110 F.3d 299 (5th Cir. 1997), 95-50879, Johnson v. Rodriguez

Docket Nº95-50879, 96-50382.
Citation110 F.3d 299
Party NameDaniel JOHNSON, Individually and on Behalf of all Present and Future Inmates of the Texas Department of Criminal Justice---Institutional Division, Plaintiff-Appellee, v. Victor RODRIGUEZ, in his Official Capacity as Chairman, Texas Board of Pardons and Paroles, all Present and Future Members of the Texas Board of Pardons and Paroles, in their Offic
Case DateApril 23, 1997
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 299

110 F.3d 299 (5th Cir. 1997)

Daniel JOHNSON, Individually and on Behalf of all Present

and Future Inmates of the Texas Department of

Criminal Justice---Institutional

Division, Plaintiff-Appellee,


Victor RODRIGUEZ, in his Official Capacity as Chairman,

Texas Board of Pardons and Paroles, all Present and Future

Members of the Texas Board of Pardons and Paroles, in their

Official Capacities; Allan B. Polunsky, in his Official

Capacity as Chairman, Texas Board of Criminal Justice, and

all Present and Future Members of the Texas Board of

Criminal Justice in their Official Capacities, Defendants-Appellants.

Nos. 95-50879, 96-50382.

United States Court of Appeals, Fifth Circuit

April 23, 1997

Page 300

[Copyrighted Material Omitted]

Page 301

Douglas M. Becker, Roger Dale Moore, Gray & Becker, Austin, TX, for Daniel A. Johnson.

Daniel E. Maeso, Louis Victor Carrillo, Assistant Attorney General, Jacqueline Lee Haney, Assistant Attorney General, Adrian L. Young, and Ann Kraatz, Chief, Law Enforcement Defense Division, Austin, TX, for Allan B. Polunsky and Victor Rodriguez.

Robert J. Dowlut, Fairfax, VA, for National Rifle Ass'n of America, amicus curiae.

Robert Teir, Washington, DC, for American Alliance for Rights and Responsibilities, Safe Streets Coalition, National Victim Center, Citizens for Concerns of Police Survivors, Crime Victims Services Section, Mayor's Office, City of Houston, Justice For All, Justice for Surviving Victims, Inc., Mothers Against Drunk Driving, National Organization for Victim Assistance, Parents of Murdered Children, Inc., People Against Violent Crime, Texas Association Against Sexual Assault, Texans for Equal Justice and Victims Outreach, amici curiae.

Page 302

Jennifer S. McGinty-Bales, Baker & Botts, Houston, TX, for Texas Council on Family Violence and Women's Advocacy Project, amicus curiae.

Robert T. Harris, Jr., Austin, TX, for American Civil Liberties Union of Texas, amicus curiae.

David L. Botsford, Austin, TX, for Texas Criminal Defense Lawyers Ass'n, amicus curiae.

Appeals from the United States District Court for the Western District of Texas.

Before GARWOOD, DAVIS and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

In this class action by Texas prisoners, defendants-appellants, the chairmen and members of the Texas Board of Pardons and Paroles and of the Texas Board of Criminal Justice, in their official capacities, appeal the judgment below declaring certain aspects of the Texas parole scheme violative of prisoners' federal constitutional rights of equal protection and access to the courts. Also appealed is the subsequent award of attorneys' fees to plaintiffs' counsel. We reverse the magistrate judge's findings of constitutional violations, vacate the award of attorneys' fees, and remand this case with instructions.

Facts and Proceedings Below

Daniel Johnson, an inmate of the Texas Department of Criminal Justice--Institutional Division (TDCJ-ID), filed this lawsuit pro se and in forma pauperis on February 26, 1985. His initial complaint, thrice amended, was dismissed by the district court upon the recommendation of a magistrate judge for failure to state a claim and to exhaust state remedies. This Court reversed and remanded, observing that Johnson's allegations raised "suggestions of invidious, group-based discrimination and infringement of fundamental rights." Johnson v. Pfeiffer, 821 F.2d 1120, 1122-1123 (5th Cir.1987) (Johnson I). After discussing the shortcomings of his complaint, we ordered that on remand Johnson be allowed an opportunity to amend to clarify the factual and legal basis of his claims. Id. at 1123-1124. We expressly reserved opinion as to whether he could even state a claim, much less prove one. Id. at 1123.

On remand, the district court appointed counsel to assist Johnson in preparing his Fourth Amended Complaint, which was filed on September 7, 1988. This complaint asserted several purported causes of action under 42 U.S.C. § 1983, alleging, inter alia, that the defendants' consideration of "protest letters" and prisoners' "writ-writing" activities in the parole process infringes a panoply of federal constitutional provisions. 1 All parties consented to final adjudication by a magistrate judge, pursuant to 28 U.S.C. § 636(c).

On February 11, 1992, the magistrate judge, after finding that Johnson adequately represented a class comprised of all present and future inmates of the TDCJ-ID, certified this litigation as a class action limited to prospective relief only. A bench trial was held on June 9-12 and June 23-26, 1992, and July 16, 1992. On November 1, 1995, the magistrate judge issued a memorandum opinion granting Johnson and the prisoner class prospective relief on the protest letter and writ-writing claims. On December 1, 1995, the magistrate judge issued an amended memorandum opinion clarifying aspects of his prior opinion but ordering essentially the same system-wide relief. 2 Johnson v. Texas

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Dept. of Criminal Justice, 910 F.Supp. 1208 (W.D.Tex.1995) (Johnson II). On April 30, 1996, the magistrate judge issued another memorandum opinion and order awarding the plaintiffs attorneys' fees in the amount of $959,361.77, expenses and costs in the amount of $35,261.86, and post-judgment interest. Defendants timely appeal judgment on the merits and the award of attorneys' fees. 3


I. The Texas Parole System---an Overview

The legislative parameters of the Texas parole system are established in large measure by Texas Code of Criminal Procedure article 42.18. Under this statute, the Board of Pardons and Paroles (Board) is the exclusive authority for determining whether qualified prisoners receive parole. 4 Tex.Code Crim. Pro. art. 42.18 §§ 1, 2(1), 8(a) and (g); Creel v. Keene, 928 F.2d 707 (5th Cir.1991), cert. denied, 501 U.S. 1210, 111 S.Ct. 2809, 115 L.Ed.2d 982 (1991). See also Tex. Const. art. IV, § 11. Although the statute does not fetter the Board's discretion to deny parole, it does limit the situations in which parole is authorized to those where the prisoner has secured outside placement and is "able and willing to fulfill the obligations of a law-abiding citizen." Tex.Code Crim. Pro. art. 42.18 § 8(f)(5). Furthermore, a parole panel is empowered to grant parole "only for the best interest of society, not as an award of clemency," and must determine prior to paroling a prisoner that his release "will not increase the likelihood of harm to the public." Id. at § 8(f)(5) and (a).

The statute also states that the Board "shall develop and implement parole guidelines" based on "the seriousness of the offense and the likelihood of favorable parole outcome." Id. at § 8(f)(5). "If a member of the board deviates from the parole guidelines in casting a vote on a parole decision, the member shall produce a brief written statement," to be placed in the prisoner's file, "describing the circumstances regarding the departure from the guidelines." Id. The Texas scheme does not, however, require that a parole panel state its reasons for denying parole, nor does it create any constitutionally protected interest in a tentative release date prior to the termination of the sentence imposed. Gilbertson v. Texas Bd. of Pardons & Paroles, 993 F.2d 74 (5th Cir.1993).

The Board generally executes its statutory mandate in three-member panels. The particularities of the parole review process are recited in the magistrate judge's opinion:

"Most inmates are reviewed for parole consideration by a panel of three [members of the Board]. The first panel member often (but not always) interviews the inmate at the institution and writes a summary of the interview for inclusion in the inmate's parole file. The first panel member then 'votes the case' by indicating on the docket sheet in the file whether he or she favors release on parole. The second panel member then receives the file and votes the case without an interview. If the first two panel members disagree, the file then goes to the third member for the dispositive vote. If the first two panel members agree, the case does not go to the third member.

If the panel votes against release on parole the inmate receives a form notice from the Board listing reasons for the unfavorable decision. If the panel votes in favor of release, the inmate is notified of that fact and is told that the decision is tentative and may be rescinded, depending upon the Board's further investigation.

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The inmate receives a notice known as an 'F.I.' (further investigation).

At a point in time roughly contemporaneous with the panel's consideration of an inmate's case, the Board sends out notification to the persons entitled to receive notice under the statute." Johnson II, 910 F.Supp. at 1216.

Texas Code of Criminal Procedure article 42.18 § 8(f)(2) mandates that the parole division of the TDCJ-ID notify the victim, his or her legal guardian, or a close relative (if the victim is deceased) when the prisoner incarcerated for the victimizing offense is being considered for parole. This provision specifically allows the person notified to submit to the panel a written statement. In addition, the person notified is entitled to appear before the panel, either in person or through a representative, and voice his or her views about the offense, the prisoner, and the crime's effect on the victim. 5 Subsection 8(f)(2) also declares, however, that "[t]his subsection may not be construed to limit the number of persons who may provide written statements for or against the release of the prisoner on parole." Finally, subsection 8(f)(2) requires that in making individual parole determinations a parole panel "consider" the "victim impact statement," a document which is developed during the prisoner's prosecution and details the effects of the crime on the victim. See Tex.Code Crim. Proc. art. 56.03.


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