Travis judge tells woman to stop having kids

Constitutionality of order in child injury case is questioned by experts.
By Steven KreytakAMERICAN-STATESMAN STAFF Friday, September 12, 2008
A judge in Travis County has ordered a woman to stop having children as a condition of her probation in her case of injury to a child by omission, an extraordinary measure that legal experts say could be unconstitutional.
The order was for Felicia Salazar, 20, who admitted to failing to provide protection and medical care to her then-19-month-old daughter last year. The girl suffered broken bones and other injuries when she was beaten by her father, Roberto Alvarado, 25, who was sentenced to 15 years in prison. Alvarado and Salazar relinquished their parental rights, and the child, who has recovered, was placed in foster care.
On Sept. 5, state District Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation after she reached a plea bargain with prosecutors. In Texas, judges set conditions of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment and setting other typical conditions, Baird told Salazar not to have any more children.
In an interview Wednesday, Baird said Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected.
"When you look her background, the circumstances of this case," he said, "a reasonable condition of her probation was that she not conceive or bear any children."
Anschutz said he is considering his options on behalf of Salazar. He described her as concerned about Baird's order.
"Although I fully understand the sentiment and perspective of the judge in this matter, I question the enforceability of that particular condition," he said.
Salazar couldn't be reached for comment.
The requirement that Salazar not conceive or bear any children is "probably not constitutional," said Douglas Laycock, a University of Michigan constitutional law professor.
Laycock, a former professor and associate dean for research at the University of Texas School of Law, said in an e-mail that the courts have recognized a fundamental right of people to make their own decisions about becoming parents.
"The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that," he said. "But undoubtedly there is a constitutional right to have children ... and I doubt that one conviction for injury to a child is enough to forfeit that right."
Conditions of probation are enforced by putting a defendant in jail or prison when they are violated.
It is doubtful whether Baird would or could do that if Salazar has children, said Keith Hampton, a veteran Travis County defense lawyer who is a second vice president of the Texas Criminal Defense Lawyers Association.
"I really don't see how that is going to be an enforceable order," Hampton said, citing court rulings that have expressed an unenumerated constitutional right to procreate. "It may be a good thing that this defendant heard someone in authority tell them 'We don't think you should have any more kids.' "
Hampton said that Salazar could appeal the conditions of her probation, even before Baird attempts to enforce them.
Baird said he has never made a similar order in his more than 20 months on the District Court bench in Travis County. Other lawyers, including Allison Wetzel, the prosecutor in the case, say they are not familiar with any similar orders.
John Schmolesky, a criminal law professor at St. Mary's University School of Law in San Antonio, said conditions of probation must serve to protect the public or rehabilitate the defendant.
"This one might logically have a connection to protecting the public," he said of Baird's order. "Obviously if she neglected her kid, if she doesn't have any more, she can't neglect them."
But, Schmolesky said, "if I were a betting man, I would say that an appellate court would strike that one down."
Baird noted that by putting Salazar on probation, he sentenced her to 10 years in prison and suspended that sentence.
"If I put her in prison for 10 years, she could not conceive or bear children," he said. "I don't know how this is unreasonable for probation."
Laycock, the Michigan law professor, said that in a past Wisconsin case, a father of nine who was convicted of intentionally failing to pay child support was ordered to have no more children as a condition of probation. The Supreme Court of Wisconsin upheld that condition.
"So there's room for argument here," Laycock said. "But I would think that if she challenges this order, it will be struck down.
"On the other hand, if she got probation instead of jail, she may be happy with this and not want to challenge it."