Texas Prison I.D. #[ID]
McConnell Unit Prison
3001 S. Emily Drive
Beeville, Texas 78102
To American Prison Writing Archive
Date: September 27, 2018
Dear APWA: I am in receipt of your response to my essay. This letter of response you sent me dated 9/21/18 is acknowledged here in the "form" of a supplement to the essay as follows:
My apologies, it seems in my cover letter to the essay I must have told you its liable to be difficult to understand and I certainly was right as I just re-read the "copy" you sent me. I see you "agree" the piece was no easy read! I am embarrassed. I wanted to have it easily understandable to a wide audience and I can see I have miserably failed. However, everything I have tried to explain respecting this provision in Section 498.00"5" of Texas Government Code is 100% correct. I have called it The Texas Prison "Overcrowding Review Provision". The cases I cite in Ex Parte "Hallmark", 883 S.W.2d 672 (Tex. Crim. App. 1994), Ex Parte "Montgomery", 894 S.W.2d 324 (Tex. Crim. App. 1995), and "Hallmark v. Johnson", 118 F.3d 1073 (5th Cir. 1997) all "refer" to the piece of legislation as the Overcrowding Review Provision, too! The provision provides: (as follows) –
At least annually, the Board shall review the institutional division’s rules relating to the restoration of good conduct time that has been forfeited, the manner in which inmates are reclassified, and the manner in which additional good conduct time is awarded retroactively to inmates who have been reclassified. The Board shall consider in its review whether the inmate overcrowding in the institutional division has decreased and whether it is necessary for purposes of decreasing overcrowding to classify inmates according to Section 498.002 to restore good conduct time under Section 498.004, or to award additional good conduct time retroactively to inmates who have been reclassified…If the Board determines that the overcrowding has decreased and it is “not” necessary to “restore” good conduct time or to award additional good conduct time, it shall direct the institutional division to discontinue those practices.****
The above provision is Section 498.00"5", Texas Government Code. The Texas Legislature here implements what appears to be a “stop gap” measure of practice to assist these overcrowding concerns plaguing the prison system especially in the 1980’s and help decrease overcrowding. The provision refers to Sections 498.00”2” and 498.00”4” as provisions within the Texas Prison Management Act which are instrumental to rewarding and punishing prisoner behaviors through classification measures which employ the awarding of good “conduct” time, and “forfeitures” of such time credits, also.
Okay, the provision “says” that the Board – that’s the Texas Board of Criminal Justice (TBCJ) – “shall” direct the institutional division to “discontinue" those practices [if] the periodic review concludes with a particular type of "determination". Thats to “discontinue” those practices (now employed all throughout the prison systems many different units so as to decrease overcrowding!) This may sound rather odd yet its true respecting the inmate populations “mindset.” The TBCJ sees how it can misconstrue the statutory provision to hopefully eliminate the prison “policy” of making restorations [.] period While the statutory provision merely calls for a “discontinuance” of the use of these practices to the legislative materials adoption of them to be employed as specials tools to assist decrease in overcrowding, and thus means to make a “temporary” “discontinuance” of them strictly related to their use and special purpose within the overcrowding review provision; the Tx. Bd. Crim. Justice and the courts [instead] “postulate” the provision as “authorizing some major adjustments to current prison policy, e.g. 'existing' Texas Department of Criminal Justice – Institutional Division Policy respecting the restoration of 'forfeitures' of accrued good conduct time authorized by Section 498.00”4” of the Texas Gov. Code.” This is not true. The statutory material authorized no such action at all. None. Section 498.004 entails a special measure of disciplinary misconduct punitive sanctions which permits the “director” of the institutional division to forfeit [all] or any part of ones “accrued” good conduct time credits – e.g. good conduct time which inmates have “already” earned and had awarded to them. This is an “enhancement” measure of punitive sanctions which may be employed along with the more ordinary and traditional measure of “demoting” ones in their good conduct time - “earning” classification “status” so that they may not “earn” as much good conduct time credits as they had been able to earn prior to the disciplinary violation, and may not (in some cases) be allowed to earn “any” good time credits at all for designate periods of time, until they are eventually promoted back upward once again after maintaining good behavior without further violations. This method of punitive sanction is such that these “forfeitures” of good conduct time credits are essentially “demotions” that prevent the earning and accumulation of such credits in the first instance, but would have been avoided and allowed such earnings if not for a disciplinary violation! This measure is “seen” as a fair method of punitive sanction, but this extra punitive measure “enhances” ones ordinary and traditional method of sanctions such that it constitutes punitive “overreach” and violates due process of law in our Constitution’s Fourteenth Amendment, known as the Constitutional “Doctrine” of Fundamental Fairness. In the same statutory provision which permits such forfeitures of [earned] credits already awarded, the material also allows the “restoration” of such forfeitures!
As such, any constitutional “challenge” to the measure would be “difficult”, because the state could argue that good conduct time is only good to assist in ones early release to “parole” or, mandatory supervision. The loss of such credits has no effect on the actual length of ones “sentence”, as imposed. It can merely act to expedite early release to parole! And parole is not meant for those who commit these disciplinary violations anyhow! But parole is a reward in early release for good behaviors! And so, the state can argue that should you change your conduct and refrain from such violations these forfeitures can be restored to you! However, here where Section 498.00”5”, this Overcrowding Review Provision is at concern, the Board of Criminal Justice and Courts mischaracterize the provisions limited call for a “temporary” discontinuance in the specially authorized use of these practices as tools to employ to assist the decrease of overcrowding, to be instead some specially delegated measure of authority allowing the complete end of the use of the practices, “generally”, as historically employed in the prison system. Of course the measure seen in the overcrowding provision, 498.00”5” of Tex. Gov. Code, does not authorize any such “discontinuance.” But instead merely commands the Board to “direct” the institutional divisions current “use” of them all throughout the prison system in this special role to “assist” the decrease of overcrowding – to cease – stop – “temporarily”, until some future periodic review concludes with a determination they need to be employed once again within 498.005 to assist the decrease of an overcrowding emergency! You should “recognize” that although the statutory material doesn’t initiate the initial use of these practices all throughout the prison system in these special roles, it does instruct when a temporary “discontinuance” of their special use must occur. These practices are wholly independent of and apart from the special use they play in 498.005 and its concerns respecting overcrowding emergencies!
As such they must immediately be discontinued in such special use upon a finding they are no longer currently needed to this end. These practices are strictly geared to the Prison Management Act in general “use”, and “role”, of rewarding and punishing inmate behavior, and they are continuously in “current” use, all through the prison system, all day, 24/7, and 365 days a year, and their general use is “not” dependent upon Section 498.00"5" or its objective at decreasing emergency overcrowding! Okay, this statutory provision 498.00”5” has most assuredly “not” (in any manner) authorized the type of discontinuance ordered of the institutional division in the November 1993 “State Directive” by the Board of Criminal Justice. See Ex Parte Montgomery 894 S.W.2d 324 (Tex. Crim. App. 1995) As I have stated several times now, the discontinuance is supposed to be a mere “discontinuance”, temporarily [.] period
The 8 inmate pro se litigants we see depicted by the consolidated appeals challenging the statute, 498.00”5”, in Hallmark vs. Johnson, 118 F.3d 1073 (5th Cir. 1997) all lack constitutional “standing” to make their challenges because Section 498.00"5", government code, fails to authorize the type of discontinuance the Board has ordered of the prison system in this 1993 directive. Because the statutory provision has “not” authorized the actions taken by the Tex. Board Crim. Justice, these pro se litigants claims are misplaced and have no basis in fact. Thus there is no real live “controversy” between them and the state! As such the respective courts, all lack subject-matter “jurisdiction” over the litigation, and this resulted in a series of constitutionally prohibited advisory opinions. In short, its all feigned and collusive, fraudulent. But the Tx. Bd. Criminal Justice and these courts have successfully pulled the wool over the eyes of everyone and they have gotten away with this fraudulent escapade until the present date! This explains pretty much why I am still in prison some 40 years since my conviction. See 629 S.W.2d 786 (14th Judicial Dist. [Houston] December 1981). I am missing over 4000 days of forfeited good time because of Section 498.00"4" permitting the forfeitures due to disciplinary violations over the years. But Section 498.004 also is supposed to authorize the restoration of such good time credits too. And it did so, until it had affirmatively appeared to the legislature the TBCJ and Courts have obviously gotten smooth away with the fraudulent escapade, at which time the legislature decided to play along to the escapade and had thought it safe to go ahead and amend Sec. 498.004 in conformance with the fraudulent pretext postulated by the TBCJ and Courts respecting 498.005. If 498.005 had truly authorized any such adjustments to currently existing prison policy dealing with restorations, it would violate substantive due process which limits enactments by legislatures to whats fair and reasonable in content and furthers a legitimate governmental objective. It would also impact offensively with Sec. 498.00"4" which had continued to permit “restorations” up until September of 1995, two years after the TBCJ had issued its state directive of Nov. 1993. See Montgomery 894. S.W.2d 324. This amazing escapade of fraud has continued to the present date! Hopefully this may help somewhat with my earlier essay and its uneasy read! Thank you.
Please tell me if this helps you understand the earlier essay.
Tommy [illegible] Boone
P.S. The 20 page essay I meant to supplement here at page #3, fourth line marked by arrow [on ______] is supposed to spell “onerous” - more punitive
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