The law requires prisoners to exhaust the prison grievance system before filing any litigation. "A court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system.... If a claim is filed before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system procedure."
The law allows the court to order prisoner litigants to pay court fees, court costs, and other costs. These include "expenses of service of process; postage; and transportation, housing, or medical care incurred in connection with the appearance of the inmate in the court for any proceeding." The court may direct the prisoner litigant to "pay an amount equal to or the lesser of: 20 percent of the preceding six month's deposits to the inmate's trust account; or the total amount of court fees and costs.... In each month following the month in which payment is made... the inmate shall pay an amount equal to or the lesser of: 10 percent of that month's deposits to the trust account; or the total amount of court fees that remain unpaid."
The law requires the TDCJ (Texas Department of Criminal Justice), upon receipt of a "final order" from a court which dismisses a suit as "frivolous or malicious" to forfeit: "60 days of an inmate's accrued good conduct time..." if it is the first "frivolous" suit to have been dismissed, 120 days for the second suit, and 180 days for each subsequent dismissal.
One of the most bizarre sections of this law proclaims that "the state may deduct from any monetary obligation [read "award of §1983 monetary damages"] owed to an incarcerated person: the cost of incarceration..." and any "court fees, court costs, or other costs" which remain unpaid. In other words, if a prisoner sues the TDCJ for having his dental and/or skeletal architecture rearranged by the boots and batons of TDCJ guards, and is awarded damages by the court, the TDCJ can suddenly determine that the prisoner should be singled out to be have "cost of corrections" assessed against him. [Courts have already ruled such a provision unconstitutional, Hankins v. Finnel , 964 F.2d 853 (8th Cir. 1992)].
Almost identical legislation was passed last year in Iowa, Arizona, Indiana, and is under consideration (or has been passed) in a number of other states. How is it that so many widely scattered states can all come up with almost identical legislation simultaneously? And why is it that all of this anti-litigation legislation sounds like it sprang from an assistant attorney general's wet dream? Enter the National Association of Attorney's General (NAAG).
As reported in Corrections Managers' Report (Vol. l No. l, June/July 1995), "NAAG, working with a group of assistant attorneys general from around the country who do corrections work, has developed a model federal and state legislation to address the problem of frivolous inmate litigation.... it provides disincentives to bringing frivolous suits, and... provides for: a potential loss of earned release credits if the prisoner is found to have submitted a malicious claim or false testimony; a restoration of partial state immunity from claims for relief of non-serious injury; a provision allowing the state to assess and collect a fee from each prisoner for the annual cost of incarceration and providing for an offset against any judgment the prisoner might obtain." Sound familiar?
What the NAAG has produced is what I refer to "cookie cutter legislation." That is, they have a conference and draw up their legislative wish list. They then employ professionals to convert the wish list into fully complete, "pre-packaged" legislation, and distribute the prepared legislation to the US congress and all fifty state legislatures. The NAAG insures that each legislative body will not only get a copy of the cookie-cutter legislation, but that the proposed legislation will be presented by (and lobbied for by) a local NAAG representative.
If you have not seen this particular cookie being baked in your state legislature, look for it soon. A federal version was included in the U.S. House of Representative's version of the crime bill, however most of the provisions were removed in conference committee and not included in the final bill. They are being repackaged, however, as part of the GOP's "Contract On America."
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