Friday, September 28, 2007

Youth Commission decision violates law, agency rules on 19-20 year olds

Here's a prediction based solely on circumstances, I have no inside knowledge: An attorney somewhere in Texas will soon sue the Youth Commission on behalf of one of the 79 youth offenders with determinate sentences being kept there past their 19th birthday.

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:

(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.
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.

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.


Anonymous said...

Every parent of every child in TYC has a reason to hire an attorney. No one can be allowed to make as many mistakes as we have seen from the leadership at TYC without some accountability.

It doesn't matter one bit that they have the support of folks in the legislature. That support is based on care on the cheap. This strategy will prove very costly in the long run.

Let us hope the courts will do a better job of sorting all this out.

Anonymous said...

Some parents are a little gun shy because if they push the issue, their child may end up in TDCJ!!!!

Anonymous said...

What really bugs me about all this is that Whitmire is a lawyer. He should know better. With all the lawyers who are members of the legislature, it is amazing that SB103 should be such a mess! Then again, maybe it is because of all the lawyers in the legislature. Lawsuits bring money to law firms. Duh!

Anonymous said...

You know, Grits, it's a small thing, but I'm looking at the DMN article and the quotes from legislators are all over the map, so much so that I wonder if they've really got any idea what their goals for TYC should be.

Sen Hinojosa states that some of the older juvies haven't finished their rehab programs, but then states that the primary factor for parole or transfer decisions should be "public safety."

Of course, the main justification for "lock 'em up" policies of the 90s was public safety, even if it came at the expense of rehab. In fact, get tough types usually see the two as incompatible goals.

George Bush, 1995, running for Texas governor: "So long as we've got an epidemic of juvenile crime, I think we ought to forget about rehabilitation and worry about incarceration."

So which is it?

Sen Whitmire continues to offer blanket defenses for all TYC actions as he has for some time now.

Sen Madden, in the Statesman piece, contradicts TYC claims that the lege had been notified of the decision to basically violate SB103 on moving out older offenders. His chief concern is public safety. In fact most of the media coverage of the issue emphasizes same.

ONly a fool would deny that public safety is very important, or suggest that it's OK to just release a murderer or a rapist in the community.

But generally, these are not representative of the offender population and focusing on them moves the discussion back toward thinking of juvenile offenders primarily as unchangeable, inherently criminal adults.

The reality seems to be that TYC is mishandling violent and nonviolent offenders alike, but in different ways. If we focus only on the "worst of the worst" we miss the forest for some trees.

Bill Bush

Anonymous said...

I am just glad you keep the focus on the real issue with juvenile corrections. Causes and rehabilitation. I wish that there would be more discussion about rehabilitation. That's what keeps me focused. Otherwise why not just be a guard at an adult prison? We have such an opportunity to be in the national spotlight by developing model programs based on expert advice such as the Blue Ribbon Panel.

Then Ms Pope just makes discounting statements about the Blue Ribbon Report. These are people that were hired by DP. So if they were not helpful then by using reason, we can deduce that her judgement and the results of her judgements are also not helpful.

Also, she hired Micky Neal. On the issue of pepper spray she told us to use "Common Sense." I think the Blue Ribbon Panel contained a lot more knowledge than just Common Sense. Their professional degrees and position titles alone prove that.

Since we are now seeing the result of law suits, settlements, reversals of directives and such, does that not prove that their (MN and DP) concept of common sense is really not common at all?

It seems to me the answer is no. They represent the 2 tails of the bell curve. Common Sense is something that both of them are striving to obtain.

And thinking along the lines of Howard Hickmans post on a story and blog above this one, He implies to me that Common Sense is not something that they will obtain soon, if at all.

We need rationalism, and decency to be a part of our managements decision making ability.

I wonder how many state agencies have a line item in their budget for Lawsuit Settlements?

Seems to me, Lawsuits in general are just a politically correct way to to say, "I F##### Up!!"

Anonymous said...

Grits, the 8/31 policy you are quoting really is not any different from Human Resources code 61.084, which requires determinate sentenced offenders to be placed on TDCJ parole at age 19.

2:10, if these parents had money to hire an attorney, most of their kids wouldn't be in TYC.

Anonymous said...

Youth Commission violates law....should read violates SEVERAL laws! Lets see here, I can name 10 laws that have been violated in the facility I work in alone.
1. abuse of youth in custody
2.official oppression
3.violation of the federal whistleblower law.
4. Exploitation of youth in custody
5. neglect/ not providing medical care.
6. retaliation for filing complaints ( both youth and staff)
7.abuse of state property.
8.altering or destroying legal documents.
9.race discrimination
10.sexual misconduct ( again, both staff and youth affected)

This is what we deal with on an average day at McFadden Ranch.
So tell us again Ms. Pope....the agency is "fixed" now. Wake up and VISIT your facilities!

Anonymous said...

What about Shaun Earl Arender, 19, of the Navarro Mills area charged Sept. 28th with the Sept. 10th rape and murder of 6-year old Hanna Mack? Wasn't he released from TYC according to the new law? Also charged with two counts of burglary of a building, one count of burglary of a habitation and one count of possession of marijuana.

Gritsforbreakfast said...

What about the Arender case?

Does it change the content of SB 103 or the stated legislative intent?

Unfortunately, when legislators and TYC admin had a chance to plan for this kind of thing in the spring, leadership was too busy screaming "off with their heads" and dumping the agency's talent pool to think about the consequences of their decision. That's unfortunate, but it doesn't change the content of the statute.

I'm predicting a loss in court by TYC not because I think paroling those youth is the right or wrong thing to do, but because my reading of the statute and the 8/31 "emergency" rule change tells me TYC has set itself up to loss in court if it does not parole these youth or else pass on the decision to a judge on a case by case basis. Just keeping 79 without doing either, IMO, simply violates law and the administrative code. Whaddya do?

Anonymous said...

You are correct - the problem is the law and the lawyer(s) in the lege who wrote it. It is a poorly conceived, and poorly written law, but, the governor signed it, and it has not been declared unconstitutional by any court; so it is the law, whether we like the results or not.

Anonymous said...

Grits, after throwing out "the agency's talent pool," as you so appropriately called it on this blog string, there is only one thing left that we REALLY need to throw out.....THE GOVERNOR!!!!

Anonymous said...

Arenda was released before the Pope and other took over. He has been out of TYC for a couple of years.

But he is still a product of TYC and should have never been put back on the streets of Texas. Maybe they will hang him in a barn like he did the little girl.

Anonymous said...

TYC did try to send many of these kids back to the judges, who denied jurisdiction and left TYC back at square one. For those 19+ y/o kids that have stayed beyond their minimum period of confinement (statutorily defined based on the severity of the offense), TYC has the authority to release them on TDCJ parole at any time without the approval of the juvenile court. However, TDCJ essentially refused to do this for political reasons.

MSM reporters then chose to blow up the issue and terrify the public with claims of violent predators returning to the streets, and elected officials fell nicely and predictably in line.

The determinate sentencing statutes are very, very well written. Thank you, Bob Dawson! What experts in TX juvenile and criminal law does Steve Foster have advising him again?

Anonymous said...

12:09, The answer on which juvenile law expert is advising Steve Foster, the answer is that he doesn't seek or take advice from anyone other than his fellow politic hacks, who know even less than he does about juvenile law but do know the location of a good bar.

Anonymous said...

If Steve Foster were an old TYC person he'd have been fired by now for his incorrect advice, if he hadn't been fired already just for being an old guard TYC employee.

Anonymous said...

If Foster were an old TYC employee, he never would have been hired by the old TYC administrators because he is incompetent, has no juvenile law experience, and has never worked in a state agency.

Anonymous said...

Guess What! They are still here! Nothing has changed...

Anonymous said...

How long is it going to take for this shit to hit an appelate court?