Texas: Unconstitutional to Revoke Probation Due to Refusal to Self-Incriminate During Polygraph or Therapy

by Matt Clarke

On May 8, 2013, the Texas Court of Criminal Appeals held that a probationer’s term of community supervision cannot be revoked because he had refused to answer incriminating questions while taking a lie detector test or during sex offender group therapy.

Michael Edward Dansby, Sr. received five years on deferred adjudication community supervision (DACS) after he entered into a plea agreement that reduced a charge of aggravated sexual assault to indecency with a child. The DACS conditions required him to complete a sex offender treatment program (SOTP) and submit to polygraph examinations. In the year he was on DACS, Dansby attended over 50 therapy sessions and took two “maintenance” polygraphs designed to ascertain whether he was complying with the requirements of his supervision.

Nine months into his placement on DACS, Dansby was ordered to submit to a polygraph examination to determine his sexual history. When it became apparent that he would be asked questions about prior, un-adjudicated sexual offenses he might have committed, Dansby informed the polygraph examiner that his “attorney told him not to say anything that might result in prosecution.” The examiner, who had already explained that he would not ask for the names of victims or locations of sexual offenses, terminated the examination. Dansby was subsequently involuntarily removed from the SOTP. His DACS was then revoked by the trial court for failure to submit to the polygraph examination and failure to complete the SOTP.

Dansby appealed on the basis that he was being required to forfeit his Fifth Amendment right against self-incrimination to remain on DACS. The Court of Appeals affirmed the trial court, holding that while that argument might be true of the polygraph examination, it was not true of his failure to complete the SOTP in which, according to the appellate court, self-incrimination was not an issue. Dansby filed a petition for discretionary review with the Texas Court of Criminal Appeals, which was granted.

The Court of Criminal Appeals held the lower appellate court had improperly dodged the constitutional issue. Examining the trial court records, the Court noted that no state official had testified that Dansby would have been involuntarily removed from the SOTP had he not refused to answer the polygraph questions about prior offenses. There were other reasons offered for his removal, but they dealt primarily with his refusal to answer potentially incriminating questions about un-adjudicated prior sexual offenses during therapy sessions.

“[I]n our view, neither the fact that there were other relevant factors contributing to [the] ultimate decision to discharge the appellant, nor the fact that appellant’s reticence in group therapy sessions may not have been wholly attributable to a reasonable fear of incriminating himself, necessarily establishes that his discharge from the sex offender treatment program occurred independently of his invocation of the Fifth Amendment privilege,” the Court wrote.

Citing Minnesota v. Murphy, 465 U.S. 420 (1984), the Court of Criminal Appeals noted that a probationer cannot be required to “choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.” There is an exception to forced testimony if the probationer is offered immunity from prosecution, but such was not the case here. Therefore, the Court clearly stated that, in Dansby’s case, “Without immunity, he simply may not be forced to confess to criminal behavior, whether during a polygraph examination or during group therapy.”

Having found that Dansby would not have been involuntarily removed from the SOTP had he not refused to answer incriminating questions, the judgment of the Court of Appeals was reversed and the case remanded to that court for further proceedings. See: Dansby v. State, 398 S.W.3d 233 (Tex. Crim. App. 2013).

Following remand, on January 22, 2014, the Court of Appeals again affirmed the revocation of Dansby’s placement on DACS, finding that because he had failed to raise Fifth Amendment objections to the conditions of his community supervision – including the sexual history polygraph – before the trial court, he had waived the objections.

Although the Court of Appeals agreed that “the Fifth Amendment gave [Dansby] the right not to answer questions that may provide a link to future prosecution, and the fact that he was on community supervision did not affect this right,” his failure to raise those objections before the trial court, despite being “well-represented by counsel,” resulted in “procedural default” that precluded review of his Fifth Amendment claims on appeal.

Therefore, the revocation of Dansby’s placement on DACS was affirmed. The Court of Criminal Appeals granted Dansby’s second petition for discretionary review on June 11, 2014, which remains pending. See: Dansby v. State, 2014 Tex. App. LEXIS 903 (Tex. App. Jan. 22, 2014), petition for review granted.

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