Appeal from the United States District Court for the Western District of Texas.
MICHAEL SCOTT TONEY, Plaintiff - Appellant, Pro se, Huntsville, TX.
For RISSIE OWENS, BRAD LIVINGSTON, GERALD GARRETT, TONY GARCIA, RICK THALER, STUART JENKINS, CONRINTH DAVIS, DONNIEA GARRETT, JANE CHURCH, R. PALAD, Defendants - Appellees: Carol M. Garcia, Esq., Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX.
Before KING, DAVIS, and OWEN, Circuit Judges.
KING, Circuit Judge
Plaintiff-Appellant Michael Toney, a Texas inmate proceeding pro se, brought this action alleging Section 1983 claims and state law claims against Appellees, various prison officials. Toney contends that Appellees violated his right to procedural due process by classifying him as a sex offender. The district court granted Appellees' motion for summary judgment and denied Toney's motion for summary judgment, concluding that Toney's classification did not implicate his liberty interests under the due process clause. The district court further determined that Appellees sued in their individual capacities were entitled to qualified immunity. Toney appeals these rulings. For the following reasons, we AFFIRM the judgment of the district court.
I. Factual and Procedural Background
Appellant Michael Scott Toney is an inmate currently incarcerated at the Ellis Unit of the Texas Department of Criminal Justice (" TDCJ" ). On February 28, 1994, a jury found Toney guilty of burglary with the intent to commit aggravated assault with a deadly weapon. Toney was sentenced to forty years' incarceration with the TDCJ.
A. The Relevant Policies
During Toney's imprisonment, the TDCJ and related entities promulgated various regulations relating to sex offender classification.
Beginning in February 1998, the TDCJ instituted Administrative Directive (" AD" ) 04.09: " Sex Offender Identification Criteria and Methods of Recording Information." The policy was created to " ensure that all sex offenders under its supervision are identified for purposes of: DNA testing, sex offender treatment, release processing, parole decision-making, case management, sex offender registration, and classification decision-making." Toney would not have qualified as a sex offender under this directive. However, on January 30, 2004, the TDCJ instituted a revised version of the directive, A.D. 04.09 (rev. 2), which altered the " Sex Offender Identification Criteria" to cover inmates that have a " [c]urrent or prior conviction for a non-sexual offense with a sexual element," and for whom " an employee of the [Sex Offender Treatment Program] or a registered sex offender treatment provider has concluded that sex offender supervision and treatment is warranted." On February
20, 2007, the TDCJ enacted another revised directive, A.D. 04.09 (rev. 3), which similarly stated that an inmate may be identified as a sex offender " if an element of sexual behavior is identified and the offender has been convicted of . . . a non-sexual offense with a sexual element."
In addition, beginning in January 8, 2004, the Texas Board of Pardons and Paroles (" TBPP" ) enacted " Special Condition X," a special condition of parole or supervised release requiring that the parolee, inter alia : (1) " [e]nroll in and participate in a treatment program for sex offenders," which may include " psychological counseling" ; (2) " [s]ubmit to polygraph examinations" ; and (3) refrain from engaging in a variety of activities. A parole panel may impose Special Condition X " upon a majority vote." Under Special Condition X, " [s]ex offender[s]" are defined as " offenders who have admitted, committed, threatened to commit, or are a party to an act which constitutes a sexual offense or sexually deviant behavior." A July 20, 2006, revised version of Special Condition X provided a new procedure for imposing the condition on offenders with no current or prior sex offense conviction:
Before submission of a request to the parole panel to impose the Sex Offender Special Condition on offenders who have no current or prior conviction for a sex offense, the parole officer or TDCJ Parole Division representative shall provide to the offender written notice and opportunity to provide a written response within 30 days. Upon the expiration of the notice period, the parole officer or TDCJ Parole Division representative shall provide credible information in writing to the panel that indicates that the offender has engaged in unlawful sexual conduct and could constitute a threat to society.
The policy was revised again on November 18, 2009, slightly modifying the procedure for imposing Special Condition X on offenders with no prior sex offense convictions by changing the last clause from " indicates that the offender has engaged in unlawful sexual conduct and could constitute a threat to society" to " indicates that the offender constitutes a threat to society by reason of his lack of sexual control." 
The parole division of the TDCJ has also promulgated guidelines outlining certain procedures for offenders who are convicted of non-sexual offenses but who are nonetheless identified as sex offenders for purposes of Special Condition X. These guidelines recognize that " [p]ursuant to the United States Court of Appeals [for the] Fifth Circuit and the Texas Court of Criminal Appeals, offenders who do not have a sex offense conviction are entitled to be heard in person to present evidence, call witnesses, and confront and cross-examine witnesses prior to the imposition of Special Condition 'X.'"
B. Toney's Classification as a Sex Offender
Toney alleges that, during his initial parole review in 2004, parole officer Donniea Garrett informed him that he was being identified as a sex offender.  According to Toney, at the end of his interview, he was required to complete a " Static 99 Sex Offender Risk Assessment" (" Static 99 Assessment" ). This evaluation " is required for offenders [who are] being considered for parole, mandatory or discretionary mandatory supervision and [who] are identified as sex offenders in accordance with
[AD 04.09]." The Static 99 Assessment, which is " used for assessing offenders' risk level," consists of a one-page form with ten questions relating to the offender's history and past convictions, with corresponding point values to be assigned depending on the answers to those questions. Garrett completed the form and assigned Toney a total score of 3--thus classifying Toney as a " mod[erate]" risk. This " indicat[es] that [Toney] poses a moderate danger to the community and may continue to engage in criminal sexual conduct."
The parole board denied Toney's parole in 2004, providing the reason " 2D." This reason ...