the Parole Division
and the Parole Board, requiring all parolees on the “sex offender
caseload” to submit to polygraph examinations, without any offer
or agreement of immunity, constitutes compulsion, as set out in
Moore v. IRS, and Lefkowitz v. Cunningham, supra. Based on
his refusal to participate in a polygraph examination, Applicant’s
parole status has been dramatically modified, and he has been
removed from his home and family and been placed in a TDCJ
facility - i.e., a prison. Additionally, the actions of the Parole
Division and Parole Board are not incentives, but are designed to
be and are punishment for the exercise of Applicant’s
constitutional right to remain silent.
Relator’s only “remedy” is his application for post-conviction
writ of habeas corpus under Article 11.07 § 3(c), C.Cr.P., but it is
17
an inadequate remedy, due to the statutory time restrictions and
the possibility of repetition. The only possible review is via
application for writs of mandamus and/or prohibition to this
Court. Consequently, Relator has no adequate remedy at law.
Because their actions in seeking to require Relator to waive
his rights under the Fifth and Fourteenth Amendments to the
Constitution of the United States or be confined, violate Relator’s
right to Due Process of Law, withdrawal of the motion for
revocation and order confining Relator to an ISF constitutes a
ministerial act. Thus, Relator is entitled to the Court’s writ of
mandamus.
Further, because the actions of the Division and the Board
detailed herein violate Relator’s rights under the Fifth and
Fourteenth Amendments to the Constitution of the United States,
Relator is entitled to the issuance of a writ of prohibition,
preventing the Division and the Board from engaging in such
behavior in the future. Relator is entitled to the Court’s writ of
prohibition.
18
19
Prayer
Relator respectfully prays this Court to enter an Order
conditionally granting the requested writs of mandamus and
prohibition.
Respectfully submitted,
Gary J. Cohen John G. Jasuta
Attorney at Law Attorney at Law
The Cohen Law Firm 1801 East 51st St. Ste 365-474
9300 Research Blvd, Suite 300 Austin, Texas 78723
Austin, Texas 78759-6553 Tel. 512-474-4747
Tel. (512) 476-6201 Fax: 512-532-6282
Fax: (512) 477-5773 lawyer1@johnjasuta.com
garycohen@parolelaw.com State Bar No. 10592300
State Bar Card No. 04508300
__________________________________
David A. Schulman
Attorney at Law
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
zdrdavida@davidschulman.com
State Bar Card No. 17833400
Attorney for Relator, James Emil Tout
Certificate of Compliance and Delivery
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This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 3,131 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
October 12, 2015, a true and correct copy of the above and
foregoing “Application for Writs of Mandamus & Prohibition” was
transmitted via the eService function on the State's eFiling portal,
to John Presa (jprezas@wilco.org), Assistant District Attorney for
Williamson County; Bettie Wells (bettie.wells@tdcj.texas.gov),
general counsel for the Board of Pardons & Paroles; and Sharon
Felfe Howell (sharon.howell@tdcj.state.tx.us), general counsel for
the Texas Department of Criminal Justice.
______________________________________
David A. Schulman
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Exhibit “A”
TEXAS BOARD Number: BPP-POL. 145.267
OF September 1, ~015
PARDONS AND PAROLES 1 of3
Sunersedes: BPP-POL. 04-06.02
Dated June 16, 2004
BOARD POLICY
SUBJECT: SPECIAL CONDITION "ISF" (INTERMEDIATE SANCTION
FACILITY)
PURPOSE: To establish "ISF"-Intermediate Sanction Facility-as a special condition of
parole or mandatory supervision.
AUTHORITY: Texas Government Code Sections508.0441, 508.045, 508.221, 508.281,
508.2811, and 508.283
Texas Administrative Code Title 37, Part V, Chapter 146
DISCUSSION: Members of the Texas Board of Pardons and Paroles (Board) and Parole
Commissioners determine conditions of parole and mandatory supervision.
Except in special circumstances, Board Members and Parole Commissi~mers act
in panels comprised of three persons, and panel decisions are made by majority
vote. The Presiding Officer designates the composition of the parole panels.
Special conditions are conditions imposed in addition to the standard conditions
of parole or mandatory supervision. Unless otherwise provided, any condition
may be imposed before or after release and shall remain in effect until
specifically removed by a parole panel.
POLICY: Special condition "ISF" represents a cooperative effort between the Board, the
Texas Department of Criminal Justice Parole Division (Division), Texas
Department of Criminal Justice Corrections Institutional Division and private
vendors to assist the offender with the successful reintegration into society.
Speo~al condition "lSF" is intende<i to afford 'tl sanctidtJ, fot an~Dffender who
fails to comply with the terms and conditions of release to parole or
mandatory supervision. The sanction shall be i~ ,~!',,': pf:1~'1t~~~!i!~;;~1S)f
confinement in a facility r the terms and conditions 'J)tov ded bf this iilid
.the Division's policy procedures following a hearing or proceedings
concerning alleged violations under Chapter 146 of the Board rules.
BPP-POL• .145~267
Page2 of3
q:11e.goal <>f the parole. paJ'\eL'.i~.posed .spe<;:ial ~on4lti<:>,n ''1'6F';'iS to provide a
saitction .that wUl .sewe to p1;1wish; .teh~b.ilitate ·or· tefofl1l atr offender for a
vfolation ·of the conditions of release to parole or mandatory. supervision. The
ISP sanction shall result in a period of confinement under the terms and
conditions outlined in this policy. An offender sha.ll return to active
supewision upon successful completion of special condition "'ISF ."
·· Atany time:tliis .~onditkm is.in ~tf~4 .to .Jhe exie.nt direotedin wrlti!ag, ;aq,
cil'.fen(ie'f 'sh:atf oo'thply ··with··tlie..terms c&t1ditfons· :<)f·ith'e ·ISf5 rcotiYrmement.·
·Failure to :.,abiae. bf ·tlle .tule$ and ~gulatfons;·. ·of an·:'ISF. dwlhg :the period ·?f·
c;onfinement may ·result in .~ .subseqµtmf ~view by a ·pamle p®eJ·at11\t fUrt:hit
aqtiij~J(~!~~t.ed following •a be~ing or proceidings oonceming the altl(ged: ·
viOlations; · ·· ·· · ·
DEFINITIONS: Intermediate Sanction Facility (ISF) - a facility under contract with or operated
by the Texas Department of Criminal Justice. An ISF is used to confine low
risk offenders under active supewision with no pending charges who have
violated the conditions of release to parole or mandatory supewision.
Special Condition "ISP"- a parole panel imposed special condition that will
sewe to punish, rehabilitate or reform an offender in response to a violation of
a condition or release to parole or mandatory supervision foHowing a hearing
or proceedings conceming alleged violations under Chapter 146 of the Board
rules.
ISP Term - a period of confinement in an ISP imposed by a parole panel,
provided the tenn is no less than 60 days nor greater than 180 days. The ISF
terin shall begin on the date the special condition is imposed by the parole
panel following a hearing or proceedings when the offender is in custody on a
warrant issued by the Division. The ISF term shall begin on the date the
offender reports to the ISF after a hearing is held pursuant to a summons issued
by the Division. If an offe11der fails to report to the ISF as instructed and a
warrant issued, the ISP te.rm shall begin at time of warrant execution.
ISF Until Discharged - confinement of an offender in an, ISF until sentence
expiration provided the maximum discharge date is no greater than' 180 days
from imposition. An offender may not be held in an lSF beyond the discharge
date under the authority of this provision.
BPP-POL. 145.267
Page3 of3
PROCEDURE:
I. Imposition of Special Condition "ISF"
A. A parole panel, upon majority vote, may impose special condition "ISF" as a
condition of parole or mandatory supervision, following a hearing or
proceedings concerning alleged violations under Chapter 146 of the board
Rules.
B. Offender shall have the right to a hearing .under Chapter 146 of ihe Board
rules prior to the imposition of Special Condition ·~1sF," unless offender
waives the right to a revocation hearing under Board Rules 146.4 and 146.5.
C. Upon imposition of special condition "ISF," an offender must comply with
the rules and regulations of the ISF for the duration of the ISF term.
D. Special condition "ISF" shall remain in effect until successful completion of
the ISF term.
E. Failure to abide by the rules and regulations of the ISF during an ISF term
may result in a subsequent review by a parole panel and further action as
warranted, following a hearing or proceedings concerning alleged violations
under Chapter 146 of the board Rules.
II. Withdrawal of Special Condition "ISF"
A. Once imposed, special condition "ISP' shall continue to govern the offender
until successful completion of the ISF term, at which point the offender shall
return to active supervision.
B. A parole panel, upon majority vote, mi,ty withdraw special condition "ISF'' as
a special condition of parole or mandatory supervision.
C. A request to withdraw special condition "ISF" shall be retumed to the
original voting panel with the only exceptions being that covered by other
Board policy.
D. · Special condition "ISF'' shall terminate in the event an offender reaches the
maximum expiration date during the course of an ISF term.
ADOPTED BY MAJORITY VOTE OF THE BOARD ON THE 26TH DAY OF AUGUST, 2015.
RISSIE OWENS, PRESIDING OFFICER (CHAIR)
* Signature on file.