Full opinion text
MEMORANDUM OPINION AND ORDER JUSTICE, District Judge. I. INTRODUCTION If any parents shall wilfullie and unreasonably deny any childe timely or convenient marriage, or shall exercise any unnatural severitie towards them, Such children shall have free libertie to Complain to Authoritie for redresse. Massachusetts Body of Liberties, 1641, No. 83: “Liberties of Children.” (Italics added.) While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults. . There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. Kent v. United States, 383 U.S. 541, 555-556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966). (Italics added.) This civil action concerns both the adjudicatory and post-adjudicatory stages of the juvenile justice system in the State of Texas. The plaintiffs are minor children who represent a class consisting of all juveniles who are presently, have been in the past, or may be in the future adjudicated delinquent and involuntarily committed to the custody of the Texas Youth Council (hereinafter called the TYC). Defendants are Dr. James A. Turman, Executive Director of the TYC, members of the TYC (appointed by the Governor of Texas with the consent of the Senate), and various employees of the TYC responsible for supervision of the juveniles committed to TYC custody. A. Description of TYC System The TYC has six training schools, three for girls and three for boys. The boys’ schools are: Giddings State Home and School for Boys (maximum capacity 480 boys); Gatesville State School for Boys (a complex of seven schools with a total maximum capacity of 1,560 boys); and the Mountain View State School for Boys (maximum capacity of 480). The girls’ schools are: Brownwood State Home and School for Girls (maximum capacity 240 girls); the Crockett State School for Girls (maximum capacity 209 girls); and the Gainesville State School for Girls (maximum capacity 390 girls). The seven subschools of Gatesville are: Valley, Hackberry, Riverside, Terrace, Hilltop, Live Oak, and Sycamore. At the time the trial of this civil action began, the population of Gatesville School was 1,149; Mountain View, 361; Brownwood, 109; Crockett, 126; and Gainesville, 220. In fiscal year 1972, sixty percent of the males admitted to TYC institutions were committed for crimes of stealing, nine per cent for crimes of violence, nineteen per cent for disobedience and immoral conduct, and sixteen per cent for other reasons. Of the females admitted to TYC institutions, fifteen per cent were committed for crimes of stealing, four per cent for crimes of violence, sixty-eight per cent for disobedience and immoral conduct, and thirteen per cent for other reasons. As of May, 1973, the ethnic composition of the TYC Central Office was eighty-four and three-tenths per cent Anglo, eight and six-tenths per cent Mexican American, and seven and one-tenth per cent Black. All but one of the Blacks and one of the Mexican Americans are parole officers. Seven of the 254 Texas counties accounted for fifty per cent of the TYC admissions in fiscal 1972. In the same year, eighty per cent of the admissions to TYC were boys, and twenty per cent were girls. The ethnic backgrounds of the youths incarcerated in the TYC are as follows: Anglo, forty-three and two-tenths per cent; Mexican American, twenty-four and three-tenths per cent; and Black, thirty-two and four-tenths per cent. The average length of stay of juveniles in various TYC institutions is as follows: Median Longest Crockett 12.3 mos. 38 mos. Gainesville 12.4 mos. 29 mos. Brownwood 12.0 mos. 21 mos. Gatesville 10.0 mos. 26 mos. Mountain View 18.8 mos. 30 mos. B. Outline of the Opinion The genesis of this civil action was hardly dramatic. More than three years ago, this court granted a preliminary injunction sought by two young attorneys who were attempting to confer privately with their clients and communicate with them by uncensored mail. The extensive litigation outlined in this memorandum opinion has been the outgrowth. The first portion of the opinion relates to challenges to the jurisdiction of this court, traces the early history of the case, and discusses the juvenile’s right to counsel and access to the courts. The second section / concerns the widespread abuse of procedural due process for juveniles in the adjudicatory stage, and includes an agreed judgment entered in an attempt to correct this abuse. The final part of the opinion concerns plaintiffs’ allegations regarding cruel and unusual punishment and the so-called right to treatment. A preliminary injunction in regard to some of the matters discussed in the final portion of this opinion was entered on August 31, 1973. II. ELEVENTH AMENDMENT The defendants’ contention that this civil action is b'arred by the eleventh amendment to the Constitution borders on the frivolous; it is discussed here only because the defendants advance it with apparent seriousness. They argue, in essence, that execution of the relief requested by the plaintiffs, the United States, and the amici will necessitate the expenditure of state funds and thus constitute, in their words, a “raid on the treasury” of the state. Initially, it is noted that there is little or no evidence in the record to support the contention that any relief ordered by this court will be more costly than the maintenance of present conditions in the Texas Youth Council institutions. Indeed, there is some evidence that implementation of some of the kinds of requested relief — in particular the placing of more children in community facilities and fewer in residential institutions — would save the state a considerable sum. Yet it is not necessary for the court to make a finding with respect to the relative costs of various plans and compute whether the state may be put to an additional expense in complying with the court’s order. The Supreme Court has spoken on the subject very recently in Edelman v. Jordan, (1974) 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662: The injunction issued in Ex parte Young was not totally without effect on the State’s revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed. 2d 534 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young. . . . Id. at 665, 94 S.Ct. at 1357. Consequently, even if compliance with the court’s order requires the expenditure of state funds that might not ordinarily be allocated for Texas Youth Council purposes, the eleventh amendment constitutes no 'obstacle. Were it otherwise, “a great number of federal district court judgments are void, and the Supreme Court has affirmed many of these void judgments.” Gaither v. Sterrett, 346 F.Supp. 1095, 1099 (N.E.Ind.), aff’d 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70 (1972). III. NECESSITY FOR A THREE-JUDGE COURT During the week before the trial of this case, the defendants made their first motion for the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 (1970). The motion was denied by an order of July 20, 1973. In the same order, certain issues were severed (i.e., challenges to compulsory religious services and involuntary work practices) from the remaining issues in the case, and no relief is granted in respect to these issues. In their post-trial submissions, however, the defendants have renewed their arguments to the effect that a single judge cannot lawfully take any action in this case. In light of their renewed contentions and recent pronouncements by the appellate courts, the court here takes the opportunity to consider the issue anew. The Three-Judge Court Act is, as the Fifth Circuit has recently noted, phrased in “deceptively simple language.” Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973): An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title. 28 U.S.C. § 2281 (1970). That two of the essential elements designated by the statute — the prayer for an injunction and presence of a state officer as party defendant — are present in this case is not in controversy. The plaintiffs, the United States, and the other amici all contend, however, that the two other requirements are absent from this case: they argue (1) that they do not challenge a state enactment of state-wide application, and (2) that they do not seek a ruling that any statute or order is unconstitutional. The only state statutes that could conceivably be involved in this litigation (excluding those statutes consideration of which was severed by the court’s order prior to trial) are the general “enabling statutes” for the Texas Youth Council. These statutes, however, are only very general grants of authority to the TYC. Moreover, the plaintiffs certainly have no quarrel with the statutes, since it is upon the language found therein that they rely in their argument that juveniles have a statutory “right to treatment.” See Tex.Rev.Civ.Stat.Ann. art. 5143d (1971). (“The purpose of this Act is to create a Texas Youth Council ... to provide a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged delinquent .”) It is obvious that plaintiffs are not attempting to challenge the constitutionality of those statutes, whether as written or as applied, since they seek in this action to compel the defendants to comply with the statutory mandate by actually providing rehabilitative care and treatment. The defendants, however, have strenuously urged the similarity of the instant case to the case of Baker v. Estelle, sub nom. Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973). In Baker, the Fifth Circuit remanded for consideration by a three-judge court a civil rights case brought by a prisoner. The plaintiff therein challenged the constitutionality of two procedures followed in Texas Department of Corrections institutions — disciplinary procedures (related to the loss of good time and commitment to solitary confinement) and censorship of attorney-inmate correspondence. The plaintiff appellee argued before the Fifth Circuit that a three-judge court was not necessary, because his constitutional challenge was directed to practices rather than to regulations. That court disagreed with him, stating that: No party has contended that Texas prison officials are acting outside the scope of their statutory authority in carrying on these allegedly unconstitutional practices. The “practices” whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections, as applied. 491 F.2d at 428. Of course, as noted above, the plaintiffs herein do contend that the defendants are in violation of their statutory authority. Yet the more central weakness in the defendants’ argument, and the distinction between the present case and Baker, lies in the ephemeral, mythical, and indeed, almost non-existent character of the central policy of the Texas Youth Council. There are no “Rules and Regulations” that apply to all of the institutions under the authority of the TYC, as there were for the Texas Department of Corrections in Baker. The court has repeatedly invited the defendants to point to some body of central regulations that govern the conduct of all of the institutions of the TYC. The following colloquy took place between the court and counsel for the defendants at oral argument of their motion for a three-judge court: BY THE COURT Q Specifically, what regulations of state-wide application are here involved ? A Now if the court is asking the additional question to point those out in the minutes [of the meetings of the Texas Youth Council] — is that what is being asked? Q Yes. A Not able really to point out — we have studied them to some degree with that in mind. I cannot point out to the court specifically the The only evidence even alluded to by the state that suggests a central policy of the Texas Youth Council is the “minutes” mentioned by the defendants’ counsel in the above exchange. These are records of the meetings of the three-member Board of the Texas Youth Council. There is apparently no stenographer who makes a verbatim transcript of the meetings, because the Executive Director of the TYC testified in his deposition that “any one of a number of people can take the minutes.” The minutes are bound in a volume which is not codified, indexed by subject, or updated —it is simply a chronological compendium of summaries of all TYC meetings since 1949 or before. Dr. Turman testified that for a superintendent of an institution to have an adequate knowledge of TYC central policy, it would be necessary that he read all of the minutes as far back as 1949, and be familiar as well with “what special directives apply and what opinions of the Attorney General apply and what orders from the legislative budget office, the Board of Control, the Legislative Audit Committee, and the State Auditor apply.” The “minutes” are not circulated to the treatment staff generally — the teachers, correctional officers, houseparents, and caseworkers — but sent only to the superintendent and business manager of each institution. The court has carefully inspected the compendium of the TYC minutes from 1957 to 1972 and has found nothing there but the most general discussion of issues. Much of the recorded discussion concerns budget planning, building and construction projects, public relations, and other matters only tenuously related to the task of rehabilitating individual children. It is thus wholly impossible to construe the minutes as “rules and regulations.” Compare Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972) with Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). In the words of the Supreme Court, these fleeting notations do not “partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider.” Board of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 655, 30 L.Ed.2d 697 (1972). Indeed, one of the bases of the plaintiffs’ challenge to the conditions in TYC institutions is the very evident absence of any central leadership, direction or planning for the Youth Council. Practically every decision related to employment, treatment, education, discipline, institutional life, and allocation of resources in an institution is left to the superintendent of that institution (who may, in turn, delegate the decision, intentionally or by default, to an even lower-echelon staff member). The defendants, in fact, stipulated that: Policies of the TYC are set forth in the minutes of council meetings, special policy directives and the Council’s publication “Administrative Organization of the Texas Youth Council,” Attorney General's Opinions; General Appropriations bills and riders thereto ; special directives received from the State Comptroller, the State Auditor, the Texas Education Agency, and the State Board of Control have the force and effect of policy directives received directly from the TYC. Specific policy directives may be communieated to staff either by memorandum or by word of mouth. Superintendents of Training Schools in the TYC system exercise wide discretion in formulating the programs, services and ground rules in their respective schools. The program may vary with respect to inspection of mail, furloughs, visiting, disciplinary policies, and in the amount and type of off-campus freedom permitted for students. Superintendents, with assistance from department heads, select for employment the personnel of their respective institutions. As an example of the quality of guidance emanating from the TYC Central Office, Dr. Turman testified in his deposition as follows: Q Returning for a moment to the Security Treatment Cottage at Mountain View, Dr. Turman, are you aware of what the policy in the Special Treatment Cottage there is in regard to family visitation? A Yes. A It depends on a number of things, and this would be determined by the superintendent at the time of the visit. Q What kinds of factors would he take into consideration? A Whatever factors he considered important at that time. Q Are you aware of any factors that he would consider to be important? A Well, there are many. Q Can you give me an example of factors that a superintendent should take into consideration in determining how long a boy should see his family when he is in STC? A Well, I’d leave that up to his judgment. Q That’s up to his discretion entirely ? A Yes. Q So that you have never, for example, sent any policy directives to the superintendent of Mountain View as to the visitation length of a child in STC? A Not that I recall. A study of the factual portion of this opinion will reveal, as one might expect after reading the above, vast differences between the various institutions run by the TYC. Some of the institutions— homes for dependent and neglected children — were not even the subject of this lawsuit. Others — for instance, the Brownwood State Home and School for Girls — have been treated by the plaintiffs, the United States, and the amici, as more adequate facilities, the very existence of which demonstrates that the deficiencies of the remaining institutions need not continue unabated. To the extent that there are written policies in the TYC institutions, such as manuals for employees or students, they are written for one institution only and are distributed to the staff and inmates of that institution alone. There are often major differences between the rules of the various institutions. See Board of Regents v. New Left Education Project, supra. Furthermore, the rules that govern institutional life in TYC institutions may vary from dormitory to dormitory or cottage to cottage within the same institution. Thus, some “dorm men” at Gatesville allow boys to smoke, others never allow smoking, and still others permit it or not as their whims dictate. Such illustrations could be listed at length. That all of these practices may be consistent with some nebulous policy certainly does not imply that a challenge to the practices is necessarily a challenge to the policy. In fact, almost any action, however arbitrary, by an employee short of physical abuse of a child is probably consistent with TYC “policy,” because that “policy” is so vague as to be non-existent. In summary, the only enactments of state-wide application that the defendants suggest are challenged herein constitute the enabling statutes of the Texas Youth Council and TYC central “policy” as embodied in the minutes of the TYC Board meetings. With respect to the statutory provisions, the plaintiffs do not challenge, but seek to invoke them, for they claim that the actions of which they complain are inconsistent with the statute. TYC “policy,” as embodied in the minutes, is close to undiscoverable and does not constitute a coherent body of regulations that are applied throughout the system; such rules and regulations as exist are local to single institutions or even subdivisions thereof. For all of these reasons, the court reaffirms its earlier ruling that a three-judge court, pursuant to 28 U.S.C. § 2281, is neither the necessary nor the appropriate forum for the consideration and determination of this case. IV. RIGHT TO COUNSEL AND ACCESS TO THE COURTS In January 1971, Steven Bercu, Esq., an attorney associated with the El Paso Legal Assistance Society in El Paso, Texas, was retained to represent Johnny W. Brown, a minor child then incarcerated in one of the institutions under the jurisdiction of the Texas Youth Council. In connection with a habeas corpus petition filed on behalf of Brown in the Juvenile Court of El Paso County, Bercu obtained a discovery order permitting him to interview a number of other TYC inmates who had been committed by order of the juvenile court. Bercu sought the discovery order, which permitted him “to interview and depose and take affidavits from” eighteen inmates of the TYC, after learning that Brown and other minor children might have been committed to the TYC by the juvenile court without a court hearing or any other requisites of due process. Roland Daniel Green, III, Esq., was an Assistant Attorney General for the State of Texas between September 1, 1967, and November 16, 1972. One of his duties was to give legal advice to the TYC and its employees and to represent that agency in court. By January 1971, Green not only was aware of two applications for the writ of habeas corpus (one on behalf of Brown) filed by Bercu in El Paso, but also knew that the newspaper and television media had initiated certain investigations into the activities of TYC. When he learned of the discovery order issued in the Brown case, Green contacted Dr. James A. Turman, Executive Director of TYC, so that, in Green’s words, “the Youth Council could be on the lookout for Mr. Bercu.” On January 27, 1971, Bercu and William Hoffman, Jr., Esq., an attorney associated with the Youth Law Center of San Francisco, California, arrived at the Gainesville State School for Girls, for the purpose of interviewing the six girls named in the discovery order. When notified of Bercu’s and Hoffman’s appearance, Green conversed by telephone with Turman, Bercu, and Thomas Riddle, the school superintendent. In the course of the conversations, Green attempted to persuade Bercu to interview the six girls in the presence of Riddle. Bercu refused this condition and insisted that he was entitled to interview the girls privately. Ultimately, Green, who claims that he knew of no attorney-client relationship between Bercu and the children, advised Turman and Riddle that it was within their discretion to require a supervisor’s presence during any interviews. Each of the six minors Bercu and Hoffman interviewed stated that she had received no hearing whatever before the Juvenile Court of El Paso County in connection with her adjudication and commitment to the TYC. The attorneys thereupon informed the girls that federal constitutional requirements, established by the United States Supreme Court, provide certain safeguards for juvenile court proceedings, and that minors incarcerated in disregard of these provisions might well be successful in seeking relief by way of habeas corpus. After receipt of this advice, the six girls requested legal representation by Bercu and Hoffman. As a result of these interviews, which continued through January 28, 1971, Bercu and Hoffman obtained written authorizations to represent the six girls. Copies of these agreements were left with Riddle. On January 29 and 30, 1971, Bercu and Hoffman conducted similar interviews with six minor children in the Gatesville State School for Boys and in the Brownwood State Home and School for Girls. Like the interviews at Gainesville, which were conducted in the presence of Riddle, the interviews at Gatesville and Brownwood were in the presence of the respective school superintendents. On February 10, 1971, nearly two weeks after their first visit to Gaines-ville State School for Girls, Bercu and Hoffman returned to Gainesville to confer with their clients regarding the preparation of habeas corpus petitions in the juveniles’ behalf. They brought with them sufficient affidavit forms to support actions in forma pauperis and other documents necessary to file habeas corpus actions for their clients in the District Court of El Paso County, Texas. Upon the arrival of Bercu and Hoffman at Gainesville, Riddle notified Green by telephone that Bercu was again objecting to the presence of a supervisor during his interviews with the girls. Green once more attempted to persuade Bercu to accept this procedure, maintaining that TYC policy required the presence of a supervisor during the interviews. (Following the first hearing in this court, however, Green admitted that his interpretation of the policy was erroneous.) Green then discussed the situation with Turman, who upheld Riddle’s position. Turman detailed his purported reasons for requiring the presence of a supervisor during the interview which were as follows: concern about solicitation of clients, concern that the children’s families knew of no relationship between their children and an attorney, the possibility that NBC television might be involved, concern that the children might be obtaining drugs, and a general concern for the welfare of the children. Following his discussion with Turman regarding the reasons for requiring the presence of a supervisor during the interviews, Green talked with Robert Flowers, Esq:, the Chief of the Enforcement Division of the Office of the Attorney General of the State of Texas. Flowers authorized Green to call Riddle by telephone and inform him that he, Riddle, should be present during the interviews. Green also informed Riddle in the subsequent telephone conversation that “our office would support Turman and him [Riddle].” On February 11, 1971, Bercu and Hoffman sought the assistance of the Chairman and Vice-Chairman of the Youth Affairs Committee of the Texas Senate in seeking to interview their clients without interference; but the Senators were unsuccessful in reaching Turman. On the following day, Bercu and Hoffman, on behalf of the twelve children who had retained them as counsel, filed this civil action in the Sherman Division of the Eastern District of Texas. On February 16, 1971, plaintiffs filed a motion for preliminary injunction, seeking to enjoin the TYC and their agents from interfering with the children’s right to confer privately with counsel and from impeding in any manner their correspondence with counsel through the mail. At the subsequent hearings, it became evident that TYC policy regarding inmate interviews with attorneys was unclear. Riddle testified at one point that he understood TYC policy to require a representative of the TYC to be present during an inmate-attorney interview; but at another point, under questioning from the court, he admitted that he was unsure of TYC policy. Turman, on the other hand, testified that the Attorney General of the State of Texas determined whether or not an attorney-client relationship existed between TYC inmates and attorneys, and that if Turman were in doubt he would simply contact the Attorney General. It appears that Green did tell Turman that he thought that solicitation by Bercu and Hoffman had occurred. Yet Turman made no determination on or before February 10, 1971, that the attorney-client agreements between Bercu and the children were invalid, nor did Turman seek to determine whether or not Bercu and Hoffman were members of the State Bar of Texas on or before that date. Both Turman and Riddle admitted that TYC policy included the censorship of both incoming and outgoing mail to all persons, including attorneys and judges. Although Riddle stated that he did not ordinarily make copies of letters sent to inmates, he did make copies of two letters sent to plaintiffs’ attorneys by two girls, a Miss Jorgenson and a Miss Arnold. Riddle testified that he was not sure why he needed copies of these two letters; but he stated that censorship of the incoming mail was necessary to prevent correspondence relating to escape plans and to prevent passage of drugs. Possible communication regarding escape plans was also given as a justification for censorship of outgoing mail. After a hearing on the motion for preliminary injunction, an order was entered by this court which found that each of the twelve named plaintiffs had entered into a valid attorney-client relationship with Bercu and Hoffman, and which enjoined the TYC and their agents from (1) interfering with the rights of the children to confer privately with counsel and (2) from impeding in any manner their correspondence through the mail with their attorneys. In response to a subsequent motion for clarification of this order, the court slightly modified and supplemented the original order, so as to enjoin the agents of TYC from any harassment or intimidation of the persons seeking to exercise their rights under this order. The preliminary injunction regarding communication of TYC inmates with their attorneys was extended to a permanent injunction regarding mail censorship generally in the emergency interim relief order entered in the third phase of this action. In the conclusions of law accompanying that order, it was stated that: THE WITNESS : Since I have been superintendent, I don’t believe we have had any. AVe have had bench warrants when the children went home. THE COURT: But no one has come to the institution that represented — ? THE WITNESS: Since I have been superintendent — before I was superintendent I think there was one, but since I have been superintendent I don’t remember any attorneys that came to my knowledge now. THE COURT: Well, with reference to the one attorney that came, that had been there, did lie talk privately with the girl, or was the interview conducted — ? THE WITNESS: This I would have no knowledge of. T suppose he did. I don’t know. I just know that lie had a relation with the girl. Although this limitation on permissible censorship of the mail of adult prisoners remains uncertain, it is clear that any restrictions upon the important first amendment freedom of communication must bear, at the very least, a rational relationship to the advancement of a legitimate state interest. . . . The defendants have advanced no legitimate state interest, much less a compelling interest, that is served by the reading or censoring of incoming or outgoing mail, or by limitation of the persons with whom inmates may correspond. A legitimate state interest in preventing the flow of contraband into Texas Youth Council institutions justifies only the least restrictive practices adequate to achieve that interest — in this case, the opening of incoming mail in the presence of the inmate to whom it is addressed for the sole purpose of examining it for contraband. 364 F.Supp. 166, 174 (E.D.Tex.1973). Approximately eight months after this court’s decision, the Supreme Court decided Procunier v. Martinez, 414 U.S. 973, 94 S.Ct. 264, 38 L.Ed.2d 216 (1974). Martinez concerned, inter alia, the question of censorship of adult prisoners’ mail. Although confronted with arguments addressed to the prisoners’ first amendment rights regarding mail communication, the Court chose to decide the case on what it concluded was the narrower issue of the non-prisoner’s first amendment rights to correspond with the prisoner. Under this analysis, it was concluded that censorship of adult prisoner mail is justified if two criteria are satisfied. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Secondly, the limitation of first amendment freedom must be no greater than is necessary or essential to the protection of the particular governmental interest involved. The court identified the governmental interests at stake in the adult prison area as the preservation of internal order and discipline, maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. After a reconsideration of the evidence in the instant action in the light of the standards advanced by the Supreme Court for deciding whether specific regulations or practices constitute an impermissible restraint on the first amendment liberties of non-prisoner correspondents, this court is not persuaded that its conclusion should be modified. Indeed, two considerations undercut considerably any argument contending that the governmental interests asserted here in earlier stages of this action justify the interference with mail beyond that permitted by this court in its emergency relief order. First, TYC no longer imposes any censorship requirements on outgoing mail. Secondly, several TYC school superintendents testified that they no longer impose any such restrictions on incoming mail, and that the apprehension regarding a flurry of escape plans has proved to be unjustified. With respect to plaintiffs’ claim regarding the right of inmates to confer privately with counsel, it should be observed that, although the right to counsel is fundamental, the state is not without some rights to make reasonable rules and regulations regarding access of inmates to attorneys. One influential court has stated: “The state has a legitimate interest in protecting juveniles under detention from visits by attorneys (or persons asserting themselves to be such) whom the juveniles have expressed no desire to see and who have not established authority to speak for them.” Negron v. Wallace, 436 F.2d 1139, 1144 (2nd Cir. 1971) (Friendly, J.). A review of the record before this court at this time is not persuasive that the views stated by certain TYC and Attorney General personnel in the episode complained of by the plaintiffs represent a policy promulgated by the TYC. Thus, any further relief regarding a TYC “policy” must necessarily await a better record. Since the defendants are now not without some guidelines in this area, see Negron v. Wallace, supra at 1144-1145, the court does not anticipate that future adjudication will be necessary. Any policy adopted by TYC must necessarily conform to the constitutional requisites. Hence, the detained juvenile has a constitutional right to consult with his or her attorney in privacy, undisturbed in any manner by supervising personnel. The state has the right, on the other hand, to impose certain reasonable regulations, in the absence of an emergency. Any of these regulations must, however, be subject to the caveat that inmates cannot be denied access to an attorney either by telephone or otherwise at any time that a legitimate emergency arises. Moreover, state personnel who have received some assurance that the person purporting to be an attorney is, in fact, a licensed attorney but who still harbor some concern regarding ethical matters such as solicitation, or any other such problem, should properly share this concern with the appropriate state bar grievance committee and this court. The final matter concerns plaintiffs’ claim for damages against Turman and Green under 42 U.S.C.A. Sec. 1983. With respect to the claim against Green, it is concluded that Green, as the Assistant Attorney General charged with rendering legal advice to members and employees of the Texas Youth Council, was acting within the scope of his authority at all times when he advised TYC personnel, and that he therefore is immune from suit under Sec. 1983 as a “quasi-judicial officer.” E. g., Guerrero v. Barlow, 494 F.2d 1190 (5th Cir. 1974). With respect to the claim against Turman, this court concludes that, since it is undenied that Turman was at all times acting pursuant to the advice of Green, Turman should not be held liable. V. PROCEDURAL DUE PROCESS Following extensive discovery efforts and lengthy negotiations regarding allegations of the denial of procedural due process to juveniles in the adjudicatory stage, the parties were able to agree to certain findings of fact, which are set out in a footnote. On December 27, 1972, this court entered an agreed order, which is also shown in a footnote. VI. CRUEL AND UNUSUAL PUNISHMENT AND THE RIGHT TO TREATMENT With respect to the plaintiffs’ contentions concerning cruel and unusual punishment, it is clear that the eighth amendment’s proscription applies to the state as well as to the federal government. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Moreover, the protection applies to persons who have not been convicted of crimes, such as juveniles involuntarily committed to the state’s institutions. E. g., Lollis v. New York State Department of Social Services, 322 F. Supp. 473 (S.D.N.Y.1970). The Court of Appeals for the Fifth Circuit has recently held that a person involuntarily committed to a state mental hospital in a civil proceeding has the constitutional right to receive such individual treatment as will give him a reasonable opportunity to be cured or to improve his mental condition. In this decision, the court articulated the two-part theory underlying the due process guarantee of a right to treatment under the fourteenth amendment. Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974). The first part of this theory holds that any non-trivial governmental abridgement of liberty must be justified in terms of some permissible governmental goal. The governmental goals or interests typically advanced are danger to self, danger to others, and the need for treatment, care, custody, or supervision. In the instant case, the state is charged with a statutory duty to provide “a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged to be delinquent.” Tex.Rev.Civ.Stat.Ann. art. 5143d (1971). This basis for commitment — to rehabilitate and re-establish the juvenile in society — is clearly grounded in a parens patriae rationale. Thus, under the parens patriae theory, the juvenile must be given treatment lest the involuntary commitment amount to an arbitrary exercise of governmental power proscribed by the due process clause. Under the second part of the two-part due process theory, the government must afford a quid pro quo to warrant the confinement of citizens in circumstances in which the conventional limitations of the criminal process are inapplicable. The three central limitations on the government’s power to detain are: (1) that detention be retribution for a specific offense; (2) that it be limited to a fixed term; and (3) that it be permitted only after a proceeding where fundamental procedural ‘safeguards are observed. In their absence a quid pro quo must be extended by the government to justify confinement. As previously noted, the quid pro quo applicable here, by virtue of state statute, is rehabilitative treatment. In tracing the support for the second part of the theory in Donaldson, the Fifth Circuit noted five groups of relevant cases. Among the fifth group of cases (each of which ordered injunctive and declaratory relief requiring that adequate treatment be provided in state-run facilities) were cases concerning juvenile delinquents. The decisions cited by the Fifth Circuit in the juvenile delinquency area were: Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974), aff’g 355 F.Supp. 451 (N.D.Ind.1972) cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Inmates of Boys’ Training School v. Affleck, 346 F.Supp. 1354 (D.R.I.1972); and this court’s earlier decision granting emergency interim relief in the instant case, 364 F.Supp. 166 (E. D.Tex.1973). Donaldson v. O’Connor, supra, 493 F.2d at 534 n. 32. See also Martarella v. Kelley, 349 F.Supp. 575, (S.D.N.Y.1972), enforced D.C., 359 F. Supp. 478 (non-delinquent juveniles held as being “persons in need of supervision”). Moreover, although the Supreme Court has never directly faced the question of whether a juvenile involuntarily confined in a state institution has a constitutional right to treatment, the Court has spoken to the underlying theory of the second part of the due process argument. In the landmark decision In re Gault, 387 U.S. 1, 22, 87 S.Ct. 1428, 1441, 18 L.Ed.2d 527 n. 30 (1967), the Court declared that: While we are concerned only with procedure before the juvenile court in this case, it should be noted that to the extent that the special procedures for juveniles are thought to be justified by the special consideration and treatment afforded them, there is reason to doubt that juveniles always receive the benefits of such a quid pro quo. ... In fact, some courts have recently indicated that appropriate treatment is essential to the validity of juvenile custody, and therefore that a juvenile may challenge the validity of his custody on the ground that he is not in fact receiving any special treatment. Finally, plaintiffs claim a right to treatment under state statute as well as the federal constitution, and the state concedes such a statutory right. The basis for this statutory right to treatment is found in Tex.Rev.Civ.Stat.Ann. art. 5143d et seq. Jurisdiction of the state claims in this court is based on its pendent jurisdiction, since such claims and the federal claims “derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). For a discussion of this “promise” of treatment, see Smith v. State, 444 S.W.2d 941 (Tex.Civ.App.— San Antonio 1969). VII. CONDITIONS AT TYC INSTITUTIONS A. Introduction The findings of fact in this memorandum opinion are based upon evidence presented at the time of trial. The findings employ the present tense, for any changes that may have come about since the trial of the case do not affect the record upon which the court is solely entitled to rely. The only exception to this stylistic choice of verbs occurs when the court describes a practice that was prohibited by the court’s Interim Emergency Order of August 31, 1973; such practices are described in the past tense, compliance with the court’s order being assumed. The defendants have moved to reopen the record in this case for the presentation of further evidence relative to the changes that have occurred in the TYC program since the time of trial. The trial of this action took six weeks; the transcription of the record consumed another two months, and the court was not in possession of all of the briefs until March of 1974. It has acted as expeditiously as possible, since the subject matter of the ease is of the utmost importance. A reopening would entail further delays, with the need for more discovery, trial, and briefing. The defendants had a great deal of time to prepare for this case; they were on notice from a very early date of the practices the plaintiffs were protesting and had, in the opinion of the court, ample opportunity to alter them prior to trial, if they had been so inclined. Moreover, the fact that conditions have changed, if it is a fact, does not alter the plaintiffs’ right to relief from the practices of which they complain, for the defendants would otherwise be free to return to their old practices once the threat of litigation was averted. See United States v. W. T. Grant Company, 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968); Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966). In the exercise of the court’s discretion, the defendants’ motion to reopen the record for the receipt of more evidence is denied. One fruitful source of evidence concerning conditions at the TYC institutions was the testimony of four individuals designated by the court to be “participant observers.” These trained experts were permitted, by order of the court, see 59 F.R.D. 157 (E.D.Tex.1972), to enter the premises of the various institutions, inspect the physical facilities, attend various functions, participate in daily activities, and speak to both staff and inmates. Their perceptions, so much sharper than those of an untrained visitor, were of invaluable assistance to the court, and form the basis for many of the court’s findings. B. Physical Brutality and Other Forms of Abuse 1. Maximum Security Confinement: Mountain View State School for Boys The Mountain View State School for Boys is the maximum security facility operated by the TYC. It is surrounded by two fences, both of which are topped with barbed wire. Prior to entry of this court’s emergency interim relief order, a juvenile could be initially assigned to Mountain View on the basis that he had been adjudicated delinquent for a serious offense or he could be transferred there from one of the other TYC institutions for boys, usually Gatesville, as a result of a decision that his conduct was unsatisfactory. In either case, the decision was left largely to the discretion of the staff. Thus, there were at least some boys incarcerated at Mountain View whose delinquent behavior consisted of such “status” offenses as truancy, incorrigibility, or running away from home. Also present at Mountain View were some boys who had been transferred there from other schools for such essentially non-violent, uncooperative behavior as swearing at correctional officers, refusing to work, or running away. Mountain View’s history, well known to the inmates of both Mountain View and Gatesville, has been one of brutality and repression. New boys placed at Mountain View are called “fresh fish,” and are “tested” by various forms of physical abuse, applied by staff or other boys with the encouragement of staff. For example, one entering boy, identified as C. W., was initially beaten by the other boys in his cottage with the tacit approval of Correctional Officer Flores. Later that day, the boys who administered the beating were, in turn, “racked” by Flores — that is, forced to line up against the wall with their hands in their pockets while the correctional officer punched each one in the stomach. On the following day, while Correctional Officer Stovall watched, C. W. was hit and kicked by seven or eight boys in the corner of the cottage day room for more than an hour. After C. W. had been knocked unconscious, Stovall stopped further abuse, announcing that he did not want any “dead fish” on his hands. Staff brutality at Mountain View is not ignored, but — by precept and example — encouraged, by those in authority. It was in evidence, for instance, that Assistant Superintendent Mack Morris slapped one boy in the face for talking in the superintendent’s office. The evidence was also uncontradicted that the school principal slapped another boy in the face, back, and head for speaking Spanish. The Supervisor of Correctional Officers, Joe Gail Sassy, is notorious for his abuse. In one incident, Sassy called Correctional Officer Foster on the phone and directed him to send down a boy named “Slut” (M. A.). The boy went to Sassy’s office and returned shortly thereafter with swollen eyes and jaw, blaming Sassy. In another case, Sassy called a boy out of his cottage for not reporting on time. When the boy returned from Sassy’s office, his face was swollen and one eye was almost closed. In still another incident, Sassy broke up a fight between R. J. and H. C.; he then “racked” R. J. for approximately twenty minutes and R. C. for about four minutes. Prior to entry of this court’s emergency interim relief order, staff brutality was a regular occurrence in the security wing at Mountain View, called the Security Treatment Center (STC). In the sordid parade of evidence brought before the court showing incident after incident of physical abuse, two occurrences seem particularly brutal and cruel. In one of the incidents, Correctional Officer Supervisor Sassy interrogated W. B., after W. B. had attempted suicide. When W. B. did not answer his questions, Sassy hit W. B. several times, knocking the boy to the floor, and sprayed tear gas in his face from close range, shouting, “I have a way to make you talk.” This outrage happened in a room five to six feet from Assistant Superintendent Morris’ office. W. B. was taken to the infirmary; but the attendant asked him no questions about the tear gas and administered no medical treatment. W. B., pursuant to Sassy’s instruction, made no mention of the tear gas in the subsequent incident report. The second occurrence related to one, “Tweetybird,” an allegedly homosexual boy given to screaming fits. On the occasion in question, the boy, for an alleged rule violation, was called from his solitary confinement cell in the STC by Correctional Officer Johnston, who took him down a corridor to a central location in the STC. There, Johnston proceeded to “rack” Tweetybird severely, then bound the boy’s hands behind his back and blindfolded him. Johnston thereupon twirled the boy around several times and commanded him to run to his cell, the order being accompanied by threats of another beating if the boy did not proceed rapidly. In trying to follow Johnston’s order, Tweetybird ran headlong into the corridor walls several times; finally, screaming and crying, he fell to the floor. Johnston terminated the torture by placing his foot on Tweetybird’s stomach and covering the boy’s face with a mop. Complaints by another correctional officer to Supervisor Ross about this incident and other conditions in STC brought no results. The use of tear gas on boys during the period preceding entry of this court’s emergency interim relief order was widespread. Many of the instances involving tear gas were the subject of “incident reports,” which are designed to record instances of the use of physical force by both inmates and staff of TYC. One such incident report, dated January 13, 1971, and identified by Clarence Stephens, Casework Supervisor at Mountain View, reported that one, M. F., threw down his pick and started running from a work detail. The boy was placed in the STC, and, for shouting, was afterward subjected to tear gas in his cell. Stephens identified incident reports of April 19 and 20, 1973, reporting that tear gas was used on one, B. L., with the permission of Assistant Superintendent Morris, when the boy refused to work and threatened to run. After being administered tear gas, the boy was examined at the hospital and then returned to a work detail. • The next day, when B. L. again tried to run away and was apprehended, Morris once more gave assent to tear gas being used on the boy. A third report, dated October 25, 1973, reflects that D. F. ran away from a security work detail. After he was caught, D. F. was held by two correctional officers and sprayed with tear gas. A report dated August 31, 1964, indicates that tear gas was administered to a boy in a cell in the STC, for being “troublesome” and “uncooperative.” The report reveals that Morris gave his approval to the procedure thus employed. Although Stephens reviews staff incident reports concerning staff brutality, including those reporting the use of tear gas, he has never inquired as to the meaning of the phrase “sufficient force to bring [a boy] under control,” which appears continually in these reports, often as a justification for the use of tear gas. Although certain instances involving physical abuse of inmates by the staff are accurately reflected in the incident reports, many more are either unreported or inaccurately reported. It is common knowledge at Mountain View that reported incidents are deliberately falsified to protect the correctional officer, and that witnesses do not file incident reports of staff brutality for fear of retaliation. Even boys who testified about Mountain View at the trial of the civil action feared for their physical safety upon returning. It is not only the correctional officers who pose a threat. Certain boys, known as “office boys,” are coerced or persuaded to act as enforcers for the officers in exchange for special privileges. Office boys will falsify reports to protect an officer, and may provoke an incident with a boy who has “snitched” to injure him or prejudice his chances for release. Mountain View employment practices are not aimed at curbing staff brutality. The pre-employment screening of correctional officer staff at Mountain View consists of brief interviews with a correctional officer supervisor, the superintendent, and the assistant superintendent. There is almost no discussion of the use of force by the staff in these interviews. Furthermore, there is no pre-service training or orientation for correctional staff. New employees are instructed to follow other staff around to learn the rules on the use of force and to use their “own discretion.” Prior to entry of this court’s emergency order, it was customary for correctional officers to accept the use of severe brutality against boys, for frivolous as well as serious kinds of disruption. Thus, conduct justifying this type of punishment included anything from spitting on the sidewalk to attacking a correctional officer. The school principal instructed a new physical education teacher to slap any student who did not follow instruetions. A former correctional officer was admonished by his supervisor that his job was in jeopardy, because he did not “rack” boys for fighting and failed to kick them when they stepped out of marching lines. At staff meetings, new officers’ requests for definitions of the phrase “out of control requiring force” were met with evasive answers. Although the correctional officers often talked among themselves about the brutality exercised against the children, the reporting of incidents of brutality to the superintendent was regarded as worthless, and only resulted in the suggestion to the reporting officer that he resign. One former correctional officer, Foster, was reluctant to testify about conditions, because he had heard that two teachers who testified concerning Mountain View were “blacklisted” from other state jobs. Dormitories One and Nine at Mountain View were designated as “punk” dormitories, and were regarded by inmates and staff as the homosexual dormitories. Dormitory One has “homosexual” Black students; Dormitory Nine has only Anglo and Mexican American “homosexual” students. Prior to entry of this court’s emergency order, boys were placed in these dormitories for having “homosexual tendencies,” because they were “pressured” by other boys, or “didn’t get along in the other dorms.” The correctional officers, who are the least qualified and least educated of the staff and who have no special training in this regard, made these placement decisions. The Gates-ville school psychiatrist, Dr. Charles Smith, never criticized such segregation to his superiors. The Mountain View Casework Supervisor, Clarence Stephens, although not critical of the practice, conceded that it “might be detrimental and not therapeutic.” The Director of Child Care for TYC, David Sandefur, was aware that Mountain View segregated certain boys by race, but did not know the reason. Although he testified that he trusted the judgment of the Superintendent and Assistant Superintendent as to this policy, he admitted that it would be more rational to separate the boys by passive and aggressive actions, rather than by race. He also conceded that labeling a child of thirteen to seventeen years of age as “homosexual” is detrimental to the child’s welfare in any case. Nevertheless, Sandefur approved of the policy as necessary to maintain institutional control. Expert witnesses were unanimous in concluding, however, that such labeling is inappropriate, destructive, and often inaccurate, because some experimentation with the same sex by adolescents is normal. Experts also testified that such labeling and segregation strips a child of his individual identity, does much to force him to homosexuality as a permanent mode of sexual expression, and is, therefore, extremely anti-therapeutic. 2. Gatesville State School for Boys Dwain Place, Superintendent of the Gatesville State School for Boys, described his philosophy with respect to control and discipline as follows: “We don’t have any punishment for discipline. We may have punishment for control. If you want to call it punishment, we use force for control. . ” Although incident reports have recorded certain instances of brutality, the supervisory staff and, specifically, Superintendent Place, have taken no action whatsoever to eliminate the uses of excessive force. Thus, in a special incident report dated May 30, 1973, the investigating staff member, Carroll Duke, concluded that a correctional officer had struck R. C. several times without justification. The only action taken against the correctional officer was a verbal reprimand; there was no recommendation for firing or referral for criminal prosecution. In another incident, while a group of boys from the Hackberry Subschool of Gatesville were returning from a field trip by bus, one, Robertson, a teacher, in the presence of other teachers and correctional officers, struck, kneed, kicked, and punched W. H. and G. P. numerous times for pretending to fight in the bus. The boys in no way threatened the teacher or sought to fight back. W. H.’s eardrum was badly injured — “with a hole going straight through it.” At the instruction of Robertson, W. H. falsified his report of the incident, stating that the injury was an accident. A concerned teacher intern witnessing the beating reported it to another teacher. The teacher told him, “If you stay around the school long enough you better get used to it, because you’ll see plenty and worse.” Several witnesses testified that Correctional Officer Schultz used excessive force against students on numerous occasions. One of his innovations included placing a boy's head between his, Schultz’s, own legs and then running in place. Another of his variations was to stand on a boy’s stomach. The frequent use of certain forms of brutality has given rise to a jargon peculiar to the Gatesville inmates and staff. A “peel” is administered by forcing a boy to bend over, then striking him hard on the back with a fist or open hand. A “tight” is applied by forcing a boy to bend down, holding his own ankles and toes, then striking him on the buttocks with the handle or straw end of a broom. A boy is subjected to “brogueing” when he is kicked in the shins. Such punishment has been meted out for “wearing pants too low;” “losing a baseball game;” “leaving shoes out;” or “leaving cards out.” Gatesville incident reports, like those at Mountain View, are frequently never filed, and when filed, are often falsified. Victims do not report incidents of brutality to caseworkers or other staff, because such procedures are not explained to them. Retaliation for filing a report has included the assignment of ex