It's hard to understand how we wound up here. The Texas Lege in SB 103 told TYC clear as day they couldn't keep kids past their 19th birthday. Here's the verbatim language:
On Tuesday, Dimitria Pope, the agency's acting executive director, announced that 79 of 159 older offenders will be kept in agency lockups, and another 40 will remain on Youth Commission parole.
Only 24 will be transferred to adult parole, and eight are being referred to judges for re-sentencing to an adult prison, she said. Another eight have been released because they turned 21.
(e) Except as provided by Subsection [The only exception, subsection g, says that:
(f) or] (g), the commission shall discharge from its custody a person not already discharged on the person's 19th [ 21st] birthday.
The commission shall transfer a person who has been sentenced under a determinate sentence to ... [the] Texas Department of Criminal Justice on the person's 19th [So how do they get to keep half the offenders in TYC? Where is the legal authority for that under the statute? Until yesterday, TYC's public stance was that they had no authority to keep these offenders any longer. Reported Ward, "By late August, Pope was telling a legislative committee that the agency had a plan to get all of the older offenders out of Youth Commission custody — and that most would go to into the adult system."
21st] birthday, if the person has not already been discharged or transferred, to serve the remainder of the person's sentence on parole.
Since then, TYC says the Attorney General signed off on a new interpretation of the law, one that I don't think can be justified by the plain language of the statute. The agency now says SB 103 only applies to youth whose cases were adjudicated after the legislation took effect. But that's not what the law says. SB 103 changed criteria for release decisions for all youth, including those already incarcerated. Nothing in the language implies that it's possible to grandfather these cases.
Pope is relying for this view on a document that's not actually from the Texas Attorney General per se, but on TYC letterhead signed by TYC General Counsel Steve Foster and Assistant Attorney General Sharon Pruitt. Here's the document, which a reader forwarded to me last week. (It was actually written before Ms. Pope's last report to the Lege.) The key language - the part that I think intentionally misinterprets (or at least re-interprets) the law to get TYC out of a sticky problem, says:
The Texas Legislature, through SB 103 as passed and signed into law during the 80th Legislative session, made the decision to reduce for the future the maximum age of offenders from 21 to 19. Given the general prospective application of SB 103, TYC continues to have jurisdiction over its current population of 19 to 21-year old offenders: in other words, those offenders in this age group committed to TYC prior to the effective date of SB 103.But SB 103 was never intended to be "prospective." If that were the case, many of the policies wouldn't apply to older cases when they were clearly intended to do so. For example, the new Office of Inspector General may investigate cases from before the office was created - there are no distinctions anywhere in the bill to say its provisions only apply to youth convicted in the future.
I wish someone would ask for an actual, formal AG opinion on this topic, or that some lawyer would challenge the decision in court on behalf of those still incarcerated - I simply don't think it's credible after all this time to say that's what the law means. No one has ever publicly suggested such an interpretation before now.
Having told the Lege straight up less than a month ago she would do the precise opposite of the new announced policy, Ms. Pope yesterday said lawmakers were all on board. That was news to House Corrections Committee Chairman Jerry Madden, though, reported Ward:
The crux of the issue over 19-20 year olds with determinate sentences boils down to a family dispute, oddly enough: The new law says TYC "shall transfer" these offenders to adult parole. But TYC conservator Ed Owens' wife Rissie, who chairs the state Board of Pardons and Parole, refused to allow parole for most of these offenders. I don't believe that was within her legal power, but I also know that in a marriage it can be dangerous to challenge the Missus, so Owens and Pope decided to re-interpret the law rather than force the parole board chair to follow it.
Pope said Tuesday that lawmakers had been briefed on the agency's new decision.
But House Corrections Committee Chairman Jerry Madden, an author of the law and co-chairman of a special legislative committee overseeing Youth Commission reforms, disputed that.
"I have not been briefed by anyone ... and I can tell you that our legislative intent was to get the 19- and 20-year-olds out of TYC facilities," Madden said. "I have no idea how they've come up with this. I continue to be surprised and amazed by some decisions out there."
Honestly, it's time for the Governor to step up and provide some adult supervision for TYC (and for that matter the parole board - he should insist the chair he appointed respect the law). With Ed Owens on his way out, perhaps the Governor should take this opportunity to reshuffle things at TYC and appoint new management to run the agency - preferably real juvenile justice experts, or at least somebody who could be trusted to follow the law.