by

Yolanda M. Torres

Prisoners are often unhappy with their prison unit assignments. Their reasons range from the units being located in remote areas far away from their families and friends, to abusive guards, to poor medical treatment, to feeling and believing their safety and/or lives are in danger from other prisoners or prison guards. Sometimes prisoners want to transfer to a certain unit because it offers a particular educational or vocational programs not available at the prisoner’s assigned unit.

As a matter of policy, the Texas Department of Criminal Justice (TDCJ) does not allow prisoners or their families to select the units of assignment. Nor does the TDCJ make unit assignments based on proximity to family and friends.

According to the TDCJ, each prisoner’s unit of assignment is determined on the basis of the prisoner’s total record, the prisoner’s medical and mental health needs, safety, security, age, type of offense, prior criminal record, and educational, vocational and work related needs. Each unit has a different profile that reflects age, security custodies and restrictions, medical and special programs, agriculture and industry programs. The prisoner’s needs are matched with the unit profiles for capability. The TDCJ’s prison units are spread across the state, from Amarillo to Beeville to El Paso to New Boston. The majority of the TDCJ’s units are in rural areas. Very few of the units are in metropolitan areas, and those that are in metropolitan areas are generally state jails, such as the Dawson State Jail in downtown Dallas.

Prisoners do not have a protected interest in their prison unit assignments. See Meachum v. Fano, 427 U.S. 215 (1976). In Meachum, the Supreme Court held that:

Meachum, 427 U.S. at 224-225. See also Jackson v. Cain, 864 F.2d 1235, 1250 (5th Cir. 1989) in which the Fifth Circuit held “that life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules” and Biliski v. Harborth, 55 F.3d 160 (5th Cir. 1998) (holding that Texas prisoner-plaintiff failed to demonstrate that state law created a liberty interest requiring his transfer from county jail to the TDCJ). This means that a court cannot order a prison to transfer a prisoner to a different unit. See Davis v. Carlson, 837 F.2d 1318 (5th Cir. 1988) (holding that a court cannot order the transfer of a prisoner where there is no clear duty on the part of the prison to transfer said prisoner). Unit assignment is within the discretion of the TDCJ. Therefore, if you want to help a prisoner secure a unit transfer for any reason, you must utilize the TDCJ’s administrative procedure.

When prisoners want to transfer units because of safety issues, they can utilize the “Life Endangerment” process to request a unit transfer. Prisoners can initiate a “Life Endangerment investigation” (also called an “LID” or “Safety Request” or “Protection Request”) by either sending a written I-60 to or speaking to any ranking TDCJ official (sergeant, lieutenant, captain, major, assistant warden, warden), or the unit gang intelligence officer (GI) and requesting protection and a unit transfer. Although the TDCJ claims that its non-ranking employees (“guards” a/k/a “COs”) are trained to receive and process life endangerment and protection requests, this has not proven to be the case. In the past, the guards have either disregarded the safety requests, or simply mocked the prisoner for requesting protection. Such responses occur less frequently when the prisoner presents his protection request to a higher ranking TDCJ official.

While certain situations are so urgent that it is not possible to submit an I-60 or other written request, a written request is recommended because if the prisoner is ultimately injured by the danger complained of, the written request will help the prisoner establish that the TDCJ had actual notice of the danger he faced and that TDCJ failed to protect him.

If the prisoner claims that his life is in danger from other prisoners (i.e., a gang hit; potential sexual assault), the prisoner (the potential victim) will be “locked up” (secured in a single cell) in “PHD” (also called 11 Building”). “PHD” is “prehearing detention.” PHD is a housing and custody status reserved for prisoners who are waiting to go to “court” (internal disciplinary hearing) for a prison rule infraction. However, PHD is also used to for prisoners awaiting action on a safety request.

After the prisoner is locked up in PHD, the Unit Classification Committee (UCC) will “investigate” the matter and make a recommendation to grant or deny the unit transfer request. The investigation is cursory and the TDCJ operates under the premise that the requesting prisoner is trying to manipulate the process to get a unit transfer for some untoward reason. The TDCJ begins its “investigation” by pressuring the complaining prisoner to “voluntarily” sign a “waiver” of the Life Endangerment/safety request. If the TDCJ can get the prisoner to execute a waiver, it does not have to proceed with the investigation and can simply return the prisoner to his original housing assignment. The executed waiver is placed in the prisoner’s unit classification file and can and will be used to insulate the TDCJ from liability if the prisoner is assaulted when released from PHD and returned to his housing assignment.

Upon completion of its investigation, the Unit Classification Committee will vote on whether to grant the transfer request. If the UCC votes to grant the transfer request, then the request goes to the State Classification Committee (SCC) in Huntsville and the SCC will vote on whether to concur with the UCC. The SCC has the final say on a unit transfer request. However, if the UCC recommends a unit transfer and the SCC votes against a unit transfer, the Unit Warden has the authority to appeal the decision, and the prisoner has the discretion to appeal the decision through the TDCJ’s utterly perfunctory grievance procedure and file a Step 1 grievance (also called a Step 1 appeal). When the Step 1 grievance/appeal is denied (not if, but when), he must file a Step 2 grievance (also called a Step 2 appeal). For a detailed description of the TDCJ’s grievance procedure, see Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998).

The TDCJ routinely denies Step 1 and Step 2 grievances regardless of the merits of a prisoner’s complaint. Regardless of what the TDCJ may state publicly, its unwavering position in administrative matters is that (1) its employees never lie; and (2) prisoners always lie. The TDCJ gives absolutely no weight to a prisoner’s word. Because most allegations come down to a prisoner’s word versus a guard’s word, the prisoner will always lose.

Nonetheless, there are two reasons it is important for prisoners to use the grievance procedure. First, for issues that can be taken to court, the Prison Litigation Reform Act and Chapter 14 of the Texas Civil Practice & Remedies Code (Inmate Litigation) require the exhaustion of administrative remedies. Second, and equally important, when prisoners file grievances, the complaints are recorded and copies of the grievances are placed in their classification files for future reference. This paper trail can help the prisoner in future individual or class litigation.

Transfers After Disciplinary Infractions

Sometimes, when a prisoner has been charged with a serious prison disciplinary infraction such as assaulting an officer, or assaulting another prisoner, the TDCJ will transfer the prisoner to another unit. In these cases the transfer is to avoid future altercations between the prisoner and the guard, or the prisoner and the rival prisoner’s associates.

Although the reality is that many prison guards are verbally and physically and sexually threatening and abusive, the TDCJ will never concede that a prisoner is in danger from TDCJ staff. Therefore, when this very common situation presents itself, it must be handled with extreme tact. You cannot put the TDCJ into a position where transferring the prisoner would be a concession that the prisoner is in danger from prison guards. The approach to these types of cases varies depending on the facts of each situation and the prisoner’s institutional and disciplinary history, and his custody status. For example, TDCJ considers administrative segregation its most secure level of confinement; therefore, it rarely grants an ad seg prisoner’s LID transfer request because to do so would be a concession that ad seg prisoners have access to each other, have the ability to get out of their cells unescorted, and that administrative segregation is not as “secure” as the TDCJ wants the public to believe. See Cantu v. Jones, 293 F.3d 839 (5th Cir. 2002), in which the Fifth Circuit upheld a jury verdict in a favor of an ad seg prisoner who alleged that two prison guards intentionally allowed another ad seg prisoner out of his cell to assault him with a razor blade.

There is an administrative process for prisoners who want to change units because their close family members are too ill and/or elderly to travel a great distance to visit the prisoner. Like all transfer requests, the TDCJ has the discretion to grant the request, but it does not have to. And no court will order the TDCJ to transfer a prisoner on grounds of proximity to family members. If you want to make a request for a unit transfer so that a prisoner can be near a family member who is elderly, ill, or who cannot travel a great distance to visit the prisoner, the request should be sent to Mr. Doug Dretke, the TDCJ Director of the Correctional Institutions Division, P.O. Box 99, Huntsville, Texas 77342-0099. Send the request via certified mail, return receipt requested and include a letter from a physician describing the condition of the family member and why and how travel will aggravate the condition. If there is more than one doctor involved, get a letter from each doctor. Have the doctor be as specific as possible when he states that extended travel is either impossible or extremely difficult because of the individual’s medical condition. In the request, explain the reason for the request and identify all of the circumstances and problems involved. Remember that emotional arguments are lost on the TDCJ. The argument should be factual and supported by tangible evidence from a medical professional. Request that the TDCJ notify you of its decision via U.S. Mail. Neither the freeworld person nor the prisoner will be allowed to select the unit where the prisoner is transferred (if he is transferred), so do not recommend or suggest individual units for transfer.

The Director of the Correctional Institutions Division will review the letter and forward it to the Director’s Review Committee (“DRC”) which will make a decision on the request. The DRC will consider a number of factors in making its decision, including the prisoner’s custody status, the prisoner’s disciplinary history, availability of housing, seriousness of the medical condition, and the age of family member. If the prisoner is in administrative segregation, the transfer will likely be denied.

At some point in the process, the prisoner will be interviewed to confirm that he wants a unit transfer. The whole process, including the transfer, can take two to three months.

If the transfer is not approved, the prisoner should file a Step 1 and Step 2 grievance and the prisoner’s family and/or other freeworld support can contact their state representatives or state senators and request their help in obtaining a transfer. In the past, the TDCJ has honored the requests of state representatives who requested that a particular prisoner be transferred. However, the TDCJ is not obligated to honor the requests, so there is no guarantee it will do so in the future. The “public official” card should only be used after the exhaustion of all available remedies.

Final Note on Unit Transfer Requests

When seeking a unit transfer, the important things to remember are: (1) the TDCJ has sole discretion on unit transfer requests; (2) a court cannot compel the TDCJ to assign a prisoner to a particular unit; (3) the TDCJ will never concede that a prisoner is in danger from TDCJ staff; and (4) TDCJ rarely grants an ad seg prisoner’s unit transfer request.