Schlittler, David ( 2015 )

PD-1505-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
April 27, 2015 Transmitted 4/27/2015 10:33:51 AM
Accepted 4/27/2015 10:43:50 AM
ABEL ACOSTA
Case No. PD-1505-14 CLERK
In the Court of Criminal Appeals of Texas
David Schlittler v. The State of Texas
On Discretionary Review
of Appeal No. 12-13-00269-CR
in the Twelfth Court of Appeals of Texas
at Tyler
Appellant’s Reply Brief
State Counsel for Offenders
Attorney for Appellant
Kenneth Nash
Texas Bar No. 14811030
P. O. Box 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5295
E-mail address: ken.nash@tdcj.texas.gov
Oral Argument Requested and Previously Granted
Table of Contents
Table of Authorities……………………………………………………………...3-4
Reply Issues………………………………………………………………………...5
1. Although a modified conservatorship order severely limited
Schlittler’s possessory rights to his son, did Section 38.111, Penal
Code, violate his fundamental liberty interest by criminalizing the
exercise of his parental rights?
2. By authorizing an ex-spouse to withhold her consent to an inmate’s
right to contact his son, does Section 38.111, Penal Code, constitute
an improper delegation of the State’s legislative power to a private
party?
Summary of the Argument……………………………………………………….5-6
Argument………………………………………………………………………..6-14
Prayer……………………………………………………………………………...14
Certificate of Compliance…………………………………………………………14
Certificate of Service……………………………………………………………...15
2
Table of Authorities
Cases
Garber v. Beard, 851 A.2d 222 (Penn. Cmwlth. 2004)……………………………9
G.J Deasy Investment, Inc. v. Mattox, 778 F.2d 1091 (5th Cir. 1985)…………….10
Hernandez v. McGinnis, 272 F. Supp. 2d 223 (W.D. N.Y. 2003)…………………...9
Jannin v. State, 42 Tex. Crim. 631, 62 S.W. 419 (1901)…………………………10
Mitchell v. Smith, 817 N.W.2d 742 (Minn. App. 2012)……………………………9
Navin v. Iowa Department of Corrections, 843 F. Supp. 500
(N.D. Iowa 1994)…………………………………………………………………...9
N.E.W. v. Kennard, 952 F. Supp. 714 (D. Utah 1997)……………………………...9
Odenwalt v. Gillis, 327 F. Supp. 2d 502 (M.D. Penn. 2004)………………………..9
Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52 (1976)…………………………………………………………………9
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992)………………………………………………………………..9
Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998)…………………………10,11,12
Robinson v. Palmer, 841 F.2d 1151 (D.C. Cir. 1988)……………………………...9
Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009)…………………………………...8
Santosky v. Kramer, 455 U.S. 745 (1982)………………………………………….7
Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011)………………………………8
Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen,
952 S.W.2d 454 (Tex. 1997)……………………………………………………...11
3
Troxel v. Granville, 530 U.S. 78 (1987)……………………………………………8
Wirsching v. Colorado, 360 F.3d 1191 (10th Cir. 2004)……………………………9
Wisconsin v. Yoder, 406 U.S. 205 (1972)…………………………………………..7
Constitutions
Art. III, Sec. 1, Texas Constitution………………………………………………..10
4
Reply Issues
1. Although a modified conservatorship order severely limited Schlittler’s
possessory rights to his son, did Section 38.111, Penal Code, violate his
fundamental liberty interest by criminalizing the exercise of his parental rights?
2. By authorizing an ex-spouse to withhold her consent to an inmate’s
constitutional right to contact his son, does Section 38.111, Penal Code, constitute
an improper delegation of the State’s legislative power to a private party?
Summary of the Argument
1. Criminalization of Schlittler’s exercise a fundamental liberty
interest.
Contrary to the State’s argument, it wasn’t the SAPCR court’s modified
conservatorship order, but the application of Section 38.111, Penal Code, which
infringed Schlittler’s fundamental liberty interest as a parent. Moreover, the State
has failed to discharge its burden of proving, and no court has yet to find, that
Schlittler has been an unfit parent, that the exercise of his parental rights will
jeopardize the health or safety of his son, or that the exercise of his parental rights
will potentially impose significant social burdens.
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2. Improper delegation of the State’s legislative power to a private
party.
A state may not confer upon a private person a power it cannot exercise
itself. Assuming the State even possesses such power to impair a father’s
fundamental liberty interest towards his son, subsection (a)(2) operates as an
improper delegation of a State’s legislative power to a private entity when
examined under the so-called Boll Weevil test described below; therefore, Section
38.111, Penal Code, as a whole cannot survive a strict-scrutiny review.
Argument
1. Criminalization of Schlittler’s exercise of a fundamental liberty
interest.
Under the terms of the modified conservatorship order, the SAPCR court
severely limited Schlittler’s parental rights toward his son, B.S. On that basis, the
State argues, Section 38.111, Penal Code, did not abridge his fundamental liberty
interest. State’s Brief at 13-14. Despite “credible evidence” that Schlittler
sexually abused his former step-daughter, the SAPCR court found “that awarding
[him] access to the child [B.S.] would not endanger the child’s physical health or
emotional welfare and would be in the best interest of the child[,]” so the SAPCR
court awarded him supervised visitation “[e]very 1st, 3rd and 5th Saturday of each
month for a maximum time of two hours.” 6 R.R. (State’s Exhibit 2A, at 6-7).
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This supervised visitation schedule commenced on September 18, 2007. 6 R.R.
(Exhibit 2, at 23).
Curiously, Schlittler allegedly violated section 38.111 on September 4, 2008,
(see C.R. at 9, 323), several months after the SAPCR court entered its modified
conservatorship order on November 11, 2007, (see 6 R.R. (State Exhibit 2, at 23)).
Even after Schlittler was sentenced to prison on April 3, 2008, for sexually
assaulting his former step-daughter (see 6 R.R. (State’s Exhibit 1)), the SAPCR
court’s modified conservatorship order remained in effect. Contrary to the State’s
argument, see State’s Brief at 13-14, it wasn’t the modified conservatorship order
which effectively severed Schlittler’s parental rights to his son, but the application
of the statute.
The State may not interfere with Schlittler’s parental rights without first
showing that the exercise of his parental rights will jeopardize the health or safety
of his son or that the exercise of his parental rights will potentially impose
significant social burdens. Wisconsin v. Yoder, 406 U.S. 205, 233-34 (1972). As
argued in his initial brief, see Appellant’s Brief at 21, 24-25, there have been
absolutely no judicial findings that Schlittler has been an unfit parent,1 that the
1
Because Schlittler was found guilty beyond a reasonable doubt of sexually assaulting is
former step-daughter, the State argues that there was no violation of his fundamental right to
parent his son; therefore, the State contends that it satisfied its due-process burden as described
in Santosky v. Kramer, 455 U.S. 745 (1982). State’s Brief at 16-17. The State’s reliance on
Santosky is mis-placed. In the Santosky case, the Supreme Court held that procedural due
process requires at least clear and convincing proof of permanent neglect before the State of New
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exercise of his parental rights will jeopardize the health or safety of his son, or that
the exercise of his parental rights will potentially impose significant social
burdens. Apparently dissatisfied with the SAPCR court’s modified
conservatorship order, the State (through Schlittler’s ex-wife) resorted to the
statute to accomplish what couldn’t be done in the SAPCR court.
2. Improper delegation of the State’s legislative power to a private
party.
The constitutionality of a statute, as applied, presents a legal question;
therefore, the case is reviewed de novo. Stockton v. Offenbach, 336 S.W.3d 610,
615 (Tex. 2011). Whether the State has impaired a parent’s right to exercise care,
custody, and control over his child is determined on a case-by-case basis. Troxel v.
Granville, 530 U.S. 78, 95-96 (1987) (Kennedy, J., dissenting). Here, the State
concedes that Section 38.111, Penal Code, should be subjected to a strict-scrutiny
analysis and that the statute should be upheld only if it is narrowly tailored to
promote a compelling state interest.2 State’s Brief at 15, 19-20. However, the
York could terminate the rights of parents in their natural children. Santosky, 455 U.S. at 747-
48. Besides using Schlittler’s conduct towards his former step-daughter as a circumstance to
justify an intrusion upon his fundamental right as a parent towards his son, the State can point to
no place in the record demonstrating that Schlittler has permanently neglected his son or has
been found to be an unfit parent of his son.
2
Because Section 38.111, Penal Code, is a criminal statute and not a prison policy, the
State apparently agrees with Schlittler’s argument (see Appellant’s Brief, at 29-30, 42-43) that
the relaxed standard for review set forth in Turner v. Safley, 482 U.S. 78 (1987) does not apply.
Cf. Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009) (upholding TDCJ’s “negative mail” policy
8
State argues that, by conferring upon Schlittler’s ex-wife the decision to restrict all
contact with his son, the statute is narrowly tailored to promote the State’s
compelling interest to protect both Schlittler’s sexual-assault victim and her half-
brother. State’s Brief at 19, 22-23.
As a general rule, a state may not confer upon a private person a power it
cannot exercise itself. Planned Parenthood of Central Missouri v. Danforth, 428
U.S. 52, 67-72 (1976) (invalidating a statutory provision conferring upon a
husband “a veto power exercisable for any reason whatsoever or for no reason at
all” over his wife’s constitutional right to an abortion during the first 12 weeks of
pregnancy). See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833, 898 (1992) (“The husband’s interest in the life of the child his wife is
because Samford could communicate with his sons through his mother); Wirsching v. Colorado,
360 F.3d 1197 (10th Cir. 2004) (upholding a prison regulation denying Wirsching visitation with
his daughter because he was allowed to contact her by letter and telephone); Robinson v. Palmer,
841 F.2d 1151 (D.C. Cir. 1988) (upholding a visitation-suspension policy because it left open
some communication channels between inmate and excluded spouse); N.E.W. v. Kennard, 952
F. Supp. 714 (D. Utah 1997) (upholding Salt Lake County’s visitation policy disallowing visits
from children under 8 years of age because the inmate could request a “special visit” with his
children); Navin v. Iowa Department of Corrections, 843 F. Supp. 500 (N. D. Iowa 1994)
(upholding a visitation policy restricting unaccompanied minors because it did not operate as a
total prohibition); Hernandez v. McGinnis, 272 F. Supp. 2d 223 (W.D. N.Y. 2003) (upholding a
non-permanent revocation of visitation privileges because the inmate had other means (by letter
and telephone) of maintaining contact with his family members); Odenwalt v. Gillis, 327
F. Supp. 2d 502 (M.D. Penn. 2004) (upholding a no-contact policy because the inmate could
exercise non-contact visitation with his children); Garber v. Beard, 851 A.2d 222 (Penn.
Cmwlth. 2004) (upholding a prison policy disallowing contact visitation between sex offenders
and minor children because the policy permitted non-contact visitation); and Mitchell v. Smith,
817 N.W.2d 742 (Minn. App. 2012) (upholding the prison policy disallowing sex offenders to
visit minor children because it permitted communication through letter and telephone).
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carrying does not permit the State to empower him with this troubling degree of
authority over his wife.”).
Assuming the State even possesses such power to impair a father’s
fundamental liberty interest towards his son, Schlittler contends that subsection
(a)(2) operates as an improper delegation of the State’s legislative power to a
private entity, i.e., his ex-wife. The Texas Constitution generally prohibits the
State from delegating governmental power to a private entity. Art. III, Sec. 1, Tex.
Const.;3 Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). See Jannin v.
State, 42 Tex. Crim. 631, 62 S.W. 419 (1901) (wherein this Court remarked that
allowing railroads to place an endorsement on tickets making trafficking in such
tickets a penal offense was a delegation of an unauthorized legislative authority).
See also G.J. Deasy Investment, Inc. v. Mattox, 778 F.2d 1091 (5th Cir. 1985)
(noting that “[t]here is a constitutional prohibition against delegation of legislative
power to private groups”).
Whether the State has impermissibly delegated its legislative authority to a
private entity is subjected to a ‘more searching scrutiny’ through the Boll Weevil
3
Article III, Section 1 provides: “The Legislative power of this State shall be vested in a
Senate and House of Representatives, which together shall be styled ‘The Legislature of the State
of Texas.’”
10
test4 set forth in Proctor v. Andrews, 972 S.W.2d at 735, than delegations of
legislative authority to the executive or judicial branches of governments:
1. Are the private delegate’s actions subject to a meaningful review
by a state agency or other branch of government?
2. Are the persons affected by the private delegate’s actions
adequately represented in the decision-making process?
3. Is the private delegate’s power limited to making rules, or does the
delegate also apply the law to particular individuals?
4. Does the private delegate have a pecuniary or other personal
interest that may conflict with his or her public function?
5. Is the private delegate empowered to define criminal acts or
impose criminal sanctions?
6. Is the delegation narrow in duration, extent, and subject matter?
7. Does the private delegate possess special qualifications or training
for the task delegated to it?
8. Has the legislature provided sufficient standards to guide the
private delegate in its work?
Meaningful Governmental Review
The first factor weighs against the delegation. The statute provides no
procedure for Schlittler to compel a governmental branch or body to review his ex-
wife’s decision to withhold consent.
4
The Boll Weevil test is derived from Texas Boll Weevil Eradication Foundation, Inc. v.
Lewellen, 952 S.W.2d 454 (Tex. 1997). Proctor v. Andrews, 972 S.W.2d at 735.
11
Adequate Representation of Affected Persons
The second factor weighs against the delegation. The statute contains no
mechanism for Schlittler to “have a say,” Proctor v. Andrews, 972 S.W.2d at 736,
in his ex-wife’s decision to withhold consent.
Delegation of Rule Application as well as Rule-Making
The third factor weighs against the delegation. The application of the statute
against Schlittler rested solely with his ex-wife. Moreover, she exercised her
power to withhold consent in derogation of Schlittler’s right to supervised
visitation delineated within the modified conservatorship order. 6 R.R. (State’s
Exhibit 2A, at 6-7).
Conflict of Interest
The fourth factor weighs against the delegation. As the State acknowledges,
see State’s Brief at 18, 22-23, Schlittler’s ex-wife has a “private interest as stake,”
Proctor v. Andrews, 972 S.W.2d at 736, to the extent that Schlittler’s attempt to
communicate with his son “undermined the mother’s authority and rights,” State’s
Brief at 23.
Criminal Authority
12
The fifth factor weighs against the delegation. By withholding her consent,
Schlittler’s ex-wife defined his attempt to contact his son as a third-degree felony
under the statute’s express terms as set forth in subsections (a)(2) and (d).
Narrow Delegation
Besides swallowing the narrowly-tailored requirement of the compelling-
state-interest test, the sixth factor weighs heavily against the delegation. The
delegation is not narrow in duration, extent, and subject matter. The statute
conferred upon Schlittler’s ex-wife veto-proof power to prohibit all parental
contact until B.S. attained majority.
Special Qualifications or Training
The seventh factor weighs against the delegation. The statute imposes no
special qualifications or training upon Schlittler’s ex-wife before she elects to
withhold her consent to the enjoyment of his fundamental liberty interest as B.S.’s
parent.
Sufficient Standards
Finally, the eighth factor weighs against the delegation. The statute lacks
any standards guiding Schlittler’s ex-wife in her decision to withhold her consent
to Schlittler’s contact with his son.
In short, the statute flunked the Boll Weevil test miserably. Because
subsection (a)(2) operates as an unconstitutional delegation of the State’s
13
legislative power upon a private party, subsection (a)(2) does not narrow the statute
as maintained by the Twelfth Court of Appeals, see Schlittler v. State, No. 12-13-
00269-CR, 2014 Tex. App. LEXIS 11904 at *6 (Tex. App.—Tyler, delivered
October 30, 2014, pet. granted); therefore, the statute cannot survive a strict-
scrutiny review because the statute is not narrowly tailored to accomplish a
compelling state interest.
Prayer
Schlittler prays that this Court declare Section 38.111, Penal Code,
unconstitutional as applied to him, and reverse the Twelfth Court of Appeal’s
judgment (and the trial court’s judgment) and dismiss the indictment filed in this
case.
Respectfully submitted,
State Counsel for Offenders
Attorney for Appellant
/s/ Kenneth Nash
Texas Bar No. 14811030
P. O. Box 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5295
E-mail address: ken.nash@tdcj.state.tx.us
Certificate of Compliance
In compliance with Rule 9.4, Rules of Appellate Procedure, I certify that this
computer-generated document complies with the typeface requirements of Rule
14
9.4(e) and is comprised of 2,129 words (excluding the matters listed in Rule
9.4(i)(1)).
/s/ Kenneth Nash
Certificate of Service
In compliance with Rule 9.5(e), Rules of Appellate Procedure, I certify that
a copy of the foregoing Appellant’s Reply Brief was served upon the State’s
attorney and upon the State Prosecuting Attorney noted below by one or more of
the following: certified mail (return receipt requested), facsimile transfer, or
electronic mail (e-mail), on April 27, 2015.
Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79105
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org
Lisa C. McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, TX 78711
Facsimile no. 512-463-5724
E-mail address: information@spa.texas.gov
/s/ Kenneth Nash
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