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DISCIPLINE:
Depending on the degree of seriousness,
violations of rules may be handled informally
by counseling and verbal reprimand, or
formally through disciplinary hearings.
Hearings are classified as major or minor,
based on the seriousness and frequency of
rule violations. In a minor hearing, a finding of
guilt can result in punishment ranging from
extra duty, restriction to living quarters,
suspension of recreation, restriction from
making commissary purchases and contact
visitation. Under a major hearing, the available
penalties include solitary confinement, loss of
accumulated good conduct time and/or
demotion in time-earning class
A state jail offender involved in a disciplinary
hearing may receive any penalty categorized as
minor, or as major for the state jails. However,
a state jail offender may be provided with a
major hearing if assessment of monetary
damages is imposed due to destruction of
state property. Disciplinary hearings for
offenders sentenced to prison, but assigned in
transfer status to a state jail, shall be
conducted in accordance with the grade
assigned to the disciplinary report and under
the applicable minor or major hearing
procedure.
Trained personnel, called counsel substitutes,
are assigned to units to represent offenders at
major hearings who are charged with
disciplinary violations. Offenders shall be
provided with counsel substitutes prior to a
major hearing when the following
requirements are met.
(Note: This requirement does not apply to
state jail offender disciplinary hearings, except
when state jail offenders are brought before
major hearings for assessment of monetary
damages for destruction of state property.):
The TDCJ's internal prison disciplinary system is a "farce".
This is the way it works:
The prisoner receives notice of the charges from his "counsel substitute.
"A "counsel substitute" is a TDCJ employee (not a lawyer)
who "represents" the prisoner at the disciplinary hearing.
At the hearing, another TDCJ employee acts as the judge ("disciplinary hearing officer").
His job is to find the prisoner guilty (regardless of whether he is in
fact guilty), and then assess "an appropriate sanction."
Sanctions range
from commissary, recreation and cell restriction, to solitary confinement,
to the loss of good time, to reductions in line class.
The entire process
is arbitrary, unreasonable and unfair.
As a result, many prisoners want
to sue for redress for being wrongfully and/or falsely charged and convicted in a disciplinary proceeding, or for losing good time or line class as a
disciplinary sanction.
Unfortunately, based on the state of the law, very
few prisoners have standing to actually bring suit in court to have
a disciplinary conviction overturned.
The proper vehicle to challenge a prison disciplinary conviction and
sanction is a writ of habeas corpus under 28 U.S.C. §2254 [FN 1] and
not a civil right claims under 42 U.S.C. §1983. If a prisoner files
a 42 U.S.C. §1983 suit to challenge a disciplinary charge and conviction,
the case will be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477
(1994). In Heck a prisoner sued state prosecutors and police officials
for false arrest and destroying evidence resulting in his conviction.
The Supreme Court held that a prisoner cannot maintain a civil rights
action for damages based on the legality of a prior criminal proceeding
unless a state court or federal habeas court has determined that the
terms of confinement are in fact invalid.
If a judgment in favor of the
plaintiff would necessarily imply the invalidity of the conviction or
sentence, then the claim is barred unless it has been reversed or
declared invalid. See Heck, 512 U.S. 477 (1994);
The Heck bar applies to challenges to prison disciplinary proceedings, challenges to parole proceedings, and claims for declaratory relief. See Edwards v. Balisok, 520 U.S. 641 (1997) (declaratory relief); Spencer v. Kemna, 523 U.S. 1 (1998) (parole proceedings); Clarke v. Stadler, 154 F.3d 186 (5th Cir. 1998) (prison disciplinary proceedings).
The only exception to the Heck bar to a §1983 challenge to a prison
disciplinary case is if the prisoner alleges that the disciplinary
case was written as retaliation for the exercise of constitutionally
protected conduct.
In such retaliation cases, Heck is not a bar to a
§1983 suit and the prisoner is not required to demonstrate a favorable
outcome of the disciplinary case.
See Woods v. Smith, 60 F.3d 1161,
1164-66 (5th Cir. 1995); Lynn v. Cockrell, et. al., No. 03-51013
(5th Cir. Jan. 29, 2004).
Writ of Habeas Corpus - 28 U.S.C. §2254
To determine whether the prisoner has standing to file a writ,
you look at:
* the disciplinary sanction against the prisoner;
* the prisoner's sentence and offense; and
* whether the prisoner is under the current or
old mandatory supervision law
The disciplinary sanction against the prisoner
In order to having standing to file a writ under §2254, the sanction
must have affected a property or liberty interest.
Prisoners can seek
to recover good time credits lost in a prison disciplinary proceeding
through a writ of habeas corpus only if the prisoner had a vested liberty interest in the lost good-time credits.
See Preiser v. Rodriguez,
411 U.S. 500 (1973); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)
(holding that federal habeas relief cannot be had absent the allegation
that the prisoner has been deprived of some right secured to him by the
United States Constitution or the laws of the United States).
In Texas, only prisoners who are eligible for release on mandatory
supervision under the mandatory supervision law in effect prior to
September 1, 1996 have a vested interest in their accumulated good
time credits.
This means that only prisoners who are eligible for
release on mandatory supervision (before it became discretionary
mandatory supervision), have standing to file a writ to challenge
a disciplinary case and sanction.
When a prisoner is eligible for mandatory supervised release, and
when prison disciplinary proceedings result in a change in good-time
earning status that extends the prisoner's release date, the prisoner's
petition challenging such proceedings falls within §2254.
See Kimbrell v. Cockrell, 311 F.3d. 361 (5th Cir. 2002), citing Wadsworth v. Johnson,
235 F.3d 959, 961 (5th Cir. 2000); Malchi v. Thaler , 211 F.3d 953, 956
(5th Cir. 2000) (holding that Texas prisoners eligible for mandatory
release who allege that they were erroneously denied good-time credit
that, if restored, would effect sooner release from prison may seek
relief under 28 U.S.C. § 2254); Story v. Collins, 920 F.2d 1247, 1250
(5th Cir. 1991).
These decisions rest ultimately on the Supreme Court's
holding in Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) that authorized
§2254 as the sole remedy for a prisoner's challenge to revocation of
good-time credits. Kimbrell, 311 F.3d at 362.
As a general rule, only sanctions which result in loss of good conduct
time credits for prisoners who are eligible for release on mandatory
supervision, or which otherwise directly and adversely affect release
on mandatory supervision will implicate a liberty interest.
See Spicer v. Collins, 9 F.Supp.2d 673, 685 (E.D. Tex. 1998), citing Orellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996).
There is also no constitutional expectancy to parole in Texas, because
it is entirely speculative whether a prisoner will be released on parole. Madison, 104 F.3d at 768; Malchi v. Thaler , 211 F. 3d 953, 957
(5th Cir. 2000).
Therefore, if the prisoner lost good time during a
prison disciplinary hearing, and the loss adversely affected his parole eligibility date, or his actual parole date, but not his mandatory
mandatory date, he does not have a federal writ remedy because there
is no constitutional expectancy of release on parole.
Prisoners do have a property interest in the money in their Inmate
Trust Fund accounts, but do not have a property interest in the
interest on the funds.
See Hatfield v. Scott, 306 F.3d 223
(5th Cir. 2002); Brewer v. Collins, 857 S.W.2d 819 (Tex. App.
[1st Dist], 1993).
So they must receive due process before those
funds are seized. [FN 2]
The prisoner's sentence and offense
Prisoners serving life sentences are not eligible for
mandatory supervision under the old or current law.
See Arnold v. Cockrell, 306 F.3d 277 (5th Cir. 2002);
Ex parte Franks, 71 S.W.3d 327 (Tex.Crim.App. 2001).
Prisoners who are serving sentences for, or have previously
been convicted of the following offenses, are not eligible
for release on mandatory supervision:
an offense for which the judgment contains an affirmative
finding under Section 3g(a)(2), Article 42.12, Code of
Criminal Procedure (affirmative finding of a deadly weapon);
a first degree felony or a second degree felony under
Section 19.02, Penal Code (murder);
a capital felony under Section 19.03, Penal Code (capital murder);
a first degree felony or a second degree felony under Section 20.04,
Penal Code (aggravated kidnaping);
a second degree felony or a third degree felony under Section 21.11,
Penal Code (indecency with a child);
a second degree felony under Section 22.011, Penal Code (sexual assault);
a first degree felony or a second degree felony under Section 22.02,
Penal Code (aggravated assault);
a first degree felony under Section 22.021, Penal Code
(aggravated sexual assault);
a first degree felony under Section 22.04, Penal Code
(injury to a child, elderly person or disabled person);
a first degree felony under Section 28.02, Penal Code (arson);
a second degree felony under Section 29.02, Penal Code (robbery);
a first degree felony under Section 29.03, Penal Code
(aggravated robbery);
a first degree felony under Section 30.02, Penal Code
(burglary); or
a felony for which the punishment is increased under
Section 481.134 (drug free zone) or Section 481.140,
Health and Safety Code (use of a child in commission
of offense).
See Tex. Gov't Code Ann. §508.149 (Vernon 2002).
If the prisoner was convicted of any of the foregoing offenses,
he is ineligible for release on mandatory mandatory
(or discretionary mandatory supervision for that matter), so he
does not have a vested liberty interest in his good time.
Therefore, even if he lost good time as a disciplinary sanction, because it will
not adversely impact his mandatory mandatory release date, he does not
have standing to challenge the disciplinary sanction via a writ of
habeas corpus.
Determining the controlling mandatory supervision law
If the prisoner is only eligible for discretionary mandatory supervision
under the current statute, and is not eligible for mandatory mandatory supervision under the old (pre-1996) statute, then a sanction of lost
good time does not affect a vested liberty interest and he will not
have a legal remedy.
When determining whether the prisoner falls under the old statute,
or the current statute, look to the date of the first element of
his offense of conviction.
That date is the governing date.
If he committed the first element of his instant offense before
September 1, 1996, he falls under the pre-1996 mandatory supervision
statute (mandatory mandatory).
If he committed the first element of his instant offense on or after September 1,1996, he falls under the current mandatory supervision statute (discretionary mandatory).
If the prisoner falls under the old (pre-1996) statute, and is
mandatory mandatory, then he has a constitutional expectancy of
early release and a vested liberty interest in his mandatory date.
This means that if he lost good time in a prison disciplinary hearing,
and the loss adversely affected his mandatory supervision date, he can
challenge the disciplinary case in federal court via a federal writ
of habeas corpus.
If the prisoner falls under the current mandatory supervision statute
(effective for offenses occurring on or after September 1, 1996), and
he is discretionary mandatory, then he does not have a constitutional
expectancy of early release or a vested liberty interest in his
mandatory date.
This means that even if he lost good time in a prison disciplinary hearing, and the loss adversely affected his mandatory
supervision date, he cannot challenge the disciplinary in federal
court because he does not have a constitutional expectancy of release
under the current mandatory supervision statute.
Assuming the prisoner has standing to file a writ;
For a prisoner to maintain an action under §2254, he must first exhaust
state habeas remedies.
See Serio v. Members of the Louisiana State Bd.
of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) ("If a prisoner
challenges a single hearing as constitutionally defective, he must
first exhaust state habeas remedies.").
Texas courts do not hear cases challenging prison disciplinary cases. Therefore, state remedies for
purposes of § 2254(b) are exhausted when the prisoner pursues the TDCJ's
internal grievance procedures.
See Gartrell v. Gaylor, 981 F.2d 254, 258 n.3 (5th Cir. 1993) (when challenging a prison disciplinary hearing in habeas corpus, "we have required prisoners to exhaust the TDCJ grievance procedures");
Spaulding v. Collins, 867 F. Supp. 499, 502 (S.D. Tex. 1993) ("Because
this case involves a prison disciplinary action, it is not reviewable
by state courts and is properly brought by federal habeas corpus petition
to this court" after exhaustion of the TDCJ grievance procedure); see also
Baxter v. Estelle, 614 F.2d 1030, 1031-32 (5th Cir.), cert. denied, 449 U.S. 1085 (1981); Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir.), cert. denied,
444 U.S. 848 (1979); Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986)
(holding that the Texas Court of Criminal Appeals will not entertain state
habeas actions challenging violations of prison disciplinary procedures).
The deadline for filing a writ to challenge is prison disciplinary case is
one year. The limitations period for filing a habeas petition challenging
loss of good-time credit as result of disciplinary action is equitably
tolled during the pendency of the prisoner's administrative appeals through
the prison grievance process. Foley v. Cockrell, 222 F.Supp 2d 816, 829
(N.D. Tex. 2002) ("Because exhaustion of administrative remedies is
required, Petitioner is entitled to equitable tolling of the statute of limitations until the date that he completed the TDCJ administrative
review process.").
In June 2003, Fifth Circuit Court of Appeals held that an inadequate
prison law library may constitute a state created impediment that
would toll the limitations period on filing a federal writ.
See Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003) ("We conclude
that an inadequate prison law library may constitute a state created
impediment that would toll the AEDPA's one-year limitations period
pursuant to §§ 2244(d)(1)(B)").
If a prisoner files a federal writ of habeas corpus to challenge a
disciplinary sanction, he must file it in either the federal district
court of his state conviction or the federal district court in which
he is confined at the time he files suit. Jurisdiction is not always
proper in the federal district court in which the disciplinary action
occurred. See Wadsworth v. Johnson, 235 F.3d 959 (5th Cir 2000).
Due process
Prison disciplinary proceedings are not part of a criminal prosecution; therefore, the full panoply of rights to which a defendant is entitled in criminal proceedings does not apply to a prisoner-defendant in a prison disciplinary case. See Broussard v. Johnson, 253 F.3d 874, 876
(5th Cir. 2001) citing Wolff v. McDonnell, 418 U.S. 539, 556, (1974).
To satisfy the requirements of due process, a prison disciplinary
action must meet the following minimum procedural requirements:
- The prisoner must be given advance written notice of the charges
against him;
- Any evidence against the prisoner must be disclosed to him;
- There must be a written statement by the factfinders as to the
evidence relied on and the reasons for the disciplinary action;
- The prisoner should be afforded the opportunity to be heard in
person and to present witnesses and documentary evidence in his
own defense as long as doing so will not jeopardize institutional
safety or correctional goals;
- The prisoner should be given the right to confront and cross-examine
[FN 3] adverse witnesses, unless the hearing officer specifically finds
good cause for not allowing confrontation.
See Wolff, 418 U.S. at 559; Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
The right to attend a disciplinary hearing is an essential due process protection, but it is not absolute or guaranteed. See Battle v. Barton,
970 F.2d 779, 782 (11th Cir. 1992); Moody v. Miller, 864 F.2d 1178,
1181 (5th Cir. 1989) (if a prisoner, through no fault of prison officials,
is unable to attend a disciplinary hearing, due process requires nothing
more than that the hearing be held in accordance with all of the other requirements of due process that are called for under the circumstances).
Standard of review
When reviewing a writ challenging a prison disciplinary conviction,
the federal court does not retry the prison disciplinary charge. Rather,
the Court looks only to whether there was any evidence to support the disciplinary charge and conviction. See Smith v. Rabalais, 659 F.2d 539,
545 (5th Cir.), cert. denied 455 U.S. 992 (1982) (stating "federal courts
cannot retry every prison disciplinary dispute;" and that courts may act
only where "arbitrary or capricious action is shown.") this means that
the federal court does not need to examine the entire record,
independently assess the credibility of witnesses, or weigh the evidence.
Because federal courts cannot make independent determinations or weigh
the evidence, the only relevant question is whether there was any
evidence in the record to support the conclusion reached by the
disciplinary board. See Ramirez v. Dretke, No. 03-40740
(5th Cir. Jan. 12, 2004) citing Superintendent, Massachusetts
Correctional Inst. v. Hill, 472 U.S. 445, 455-56 (1985).
This means that prison disciplinary proceedings will be overturned
only where there is no evidence whatsoever to support the decision
of the prison officials. Smith, 659 F.2d at 545; Reeves v. Pettcox,
19 F.3d 1060 (5th Cir. 1994).
Sufficient support for a finding of guilt is provided by "some facts"
or "any evidence at all." Gibbs v. King, 779 F.2d 1040, 1044
(5th Cir. 1986); Hudson v. Johnson , 242 F.3d 534, 537 (5th Cir. 2001)
(officer's report standing alone provides some evidence of guilt).
A disciplinary hearing officer's decision will satisfy the due
process requirements if there is "some evidence" in the record to
support the decision. Superintendent, Massachusetts Correctional
Inst. v. Hill, 472 U.S. 445, 455 (1985). A prison guard's testimony
also constitutes "some evidence." See Ramirez v. Dretke , No. 03-40740
(5th Cir. Jan. 12, 2004) (in which court held that prison guard's
testimony that the prisoner confessed to stealing, possessing and
selling contraband, while not overwhelming evidence, was "some
evidence" sufficient to sustain the disciplinary conviction.)
WHEN THE PRISONER DOES NOT HAVE STANDING TO BRING A WRIT:
To challenge problems for which there is no court remedy, the prisoner
must use the TDCJ's grievance procedure and file a Step 1 grievance
(also called a Step 1 appeal). When the Step 1 grievance/appeal is
denied (not if, but when), he must file a Step 2 grievance (also
called a Step 2 appeal). For a detailed description of the TDCJ's
grievance procedure, see Wendell v. Asher, 162 F.3d 887, 891
(5th Cir. 1998). No matter how meritorious a prisoner's claim,
the TDCJ will deny the Step 1 and Step 2 grievances the majority
of the time. Regardless of what the TDCJ may state publicly, its
unwavering position in administrative matters is that (1) its
employees never lie; and (2) prisoners always lie.
The TDCJ gives absolutely no weight to a prisoner's word.
Because most allegations come down to a prisoner's word versus a guard's
word, the prisoner will always lose. Nonetheless, there are two reasons
it is important that prisoners use the grievance procedure. First, for
issues that can be taken to court, the Prison Litigation Reform Act and
Chapter 14 of the Texas Civil Practice & Remedies Code (Inmate Litigation) require the exhaustion of administrative remedies. Second, and equally
important, when prisoners file grievances, the complaints are recorded
and copies of the grievances are placed in their classification files for
future reference. This paper trail can help the prisoner in future
individual or class litigation.
Writ Cases Challenging Disciplinary Cases
Spellmon-Bey v. Lynaugh, 778 F.Supp. 338, 347 (E.D. Tex. 1991):
A disciplinary hearing officer is required to make an independent
evaluation of the credibility and reliability of a confidential
informant and his information. The evaluation must be in a fashion
"that fulfills the principles of due process." The disciplinary
hearing officer may not simply accept and rely on the investigating
officer's conclusions of credibility and reliability without making
an independent inquiry.
Boyd v. Cockrell , Civ. No. 2:00-0031 (N.D. Tex. 2002):
Gibson v. Cockrell , Civ. No. 2:99-CV-0400 (N.D. Tex. 2003):
Broussard v. Johnson , 253 F.3d 874 (5th Cir. 2001):
Ramirez v. Dretke, No. 03-40740 (5th Cir. Jan. 12, 2004):
The prisoner filed a writ challenging his disciplinary conviction
for aiding and abetting an attempt to escape. The Court held that
the prison guard's testimony that the prisoner confessed to stealing,
possessing and selling contraband, while not overwhelming evidence,
was "some evidence" sufficient to sustain the disciplinary conviction.
FN 1 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
held that to recover damages in a 42 U.S.C. § 1983 claim, a plaintiff
must prove that his conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by state tribunal authorized to make such determination, or called into question by federal
court?s issuance of writ of habeas corpus. The Heck bar applies to
challenges to prison disciplinary proceedings, challenges to parole
proceedings, and claims for declaratory relief.
See Edwards v. Balisok, 520 U.S. 641 (1997) (declaratory relief);
FN 2 There are several statutes that provide for the seizure,
forfeiture or garnishment of ITF funds. See Tex. Code of Crim.
Procedure §42.22, Tex. Gov't Code §501.014, Tex. Gov't Code
§500.002, Tex. Civ. Prac. Rem. Code §63.007.
FN 3 The Supreme Court has recognized that prisoners do not have
a due process right to confrontation or cross-examination during
prison disciplinary proceedings. Id. "Thus, the prisoner's right
to call witnesses and present evidence in disciplinary hearings
can be denied if granting the request would be 'unduly hazardous
to institutional safety or correctional goals.'" Ponte v. Real,
471 U.S. 491, 495 (1985) quoting Wolff , 418 U.S. at 566. However,
due process does require, at a minimum, that there be "some evidence"
in the record to support the disciplinary decision. Superintendent,
Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985).
TEXAS
South Texas Innocence Project
DISCIPLINE
All offenders are required to obey the rules
established by TDCJ and by the unit to which
they are assigned. Offenders receive
information concerning rules soon after they
arrive.
(except for state jail offenders, who earn no good conduct
time).
a. When the offender is developmentally
disabled;
b. When the offender is assigned to a
psychiatric inpatient facility, or has been
placed on an outpatient caseload;
c. When the offender’s literacy or
understanding of English is questionable;
d. When the offender, because of the
complexity of the issue, would be unlikely
to be able to collect and present the
evidence necessary for an adequate
comprehension of the case;
e. When the offender is confined to any form
of segregation pending the hearing; and,
f. When a witness requested by the accused
offender is unable to attend a disciplinary
hearing because the requested witness or
the accused offender has been transferred
to another unit.
a prison guard writes up a disciplinary case against a prisoner.
see also Hainze v. Richards, 207 F.3d 795, 798 (5th Cir.), cert.
denied 531 U.S. 959 (2000).
Exhaustion of administrative remedies
An inmate should not be held responsible for contraband
found in an area to which he merely has access unless
there is other evidence linking him to the contraband.
Mere access or mere presence linking prisoner to contraband
is insufficient to constitute "some evidence"
Affirming district court decision that mere fact that
bolt cutters were found in an area in which an inmate
worked, but to which approximately one hundred inmates
had access, was insufficient to satisfy the due process
requirement of "some evidence" to support disciplinary
charge of possession of contraband intended for use in
an escape.
Reversing trial court judgment in favor of prisoner-plaintiff.
Spencer v. Kemna, 523 U.S. 1 (1998) (parole proceedings);
Clarke v. Stadler, 154 F.3d 186 (5th Cir. 1998) (prison disciplinary proceedings).
Univ. of Houston Innocence Network
100 Law Center
Houston, TX 77204
David Dow
(713) 743-7552
South Texas College of Law
1303 San Jacinto
Houston, TX 77002
Contact: Catherine Greene Burnett
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