The Mystery of Texas Parole

By Mike Powers

Texas has historically frowned on games of chance. Our providential position as a leading state in conservative and Christian values cannot easily abide wagering, gambling and ill-gotten gain from outcomes left to Lady Luck. That said, it baffles me why state officials who would take umbrage with a poker game maintain a system of parole for Texas prisoners that often seems akin to shoving pins in a Voodoo doll and rattling some chicken bones.

What I mean by that is simply that there is NO discernable rhyme or reason for Texas families of inmates or their incarcerated loved ones when it comes to whether or not they will be able to make parole. And in keeping with the traditions that seem to swath all the institutions of Texa s “justice” the Parole Board is clothed in secrecy. So the effort it takes to pry any information out of the Board concerning its decisions is laborious, and this, in turn, discourages any second efforts when the documents provided prove unfruitful.

What are we to do when we, as prisoners, can’t make heads or tails of WHY we fail to make parole when it’s offered to us and can’t obtain any good reasons after the decision is made? I’ll offer my own case as proof, but even as I do, I hope you realize that this problem is not individual and localized. It is systemic and affects prisoners from all over the state.

I was incarcerated when I was 35 years old. Prior to this, I had never even been arrested. My worst brush with the law up to this point was a ticket for no insurance I received while still in college. Speaking of college, I started working for wages when I was 12, and I had been gainfully employed since that time. I worked my way through college and graduated with a Bachelor of Arts in history. From the time I turned 16 to the day I was incarcerated, I paid all my taxes, kept a vehicle with license and registration, paid for my own housing, and took food stamps one time when I couldn’t pay for my food while still in school. When my finances improved the following month, I returned all the stamps that I had left along with the new ones they kept sending me along with the flyers that came every month “advertising” how I could get my bills paid, too. Speaking of bills, I was less responsible in this area, often extending my credit beyond my means, but I always kept the lights and water running, and I would catch up on past due balances.    I was never sued for any outstanding debt. In other words, while I was far from perfect, there is no question that I was a productive member of the community, and I participated IN that community. Exept for one election I boycotted, I voted every time a state-wide office or better was at stake. I believed in “law and order”, even cheering on the Cops in their epynomous network show.

At age 35, I engaged in felatio with a consensual minor. According to Texas law, and rightfully so, there is no such thing as consensual sex with a minor. And so, after 23 years of income-producing civic participation, I found myself on the wrong side of the law, and I went to jail. I plea-bargained for a fifteen-year sentence. While I felt like that amount of time was excessive for a first-time offender and the circumstances surrounding my conduct, I had noble motives at heart in accepting the deal. In fact, I had turned myself into law enforcement without a victim outcry, because I understood the enormity of my crime. The last thing I intended was for my victim to be further embarassed or subjected to humiliating public testimony. That said, you can imagine what I must have felt when a swim coach from my area who was accused of molesting multiple students over many years fought his case to the end and received a five-year prison sentence. I only bring that up, because it illustrates how so much of our criminal justice system is left to chance and blind luck. And between the court system and the TDCJ, the courts are the much healthier specimen. At least the courts are limited by the election of judges and the judgment of an independently selected jury. The TDCJ and its parole system are self-contained. Its officials are chosen by TDCJ executives. They are trained by TDCJ staff. They are supervised by TDCJ veterans. Finally, if disciplined or complained of, they are judged by their own TDCJ friends and peers. It’s a closed system ripe for putrification. Though eligible for parole since 2013, I’m still locked up.

It is not uncommon to hear those of us who have gone through the parole process a time or two and been locked up for awhile say something to the effect of, “I guess I need to make a shank or get caught with some drugs so I can go get G-4’d and make parole.” It doesn’t make any sense, I know, but I’m telling you from first-hand observation on many occasions that those who get in the worst trouble in here are the ones who seem to make their parole opportunities. On the other hand, those of us who strive to stay “in bounds”, take the classes and programs that the volunteers bring into TDCJ, and work towards parole seem to get set-off after set-off. It's not only unfair, but it’s also backward, and it’s costing the TDCJ far more than any number-crunching bureaucrat can calculate.

In the July 2018 issue of Prison Legal News, LanceLowry, the head of the Texas Correctional Employees Union, which represents TDCJ guards, said:

We really need to focus a lot more on behavior modification and giving officers more tools to manage these prison populations. When you take everything away from prisoners, you have nothing to manage them with. And they can become very dangerous when they have nothing to lose.

There is so much truth in what Lowry said, but I must disagree strongly with one assertion - that the TDCJ guards need more tools.

Imagine for a moment that a neighbor comes over and asks you if he can borrow your wrench. “Sure,” you say, and go out to the garage to get it for him. About fifteen minutes later, you hear the doorbell again.

“I need you to loan me a screwdriver,” the neighbor says.

“No problem.” You get the screwdriver and hand it to him.

Not half an hour later, he’s back, and this time he wants to know if he can borrow your drill. You hand it over. He comes back again for some duct tape, a tape measure, and staple gun. Intrigued, you finally ask him, “My goodness! What exactly are you trying to fix?”

“Come on over and see,” he offers. You go over to see what he’s trying to do, and there is a nail sitting on a tray next to a perfectly good hammer. “I’m trying to put this nail in this board, but none of these tools seem to get the job done,” he laments. Of course, besides being very concerned how he’s been using your expensive drill for the last couple of hours, you would probably be doubled up with laughter. The tool the man needed was right there the whole time. You pick up the hammer and show him how to drive the nail.

Mr. Lowry, with all due respect, I’m about to show you how to use the hammer that’s right in front of your eyes, and I sincerely hope that the Texas Correctional Employees Union will understand what I’m about to say and make common cause with the prisoner population on this issue just like you all did when the Pack prisoners and officers jointly sued to get air conditioning on that unit.

The hammer that the TDCJ has in its possession is the parole system, and the nail is the behavior modification that you spoke of. If Texas prisoners had more than a chimera, if they had a tangible release date, and they knew that the TDCJ would honor it when they reached the date of eligibility, that would prove the most effective behavior modification system devised since Adam and Eve were thrown out of the garden.

The situation is like that of a dysfunctional home where the parents cajole, threaten, and carry on, but never follow through with the discipline needed to straighten the kids out. No, that’s not exactly right, come to think of it, it’s worse. It’s more like the parents who promise everything wonderful and good if the child will only do such and such a thing, and then, when the child does it, he gets slapped around and grounded for his trouble. Of COURSE, he’s going to become a problem child. You are teaching him for all time to distrust all authority. The Texas prisoner is that abused child in that you can follow all the rules, jump through all the hoops, and the TDCJ Parole Board will give you a set-off. Slap! “You’re grounded!” And how do you think that prisoner wants to react? Do you think you’ve just made him a better man - a better human being? No, you haven’t. You’ve just pushed the man down that easy path of rebellion. By easy, I mean that path is awfully attractive and easy to get on, but it sure is hard to get off. In fact, it’s the road that led a lot of these men right through these prison gates. So why would anyone think that more broken promises and more failed authority are going to lead this man anywhere good? It would be easy to believe that the powers that be don’t want reformed errants at all. In fact, it looks like they are taking men who are predisposed to being penitent and turning them down a road of perdition.

Here’s how to use the hammer in a toolbox: First, the Texas Legislature must change one, simple word in the law that governs parole. Right now, the Parole Board “may” parole a prisoner when he gets to a place of eligibility. To make use of this hammer, the Legislature needs to change that word to “shall”. If a prisoner has done enough time, if he’s met his program requirements, and if he hasn’t lost any of his good time to disciplinary problems, then he SHALL be paroled. The day he walks into jail, he will know without a doubt that if he flies right, on a certain given day, he will walk out early.

Next, since the TDCJ has clearly demonstrated that they can’t be trusted with much of anything - not the lives of the prisoners, not the lives of their own officers, not with budgets, not with court-ordered changes - take the Parole Board out of this agency and make it independent of the prison system altogether. Those making the decision to let prisoners go shouldn’t have a stake in the game of the “prison-industrial complex”. In other words, because TDCJ guards and administrators like paychecks, arid the fatter the better, it’s not in their best interest to parole a prisoner. In fact, as noted above, it just might be they let go the knuckleheads knowing they’ll be back shortly.

One huge obstacle to this plan is the TDCJ disciplinary procedures. See, as it stands, judicial law says that a prisoner cannot challenge a disciplinary finding unless he has lost good time, which is a freedom interest. That’s one reason why even inmates with major cases seldom lose good time. But, if the parole law changed to “shall”, and the TDCJ got serious about taking good time for behavior problems, they would also have to get straight about the disciplinary system. They’d have to quit giving bogus cases and issue the kind of quality judgments with evidence that, if it came to it, would stand up in court. It wouldn’t be that hard, after all, the standard of evidence is just a “preponderance”. Any watcher of Judge Judy knows how easy that is.

Mr. Lowry, I hope that you will seriously consider the things I’ve said here and climb aboard. Take up your hammer.

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