by Mike Powers


The TDCJ provides an avenue by which the state prisoner can investigate the law regarding the crime that got him sent to prison. It is the law library.

There were law libraries before Ruiz v. Estelle, the landmark case that brought in many reforms to the TDCJ, but the court consistently ruled, post-Ruiz, that the access to courts, provided by these libraries didn’t meet constitutional muster. In other words, they weren’t providing the prisoner enough tangible information to wage an effective defense in their criminal cases or a persuasive and relevant offense in their civil complaints.

Under the federal monitors, these libraries, came a long way, and a great deal of money was spent buying the law
books necessary to wage a comprehensive battle in the courts. Any fresh-out-of-law-school attorney can tell you just what a huge expense a good law library is, especially if that law library is composed of “old fashioned” hard-back books, as seen in many of your favorite TV programs. Since the feds withdrew from the TDCJ, however, things have started turning backwards for access to courts as they have in so many other areas where Ruiz made so much progress.

When I first got locked up in the TDCJ in 2005, the law libraries were still in fairly good shape, with fairly recent case law, and a good variety of helpful materials beyond 
the court reporters- those books that actually contain the substance of cases heard in court, and their outcomes and legal reasoning. There were “digests” which are like giant indexes that give short, important highlights from relevant cases based on subject. These are useful for not only finding good cases to help bolster your own arguments, but also for steering you to similar cases in the court of your most relevant jurisdiction. In other words, if you need a case
 in the Fifth Circuit, which is quite conservative, that is similar to a case that the Ninth Circuit, quite liberal, has heard, the digest will give it to you.

There were, also good, annotated copies of the different Texas codes, and many of them, including The Code of Criminal Procedure, Civil Practice and Remedies, Business and Commerce, Property, and others.

As new case law books became available, the law libraries would acquire them, and they’d be ready for use, along with little paperback inserts that would give important updates
in between times.

Sadly, during the 12 years I’ve been down in prison, the holdings list has shrunken dramatically. For various reasons, but expense the chiefest, TDCJ no longer updates
 the digest at all. This means that the most important and useful tool for finding good, relevant case law is no longer updated. We still have the old ones on the shelf, but as 
these age, they become less and less useful. Without a lengthy lesson on key words and the numbering system these digest use, it is impossible to communicate how dramatic this loss is. Imagine that the whole internet still existed, just as it is today, but all the search engines were suddenly taken down. Yes, all the content is still there, but you have no useful way to find what you need. That is exactly what the TDCJ has done by taking away the digest.

Moreover, they’ve recently removed the Business and Commerce Code and the Property Code. They did this in response to the proliferation of inmates who have started filing “sovereignity” and “straw man” pleadings with the courts. This would be a whole other essay, but suffice it to say that vulnerable and desperate writ-writers listen to the siren song of being able to get out of prison if they just declare themselves independent of any allegiance to the federal government, file as “secured-party creditors”, and then pursue false-imprisonment claims based on the “fact” that the U.S. and its states have no authority to imprison persons of non-nationality. This is a great over-simplification, but think of the Republic of Texas and some off its offshoots, and you get the idea.

This, indeed, slowed down these filings. However, it 
also severely damaged the inmates ability to pursue legitimate business in the courts using these laws. For instance, I represented (as a writ-writer) an inmate who had worked 
for a man in Austin who would hire illegal aliens to work 
in his print shop. As part of their pay package, he would offer to set them up in one of several mobile homes that he owned in a nearby trailer park. He would tell them that a certain percentage of their pay was going towards the purchase of the home, while withholding a part of their salary. After five years working for this man, my “client” had paid, over $13,000 towards the home, which was valued at $20,000. That’s over half. When my client was incarcerated, he tried 
to make arrangements for his family to continue living in the home and make payments towards the mortgage. But, the landlord gave them notice to vacate without offering any opportuny to continue paying the mortgage or stay in the home. At the time, I had access to property and business law, and I was able to mount an effective case on his behalf. 
Now, however, if this same inmate came to me with a similar problem, I could do nothing to help him. It would be near-impossible to ferret out the property codes soley from case law in the reporters.

The case law itself is now much harder to access as well. This is because, in trying to save budget money, the TDCJ
 has stopped buying up-to-date reporters, and instead requires that new cases be requested by the inmate using the citation numbers. This is a truly and tremendously stupid way to save money. Here’s why. First, in order to “find” this case, 
I have to “Shephardize” it. This means I have to put in
 a request for the library administrators to look up this
 case on their computers and print out a list of cases that contain the reference. (Unlike free-world searches, however, TDCJ searches are limited to case-reference only. I can’t look up a case by key-word or topic.) Once I have this list, 
I must have the files searched by the inmate-clerk to see if the case is already in the files.

If it isn’t, then I must submit another request to have the case printed out for me. So, this is how things have changed. Ten years ago, I go to the digest, look up my topic, find some good law, go to the shelf and get my case law book, and read it to see if it is useful. Four out of five times it isn’t, and I put the book back on the shelf and start over. NOW, though, I go to case law books on the shelf that are increasingly out-dated. I read case after case, searching blindly for anything that might be relevant, since there is no digest. If I happen to stumble on something noteworthy, I write down the case citation, and I submit a shephard request. This is taken by the administrator and searched on a computer. The results, even if they are none, are printed out and available the next day. I take those results and look at which ones are available “on the shelf”, and which aren’t. Any that aren’t, I have to fill out another piece of paper, and these cases are printed out. Many of them are quite lengthy, as you can imagine. Just like with the book, though, four out of five of them are useless to me, so the vast majority of this effort is wasted. On top of this, I’m only allowed a TOTAL of three shephard and/or cases each day. This means that it could take me weeks or even months to complete a search that could have been completed in one day under the old system.

Moreoever, it isn’t saving any money at all. Once you factor in the cost of printer ink and paper and the time it takes paid TDCJ staff to conduct the searches and printing, there are no savings whatsoever. Remember, the vast majority of the cases prove to be useless, anyway, so all that mound of paper just becomes useless, space-consuming trash. This is the classic example of the TDCJ at work. Not only do they cripple the inmate’s ability to do any effective legal work, but they do it in the name of the budget while throwing your money, literally, away in the trash. It’s very sad.

Is there any hope or solution to this problem that really COULD save Texas some moolah and maybe at the same time make it EASIER for inmates (and library administrators) to do their research? YES, THERE IS! The TDCJ has a whole program at one 
of its units that is designed to take in outdated and under-performing computers and refurbish them. The age of these machines would be irrelevant, since it doesn’t take any processing power to do simple web searches. Also, access to the web is easily constricted to the few, legal search sites of the TDCJ’s choosing. Instead of wasting a ton of ink, paper, and time, and instead of purchasing a ton of very expensive legal research books like digests and reporters, the whole
 kit and kaboodle would be right there, instantly available at your fingertips.

This solution isn’t only good for the TDCJ and the inmate, either. I can imagine that the courts would be highly appreciative of better briefs that contain relevant, concise references to the legal matters presented by the inmate in their filings. Since this is a win, win, win situation, with all the necessary tools readily at hand, why not implement this change. I mean, the TDCJ already has access to the necessary websites to perform the searching. They already have the computers and the department to put those computers in the law library. They lack nothing to make this adjustment. Really, the only obstacle is institutional reluctance to change, and, perhaps, the idea that better access to information and case law might allow the Texas prisoner to file effective briefs in his criminal and civil pursuits.

But, given the recent glut of Texas inmates who’ve been found innocent after serving five, ten, or twenty years of their sentences, would it be such a terrible thing to have a better-informed inmate population when it comes to legal knowledge? The founders consistently voiced this opinion when writing that beautiful foundation of our American system of government: It is better that a guilty man go free than that an innocent man be wrongly punished. I’m sad to say it seems our opinion on this has changed. We all too willingly accept the idea of the innocent man wrongly incarcerated as long as the bad guys get put in there, too. Simple logic will tell you this is not possible, however. The bad guy CAN’T be in jail if someone is already, falsely, imprisoned for that crime.

Perhaps you are wondering why we, as writ-writers, have not pursued this issue in the courts on our own, and tried to get better access to courts, just like Ruiz did, by sueing the TDCJ. That is a great question, and I’ve done the research on the case law that established our right to access to courts and the legal standard necessary to prove that our constitutional right to that access is being denied. Unfortunately, it is a very high standard. For example, in order to get relief, I have to prove to the court that I was denied access to courts by showing that I could not obtain a case that, if provided in my brief, would have changed the outcome of the case. This hurdle goes beyond high, actually. It is nigh on impossible. Think about the obstacles I’ve already explained to our research here on the unit, and now imagine trying to find the needle in the haystack that proves, beyond a reasonable doubt, that if I’d cited it 
in my brief, would have changed everything of the court’s opinion. You couldn’t find the case in the first place, but to win an access to courts suit, you not only have to find the case, but then convince a highly conservative and skeptical court that they would have ruled differently if only you’d had said case. It’s absurd, really. And that
 is the real reason that change won’t come unless the Texas legislature gets involved. It seems nowadays, that the only way to get the TDCJ to do anything is to win a lawsuit against them, and this is one lawsuit that just can’t be won. In the meantime, I guess we’re stuck with a law library that would make Abraham Lincoln proud.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez