Habern, O’Neil, & Associates can provide assistance with a variety of prison administrative matters including:
Prison disciplinary cases
Prison classification matters, including classification as a gang member
Medical care matters
Pre diagnostic classification assistance, including special needs classification
PRISON DISCIPLINARY CASES
Although the U.S. Supreme Court has provided some due process protections in prison disciplinary cases, those protections are minimal. Further, to sustain a disciplinary case, the courts require only that the record of the disciplinary hearing contain "some evidence" of guilt. In reviewing disciplinary cases the courts also give great deference to the fact finding made by the disciplinary hearing officer. For these reasons, relief from prison disciplinary actions can be and expensive. To accommodate our clients, we have found it most advantageous to divide the process into administrative measures and legal measures, both of which are discussed below.
Further, because the short time limits for appealing prison disciplinary cases, our administrative involvement in the case does not include the preparation of any appeal through the normal disciplinary appeal process. Those time constraints make it nearly impossible to rely upon the mail system to meet deadlines. The result could be the dismissal of an appeal for failure to timely file the appeal. As a result, the inmate will be expected to fully appeal the disciplinary case through the normal disciplinary appeal process. The efforts of this office will focus on possible remedies outside the normal disciplinary appeal process. Finally, our involvement generally presumes that the inmate concerned has not pled "guilty" at the discipline. If there has been a guilty plea, the client must advise us of that in writing prior to retaining our services. Our ability to obtain relief in a case where there has been a guilty plea is extremely limited.
We see this venture offering two possible avenues by which to obtain relief. The first avenue is an administrative approach. While the appeals process offers two levels of appeal, there is an additional non-required step in the administrative process which can be pursued. That is to take the case directly to the Executive Director of the prison, or the Executive Director of the Texas Board of Criminal Justice, through the Office of the General Counsel.
If our administrative effort fails, the second avenue is to file a writ of habeas corpus. When one files a writ challenging a prison discipline action in Texas, the necessity of first proceeding through state court can be avoided due to a decision by the Texas Court of Criminal Appeals (Ex parte Brager, 704 SW2d 46-A). This means the writ can be filed directly in federal court. You would have to decide whether you wanted to pursue this second avenue, if the administrative approach was not successful. Further, prison disciplinary cases will be heard in federal court only under very specific circumstances. During our administrative review, we will determine if your case meets those circumstances, and will advise you in our written administrative evaluation. Generally, if you have not been sentenced to a loss of good time and do not come under the mandatory supervision law, federal courts will not review your disciplinary case. If you hire us on this matter,
also let us know whether you are under the old or new mandatory law. If you are unsure, we can find out from the date of the offense for which you are currently serving time. If you are under the new mandatory law, any writ
may also have to challenge that procedure whereby you are denied the right to a court appeal of constitutional violations in a prison disciplinary case.
Approach to Dealing with the Problem
If this case requires litigation in the federal courts, the preparation and presentation of these issues to the court are not necessarily the most difficult problems we face. The largest problems oftentimes arise in putting this case together, that is, gathering the evidence. Venue can also be a problem from the standpoint of this office, as the location of the trial is generally in the county where the inmate is incarcerated.
Our initial approach would be through administrative avenues. If we were unsuccessful in obtaining the desired relief administratively, you would decide whether to pursue the legal avenue. Administratively, we request the records from the disciplinary hearing in order to determine what the hearing officer based his finding upon and whether the evidence supports the hearing officer's finding of guilt and sentence. We also attempt to obtain any other information concerning the incident that may be available in TDCJ records, however, where TDCJ is not obligated to provide information we can expect that at every step of the way the prison will do all they can to frustrate our efforts in trying to locate the evidence to overturn a disciplinary case. Finally, we provide a written report of our findings
We usually do our own investigation, but sometimes we may have to employ an investigator to assist in the fact gathering. A polygraph is sometimes recommended.
Once the gathering of evidence is complete, we provide a written report. If the evidence is available to us, and if, based upon that evidence it is our legal opinion that the evidence relied upon, and the procedures followed, are not legally sufficient to support the finding of guilt or the sentence, we will get together our best presentation and take it to the appropriate TDCJ official in an effort to get the issue resolved at that level. The biggest delay in the completion of our report will be awaiting receipt of the TDCJ records. It is not uncommon for TDCJ to take 4-6 weeks to send us the records after we obtain the necessary releases. Further, TDCJ sometimes refuses to provide major use of force videos, and disciplinary hearing tape recordings. Our review in those case will include all records we are able to obtain under the Open Records Act, without resorting to litigation, depositions, or other legal proceedings.
If we are not successful in obtaining the desired relief administratively, you will have to decide if you want to pursue legal action. That would require the filing of a writ of habeas corpus in Federal Court. The preparation of the writ, and attachments is a delicate matter. There is always the chance in a writ that one will not be granted a hearing, so the evidence must be incorporated into the writ as attachments. This is why it is so important to gather and organize the evidence on both sides of the case at the early stage of the undertaking.
An issue that cannot be overlooked is the timing of a writ. Whatever course of action you elect now, any attempt to obtain relief through a writ of habeas corpus requires that the writ be filed within one year of the disciplinary hearing. There is a one year statute of limitations on federal writs.
If you were to retain us to prepare and file a writ of habeas corpus, we would have to be prepared to conduct a hearing in the event the trial court determines that it wants to develop evidence beyond that provided in the writ. The filing of a writ requires the petition, filing attachments representing the evidence, filing findings of facts and conclusions of law, and being ready to present the case if called upon to do so.
To contact our office about a prison disciplinary matter, complete the form at the end of this section.
PRISON CLASSIFICATION ISSUES
Unfortunately, the courts have given the prison great discretion in classification decisions. In the event a classification decision is made to which an inmate objects, we strongly urge immediately challenging the classification decision in a Step 1 and Step 2 grievance, if not already done. At a minimum, the Step 1 and Step 2 should demand due process i.e., a hearing, notice of the evidence relied upon in the classification decision, an opportunity to be heard, and the right to be represented by legal counsel.
If unable to prevail in an administrative appeal, you would have to decide whether to pursue the matter through the courts.
It can be very difficult to prevail in classification matters, particularly relating to gang classification. We do not say this out of any reluctance to handle these matters as we gladly represent inmates in classification issues; however, a prospective client should understand, up front, the difficulty in reversing these kinds of classification decisions.
Our first step in these cases is to meet with the inmate and fully discuss the case. Depending upon the facts, we may recommend consulting with an expert in prison gang issues. In certain circumstances, we may recommend retaining a polygraph examiner, if circumstances warrant and the client is agreeable.
To contact our office about a prison classification matter, complete the form at the end of this section.
LIFE ENDANGERMENT ISSUES
A life endangerment situation exists when there is an inmate or TDCJ employee who poses a threat to an inmate's life, and there is a need to take immediate action to have the threatened inmate adequately protected.
In these types of cases we generally assist by interviewing the inmate, obtaining all the facts they can provide concerning the life endangering situation, making our best efforts to meet with the warden or assistant warden while we are at the unit, and preparing appropriate correspondence to TDCJ officials identifying the life endangering circumstances and the need for a transfer. We will follow up this correspondence to the unit and state classification committees that may review any life endangerment recommendations or decisions, as well as with the Director's Review Board that reviews cases where the unit and state classification committees are at odds. We also make contact with the State Classification desk officer handling the case, to personally discuss the case and insure the inmate's side of the story is fully documented.
Our first step is to immediately travel to the unit to interview the inmate, and attempt to meet with the warden or assistant warden the day of the interview. We will then prepare correspondence to the unit documenting the situation and requesting an investigation into the life endangering situation or an immediate transfer to another unit based upon the life endangerment situation.
Whether we proceed to the second stage, i.e., an interview with the warden or correspondence to TDCJ in an attempt to arrange a transfer or have a life endangerment investigation opened, will depend upon there being an adequate basis for such a request or correspondence
We should caution you that it is extremely difficult to obtain a transfer based upon claims of correctional officer abuse. TDCJ almost never acknowledges such abuse; therefore they will not acknowledge the need to move an inmate. In cases where an inmate feels that they are in a life endangerment situation due to inmate violence and officer violence, you can expect us to focus on the inmate threat.
While we have obtained favorable results in the past in our administrative attempts to have inmates transferred due to life endangerment, the process is one that is totally within the discretion of TDCJ. If TDCJ refuses to remedy a life endangerment situation after administrative efforts, court action may be appropriate, depending upon the facts of the case.
To contact our office about a life endangerment matter, complete the form at the end of this section.
MEDICAL CARE MATTERS
Inmates frequently have complaints about inadequate medical care. Court decisions and state and federal statutes make it difficult to prevail in litigation over medical matters involving inmates. Litigation in prison cases involving inadequate medical care is usually expensive and lengthy. While difficult, administrative measures can sometimes be pursued to convince the prison medical providers to render proper care. Sometimes we recommend having a medical doctor work with us to review medical records and provide an affidavit to support the medical claims we include in our administrative appeals.
To contact our office about a medical care matter, complete the form at the end of this section.
PRISON TRANSFERS, AND DIAGNOSTIC ISSUES
Unit assignment is at the discretion of TDCJ; however, in certain circumstances we can assist in obtaining a unit transfer. For example, if there is a medical hardship that prevents an inmate’s family member from visiting the inmate due to the distance involved, a hardship transfer may be appropriate.
Some inmates entering TDCJ have medical, psychiatric, or other special needs that should be addressed in the diagnostic process. Unless these issues are properly addressed in the diagnostic process, the inmate may be improperly classified and assigned. This can result in unnecessary problems that could be difficult to correct.
To contact our office about matters involving unit transfers, or pre diagnostic intervention, complete the form at the end of this section.
If you are interested in retaining our services on any prison administrative matter, please provide us with the following information. This information will not be released to any party, and will be kept strictly confidential.