# Tout, James Emil

> Court of Appeals of Texas · October 12, 2015

URL: https://www.frixlaw.com/law-library/cases/4052702

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** October 12, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

20
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 intendef the parole. paJ'\eL'.i~.posed .spe,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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4052702. Public record. Not legal advice.