Inmate Deaths In Texas Prisons

According to figures released by TDCJ, and recently shared by  Grits For Breakfast, roughly 400 to 450 people die while in TDCJ custody each year. See Grits’ Blog Post That means, on average, there is more than one inmate death every single day in TDCJ. My blog post is intended to answer the questions that naturally arise from such information. Who are these people who die in custody? What is the cause of their deaths? Are these deaths preventable? How many committed suicide? How many were executed? What happens after they die? And, perhaps the biggest question of all, assuming many of these folks did not die in their 20’s, 30’s, 40’s, or even 50’s… did these people all really have to get old AND die in prison (or prison nursing home/hospice)?

TDCJ Cemetary Pic
Grave Markers at the Joe Byrd Cemetery in Huntsville

Is 400 to 450 people a lot?

Before assuming the worst about connecting death with TDCJ in the same sentence, it is important to remember that the inmate population in Texas state prisons is approximately 150,000. With that many people locked up, some deaths are inevitable. Therefore, at least some of the 400-450 would be expected to die, irrespective of where they happened to be living when their death occurred. In order to demonstrate this important point, let’s consider free world deaths vs. prison deaths.

According to the Centers for Disease Control and Prevention, the overall death rate in the United States for the year 2013 was 821.5 people per 100,000. See CDC website Therefore, since we have approximately 150,000 prisoners in TDCJ, a typical community in the United States with the same number of people as TDCJ’s inmate population would actually be expected to have a death rate of over 1,200 people, which is almost 3 times the death rate inside TDCJ. However, before we simply conclude that the TDCJ death rate is really low, it’s important to remember that a pretty high percentage of the prisoner population is in good physical health, and a very high percentage of prisoners are under the age of 40. The age of the people in a given population group is an extremely important variable when looking at death rates,and prisoners tend to be pretty young compared to the overall population.


With all the energy and attention typically directed at the death penalty, it is important to remember that Texas “only” executes between 12 and 15 people per year, on average. See Wikipedia Therefore, executions account for around 3% of deaths in custody at TDCJ. We never seem to hear much about the other 97% (400+ people) who pass away while in custody in Texas prisons, and that is a shame.  What interests me, as a Texas parole attorney, is how many  of these 400+ people could have, or should have, been paroled long before they died.


Prison can be a very difficult place, and for some inmates, it can completely overwhelm them. According to A September Grits For Breakfast Blog Post, 31 inmates committed suicide in 2014, and hundreds of others attempted suicide in the same year. 2015 figures are likely to be similar, based on what I’ve seen thus far. Suicides account for approximately 7% of Texas prison deaths, but that percentage could be much larger if more of those who attempted suicide had succeeded in their attempts. This suicide/attempted suicide problem is likely not easy to overcome in a penal environment, but awareness and education among prison staff, as well as proper medical intervention, would seem to be the best way to limit such tragedies.

It’s hard for me to say what led to all of these suicides, as every person’s situation is unique, and there is almost no coverage of these suicides in the media. However, inmate suicide seems to occur at a rate that is approximately twice the rate for Americans in general. See Wikipedia Chart  Frankly, I’m surprised the suicide rate isn’t much higher than it is. An inmate recently told me that there had been 2 suicides at his unit during the past year, and both involved inmates housed in administrative segregation. The isolation and lack of human interaction in ad seg can be debilitating, and it may push some people to lose all hope.


People often say that prison is a dangerous place. The conventional thinking used to be that inmates killing other inmates is a serious problem in Texas prisons. However, the recent data says otherwise, with the exception of 2012, a year in which 12 inmates were victims of homicide. In 2013, there were only 4 such cases, and in 2014 there was only 1 homicide. As of August 2015, there were just 2 such cases so far this calendar year. For some of the reasons noted above, I generally deplore the idea of using administrative segregation as a long term incarceration option. However, Texas prisons are undoubtedly safer overall because many of the most aggressive and dangerous inmates, including all confirmed members of prison gangs, are housed in the ad seg pods, where these people are much more limited in their ability to harm or kill other inmates.

Accidental Death

There’s good news in this area for Texas prisons. Inmates are not dying in accidents in very large numbers, and that is a pretty good indicator that TDCJ is doing most of what it can to make prisons as safe as possible. In 2013 and 2014, there were only 3 such deaths in each year. However, the 2015 number will be higher. As of August, 2015, there were 8 accidental deaths in 2015 thus far, and all of those are attributable to the deadly January bus crash near Odessa. Such accidents are prety rare, especially when you consider how many prison buses are in operation each day, all over the state of Texas.

TDCJ Bus Crash
Investigators On Scene Following TDCJ Bus Crash in January, 2015 Photo: Mark Sterkel, The Odessa American

“Natural” Death

By far, the highest percentage of deaths in TDCJ are labeled as “natural”. In 2013, there were 419 such cases, and there were 377 in 2014. Since death labeled “natural” accounts for about 90% of all deaths in prison, it’s important to understand how the word “natural” is being used. According to the TDCJ Emergency Action Center, the group that puts together these stats, “natural death” is defined as all deaths not classified as homicides, suicides, or accidental death.

I initially assumes the vast majority of deaths labeled “natural” occurred in a healthcare setting. It’s difficult to know for sure, but it’s really important to try to better understand all of this.

I’m told the TDCJ facility in Galveston is their largest hospital facility, and the second largest is the Carol Young facility in Dickinson, I checked the AG’s Custodial Death Report  and found that the two facilities combined for 119 deaths in 2013, 104 deaths in 2014, and 138 deaths so far in 2015. All of these deaths involved people incarcerated in TDCJ at the time of their deaths. Therefore, 119 out of the 419 “natural” deaths in 2013 occurred at one of these two hospitals, and accounted for 104 out of 377 in 2014.

UTMB-Hospital Galveston, TDCJ’s 172 bed hospital

Putting It All Together

Executions carried out by the state, homicides, and deaths recorded as accidental all combine to account for only about 5 or 6 percent of the total number of deaths in TDCJ. Suicides account for another 7 percent, and the remaining 85 to 88 percent of the deaths are labeled as natural deaths by the TDCJ Emergency Action Center. However, of the nearly 400 such natural deaths that occurred in TDCJ, only about 100 to 130 per year appear to be happening in a hospital setting. The logical question, of course, is what’s happened in the other deaths, which far outnumber the ones in a hospital setting.

As a parole attorney, I am asked to maximize a  client’s odds to qualify for parole. In some cases, my efforts are based, at least in part, on their medical condition. If the medical situation is severe enough and well documented enough, the inmate might qualify for Medically Intensive Recommended Supervision .

The statistics above seem to indicate that a great many people are either not getting the benefit of the doubt when it comes to parole, based on the severity of their medical situation, or these conditions are not being documented well enough for the Texas Board of Pardons and Paroles to notice it and respond accordingly. The Board may well have released some of those who died in TDCJ, if only they had known that the prisoner was not likely to  be alive much longer. It’s a question of humanity and of human dignity. The data seems to suggest we have more work to do if we are to realize the goal of allowing a prisoner to spend their final years in someplace other than a prison or a prison hospital.

Board Member David Gutierrez Appointed To Head Parole Board

At the end of August, many were surprised, including me, when Parole Board Chair Rissie Owens abruptly announced her retirement after serving on the Board since the late 1990’s. The Governor appointed Board Member David Gutierrez right after Owens officially announced her departure.

Texas Parole Board Chairman David Gutierrez
David Gutierrez, Chair of the Texas Board of Pardons and Paroles

As recently as June, 2015, I was told Ms. Owens planned to serve as the Board’s Chair for at least a few more years. She had been in that position for the past 12 years. Of course, Governor Abbott has the absolute right to appoint whomever he pleases, and in this case, he chose to promote an experienced and well regarded Board Member to take over for Owens. I commend the Governor in his selection of David Gutierrez to take over as Board Chair. He is an excellent choice!

David Gutierrez has been a Board Member since 2009, and prior to serving on the Board, he was the Sheriff in Lubbock County for more than a decade. He has a friendly, professional, and easy going demeanor. In my dealings with Mr. Gutierrez during his tenure as the Board Member in Gatesville, I found that he possesses a genuine willingness to listen carefully and consider all relevant information in any given situation prior to making a decision.  In short, he is exactly the kind of man who can hopefully usher in an era of greater transparency and cooperation between the Board Members themselves, and those outside the Board who have dealings with the Board.

The full Board of pardons and Paroles had its first official meeting last Friday with Mr. Gutierrez as the Chair. Although that meeting was in Huntsville, it remains to be seen where future Board meetings may take place. Speculation is that the Board may meet in Austin in the future, as Austin is much closer to where Gutierrez resides. Another theory is that the Board may hold its quarterly meetings at alternating locations. Regardless of where the meetings occur, it will be interesting to see how the new Board evolves under the leadership of David Gutierrez.

Although I had some real concerns about how Ms. Owens handled a few important matters in recent years, there is no doubt that she worked very hard, and there is also no doubt that she left the Board in a much better place than where she found it when she took over as Chair. In other words, she did a lot of good for the Board and the people of the state of Texas, for a very long time, and it is completely unfair to label her negatively or see her overall legacy in anything other than a positive light.

When Will Texas Prisoners Receive Computers and Internet Access?

The title of this blog post is not meant to be a joke. I am being completely serious. Inmates should be given the right to access computers and the internet, right? It’s a really important question. Although many people foolishly believe inmates have cable television, air conditioned cells, great cuisine, and outstanding athletic facilities, the reality, at least for most Texas prison residents, is about just trying to survive each day. However, I ask the important question about computers for reasons that have very wide reaching implications. Please allow me to explain, in a bit of a rambling sort of way…

When my brother and I were 8 and 7 years old respectively, our parents bought a set of World Book Encyclopedias. The set spanned at least 4 feet across, and was neatly tucked into a bookcase in our family room next to a dictionary and thesaurus. Generally, whenever we wanted to understand something, anything, our parents said, “Go look it up”. I never knew for sure if that response meant they had no idea or if they simply wanted me to take the initiative and go figure it out on my own. Now that I am a parent myself, I think the truth is generally a combination of the two.

world book image

Back in the 70’s and 80’s, practically anything you’d ever want to learn could be found in those books located just to the right of our fireplace. More than a few of my school papers began with me reading the World Book Encyclopedia. I remember asking my parents why they had spent about a thousand bucks (a good chunk of money back in 1976) on those books. My mother consistently told me that people who took the time to learn what was in those books were the ones who had more opportunities in life. At age 7 or 8, that didn’t exactly get me very excited. However, my curiosity often led me to pluck a book and discover the answers to innumerable questions over the next 10 years. Often, my forays into those books had nothing to do with school, but was, instead, an effort to try to understand more and more about the world around me.

Today, encyclopedias are practically non-existent, aside from the occasional estate sale, where a complete set can be purchased for maybe $30 to $50. Today’s new, and vastly improved version of encyclopedias can be summed up in one word. Google.

We use Google today as a noun and a verb. Want to know how old President Obama is? Google it. Need to know how far you’ll have to drive to get from Dallas to Gatesville? Google it. Need to know the best way to make a meatloaf and then cook it? Google it. Google is a virtual world class university available to all of us, every day, 24-7-365. Wikipedia is a virtual encyclopedia within the larger internet community that, all by itself makes my childhood encyclopedias look pathetic by comparison.

With all the incredible online tools and resources for acquiring knowledge and information, we must ask why our prison population in Texas is never able to access any of it as long as they are incarcerated. That is a tragedy. It must be addressed, and the sooner the better! Most inmates in TDCJ spend at least a few years in prison, and many inmates spend a decade or more. We have over 150,000 minds and bodies serving prison time in TDCJ at any given time. This exceeds the combined student population of The University of Texas in Austin, Texas A&M University in College Station, the University of Houston, and Texas Tech University in Lubbock. Think about that for a minute before you read on.

texas inmate using a computer

Before anyone accuses me of wanting inmates to be able to sit and watch porn all day or chat online with 12 year old girls, I want to be very clear about something;

If we as a society expect people to go to prison in order to be “rehabilitated”, we must start by acknowledging that the more education one receives, both formal and informal, the more likely that person will be able to live in a productive, law abiding manner, respectful of laws, of others, and better equipped to deal with the challenges life inevitably brings.

I’ve read about the billionaires in Silicon Valley and elsewhere, and although I am no tech wizard, I am positive modern technology includes the tools to inexpensively allow nearly all prisoners the vast benefits available online, while still giving the prison system the ability to keep prisoners from streaming live sex feeds into their cells, or any other such nonsense.

TDCJ’s Mission Statement is to “provide public safety, promote positive change in offender behavior, reintegrate offenders into society and assist victims of crime.”

In my opinion, if we are ever going to realize the goals of TDCJ’s Mission Statement involving the promotion of positive change in offender behavior and reintegration of offenders into society, we must start by acknowledging the role computers and the internet now play in our lives, and in our personal and professional development.

Thoughts on Michael Morton’s Book

The Michael Morton case is one of the biggest stories in Texas criminal justice news during the past 10 years. The story is a lot more than just a tale about an innocent man who spent more than 25 years in prison for a crime he did not commit. It’s also a fascinating look into the darker side of criminal prosecution. Who better than Michael Morton himself to tell the story? His memoir is about a young man who suffered a grave injustice at the hands of lazy and arrogant police and a prosecutor from hell over in legendarily unfair Williamson County. But Morton’s book is also the personal story of how Morton coped with living all those years in a TDCJ prison and still coming out as a kinder, gentler, and more enlightened version of a man who was, by all accounts, a pretty good guy to begin with.

I bought Mr. Morton’s book about a week ago, “Getting Life”. I have to admit, I was skeptical that Morton would be capable of writing a book that would be written well enough to excuse him for not hiring a ghost writer or biographer. Well, I finished his book the other night, and I must say, I was completely blown away by how well he articulated his thoughts. He is a very good writer, and even if he had a little editorial assistance, there is no doubt that his book is his story, in his own words.

Michael Morton Book Cover Getting Life

I highly encourage anyone who has any interest in Texas criminal justice issues to buy Morton’s book!  Here’s the link to purchase it on

Reviews of the book have been very positive. In fact, of the 165 reviews on, 92% of the reviews gave the book 5 Stars, and the other 8% gave the book 4 Stars. Not one review below 4 Stars, not a single one. Wow!

Aside from the 165 reviews on, consider the following high profile reviews of Morton’s book:

“Morton poignantly recounts half a lifetime spent behind bars and underscores the glaring errors of our justice system.” (

“A stunning memoir…A great deal has been written about the shortcomings of the American criminal justice system, but perhaps nothing more searing than Morton’s book, ‘Getting Life.’ It is a devastating and infuriating book, more astonishing than any legal thriller by John Grisham…Morton is able to deliver this aching and poignant look at the criminal justice system only because he didn’t get a death sentence. ” (Nicholas Kristof The New York Times)

“Imagine spending twenty-five years in prison for a murder you did not commit. Imagine the murder victim was your wife, the love of your life. And imagine it all happened because prosecutors and law enforcement officials cooked up a case against you and hid evidence that would have identified the real killer. Michael Morton doesn’t have to imagine, because he lived it. It’s usually a cliché to say someone has been to hell and back, but in Morton’s case that is exactly what happened, and his stunning and lyrical account of the journey will break your heart, then make you mad, and finally fill you with hope.” (David R. Dow, Founder of Texas Innocence Network and author of The Autobiography of an Execution and Things I’ve Learned from Dying: A Book About)

“A true Texas story of how our system of justice can itself be criminal. Michael Morton’s powerful tale will take you with him into mourning, into prison, and finally, thankfully, back out into the light.” (Dan Rather)

“[An] eloquent, page-turning memoir.” (Publishers Weekly)

“Even for readers who may feel practically jaded about stories of injustice in Texas – even those who followed this case closely in the press – could do themselves a favor by picking Michael Morton’s new memoir…It is extremely well-written, insightful, infuriating, and, in places, quite funny.” (The Austin Chronicle)

“A lively and intimate account of his rise from pariah to celebrated survivor after DNA evidence and determined lawyers proved his innocence after 25 years in prison…What makes Morton’s story so intriguing is the ease with which most people can put themselves in his place — the victim of a crime treated like a criminal — and wonder if they could cope, let alone survive.” (Austin American-Statesman)

“A jarring testament that truth really can be stranger than fiction…the writing is snappy and clean, with more wit than one might expect.” (San Antonio Express-News)

I don’t want to give away all of the rich insights and perspectives Morton shares with his readers, but I was really interested in finding out precisely how the police and prosecutors ended up getting Morton locked up with a life sentence for murdering his wife, when in fact, he loved her dearly and would never have even dreamed of doing such a thing. That story is the one that people need to experience. Although Morton’s case is remarkable, it is worth wondering how many innocent people are sitting in prison who were armed with far less brainpower,  and far less qualified legal representation.


Parole Guidelines In Texas


The Texas Board of Pardons and Paroles exercises complete discretion to make whatever parole decisions it deems appropriate. However, from 1985 to the present, the Board has been legally required to employ some sort of method or system to ensure that the overall result of the Board’s voting process corresponds to some rational methodology. The Parole Guideline scoring system is the system used in Texas. It is widely used, but poorly understood by people outside of the parole community.

One broad legal mandate in the parole process is to more readily grant parole to the prisoners who represent the lowest risk to society. Conversely, the Board is also legally required to make parole less likely in the case of those prisoners who are said to represent the greatest risk to public safety. The purpose of this blog post is to provide the reader with a better understanding of the current Texas Parole Guidelines and discuss the relative importance of the guidelines in the voting process.

What Is A Parole Guideline Score?

The voters at the Parole Board look at a number called “The Parole Guideline Score” during every person’s parole review. The Parole Guideline Score is a number from 1 to 7, and every TDCJ offender has been assigned a specific guideline score. The guideline score of a given inmate does not easily change, but over time it can change a little bit.

Under the Texas Parole Guidelines, a score of 1 is the lowest, and such a score is supposed to represent a very poor prospect for being successful on parole. Such a person supposedly represents a significant statistical risk to public safety. A score of 7 supposedly represents the person who is most likely to succeed on parole and stay free of any future criminal behavior.

Parole Guideline Score

The Guideline as a Guide

The Board cautions that the Parole Guideline Score is exactly as its name implies, a guideline. The individuals at the Texas Board of Pardons and Paroles who are entrusted to vote cases are free to vote however they want, and the guideline score may play a minor role, a major role, or, in unusual situations, it may play almost no role at all in the voting decision of any particular case.  For some unknown reason, however, the Board will not reveal any given TDCJ Offender’s parole guideline score to people outside of the Board. Offenders and their attorneys aren’t even informed as to what the Board has calculated their score to be. This has always seemed odd and troubling to me.  Fortunately, with some work and a solid understanding of the components of the score, one can still determine an offender’s guideline score, even without the Board’s cooperation. It would be nice, however, to know the score that is being used at the Board in a given case, just in case a mistake has occurred and an offender or his attorney can identify when he has been given an incorrect guideline score. 

The Components of a Guideline Score

The Parole Guideline Score for TDCJ offenders is calculated using a formula that supposedly includes all of the major factors needed to adequately assess risk.

There are two components to the formula:

1. The offense severity rating, and

2. The risk assessment instrument

The Offense Severity Rating

The offense severity rating (OSR) is the more simple of the two components. Each and every one of the 2500+ felonies classified under Texas law has been assigned a single OSR. The OSR can only be one of four possible values for male offenders, and only one of three possible values for female offenders.  For males, the worst possible OSR is “Highest”, followed by “High”, followed by “Medium”, with the last OSR labeled as “Low”. In all cases of persons incarcerated for more than one instant offense, the OSR used in their calculation is the one corresponding to the most severe offense of the instant offenses.

The Risk Assessment Instrument

The OSR is combined on a two dimensional chart with a number called the Risk Assessment Instrument (RAI).

The RAI is derived by combining specific data from the correct answers for two specific sets of questions. These two groups are known as static factors and dynamic factors. We take the static factors and the dynamic factors and follow a simple formula in order to derive the RAI.

Static factors include:

  1. Age at first admission to a juvenile or adult correctional facility,
  2. A history of one or more supervisory release revocations for felony offenses
  3. Prior incarcerations
  4. Employment history
  5. The commitment offense(most severe if more than one)

The static factors are the ones that, unfortunately, you cannot do anything to change. These are, for the most part, where your past catches up with you.

Dynamic Factors Include:

  1. The current age of the offender
  2. Whether the offender is a confirmed member of a security threat group
  3. Education, vocational, and recognized OJT programs completed during present incarceration period
  4. Prison Disciplinary Conduct
  5. Current Prison Custody Level

As the name implies, dynamic factors are those variables which can change, for better or worse. The dynamic factors component of the RAI is the reason the overall parole guideline score can change slightly over time.

Putting It All Together

Once you have the Offense Severity Rating (OSR) and the Risk Assessment Instrument (RAI) in place, it’s a simple matter of looking at a chart that has an axis for each of the two variables in order to determine one’s overall Parole Guideline Score.

There are some who believe the Parole Guideline Score is really the only thing that matters to the Board. I disagree. I think it’s more correct to state that the guideline score is an important consideration, but it’s really more of a tool that experts claim voters can use to help them make wise decisions. If, however, one has a poor guideline score, it is very important to be realistic about making parole quickly or easily. Moreover, since at least a portion of the data used to get a score can be changed for the better, inmates with poor parole guideline scores would be wise to understand how they can take steps to improve the score, even if such improvement may take years to put in place.

How To Make Parole In Texas

Inmates and families often ask me how to make parole in Texas. Obviously, the sooner the better. In other words, what’s the magic formula for making parole?


Unfortunately, parole law and the process used by the Texas Board of Pardons and Paroles cannot easily be translated into an easy sound bite. However, I believe the question is still important, and worthy of careful analysis. Frankly, it should be something  considered by every single inmate who is sincerely trying to better understand how the path to parole might look.

Rather than attempt a magic formula, I believe the question is still worth a blog post wherein I try to discuss it, without regard to any specific inmate’s situation. Although this is a general set of observations and opinions from a parole lawyer in Texas who still learns something new every single day, I do feel comfortable discussing all of this with some degree of confidence, mainly because my opinions are based on my  observations and daily experiences over the past 7+ years.

The Offense(s)

The first place most people will look in almost any parole review is the “instant offense” or “instant offenses” as the case may be. In other words, what crimes is he imprisoned for? By the way, I use “he” or “him” simply because 93% of TDCJ inmates are men. I certainly do not mind using “she” or “her”, but using the male pronouns seems more logical.

Sometimes, the person is sent to prison for a new crime or a series of crimes, and the person was already on parole for one or more past crimes. This means, in most cases, that the prior crimes will also be subject to some level of scrutiny by the Parole Board Member or Commissioner looking at the file. It can get complicated when there are several crimes under consideration simultaneously.

Prior Offense(s)

Aside from the above situation of coming back to prison and having to finish a prior sentence, a much higher percentage of inmates may be serving time for one or more crimes, and there are still other crimes that have occurred in the past. These past crimes, whether misdemeanor or felony, are part of an inmate’s file at the Board. Even charges that were dropped and never resulted in a conviction are contained in the Board’s file. If it’s in there, and they look, it still could have a real effect on the decision making process.

Important Facts Relating To The Offense(s)

You would think that the paragraph labeled “Offense(s)” would necessarily include this topic. However, it really is true that the titles of the various crimes often seem to carry much more weight than the actual facts surrounding the crime.  I say this for two very simple reasons. First, the time and effort required to try to properly understand the facts of any specific crime would require a voter to spend more time on each case than is generally possible, especially given the time constraints faced by voters at the Board. Second, the Parole Guidelines are based on a formula that is supposedly based on academic research, and the formula does not have a way of making the guideline score change by virtue of specific facts. In other words, when they plug in their number for the offense severity rating of a specific crime, the number is the same for every person with that same offense title, notwithstanding the infinite variety of possible circumstances surrounding any particular criminal offense.


Younger people, on average,  commit more crimes than older people, and younger parolees come back to prison more often than older parolees. Finally, younger inmates get into more trouble while in prison. Given all of these facts, age matters. There are a bunch of reasons that can be found in scientific and sociology texts, but suffice it to say that younger people present more risk for the parole officials. However, even though age can hurt a person’s chances in some circumstances, it can help in others. If the crime occurred at a relatively young age, and that inmate is now 10 or 15 years older, a lot of maturity and wisdom might exist that was absent in younger years. Also, and this is just my own theory, but I think people over 35 or 40 usually appreciate that life truly is short and loathe the idea of spending any of their precious life in prison. Whereas, some young folks take the idea of prison as a mere inconvenience or hassle that must be dealt with. Thus, whatever limited time we are fortunate to enjoy on this Earth, the older people realize that the clock is ticking.

Drugs & Alcohol

I have often said that if you took drugs and alcohol out of the picture, as much as 70% of the people in prison would not be in prison. I have no science to back me up, but I’m sure it’s been studied and researched. These substances are, however, a double edged sword. On the one hand, the drugs or alcohol do offer a plausible explanation (or at least a partial explanation) for why something stupid and senseless occurred. However, it is widely known that drug and alcohol abuse and addiction is a huge factor in recidivism. Recidivism usually means parole revocation.

Therefore, while drugs and/or alcohol use or abuse issues might sometimes help to improve one’s chances for parole because such behavior explains why an otherwise good person would make poor choices that landed him in hot water, the same issue may well make the parolee far more likely to end up back in prison later. The facts of the drug or alcohol problem are relevant, and need to be discussed and addressed in most cases.

Conduct While In Prison

I have always believed this factor deserves more consideration, but it does receive some attention, particularly in an otherwise close case. In other words, the Board can look to the “institutional adjustment” and see whether the guy was good at following the many rules in prison and if he managed to stay out of trouble. It is also worth looking at whether the inmate took it upon himself to learn a trade, obtained any formal education, or somehow expanded his mind through his own initiative and hard work.

Life Before Prison

Although the aforementioned criminal record is high on the list of things looked into by the Board, many people have done some really commendable and special things in life before coming to prison. It would be a mistake to assume that such things would be immaterial to the parole voters. Nearly every person has done some good in life, and the Board will look at those things, if properly brought to their attention.

The Plan for After Prison

Everyone says they are never coming back to prison, and yet somewhere in the neighborhood of 20% are back in prison within five years of leaving. Therefore, a quality individual plan using sound logic and containing specific details can enhance the opportunity to go home on parole. However, it would be a mistake to assume that this factor will supplant any of the prior factors in the eyes of the voters.

In summary, there is no magic answer to the question of how a person can make parole. The law, the crime title, the crime facts, life before prison, life in prison, and the plan for after prison, and many other possible issues can each be important to the voters at the Texas Board of Pardons and Paroles. In the cases I handle, the search for the answers to all of these questions begins with an interview process that eventually culminates in a presentation to Board officials who, it is hoped, will become much more informed about who my client really is, what he really did and did not do wrong, and anything else that I believe might bear on their decision.

3g Offenses in Texas-The Hidden Problems


As a Texas parole attorney, I have come across a lot of people who are incarcerated for having committed one or more crimes defined as 3g offenses in Texas. It is quite common for inmates and their families to be poorly informed about 3g, especially prior to coming to prison. That is unfortunate. Even where there is a basic understanding of 3g, people usually fail to appreciate the full extent a conviction for a 3g offense in Texas can have on the parole consideration process at the Texas Board of Pardons and Paroles. The purpose of this blog post is to point out some very unpleasant, and in many cases, blatantly unfair consequences of being convicted of a 3g offense in Texas. In my next blog post, which will hopefully be in place soon, I’d like to offer sensible ways to address the concerns behind the perceived need for 3g, without allowing titles of criminal offenses to take precedence over the true facts and information associated with each particular case.

The term “3g” is a slang reference to § 42.12 (3)(g) of the Texas Code of Criminal Procedure. It was a change to our state’s criminal law that was put into place by “tough on crime” politicians who wanted to gain favor with constituents by changing the law so that people who are convicted of the more “serious” crimes would not be eligible for any parole opportunity until they had served at least 50% of their prison sentences.

The argument for supporting the change to the law in the first place likely included the assertion that the “bad” criminals were sometimes getting inappropriately light sentences and, even worse, that these bad actors were too often getting out of prison way too soon regardless of the length of their sentences. I suspect the motivation for creating 3g offenses in Texas was a political one that played on people’s (voters’) fears in order to make sure that the people who got locked up for the bad stuff stayed locked up.

The list of crimes that are labeled 3g offenses in Texas includes the following:

  • Capital Murder
  • Murder
  • Indecency With a Child By Contact
  • Aggravated Kidnapping
  • Aggravated Sexual Assault
  • Aggravated Robbery
  • Sexual Assault
  • Injury to a Child
  • Injury to an Elderly Person
  • Injury to a Disabled Individual
  • Sexual Performance by a Child
  • Criminal Solicitation
  • Any Crime Where a Deadly Weapon Was Used Before, During, or After the Offense

 On the surface, it probably seems to most people like a wonderful idea to treat the crimes in the list above in the manner that 3g requires. However, despite the seductiveness of having a nice blanket rule for what would appear to be punishments only used against the worst of the worst, it’s actually a terrible idea, for a whole bunch of reasons.

Problem Number One

The first criticism I have of the 3g concept is that it blatantly presumes parole authorities are idiots. After all, there would be no mandate requiring a prisoner to serve at least 50% of a sentence if there was faith in the ability of parole decision makers to look at the facts and circumstances of each case, consider what really happened, and take into consideration anything else that might make serving more or less time appropriate. The 3g rule simply applies a “one size fits all” approach that only considers the specific title given to what happened, and literally nothing else.

Perhaps the best way to illustrate the absurdity of the 3g blanket approach is to put it into context in the real world.

The Law of Parties

Let’s consider the law of parties first. Suppose a murder occurs, and the victim is shot one time in the chest and dies. Assume the police are eventually able to determine that 3 men were probably at the scene of the murder. The police know one, and only one of them could have pulled the trigger because only one shot was fired. The gun was never recovered. Let’s further assume that they arrest one of the men and he says nothing. The second man gives a story that is partially true, but he makes the other men look more culpable. The third man is finally caught several months later, and he tells the police a completely different story than the man who had already “cooperated”.

All 3 men get sentenced to murder through guilty plea agreements, and sentences of 20, 30, and 35 years are handed down. A few years later, proof develops that the man who got 20 years was probably the shooter, and proof also comes out that neither of the other 2 men had any history of violence and neither believed any violence would occur that night.

Because of the 3g provision, all three men will serve one half of their sentences for sure, and for other reasons, they will each likely be denied parole several times.

The “Use of” a “Deadly”  “Weapon”

The next criticism of the 3g offense effect on parole in Texas involves the catch all provision; use of a deadly weapon. Aside from all the creative ways prosecutors have twisted the words “deadly weapon” over the years, the criminal statutes and cases from the Court Of Criminal Appeals have practically allowed the word “use” to mean possession, “deadly” to become “harmless”, and “weapon” practically means “physical object that could, if used in some way, become a means to inflict any kind of harm, not necessarily deadly harm”.

You never really appreciate how the law twists language to suit political purposes above all else until you’ve been paying close attention to what’s really happening in the legal system. Such twisting and distortion is not limited to criminal cases. For many years, the Texas Supreme Court re-write the common law of Texas to drastically limit the rights of individuals to hold corporate wrongdoers and insurance companies responsible for the wrongs they inflict. The Texas Court of Criminal Appeals has had its own version of gutting individual rights, but at TCCA, it’s those accused of crime who feel the effects. But, I digress. Let’s look at another example of 3g in action.

Let’s say a guy with a drug problem is not very big, and is not at all violent. He’s never been charged or convicted of any sort of violence. Let’s further assume he lives in a rough area of a major city, where he has been robbed and beaten up on at least a couple of past occasions. People have robbed him of his money while he was trying to buy drugs, and he’s been robbed of his drugs just after buying them. So, he decides to carry a gun under the seat of his car, just in case his life is ever on the line again. It’s an old gun, he’s never fired it, and it has no bullets in it. But, he figures he can at least use it in an emergency to buy himself time to get away if someone is trying to rob him or steal his drugs. Whenever he goes to buy the drugs to feed his addiction, he’s always nervous and scared.  He has cash in his pocket, and the seller of the drugs (and maybe others) will always know when and where the guy is going to be when he is going to be making his drug purchase.

 If the seller tries to rob the buyer in a drug transaction like the one contemplated above, the buyer may end up pointing his gun in order to keep from getting robbed, or to make sure that the money just stolen from him is returned or exchanged for the drugs, as previously expected. The seller can call the police and say the buyer robbed him at gunpoint, and if the buyer is arrested after the fact, the resulting conviction would  almost certainly be for a 3g offense. (The above scenario played itself out on at least two clients I have previously represented.)

Even if the gun was a toy gun, the result would likely still be the same.

But, you say, why would anyone ever plead guilty in that scenario if he was the victim, and not the perpetrator? Well, here are a few possibilities…

1. He has a bunch of prior convictions for drug crimes and therefore fears he may not be believed. The jurors tend to think a felony conviction in the past implies the person accused is incapable of providing honest and reliable information.

2. The prosecutor tells him he’ll offer 10 years, but if he goes to trial, he’ll ask the jury to give him 50 years. This kind of bullying is a routine part of our criminal justice system in Texas. As long as all first degree felonies (a very broad group, by the way) carry the potential punishment range of 5 to 99 years, such prosecutor plea bargaining abuse will continue unabated.

3. His lawyer is not the kind of person who cares, and worse still, he seems poorly qualified to argue anything well, let alone win as a trial lawyer. This is, unfortunately, more common than most people believe.

4. He’s afraid the seller will have him killed if he somehow convinces the authorities that the seller is a violent drug dealer, if they even care.

The 3g law makes no distinction between toy guns and real guns, loaded guns and unloaded guns, guns fired and guns that were never even pointed at anyone and remained under the seat of a car, butter knives and swords, cars used to try to run over a police officer, and cars used to try to drive away from a possible arrest.  I remember a case where a guy I represented was fighting with his girlfriend while she was trying to get her car started, and after both people had started hitting each other, he swung a pair of jumper cables at her and the metal end stuck her and bruised her. They charged him with a 3g offense. Now, I suppose one could literally kill another person with a pair of jumper cables by repeatedly and savagely swinging those cables, but if you really wanted to use the jumper cables to kill in the most effective manner, it would seem that strangulation would be far quicker and easier. Ah, but if we made the word “weapon” and “deadly” and “use” mean what we all commonly understand them to mean, they would not get to scare people into taking plea agreements. Accordingly,  3g pretty much allows the prosecutor to use their creativity and turn the English language upside down.

At its most basic, the push for having 3g in the first place can be interpreted as a lack of public confidence in the judges, courts, and prosecutors. However, perhaps the biggest lack of confidence in enacting this blanket law surely must relate to the parole board.  The politics of making people serve longer in prison is immensely popular with voters. But, as can be easily demonstrated, the 3g offenses in Texas create absurd possibilities in terms of punishment. So, while we call it a justice system, we are stuck with countless unjust results in the application of the 3g rule. How can we expect people to have faith and confidence in a system where stuff like that can occur? I’m just sayin…


Thoughts on “Accepting Responsibility”

Prisoner rehabilitation and self improvement are critically important goals. In fact, I would go one very big step past most people and say that rehabilitation and self improvement are the primary purpose of incarceration.

Many would argue that incarceration is punishment, and nothing more. Yet, I think punishment is pretty much pointless (not to mention terribly expensive) if there is no personal growth and long term self improvement on the part of the prisoner. Think about it. If you punish a child for not obeying, what you’re really looking for is a change in the child’s behavior, not some kind of momentary twisted pleasure knowing you are scaring the child or causing the child to cry.

I guess one of the reasons I am so committed to the ideal of positive change and real rehabilitation is simply pragmatism. After all, the vast majority of prisoners will be released on parole or mandatory supervision at some point. When the system sends a person home, society as a whole, not to mention the prisoner himself, and his loved ones are all far better off if he is a much better version of himself on the way out than he was on the way in.

The idea of accepting responsibility for mistakes is the critically important first step towards meaningful change. But it really is just the first step. Meaningful change will never occur when a person refuses to examine past choices and behaviors objectively.

The inquiry into past mistakes is an important part of my interview with prisoners prior to becoming their parole attorney and representing them before the Texas Board of Pardons and Paroles.  I listen carefully to how the prisoner describes the crime or series of crimes, as well as how they talk about the reason(s) the criminal behavior occurred in the first place. Even the inmate’s description of their life circumstances that existed around the time they got into trouble can reveal the degree to which they have reflected on their mistakes and accepted responsibility.


It is a fascinating process to observe the varying degree of self deception that can sometimes take place inside people’s minds. For example, I once interviewed an inmate who had stormed into a convenient store at 1 in the morning with another guy, then pointed a gun at the head of a female store clerk, threatening to kill her. Fortunately, the gun didn’t even have any bullets in it, but the poor store clerk did not know that.

He kept downplaying the situation.  He told me more than once that he wasn’t really going to hurt the girl, he reminded me several times that the gun was not loaded, and finally, he qualified everything by telling me that he was high at the time of the incident and barely remembered what took place.

In the above interview, after getting the man to readily agree with me that what he had done was wrong, I asked the man to tell me all the reasons he felt he was behaving in such an inappropriate manner.  His reply demonstrated his utter failure to reflect upon everything carefully. He said, “Man, I was high, and it was really all my friend’s idea, so it’s not like I would go doing something like that under normal circumstances”.

One thing I have always thought was unfair about the parole guidelines is that they have no way to measure the degree to which a prisoner has looked carefully at past mistakes, how much sincere remorse he feels, and how much effort he has already expended in his quest to become a better man. To me, that counts far more than “offense severity class” or “age at first incarceration” or any of the other supposedly important variables that go into the magic parole guidelines formula.

TDCJ & The Texas Parole Board Take Gangs Seriously

Making Parole In Prison Gang
Texas Aryan Brotherhood Tattoo

Several different people “in the know” have told me that Texas prisons were much more dangerous in the 1980’s and most of the 1990’s than they are these days. Of course, that’s not to say today’s Texas state prisons are the model of safe and humane incarceration. However, the Texas prison of 1990 is quite a stark contrast to the prison of 2015. Back then, the prisoners ran the prisons, and prison gangs were often at the heart of the struggle for power and control within the ranks of the prison population at nearly all of the TDC (Now TDCJ) units.  

Best Parole Attorney In Texas
Texas Syndicate Tattoo

A very high percentage of young inmates in the 1980’s and early 1990’s joined gangs. Many joined more out of necessity than anything else.  Being in a gang meant protection first and foremost, but it also came with a sense of acceptance and belonging. The prison gang often replaced the “family” some inmates never had, and in other cases, the gang replaced the family that had become completely estranged from the inmate. Inmates who joined any of the major gangs pledged a lifetime loyalty that was seen as inviolate.  In other words, one simply does not leave the gang…ever.

In the late 80’s and early 1990’s, mostly in response to the blistering critiques of Federal Judges and experts on prisons, (see for example Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980 )  TDC began cleaning up the mess, and the state slowly began taking back some control.  The proactive practice of housing gang members in administrative segregation (Ad Seg) proved to be a very effective long term deterrent.  The practice of separating and isolating gang members continues through today, and it is widely believed that this single change has dramatically curtailed offender on offender violence throughout TDCJ. Less violence translates to less need to feel as if one needs protection, thus less motivation to join a gang. Moreover, the prospect of spending the remainder of one’s time in Ad Seg also makes gang recruiting efforts far more difficult.     

In my years of going to prisons and interviewing prisoners, I have met and represented both current and former gang members before the Texas Board of Pardons and Paroles. Aside from a general observation that Ad Seg is a terribly inhumane and psychologically damaging way to force anyone to spend long periods of time incarcerated, one thing is unequivocally clear to me; being an active member of a prison gang at the time of a parole review has an enormously detrimental effect on one’s chances of making parole.  Stated another way; being a confirmed gang member makes parole far less likely.

Fortunately, there is a path available for inmates who are members of recognized gangs, also known as Security Threat Groups.  It’s called GRAD, which is an acronym that stands for Gang Renouncement And Disassociation. The only way “out” for those assigned to administrative segregation solely because of their gang association is to voluntarily renounce their membership with TDCJ officials and then begin the GRAD program. GRAD is more appropriately called a life changing process, rather than a “program”.  It takes nearly a year to complete the formal program, and the wait to begin in a GRAD class is approximately two years.  So, it’s a three year or more journey to finally become a “former” gang member. Any suspected gang activity by the offender during those three years results in immediate removal from GRAD. However, for gang members who are sincere in their desire to begin a new life and break free of the gang lifestyle, this program is out there waiting for them.  

The GRAD program, once it has formally begun, consists of three phases that last a total of nine months. After two months of in-cell tutoring, participants are moved to less restrictive housing and exposed to a classroom curriculum that includes life skills and cognitive intervention training, GED preparation and classes in anger management.

TDCJ has thousands of confirmed prison gang members out of a total population of over 150,000. Some estimate that gang affiliation exists for as much as 10% of the prison population.  There is always an ongoing effort by prison officials to identify gang members and remove them from the general offender population, in large part because up to 40,000 people are sent into TDCJ by the court system each year, and many of those people have never been in the prison system, so there is no prior intelligence on that person’s possible gang activities. Consequently, the prisons have Gang Intelligence Officers who are always keeping their ears and eyes open in order to confirm as many gang members as possible. TDCJ makes these gang identification efforts a very high priority.   

Gang members belong to rigidly structured organizations such as the Texas Syndicate, Aryan Brotherhood and the Mexican Mafia.  It seems one’s racial and ethnic background are the starting point for determining what group, if any, a person may have joined. These groups are reputed to be involved in organized criminal activities, both inside and outside of prison. GRAD is the only path out of Ad Seg besides parole or completely discharging one’s sentence.  Interestingly, TDCJ does not presently identify any African American gang as a security threat group. Thus, members of the “Crips” or the “Bloods” are not isolated from general population like members of hispanic and white gangs.  I’m not really sure why, but I would be curious to find out the answer.

Upon graduation, GRAD offenders are typically moved to a new prison and returned to the general prison population.  This is not without risk. Former gang members have told me on more than one occasion that going through GRAD makes them a target of retaliation at the hands any current gang member from their former gang that TDCJ has failed to properly identify and isolate. Therefore, all graduates of GRAD have even more incentive to make parole than inmates who have never been in a gang. 

Prison gangs remain a problem for the Texas prisons, as well as the penal institutions of other states and the federal system. However, TDCJ has made the control of gangs and gang violence a high priority for over two decades now, and these efforts have undoubtedly resulted in safer prisons.

As a parole attorney, I can unequivocally attest that sincere participation in GRAD is seen as a positive sign by Parole Board Members and Parole Commisssioners, although it is a mistake to assume that GRAD participation alone will be the determining factor for the parole decision.  It is, however, more accurate to say that active gang participation may well be the single biggest impediment to gaining a favorable parole decsion. 

One Remarkably Courageous Justice Speaks Out

Over the past 20 years, I have been repeatedly reminded that the state of Texas is more likely to execute people than just about anywhere else in the civilized world.  Our state has executed over 360 people just since 1998, the year I became a licensed attorney.  I have become so accustomed to the pro death penalty approach adopted by many, many Texans that I have pretty much stopped trying to convince anybody why my personal belief is that the death penalty is wrong.

It’s a very complicated issue, and I really don’t bother reading or talking about it much anymore.  I guess you could say I decided a long time ago to completely give up on the death penalty debate.  Gotta try to get along with people, most of the time anyway, right? And in Texas, saying you are against the death penalty is somewhere between saying you favor the right for homosexuals to marry and claiming the world is actually a lot older than the bible claims.  I also figured I would be better off spending my time and energy trying to help prisoners make parole than fight a battle to keep the state from killing any more people.  I have never wavered on my view that we should not be executing people, but I had given up the fight.  Until the other day…

The day before Thanksgiving, the Texas Court of Criminal Appeals issued an opinion in which the High Court (Texas’ highest court for criminal cases) denied the motion to stay the execution of a schizophrenic named Scott Louis Panetti.  That decision is neither surprising, nor particularly newsworthy in light of the fact that we have about 300 more people sitting on death row, and the Texas courts rarely do anything to stop an execution. It was the 6 page dissenting opinion authored by Justice Tom Price that is so newsworthy.

Justice Tom Price

Justice Tom Price is a Republican Justice from the Dallas area.  He has been on the high court for 18 years, and has been sitting in a judicial capacity for about 40 years now. I strongly encourage anyone to read the dissent by Justice Price  For me, reading his articulate and well reasoned viewpoint, provided from such a uniquely qualified perspective, was a remarkable experience.  We should all be very grateful to Justice Price for providing Texas with his insights on the death penalty!

It may not come as much of a surprise to anyone who understands Texas politics to learn that Justice Price will be leaving the bench in January, 2015.  Perhaps he was tired of having to let his conscience take a backseat to the need to keep his judicial career in tact. No matter what the reason he had for speaking out when he did, I salute this extraordinary man for speaking at all, and allowing at least part of his legacy to be attached to the cause for such a long overdue reform.  The courage he has shown provides at least a sliver of hope for every Texan with a desire to see the death penalty abolished.