Probation, Firearms, and Liability in Texas after Graham V. Owens (2009)

By Belshaw, Scott H.; Johnstone, Peter et al. | Justice System Journal, January 1, 2015 | Go to article overview

Probation, Firearms, and Liability in Texas after Graham V. Owens (2009)


Belshaw, Scott H., Johnstone, Peter, Siddique, Julie Ahmad, Justice System Journal


In 2009, the U.S. District Court for the Western District of Texas held in Graham v. Owens that state parole officials violated a parolee's constitutional due-process rights when they imposed sex offender conditions on him even though he had not been convicted of a sex crime or afforded an appropriate hearing to determine eligibility. Furthermore, the Court held that the Chair of the Board of Pardon and Paroles was personally liable for damages as a result of the violation of the parolee's constitutional due-process rights. This decision was the first in which a state official was held personally liable for damages due to an adverse judgment against a governmental entity. The Graham v. Owens decision has prompted widespread concern that judicial reluctance to extend tortious liability to government officials for the misconduct of employees is beginning to wane. This shift in the Court's attitudes toward liability has major implications for governmental agencies' administrative decision-making. In Texas, the Graham v. Owens decision may have particular relevance to probation departments' willingness to allow probation officers to carry firearms on duty.

THE GRAHAM V. OWENS DECISION

In 1980, Ray Curtis Graham was indicted on charges of burglary, theft of a motor vehicle, and aggravated rape. In 1982, he pleaded guilty to the burglary and theft charges; however, the rape charges were dismissed as part of the plea agreement. Graham was released on parole in 1985 without sex offender conditions imposed on him. He was subsequently sent to prison several more times on various charges; however, none of his convictions were for sex offenses. After his latest conviction for attempted murder, Graham was released on parole in 2003 without sex offender conditions imposed on him. In 2007, he was notified by the parole board that it was considering imposing sex offender requirements on him as a condition of his parole. According to Graham, this notification did not include any information on what basis these conditions were to be imposed on him.

Graham subsequently submitted to a psychological examination to determine whether he posed a risk for committing future sex offenses. The results of the examination were released to the parole board on the same day; however, Graham was not afforded a copy of the results. The parole board did not allow Graham or his counsel to attend a hearing in which it considered the evidence in support of imposing sex offender conditions on him. Furthermore, the parole board did not make a finding that Graham posed a continuing threat due to lack of sexual control before it went ahead and voted to impose sex offender conditions on him. The parole board then notified Graham that his parole would be revoked unless he attended sex offender treatment.

In 2008, Graham filed a civil-rights lawsuit against Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles; Stuart Jenkins, director of the Texas Department of Criminal Justice (TDCJ) parole division; all the parole board members, and most of the parole commissioners. Graham sued Owens and Jenkins both in their professional capacities and individually. The defendants denied violating Graham's constitutionally protected due-process rights and furthermore asserted that they were entitled to immunity from damages. In 2009, a federal judge determined that state parole officials had indeed violated Graham's due-process rights, and a federal jury held Owens personally liable for $21,250 in damages. This was the first legal decision in Texas in which a state official was held personally liable for damages for the misconduct of employees. The Graham v. Owens decision has implications for the ongoing debate about whether or not probation departments across Texas should standardize firearms policies to allow probation officers to carry firearms on duty. This is because of the concern that administrators and agency management could be held personally liable for the actions of their staff. …

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