And they'll win.
The Dallas News follows up today on the Statesman's Mike Ward's report earlier this week that the Youth Commission will not release 19-20 year olds with determinate sentences, as previously announced.
Neither paper reported, however, that an "emergency rule" enacted August 31, two days after a recent joint legislative hearing, requires such youth to be transferred to TDCJ parole by their 19th birthday. This week's decision contradicts not only SB 103 but this recently passed rule. Here's the language that I think unequivocally forbids the new path they've chosen:
(d) Criteria for Discharge. A sentenced offender shall be discharged from TYC jurisdiction upon the earliest of the following events:So if a court hasn't approved incarceration in TDCJ or the youth's sentence hasn't expired, on their 19th birthday this new rule - already in effect because of its "emergency" status - requires youth to be transferred to TDCJ parole. In theory, the rule says the TYC executive director has final authority to do that, but we all know that conservator Ed Owens' wife, Rissie, egged on by the Statesman and critics like Williamson County DA John Bradley, balked at paroling many of the youth, which is why they're still incarcerated.
(1) approval by the committing court for transfer of the youth for confinement in TDCJ; or
(2) expiration of the youth's sentence, unless:
(A) the youth is committed under concurrent determinate sentence and indeterminate commitment orders; and
(B) the sentence is completed prior to expiration of TYC's jurisdiction; or
(3) transfer to the TDCJ Parole Division on the 19th birthday for youth who:
(A) have not completed the court-imposed sentence; and
(B) have not been approved by the committing court for transfer to TDCJ for confinement.
(e) Approval Authority. The executive director or his/her designee is the final approval authority for referral to court for a transfer hearing and for transfer to TDCJ Parole Division for youth not referred to court.
In perhaps the greatest irony in the episode, TYC ED Dimitria Pope said to the Dallas News, "Let's just say there is not a line item [in the agency's budget] that specifically says 'lawsuits.'" Well, no kidding! Maybe y'all should consider that before following through on a decision that violates state law and your own recently created policy! Their own attorneys told them during session the problem was coming.
I think Sen. John Whitmire makes a big mistake by telling legislators to trust TYC's general counsel Steve Foster, who has made numerous ham-handed mistakes since arriving this summer. At this point it appears Foster doesn't know what he's doing, and truly isn't up to the job of general counsel for a state agency. Whitmire told the News:
"They're abiding by their legal counsel," said Sen. John Whitmire, D-Houston, who chairs the Senate Criminal Justice Committee. "The legislators that have been so involved need to allow this agency to operate by listening to their attorneys and using their own good judgment."Well, these are the same attorneys who just had the agency approve a rule as an "emergency" that forbids them from doing what they announced three weeks later. Truly, if a proposal to retract the 8/31 rule isn't in today's Texas Register, I can see no reason but cluelessness. (UPDATE: Whether from cluelessness or another reason, the new Register contains no retraction of the 8/31 rule.) The same general counsel approved an administrative directive in August to change use of force policies in ways that violate GAP policies and the Morales v. Turman settlement. Listening to their attorneys is starting to get TYC into a lot of trouble, in my view.
As Ms. Pope said, the agency has no line item for lawsuits, but announcing changes that blatantly violate your own (recently changed) policies virtually guarantees we'll see more of them, and that they'll be successful. Even if legislators don't seem to care, agency leaders must still obey the law because attorneys representing kids' rights will inevitably make them. They can't bob and weave around this problem until the 81st Legislature, which is the next time Whitmire and Co. get a chance to fix it, barring a (much-needed) special session on TYC.