Petition for Writ of Certiorari — In Re Patrick Henry Murphy, Petitioner
Supreme Court briefMar 28, 2019
Ask Donna
What actually matters in this document.
Text
No.___________________
__________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
__________________________________________
OCTOBER TERM, 2018
__________________________________________
IN RE PATRICK HENRY MURPHY,
Petitioner
__________________________________________
ORIGINAL PETITION FOR WRIT OF PROHIBITION
PURSUANT TO SUPREME COURT RULE 20.3; OR
REQUEST FOR STAY OF EXECUTION
__________________________________________
CERTIFICATE OF SERVICE
__________________________________________
I certify that on the 28th day of March 2019, one copy of Mr. Murphy’s
Original Petition for Writ Pursuant to Supreme Court Rule 20.3; or Request for
Stay of Execution was emailed to Mr. Matthew Ottoway, Counsel for Respondents,
at matthew.ottoway@oag.texas.gov. All parties to be served have been served. I am
a member of the Bar of this Court.
/s/ David R. Dow
_________________
David R. Dow
Texas Bar No. 06064900
University of Houston Law Center
4604 Calhoun Rd.
Houston, Texas 77204-6060
713-743-2171
1
No.___________________
__________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
__________________________________________
OCTOBER TERM, 2018
__________________________________________
IN RE PATRICK HENRY MURPHY,
Petitioner
__________________________________________
ORIGINAL PETITION FOR WRIT OF PROHIBITION
PURSUANT TO SUPREME COURT RULE 20.3; OR
REQUEST FOR STAY OF EXECUTION
__________________________________________
THIS IS A CAPITAL CASE:
MR. MURPHY IS SCHEDULED TO BE EXECUTED
ON THURSDAY, MARCH 28, 2019, AFTER 6:00 P.M.
David R. Dow*
Texas Bar No. 06064900
Jeffrey R. Newberry
Texas Bar No. 24060966
University of Houston Law Center
4604 Calhoun Rd.
Houston, Texas 77204-6060
713-743-2171
713-743-2131 (facsimile)
Counsel for Patrick Henry Murphy
*Member, Supreme Court Bar
2
QUESTION PRESENTED
Capital Case. Mr. Murphy is scheduled for execution after 6 p.m. central time on
Thursday, March 28, 2019.
The issue presented in this Petition for Writ of Prohibition is: When a
State permits members of some faiths (e.g., Christians) to be accompanied
in the execution chamber during the execution by a clergyperson of their
faith, does the Constitution or federal statutory law require that members
of all faiths be permitted to be accompanied in the execution chamber by a
minister of their own faith.
3
PARTIES TO THE PROCEEDING
Petitioner (plaintiff in the district court and plaintiff-appellant in the court of
appeals) is Patrick Henry Murphy. Murphy is currently incarcerated under a
sentence of death at the Polunsky Unit of the Texas Department of Criminal Justice
in Livingston, Texas. He is scheduled to be executed today, March 28, 2019.
Respondents (defendants in the district court and defendants-appellees in the
court of appeals) are Texas Department of Criminal Justice (TDCJ) employees
Bryan Collier, Lorie Davis, and Billy Lewis. Bryan Collier is the executive director
of the Texas Department of Criminal Justice. He is being named in his official
capacity.
Lorie Davis is the director of the Correctional Institutions Division of the
Texas Department of Criminal Justice. She is being named in her official capacity.
Ms. Davis is the person charged by the trial court’s order to execute the judgment of
death against Murphy.
Billy Lewis is the senior warden of the Huntsville Unit, the unit at which TDCJ
executes inmates. He is being named in his official capacity. As the warden of the
Huntsville Unit, Mr. Lewis is the TDCJ official that supervises Texas executions.
4
TABLE OF CONTENTS
CERTIFICATE OF SERVICE ........................................................................................ 1
QUESTION PRESENTED ............................................................................................. 3
PARTIES TO THE PROCEEDINGS ............................................................................ 4
TABLE OF CONTENTS................................................................................................. 5
TABLE OF AUTHORITIES ........................................................................................... 6
INTRODUCTION…........................................................................................................ 9
OPINION BELOW ……… ............................................................................................ 11
STATEMENT OF JURISDICTION ............................................................................. 12
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ..................... 12
STATEMENT OF FACTS ............................................................................................ 12
REASONS FOR GRANTING THE WRIT ................................................................... 17
CONCLUSION…… ...................................................................................................... 29
Appendix A
Opinion Below ................................................................................30
Appendix B
District Court Opinion ...................................................................36
Appendix C
In re Murphy, No. WR-63,549-02 (Tex. Crim. App. Mar.
25, 2019) ..........................................................................................49
Appendix D
In re Murphy, No. WR-63,549-02 (Tex. Crim. App. Mar.
25, 2019) (Richardson, J., concurring)...........................................53
Appendix E
Religious Land Use and Institutionalized Persons Act,
42 U.S.C. § 2000cc et seq. ..............................................................58
Appendix F
February 28 email ..........................................................................61
5
Appendix G
March 5 email .................................................................................63
Appendix H
March 7 email .................................................................................66
Appendix I
Affidavit of Respondent Davis .......................................................70
Appendix J
Respondents’ Execution Procedures ..............................................74
Appendix K
Respondents’ Offender Orientation Handbook .............................85
Appendix L
Respondents’ response to state court petition for writ of
prohibition .....................................................................................232
6
TABLE OF AUTHORITIES
Cases
Burwell v. Hobby Lobby,
573 U.S. 682 (2014) ............................................................................................ 25
Cantwell v. Connecticut,
310 U.S. 296 (1940) ...................................................................................... 17, 23
Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993) ............................................................................................ 24
Dunn v. Ray,
139 S. Ct. 661 (2019) .................................................................................... 20, 22
Ex parte Alba,
256 S.W.3d 682 (Tex. Crim. App. 2008) ............................................................ 28
Ex parte Chi,
256 S.W.3d 702 (Tex. Crim. App. 2008) ............................................................ 28
Heck v. Humphrey,
512 U.S. 477 (1994) ............................................................................................ 28
Larson v. Valente,
456 U.S. 228 (1982) ....................................................................................... 17-18
Masterpiece Cakeshop v. Colorado Civil Rights Commission,
138 S. Ct. 1719 (2018) ........................................................................................ 24
Nelson v. Campbell,
541 U.S. 637 (2004) ............................................................................................ 28
Ray v. Commissioner,
915 F.3d 689 (11th Cir. 2019) ....................................................................... 20-21
State ex rel. Holmes v. Honorable Court of Appeals for the Third
Dist., 885 S.W.2d 389 (Tex. Crim. App. 1994) .................................................. 28
Other Authorities
Ala. Code § 15-18-83(a) ................................................................................................. 25
7
TDCJ, Rehabilitation Programs Division, Chaplaincy Program,
https://www.tdcj.texas.gov/divisions/rpd/chaplaincy.html ......................................... 14
Tex. Crim. App. Misc. R. 11-0003 ................................................................................ 15
Tex. R. App. P. 72.1 ...................................................................................................... 15
U.S. Const. amend. I ............................................................................................... 17, 23
8
No.___________________
__________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
__________________________________________
OCTOBER TERM, 2018
__________________________________________
IN RE PATRICK HENRY MURPHY,
Petitioner
__________________________________________
ORIGINAL PETITION FOR WRIT OF PROHIBITION
PURSUANT TO SUPREME COURT RULE 20.3; OR
REQUEST FOR STAY OF EXECUTION
__________________________________________
INTRODUCTION
Petitioner Patrick Murphy is scheduled to be executed by the State of Texas
after 6 o’clock p.m. today, Thursday, March 28, 2019. Invoking this Court’s Rule
20.3, and 23, and 28 U.S.C. § 1651(a), Murphy requests that this Court prohibit the
State from carrying out his execution unless it permits Murphy’s Buddhist spiritual
advisor, who has been ministering to Murphy on Texas’ death row for six years, or
another Buddhist reverend of the State’s choosing, to accompany Murphy into the
execution chamber.
9
A full month ago, Murphy requested that his Buddhist minister be permitted
to accompany him into the execution chamber. Appendix F. The general counsel
for the Texas Department of Criminal Justice responded to Murphy’s counsel’s
request, indicating that only TDCJ employees are permitted in the execution
chamber. In reply, Murphy’s counsel therefore requested that, if Murphy’s own
minister (who has already been approved for visitation by TDCJ) is not allowed into
the execution chamber, that another Buddhist minister accompany him. As of the
filing of this extraordinary request for relief in this Court, that request has been
ignored by the State.
Christian inmates who are executed by the State of Texas are allowed to be
accompanied during the execution by a minister of their faith. Despite the fact that
the agency charged with carrying out Murphy’s execution has not, to this date,
finally informed Murphy or counsel that it intends to deprive Murphy of this very
right that is protected for Christian inmates, Murphy’s counsel nevertheless filed in
the state court a writ of prohibition, seeking preemptively to protect Murphy’s
rights. To comply with state procedural rules, Counsel filed this petition eight days
before the scheduled execution. All three of the courts to have considered Murphy’s
request (the Texas Court of Criminal Appeals, the U.S. District Court for the
Southern District of Texas, and the U.S. Court of Appeals for the Fifth Circuit) have
accused Murphy’s counsel of dilatoriness. This accusation simply ignores that, to
this day – hours before the execution – neither TDCJ nor any other state official has
10
responded to Murphy’s request or Murphy’s counsel’s inquiry, and that the only
reason Counsel filed when they did was to comply with the state’s eight-day rule.
Neither Murphy nor counsel knows whether TDCJ intends to permit
Murphy’s own minister, or another Buddhist minister it has approved, to
accompany Murphy during the execution. It is clear, however, that Murphy is
entitled under the Establishment Clause and Free Exercise Clauses of the First
Amendment, as well as pursuant to 42 U.S.C. § 2000cc et seq. (RLUIPA), to the
accommodation he has sought. Accordingly, he requests that this Court prohibit the
State from carrying out his execution unless it agrees to permit his or another
Buddhist minister to accompany him during the execution.
If the State informs this Court that it is unable to comply with this
requirement by the time of this evening’s execution, Murphy requests that this
Court issue a stay of execution until the State is capable of carrying out the
execution in a manner that does not violate Murphy’s religious rights.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fifth Circuit
denying Mr. Murphy a stay of execution is published. A copy is attached as
Appendix A.
A copy of the memorandum opinion and order of the United States District
Court for the Southern District of Texas is attached as Appendix B.
11
The per curiam order of the Texas Court of Criminal Appeals (CCA) denying
Mr. Murphy leave to file his petition for writ of prohibition is unpublished. A copy is
attached as Appendix C.
The opinion from four of the CCA’s nine judges concurring in that court’s
decision to deny Murphy leave to file his petition for writ of prohibition is
unpublished. A copy is attached as Appendix D.
STATEMENT OF JURISDICTION
This Court has jurisdiction to issue the relief requested pursuant to 28 U.S.C.
§ 1651(a).
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The First Amendment of the United States Constitution states, in relevant
part: “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof….”
42 U.S.C. § 2000cc et seq.: Appendix E
STATEMENT OF FACTS
On February 21, 2019, Murphy made known to Counsel his desire to have his
spiritual advisor, Rev. Hui-Yong Shih, also known as Gerald Sharrock, present in
the execution chamber when he is executed today, March 28, instead of the
Christian chaplain from TDCJ’s Huntsville Unit, who is ordinarily present in the
execution chamber during executions. Murphy is an adherent of the branch of
Buddhism known as Pure Land Buddhism and has been for almost a decade.
Accordingly, Murphy believes it is possible for him, after death, to be reborn in the
12
Pure Land, a place where he could work towards enlightenment. Murphy explained
his belief is that he can achieve this outcome only if he is able to focus on the
Buddha at the time of his death and that the presence of his spiritual advisor, who
has visited him in this capacity for the past six years,1 would permit him to
maintain the required focus by reciting an appropriate chant (akin to a prayer).2
Accordingly, on February 28, 2019 – a full month before Murphy’s scheduled
execution – Counsel contacted Texas Department of Criminal Justice’s (“TDCJ”)
General Counsel, Sharon Howell. Appendix F. Counsel informed Ms. Howell of
Murphy’s desire to have his spiritual advisor present in the execution chamber
instead of the prison’s Christian chaplain.
Ms. Howell replied to Counsel’s email on March 5. Appendix G. Ms. Howell
informed Counsel that Murphy could request the Huntsville Unit’s Christian
chaplain not be present in the execution chamber, but that Rev. Shih could not be
in the chamber because TDCJ’s policy is that only TDCJ employees can be present
in the execution chamber during an execution.
Counsel replied to Ms. Howell on March 7. Appendix H. In light of TDCJ’s
1 Respondents’ agents at the Polunksy Unit (where Texas’ death row inmates
are incarcerated) have approved Rev. Shih’s requests to visit Murphy in this
capacity. Without Respondents’ approval, Rev. Shih would not have been able to
visit Murphy as his spiritual advisor.
2 Murphy also explained that his religious belief is that his body should not
be disturbed for seven days after he is executed and that he had discussed this with
his spiritual advisor. Based on his conversation with his spiritual advisor, Murphy
asked Counsel to request that his body not be disturbed for seven minutes after his
execution. TDCJ has agreed to this request.
13
policy, Counsel informed Ms. Howell that Murphy would be content to have any
Buddhist priest who is a TDCJ employee in the execution chamber if such person
exists. Neither Ms. Howell nor any other TDCJ official, nor any other State official,
has yet to reply to Counsel’s March 7 email.
Counsel cannot be certain what this silence means. However, Ms. Howell’s
decision not to reply may well mean either that TDCJ employs no Buddhist priests
or that it intends to deprive Mr. Murphy of his right to be accompanied by an
advisor of his own faith for some other reason. In either case, it appears the choice
for condemned prisoners, like Murphy, is to have a TDCJ-employed chaplain
present in the execution chamber,3 or to have no member of the clergy present.
Even though his request had yet to be expressly denied, on March 20, 2019,
Murphy sought relief in the state courts through a petition for a writ of prohibition
filed in the Texas Court of Criminal Appeals (“CCA”). Counsel first filed in the
state court to give the courts of Texas an opportunity to address Murphy’s claims.
Counsel filed this document without having ever learned from TDCJ that it had
3 In addition to many Christian chaplains, TDCJ apparently employs five
Muslim clerics as chaplains. TDCJ, Rehabilitation Programs Division, Chaplaincy
Program, https://www.tdcj.texas.gov/divisions/rpd/chaplaincy.html. It does not
appear TDCJ employs any chaplains of other faiths. Id. It is not clear that any of
these Muslim chaplains could accompany condemned men in the execution
chamber, given Respondent Davis’ recent clarification of the TDCJ’s policy, which is
that the only people allowed in the execution chamber are those who have
demonstrated “years of devoted service.” While TDCJ contracts with Native
American and Jewish chaplains, it is not clear whether these individuals could
accompany condemned men in the execution chamber. Moreover, it does not appear
TDCJ has entered into a similar contractual agreement with any Buddhist priest.
14
denied Murphy’s request because under the CCA’s rules, documents which ask that
court to enjoin an imminent execution must be filed eight days before the
scheduled execution unless good cause exists for filing on a later date. Tex. Crim.
App. Misc. R. 11-003, available at
http://www.txcourts.gov/media/208124/miscruleexecution.pdf. On March 25, at
10:13 pm, the CCA denied Murphy leave to file his petition for writ of prohibition.4
Appendix C. The Court held Murphy had not shown he had a clear right to relief or
that there was no other adequate remedy at law. Id.
Four judges concurred separately. The concurring opinion indicates those
four judges believe Murphy must raise his claim in a complaint pursuant to 42
U.S.C. § 1983, filed in the federal courts. Appendix D. Accordingly, after first
attempting to give the state agency charged with carrying out the execution an
opportunity to address this issue administratively and thereafter seeking relief in
the state court, Murphy filed his federal Complaint pursuant to 42 U.S.C. § 1983 on
March 26. The Complaint alleged that TDCJ’s policy violates Murphy’s rights
pursuant to the First Amendment’s Free Exercise and Establishment Clauses and
runs afoul of the RLUIPA. Accompanying the Complaint, Murphy filed a motion
that asked the district court to stay his execution.
Without addressing the merits of Murphy’s claims, the district court denied
Murphy’s motion for stay of execution. Appendix B at 11. The district court held
4 The Texas Rules of Appellate Procedure require a motion for leave to file
accompany a petition for writ of prohibition. Tex. R. App. P. 72.1.
15
that Murphy was not entitled to a stay because he should have known that his
request would not be granted long before Defendant’s General Counsel informed
Counsel that only TDCJ employees can accompany condemned men in the execution
chamber. Id. at 9. The district court held that Murphy was notified of TDCJ’s policy
in 2012, when Defendants published the current version of TDCJ’s execution
procedures. Id. Important to the district court’s consideration was its apparent
belief that Murphy had access to TDCJ’s document pertaining to execution
procedures. Based on its belief that Murphy should have known he would need to
file a lawsuit as early as 2012, the district court held Murphy was not entitled to a
stay. Id. at 11.
Murphy appealed the district court’s decision to the U.S. Court of Appeals for
the Fifth Circuit. With respect to whether Murphy should have known as early as
2012 that his request would be denied, Counsel argued, first, that nothing in the
record supported a finding that Murphy had access to the document; and second,
that even if he had access to that document it was not sufficient to put Murphy on
notice that his request would be denied because it suggested he could designate his
TDCJ-approved minister, i.e. Rev. Shih, to accompany him during his execution.
Nevertheless, in its opinion denying Mr. Murphy a stay, the court of appeals held
that Murphy should have filed sooner because it too believed he had access to
Respondents’ Execution Procedures document beginning in 2012 and that the
document is not ambiguous. Appendix A at 4. The Court held that even if Murphy
could did not know TDCJ’s policy was that only its employees can be present in the
16
execution chamber until March 5 (the date Respondents’ General Counsel sent the
email included here as Appendix G), that Murphy was dilatory in waiting until
March 20 to seek relief in the state court. Appendix at 4. In addressing the issue of
timeliness, the court’s opinion does not mention that Murphy responded to
Respondents’ March 5 email on March 7 by asking whether TDCJ employed any
Buddhist priests who could accompany him (attached here as Appendix H), nor does
the court below acknowledge that Respondents – to this very day – have not
responded to Murphy’s.
REASONS FOR GRANTING THE WRIT
A.
Respondents’ policy violates the First Amendment’s Establishment
Clause because it is not neutral between religions.
The First Amendment of the United States Constitution commands that
“Congress shall make no law respecting an establishment of religion.” U.S. Const.,
amend. I. This command is similarly binding on the states. See Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940). The Establishment Clause of the First
Amendment prohibits governmental entities from passing laws that prefer one or
more religions over others. Larson v. Valente, 456 U.S. 228, 246 (1982). By creating
a policy that only employees can be present in the execution chamber, by
subsequently employing only Christian and Muslim chaplains and not religious
clerics of other religions, and by making part of its execution protocol that a TDCJemployed chaplain or no chaplain will be present during executions, TDCJ has
developed a procedure which demonstrates a clear preference for Christianity and
Islam over other religions.
17
A law or policy that is not neutral between religions, like TDCJ’s policy, is
inherently suspect and strict scrutiny must be applied when determining whether
the policy violates the First Amendment’s Establishment Clause. Larson, 456 U.S.
at 246. The policy can only survive this level of scrutiny only if it is narrowly
tailored to a compelling interest. Id. at 247.
Respondents have argued their policy of allowing only employees in the
execution chamber during an execution was enacted to ensure the procedure is
secure. Counsel acknowledged as much in his March 7 email to Ms. Howell.
Appendix H. However, that Respondents have a compelling interest is not enough.
Their policy must be narrowly tailored. Because of this, the relevant timing
question in Murphy’s case is whether his request was made in time for Respondents
to address their, admittedly compelling, interest in security.
In Murphy’s case, Counsel gave TDCJ ample time to ensure there would be
no security issues presented by a Buddhist priest accompanying Murphy during the
execution. Moreover, Rev. Shih is not someone who is unknown to TDCJ; he was
approved to visit inmates as a spiritual advisor no less than six years ago and has
visited Murphy on a regular basis in that capacity since that time. One month
would have been more than sufficient for TDCJ to conduct whatever additional
security screening measures it believes to be necessary to justify allowing Rev. Shih
to minister to Murphy not just on death row, but in the execution chamber as well.
18
Given the opportunity to explain why one month was not ample time to
protect their security interests, Defendants have asserted only that a person who is
not a TDCJ employee
could pull the intravenous lines out of the condemned, thereby
interrupting the execution. The person could taunt the victim’s family
and friends, causing immense emotional harm. The person could create
a disruption or assault the warden or TDCJ chaplain inside the
execution chamber. The person could attempt to gain access to the
execution team and jeopardize exposing their identities. Any of these
actions would require the opening of the execution chamber door,
which is an unacceptable security risk, and the intervention of
correctional staff and/or peace officer.
Appendix I at 2. The possibility of any of these things happening in the execution
chamber will exist tonight regardless of whether a Buddhist priest accompanies Mr.
Murphy during his execution. Counsel do not dispute Respondents have an interest
in preventing all of these things from happening. Respondents have screened the
individuals it intends to be in the execution chamber on March 28. Because of this
screening, Respondents are reasonably confident no one in the execution chamber
will act in any of these ways. Respondents have failed to offer any credible
explanation why the same level of screening cannot be conducted on a Buddhist
priest, whether Rev. Shih or one of Respondents’ choosing. Respondents policy is
only narrowly tailored if it is impossible to perform this level of screening on nonemployees. Respondents have offered no such proof. Respondents’ conclusory
affidavit that their interest in preventing any of these things can only be prevented
if they are allowed to hand-pick only people who have displayed “years of devoted
service,” Appendix I at 2, is not sufficient to rebut the proposition that this level of
19
screening could be done regarding a non-employee and that one month was an
ample amount of time for this to occur. See Dunn v. Ray, No. 139 S. Ct. 661, 662
(Kagan, J., dissenting) (“The only evidence the State has offered is a conclusory
affidavit stating that its policy ‘is the least restrictive means of furthering’ its
interest in safety and security. That is not enough to support a denominational
preference.”). And even if it were, Murphy’s minister, Rev. Shih, has displayed “[six]
years of devoted service” to inmates inside TDCJ facilities.
As this Court is well aware, the United States Court of Appeals for the
Eleventh Circuit was recently presented a case almost identical to Murphy’s.
Domineque Ray had been a committed Muslim since at least 2006. Ray v.
Commissioner, 915 F.3d 689, 692 (11th Cir. 2019). An imam began visiting him as a
spiritual advisor in 2015. Id. On January 23, 2019 (fifteen days before he was
scheduled to be executed), Ray asked that his imam be present in the execution
chamber at the time of his execution instead of the Christian chaplain. Id. at 693.
Both the warden of the unit and the unit’s Christian chaplain informed Ray his
imam could not be present in the chamber and that the Christian chaplain would be
present despite Ray’s request. Id. On January 28, Ray filed in the federal district
court a complaint pursuant to section 1983 alleging the prison’s policy infringed on
his rights pursuant to the Establishment Clause and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). Id. During district court proceedings, the
State agreed to accommodate Ray’s request that the Christian chaplain not be
present but reiterated his imam could not be present. Id. at 694. Under Alabama’s
20
policy no one who is not an employee of the state’s department of corrections can be
present at executions. Id. Because the Christian chaplain was the only religious
cleric employed by the department, Ray’s only choice was either to have the
Christian chaplain present or to have no religious cleric present during his
execution. Ray’s counsel had argued that Alabama could pre-clear and pre-screen
Ray’s imam prior to his execution and that this should not be difficult as he had
already been approved to serve as a spiritual advisor. Id. at 699. Alabama officials
stated this was not possible but did not provide any explanation for that answer. Id.
Nevertheless, the district court found Ray was not entitled to have his execution
stayed because he had not shown there was a substantial likelihood he would
succeed on the merits of his claims; furthermore, the district court faulted Ray for
not making his request sooner. Id. at 694.
On appeal, the United States Court of Appeals for the Eleventh Circuit
reversed the district court and stayed Ray’s execution. The Court found that
Alabama’s policy furthered a denominational preference. Ray, 915 F.3d at 697. The
Court acknowledged “that Alabama has a powerful interest in the secure and
orderly administration of the death penalty.” Id. at 698. However, finding
Alabama’s bare assertion that it could not pre-clear Ray’s imam before the
execution insufficient to survive strict scrutiny, the court of appeals found there was
a substantial likelihood Ray would succeed on his Establishment Clause claim and
stayed his execution. Id. at 701, 703.
21
Alabama asked this Court to vacate the stay. In a 5-4 decision, the Court
granted Alabama’s motion, but did so only because Ray had waited until January 28
(ten days before his scheduled execution) to seek relief in the district court. Dunn v.
Ray, 139 S. Ct. 661, 661 (2019). Ray had waited until January 23 to make his
request that his imam be present, learned that day that his request was denied, and
then waited an additional five days to seek redress from the courts. Ray, 915 F.3d at
692-93. Justice Kagan, writing for the four members of the Court who dissented
from the decision to vacate the stay, wrote that Alabama’s policy “goes against the
Establishment Clause’s core principle of denominational neutrality,” and found that
the State’s interest in security during the election was not sufficiently compelling to
survive strict scrutiny when the State refused to explain why it would not be
sufficient for Ray’s imam to pledge he would “not interfere with the State’s ability to
perform the execution.” Ray, 139 S. Ct. at 661-62 (Kagan, J., dissenting). There is
nothing in the Court’s ruling that suggests the five members who voted to vacate
the stay disagreed with Justice Kagan’s analysis except with respect to the issue
regarding the timing of Ray’s request for an accommodation.
TDCJ’s policy is identical to Alabama’s in all relevant aspects: a TDCJemployed chaplain is present during executions unless the inmate requests
otherwise; the department’s policy is that only employees can be present during the
execution; the department employs no religious clerics other than Christian and
Muslim chaplains; and the effect of these things is that the inmate must choose to
22
have either the Christian or Muslim chaplain or no spiritual advisor present during
his execution.5
Just as Alabama did not provide any reason why Ray’s imam could not be
pre-cleared ahead of his execution, TDCJ has not offered any explanation regarding
why it does not believe it cannot pre-clear Rev. Shih (or some other Buddhist
minister) ahead of Murphy’s execution. (In fact, as indicated above, TDCJ has not
even responded to Counsel’s most recent communication attempting to resolve this
matter.)
B.
Respondents’ policy unjustifiably interferes with Murphy’s ability to
practice his religion and therefore violates his First Amendment
right to the Free Exercise of religion.
The First Amendment also commands that “Congress shall make no law …
prohibiting the free exercise of” religion. U.S. Const., amend. I. Like the
Establishment Clause, the Free Exercise Clause’s command is binding on the
states. See Cantwell, 310 U.S. at 303.
TDCJ’s policy will prohibit Murphy’s ability freely to exercise his religion.
Specifically, it will prevent him from chanting with his spiritual advisor at the time
of execution in an attempt to stay focused on the Buddha, as he believes is required
if he is to enter the Pure Land after his execution. The level of scrutiny to be applied
5
That it appears a Texas inmate could to choose to have either a Muslim chaplain,
Christian chaplain, or no chaplain accompany him during his execution while an Alabama
inmate can apparently choose only between a Christian chaplain or no chaplain, makes the Texas
execution protocol no less violative of the Establishment Clause than the Alabama protocol.
Regardless of whether the number of preferred religions is one or two, when a policy shows
preference for some religions over others, it runs afoul of the Establishment Clause.
23
when reviewing policies that hinder an individual’s ability freely to exercise his
religion depends on whether the law is neutral and generally applicable. As Justice
Kennedy explained in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.
520 (1993), “a law that is neutral and of general applicability need not be justified
by a compelling government interest even if the law has the incidental effect of
burdening a particular religious practice.” Lukumi Babalu Aye, 508 U.S. at 531. A
law that does not satisfy both of these requirements “must be justified by a
compelling governmental interest and must be narrowly tailored to advance that
interest.” Id.; see also Masterpiece Cakeshop v. Colorado Civil Rights Commission,
138 S. Ct. 1719 (2018). TDCJ’s policy is not neutral. Because Christian inmates are
allowed to have a Christian chaplain accompany them during their executions, the
policy does not prohibit a Christian inmate’s ability freely to exercise his religion.
The policy prohibits only non-Christian inmates from exercising their religion at the
time of their execution. Accordingly, the policy is permissible only if it can survive
strict scrutiny. As explained in greater detail above, the policy cannot survive strict
scrutiny, at least not in cases like Murphy’s where TDCJ has been given a month to
take whatever measures are necessary to pre-clear a non-employee cleric.
C.
If the Court believes Respondents’ policy does not interfere with
Murphy’s rights pursuant to the Free Exercise Clause, it should
nonetheless find the policy violates the RLUIPA.
“In RLUIPA, in an obvious effort to effect a complete separation from the
First Amendment case law, Congress deleted the reference to the First Amendment
and defined the ‘exercise of religion’ to include ‘any exercise of religion, whether or
24
not compelled by, or central to, a system of religious belief.’” Burwell v. Hobby Lobby
Stores, 573 U.S. 682, 696 (2014) (quoting 42 U.S.C. § 2000cc-5(7)(A)). Accordingly, if
the Court believes TDCJ’s policy does not violate Murphy’s rights pursuant to the
Free Exercise Clause because Murphy’s chanting with a Buddhist priest at the time
of his death is not something he is compelled to do by his religion,6 the Court should
nevertheless find TDCJ’s policy violates the RLUIPA.
D.
Murphy’s request was timely made.
In distinguishing Murphy’s case from Ray’s, both the court of appeals and the
district believed the critical difference between Alabama’s and Texas’ policy is that
Alabama’s document pertaining to execution procedures is confidential and Texas’
policy is available to counsel if counsel request a copy, even if it is not readily
available to inmates. While this consideration obviously played a role in this Court’s
consideration of whether Ray’s request was timely made, it was not the question on
which that decision turned. Rather, the critical question was whether the
information Ray had access to was sufficient to put him on notice of Alabama’s
policy. The version of the policy to which Ray had access was contained in
Alabama’s code of criminal procedure. That provision lists which individuals can be
present at an execution, but fails to identify the select few among the list allowed to
be present in the execution chamber. See Ala. Code § 15-18-83(a). The version of
Alabama’s policy contained in its code of criminal procedure suggests the prisoner’s
6
Counsel believe the Court should find Murphy’s religion does compel him to engage in
this activity because this is what Murphy believes he needs to do to maintain the focus that is
required for him to enter the Pure Land after he is executed.
25
spiritual advisor can be present with him in the execution chamber. At a minimum,
the policy is ambiguous on this point.
The document to which it is undisputed Murphy had access is Respondents’
Offender Orientation Handbook (attached as Appendix K). The version of the policy
contained in this document is ambiguous in exactly the same manner as Alabama’s.
Specifically, it states, “Each death row offender may designate in writing one
outside spiritual advisor for witnessing purposes.” Appendix K at 104. The
document does not specify whether the person the prisoner designates can be
present inside or must remain outside of the execution chamber.
Respondents’ document containing information about their execution
procedures (attached as Appendix J) contains the provision which Respondents, the
court of appeals, and the district court believe should have put Murphy on notice
that he would have to file suit. On page eight, the document provides, “[Respondent
Davis] or designee, [Respondent Lewis] or designee and the Huntsville Unit
Chaplain or a designated approved TDCJ Chaplain shall accompany the offender
while in the Execution chamber.” Appendix J at 8. This provision is ambiguous for
two reasons. First, the list does not purport to be and, in fact, is not an exhaustive
list of all the people who are allowed to be present in the execution chamber. As the
following page of the document makes clear, a “medically trained individual” is also
present in the execution chamber. Appendix J at 9. Second, it is not at all clear from
the document that the phrase “designated approved TDCJ Chaplain” means only a
TDCJ employed Chaplain can accompany the inmate. In Respondents’ pleading in
26
the state court (attached as Appendix L), they argued their policy did not rule out
that persons of faiths other than Christianity could be the “designated approved
TDCJ Chaplain.” Appendix L at 12. According to Respondents’ state court pleading,
Native American and Jewish chaplains could be the “designated approved TDCJ
Chaplain.” See id. According to Respondents’ website, the Jewish and Native
American chaplains are not employees but merely individuals who work on a
contract basis. TDCJ, Rehabilitation Programs Division – Chaplaincy Program,
https://www.tdcj.texas.gov/divisions/rpd/chaplaincy.html. Certainly, a fair reading
of this provision is that Murphy could designate Rev. Shih, who has been approved
by TDCJ, to accompany him in the execution chamber.
Finally, even if this Court believes the provision contained in Respondents’
document pertaining to execution procedures was sufficient to put Murphy on notice
that only a TDCJ employee could accompany him in the execution chamber, one
thing is certain: the provision did not put him on notice that TDCJ employs no
Buddhist priests who could accompany him in the execution chamber. After being
told on March 5 (see Appendix G), that the policy is that only TDCJ employees can
be present, Counsel asked whether Respondents employed any Buddhist priests
that could accompany Murphy and explained he would agree to have any such
person accompany him instead of Rev. Shih. See Appendix H. Respondents have to
this day not answered Counsel’s question.
E.
A Writ of Prohibition is appropriate because the relief Murphy seeks
is not available in any other court.
27
Murphy first sought relief in the state courts, through a petition for writ of
prohibition. Murphy could not raise his claim in a habeas application filed in the
state courts because his claims do not challenge the legality of his conviction or
sentence. See Ex parte Chi, 256 S.W.3d 702, 702-03 (Tex. Crim. App. 2008); Ex parte
Alba, 256 S.W.3d 682, 685-87 (Tex. Crim. App. 2008). As this Court is aware, for the
same reason, Murphy’s claims could not be raised in a habeas petition in the federal
courts. In the federal courts, a section 1983 is a proper vehicle by which to raise
Murphy’s claims. See, e.g., Nelson v. Campbell, 541 U.S. 637, 644 (2004); Heck v.
Humphrey, 512 U.S. 477, 487 & n.7 (1994). A section 1983 action was not an
available vehicle in state court because such actions must be filed in the state’s civil
courts, yet no state court other than the CCA has jurisdiction to grant Murphy the
relief to which he would be entitled if successful, i.e., an injunction of his execution.
See State ex rel. Holmes v. Honorable Court of Appeals for the Third Dist., 885
S.W.2d 389, 395-96 (Tex. Crim. App. 1994). While the opinion from the CCA held
that Murphy had another remedy at law, that opinion does not explain or identify
what vehicle was available in state courts through which Counsel could raise
Murphy’s claim. Indeed, there appears to be no such vehicle.
As the concurring opinion signed by four of the CCA’s judges recognized, a
section 1983 complaint filed in the federal district court was an available vehicle,
and Counsel filed such a complaint hours after receiving the CCA issued its
decision. However, both the district court and the court of appeals denied Murphy’s
motion for a stay of execution, based on the belief of those courts that Murphy
28
should have known sooner TDCJ would deprive him of his First Amendment rights,
and should therefore have sued sooner. As explained above, however, to this very
day, TDCJ has not actually told Murphy it will deprive him of his constitutional or
statutory right to practice his religion Murphy now asks this Court to provide relief
because the relief he requests is not available in any other court.
Conclusion
Murphy requests that this Court grant him leave to file a Petition for Writ of
Prohibition, and issue an order, directed at the parties identified in this pleading,
prohibiting the State of Texas from carrying out his execution unless it permits
either his minister or another Buddhist minister of the State’s choosing to
accompany Murphy in the execution chamber during the execution. If the State
represents to this Court it is unable to provide this relief in time to carry out
tonight’s execution, Murphy requests this Court issue an order staying Murphy’s
execution until the State is able to carry it out without violating Murphy’s religious
rights.
Respectfully submitted,
s/ David R. Dow
___________________
David R. Dow*
Texas Bar No. 06064900
Jeffrey R. Newberry
Texas Bar No. 24060966
University of Houston Law Center
4604 Calhoun Rd.
Houston, Texas 77204-6060
713-743-2171
713-743-2131 (facsimile)
* Member, Supreme Court Bar
29
Appendix A
30
Case: 19-70007
Document: 00514891372
Page: 1
Date Filed: 03/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-70007
PATRICK HENRY MURPHY,
FILED
March 27, 2019
Lyle W. Cayce
Clerk
Plaintiff-Appellant,
v.
BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice;
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional
Institutions Division; BILLY LEWIS, Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:
Patrick Murphy is scheduled for execution on March 28, 2019, for the
murder of police officer Aubrey Hawkins on December 24, 2000. His execution
date was set on November 29, 2018. Murphy complains that the state of Texas
permits only religious clerics who are employees of the Texas Department of
Criminal Justice (TDCJ) to be physically present in the execution chamber at
the time of an execution. He further complains that the TDCJ at present only
employs chaplains who are Christian or Muslim, while acknowledging that the
TDCJ contracts to bring chaplains and spiritual advisors of other religions into
the prison facilities. Under the state’s procedures, chaplains and spiritual
advisors who are not employees of the TDCJ may meet with an inmate on the
31
Case: 19-70007
Document: 00514891372
Page: 2
Date Filed: 03/27/2019
No. 19-70007
execution date prior to entering the execution chamber and they may watch
the execution from a viewing room, but they may not physically enter the
execution chamber itself.
On March 20—eight days before his scheduled execution—Murphy
petitioned the Texas Court of Criminal Appeals for a writ of prohibition
seeking to prohibit his execution until the state allowed his preferred spiritual
advisor—a Buddhist priest—to be physically present in the execution chamber
at the time of execution. That petition was denied on March 25. On March
26—two days before his scheduled execution—Murphy filed a 42 U.S.C. § 1983
complaint and a motion for stay of execution with the federal district court,
again seeking to prohibit his execution until the state allows his preferred
spiritual advisor to be physically present in the execution chamber.
His
Section 1983 complaint alleged violations of the Establishment Clause, the
Free Exercise Clause, and the Religious Land Use and Institutionalized
Persons Act (RLUIPA). In a well-reasoned eleven-page Memorandum Opinion
and Order, the district court denied the motion for a stay of execution as
untimely. Murphy appeals the district court’s determination that he is not
entitled to a stay of execution, filing his appeal with this court on March 27—
one day before his scheduled execution.
“[W]e review a district court’s decision to deny a stay of execution for
abuse of discretion.” Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013). “[A]
stay of execution is an equitable remedy. It is not available as a matter of
right, and equity must be sensitive to the State’s strong interest in enforcing
its criminal judgments without undue interference from the federal courts.”
Hill v. McDonough, 547 U.S. 573, 584 (2006). To be eligible for a stay of
execution, Murphy must demonstrate: (1) a likelihood of success on the merits;
(2) a substantial threat of irreparable injury; (3) that the threatened injury
outweighs any harm that will result if the stay is granted; and (4) that the stay
2
32
Case: 19-70007
Document: 00514891372
Page: 3
Date Filed: 03/27/2019
No. 19-70007
will not disserve the public interest. See Adams v. Thaler, 679 F.3d 312, 318
(5th Cir. 2012) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). However, “[a]
court considering a stay must also apply a strong equitable presumption
against the grant of a stay where a claim could have been brought at such a
time as to allow consideration of the merits without requiring entry of a stay.”
Hill, 547 U.S. at 584 (internal citation and quotation marks omitted). See also
Gomez v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (“A court
may consider the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.”). The Supreme Court recently
emphasized, yet again, the importance of timeliness when moving for a stay of
execution. See Dunn v. Ray, 139 S. Ct. 661, 661 (2019) (vacating a stay of
execution granted by a circuit court when the applicant waited until ten days
before the scheduled execution to file his claim).
As the district court rightfully recognized, the proper time for raising
such claims has long since passed.
Murphy’s execution date was set on
November 29, 2018. By his counsel’s admission, he waited until February 28
to first request that the state allow Murphy’s preferred spiritual advisor to not
just meet with him prior to entering the chamber and watch from the viewing
room, but actually enter the execution chamber with him. He then waited until
March 20—eight days before the scheduled execution—to raise his First
Amendment and RLUIPA claims with the Texas Court of Criminal Appeals.
Those claims were not raised before the federal district court until March 26—
two days before the scheduled execution—and an appeal was not brought
before this court until March 27—the day before the scheduled execution.
Murphy asserts that his allegations underlying this case are almost
identical to those recently addressed by the dissenting Justices in Ray. See
139 S. Ct. at 661–62 (Kagan, J., dissenting).
However, in making that
assertion, without having timely sought factual development of his allegations
3
33
Case: 19-70007
Document: 00514891372
Page: 4
Date Filed: 03/27/2019
No. 19-70007
and the state’s execution chamber procedures, Murphy fails to acknowledge at
least one significant difference.
Unlike the situation described by the
dissenting Justices in Ray, the policy of only permitting TDCJ-employed
chaplains into the execution chamber at issue in this case has been in place
since at least 2012 and is not ambiguous about presence in the execution
chamber as distinct from in the adjacent viewing area. The district court
determined that the policy is not confidential and that Murphy’s counsel is an
experienced death penalty litigator who knew, or should have known, about
the policy well before the weeks immediately preceding the scheduled
execution.
However, even if we were to accept Murphy’s current
representation that he and his counsel did not have access to the text of that
policy, his counsel was definitively notified of that provision by an email from
the TDCJ’s general counsel on March 5. Nonetheless, Murphy waited until
March 20 to raise any related claims before the Texas Court of Criminal
Appeals, and until March 26 to raise any such claims before the federal courts.
Such delays are unacceptable under the circumstances.
This court also takes note, as did the district court, of the multiple
warnings that Murphy’s counsel has received in the past for filing last-minute
motions. See In re Dow, No. WR-57,060-03, 2010 WL 2332420 (Tex. Crim. App.
Jun. 9, 2010) (finding Dow failed to show cause for his untimely filing and
warning that further untimely filings could result in sanctions). See also In re
Dow, 481 S.W.3d 215 (Tex. 2015) (noting that the Texas Court of Criminal
Appeals held Dow in contempt for his untimely filings and barred him from
practicing before that court for one year).
“In response to systemic abuses by prisoners bringing dilatory claims,
the federal courts—and this circuit in particular—have been forced to develop
extensive jurisprudence resisting those requests for long-available claims
presented, for the first time, on the eve of execution.” Ruiz v. Davis, 850 F.3d
4
34
Case: 19-70007
Document: 00514891372
Page: 5
Date Filed: 03/27/2019
No. 19-70007
225, 229 (5th Cir. 2017). See also 5th Cir. R. 8.10; Bible v. Davis, 739 F. App’x
766, 770 (5th Cir. 2018) (unpublished); Preyor v. Davis, 704 F. App’x 331, 344
(5th Cir. 2017) (unpublished); In re Edwards, 865 F.3d 197, 209–10 (5th Cir.
2017); In re Paredes, 587 F. App’x 805, 826 (5th Cir. 2014) (unpublished);
Sepulvado v. Jindal, 729 F.3d 413, 420–21 (5th Cir. 2013); Brown v.
Livingston, 457 F.3d 390, 391 (5th Cir. 2006); Reese v. Livingston, 453 F.3d
289, 290–91 (5th Cir. 2006); White v. Johnson, 429 F.3d 572, 573–74 (5th Cir.
2005). As such, the district court did not abuse its discretion and Murphy’s
motion for a stay of execution is DENIED.
5
35
Appendix B
36
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 1 of 12
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIV ISION
March 26, 2019
David J. Bradley, Clerk
PATRICK HENRY MURPHY,
Plaintiff,
CIV IL ACTION NO . H-19-1106
TDCJ EXECUTIVE DIRECTOR
BRYAN COLLIER, et a1 .,
Defendants .
MEMORANDUM OPIN ION AND ORDER
plaintiff, Patrick Henry Murphy,
executed
Thursday, March 28, 2019, after
pursuant
conviction
District
sentence
Pending Disposition
Department
5 1983, Docket Entry
also submitted a Motion
1983.
Stay
(Docket Entry
Murphy challenges Texas
Criminal Justice (AATDCJ'') procedures
death sentence .
action
Execution
Plaintiff's Complain Filed Pursuant
which individuals may accompany an inmate during
bringing
283rd
entered
instant complaint pursuant
(Complaint Filed Pursuant
Murphy
o'clock P .m .,
Tuesday, March 26,
Dallas County, Texas .
2019, Murphy filed
1983.
scheduled
Because Murphy
court will deny
specify
execution
unreasonably delayed
motion
a stay
execution .
37
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 2 of 12
1 . Background
On December l3, 2000, seven inmates serving long sentences for
violent crimes, including Murphy, escaped from a Texas state prison
Kenedy, Texasx
Seven .''
This group has come
be known as
'lTexas
The group eventually killed a police officer during a
robbery in Irving , Texas . The men fled to Colorado where they were
apprehended . Murphy was taken back to Texas. In 2003 he was tried
for capital murder and sentenced
death . Murphy has challenged
his conviction and sentence in b0th state and federal court .
Murphy has committed him self to the teachings of Buddha almost
a decade ago .2 Rev . Hui-Yong Shih , also known as Gerald Sharrock,
has been Murphy's TDcl-approved spiritual advisor for six years .
The State set an execution date
December of 2018.
On February 21, 2019, Murphy nmade known to Counsel his desire
to have his spiritual advisor
chamber when he
executed
Christian chaplain who
present
March 28 instead
ordinarily present
chamber during executions.''
the execution
the TDCJ
the execution
(Docket Entry No. 1,
On
The brief factual summary of Murphy's crime and legal
proceedings is taken from the Fifth Circuit's opinion on federal
habeas review . See Murphv v . Davis, 737 F. App'x 693 (5th Cir.
2018).
2
The court takes the factual summary relating to the
instant comp laint from the pleadings in this case and the pleadings
filed with Murphy's Writ of Prohib ition in the Texas Court of
Criminal Appeals. In re Patrick Henrv Murphv , Jr ., WR-63,549-02,
at 3 (Tex . Crim . App . March 26, 2019).
38
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 3 of 12
February 28, 2019, counsel sent an email
General Counsel, stating
advisor
Sharon Howell, TDCJ
the presence
Murphy 's spiritual
necessary to ufocus
the buddha at the time of death
(Docket Entry No.
Exhibit 1) Counsel's email also
requested that TDCJ not disturb his body for seven days following
execution or, in the alternative,
seven minutesx
On March 5, 2019, Ms . Howell responded by email and informed
counsel that
presence
inmate's choice
chaplain
(Docket Entry No.
entirely an
Exhibit 2)
Ms.
Howell stated that the prison would also allow Murphy's body
rest for seven m inutes after the execution .
provided
following
response
However, Ms . Howell
Murphy's
request
presence of his spiritual advisor :
We do not permit a nOn-TDCJ employee be present in the
execution chamber during the execution, which precludes
Mr . Murphy's spiritual advisor from being present . Mr .
Murphy should place his spiritual advisor on his witness
list , and that way the spiritual advisor can observe
through the window in the witness room . If Mr . Murphy
would like to visit with his spiritual advisor prior to
the execution, we can provide a time beginning at 3 pm
and ending no later than 4 pm on the day of the
execution , as we have done for other inmates .
(Docket Entry No. 1-2, Exhibit 2)
Ms . Howell based her email
TDCJ execution procedure that
3
Additionally , counsel's email asked that, if the TDCJ
chaplain who is normally attendant is present at his execution , he
not touch him during the process .
39
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 4 of 12
was adopted in July of 2012.4
relevant part, the TDCJ execution
protocol reads, nthe Huntsville Unit Chap lain
designated
approved TDCJ Chaplain shall accompany the offender while
Execution Chamber ./'b
the
While the protocol appears to be mandatory,
in practice TDCJ permits an offender
forgo
presence of
TDCJ employee chaplain should he so choosex
On March
2019, counsel sent M s. Howell an email stating :
am assuming from your email TDCJ, so far as you are aware, does
buddhist priests on
have
m istaken , and there
staff; however,
am
such a buddhist on the TDCJ staff, then
believe murphy would
content
(Docket Entry
Exhibit
have him
the chamber .''
The record does
contain
response to this email .
On March
Prohibition
2019, Murphy filed a Petition
the Texas Court
Crim inal Appeals .
a Writ of
The petition
raised two issues :
TDCJ'S policy demonstrates a clear preference for one
religion (Christianity) over a1l others.
Murphy has a
clear right to relief pursuant to the First Am endment's
Texas adopted its lethal-injection protocol in 2008.
Texas revised its execution protocol in 2012 , but without any
change to its core procedures . See Trottie v . Livinqston, 766 F .3d
450, 453 (5th Cir. 2014)
See Respondents' Opposition to Relator's Motion for Leave
to File Petition for Writ o f Prohibition and Motion for Stay of
Execution, In re Patrick Henrv Murrhv, Jr ., WR-63,549-02, at 3
(Tex. Crim. App.), Exhibit A.
See i; .
11, n.2.
40
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 5 of 12
Establishment Clause .
TDCJ'S policy unjustifiably interferes with Murphy's
ability to practice his religion and therefore violates
his First Amendment right to the Free Exercise of
religion .
In re Patrick Henrv Murphv, Jr .,
WR-63,549-02,
3 (Tex. Crim . App.)
2019, the
On March
petition
a writ
of Criminal Appeals denied the
prohibition . The Court
stated : ugplrohibition relief is
has
that
clear right
Criminal Appeals
available
relator shows
the relief sought and
other
adequate legal remedy .'' In re Patrick Henry Murphv, Jr, WR-63,549-
(Tex. Crim . App . March
2019). The Court
Appeals found that nMurphy has
requirement
prohibition
Criminal
m eets either
shown that
this case .''
Murphy filed this action under
complaint raises three arguments :
1983 .
Murphy's
TDCJ'S execution protocol
violates the First Amendment's Establishment Clause because
not neutral between religions;
the protocol violates
is
First
Amendment right to Free Exercise of religion by interfering
his ability
practice his religion ; and
the policy violates
the Religious
42 U .S.C .
2000cc, qk seq. OARLUIPA'').
II . Standard for Stlvinq Execution in 1983 Litiqation
Murphy asks
execution
court
stay his execution.
''IA) stay of
equitable remedy, and an inmate
41
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 6 of 12
a stay of execution as a m atter of course .'' Hill v . McDonough, l26
2096,
(2006).
deciding whether
issue
stay
execution,
court must consider :
whether the stay applicant
has made
strong showing that he
likely
merits;
whether the applicant
absent a stay;
whether issuance
succeed on the
irreparably injured
substantially
stay
injure the other party interested in the proceeding; and
the public interest lies . See Nken v . Holder,
where
S . Ct . 1749,
(2009). However, a motion for a stay depends on the operation
equity .
See Hill,
In the balance of equity ,
udilatory behavior'' may weigh heavily against a plaintiff. Ramirez
(5th Cir. 2017).7
v . Mccraw , 715 F . App'x
111 .
Timinc of Murphv 's Comolaint
Murphy filed this lawsuit only two days before his scheduled
execution . This case can
proceed
the court issues a stay .
Equitable relief should be denied when Murphy
bringing
action so as
dilatory
delay execution of
sentence .
uEquity must take into consideration the State's strong interest
When
inmates
file
motions
requesting
a
prelim inary
injunction, a TRO, and a stay of execution, courts generally
consider a11 the requests under either the preliminary-injunction
or stay-of-execution standard . See Wood v . Collier, 836 F.3d 534,
538 (5th Cir. 2016); Trottie, 766 F.3d at 451: Sells v . Livingston,
561 F. App'x 342, 343 (5th Cir. 2014). The requirements for a
preliminary injunction are substantially similar to those for a
stay of execution .
See Sells, 561 F. App'x at 344 .
The court
would deny a preliminary injunction for the same reasons it will
not stay Murphy's execution .
42
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 7 of 12
proceeding
its judgment
A court may consider the
last-minute nature of an application to stay execution in deciding
whether
grant equitable
relief .''
Gomez v , United
States
1653,
District Court for Northern District of Calif w
1653 (1992).
Murphy points to recent litigation concerning the execution of
Domineque Hakim Marcelle Ray
presence during
A labama .
execution
Ray requested the
a spiritual advisor
authorized according to prison policy .
Ray brought
was
under 5
1983 raising sim ilar complaints under the Estab lishment Clause and
RLUIPA .
litigation history and
his previous opportunities
federal district
challenge
prison policy,
found that he did not merit a stay :
short, Ray has been dilatory
filing this action .
He has shown no just or equitable reason for his delay,
which cuts against a stay of execution . His complaint
came utoo late to avoid the inevitable need for a stay of
execution ,'' so a stay is not granted . W illiam s v . A llen,
-
496 F.3d 1210, 1213 (11th Cir. 2007) (affirming denial of
stay when inmate waited to sue until the State requested
an execution date); see also, e.a ., Gravson, 491 F.3d at
1321, 1325 (affirming denial of stay when inmate sued
before execution date was set); Henvard v . Secretarv, 543
F.3d 644, 647-49 (11th Cir. 2008) (affirming denial of
stay when inmate waited months to sue).
Rav v. Dunn, 2019 WL 418105,
(M.D. Ala. 2019).
The Eleventh Circuit reversed, finding that ''ltqhe district
court makes much
too
that Ray's claim s have been brought
scheduled date
Ray's execution .''
Rav v .
Commissioner, Alabama Department of Corrections, 915 F.3d 689, 702-
43
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 8 of 12
03 (11th
2019). The Eleventh Circuit emphasized that Alabama
statutory
make clear
Ray 's requested spiritual
advisor could not be present in the execution . A lso, the relevant
prison policies were confidential
not available
review
earlier. W ithout some evidence that Ray knew or should have known
prison policy,
Eleventh Circuit found that uRay has
provided an altogether plausible explanation for why the claims
were not filed in district court sooner and the state has neither
argued nor produced any evidence that the petitioner was aware that
claims were available at an earlier date .''
703.
Rav, 915 F.3d
The Eleventh Circuit, therefore, stayed his execution .
short order, however,
Supreme Court vacated the stay
of execution . The Supreme Court order reads as follows :
On November 6, 2018, the State scheduled Domineque Ray's
execution date for February 7, 2019 . Because Ray waited
until January 28, 2019 to seek relief, we grant the
State's application to vacate the stay entered by the
United States Court of Appeals for the Eleventh Circuit .
See Gom ez v . United States Dist . Court for Northern Dist .
of Cal ., 503 U .S . 653, 654, l12 S .Ct. 1652, 118 L .Ed.2d
293 (1992) (per curiam)
(A'A court may consider the
last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.'')
(Mem) (2019).
Dunn v . Ra v ,
Murphy presents two arguments to differentiate his case from
the Suprem e Court's action in Rav .
First, Murphy sent an email
request
than
TDCJ
month, rather
only days, before
execution . Second, Murphy alleges that he nbegan seeking relief
the state courts even before TDCJ expressly denied
request .''
8
44
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 9 of 12
(Docket Entry No.
Ray case, however,
focus only on the number
days remaining before execution when the inmate filed suit .
district court stayed his execution because he knew ,
The
should have
known, that he needed to file suit much earlier . Murphy knew,
should have known, of the policy long before he sent TDCJ general
counsel an email .
Murphy
follower
been
death row since 2003 .
has been
Buddha for several years and has associated with the
same
time .
Since 2012, at least, TDCJ
policy has only allowed for the presence of TDCJ employees during
the execution process.
identical
Entry No .
Alabama's
Murphy alleges that ''TDCJ'S policy
relevant aspects
(Docket
fails, however, to acknowledge a crucial
difference . TDCJ execution policy is not confidential . Murphy had
TDCJ policy would not allow
rea son to
the presence
spiritual advisor .g
8
In the state court litigation involving Murphy's petition
for a writ of prohibition, the parties debated whether counsel's
March 7, 2019, email amounted to a request for TDCJ to find an
approved Buddhist priest . That is of no m oment. Murphy has not
shown that TDCJ could diverge from its protocol at that point or
earlier. And , at any rate , Murphy should have raised his concerns
much earlier.
Counsel, an experienced death penalty litigator, has
represented Murphy for a decade throughout legal challenges to his
conviction and sentence . The concurrence to the denial of his
petition for a writ of prohibition recounted counsel's history of
bringing last-minute litigation . In re Patrick Henrv Murphy , Jr .,
9
45
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 10 of 12
November of 2018 the United States Supreme Court denied the
petition
certiorari review from
action .
The state district
later .
Murphy did nothing
the presence of
Murphy's federal habeas
set his execution date a month
communicate
TDCJ his desire for
spiritual advisor until 29 days remained before
his execution . Murphy gave TDCJ little time
decide whether
vary its policy . And Murphy gave TDCJ
legal challenge that would follow .
not deviate from
policy, Murphy waited over two weeks to
state court .
litigation
Once informed that TDCJ would
He filed
action only two days
before his execution .
UG j-ven
State's significant interest
enforcing
criminal judgments
there
strong equitable presumption
against the grant of
stay where
claim could have been brought
such
time as
requiring entry of
(2004).
allow consideration
stay .'' Nelson v . Campbell, 541
response
637,
systemic abuses by prisoners bringing
dilatory claims, the federal courts
particular
merits without
have been forced
and Ethe Fifth Circuitl
develop extensive jurisprudence
resisting those requests for long-available claims presented , for
the first time,
225,
the eve of execution .'' Ruiz v . Davis, 850
(5th Cir. 2017)7 see also Bible v . Davis,
App'x
WR-63,549-02 (Tex. Crim . App . March 26, 2019) (Richardson,
concurring).
10
46
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 11 of 12
(5th Cir. 2018) (finding that a lawsuit brought nineteen
days before execution was dilatory); Sepulvado v . Jindal,
420-21
(5th
2013)
(vacating
stay where
inmate
challenged a procedure he had known about for two years); Brown v .
Livinqston ,
F.3d 390,
(5th Cir. 2006) (denying equitable
relief where n laqlthough gthe prisonerrsq direct appeal has been
final
seven years,
six days before his scheduled execution/'); Reese v. Livingston,
(5th Cir. 2006) (denying stay of execution because
plaintiff cannot wait until a stay must be granted to enable him to
develop facts and take
case
trial
satisfactory explanation
the delay'/). Applying that governing
the court finds that Murphy either knew
not when there
no
should have known
about his potential claim s and had ample opportunity to bring suit ,
waited until the eve
execution .
equity requires the denial of his motion
IV .
The court finds that
stay .
Conclusion
The Court does not address the substance of Murphy's complaint
because has not brought this action with sufficient time rem aining
to develop
claims .
(Docket Entry No.
Murphy's motion for a stay
execution
is DENIED .
47
Case 4:19-cv-01106 Document 9 Filed on 03/26/19 in TXSD Page 12 of 12
SIGNED at Houston , Texas, on this 26th day of
ch , 2019.
F
SIM LAKE
UNITED STATES DISTRICT JUDGE
48
Appendix C
49
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-63,549-01 and WR-63,549-02
EX PARTE PATRICK HENRY MURPHY, JR., Applicant
and
IN RE PATRICK HENRY MURPHY, JR., Relator
ON SUGGESTION TO RECONSIDER APPLICATION FOR POSTCONVICTION WRIT OF HABEAS CORPUS, MOTION FOR LEAVE TO FILE A
PETITION FOR A WRIT OF PROHIBITION,
AND MOTION FOR STAY OF EXECUTION
IN CAUSE NO. F01-00328-T IN THE 283RD JUDICIAL DISTRICT COURT
DALLAS COUNTY
Per curiam. R ICHARDSON, J., filed a concurring opinion on -02 with which
K EASLER, H ERVEY, and W ALKER, JJ., joined.
ORDER
We have before us a suggestion that we, on our own motion, reconsider Murphy’s
initial application for a writ of habeas corpus. Also before us are a motion for leave to
file a petition for a writ of prohibition, a petition for a writ of prohibition, and a motion to
50
Murphy - 2
stay Murphy’s execution.
In November 2003, a jury found Murphy guilty of the December 2000 capital
murder of a police officer. The jury answered the special issues submitted pursuant to
Article 37.071, and the trial court, accordingly, set Murphy’s punishment at death. This
Court affirmed Murphy’s conviction and sentence on direct appeal. Murphy v. State, No.
AP-74,851 (Tex. Crim. App. April 26, 2006).
In his initial application for a writ of habeas corpus, applicant raised eight claims,
including evidentiary sufficiency claims and claims that the application of Texas Penal
Code § 7.02(b) in his case was unconstitutional. After reviewing the merits of the claims,
this Court denied relief. Ex parte Murphy, No. WR-63,549-01 (Tex. Crim. App. July 1,
2009)(not designated for publication).
The trial court has set Murphy’s execution for March 28, 2019. On March 13,
Murphy filed in this Court a suggestion that this Court on its own motion reconsider his
direct appeal. We denied that suggestion on March 20, 2019. On that same day, Murphy
filed in this Court a suggestion that this Court on its own motion reconsider the claims
raised in his initial habeas application, a motion for leave to file a petition for a writ of
prohibition, a petition for a writ of prohibition, and a motion to stay his execution.
In his suggestion to reconsider his initial habeas application, Murphy requests,
among other things, that we re-open his writ application and consider a claim never raised
therein. This is not proper. We deny Murphy’s suggestion.
51
Murphy - 3
In his motion for leave to file a petition for a writ of prohibition, Murphy
complains that the Texas Department of Criminal Justice’s policy regarding who may be
in the execution chamber denies him his rights under the Free Exercise and Establishment
Clauses of the First Amendment to the United States Constitution. Specifically, he asserts
that his Buddhist spiritual advisor should be allowed to accompany him into the execution
chamber.
Prohibition relief is only available if a relator shows that he has a clear right to the
relief sought and no other adequate legal remedy. See State ex rel. Lykos v. Fine, 330
S.W.3d 904, 907 (Tex. Crim. App. 2011). But Murphy has not shown that he meets
either requirement for prohibition relief in this case. Accordingly, we deny him leave to
file his petition. Murphy’s motion to stay his execution is also denied.
IT IS SO ORDERED THIS THE 25 th DAY OF MARCH, 2019.
Do not publish
52
Appendix D
53
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-63,549-02
IN RE PATRICK HENRY MURPHY, JR., Relator
ON MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF
PROHIBITION AND MOTION FOR STAY OF EXECUTION
IN CAUSE NO. F01-00328-T IN THE 283RD JUDICIAL DISTRICT COURT
DALLAS COUNTY
R ICHARDSON, J., filed a concurring opinion with which K EASLER, H ERVEY,
and W ALKER, JJ., joined.
CONCURRING OPINION
Relator, Patrick Henry Murphy, Jr., seeks a stay of execution pursuant to a motion
for leave to file a petition for a writ of prohibition he filed with this Court on March 20,
2019, just eight days before his execution. Relator’s execution date was set on November
29, 2018 almost four months in advance of his execution and he now claims he is entitled
to a stay based on claims made in his pleadings. Relator acknowledges he could file a 42
54
Murphy concurring opinion - 2
U.S.C. § 1983 cause of action in federal court. The petition for writ of prohibition is not
the appropriate vehicle for seeking relief in this Court. Moreover, Relator has had four
months to raise this issue before this Court.
I join in the Court’s decision to deny leave to file the petition. Relator is seeking
to prohibit his execution based on his asserted right to compel TDCJ to allow a Buddhist
priest into the execution chamber with him. The Court correctly denies relator leave to
file because he does not have a “clear and indisputable” entitlement to such relief,
whether it be via “prohibition” or “mandamus.” State ex rel. Wade v. Mays, 689 S.W.2d
893 (Tex. Crim. App. 1985) (citing Will v. United States, 389 U.S. 90, 96 (1967)); In re
Simon v. Levario, 306 S.W.3d 318 (Tex. Crim. App. 2009) (It is improper to order a
“judicial function” in a particular way unless the relator has a “clear right to the relief
sought.”). Mandamus or prohibition will not lie where the relief sought is based on an
uncertain and unsettled issue of law. Id. at 320. The legal basis for relator’s request is
clearly unsettled. See Dunn v. Ray, 139 S.Ct. 661 (Feb. 7, 2019) (overturning the
Eleventh Circuit Court of Appeals’s decision to stay Ray’s execution).
Additionally, relator provides no authority to support the claim that TDCJ has a
ministerial duty to allow anyone other than a thoroughly vetted TDCJ employee into the
execution chamber. Relator may certainly meet with the religious clergy of his choice
just before his execution, and that clergy is allowed into the viewing room to observe the
execution. There has been no “wholesale prohibition on outside spiritual advisors” here.
55
Murphy concurring opinion - 3
See Dunn v. Ray, (Justice Kagan dissenting). However, there could be a security risk
posed by relator’s request for an unvetted person to be allowed to have close proximity to
him inside the execution chamber. As in Dunn v. Ray, the time to be able to
accommodate that request has passed. Relator’s execution date has been set since
November 29, 2018.
It is not surprising that this never-been-raised-before First Amendment claim by
relator was made only eight days before the execution date. “Day eight” was the last
possible day to file his writ application without it being considered “untimely.” 1 See In re
David Dow, No. WR-57,060-03, 2010 WL 2332420 (Tex. Crim. App. June 9, 2010) (The
Court issued an Order on Show Cause and Contempt Hearing for Untimely Filed
Documents. David Dow filed an untimely pleading and failed to show good cause for the
violation); In re David Dow and Jeffrey R. Newberry, Nos. WR-61,939-01, WR-61,93902, and WR-61,939-03, 460 S.W.3d 151 (Tex. Crim. App. April 1, 2015) (In that case
Dow filed four pleadings within the seven day period preceding the scheduled execution.
1
This Court’s Miscellaneous Rule 11-003 provides,
Inmates sentenced to death who seek a stay of execution or who wish to file
a subsequent writ application or other motion seeking any affirmative relief
from, or relating to, a death sentence must exercise reasonable diligence in
timely filing such requests. A motion for stay of execution, or any other
pleading relating to a death sentence, must be filed in the proper court at least
seven days before the date of the scheduled execution date (exclusive of the
scheduled execution date). A pleading shall be deemed untimely if it is filed
in the proper court fewer than seven days before the scheduled execution date.
56
Murphy concurring opinion - 4
The Court found that Dow failed to show good cause and found him in contempt of this
Court). Relying on Alabama v. Ray that was issued over six weeks ago on February 7,
2019, relator now claims the State is in violation of the U.S Constitution in spite of his
last minute filings and the holding in Ray. Ray does not stand for that proposition. For
these reasons, I concur in the Court’s decision to deny relator leave to file.
Do not publish
Filed:
March 25, 2019
57
Appendix E
58
Page 4451
TITLE 42—THE PUBLIC HEALTH AND WELFARE
Stat. 1488, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 2000bb of this
title and Tables.
AMENDMENTS
2000—Subsec. (a). Pub. L. 106–274 struck out ‘‘and
State’’ after ‘‘Federal’’.
§ 2000bb–4. Establishment clause unaffected
Nothing in this chapter shall be construed to
affect, interpret, or in any way address that portion of the First Amendment prohibiting laws
respecting the establishment of religion (referred to in this section as the ‘‘Establishment
Clause’’). Granting government funding, benefits, or exemptions, to the extent permissible
under the Establishment Clause, shall not constitute a violation of this chapter. As used in
this section, the term ‘‘granting’’, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.
(Pub. L. 103–141, § 7, Nov. 16, 1993, 107 Stat. 1489.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 103–141, Nov. 16, 1993, 107
Stat. 1488, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 2000bb of this
title and Tables.
CHAPTER 21C—PROTECTION OF RELIGIOUS
EXERCISE IN LAND USE AND BY INSTITUTIONALIZED PERSONS
Sec.
2000cc.
§ 2000cc–1
fect, commerce with foreign nations, among
the several States, or with Indian tribes,
even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in
the implementation of a land use regulation
or system of land use regulations, under
which a government makes, or has in place
formal or informal procedures or practices
that permit the government to make, individualized assessments of the proposed uses
for the property involved.
(b) Discrimination and exclusion
(1) Equal terms
No government shall impose or implement a
land use regulation in a manner that treats a
religious assembly or institution on less than
equal terms with a nonreligious assembly or
institution.
(2) Nondiscrimination
No government shall impose or implement a
land use regulation that discriminates against
any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits
No government shall impose or implement a
land use regulation that—
(A) totally excludes religious assemblies
from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
(Pub. L. 106–274, § 2, Sept. 22, 2000, 114 Stat. 803.)
Protection of land use as religious exercise.
Protection of religious exercise of institutionalized persons.
Judicial relief.
Rules of construction.
Establishment Clause unaffected.
Definitions.
Pub. L. 106–274, § 1, Sept. 22, 2000, 114 Stat. 803, provided that: ‘‘This Act [enacting this chapter and
amending sections 1988, 2000bb–2 and 2000bb–3 of this
title] may be cited as the ‘Religious Land Use and Institutionalized Persons Act of 2000’ ’’.
§ 2000cc. Protection of land use as religious exercise
§ 2000cc–1. Protection of religious exercise of institutionalized persons
2000cc–1.
2000cc–2.
2000cc–3.
2000cc–4.
2000cc–5.
(a) Substantial burdens
(1) General rule
No government shall impose or implement a
land use regulation in a manner that imposes
a substantial burden on the religious exercise
of a person, including a religious assembly or
institution, unless the government demonstrates that imposition of the burden on
that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application
This subsection applies in any case in
which—
(A) the substantial burden is imposed in a
program or activity that receives Federal financial assistance, even if the burden results
from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would af-
SHORT TITLE
(a) General rule
No government shall impose a substantial burden on the religious exercise of a person residing
in or confined to an institution, as defined in
section 1997 of this title, even if the burden results from a rule of general applicability, unless
the government demonstrates that imposition of
the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application
This section applies in any case in which—
(1) the substantial burden is imposed in a
program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect,
commerce with foreign nations, among the
several States, or with Indian tribes.
(Pub. L. 106–274, § 3, Sept. 22, 2000, 114 Stat. 804.)
59
§ 2000cc–2
TITLE 42—THE PUBLIC HEALTH AND WELFARE
§ 2000cc–2. Judicial relief
(a) Cause of action
A person may assert a violation of this chapter as a claim or defense in a judicial proceeding
and obtain appropriate relief against a government. Standing to assert a claim or defense
under this section shall be governed by the general rules of standing under article III of the
Constitution.
(b) Burden of persuasion
If a plaintiff produces prima facie evidence to
support a claim alleging a violation of the Free
Exercise Clause or a violation of section 2000cc
of this title, the government shall bear the burden of persuasion on any element of the claim,
except that the plaintiff shall bear the burden of
persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the
plaintiff’s exercise of religion.
(c) Full faith and credit
Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum
shall not be entitled to full faith and credit in a
Federal court unless the claimant had a full and
fair adjudication of that claim in the non-Federal forum.
(d) Omitted
(e) Prisoners
Nothing in this chapter shall be construed to
amend or repeal the Prison Litigation Reform
Act of 1995 (including provisions of law amended
by that Act).
(f) Authority of United States to enforce this
chapter
The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter. Nothing in this subsection shall be construed to deny, impair, or
otherwise affect any right or authority of the
Attorney General, the United States, or any
agency, officer, or employee of the United
States, acting under any law other than this
subsection, to institute or intervene in any proceeding.
(g) Limitation
If the only jurisdictional basis for applying a
provision of this chapter is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign
nations, among the several States, or with Indian tribes, the provision shall not apply if the
government demonstrates that all substantial
burdens on, or the removal of all substantial
burdens
from,
similar
religious
exercise
throughout the Nation would not lead in the aggregate to a substantial effect on commerce
with foreign nations, among the several States,
or with Indian tribes.
(Pub. L. 106–274, § 4, Sept. 22, 2000, 114 Stat. 804.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 106–274, Sept. 22, 2000, 114
Stat. 803, which is classified principally to this chapter.
Page 4452
For complete classification of this Act to the Code, see
Short Title note set out under section 2000cc of this
title and Tables.
The Prison Litigation Reform Act of 1995, referred to
in subsec. (e), is Pub. L. 104–134, title I, § 101(a) [title
VIII], Apr. 26, 1996, 110 Stat. 1321, 1321–66, as amended.
For complete classification of this Act to the Code, see
Short Title of 1996 Amendment note set out under section 3601 of Title 18, Crimes and Criminal Procedure,
and Tables.
CODIFICATION
Section is comprised of section 4 of Pub. L. 106–274.
Subsec. (d) of section 4 of Pub. L. 106–274 amended section 1988(b) of this title.
§ 2000cc–3. Rules of construction
(a) Religious belief unaffected
Nothing in this chapter shall be construed to
authorize any government to burden any religious belief.
(b) Religious exercise not regulated
Nothing in this chapter shall create any basis
for restricting or burdening religious exercise or
for claims against a religious organization including any religiously affiliated school or university, not acting under color of law.
(c) Claims to funding unaffected
Nothing in this chapter shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government
funding for a religious activity, but this chapter
may require a government to incur expenses in
its own operations to avoid imposing a substantial burden on religious exercise.
(d) Other authority to impose conditions on
funding unaffected
Nothing in this chapter shall—
(1) authorize a government to regulate or affect, directly or indirectly, the activities or
policies of a person other than a government
as a condition of receiving funding or other assistance; or
(2) restrict any authority that may exist
under other law to so regulate or affect, except as provided in this chapter.
(e) Governmental discretion in alleviating burdens on religious exercise
A government may avoid the preemptive force
of any provision of this chapter by changing the
policy or practice that results in a substantial
burden on religious exercise, by retaining the
policy or practice and exempting the substantially burdened religious exercise, by providing
exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the
substantial burden.
(f) Effect on other law
With respect to a claim brought under this
chapter, proof that a substantial burden on a
person’s religious exercise affects, or removal of
that burden would affect, commerce with foreign nations, among the several States, or with
Indian tribes, shall not establish any inference
or presumption that Congress intends that any
religious exercise is, or is not, subject to any
law other than this chapter.
60
Appendix F
61
From: Dow, David R DDow@Central.UH.edu
Subject: spiritual advisor for patrick murphy
Date: February 28, 2019 at 2:09 PM
To: Sharon.Howell@tdcj.texas.gov
Cc: Newberry, Jeff jrnewber@Central.UH.EDU
sharon -you may be aware that i represent patrick murphy, who is scheduled to be executed on
march 28. i am writing about the issue of a spiritual advisor.
murphy is a buddhist. his spiritual advisor is reverend hui-yong shih. murphy would like
hui-yong to be present with him in the execution chamber because murphy’s faith teaches
that, in order to enter into what he understands to be the “pure land,” he must focus on the
buddha at the time of death, and reverend shih’s presence in the chamber would make that
possible.
murphy’s religion also dictates that the body of a deceased person not be disturbed for seven
days after the person has died. we realize asking this of TDCJ is a long shot (but i am
nevertheless asking anyway), but, as a fallback position, reverend shih has advised murphy
it would suffice to honor this tradition for his body not to be disturbed for seven minutes
after he is killed. murphy’s believes that the chaplain who is ordinarily present in the
execution chamber during executions holds the toe of the person who is being killed until he
dies. however, because being touched at the time he dies would violate his belief that his
body should not be disturbed, murphy also requests that the chaplain, if present, not touch
him.
i am happy to arrange a time to chat about these requests. i think they are reasonable and
hope we can address them administratively rather than through litigation.
my usual thanks for your attention,
-- drd
David R. Dow
Cullen Professor, University of Houston Law Center
Rorschach Visiting Professor of History, Rice University
4604 Calhoun Rd., Houston, TX 77204-6060
713-743-2171, DDow@UH.edu
www.davidrdow.com, @drdow
assistant: Lillian A. White, LAWhite@central..uh.edu, 713-743-7674
21
62
Appendix G
63
From: Sharon Howell Sharon.Howell@tdcj.texas.gov
Subject: RE: spiritual advisor for patrick murphy
Date: March 5, 2019 at 9:35 AM
To: Dow, David R DDow@Central.UH.edu
Cc: Newberry, Jeff jrnewber@Central.UH.EDU, Marshall, Edward Edward.Marshall@oag.texas.gov
David –
The presence of the TDCJ chaplain is en6rely an inmate’s choice, so your request that the
chaplain not touch Mr. Murphy is fine. The chaplain does not even need to be present in the
chamber if Mr. Murphy would prefer that. We also do not have a problem with the body
res6ng for seven minutes aDer his death. That 6ming is consistent with what happens with
every execu6on performed in Texas. We will not agree to let the body rest undisturbed for
seven days aDer death.
We do not permit a non-TDCJ employee be present in the execu6on chamber during the
execu6on, which precludes Mr. Murphy’s spiritual advisor from being present. Mr. Murphy
should place his spiritual advisor on his witness list, and that way the spiritual advisor can
observe through the window in the witness room. If Mr. Murphy would like to visit with his
spiritual advisor prior to the execu6on, we can provide a 6me beginning at 3 pm and ending
no later than 4 pm on the day of the execu6on, as we have done for other inmates.
Please let me know if you have any ques6ons or if you have any arrangements that you
would like to make.
Sharon Felfe Howell
General Counsel
Phone: 936.437.2141
The informa6on contained in this email and any aVachments is intended for the exclusive
use of the addressee(s) and may contain confiden6al, privileged, or proprietary informa6on.
Any other use of these materials is strictly prohibited. This email may not be forwarded
outside the Texas Department of Criminal Jus6ce, Office of the General Counsel, without the
permission of the original sender. If you have received this material in error, please
immediately no6fy me by telephone and destroy all electronic, paper, or other versions
From: Dow, David R [mailto:DDow@Central.UH.edu]
Sent: Thursday, February 28, 2019 2:09 PM
To: Sharon Howell <Sharon.Howell@tdcj.texas.gov>
Cc: Newberry, Jeff <jrnewber@Central.UH.EDU>
Subject: spiritual advisor for patrick murphy
***********************************************
**************
CAUTION: This email was received from an EXTERNAL source, use caution when clicking links
or opening attachments.
23
64
or opening attachments.
If you believe this to be a malicious and/or phishing email, please contact the Information Security
Office (ISO).
******************************************************
*******
sharon -you may be aware that i represent patrick murphy, who is scheduled to be executed on
march 28. i am writing about the issue of a spiritual advisor.
murphy is a buddhist. his spiritual advisor is reverend hui-yong shih. murphy would like
hui-yong to be present with him in the execution chamber because murphy’s faith teaches
that, in order to enter into what he understands to be the “pure land,” he must focus on the
buddha at the time of death, and reverend shih’s presence in the chamber would make that
possible.
murphy’s religion also dictates that the body of a deceased person not be disturbed for seven
days after the person has died. we realize asking this of TDCJ is a long shot (but i am
nevertheless asking anyway), but, as a fallback position, reverend shih has advised murphy
it would suffice to honor this tradition for his body not to be disturbed for seven minutes
after he is killed. murphy’s believes that the chaplain who is ordinarily present in the
execution chamber during executions holds the toe of the person who is being killed until he
dies. however, because being touched at the time he dies would violate his belief that his
body should not be disturbed, murphy also requests that the chaplain, if present, not touch
him.
i am happy to arrange a time to chat about these requests. i think they are reasonable and
hope we can address them administratively rather than through litigation.
my usual thanks for your attention,
-- drd
David R. Dow
Cullen Professor, University of Houston Law Center
Rorschach Visiting Professor of History, Rice University
4604 Calhoun Rd., Houston, TX 77204-6060
713-743-2171, DDow@UH.edu
www.davidrdow.com, @drdow
assistant: Lillian A. White, LAWhite@central..uh.edu, 713-743-7674
24
65
Appendix H
66
From: Dow, David R DDow@Central.UH.edu
Subject: RE: spiritual advisor for patrick murphy
Date: March 7, 2019 at 1:57 PM
To: Sharon Howell Sharon.Howell@tdcj.texas.gov
Cc: Newberry, Jeff jrnewber@Central.UH.EDU, Marshall, Edward Edward.Marshall@oag.texas.gov
sharon -thanks for getting back to me. i am assuming from your email TDCJ, so far as you are
aware, does not have a buddhist priests on its staff; however, if i am mistaken, and there is
such a buddhist on the TDCJ staff, then i believe murphy would be content to have him in
the chamber.
as i am sure you (and ed, who is also on this thread) are aware, the eleventh circuit faced a
similar question in the dominique ray case. i am attaching its opinion to this email. of
course, the supreme court ultimately vacated the ca11 case, but only because ray waited too
long to raise the issue. we, on the contrary, have raised it in what i believe is ample time for
TDCJ to insure there are no security issues presented by a religious figure of murphy’s faith
accompanying him during the execution.
i think that the current TDCJ policy, as was the case in the ca11 ray case, suggests an
establishment clause violation, and as well interferes with murphy’s right to the free exercise
of religion. so i am hoping there is a solution to this issue short of litigation.
thanks.
-- drd
From: Sharon Howell [mailto:Sharon.Howell@tdcj.texas.gov]
Sent: Tuesday, March 5, 2019 9:35 AM
To: Dow, David R <DDow@Central.UH.edu>
Cc: Newberry, Jeff <jrnewber@Central.UH.EDU>; Marshall, Edward
<Edward.Marshall@oag.texas.gov>
Subject: RE: spiritual advisor for patrick murphy
David –
The presence of the TDCJ chaplain is en6rely an inmate’s choice, so your request that the
chaplain not touch Mr. Murphy is fine. The chaplain does not even need to be present in the
chamber if Mr. Murphy would prefer that. We also do not have a problem with the body
res6ng for seven minutes aDer his death. That 6ming is consistent with what happens with
every execu6on performed in Texas. We will not agree to let the body rest undisturbed for
seven days aDer death.
We do not permit a non-TDCJ employee be present in the execu6on chamber during the
execu6on, which precludes Mr. Murphy’s spiritual advisor from being present. Mr. Murphy
should place his spiritual advisor on his witness list, and that way the spiritual advisor can
observe through the window in the witness room. If Mr. Murphy would like to visit with his
26
67
observe through the window in the witness room. If Mr. Murphy would like to visit with his
spiritual advisor prior to the execu6on, we can provide a 6me beginning at 3 pm and ending
no later than 4 pm on the day of the execu6on, as we have done for other inmates.
Please let me know if you have any ques6ons or if you have any arrangements that you
would like to make.
Sharon Felfe Howell
General Counsel
Phone: 936.437.2141
The informa6on contained in this email and any aVachments is intended for the exclusive
use of the addressee(s) and may contain confiden6al, privileged, or proprietary informa6on.
Any other use of these materials is strictly prohibited. This email may not be forwarded
outside the Texas Department of Criminal Jus6ce, Office of the General Counsel, without the
permission of the original sender. If you have received this material in error, please
immediately no6fy me by telephone and destroy all electronic, paper, or other versions
From: Dow, David R [mailto:DDow@Central.UH.edu]
Sent: Thursday, February 28, 2019 2:09 PM
To: Sharon Howell <Sharon.Howell@tdcj.texas.gov>
Cc: Newberry, Jeff <jrnewber@Central.UH.EDU>
Subject: spiritual advisor for patrick murphy
***********************************************
**************
CAUTION: This email was received from an EXTERNAL source, use caution when clicking links
or opening attachments.
If you believe this to be a malicious and/or phishing email, please contact the Information Security
Office (ISO).
******************************************************
*******
sharon -you may be aware that i represent patrick murphy, who is scheduled to be executed on
march 28. i am writing about the issue of a spiritual advisor.
murphy is a buddhist. his spiritual advisor is reverend hui-yong shih. murphy would like
hui-yong to be present with him in the execution chamber because murphy’s faith teaches
that, in order to enter into what he understands to be the “pure land,” he must focus on the
buddha at the time of death, and reverend shih’s presence in the chamber would make that
possible.
murphy’s religion also dictates that the body of a deceased person not be disturbed for seven
days after the person has died. we realize asking this of TDCJ is a long shot (but i am
27
68
days after the person has died. we realize asking this of TDCJ is a long shot (but i am
nevertheless asking anyway), but, as a fallback position, reverend shih has advised murphy
it would suffice to honor this tradition for his body not to be disturbed for seven minutes
after he is killed. murphy’s believes that the chaplain who is ordinarily present in the
execution chamber during executions holds the toe of the person who is being killed until he
dies. however, because being touched at the time he dies would violate his belief that his
body should not be disturbed, murphy also requests that the chaplain, if present, not touch
him.
i am happy to arrange a time to chat about these requests. i think they are reasonable and
hope we can address them administratively rather than through litigation.
my usual thanks for your attention,
-- drd
David R. Dow
Cullen Professor, University of Houston Law Center
Rorschach Visiting Professor of History, Rice University
4604 Calhoun Rd., Houston, TX 77204-6060
713-743-2171, DDow@UH.edu
www.davidrdow.com, @drdow
assistant: Lillian A. White, LAWhite@central..uh.edu, 713-743-7674
Ray Order
Grantin…02).pdf
28
69
Appendix I
70
Case 4:19-cv-01106 Document 8-4 Filed on 03/26/19 in TXSD Page 2 of 4
71
Case 4:19-cv-01106 Document 8-4 Filed on 03/26/19 in TXSD Page 3 of 4
72
Case 4:19-cv-01106 Document 8-4 Filed on 03/26/19 in TXSD Page 4 of 4
73
Appendix J
74
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 2 of 11
75
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 3 of 11
76
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 4 of 11
77
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 5 of 11
78
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 6 of 11
79
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 7 of 11
80
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 8 of 11
81
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 9 of 11
82
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 10 of 11
83
Case 4:19-cv-01106 Document 8-3 Filed on 03/26/19 in TXSD Page 11 of 11
84
Appendix K
85
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 2 of 147
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
OFFENDER ORIENTATION HANDBOOK
as
Approved by the
Texas Department of Criminal Justice
Director of the Correctional Institutions Division
Printed
FEBRUARY 2017
I-202 (rev. February 2017)
86
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 3 of 147
TDCJ–CID Region I
1225 Avenue G
Huntsville, Texas 77340
TDCJ-CID Region IV
965 Ofstie St.
Beeville, Texas 78102
TDCJ-CID Region II
#2 Backgate Road
Palestine, Texas 75803
TDCJ-CID Region V
304 West 6th St.
Plainview, Texas 79072
TDCJ-CID Region III
400 Darrington Road
Rosharon, Texas 77583
TDCJ-CID Region VI
1002 Carroll Street
Gatesville, Texas 76528
TDCJ Private Facility
Contract Monitoring and Oversight Division
Two Financial Plaza, Ste. 300
Huntsville, Texas 77340
87
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 4 of 147
Texas Department of Criminal Justice
Units/Facilities
Allred
2101 FM 369 North
Iow a Park, TX 76367
B. Moore
8500 North FM 3053
Overton, TX 75684
Bartlett
1018 Arnold Drive
Bartlett, TX 76511
Beto
1391 FM 3328
T ennessee Colony, TX 75880
Boyd
200 Spur 113
Teague, TX 75860
Bradshaw
P. O. Box 9000
Henderson, TX 75653
9000
C. Moore
1700 North FM 87
Bonham, TX 75418
Bridgeport
4000 North 10th Street
Bridgeport, TX 76426
Briscoe
1459 West Highw ay 85
Dilley, TX 78017-4601
Clem ens
11034 Hw y 36
Brazoria, TX 77422
Clem ents
9601 Spur 591
Amarillo, TX 79107-9606
Cole
3801 Silo Road
Bonham, TX 75418
Connally
899 FM 632
Kenedy, TX 78119
Dalhart
11950 FM 998
Dalhart, TX 79022
Daniel
938 South FM 1673
Snyder, TX 79549
Darrington
59 Darrington Road
Rosharon,TX 77583
Coffield
2661 FM 2054
Tennessee Colony, TX
75884
Crain
1401 State School Road
Gatesville, TX 76599
2999
Diboll
1604 South First Street
Diboll, TX 75941
Dom inguez
6535 Cagnon Road
San Antonio, TX 78252
Duncan
1502 South First Street
Dboll, TX 75941
Eastham
2665 Prison Road #1
Lovelady, TX 75851
East Texas Treatment
900 Industrial Drive
Henderson, Texas 75652
Ellis
1697 FM 980
Huntsville, TX 77343
Estelle
264 FM 3478
Huntsville, TX 77320-3320
Estes
1100 Highw ay 1807
Venus, TX 76084
Ferguson
12120 Savage Dr.
Midw ay, TX 75852-3654
Form by
998 County Road AA
Plainview , TX 79072-9641
Fort Stockton
1536 East IH- 10
Fort Stockton, TX 79735
Garza East
4304 Highw ay 202
Beeville, TX 78102-8981
Garza West
4250 Highw ay 202
Beeville, TX 78102-8982
Gist
3295 FM 3514
Beaumont, TX 77705
Goodm an
349 Private Road 8430
Jasper, TX 75951
Glossbrenner
5100 South FM 1329
San Diego, TX 78384
Goree
7405 Hw y 75 South
Huntsville, TX 77344
Gurney
1385 FM 3328
Palestine, TX 75803
Halbert
800 Ellen Halbert Drive
Burnet, TX 78611
Ham ilton
200 Lee Morrison Lane
Bryan, TX 77807
Havins
500 FM 45 East
Brow nwood, TX 76801
Henley
7581 Hw y 321
Dayton, TX 77535
Hightow er
902 FM 686
Dayton, TX 77535
Hilltop
1500 State School Road
Gatesville, TX 76598
Hobby
742 FM 712
Marlin, TX 76661-4685
Hodge
379 FM 2972 West
Rusk, TX 75785
Holliday
295 IH 45N
Huntsville, TX 77320
Hospital Galveston
P. O. Box 48, Sub St. #1
Galveston, TX 77555
Hughes
3201 FM 929
Gatesville, TX 76597
Huntsville
815 12tth Street
Huntsville, TX 77348
Hutchins
1500 East Langdon Road
Dallas, TX 75241
Jester I
1 Jester Road
Richmond, TX 77406
Jester III
3 Jester Road
Richmond, TX 77406
Jester IV
4 Jester Road
Richmond, TX 77406
Johnston
703 Airport Road
Winnsboro, TX 75494
Jordan/Baten
1992 Helton Road
Pampa, TX 79065
Lew is
777 FM 3497
Woodville, TX 75990
Kegans
707 Top Street
Houston, TX 77002
Lindsey
1620 FM 3344
Jacksboro, TX 76458
Kyle
23001 IH 35
Kyle, TX 78640
Lockhart
1400 Industrial Blvd.
Lockhart, TX 78644
LeBlanc
3695 FM 3514
Beaumont, TX 77705
Lopez
1203 El Cbolo Rd.
Edinburg, TX 78542
Byrd
21 FM 247
Huntsville, TX 77320
Cleveland
901 East 5th Street
Cleveland, TX 77327
Cotulla
610 FM 624
Cotulla, TX 78014
88
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 5 of 147
Luther
1800 Luther Dr.
Navasota, TX 77868
Lychner
2350 Atascocita Road
Humble, TX 77396
Lynaugh
1098 South Highw ay 2037
Fort Stockton, TX 79735
Marlin
2893 State Hw y 6
Marlin, TX 76661-6588
McConnell
3001 South Emily Drive
Beeville, TX 78102
Middleton
13055 FM 3522
Abilene, TX 79601
Montford
8602 Peach Avenue
Lubbock, TX 79404
Mountain View
2305 Ransom Road
Gatesville, TX 76528
Michael
2664 FM 2054
Tennessee Colony, TX
75886
Murray
1916 N. Hw y 36 Bypass
Gatesville, TX 76596
Neal
9055 Spur 591
Amarillo, TX 79107
Ney
114 Private Road 4303
Hondo, TX 78861-3812
Pack
2400 Wallace Pack
Navasota, TX 77868
Plane
904 FM 686
Dayton, TX 77535
Polunsky
3872 FM 350 South
Livingston, TX 77351
Pow ledge
1400 FM 3452
Palestine, TX 75803
Ram sey I
1100 FM 655
Rosharon, TX 77583
Roach
15845 FM 164
Childress, TX 79201
Robertson
12071 FM 3522
Abilene, TX 79601
Rudd
2004 Lamesa Highw ay
Brow nfield, TX 79316
Sanchez
3901 State Jail Road
El Paso, TX 79938
Sayle
4176 FM 1800
Breckenridge, TX 76424
Scott
6999 Retrieve
Angleton, TX 77515
Segovia
1201 East Cbolo Road
Edinburg, TX 78542
San Saba
206 S. Wallace Creek
Road
San Saba, TX 76877
Skyview
379 FM 2972 West
Rusk, TX 75785
South Texas ISF
1511 Preston
Houston, TX 77002
Stevenson
1525 FM 766
Cuero, TX 77954
Stiles
3060 FM 3514
Beaumont, TX 77705
Stringfellow
1200 FM 655
Rosharon, TX 77583
Telford
3899 State Hw y 98
New Boston, TX 75570
Terrell
1300 FM 655
Rosharon, TX 77583
Torres
125 Private Road #4303
Hondo, TX 78861
Travis County
8101 FM 969
Austin, TX 78724
Vance
2 Jester Road
Richmond, TX 77406
Wallace
1675 South FM 3525
Colorado City, TX 79512
Ware
1681 S. FM 3525
Colorado City, TX 79512
West Texas ISF
2002 Lamesa Hw y
Brow nfield, TX 79316
West TX Regional Medical
8602 Peach Avenue
Lubbock, TX 79404
Wheeler
986 County Road AA
Plainview , TX 79072-9682
Willacy County
1695 South Buffalo Drive
Raymondville, TX 78580
Woodm an
1210 Coryell City Road
Gatesville, TX 76528
Wynne
810 FM 2821
Huntsville, TX 77349
Carol S. Young Medical
Facility Com plex
5509 Attwater Avenue
Dickinson, TX 77539
89
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 6 of 147
ADOPTION OF ORIENTATION HANDBOOK
This handbook contains general information and rules adopted by the Director of the
Texas Department of Criminal Justice Correctional Institutions Division (TDCJ-CID).
TEXAS DEPARTMENT OF CRIMINAL JUSTICE MISSION STATEMENT
The mission of the Texas Department of Criminal Justice is to provide
public safety, promote positive change in offender behavior, reintegrate
offenders into society and assist victims of crime.
Board of Criminal Justice
The Board of Criminal Justice is made up of nine unpaid citizens. They are appointed by
the Governor of Texas. The Board helps the Department to plan, budget and make
policy.
Management
The Division Director and Deputy Directors of the CID are responsible for guiding the
day-to-day operations and management of the TDCJ-CID offender population.
GENERAL INFORMATION CONCERNING THIS HANDBOOK
This handbook is designed to provide the offender population with general information
along with a standard for acceptable behavior. Offenders who do not behave in an
acceptable manner could be charged with a specific disciplinary offense. The disciplinary
offenses are listed in the TDCJ Disciplinary Rules and Procedures for Offenders
Handbook.
The standards for acceptable behavior by offenders are listed in this
handbook, apply to all offenders.
Upon entering the TDCJ, offenders shall be provided with the latest revised copy of the
Offender Orientation Handbook. Offenders currently incarcerated within the TDCJ shall
have access to revised copies when revisions to the Offender Orientation Handbook are
made.
Handbooks written in Spanish shall be given to offenders whose primary
language is Spanish. Rules shall be explained to offenders who cannot read them and to
offenders whose primary language is neither English nor Spanish.
All offenders confined within a facility of the Texas Department of Criminal Justice are
responsible for understanding and abiding by the rules, regulations and policies detailed
in the handbook as well as other policies and procedures posted on their facility of
assignment. Failure to do so may result in disciplinary action.
For purposes of this handbook, the terms “he”, “his” and “him” refer to all offenders, both
male and female.
90
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 7 of 147
TABLE OF CONTENTS
Chapter 1: Offender Access to Services and Standards for Behavior
I.
Intake Process............................................................................................1
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
II.
Unit Classification......................................................................................5
A.
B.
C.
D.
E.
F.
G.
H.
III.
Receiving and Screening..................................................................... 1
Photographs and Fingerprints .............................................................. 1
Physical Examination .......................................................................... 1
Mental Health Screening ..................................................................... 1
Americans with Disabilities Act (ADA) .................................................. 2
Orientation ......................................................................................... 2
Testing and Assessment ..................................................................... 3
Intake and Sociology Interview ............................................................ 3
Prison Offenders ................................................................................. 4
State Jail Offenders ............................................................................ 4
Trans fer Offenders .............................................................................. 4
SAFPF Offenders ............................................................................... 4
Foreign Nationals ............................................................................... 5
Custody Levels ................................................................................... 5
1.
Administrative Segregation or State Jail, SR Custody ................ 6
2.
General Population Level 5 - State Jail, GP, Level 5 (J5) ........... 6
3.
General Population Level 4 - State Jail, GP, Level 4 (J4) ........... 6
4.
General Population Level 3 ..................................................... 6
5.
General Population Level 2 - State Jail, GP, Level 2 (J2) ........... 6
6.
General Population Level 1 - State Jail, GP, Level 1 (J1) ........... 6
Committees ........................................................................................ 6
1.
Unit Classific ation Committee .................................................. 7
2.
Administrative Segregation Committee..................................... 7
3.
State Classification Committee ................................................ 7
4.
Security Precaution Designator Review Committee................... 7
Inter-Unit Transfers ............................................................................. 7
Good Conduct Time ............................................................................ 7
Diligent Participation Credits for State Jail Offenders ............................. 9
Time Credit Dispute Resolution Process .............................................. 9
1.
Prison Offenders ................................................................... 10
2.
State Jail Offenders .............................................................. 10
Individualized Treatment Plan............................................................ 10
Collection of DNA Blood Samples ...................................................... 10
Standards of Behavior ............................................................................11
A.
B.
C.
D.
E.
F.
G.
H.
I.
Personal Cleanliness and Grooming .................................................. 11
Clothing and Necessities ................................................................... 12
1.
Clothing ............................................................................... 12
2.
Towels ................................................................................. 13
3.
Linens .................................................................................. 13
4.
Exchange Procedures for Necessities Items ........................... 13
Living Areas ..................................................................................... 13
Dining Hall ....................................................................................... 15
Shower Rules ................................................................................... 16
Dayroom Rules ................................................................................. 16
Recreation Yard Rules ...................................................................... 17
Commissary Rules ............................................................................ 17
Hall Rules ........................................................................................ 18
Offender Orientation Handbook
i
FEBRUARY 2017
91
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 8 of 147
J.
K.
L.
M.
N.
IV.
Offender Property ............................................................................. 18
Cont raband ...................................................................................... 21
Tobacco Policy ................................................................................. 21
Safety Regulations ............................................................................ 22
General Rules .................................................................................. 24
Safe Prisons/PREA Program ..................................................................26
A.
B.
C.
D.
E.
F.
G.
H.
I.
TDCJ Zero Tolerance Policy .............................................................. 26
What is PREA?................................................................................. 26
What is sexual abuse? ...................................................................... 26
What is Sexual Harassment and Voyeurism? ..................................... 27
Cross Gender “K nock and Announce” Policy ...................................... 27
How does the Safe Prisons/PREA Program Help? .............................. 28
How Should I Report Threats to my Safety? ....................................... 28
Sexual Abuse Prevention Strategies .................................................. 28
What should you do if you are sexually abused? ................................. 29
1.
Report the Abuse to any Staff Member Immediat ely ................ 29
2.
Investigations ....................................................................... 30
3.
Offender Perpetrator Consequences ...................................... 31
V.
Security Threat Groups...........................................................................31
VI.
Programs and Services...........................................................................32
A.
B.
C.
D.
E.
F.
Education ......................................................................................... 32
1.
Testing and Assessment ....................................................... 32
2.
Counseling ........................................................................... 33
3.
Adult Literacy, Basic Skills and GED Preparation .................... 33
4.
Special Education ................................................................ 33
5.
English as a Second Language (ESL) .................................... 33
6.
Title I ................................................................................... 33
7.
Pre-Release Programs .......................................................... 34
8.
Cognitive Int ervention ........................................................... 34
9.
Career and Technical Education ............................................ 35
10.
Libraries ............................................................................... 35
11.
School Rules ........................................................................ 36
12.
Information on Education Programs ....................................... 36
Recreational Activities ....................................................................... 36
1.
Non-Programmatic................................................................ 37
2.
Programmatic ....................................................................... 37
Offender Craft Shop .......................................................................... 38
Basic In-Cell Art ................................................................................ 39
Healt h Services ................................................................................ 39
1.
Medical Services .................................................................. 39
2.
Dent al Services .................................................................... 40
3.
Pharmacy Services ............................................................... 41
4.
Psychiatric and Psychological Services .................................. 41
5.
Developmental Disabilities Program (DDP)............................. 42
6.
Complaints about Medic al Services........................................ 42
Rehabilitation Programs .................................................................... 42
1.
Individualized Treatment Plan (ITP) ....................................... 43
2.
Administrative Segregation Pre-Release Program (ASPP)....... 43
3.
Gang Renouncement and Disassociation P rocess (GRAD) ..... 43
4.
Serious and Violent Offender Reentry Initiative (SVORI).......... 44
5.
Administrative Segregation Transition Program ...................... 44
6.
Baby and Mother Bonding Initiative (BAMB I) Program............. 44
7.
Faith-Bas ed Programs .......................................................... 44
Offender Orientation Handbook
ii
FEBRUARY 2017
92
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 9 of 147
G.
H.
I.
J.
K.
L.
M.
N.
O.
P.
Q.
R.
S.
T.
U.
VII.
a.
Dorms ..................................................................... 44
b.
InnerChange Freedom Initiative (IFI) .......................... 44
c.
Voyager ................................................................... 45
8.
College Courses ................................................................... 45
9.
College Technical Courses .................................................... 45
10.
Southwestern Baptist Theological Seminary (SWB TS) ............ 46
11.
Religious Services ................................................................ 46
12.
Sex Offender Rehabilitation Programs and E valuation ............ 47
a.
Minimum Requirements ............................................ 47
b.
Sex Offender Treatment Program (SOTP -18) ............. 47
c.
Sex Offender Treatment Program (SOTP -9) ............... 47
d.
Sex Offender Education Program (SOEP-4) ............... 47
e.
Risk Assessment ...................................................... 47
13.
Civil Commitment of Sexually Violent Predators ...................... 48
14.
Sex Offender Registration P rogram Information ...................... 49
15.
Orchiectomy ......................................................................... 50
16.
Substance Abus e Treatment Programs .................................. 50
17.
Driving While Int oxicated (DWI) Program................................ 51
18.
In-Prison Therapeutic Community (IP TC) ............................... 51
19.
Pre-Release Substance Abuse Program (P RSAP) .................. 51
20.
Pre-Release Therapeutic Community (PRTC)......................... 51
21.
State Jail Substance Abuse Program (S JSAP) ....................... 51
22.
Substance Abus e Felony Punishment Facility (SAFPF) ........... 51
23.
Support Groups .................................................................... 52
24.
Volunteer Programs .............................................................. 52
25.
Youthful Offender COURAGE Program .................................. 52
State Counsel for Offenders .............................................................. 53
1.
Criminal Defense .................................................................. 53
2.
Appellate.............................................................................. 53
3.
Civil Defens e ........................................................................ 53
4.
Immigration .......................................................................... 54
5.
Legal Services ...................................................................... 54
6.
Innocenc e & Wrongful Convictions ......................................... 54
7.
Prisoner’s Civil Rights ........................................................... 54
8.
How Offenders Can Get Help ................................................ 54
Ombudsman Program…………………….………………………………… 55
Language Assistance (Asistencia de Lenguaje) .................................. 56
Correspondence Rules………………………….………………………….. 56
Visitation .......................................................................................... 57
Offenders Access to Telephones ....................................................... 57
Emergency Absences ....................................................................... 62
1.
Emergency Absence ............................................................. 62
2.
Emergency Absence Eligibility Requirements ......................... 63
Inmate Trust Fund ............................................................................ 64
ID Cards .......................................................................................... 66
Commissary ..................................................................................... 67
Voter Registration ............................................................................. 69
Offender Request To Official (I-60) Form ............................................ 70
Administrative Segregation Plan ........................................................ 70
Institutional Lockdowns ..................................................................... 70
Impermissible Conduct ...................................................................... 71
Disciplinary Procedures and Rules .......................................................71
A.
B.
C.
General P rocedures .......................................................................... 71
Solitary Confinement ......................................................................... 72
Counsel Substitute Program .............................................................. 72
Offender Orientation Handbook
iii
FEBRUARY 2017
93
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 10 of 147
D.
Appeal Process ................................................................................ 73
VIII.
Grievance Procedures for Offenders ....................................................73
IX.
Parole Information ...................................................................................76
X.
A.
B.
C.
Parole Information ............................................................................ 76
The Parole Interview ........................................................................ 77
Parole Eligibility Requirements .......................................................... 78
1.
70th Legislature Requirements ............................................... 78
2.
71st & 72nd Legislature Requirements ..................................... 79
3.
73rd Legislature Requirements ............................................... 79
4.
74th Legislature Requirements ............................................... 80
5.
75th Legislature Requirements ............................................... 82
6.
76th Legislature Requirements ............................................... 82
7.
77th Legislature Requirements ............................................... 82
8.
78th Legislature Requirements ............................................... 82
9.
79th Legislature Requirements ............................................... 82
10.
80th Legislature Requirements ............................................... 83
11.
81st Legislature Requirements ............................................... 83
12.
82nd Legislat ure Requirements............................................... 83
13.
83rd Legislature Requirements ............................................... 83
D.
E.
F.
G.
Offenders with Detainers Pending ..................................................... 84
Parole and Mandatory Supervision Violators....................................... 84
Offenders who commit offenses while in custody ............................... 84
Questions about Parole-related issues ............................................... 84
Reentry .....................................................................................................84
A.
B.
C.
D.
E.
F.
G.
H.
XI.
TDCJ Crime Stoppers “Behind the Walls” ...........................................87
A.
B.
C.
D.
XII.
Identification and Reent ry .................................................................. 84
Veteran’s Servic es ........................................................................... 85
TCOOMMI Services .......................................................................... 86
Continuity of Care (Mental Health and Medical) .................................. 86
Adult Intensive Case Management .................................................... 86
Adult Transitional Case Management ................................................. 87
HIV/A IDS Continuity of Care.............................................................. 87
Medically Recommended Intensive Supervision (MRIS) ..................... 87
Tips Communication Procedures ....................................................... 87
How do Offenders Report Information to Crime Stoppers ................... 87
What Type of Information is Reported to Crime Stoppers .................... 88
Important Information ........................................................................ 88
Proof of Incarceration Period……………….……………………………88
A.
B.
Discharge Certificates ....................................................................... 88
Proof of Incarceration Period for State Jail Offenders ......................... 88
Chapter 2: Offender Visitation Rules and Regulations.......................... 89
Introduction.............................................................................................. 89
Definitions ................................................................................................ 89
Offender Orientation Handbook
iv
FEBRUARY 2017
94
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 11 of 147
I.
General Information .................................................................................91
Visitation Schedule ....................................................................................... 91
A.
Periods of Visitation .......................................................................... 91
B.
Frequency of Visits ........................................................................... 92
C.
Visits Requiring Advanced Scheduling ............................................... 93
D.
Number of Visitors Allowed................................................................ 93
II.
Who Can Receive Visits ..........................................................................93
III.
Rules for Visits .........................................................................................94
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
IV.
Visits for Other Categories ...................................................................101
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
V.
VII.
Developmental Disabilities Program (DDP) and Psychiatric In-P atient 101
Psychiatric Out-Patient .................................................................... 101
Transient Status ............................................................................. 102
Safek eeping Status ......................................................................... 102
Pre-Hearing Detention .................................................................... 102
Lockdown Status ............................................................................ 102
Solitary Confinement ....................................................................... 102
Administrative Segregation and Expansion Cellblock ........................ 102
Deat h Row ..................................................................................... 103
Level 5(G5/ J5/P5) Offenders in the Main Compound......................... 105
Contact Visitation….……….….…………………..…………...................105
A.
B.
C.
D.
E.
F.
VI.
Children Ages 17 and Younger .......................................................... 94
Approval Process ............................................................................. 95
Visitors Notification ........................................................................... 95
Visitor Identification........................................................................... 96
Visitors and Vehicle Searches ........................................................... 97
Cont raband Items ............................................................................. 98
Cont raband Items Not Allowed Inside Secure Perimeter of a Unit ........ 98
Permissible Items ............................................................................. 98
Supervision of Visits.......................................................................... 98
Offender Rules ................................................................................ 99
Visitor Rules .................................................................................... 99
Denial of Visits/Visitors.................................................................... 100
Termination of Visits in Progress...................................................... 101
Suspension of General Visits ........................................................... 101
Cont act Visits ................................................................................. 105
Eligibility Criteria……………………………………………………………. 105
Contact Visitation Scheduling…….…………………………………….… 105
Visitors Approved for Contact Visits………………………………….…..106
Cont act Visitation Suspension………………………………………… ….107
Administrative Suspension…………………………………………………108
Extended Visits….……….….…………………..…………. .....................108
Special Visits ..........................................................................................108
A.
B.
C.
D.
E.
F.
G.
General P rocedures ........................................................................ 108
Long Distance Traveled ................................................................. 108
Spiritual Advisors ............................................................................ 108
Prospective Employers.................................................................... 109
Critically Ill List................................................................................ 109
Hospice Offenders .......................................................................... 109
Non-Legal Visits Between Offenders ................................................ 110
Offender Orientation Handbook
v
FEBRUARY 2017
95
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 12 of 147
VIII.
Current and Former TDCJ Employee Visits ….……….….………… ..111
IX.
Attorney Visits….……….….…………………..…………........................111
X.
Legal Visits Between Offenders…….….…………………..…………. ..111
Chapter 3: Uniform Offender Correspondence Rules.......................... 112
I.
General Rules and Instructions Regarding Correspondence ..........112
A.
B.
C.
D.
II.
Special and Media Correspondence....................................................115
A.
B.
III.
Permissible Correspondence ........................................................... 116
Exceptions ..................................................................................... 116
Handling Offender Correspondence ...................................................116
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
V.
Permissible Correspondence ........................................................... 116
Exceptions ..................................................................................... 116
Legal Correspondence ..........................................................................116
A.
B.
IV.
Permissible Correspondents ............................................................ 112
Restricted Correspondents .............................................................. 112
How to Correspond ......................................................................... 113
Publications .................................................................................... 115
Cont ent Inspection of General Correspondenc e................................ 116
Cont raband in General Correspondence .......................................... 117
Cont raband in Legal, Media, or Special Correspondence .................. 117
Notices........................................................................................... 117
Record of Legal, Special, or Media Correspondence ......................... 117
Cont ent of Inspection of Publications ............................................... 118
Processing Incoming and Outgoing Offender Mail ............................. 119
Forwarding of Mail .......................................................................... 119
Mailrooms ...................................................................................... 119
Treatment Programs ....................................................................... 119
Review Procedures for Denied Items ..................................................120
A.
B.
Handling of Denied Items ................................................................ 120
Correspondence and Publication Appeal Procedure.......................... 120
Chapter 4: Rules Governing Offender Access to the Courts, Counsel
and Public Officials ....................................................................................... 121
I.
Policy .......................................................................................................121
Procedures .............................................................................................121
Law Libraries ..........................................................................................121
A.
B.
C.
II.
Law Library Collections, Conditions, and Supplies ............................ 121
Direct Law Library Access (General Population) ............................... 123
Indirect Law Library Access, Administration Segregation, Lockdown,
G5/J5/P5, Medical Isolation, Temporary Detention, Trusty Camp, Work
Camp, and Death Row Offender Access to the Law Library (Indirect
Access).......................................................................................... 124
Offender’s Personal Legal Material .....................................................125
A.
B.
Storage and Access ........................................................................ 125
Searches of Offender Legal Mat erials .............................................. 125
Offender Orientation Handbook
vi
FEBRUARY 2017
96
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 13 of 147
III.
Performance of Legal Work ..................................................................125
A.
B.
IV.
Notary Public Services..........................................................................126
A.
B.
V.
Periods of Visitation ........................................................................ 127
Notice ............................................................................................ 127
Identification ................................................................................... 127
Designated Representative's Application to Visit ............................... 128
Limits on Number, Persons, and Type of Visit................................... 128
Rejection by Offender of Visitation Request ...................................... 128
Procedures During Visit................................................................... 129
Rejection of Visitation Request or Termination of Visit ....................... 130
Suspension of Visitation Privileges ................................................... 131
Attorney Visitation Review Proc edure............................................... 131
Cons ular Officials ........................................................................... 131
Attorney and Offender Telephone Calls……………………….............132
A.
B.
VII.
Documents ..................................................................................... 126
Scheduling ..................................................................................... 126
Attorney Visitation .................................................................................127
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
VI.
Locations and Times ....................................................................... 125
Offenders Assisting Other Offenders on Legal Matters ...................... 126
General Guidelines…………………….……………………………………132
Telephone Call and Attorney of Record Approval ............................. 132
Court Telephone Conference Calls…………………….……………… .134
Offender Orientation Handbook
vii
FEBRUARY 2017
97
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 14 of 147
CHAPTER 1
OFFENDER ACCESS TO SERVICES AND
STANDARDS FOR BEHAVIOR
I.
INTAKE PROCESS
All offenders committed to the Texas Department of Criminal Justice (TDCJ) are received at a
prison, state jail, intermediate sanction faction (ISF) or a substance abuse felony punishment
(SAFP) intake facility. These facilities are equipped to receive and process offenders admitted to
the agency’s custody. Offenders who speak little or no English shall be identified and shall
receive the necessary type of language assistance during the intake process and later when
assigned to a unit.
A.
Receiving and Screening
Offenders shall be searched upon arriving at a TDCJ facility. A receipt shall be
completed for each offender's money and property. Medical care shall be given, if care is
needed immediately. Offenders shall be housed according to security needs. State
clothing shall be issued; haircuts and showers provided.
B.
Photographs and Fingerprints
Each offender shall go to the Photograph and Identification Department to be:
1.
Photographed;
2.
Fingerprinted;
3.
Examined for any identifying scars, marks, or tattoos; and
4.
Interviewed to obtain basic demographic and emergency contact information.
The fingerprints shall be sent to the FBI and the Texas Department of Public Safety
(DPS). The Photograph and Identification process helps identify every offender to make
sure no one is admitted or released illegally, and creates the TDCJ-issued identification
card that each offender is required to carry.
C.
Physical Examination
Offenders shall be given a physical examination by medical and dental staff. The
medical and dental staff shall ask each offender about his medical history. The medical
and dental staff shall use the results to determine the special needs, if any, of an
offender. The special medical needs of an offender shall be taken into consideration
during the classification process.
D.
Mental Health Screening
Each offender shall undergo an initial mental health screening.
referred for further psychological evaluation.
Offender Orientation Handbook
1
An offender may be
FEBRUARY 2017
98
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 15 of 147
E.
Americans with Disabilities Act (ADA)
It is the intent of the Texas Department of Criminal Justice to comply with the Americans
with Disabilities Act (ADA). Offenders shall report a disability if they have one. ADA
related complaints should be addressed through the Offender Grievance Procedure.
ADA related complaints may also be expressed on an Inmate Request to an Official, I-60,
to the warden. Offenders who require assistance with daily life activities should request
an evaluation from the unit medical provider for a referral to Assistive Disability Services
(ADS).
F.
Orientation
An orientation video is provided to all new offenders, also available in Spanish to those
offenders who require it. The orientation shall cover the following:
Part 1 Director’s Introduction
Part 2 Intake Process
Part 3 Classification
Part 4 Emergency Absence
Part 5 Spanish Language
Part 6 Health Services
Part 7 Security Threat Group Management Office (STGMO)
Part 8 Safe Prisons/PREA
Part 9 Office of the Inspector General
Part 10 Offender Visitation
Part 11 Offender Discipline
Part 12 Collection of DNA
Part 13 General Rules
Part 14 Contraband & Shakedowns
Part 15 Count Procedures
Part 16 Access to Courts
Part 17 Grievance Procedures
Part 18 Risk Management
Part 19 Offender Mail and Correspondence Rules
Part 20 Food Service and Laundry
Part 21 Commissary and Trust Fund
Part 22 Windham School District
Part 23 Recreation and Non-Programmatic Activities
Part 24 Chaplaincy
Part 25 Substance Abuse Treatment Program
Part 26 Sex Offender Treatment Program
Part 27 State Counsel for Offenders
Part 28 Parole Process, Texas Board of Pardons and Paroles
Part 29 Field Services/Release
Part 30 Voter Registration
Part 31 Closing Remarks
Offenders shall also participate in Peer Education classes addressing Prison Rape
Elimination Act (PREA) awareness, and medical issues. During intake, offenders shall
receive information explaining the agency's zero-tolerance policy regarding sexual abuse
and sexual harassment and how to report incidents or suspicions of sexual abuse or
sexual harassment. Within 30 days of intake, the agency shall provide comprehensive
education to offenders either in person or through video regarding an offender’s right to
be free from sexual abuse and sexual harassment and to be free from retaliation for
reporting such incidents, and regarding agency policies and procedures for responding to
such incidents.
Offender Orientation Handbook
2
FEBRUARY 2017
99
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 16 of 147
Current offenders who have not received such education shall be educated within one
year of the effective date of the PREA standards, and shall receive education upon
transfer to a different unit to the extent that the policies and procedures of the offender's
new unit differ from those of the previous unit. The agency shall provide offender
education in formats accessible to all offenders, including those who are limited English
proficient, deaf, visually impaired, or otherwise disabled, as well as to offenders who have
limited reading skills. The agency maintains documentation of all offender participation in
these education sessions. Key information is continuously and readily available or visible
to offenders through posters, offender handbooks, or other written formats. (Safe
Prisons/PREA Office)
Offenders shall view a video provide by the Veterans Health Administration, Suits:
Support for Incarcerated Veterans. Female offenders shall also view a video on fetal
alcohol syndrome.
G.
Testing and Assessment
All offenders shall be tested to determine educational, psychological, and substance
abuse treatment needs, except on SAFP intake facilities.
H.
Intake and Sociology Interview
During the intake interview and the sociology interview, information is gathered to create
the classification record. During these interviews, offenders shall be asked questions
about their:
1.
Criminal history;
2.
Social history;
3.
Institutional history;
4.
Educational history;
5.
Employment history;
6.
Family history;
7.
Military history;
8.
Drug and/or alcohol histories; and
9.
Any other pertinent information.
Offenders shall be interviewed to verify information in their records. Offenders may be
punished through the disciplinary process for giving false information during interviews.
A summary of all information collected on each offender shall be used to help in the
classification process.
Sociology Interviews are not completed on SAFP intake facilities.
Offender Orientation Handbook
3
FEBRUARY 2017
100
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 17 of 147
I.
Prison Offenders
The State Classification Committee (SCC) and designated staff of the Classification and
Records Office (CRO) shall determine the first unit to which each offender s entenced to
prison shall be sent. Offenders do not have the right to choose their unit of assignment.
Offenders are assigned to units by the SCC after intake processing is completed.
Offenders spend the first few weeks going through the intake process. Data is collected
on each offender. The SCC and CRO staff use this data to place offenders with similar
characteristics on units or facilities together. The SCC and CRO staff shall make its
decision based on:
1.
All information collected;
2.
The offender's safety needs;
3.
The offender's security needs; and
4.
The offender's treatment needs.
Based on 1-4 above, the SCC may also recommend the offender's:
J.
1.
Level of supervision (custody level);
2.
Housing assignment; and
3.
Job assignment.
State Jail Offenders
Under legislation that established the State Jail felony, state jail offenders are:
K.
1.
Convicted of a fourth degree (or state jail) felony and sentenced by a court to
serve a sentence of up to 24 months in a TDCJ State Jail facility.
2
Housed in a state jail facility closest to their county of conviction that can
accommodate the offender’s need. There are nine designated state jail service
regions served by one or more state jail facilities. These service regions were
created to provide cost effective community based incarceration enabling
offenders to connect to services in their home communities.
Transfer Offenders
Transfer offenders are convicted of 1st , 2nd or 3rd degree felonies and are awaiting
assignment to a permanent facility and subject to the classification procedures as stated
above. Offenders can be detained in a transfer facility for up to two years before being
moved into a permanent facility.
L.
SAFPF Offenders
Substance Abuse Felony Punishment Facility (SAFPF) offenders are normally assigned
to units closest to their county of residence in order to facilitate family visits, family
counseling, as well as to maintain contact with the offender’s Community Supervision
officer (CSO).
Offender Orientation Handbook
4
FEBRUARY 2017
101
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 18 of 147
M.
Foreign Nationals
If you are a non-U.S. citizen, you are entitled to have TDCJ notify your country’s consular
representatives here in the United States. A consular official from your country may be
able to help you obtain legal counsel, and may contact your family and visit you in
detention, among other things. If you want TDCJ to notify your country’s consular
officials, you can request this notification now by advising an intake staff member or at
any time in the future by contacting the classification office on your unit.
If you are a non-U.S. citizen and a citizen of one of the following countries you MUST
advise TDCJ immediately. It is mandatory that your country’s consular representatives in
the United States be notified that you have been detained. After your consular officials
are notified, they may call or visit you. You are not required to accept their assistance,
but they may be able to help you obtain legal counsel and may contact your family and
visit you in detention, among other things.
Albania
Algeria
Antigua and Barbuda
Armenia
Azerbaijan
Bahamas
Barbados
Belarus
Belize
Brunei
Bulgaria
China
Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia
Georgia
Ghana
Grenada
II.
Guyana
Hong Kong
Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland (non-permanent Residents Only)
Romania
Russia
Saint Kitts and Nevis
Saint Lucia
Saint
Vincent
and
the
Grenadines
Seychelles
Sierra Leone
Singapore
Slovakia
Tajikistan
Tanzania
Tonga
Trinidad & Tobago
Tunisia
Turkmenistan
Tuvalu
Ukraine
United Kingdom
Uzbekistan
Zambia
Zimbabwe
UNIT CLASSIFICATION
A.
Custody Levels
On the unit of assignment, an offender is given a custody designation which indicates
several things. It tells where and with whom he can live, how much supervision he will
need, and what job he can be assigned to.
An offender's custody level depends on his current institutional behavior, his previous
institutional behavior, and his current offense and sentence length. If the offender
violates any rules, he may be placed in a more restrictive custody. If the offender
complies with the rules, he may be assigned a less restrictive custody level.
Offender Orientation Handbook
5
FEBRUARY 2017
102
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 19 of 147
Prison Offender Custody Levels:
State Jail Offender Custody Levels:
1.
2.
3.
4.
5.
6.
Administrative Segregation
General Population Level 5 (G5)
General Population Level 4 (G4)
General Population Level 3 (G3)
General Population Level 2 (G2)
General Population Level 1 (G1)
1.
2.
3.
4.
5.
1.
Administrative segregation, SR custody for state jail offenders, refers to offenders
who shall be separated from the general population because they are dangerous,
either to other offenders or staff, or they are in danger from other offenders.
Offenders who, according to the Security Threat Group Management Office
(STGMO), are members of security threat groups designated by TDCJ, may be
given this custody level. These offenders leave their cells, for the most part, only
for showers and limited recreation.
Offenders assigned to administrative
segregation in expansion cellblocks shower in their cells.
2.
General population Level 5 (G5) or (J5) custody refers to offenders who have
assaultive or aggressive disciplinary records. G5 or J5 custody offenders shall
live in cells. They may not work outside the security fence without direct, armed
supervision.
3.
General population Level 4 (G4) or (J4) custody means the offender shall live in a
cell, with few exceptions, and may work outside the security fence under direct
armed supervision. J4 state jail offenders may be housed in designated dorms.
4.
General population Level 3 (G3) refers to prison offenders who may live in dorms
or cells inside the main building of the unit. G3 offenders are ineligible to live in
dorms outside the main building of a unit, inside the security fence. G3 offenders
shall be generally assigned to field force and secure jobs inside the perimeter as
designated by the warden. They may work outside the security fence under
direct armed supervision. (state jail offenders are not assigned to level 3 custody
as this custody is reserved for offenders serving sentences of 50 years or
greater.)
5.
General population Level 2 (G2) or (J2) custody refers to offenders who may live
in dorms or cells inside the security fence. They may work outside the security
fence under direct armed supervision.
6.
General population Level 1 (G1) or (J1) custody allows offenders to live in dorms
outside the security fence. Offenders living in trusty camps shall be classified OT
custody. They may work outside the security fence with periodic unarmed
supervision.
Administrative Segregation (SR)
General Population Level 5 (J5)
General Population Level 4 (J4)
General Population Level 2 (J2)
General Population Level 1 (J1)
Note: Offenders in general population custody levels may also be given a safekeeping
status (P2 – P5) if they need an added level of protection from other offenders.
B.
Committees
In TDCJ, a classification committee determines an offender’s custody.
Offender Orientation Handbook
6
FEBRUARY 2017
103
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 20 of 147
1.
Unit Classification Committee (UCC)
Responsible for assigning an offender a custody level. This custody level
designates where offenders shall live on the unit and what job(s) they are eligible
for. Offenders appear before this committee when they arrive on a new unit.
They also meet with the UCC when routine classification decisions are needed.
2.
Administrative Segregation Committee (ASC)
Responsible for the process of reviewing offenders for placement
administrative segregation and routine reviews of those offenders.
3.
in
State Classification Committee (SCC)
A central administrative classification committee that makes final decisions with
regards
to
agency-wide
issues
and
unit classification committee
recommendations. During the intake process, the SCC makes decisions
concerning the initial assignment of an offender to a unit. The SCC also makes
final decisions regarding administrative segregation, safekeeping, and requests
for protection.
4.
Security Precaution Designator Review Committee (SPDRC)
The authority that determines the eligibility for removal of a security precaution
designator code from the offender’s record. This committee is also the authority
that determines if a security precaution designator should remain in the
offender’s record after designated timeframes expire.
C.
Inter-Unit Transfers
Inter-unit transfers are transfers from one unit to another. Offenders do not have a right
to choose their unit of assignment. Inter-Unit transfers are based on departmental and
offender needs. Transfer requests follow a process. The warden, the Unit Classification
Committee or the proper department head shall first recommend transfer requests. If
approved at the unit level, the unit shall then contact the State Classification Committee
for final approval.
Transfer requests for medical or educational reasons shall be made to the appropriate
department. For example, the Education Department shall review and approve a transfer
request to attend a four-year college program.
If approved, the department head
forwards the request to the State Classification Committee for its review. The State
Classification Committee shall not review transfer requests directly from offenders.
Some offenders have problems/conflicts on their unit and want a transfer. These
offenders should contact the unit staff for help. If further review is needed, the State
Classification Committee shall be contacted.
Hardship transfer requests may be considered to accommodate immediate family
members listed on the offender’s approved visitation list if medical documentation can be
obtained. The request shall come from the offender’s immediate family member.
D.
Good Conduct Time
Note: Only prison-sentenced offenders convicted of first, second, or third degree
felonies receive good conduct time.
Offender Orientation Handbook
7
FEBRUARY 2017
104
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 21 of 147
Good conduct time is a privilege, not a right. Offenders shall follow the rules in order to
receive good conduct time. Some or all of the good conduct time awarded to an offender
may be taken away for disciplinary infractions.
When offenders enter the TDCJ, they are assigned a time-earning status of Line Class I.
Offenders can work their way into a higher time-earning status or be placed into a lower
time-earning status, dependant upon their behavior. Each time-earning status is linked
with a set number of days of good conduct time that can be earned each month. This
rate is fixed by law. There are two (2) types of time-earning statuses:
1.
Line Class status (ranging from Line Class III to Line Class I), and
2.
State-Approved Trusty (SAT) status (ranging from SAT IV to SAT II).
Newly received offenders shall be assigned to Line Class I status and shall wait six
months before they are eligible for promotion in time-earning status. They shall be
automatically promoted if they do not have any major disciplinary cases during this time
period.
Good conduct time is awarded based on the laws in effect when the crime was
committed, as described below.
Offenders who committed their crimes before September 1, 1987 are "Pre-70th
Legislature" offenders. These offenders are also known as "65th Legislature" offenders.
They are awarded good conduct time each month based on their time-earning status.
"Pre-70th Legislature, 65th Legislature and Pre-65th Legislature” offenders can also earn
up to 15 extra days of good conduct time each month. These extra credits are called "A",
"B", and "C" credits. To receive these credits, offenders shall complete one or more
programs in academic or vocational education or complete an On-the-Job Training
Program while in the TDCJ. These extra credits are awarded from the time the program
was completed. Offenders in Line Class III status are not eligible to receive "A", "B", or
"C" credits.
Offenders who committed their crime on or after September 1, 1987 are known as "70th
Legislature" offenders. They are awarded good conduct time each month based on their
time-earning status if they participate in assigned work or school programs. For
participating, these offenders also get an extra 15 days of diligent participation credits
each month. These offenders get no good conduct time for each day they do not go to
work, school or a required treatment program when unexcused. “70th Legislature”
offenders who are assigned to administrative segregation shall not receive any of the
15 days diligent participation good conduct time credits. They shall receive only the good
conduct time based on their time earning status. Offenders who are excused from
participating for any reason receive good conduct time. This includes the extra 15 days.
"70th Legislature" offenders are not eligible to earn the "A", "B", or "C" educational
credits.
Two things affect an offender's eligibility for release on parole or mandatory supervision.
They are:
1.
The type of crime the offender was convicted of; and
2.
The laws in effect when the crime was committed.
Offender Orientation Handbook
8
FEBRUARY 2017
105
Case 4:19-cv-01106 Document 8-2 Filed on 03/26/19 in TXSD Page 22 of 147
Offenders returned to the TDCJ for parole or mandator
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.