Texas Stamp


PD-1024-17, PD-1025-17 02/07/2018

"Did the Fifth Court of Appeals err by holding and determining that the State had a compelling interest in protecting children, including Fineberg's biological children, from sexual exploitation without also determining whether the community supervision modification prohibiting Fineberg's contact with her children was narrowly tailored to serve the compelling state interest?"

Fineberg was originally charged with child-sex-abuse offenses; however, she pled guilty to injury-to-a-child offenses. Her prison sentences were suspended, and she was granted community supervision. As part of release, she had agreed to attend sex-offender treatment.  She was initially allowed to raise and live with her biological children because they had not been the victims of or involved in the offenses.  The trial court later modified the terms to prevent her from going within 1,000 feet of a place where children congregate. This prohibited Fineberg from having any contact with her children. Alleging that the condition violated her fundamental due process right to raise her own children, Fineberg sought habeas relief.  The trial court denied relief.

On appeal, Fineberg claimed that barring contact with her children is too disconnected to the offenses she was charged with and pled guilty to.  Therefore, the condition is unreasonable and overbroad.  The court of appeals rejected her claim. It held,

Given that one purpose of community supervision conditions is to protect the community, that appellant as a convicted felon on community supervision enjoys a diminished level of constitutional rights, and that the State has a compelling interest in protecting children, including appellant's children, from sexual exploitation, we cannot conclude appellant carried her burden to show the trial court's modification of the conditions of community supervision to prohibit contact with any child was so disconnected from appellant's offenses as to constitute a violation of substantive due process and an abuse of the trial court's discretion.

Fineberg contends that the court of appeals erred by failing to address whether the 1,000 feet restriction is narrowly tailored to serve the State’s interest.  Because there is no evidence that she ever abused her own children, there is no compelling interest to justify the overly broad condition.  She argues that there are less intrusive alternatives to advance the State’s interest.  

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