Petition for Writ of Certiorari — In Re Patrick Henry Murphy, Petitioner

Supreme Court briefMar 28, 2019

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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

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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.

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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

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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

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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.

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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

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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.

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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

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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.

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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.

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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.

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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

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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.

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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

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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

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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.

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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

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73

Appendix J

74

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75

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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