February 15 , 2007

Thank you for writing to me. This letter is written in an effort to continue to keep inmates updated on the current issues regarding parole and parole related matters, as well as to address some of the repetitive questions asked in the letters I receive from the inmate population. I have totally redesigned my web page and it now contains statistical release rates for over three years, parole board members’ statistical release rates, legal opinions affecting the inmate population, definitions of abbreviations used in parole minute sheets and denials, past and present proposed legislation affecting the inmate population, information on time cuts, and information on various rumors and whether these rumors have any basis in reality. There is much more information available at this website. I do realize the inmate population cannot access this information, I hope, your family or loved ones have access to computers and can copy this information and send it to you. The cost of mailing this information would be prohibitive.

TO BUILD OR NOT TO BUILD, THAT IS THE QUESTION:

Prior to the Legislature even convening, TDCJ proposed two new prisons, with a third prison to be constructed and run privately for a total of 10,000 new beds. The price tag? $1/2billion in building costs plus an additional $72 million per year to operate. In November 2006, Senator John Whitmire and Jerry Madden the heads of the criminal justice committees of their respective chambers, said building more prisons will only create more prisoners. Whitmire said: “The bottom line is, we have sufficient space now if we prioritize our needs.” Madden said, “We have to be smart on crime. I think a lot of members agree with that, both Republicans and Democrats, Conservatives and Liberals.” On January 25, 2007, Lt. Governor David Dewhurst, the leader of the Senate, said Texas needs to build 5,000 new beds. He sees the problem nearly 2 decades after Texas embarked on the biggest prison construction boom in United States history. It has run out of beds. “I don’t-and the people of Texas don’t-won’t have dangerous people on our streets, and that’s what we’re going to prevent. I’ve been looking at a number of 4,000 to 5,000 new beds, over the next four-years,” he said. And, the debate goes on. On January 30, 2007, Governor Rick Perry announced he issued an executive order establishing Texas Criminal Justice Statistical Analysis Center (SAC). “By providing objective reports on state wide criminal justice trends, the Statistical Analysis Center will help policymakers develop effective and efficient criminal justice program that will keep Texas safe,” Perry said. The Governor, in his State of the State Speech, announced 14.4 million for drug treatment, two medium security prisons of 1,000 beds each and retrofitting 660 additional beds in Texas Youth Commission facility to be transferred to TDCJ spending $34.4 million to acquire additional prison space from counties. The Parole Board has come under attack for releasing violent prisoners back into society by Chanel 11 here in Houston. Unfortunately, no one will know who will win this debate. Will the Legislature appropriate a meaningful amount of money for rehabilitation programs to help the inmates transition back into society? Will the prison population be reduced or increased? Will the Lt. Governor and the Governor win these debates and build new prisons? Will there be a compromise reached and more beds constructed, but with programs developed to help the inmate population? My best guess, after watching the Texas Legislature for the last 15-years deal with prisons and inmates, more beds will be built, but new programs for non-violent offenders will also be established, but these new programs will be short changed and it will be not as beneficial for the inmate or Texas as it should be.

LEGAL OPINIONS:

I have received letters indicating TDCJ is refusing to grant time credited by the trial court. I am very curious why this is occurring since the entire Court of Criminal Appeals in Ex parte Perry Williams Harvey, 846 S.W.2d 328, indicated,”The Texas Department of Criminal Justice Institutional Division is authorized to award and compute credit for good conduct time. However, only the judge of the court in which the defendant was convicted shall compute credit for the time the defendant’s been in jail in said cause from the time of his arrest and confinement until his sentence by the trial court. No requirement exists for the trial court to detail the reasons for the award of credits for time spent in jail prior to sentencing other than the documentation required in Article 42.06, subsection 8,V.A.C.C.P, provided that such credit does not exceed the time between date of commission of the offense and the imposition of a sentence.

Morgan v. Dretke, 433 F.3d 455(5th Cir.2005), Even under the “some evidence” standard, the evidence is insufficient to support a disciplinary action because there was no evidence to support the disciplinary decision finding prisoner guilty of assaulting an officer when there was not evidence to show the officer was injured. This is an extremely interesting opinion for two reasons, first, the fact that the Fifth Circuit Court of Appeals even accepted and addressed a disciplinary case and second, their decision on disciplinary hearings do have to follow the law, and some evidence means there has to be evidence of some nature.

The United States Supreme Court in Lopez v Gonzales, 546 U.S.____(2006), Conduct that would be a misdemeanor under federal law, even though a felony under state law, is not an aggravated felony for immigration purposes and a permanent resident alien cannot be deported based solely on the state conviction. This overrules the reasoning by the Fifth Circuit Court of Appeals in United States v. Hernandez-Avalos. This is a major decision for a number of inmates who are presently incarcerated in TDCJ with immigration holds placed upon them. They now can contest their deportation, especially if it was a minor amount of drugs. This could also affect deportation for other crimes, not just drug offenses. If the state crime would have been a misdemeanor under federal law, then there is now a defense to deportation.

Many of the inmates have discovered the Legislature created in Sec.501.014(e) of the Government Code a law that allows the County of conviction to attach funds in an inmate’s prison trust account to pay for expenses the state has incurred. Some of these expenses include child-support payments, cost of court, appointment of attorneys fees, as well as other costs. McLennan County has been especially aggressive and has garnished inmates’ prison accounts and collected approximately$65,150. The Texarkana Court of Appeals in Abdullah v Texas___ SW.3d ____ (06-06-00064-CV) decided January 12, 2007, ”Inmate was not accorded due process nor given proper notice before trial court entered post judgment garnishment order directing removal of money from his inmate trust fund account; no attempt was made to follow garnishment procedure, turnover procedure, or any type of procedure before trial court entered its order, there were no pleadings, no proper writ of garnishments, no notification, no warnings, and no opportunity to respond. The opportunity to be heard is the fundamental requirement of due process; it is an opportunity which must be granted at a meaningful time and in a meaningful manner.” In other words, the court said even the State of Texas must follow its own Civil Rules of Procedure to garnish an inmate’s account and the inmate has a constitutional right to prior notice, proper pleadings, and the right to be heard prior to the removal of funds from an inmate’s trust account.

PAROLE PROCEDURAL CHANGES:

SB-45: There has been a policy change you should be aware of regarding offenses that are subject to a SB-45 vote. For those unfamiliar with an SB-45 this is when the entire parole board members must review the parole application from the inmate and determine if the parole board would like to release the inmate to parole. To receive a favorable vote, the inmate must convince five of the seven board members to approve his application for parole. Senate Bill 45 has been codified in Government Code Sec. 508.046. In the past only three offenses were subject to what is known as the SB-45 vote. Those offenses were(1) murder one, (2) aggravated sexual assault, (3) and indecency with a child by touching. The Legal Department of TDCJ has now decided the statute applies to all death penalty cases, with less than a death sentence, which were committed in 1972 and to all old murder with malice cases under the theory that these are predecessor offenses to capital murder. Senate Bill 45 votes will also apply to old convictions for rape or aggravated rape based upon their decision that these are predecessor offenses of sexual assault and aggravated sexual assault. This means that a substantial number of inmates who were not previously subject to an SB-45 parole vote will now be subject to the requirement of convincing five of the seven parole board members to approve their application for parole instead of the usual parole vote in which an inmate would only have to convince two of the three parole board members.

Electronic Files: I have been writing about the parole board’s efforts to go from a paper intensive system to a digital or electronic system. Six years ago, the parole board began the process of trying to convert from information placed on paper and filed with the parole board to a system of electronic files which can be moved from computer to computer and stored on servers (computers that have massive hard drives and can store large amounts of data) instead of cardboard boxes stored at a warehouse. The old method required the physical file to be taken from the warehouse approximately 6 months before the parole board appearance date and then the physical file moved from office to office, desk to desk until it is sent to the parole board and once the inmate’s file is received by the parole board the parole board members would then review the information and vote whether to release the inmate or to keep the inmate in custody. This parole board vote usually took place approximately 2 or 3 months before the official parole board appearance date. Now, my office has over 6 electronic files we are presently working on. These files are composed of digital information, not pieces of paper, and they are being transmitted electronically from one computer to the next. The parole board has decided all inmates coming into the system from January 1, 2007 on will be electronic files. Inmates who have been in the system before January 1, 2007 will still be handled the old way. Because the electronic filing system is new, there is no information available, at this time to determine how fast these inmate files will be completed and sent to the parole board. Inmates cannot wait until they go into review to start preparing their parole packages or hiring lawyers to prepare their parole packages. Waiting until it’s too late may result in the parole board reviewing the inmate’s file with no positive information in the file and basing their decision on whether or not the inmate should be released to parole on the usually negative information sitting in the inmate’s file. Even under the old method, for some reason, inmate’s or their families waited until the inmate was in review before they contacted my office. Should this occur on an electronic file, more than likely, I would have to refuse to represent this individual because I will not be able to guarantee if I can complete the investigation, gather the evidence, review all of the evidence, prepare a 30 or a 45-page parole package, get it filed in time to argue for the inmate’s release. This new electronic system may result in the parole board reviewing inmate files for parole sooner than under the old system. In other words, inmates’ applications for parole could be reviewed as early as four months prior to the parole review date. You cannot wait around to hire an attorney, especially with these new electronic files. If you are coming up for review, you should contact my office as soon as possible, preferably no later than one-year before your review date.

RUMORS:

There is presently a rumor circulating that the Legislature is changing the law affecting 3g offenders. The present law requires the inmate serve one-half actual time before he/she is eligible for parole if he/she is convicted of a 3g offense. Supposedly, according to the rumor, the Legislature has passed a law rescinding the one-half requirement for any crime defined as a 3g offense making all inmates first parole appearance before the parole board possible after serving only one-fourth of their sentence. The first parole review, according to the rumor, will be eligible when the inmate has served one-fourth of his sentence and that one-fourth will be computed by adding the actual time the inmate has served plus any good time credits, and when the actual time served in the good time credits equal one-fourth of the sentence the inmate would be eligible for parole. FALSE. There is no such legislation proposed to date. I have reviewed all of the bills pending before the criminal justice committee, which is the committee all criminal laws must go through before they are approved for a floor vote, and there is no such law proposed or filed by any legislator.

Next rumor circulating: Because of the recent scathing critique of the parole board by the Sunset Commission, the entire parole board will be replaced and a new group of individuals will be appointed. FALSE. I have found nothing indicating there is any basis for this rumor. While the Sunset Commission’s critique of the parole board was harsh, there is no indication the Governor is contemplating removing any parole board members or commissioners. The Governor is only able to remove those parole board members he appointed. The members are appointed by the governor and they serve for a six-year term. There are seven parole board members. The parole board is made up of the seven parole board members and 11 commissioners. The commissioners are civil servants and may not be removed unless they commit a felony or a crime of moral turpitude. They do not have a term limit and they do not serve at the pleasure of the Governor. Because of the law allowing the Governor to remove only those parole board members he appoints, he could only request the resignation of the seven parole board members. He could not request the resignation of the remaining parole board commissioners.

LEGISLATIVE NEWS:

I’m not addressing proposed legislation in this letter as I did in my previous letters. I’m afraid most people did not understand the distinction between proposed and actual law. Unless a bill comes out of the committee, receives a majority vote from both the House and the Senate, is sent to the Governor’s desk, and the Governor signs the bill, the bill does not become law and does not affect anyone.

Time payment plan: If you decide to hire me and do so well in advance of your eligibility date, I can design a time payment plan for your family or loved ones, but I must be paid in full before I submit the parole package or request an appearance before the Parole Board, which is normally submitted 4 months prior to the parole review date. The time payment plan has been very helpful to many of my clients who have limited financial resources and thereby allowed them to hire me without causing them financial distress because they have hired me many months or even years in advance. If you wait until the last minute, the entire fee is going to be due immediately.

Please do not send any of your documentation to me prior to retaining me.

Sincerely,