HOUSTON (CN) — Determined to hold the Texas prison system accountable for violating a class action settlement requiring air-conditioning for some heat-sensitive inmates, a federal judge said Wednesday the agency’s director must identify who lied to class counsel to try to delay their inspection of a prison in Beaumont.
“What we have done is extraordinary. It’s a new day in Texas prisons,” U.S. District Judge Keith Ellison said on the bench in May 2018 after approving a settlement he said he “never dreamed” would get done.
The Texas Department of Criminal Justice agreed to install air-conditioning to maintain indoor temperatures at 88 degrees Fahrenheit or lower for a class of 1,300 inmates at Wallace Pack Unit, a minimum-security prison in Navasota, 70 miles northwest of Houston.
The settlement also required the TDCJ to keep class members cool if they were transferred to other prisons.
At the time, lead class counsel Jeff Edwards of Austin heaped praise on Texas officials for their willingness to reach a deal, saying, “All Texans should be happy because it took the state of Texas to realize that the rights of inmates are no different than the rights of anybody else.”
But the agency is struggling to defend its credibility in the face of deceit uncovered in post-settlement litigation.
It’s fighting a sanctions motion Edwards filed on Sept. 5 after 37 class members were moved to LeBlanc Unit in Beaumont and an inspection by Edwards the afternoon of Aug. 8 confirmed the prisoners’ complaints that the air-conditioning there was not working, as temperatures topped 90 degrees Fahrenheit.
Ellison found the TDCJ had breached the settlement and ordered it to move the 37 inmates from the prison, chastising it for not addressing the dangerously hot conditions on its own initiative.
TDCJ Executive Director Bryan Collier took the stand on Sept. 11 and acknowledged the agency had violated the settlement. “Where we failed as an agency, we made an assumption that because prisons were air-conditioned, they’d be under 88 degrees,” Collier said.
Edwards’ inspection of the prison came only after TDCJ officials tried to delay it.
They relayed a message to Edwards through Texas Assistant Attorney General Leah O’Leary, claiming it needed to be rescheduled because agency executives were attending an American Correctional Association trade show and the warden had a family emergency.
Though Collier acknowledged at the Sept. 11 hearing that those were lies, he stopped short of saying who told them.
“I believe that that communication was happening in TDCJ at a midlevel within our office of general counsel,” he testified.
O’Leary argued in Wednesday’s hearing that the identity of the TDCJ employees who told the lies should be protected by attorney-client privilege.
Judge Ellison disagreed. He granted the motion to compel Collier to reveal the staffers’ identities.
When O’Leary said, “Please explain parameters of the ruling …” Ellison cut her off.
“I’ll put it in writing,” he said.
Ellison also indicated he’s likely to grant Edwards’ motion for discovery to find out which unnamed “Deputy Director of TDCJ maintenance” sent O’Leary an email, which she forwarded to class counsel with maintenance notes attached, misrepresenting that air-conditioning malfunctions at LeBlanc Unit in July were promptly repaired.
Collier and O’Leary told Ellison in the September hearing that the TDCJ was installing 73 temperature gauges in air-conditioned prisons and using handheld devices to measure temperature several times a day in cooled prisons lacking wall-mounted monitors.
“The fact that the problem has been corrected does not obviate need for discovery,” Ellison said. “Because we need to know why it took so long to be corrected, to whom we should address problems if they arise in the future, whether there is a need for restructure in the hierarchy of TDCJ.”
O’Leary objected: “A restructure in the hierarchy of TDCJ is not within scope of the settlement,” she said.
To which Ellison retorted: “It’s not within my authority to restructure the TDCJ. But if we have a known prevaricator in a sensitive position we need to find out.”
Edwards said to punish the TDCJ should it continue putting inmates’ “lives in danger,” Ellison should impose fines.
He told reporters after the hearing that to deter the TDCJ from breaching the settlement again he’ll propose the agency be fined $300,000 for the first violation and $3 million for subsequent violations.
Collier testified in September that of the TDCJ’s more than 100 prisons, 27 have air-conditioning units and it plans to install them in more. But it has no plans to keep track of indoor temperatures at prisons without air-conditioning.
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