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Tommy Boone McConnell Unit 3001 S Emily Drive Beeville, Tx. 78102 Essay Within each United States Circuit Court of Appeals they have -each- a Doctrine of Law in many areas of the Constitution. This Essay Focus on the Court of Appeals for the Fifth U.S. Circuit which is sitting in New Orleans Louisiana, and entertains appeals from three states in Texas, Louisiana, and Mississippi. This Essay "Focus" on Two of these Doctrines of Constitutional law. First, due process of law which is embraced by the 5th and 14th amendments. Next, secondly, EX POST FACTO, which is embraced by the first (1st) Amendment and/or article 1 of the constitution known as "Bill of Rights". In the beginning our Constitution was only a "Bill of Rights" which embraced ten articles. Article #1 of these first ten articles is the one which prohibits the passing of ex post facto laws. Article 1 [clauses] 9, and 10. I have been in prison in Texas 40 years as of April of 1978. I was 22 back then. I have been reading (for years) on matters unique to an area of law dealing with early release, often known to otherwise be called parole. An important Supreme Court decision focus on "ex post facto" law and its impact and implications in prisoners rights is "Weaver" vs. Graham, 450 U.S. 24 (1981). In "Weaver" the Supreme Court has said that where the prohibitions of the Constitutions ex post facto clauses are concerned in matters respecting early release laws, any "intervening" changes in a law, which affect matters of substance so as to affect ones effective "sentence", resulting in a more on punishment by delaying his release under the former state of law, may NOT be applied retrospectively to persons who were subject to the former law at the time of the "change" made in that law. Any such change in a law must apply "only" to persons who are confined in prison for criminal "offenses" that are committed on or after the effective date of enactment of the intervening "change" in law. Because it is a substantive change in the law it would offend these constitutional prohibitions against the passing of an ex post facto laws. In "Weaver" the Supreme Court has pointed to Wolff vs. McDonnell, 418 U.S. 539 (1974) as support for its [view] that these ex post facto legal prohibitions matter in prisoners rights in area of early release.The high court explained that in America (prisoners) and/or an "accused" has many critically important constitutional safe guards (rights) to be "invoked" when indicted and standing trial for a criminal offense. In America the criminal justice officials are able to make plea bargaining offers to persons in agreements for leniency (light) punishment in return for the waivers of their rights. The accused who enters such agreements has done so in hopes of getting out of prison faster. Early release laws could be a network of legal provisions all of which affect post-sentencing rights to early release. As such, the "change" in law important to the ex post facto doctrine prohibiting increases in punishment, need "not" affect the "initial" sentence assess by increasing that particular measure of punishment. All the change in a law need do is work a "delay" in ones "effective" sentence respecting a network of early release provisions. Or, in other words, if it works to the persons disadvantage by "delaying" early release under "former" law. If it does this it will not be "applicable" to someone who had therefore been subject of the "former" state of that law. The "former" state of that law [continues] for the purpose of ensuring no constitutional violations offensive to the ex post facto clause result. In the fifth circuit, in Texas, the "Texas" court of criminal appeals has "implicitly" held that when the supreme court in Collins vs "Youngblood", 497 U.S. 37 (1990) overruled two 19th century decisions in its ex post facto network (doctrine) that "Texas" has followed the high courts lead and reverted back to an earlier interpretation of the ex post facto law. See ex parte "Hallmark" 883, S.W. 672 (Tex. Cr App. 1994). A cursory reading of ex parte "hallmark" quickly dictate that the court of criminal appeals has "purportedly" disavowed its decision in ex parte "Rutledge" 741 S.W. 2d460 (1987) Replacing it with the new en banc authority in "Grimes vs. State, 807 S.W. 2d582 (1991) the panel of judges on ex parte "Hallmark" court clearly make implicit statements that the heretofore traditional mechanics and methodology of the ex post facto analysis in Texas underwent a change where good time credits are concerned in early release laws, due to the overruling of "Kring" and "Thompson" by the U.S. Supreme Court in Collins vs "Youngblood" 497 U.S. 37 (1990). However the proffered change has not truly taken place at all. The postulation is strictly intended to "effectively" beat back a "rising" tide of prisoner pro se litigation. See the appeal of consolidated cases in "Hallmark vs. Johnson, 118 F. 3d1073 (5 Cir. 1997). In other worlds it's a play on the idiosyncrasies of the general inmate litigant always filing actions to redress grievances concerning early release laws. The gist of the play is that when the supreme court overruled Kring and Thompson in this 1990 decision in "Youngblood"; it acted to qualify the application of "Weaver" vs Graham, 450 U.S. 24 (1981) in Texas, because of the differences in these good conduct time credits. Where the court in "Weaver" had explained why early release laws, also know as "post-sentencing" provisions, matter in ex post facto law (analytical examinations) was that a plea bargaining process offers lighter punishment if an accused waives all their rights and makes a bargain in return for a judicial confession and/or plea of guilty, they can expect to be released faster, citing "Wolff" (1974). Thus, it's not necessary that an intervening change in a law effect an increase in the initial sentencing laws which apply to any particular offenses...to correct the above, I mean to say its not necessary that an increase in punishment for a covered criminal offense affect the measure of punishment available under initial sentencing laws, or the particular initial sentence actually assessed by a court for the criminal offense. Alls needed then is the change increase punishment in ones effective sentence under early release laws. Ok, in ex parte Hallmark, 883 S.W. 2d672 (1994) the courts analytical examination implicitly states that Weaver was compromised by Youngblood, and because of the differentiating effects of good time credit-laws in Florida, where Weaver hails from, and those in Texas, a Texas prisoners sentence as assessed by a court, in initial sentencing, is not lengthened by his loss of good time the way a Florida prisoners sentence is. In Texas then it does not violate the prohibitions of the ex post facto clause by lengthening his assessed sentence, e.g. his initial sentence. And so, the implication is clear, and this implication was not corrected by the court of appeals in Hallmark vs. Johnson, 118 F.3d1073 (1997). Rather, it was pointed out that such analytical facts are being urged by the state in this appeal; as such it was inappropriate to fail to clearly set the record straight by employing plain english and emphasizing that Youngblood has not had this character of consequence on the traditional mechanics of such an analysis. The failure to do so works to lend substance and credence to the postulation that such an increase is now warranted. And so, it's like I said earlier hereinbefore, it's a major ploy in a series of feigned and collusive case opinions to erect a new methodology via misrepresentations and suggestiveness! Compare to Turner vs Johnson, 46 F. Supp. 2d655 (S.D.Tex 1999) at note 32 on page 673-674. The change in policy as issue in the so called prison overcrowding review provision, e.g. section 498.005, Texas Government code, if correctly interpreted by the court and both parties to the litigation will necessarily effect a change in statutory law by removing the director of the institutional divisions lawful statutory discretion to make restorations of these forfeitures of earned good conduct time credits under section 498.004 of the Texas Government code. As such, the statute in section 498.005, Tex Govnt Code, called the Texas prison overcrowding review provision, which everyone seems to insist empowers the Texas Board of Criminal Justice to make major adjustments to existing departmental policy respecting restorations of forfeitures under 498.004, necessarily changes the law in 498.004, not merely a policy! However, even so, lets look at Turner vs. Johnson deeper, again, at note 32, pages 673-674. The discretion at real issue here is the directors discretion to make these restorations of forfeitures under law as depicted by section 498.004, of the Texas Government code, and so, this statue in 498.005 (Tx. Prison overcrowding review provision) which proposedly authorized the (T.B.C.J.) Tx. Bd. Crim. Justice to direct the institutional division to discontinue various practices, such practices said to be intimate to a departmental policy authorizing the director to make restorations by law as seen in the statutory measure in section 498.004 government code, means that if true, that section 498.005, government code, authorized the TBCJ to direct an end to these practices so as to authorize major adjustments to current policy, the result is that sec. 498.005 authorized an end to the state of the law in 498.004. Thus, authorizing much more than a change in policy. It eliminated the directors discretionary authority to restore forfeitures under section 498.004, Govn't code. Section 498.005, Tex Govn't code, by authorizing the TBCJ to make adjustments to existing policy did in fact work a legislative change in law by effecting the authority the director had under existing statutory law as seen in section 498.004 of the government code. Well so much for the faulty analytical perspective of the United States District Court for the Southern District of Texas, at Houston, Texas in Turner vs. Johnson, 46 F. Supp 2d655 (S.D.Tx. 1999) I now point out that this statutory provision in section 498.005, Tex Gov. Code, called the Texas Prison Overcrowding Review Provision, is simply an overcrowding review law which is mischaracterized and misrepresented to authorize the Texas Board of Criminal Justice (TBCJ) to make major adjustments to existing policy the department employs, which policy was originated by the statutory measure we see in section 498.004, government code. That's correct! The department, or rather institutional division, truly does embrace and employ practices commensurate with a policy that has authorized the director of the institutional division to make restorations of accrued good conduct time credits that were forfeited due to major disciplinary rule violations. However where the Turner vs. Johnson case authority, 46 F. Supp. 2d655, note 32 at pages 673-674 portrays the policy as distinguishable from a statutory law, insisting that the ex post facto clause prohibits changes in laws not policies. In this case the policy at issue is a by product of a statutory law. Section 498.004 is a law which is in Texas Government code, and it authorizes the director of the prison system to both forfeit and restore earned good conduct time credits. So when a major change in the restoration policy is effected it necessarily changed and/or acts contrary to law which continued to authorize restorations. The change in policy is unlawful! Section 498.004 Government code, continued to authorize the director to make restorations. As such, there is no way section 498.005, government code, has been properly characterized to authorize any such adjustments be made to existing policy! And so, in summation, this Texas Prison Overcrowding Review Provision (section 498.005) is misrepresented to authorize such adjustments to existing policy. The sad truth is that some one [1] perhaps these inmates assisted it by contesting the very authority as unconstitutional for allowing the elimination of the restoration policy - But it is initially traced to attributable to the state itself. The TBCJ in 1993 issued a state directive to the prison systems decision to immediately discontinue those practices. The Practices at issue are depicted within the text of the overcrowding review provision itself. One such practice was the practice which is representative of the policy of making restorations of forfeitures of good time for disciplinary violations. To discontinue these practices then was mistakenly characterized to authorize major adjustments to the policy itself which authorizes restorations! But the Overcrowding Review Provision merely authorized a discontinuance of those practices not policies. [1] Someone got crafty, slick, and chose to take advantage of the character of the statutory language to misrepresent it to authorize the end of restorations policies. The state, via the TBCJ professed that contextually section 498.005 Overcrowding Review Provision has called for an end of the departmental policy of making restorations. But such idea is both absurd and silly. Follow this, here I go -- The department has long embraced the restorations policy, it's originated from section 498.004 government code, which is a special measure authorizing an enhanced measure of punitive consequences for those who commit major disciplinary violations. Under 498.004 in addition to a prison disciplinary hearing captain demoting one to lesser good time earning status classifications as punishment the captain can also forfeit all or any part of ones earned good time credits. The usual punishment where the captain demotes inmate to lesser good time earning status classifications only acts to withhold good time inmate could have and would have earned had he not been demoted. But this statutory provision in section 498.004, gov. code, authorizes the forfeiture of any amount or all of ones earned credits has he already been awarded! The same statutory provision also permits the director to make restorations of such forfeitures! This overcrowding review provision (498.005) very simply authorized the department to utilize (use) the departments practices of restorations of forfeitures which is identified as hailing from the statutory law in 498.004 to assist the overcrowding review provision by allowing a special use of restorations practices for the purpose of decreasing overcrowding. Nothing more! With the determination at conclusion of each periodic review the TBCJ must continue or discontinue the practices, as necessary! Any discontinuance directed is simply a temporary discontinuance as the overcrowding review provision mandates these continuing ongoing periodic reviews at least once a year, more often if necessary. The provision simply has not authorized any adjustments to the underlying departmental policies themselves in any manner whatsoever! Simply these temporary discontinuances in the specially authorized practices being used as tools to assist the decrease of overcrowding in emergency situations! These practices of restoration spring from 498.004 and so then does the policies which create and implement such practices. They are wholly geared to rewarding and/or punishing prisoner behavior and conduct. The director may forfeit earned good time as an enhanced measure of punitive consequences for disciplinary violations! The same law 498.004 also authorizes restorations of these forfeitures if one continues a particular period of time without further misconduct violations. Contrariwise, the statutory overcrowding review provision, 498.005, government code, is wholly independent of and apart from the concerns relevant to forfeitures or restorations of good time! The only type of relevance is the legislative employment of these practices as special tool to assist the decrease of emergency overcrowding. 498.005 has absolutely no kind of authority delegated to it to make any type of adjustments to existing policy on restorations. None! Nor would the legislature authorize such action. why? Because to do so will offensively impact with existing law in 498.004 which continued at that time to authorize restorations! Moreover, if 498.005 did (arguendo) authorize such restorations be ended it would be an unconstitutional and violative of substantive due process see black law dictionary: due process [substantive due process]. It's a doctrine of law which prohibits law makers from passing a law unless it is both fair and reasonable in content, and also furthers a legitimate governmental objective. What likely allowed the state to engage in the ploy to misrepresent the contextual command to the TBCJ to direct the institutional division to discontinue those practices in a particular circumstance so as to mischaracterize such command to be calling for the wholesale elimination of the practices and policy as well, was that one cannot tell that the provision itself upon enactment assumes active employment of these practices within their intended special role as tools to assist the decrease of emergency overcrowding problems. As such the statutory provision don't speak in terms of beginning or initiating the employment of the practices within 498.005 because they are automatically employed upon enactment of the statutory law itself. And so all we see is that in this given situational circumstance depicted in the text of the overcrowding review provision the Texas Board of Criminal Justice shall direct the institutional division to discontinue those practices! Nor does the statue clearly say the discontinuance if any will necessarily be temporary in as much as the provision commands these continuing periodic reviews and may once again depending on the determination made at conclusion of each periodic review necessitate the continuation of the special use of these practices for the avowed purpose of decreasing emergency overcrowding. The statutory provision command to direct the institutional division to discontinue those practices has absolutely no way in the world authorized any adjustment to existing departmental policies, ending the policy and underlying practices. No way. In this light, these individual 8 ex parte litigants seen in Hallmark vs. Johnson, 118 F. 3d1073 (5 Cir. 1997) had no standing to bring such claims as the statute 498.005 did not authorize the actions of the TBCJ, and the court(s) were all without a live controversy needed to assume subject matter jurisdiction over the claims of the inmate litigants whom all have misplaced claims which claim the statute is unconstitutional because it violates ex post facto prohibitions as applied retrospectively to them and thus wrongfully eliminated restorations policies. Ex parte Hallmark, 883 S.W. 2d672 (1994). It did not do so, it doesn't make such authorizations at all -- Rather, the TBCJ exceeded it authority by misrepresenting the provision to authorize such action. Secondly, because it violates due process by eliminating the practice of restorations ex parte Montgomery, 894 S.W. 2d324 (1995). It don't eliminate the practice or policy. The TBCJ misrepresented that it does this and they acted in excess of their statutory authority! And so, all courts lacked jurisdiction over the subject matter of the claims and entertained the litigations wrongfully rendering all opinions ex parte Hallmark, ex parte Montgomery and Hallmark Vs. Johnson, advisory! End of essay.
