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Texas Attorney General Clarifies Confiscation Law Governing Prisoner Art Sales
The Attorney General's January 25, 2005, opinion was in response to a judicial inquiry by state Representative Robert Talton (R-Pasadena). Talton had questioned whether death row prisoner James Vernon Allridge III violated state law by selling his artwork over the internet. Allridge sold his art on a Web site for prices ranging from $10 for a box of greeting cards to $465 for a large print.
Allridge was sentenced to death in 1985 for fatally shooting a convenience store clerk during a robbery. Before his execution on August 26, 2004, Allridge's art--depictions of monarch butterflies, anemones, koalas, tiger lilies, and the like--had won several awards and gained considerable attention, especially in Hollywood. A number of celebrities, such as Elizabeth Taylor and Robert Redford, supported Allridge through letters.
Some, including Susan Sarandon and Sting, bought his artwork. Sarandon even visited Allridge on death row.
Allridge is not the only Texas prisoner to sell his artwork. Until the early 1990's, the Texas Department of Criminal Justice (TDCJ) sponsored an annual art show in Huntsville. Prisoners submitted pieces for display and judging, and sold them for whatever they could get.
Most of the people attended those shows because they were interested in the art, not the prisoners or their crimes, said Alice Fisher, who coordinated the shows. Many of them expressed a great interest in collecting prison art because it represented some deep expression of incarcerated individuals," she said. It was just a wonderful opportunity for those artists to exhibit their many talents and strengths.
Many, however, are apparently irked by the success of prisoners. And when money is involved, so much the worse. This sentiment was likely the impetus for a recent change in Texas law, and the basis for Talton's inquiry.
In 2001, the Texas legislature passed two new laws: Criminal Procedure Annotated articles 59.01(7)(B) and 59.06(k)(2). 59.01(7)(A) already provided for the confiscation of money earned by prisoners from book deals, movies, magazine articles, etc., in which the crime was reenacted. 59.01(7)(B) expanded the current law to include the sale of property in which the value is increased by notoriety gained from the seller's crime. 59.06(k)(2) provides for the distribution of confiscated proceeds to crime victims who obtain a monetary judgment or to a general crime victim's compensation fund.
In his opinion, the attorney general noted that 59.01(7)(B) does not proscribe the sale of prisoner artwork, but merely provides a civil post-sale remedy to confiscate proceeds earned in violation of the code. The attorney general further stated that only proceeds earned in excess of the property's fair market value are subject to forfeiture. Thus, because market value is a question of fact, and [f]act questions cannot be resolved in an attorney general opinion," Abbott could not conclude whether Allridge's artwork was subject to forfeiture under 59.01(7)(B).
Before his execution, Allridge asserted that his artwork was never intended to gain him notoriety. Rather, he saw it simply as a way to express himself and to contribute to society. My art allows me to give back something purposeful, productive, constructive and meaningful," he said in a message posted on his Web site. By giving back a small part of me with each piece of art I create, I am giving back to society.
Whether the sale of artwork violates prison policy was not addressed in the opinion. TDCJ maintains a broad, general rule prohibiting the operation of a business, which it has used to punish prison writers and others who earn compensation for their expressive activity which is protected by the First Amendment.
Additional source: Austin American-Statesman
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