Full opinion text
AMENDED MEMORANDUM OPINION CAPELLE, United States Magistrate Judge. Based upon the pleadings, the evidence presented, and the parties’ arguments, this memorandum opinion is hereby entered granting relief to the class of all inmates of the Texas Department of Criminal Justice— Institutional Division (“TDCJ-ID”), having Daniel Johnson as its class representative, against Defendants, being the members of the Texas Board of Pardons and Paroles and the members of the Texas Board of Criminal Justice, all having been sued in their official capacities, on the issues of the Texas Board of Pardons and Paroles’ (“Board”) receipt and consideration of inmates’ writ-writing activities and the Board’s receipt of protest letters when making parole determinations. Relief is hereby denied to the Plaintiff class on its claim against the Texas Board of Pardons and Paroles’ consideration of an inmate’s furlough history when making parole determinations. The parties consented to this Court’s jurisdiction under 28 U.S.C. § 636(c). I. PROCEDURAL HISTORY Plaintiff, Daniel Johnson, an inmate of the TDCJ-ID, submitted this pro se civil rights action on February 19, 1985, which was filed on February 26, 1985 after leave to proceed to form a pauperis was granted. On July 6, 1986, a prior United States Magistrate Judge issued a report and recommendation, which the District Court adopted, dismissing the Plaintiffs claims for failure to state a claim and for failure to exhaust state remedies. On July 17, 1987, the Fifth Circuit Court of Appeals reversed this dismissal and remanded the cause for further proceedings. Johnson v. Pfeiffer, 821 F.2d 1120 (5th Cir.1987) (“Johnson I”). On June 20,1988, counsel was appointed to represent the Plaintiff. Plaintiffs Fourth Amended Complaint was filed on September 7, 1988. Defendants filed their Amended Answer on October 14, 1988. Daniel Johnson originally asserted five (5) causes of action based on violations of constitutional rights under both the United States and Texas Constitutions and rights protected by 42 U.S.C. § 1983. On November 26, 1991, the parties consented to this Court’s jurisdiction under 28 U.S.C. § 636(c) to enter final orders and judgment in the ease. Defendants filed a Motion to Dismiss or, in the Alternative for Summary Judgment on March 10,1989, and a second such motion on March 13,1989. On December 18,1991, this Court entered an order granting Defendants’ motions for summary judgment as to Plaintiffs claims that a Texas sentencing statute (requiring that more of a sentence be served for certain aggravated offenses or offenses involving a deadly weapon) had been routinely applied in an ex post facto manner and that Defendants had failed to set a tentative parole month and to propose a program of measurable institutional progress for Plaintiff and other inmates. The Court denied Defendants’ motions for summary judgment as to Plaintiffs three remaining claims, which included causes of action based on violations of constitutional rights under both the United States and Texas Constitutions, and rights protected by 42 U.S.C. § 1983, being: 1) Defendants retaliate against inmates who file habeas corpus actions, civil rights actions, and other litigation by subjecting such inmates to harsher treatment in parole considerations; 2) Defendants consider “protest” letters received from trial officials, victims, and citizens when making parole decisions; and 3) Defendants invidiously discriminate against inmates who are not Texas residents by considering the prior award of furloughs as a factor favoring parole when out-of-state residents are, as a practical matter, precluded from being awarded such furloughs. On January 28-31, 1992, the Court heard Plaintiffs Amended Motion for Class Certification. The testimony and exhibits admitted at that hearing have been incorporated into the record of the trial on the merits. The Court entered an order certifying this litigation as a class action pursuant to Rule 23, Federal Rules of Civil Procedure, on February 11, 1992. The class of all present and future inmates of the TDCJ-ID was certified for prospective, injunctive relief. That .order was amended on March 25, 1992 to reflect that the class was certified under Fed. R.Civ.P. 23(b)(1) and (b)(2). On April 22,1992, Plaintiff filed his Motion for Partial Summary Judgment and Brief in Support seeking judgment on two of the three remaining issues: that Defendants retaliate against writ-writing inmates and that Defendants invidiously discriminate against non-resident inmates who are not “eligible” for furloughs, and thus have not completed one, by considering a furlough completion as a positive factor favoring parole. On May 11, 1992, Defendants filed their Supplemental Motion to Dismiss, or Alternatively, for Summary Judgment with Supporting Brief and Response to Plaintiffs Motion for Summary Judgment. On June 5, 1992, this Court ordered that, after consideration of the pending motions, evidence should be submitted on the issues presented, and held the motions in abeyance pending the outcome of the trial of this cause. Trial before the Court proceeded on June 9-12 and June 23-26, 1992, and July 16, 1992, at which time testimony concluded. Approximately sixty-three witnesses testified and more than two hundred exhibits were introduced. Plaintiff filed a Post-Trial Brief on July 24, 1992. Defendants filed a Post-Trial Brief under Seal and Amended Post-Trial Brief under Seal on August 12, 1992 and August 17,1992, respectively. Plaintiff filed a Reply to Defendants’ Amended Post-Trial Brief on August 20, 1992, and submitted a proposed memorandum opinion. Defendants filed Proposed Findings of Fact and Conclusions of Law on July 8,1994. Both parties submitted several letter briefs. II. WRIT WRITERS A. Plaintiff’s Argument Plaintiff and the Plaintiff class allege that inmates who have initiated and prosecuted civil rights and habeas corpus actions against the Texas Department of Criminal Justice and other state officials, on their own behalf or on behalf of other inmates, have been discriminated against during parole consideration. There is alleged to be a retaliatory and customary practice of the Defendants to deny parole to “writ writers.” B. Defendants’ Argument In response, Defendants assert that the evidence fails to demonstrate retaliation against any inmate in the parole review process because of that inmate’s legal activities. They claim that, although some inmates have expressed a belief that they are retaliated against in the parole review process because of their legal activities, the evidence demonstrates that the only effect an inmate’s legal activities may have on his parole is favorable in that it is considered to advance an inmate’s educational development and to be an industrious use of the inmate’s time while in prison. Defendants claim that the absence of a specific written Board rule prohibiting the negative consideration of an inmate’s legal activities is neither factually nor legally relevant, but in fact, a TDCJ Administrative Directive prohibits retaliation against inmates for legal activities. Additionally, the absence of a formal written Board policy concerning writ-writing has not “chilled” inmates’ use of the courts or the TDCJ’s grievance system to express their legal complaints. Even assuming any chilling effect, federal decisional law does not establish a constitutional deprivation without an actual intentional act of retaliation for an inmate’s legal activity, for which Defendants cite Jackson v. Procunier, 789 F.2d 307 (5th Cir.1986). As a final argument, Defendants claim that the parole officials do not know nor care if inmates are writ writers, given that Board members review and vote on over 70,000 cases annually, making retaliation a practical impossibility. C. Analysis Despite the Defendants’ arguments, historically there has been a bias against inmates considered to be writ writers by the employees of the Texas Department of Corrections (TDC), now the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). This Court determines that there should be a Board rule which definitely prohibits the consideration of an inmate’s legal activities when the Board determines that inmate’s candidacy for parole. To do anything less restricts, at least as a practical matter, an inmate’s access to the courts. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Finding a right of access by prisoners to the federal courts, the Supreme Court held: The state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus. Whether a writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine. Hull, 312 U.S. at 549, 61 S.Ct. at 642. Nor may Texas prohibit inmates from assisting each other in preparing writs and other legal documents. Johnson v. Avery, 393 U.S. 483, 484, 487, 89 S.Ct. 747, 748-50, 21 L.Ed.2d 718 (1969) (prohibiting inmates from assisting other prisoners, as a practical matter, prevents illiterate prisoners from having their claims heard). The right of access to the courts, by allowing inmates to assist other inmates, was extended to include actions brought under 42 U.S.C. § 1983. Wolff v. McDonnell, 418 U.S. 539, 578-79, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). The Court stated in Wolff that “[t]he right of access to the courts, upon which Avery was premised, is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.” Id. at 579, 94 S.Ct. at 2986. Given inmates’ constitutional right of access to the courts, any consideration of writ writing as a factor in the parole decision is a deprivation of due process, and Defendants do not contend otherwise. Such consideration also violates the equal protection clause. City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (equal protection requires that similarly situated persons be treated alike). Any distinction made between inmates who seek access to the courts and those who do not violates the equal protection clause. Further, “prison officials may not retaliate against or harass an inmate for exercising the right of access to the courts____” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995). The Board has no rule or policy prohibiting the consideration of an inmate’s litigation activities in the parole decision process. If any Board member or Board employee did in fact consider writ writing activities, no violation of a Board rule would occur, and no disciplinary action could be taken against the Board member or employee. Although the evidence is circumstantial, because no representative of Defendants will admit that writ writing activities are considered when making parole decisions, there is no other reasonable explanation for the tremendous weight of testimony showing that writ writing activities are frequently discussed in parole interviews and that documentation of such activities frequently appears in inmates’ parole files. Plaintiff and the Plaintiff class members obviously believe that litigation activity bodes poorly for their chances of parole. Clearly, this perception of retaliation has chilled, at least to some extent, inmates’ exercise of their constitutionally protected right of access to the courts. Plaintiff’s expert witnesses testified that a rule against consideration of writ writing activities would be acceptable. The uncontroverted evidence is that there is no Board policy or rule to prohibit the unconstitutional consideration of an inmate’s exercise of the right of access to the courts. The overwhelming weight of the circumstantial evidence shows that inmates are questioned about such activities and that litigation material, as well as information about legal activities, appears in parole files. The evidence shows, as Board Member Eikenburg candidly testified, that “suing the Parole Board is not the way to go about getting out of prison.” The Board shall adopt by rule a policy that prohibits consideration of inmates’ exercise of the constitutionally protected right of access to the courts. The rule shall specify that such activity is wholly irrelevant to the parole decision making process. The rule will apply prospectively to all inmates considered for parole after the date of the original opinion. The rule adopted by the Board shall establish specific, enforceable sanctions for all violations of this policy. A formal, publicized means shall be established for inmates questioned about their writ writing activities or those inmates who have reason to believe that this Board policy has been violated to bring such questions to the attention of the Board. All existing files shall be reviewed for and purged of any and all documentation related to an inmate’s litigation activity as the specific inmate becomes eligible for review. Only upon the written request of an inmate shall any litigation material or information be included or retained in his or her parole file. III. PROTEST LETTERS A. How the System Works Texas law directs the Board to consider two basic factors in deciding whether to grant parole to an inmate: the seriousness of the offense and the likelihood of a favorable parole outcome. Texas law also requires the Board of Pardons and Paroles to notify certain trial officials and certain other members of the public when inmates are under consideration for parole. Although the parole process has changed slightly over the years, it works as follows. Most inmates are reviewed for parole consideration by a panel of three. The first panel member often (but not always) interviews the inmate at the institution and writes a summary of the interview for inclusion in the inmate’s parole file. The first panel member then “votes the case” by indicating on the docket sheet in the file whether he or she favors release on parole. The second panel member then receives the file and votes the case without an interview. If the first two panel members disagree, the file then goes to the third member for the dis-positive vote. If the first two panel members agree, the case does not go to the third member. If the panel votes against release on parole the inmate receives a form notice from the Board listing reasons for the unfavorable decision. If the panel votes in favor of release, the inmate is notified of that fact and is told that the decision is tentative and may be rescinded, depending upon the Board’s further investigation. The inmate receives a notice known as an “F.I.” (further investigation). At a point in time roughly contemporaneous with the panel’s consideration of an inmate’s case, the Board sends out notification to the persons entitled to receive notice under the statute. Many of the recipients then send protests to the Board in varying forms: some are simply form letters indicating opposition to release, some express opinions that the inmate has not done enough time for the crime, others contain newspaper clippings or first-person narratives describing the original crime. Other letters come from victims and their families describing the effects that the crime has had upon them, while others include information about the inmate, such as his criminal history, unadjudicated offenses, and family circumstances. Motives for sending letters vary widely from a concern for the safety of the general public, personal dislike of an inmate, local political considerations, and a desire to obtain an advantage over an inmate. After September 1, 1995, the Texas Code of Criminal Procedure was amended to allow for victims or their representative to present oral statements to board members. Now, the parole panel “shall allow one person to appear in person before the board members to present a statement of the person’s views about the offense, the defendant, and the effect of the offense on the victim.” Tex. Crim.Proc.Code Ann. art. 42.18, § 8(f)(2) (as amended by Act of May 29, 1995, 74th Leg., R.S., ch. 253, § 1, 1995 Tex.Sess.Law Serv. 2179 (Vernon)). This new requirement allowing persons to appear before “board members” appears to conflict with Texas Criminal Procedure article 42.18, § 7(e), which was not amended as of September 1, 1995, and states that “[t]he members of a panel are not required to meet as a body to perform the members’ duties as prescribed by this article, except to conduct a hearing as required by Section 14 of this article [parole revocation hearings].” Tex.Crim.Proc.Code ann. art. 42.18, § 7(e) (Vernon Supp.1996). In an attempt to read the statutes as not in conflict, presumably a victim or his representative could appear before any of the three panel members, but appear separately, could appear before two of the three panel members, or the panel could opt to meet as a body to hear victims or their representatives. B. Plaintiff’s Argument As alleged in Plaintiffs Fourth Amended Complaint, the Board of Pardons and Paroles is statutorily required to consider two factors in deciding whether to grant parole to an inmate. These factors are the likelihood of harm to the public and the likelihood of a favorable parole outcome. Protests received by the Board are often unrelated to these factors. The evidence at trial proves that protests are often motivated by personal dislike and local political considerations. Plaintiffs constitutional rights are violated when unreliable, malicious, or irrelevant protest letters are the basis for the Board’s decision. Plaintiff has alleged, and the evidence has proven, that inmates' who are eligible for parole and who receive protest letters are treated differently from those inmates who are eligible for parole and who do not receive protest letters. The Board’s lack of policy has resulted in a system that is arbitrary and capricious. By adopting a parole system with general standards' of eligibility, the State of Texas has created a justifiable expectation that parole will be granted fairly. Plaintiff argues that he is entitled to judgment on his claim that the use of protest letters in Defendants’ parole decision-making procedure violates Plaintiffs right to due process and equal protection under the laws. C. Defendants’ Arguments Defendants assert that Plaintiff has failed to show the Board’s consideration of protest letters gives rise to a fundamentally unfair parole review process in Texas or to demonstrate a single case wherein the consideration of a protest letter by the Board has unfairly resulted in the denial of parole. Defendants claim that the Texas Constitution and Code of Criminal Procedure mandate that victims and other persons be allowed to submit information to the Board for consideration in the parole review process, citing Article 3, § 30, Tex. Constitution (Crime Victims’ Bill of Rights); and Article 42.18, §§ 8(e), (f), (g), (h), § 9 and § 18, Texas Code of Criminal Procedure. Further, Texas has not created a constitutional or statutory right for convicted felons to be apprised of the contents of protest letters or to any particular procedure by which they may challenge the same. Such a procedure cannot be implemented without negating the right of confidentiality of victims. Neither statute nor case law has created exceptions to Article 42.18, § 18, the statute which prevents disclosure of “all information ... obtained and maintained in connection with inmates of the institutional division subject to parole ...,” including protest letter information. Defendants assert that cases involving protest letters constitute a relatively small percentage of the total number of parole cases reviewed, and in only a very small percentage can it be said that a protest letter has negatively affected an inmate’s parole consideration. Defendants argue that the Board must exercise a much broader and less easily defined range of discretion, and that the Board is not only permitted but is required to consider all available and useful information, citing Article 42.18, § 8(a). They assert that the record does not show Board members considering and weighing protest letters in a manner devoid of common sense and reason; instead, the evidence demonstrates that the Board members’ use of discretion when considering protest letters is generally well-informed, balanced, and in harmony with the constitutional and statutory duties of Board members. Defendants argue that a formal administrative hearing process established to investigate and verify protest letter information would be unnecessary, costly and impractical, unfair to victims of crime, and not in the overall best interest of society. Given the relatively infrequent negative affect of a protest letter in a parole decision, a formal system-wide investigative and hearing process would achieve little benefit for inmates, would greatly impact victims’ and others’ interests in confidentiality and personal security, and might chill the use of protest letters. Defendants claim that the present informal method of treatment of protest letter information is reasonable, based as it is on common sense in light of Board members’ considerable experience in evaluating protest letters and other information. Defendants assert that defacto conditions, such as prison overcrowding resulting in the early release of some inmates, do not create a reasonable expectation of parole. A liberty interest in parole may be created only by specific mandatory language, contained either in a statutory or constitutional provision, neither of which has been promulgated in Texas, citing Kentucky Dept, of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) and Jackson v. Cain, 864 F.2d 1235,1250-51 (5th Cir.1989). D. The Evidence at Trial The evidence at trial shows that inmates who receive protest letters of any kind are treated differently from inmates who do not. As more fully stated below, no rule exists regulating how protest letters are used in the parole decision process; there is no verification of information contained in said letters; protest letters containing the same information as prior letters, or not having any new information, are relied upon as containing new information; and protest letters containing wrong information, that are vindictive, or that are the result of political pressure, are considered and relied upon. The Board has no rule or policy regarding the use of protest letters in the decision-making process. Some of the Board members who testified said that they completely ignored protests that merely expressed the opinion that an inmate had not done enough time, others said that they would consider such a protest to be new and pertinent information, some members testified that they would consider only protests that contained new and pertinent information, but they differed as to what information they would consider to be new and pertinent. While no Board member or employee could cite any policy served by decisions based upon inaccurate information, at present the Board has no process to verify information contained within protest letters or to resolve inaccuracies. In general, the information in protests is simply assumed to be correct. Defendants’ argument has been that only protests containing “pertinent, useful, and ordinarily reliable information are used in the parole decision process is not supported by the record. The evidence at trial establishes that protests containing no new information and repeating information given in previous protests have a clear negative effect upon the Board’s decision to release on parole. Favorable parole recommendations have often been withdrawn based upon letters containing no new or additional information. Defendants have themselves told inmates that they will be reconsidered for parole if they can get the protests withdrawn. The Board has based its parole decisions upon protests containing wrong information, that are vindictive, or that are the result of political pressure. Many of the protest letters contained within the inmates’ files refer to unadjudicated offenses. Defendants have relied on Texas Code of Criminal Procedure article 42.18, § 18 to prohibit inmates’ access to information contained within parole files. By denying inmates access to the information contained in protest letters which are placed in the inmates’ parole files, inmates are denied the opportunity to respond to allegations contained within said protest letters or even to correct inaccurate information contained therein. Board employee Dan Guerra testified that it would be “fair” to get the inmate’s response to information contained within the protest letters. Other witnesses, such as Winona W. Miles, admitted that getting the inmate’s version would be “helpful.” E. Legal Analysis Texas law does not create a liberty interest in release on parole. Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir.), cert. denied, 454 U.S. 854, 102 S.Ct. 299, 70 L.Ed.2d 147 (1981) (Texas parole statute does not create a protectable expectancy of release, as recognized in Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), but rather creates nothing more than a hope of parole); Gilbertson v. Texas Board of Pardons and Paroles, 998 F.2d 74, 75 (5th Cir.1993) (same); Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 501 U.S. 1210, 111 S.Ct. 2809, 115 L.Ed.2d 982 (1991) (same). Having no constitutionally protected right, an inmate cannot state “a claim for either civil rights or habeas relief by his allegation that he was denied due process [when seeking parole] because he has no constitutionally protected expectancy of release.” Hilliard v. Board of Pardons & Paroles, 759 F.2d 1190, 1192 (5th Cir.1985) (citing Williams) (emphasis added). Thus, neither Plaintiff nor the Plaintiff class have a claim for due process violations resulting from the Board’s parole review procedures or the information considered by the Board when making parole decisions. Plaintiff and Plaintiff class can, however, assert an equal protection claim in their civil rights suit. In the Fifth Circuit’s prior opinion in this case, Johnson I, the court stated, “[although the fourteenth amendment assures due process only if the state deprives a person of life, liberty, or property, it assures equal protection against all kinds of invidious state action, even those discriminations that do not encroach on liberty or property.” Johnson I, 821 F.2d. at 1122. Inmates can present an equal protection claim in a § 1983 action in which they allege that, “without adequate justification, they were treated unfairly compared to other prisoners who were similarly situated.” Hilliard, 759 F.2d at 1193. In Johnson I, the Fifth Circuit determined that the Plaintiff and the Plaintiff class are not claiming the existence of an entitlement to parole release, but their claim “appears instead to be based primarily on an ill-defined equal protection argument advanced in behalf of all prisoners for whom ‘discretionary’ use of protest letters in parole determinations in fact represented invidious discrimination.” Johnson I, 821 F.2d. at 1122. In this equal protection challenge, given the Fifth Circuit’s determination that “convicted felons are not a constitutionally protected suspect class,” rational basis scrutiny is used to test the challenged Texas statutes. Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir.1994); Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.1987). As stated above, no fundamental right is involved. Rational basis scrutiny is “ ‘offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective.’ ” Williams, 814 F.2d at 208 (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)). “When a court reviews the constitutionality of a statute, it presumes the statute is valid.” HL Farm Carp. v. Self, 877 S.W.2d 288, 290 (Tex.1994). “The party challenging the statute on equal protection grounds has the burden to show that the statutory classification is not rationally related to a legitimate state interest where interests other than fundamental rights or suspect classification are found.” Smith v. State of Texas, 898 S.W.2d 838, 847 (Tex.Crim.App.), cert. denied, — U.S. -, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); HL Farm Corp., 877 S.W.2d at 290. The statutes at issue are Texas Code of Criminal Procedure articles 42.18, § 8 and 42.18, § 18, Adult Parole and Mandatory Supervision Law, and article 56.02, Crime Victim’s Rights Plaintiff also questions Defendants’ implementation of these statutes, which, in combination, allows the Board to receive and consider protest letters but prevents the inmate from learning of the existence of such letters, much less allowing the inmates to read and rebut the letters’ contents. The applicable sections of article 42.18, § 8 are set forth below: these sections require victims or their representatives, trial officials, and the sheriff to be notified of the prisoner’s impending release on parole; to allow statements [protest letters and oral statements] to be made; to require TDCJ to assemble all information relating to the prisoner, potentially including protest letters; and to require the Board to consider the statements. Article 42.18, § 8(f)(2) states: Before a parole panel considers for parole a prisoner who is serving a sentence for an offense in which a person was a victim, the pardons and paroles division, using the name and address provided on the victim impact statement, shall make a reasonable effort to notify a victim of the prisoner’s crime or if the victim has a legal guardian or is deceased, to notify the legal guardian or close relative of the deceased victim. If the notice is sent to a guardian or close relative of a deceased victim, the notice must contain a request by the pardons and paroles division that the guardian or relative inform other persons having an interest in the matter that the prisoner is being considered for parole. The parole panel shall allow a victim, guardian of a victim, close relative of a deceased victim, or a representative of a victim or his guardian or close relative to provide a written statement. The parole panel shall also allow one person to appear in person before the board members to present a statement of the person’s views about the offense, the defendant, and the effect of the offense on the victim. The person may be the victim of the prisoner’s crime or, if the victim has a legal guardian or is deceased, the legal guardian of the victim or close relative of the deceased victim. If more than one person is otherwise entitled under this subdivision to appear in person before the board, only the person chosen by all persons entitled to appear as their sole representative may appear before the board. This subsection may not be construed to limit the number of persons who may provide statements for or against the release of the prisoner on parole. The parole panel shall consider the statements and information provided in a victim impact statement in determining whether or not to recommend parole. However, the failure of the pardons and paroles division to comply with notice requirements of this subdivision is not a ground for revocation of parole. Tex.Crim.Proc.Code Ann. art. 42.18, § 8(f)(2) (as amended by Act of May 29, 1995, 74th Leg., R.S., ch. 258, § 1, 1995 Tex.Sess.Law Serv. 2179 (Vernon) (effective September 1, 1995) (emphasis added)). Article 42.18, § 8(f)(3) states: If a victim, guardian of a victim, or close relative of a deceased victim would be entitled to notification of parole consideration by the pardons and paroles division but for failure by that person to provide a victim impact statement containing the person’s name and address, the person is nonetheless entitled to receive notice if the person files with the pardons and paroles division a written request for that notification. After receiving such a written request, the pardons and paroles division shall grant to the person all the privileges to which the person would be entitled had the person submitted a victim impact statement. Before a prisoner is released from the institutional division on parole or on the release of a prisoner on mandatory supervision, the pardons and paroles division shall give notice of the release to any person entitled to notification of parole consideration for the prisoner because the person filed with the pardons and paroles division a victim impact statement or a request for notification of a parole consideration. Tex.Crim.Proe.Code Ann. art. 42.18, § 8(f)(3) (Vernon Supp.1996). Article 42.18, § 8(h) states: It shall be the duty of the pardons and paroles division at least 10 days before the board orders the parole of any prisoners or at least 10 days after recommending the granting of executive clemency by the governor to notify the sheriff, the prosecuting attorney, and the district judge in the county where such person was convicted and the county to which the prisoner is released that such parole or clemency is being considered by the board or by the governor____ The notice must state the prisoner’s name, the county in which the prisoner was convicted, and the offense for which the prisoner was convicted. Tex.Crim.Proe.Code Ann. art. 42.18, § 8(h) (Vernon Supp.1996). Article 42.18, § 8(e) states: Not later than the 120th day after the date on which a prisoner is admitted to the institutional division, the Texas Department of Criminal Justice shall secure all pertinent information relating to the prisoner, including but not limited to the court judgment, any sentencing report, the circumstances of the prisoner’s offense, the prisoner’s previous social history and criminal record, the prisoner’s physical and mental health records, a record of the prisoner’s conduct, employment history, and attitude in prison, and any written comments or information provided by local trial officials or victims of the offense. The Texas Department of Criminal Justice shall establish a proposed program of measurable institutional progress that must be submitted to the board at the time of the board’s consideration of the inmate’s case for release. The board shall conduct an initial review of an eligible inmate not later than the 180th day after the date of the inmates’s admission to the institutional division. Before the inmate is approved for release to parole by the board, the inmate must agree to participate in the programs and activities described by the proposed program of measurable institutional progress. The institutional division shall work closely with the board to monitor the progress of the inmate in the institutional division and shall report the progress to the board before the inmate’s release. Tex.Crim.Proc.Code Ann. art. 42.18, § 8(e) (Vernon Supp.1996) (emphasis added). Additionally, although not specifically argued by the Plaintiff, article 56.02, Crime Victim’s Rights, of the Texas Code of Criminal Procedure, allows a crime victim, guardian of a victim, or close relative of a deceased victim: [T]he right to be informed, upon request, of parole procedures, to participate in the parole process, to be notified, if requested, of parole proceedings concerning a defendant in the victim’s case, to provide to the Board of Pardons and Paroles [meaning either the Board or the TDCJ-Pardons and Paroles Division] for inclusion in the defendant’s file information to be considered by the board prior to the parole of any defendant convicted of any crime subject to this Act, and to be notified, if requested, of the defendant’s released] Tex.Crim.Proc.Code Ann. art. 56.02(a)(7) (Vernon Supp.1996). Article 42.18, § 8(f)(4) and § 42.18, § 18 require that information considered by the Board when making parole decisions be kept confidential. The sections are set forth below. Article 42.18, § 8(f)(4) states: Except as necessary to comply with this section [§ 8], the board or the Texas Department of Criminal Justice may not disclose to any person the name or address of a victim or other person entitled to notice under this section unless the victim or that person approves the disclosure or the board or department is ordered to disclose the information by a court of competent jurisdiction after the court determines that there is good cause for disclosure. Tex.Crim.Proc.Code Ann. art. 42.18, § 8(f)(4) (Vemon Supp.1996). Article 42.18, § 18, substantially modified in the 1995 Legislative Session, now states: (a) Except as provided by Subsection (b), all information, including victim protest letters or other correspondence, victim impact statements, lists of inmates eligible for release on parole, and arrest records of inmates, obtained and maintained in connection with inmates of the institutional division subject to parole, release to mandatory supervision, or executive clemency, or individuals who may be on mandatory supervision or parole and under the supervision of the pardons and paroles division, or persons directly identified in any proposed plan of release for a prisoner, is confidential and privileged. (b) This section does not apply to information regarding a sex offender if the information is authorized for release under Article 6252-13c.l, Revised Statutes. (b) Statistical and general information respecting the parole and mandatory supervision program and system, including the names of paroled prisoners, prisoners released to mandatory supervision, and data recorded in connection with parole and mandatory supervision services, is not confidential or privileged and must be made available for public inspection at any reasonable time. (c) On request of the governor, a member of the board, the Criminal Justice Policy Council in performing its duties of the council under Section 413.021, Government Code, or an eligible entity requesting information for a law enforcement, prosecutorial, correctional, clemency, or treatment purpose, the department may provide to the person or entity for that purpose information made confidential and privileged by this section. (d)In this section, “eligible entity” means: (1) a government agency, including the office of a prosecuting attorney; (2) an organization with which the Texas Department of Criminal Justice contracts or an organization to which the department provides a grant; or (3) an organization to which inmates are referred for services by the Texas Department of Criminal Justice. Tex.Crim.Proc.Code Ann. art. 42.18, § 18 (as amended by Act of June 7, 1995, 74th Leg., R.S., ch. 321, § 2.011, 1995 Tex.Sess.Law Serv. 2809-10 (Vernon) (effective September 1, 1995) (emphasis added)). Besides the statutory rights set forth above, Defendants argue that victims have a state constitutional right to participate in the parole process. Defendants are correct that Article 1, § 30 of the Texas Constitution provides for the rights of crime victims; however, it does not mandate that victims have input into parole proceedings but rather that they have a right to information regarding the release of the offender. Further, article 56.02 allows a crime victim the right to be informed of and to participate in the parole process but does not state how such participation can occur. Article 56.08, amended to conform to amended article 42.18, § 8(f)(2), now also requires that a victim or his representative be notified early in the prosecution process of his right to appear before the Board. Prior to the amendment which added this additional notice requirement, article 56.08 required that the victim be provided general information on the prosecution process, be notified of certain rights, such as the ability to receive compensation under the Crime Victims Compensation Act and obtain available social services, and of the right to file a victim impact statement, but no mention was made of a right to participate directly in the parole process. Notwithstanding the perceived need for protest letters, as shown by the recent amendments to the Code of Criminal Procedure strengthening the right to make such letters, when reviewing the entire statutory scheme for parole, the function served by protest letters has been obviated by the enactment of certain statutory mandates. Upon the inmate’s admission to the institutional division, TDCJ must assemble pertinent information relating to him, including any written comments or information provided by local trial officials or victims of the offense. Tex.Crim.Proc.Code Ann. art. 42.18, § 8(e). The Board must allow victims or their representative to submit statements, and must consider these statements, as well as the information contained in victim impact statements, when deciding whether to grant parole. Tex.Crim.Proe.Code Ann. art. 42.18, § 8(f)(2). The Board is also to consider the information assembled on the prisoner required by Tex.Crim.Proc.Code Ann. art. 42.09, §§ 8(a)(1) — (10), including information on the nature and seriousness of the offense, art. 42.09, § 8(a)(3). As part of this process, certain information is now presented to the Board which it did not previously receive when making parole decisions: the requirement for victim impact statements was not in place when this suit was filed on February 26, 1985, and the requirement for information on the nature and seriousness of the offense was not in place when Plaintiff Daniel Johnson was convicted and transferred to TDCJ. Victim impact statements allow the “victim of the offense, guardian of a victim, or a close relative of a deceased victim” to record the impact of the offense on the victim and his or her family, in terms of economic, physical or psychological loss, and to provide information on how to contact the victim or other persons, if needed, during the prosecution. Tex. Crim.Proc.Code Ann. art. 56.03(a) & (b) (Vernon Supp.1996). If a victim impact statement is made, a defendant and his or her counsel must be provided a copy of the statement prior to sentencing, with reasonable time given to read and comment on said statement, and, with court approval, to challenge any factual inaccuracies in the statement. Tex.Crim.Proe.Code Ann. art. 56.03(e) (Vernon Supp.1996). When an inmate is transferred from a county facility to the TDCJ, certain documentation is transmitted with him, including a copy of the judgment; a copy of any order revoking community supervision [probation] and imposing sentence, including any amounts owed for restitution, fines and court costs and a copy of the client supervision plan, if one was prepared; a copy of the victim impact statement; a statement whether there was a change of venue in the case; a copy of the arrest record for each offense; if requested, information on the defendant’s criminal history, including a state identification number if issued; a copy of the indictment or information for each offense; a copy of a presentenee or postsentence investigation report; “a written report that states the nature and the seriousness of each offense and that states the citation to the provision or provisions of the Penal Code or other law under which the defendant was convicted”; and a checklist showing the required documents are accompanying the inmate. Tex. Crim.Proe.Code Ann. art. 42.09 §§ 8(a)(1)-(10) (as slightly amended by Act of June 7, 1995, 74th Leg., R.S., ch. 321, § 3.001, 1995 Tex.Sess.Law Serv. 2813-15 (Vernon) (effective September 1, 1995). The county also delivers to the TDCJ any revocation report, psychological or psychiatric evaluation of the defendant, any available social or psychological background information, and any additional information upon which the judge or jury based the punishment decision. Tex. Crim.Proe.Code Ann. art. 42.09, § 8(c) (Vernon Supp.1996, as slightly amended by Act of June 7, 1995, 74th Leg, R.S., ch. 321, § 3.001, 1995 Tex.Sess.Law Serv. 2813-15 (Vernon) (effective September 1, 1995)). TDCJ is not to take a defendant into custody from a county unless TDCJ’s designated officer has certified the receipt of the above-described documentation. Tex.Crim.Proc. Code Ann. art. 42.09, § 8(b) (Vernon Supp. 1996, as slightly amended by Act of June 7, 1995, 74th Leg, R.S., ch. 321, § 3.001, 1995 Tex.Sess.Law Serv. 2813-15 (Vernon) (effective September 1, 1995)). TDCJ-ID shall make the above-described documents available to the TDCJ-Pardons and Paroles Division. Tex.Crim.Proe.Code Ann. art. 42.09, § 8(d) (Vernon Supp.1996). This section requiring that documentation be sent with a prisoner upon his or her transfer to TDCJID was originally effective September 1, 1983. The Defendants assert that Texas Code of Criminal Procedure, Article 42.18, § 8 and the Texas Constitution, Article 1, § 30 require the Board to consider protest letters, regardless of their content or motivation, and that Texas Code of Criminal Procedure, Article 42.18, § 18 forbids disclosure to inmates of the contents of any protest. Separately, the statutes allowing victim protest letters to be received and considered by the Board and mandating that an inmate’s parole file be kept confidential each meet rational scrutiny; however, the interplay of the statutes, without some sort of savings provision, causes an equal protection violation. As such, the statutes allowing protest statements to be received and considered by the Board and mandating that an inmate’s parole file be kept confidential are hereby found unconstitutional and Defendants are prospectively enjoined from following or applying said statutes. The evidence clearly shows that inmates who receive protest letters of any kind are treated differently from those who do not. Obviously, an inmate’s potential for receiving protest letters is unpredictable; this fact, coupled with the unpredictability of the contents of those letters, leads to disparate results among prisoners eligible and being reviewed for parole. A system has been created which is extremely arbitrary and capricious and which violates the equal protection rights of the Plaintiff and the Plaintiff class, no matter how small the number of parole candidates are adversely affected by protest letters. Regardless of the source of protests, almost all of the letters introduced into evidence have little or nothing to do with the two statutory factors that the Board is to consider when making parole decisions, i.e., the seriousness of the offense and the likelihood of a favorable parole outcome. Tex. Crim.Proc.Code Ann. art. 42.18, § 8(f)(5) (Vernon Supp.1996). Even presuming that information provided by protest letters is new and factual, the Board has no rule guiding the exercise of its discretion when determining how to use this information when making parole decisions. Under the Board’s present system, information provided in written statements is not cheeked for accuracy nor supplied to the inmate for rebuttal. Additionally, after September 1, 1995, oral statements of the victim’s or his representative’s “views about the offense, the defendant, and the effect of the offense on the victim” can be presented to the Board without any requirement that the inmate be informed of such oral statements or that he be present to rebut the same. Such unbalanced, one-sided procedures virtually guarantee that false information will be used. Alternatively, the statutes, now silent as to whether a hearing is required, could be read as not prohibiting a hearing. Prior to the September 1, 1995 amendments, only article 42.18, § 8(f)(2) mandated that a hearing be held before protest letters could be taken and considered. All other references to “statements” in the applicable statutes contain no such condition precedent: article 42.18, § 8(f)(2) simply states in a subsequent sentence (which was not amended) that “[t]he parole panel shall consider the statements and the information provided in the victim impact statement in determining whether or not to recommend parole;” and article 42.18, § 8(e), mandating that TDCJ “secure all pertinent information relating to the prisoner, including but not limited to ... any written comments or information provided by local trial officials or victims of the offense,” is silent as to the method of handling this information to the extent that it includes protest statements. Thus, it is possible to read a requirement into the statutes, as currently written, that the Board hold a hearing, attended by the inmate, to review the protest statements before said statements can be used by the Board in its parole decision-making process. Under this interpretation, if Defendants choose not to hold parole review hearings, protest statements of any form, written or oral, from any person or entity, should not be placed in an inmate’s file nor considered when the Board makes parole decisions. However, given the Legislature’s expressed intent to delete the condition precedent that a hearing be held before protest statements can be accepted and considered, this Court refuses to make a strained reading of the affected statutes in order to find them constitutional. Likewise, the statutes requiring the identity of victims and the contents of parole files be kept confidential each separately meet the rational scrutiny test; however, when these statutes operate in combination with the statutes allowing protest statements to be received and considered without rebuttal, equal protection violations occur. Article 42.18, § 8(f)(4) requires that the identity of victims or other persons entitled to notice of the inmate’s proposed release on parole not be disclosed. Despite the fact that § 8(f)(4) contains an exception to this nondisclosure rule by having language which states that identities are not to be disclosed “[e]xcept as necessary to comply with this section [§ 8],” because the subsections of article 42.18, § 8 relating to protest letters are found to be unconstitutional, article 42.18, § 8(f)(4) must also fall. Article 42.18, § 18 causes an equal protection violation to the extent that it protects protest letters from disclosure to the affected inmate. The Board cannot use written or oral statements, as allowed by article 42.18, § 8(f)(2), when making parole decisions unless the inmate has had a meaningful opportunity to review the statements and present rebuttal arguments, such as in a parole hearing. See Sandin v. Conner, — U.S. -, -, 115 S.Ct. 2293, 2302, 132 L.Ed.2d 418 (1995). An alternate remedy to finding all of the affected statutes unconstitutional would require that the content of the protest letters be verified. However, Defendants argue strenuously against any type of administrative procedure which would require the Board to investigate and attempt to verify information contained in protest letters; thus, this form of alternative relief is not available for the Court to award. Given the Board’s practical procedure to not hold parole review hearings, at least before September 1, 1995, a prohibition on the receipt of statements [protest letters] must be ordered, because inmates are not allowed to review or rebut information in their parole file. The Court hereby determines that the statutory scheme under which the Board can accept statements, whether written or oral, and then prevent knowledge of said statements’ existence and prohibit disclosure of their contents and of the writer’s or speaker’s identity, violates the equal protection rights of inmates because the Board, as a rule, denies parole to inmates who have received protest statements. The Board’s sole function is to determine whether an inmate should be released on parole; its function is not to effectively re-try the case by accepting “testimony” which was inadmissible at trial on evidentiary grounds (or would have been inadmissible had introduction been attempted) or was excluded as part of trial strategy, or by entering findings which the actual jury did not find at the inmate’s trial. Evidentiary determinations are to be made in the trial court. The Board is not to consider unadjudicated offenses or offenses extraneous to the conviction for which the inmate is currently incarcerated. The Board must be bound by the conviction which the inmate received and must apply the statutory requirements regarding the time to be served on parole for that conviction, without adding ad hoc information which results in additional time being served. This memorandum opinion is not to be construed as a statement that this Court considers the offenses committed by parole candidates whose rights are affected by this opinion any less egregious or as not against the bounds of societal limits. However, victims, their relatives, and other concerned individuals must direct their protests to the legislative branch of government — if the range of punishment for a particular crime or the amount of time an offender must serve incarcerated for the commission of that crime is believed to be too lenient, the protests must go to elected government officials. Protest statements cannot be used to make an “end-run” around disliked statutory mandates by causing an inmate to serve a greater portion of his sentence (although he is otherwise eligible for parole under statutory calculations) through the use of secret and unverified protest statements. Until the laws governing the use of protest statements in parole decisions meet constitutional requirements (and no longer cause equal protection violations), the Board shall adopt a rule which states that protest statements, whether in written or oral form, shall not be accepted or considered by the Board for any purpose when making parole decisions. Further, said rule shall state that such protest statements shall not be placed in the inmate’s file. This rule shall apply prospectively to all inmates considered for parole after the date of the original opinion filed November 1, 1995. IV. CONSIDERATION OF FURLOUGHS AS A PAROLE FACTOR A. How the System Works A furlough is a temporary release from the TDCJ-ID for certain reasons, such as to obtain medical diagnosis or treatment, to obtain treatment and supervision at a Texas Department of Mental Health and Mental Retardation facility, to attend a funeral, or to visit a critically ill relative. The statute allowing for furloughs was substantially amended, effective September 1, 1995. The amendments change the name of “furlough” to “emergency absence,” decrease the occasions for which furloughs are granted, for example, furloughs are now granted only for the above-listed events and TDCJ-ID’s discretion to grant a furlough for an appropriate reason was deleted, and require that the inmate be under physical guard while absent. Tex.Gov’t Code Ann. § 501.006 (as amended by Act of June 7, 1995, 74th Leg., R.S., ch. 321, § 1.074, 1995 Tex.Sess.Law Serv. 2792-93 (Vernon) (effective September 1, 1995)). Now, TDCJ-ID is to adopt policies [formerly rules] for the administration of emergency absences under escort. Id. Under the rules which existed before September 1, 1995, some inmates are barred from obtaining furloughs during the period of their confinement because of the nature of their offense or other factors. All inmates approved for furlough must arrange for a “placement” within the boundaries of the State of Texas. Given the small chance that an inmate will be approved for an emergency absence, and because he must make the trip under guard, the value of an inmate’s furlough history, at least after September 1, 1995, has been significantly decreased as a factor indicating a parole candidate’s likelihood of success on parole. To a large extent, the Plaintiffs claim that out-of-state inmates’ equal protection rights are being violated because said inmates cannot qualify for a furlough (because they cannot establish an in-state placement), yet their furlough history is used as a parole factor, has been mooted by the significant statutory amendment decreasing the opportunity for furloughs for all inmates. However, it is possible that the Board will consider an inmate’s completion of an “emergency absence” as a factor in the parole decision. It is possible that inmates will only be granted an emergency absence if travel is limited to locations in Texas, thus requiring an in-state placement. As such, the following analysis, included in the original opinion dated November 1, 1995, is included with only slight revision. B.Plaintiffs Argument Plaintiff urges this claim on behalf of all out-of-state inmates incarcerated in Texas (including Plaintiff Daniel Johnson). Plaintiff argues that the Defendants invidiously discriminate against inmates who are not Texas residents by considering the completion of a furlough as a positive factor in the parole decision. Because, as a practical matter, furloughs are available only to Texas residents, Defendants follow a procedure which provides state residents with an unfair advantage in parole considerations. Thus, Defendants violate rights guaranteed by the equal protection clause and the privileges and immunities clause of the Constitution, as well as 42 U.S.C. § 1983. Plaintiffs request that the Board adopt by rule a policy that completion of a furlough, including an application for and denial of a furlough, is irrelevant to the parole decision. They request that the Board have a policy under which only unsuccessful furloughs are considered. C. Defendants’ Argument Defendants argue that the Board has no role in the decision to grant furloughs because that decision is made solely by TDCJID. Defendants argue that the challenged action of granting furloughs does not classify or distinguish between two or more persons or groups, i.e., the action cannot be said to violate equal protection. Defendants argue that the TDCJ-ID uses the same criteria for furlough eligibility, thus, similarly situated persons (inmates who are incarcerated in Texas) are treated alike and no distinctions are made between in-state and out-of-state furlough candidates. The fact that the application of the same furlough criteria produces differing results between in-state and out-of-state inmates (due to a lack of in-state placements for out-of-state inmates) does not cause an equal protection violation. Additionally, Defendants argue that the inability to obtain a furlough is not considered against an inmate in the parole evaluation process. They assert that testimony shows an inmate’s furlough record (whether granted or denied) is insignificant; only a negative result from a furlough (such as a new offense having been committed while on furlough or the inmate’s failure to return) is considered against an inmate for parole evaluation purposes. Defendants assert that the Plaintiff failed to present witness testimony of any inmate denied a furlough due to his non-residency, and that Plaintiff Daniel Johnson, being a Texas Code of Criminal Procedure art. 42.12, § 3g(a)(l)(E) offender, does not qualify for furlough consideration, making him ineligible as a class representative to assert this claim for the class. Additionally, they argue that there is no protected liberty interest in a furlough. D. Analysis It is uncontroverted that the Board has no role in the decision to grant or deny furloughs, such decisions are solely made by TDCJ-ID. Further, only a very small percentage of inmates ever obtain a furlough. The Board has no policy concerning the consideration or weight to be given to the completion of furloughs in the parole decision process. Successful completion of a furlough is a positive factor in the parole decision. Numerous inmates testified that they were told by Parole Board employees that obtaining a furlough would