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Advanced VTC Program Issues
A UNIQUE EXERIENCE IN LEARNING LAW
Featured:
"Promising Practices" & Cultural Disparities
Prosecutors: The Lack of Authority of the Attorney Representing the State
Prosecutorial Discretion Is Not a License to Violate Legislatively Expressed Public Policy
Contravention of Public Policies
Criminogencic Risk & Needs Assessment
Why a “Bad Paper Discharge” Has No Role in VTC Eligibility
"Promising Practices" & Cultural Disparities
During a Texas Association of Specialty Courts (TASC) podcast ("PodTASC") on March 16, 2024, Episode #6, Things You Should Know When You Create a Texas Specialty Court, TASC Board President, Erin Morgan, and Executive Director, Amber Geogory, acknowledged the adoption status of best practices by the Texas Judicial Council and commented that the remaining specialty courts for which there are no adopted best practices, veterans treatment court included, apply "accepted promising practices." PodTASC, Episode #6, supra., at 40:00 - 41:45. (Emphasis added).
The phrase "promising practices" appears in the Second Edition of the Adult Treatment Court Best Practice Standards, and it is used in the context of “cultural equity” and treatment court team members receiving “training on evidence-based and
promising practices for identifying and rectifying cultural disparities.”[1][2]
Significantly, the Second Edition goes on to warn that the “[t]erminology relating to cultural equity and inclusion is often employed vaguely or
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1. The Adult Treatment Court Best Practice Standards, 2nd ed. (2023), p. 32 (emphasis added).
2. Promising practices have been defined as: “[A] model, program or activity with evidence of effectiveness in small-scale interventions or with the potential to generate actionable data that could assist in taking the practice to scale and generalizing the results to diverse populations and settings.” Health Center Resource Clearinghouse; https://www.healthcenterinfo.org/promising-practices/?TopicSubtopic=Governance#visual-result. Accessed 08/18/2024.
imprecisely, thus causing confusion among practitioners and policy makers about how programs should monitor and respond to unfair cultural disparities.”[3]
In contrast, the term “best practices” is commonly defined as “a procedure that has been shown by research and experience to produce optimal results and that is established or proposed as a standard suitable for widespread adoption.”[4]
Texas law mandates "best practices," not "accepted promising practices."
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3. Second Edition, supra., at 20 and 21 (emphasis added).
4. Source: “Best practice.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/best%20practice. Accessed 08/18/2024.
Cultural Disparities In the Context of VTC Programs
I. THRESHOLD MATTER
III. VETERANS WITH AN UNFAVORABLE MILITARY DISCHARGE ARE UNDERSERVED
II. THE MILITIARY/VETERAN CULTURE
As a threshold matter, All Rise's terminology and concepts related to cultural equity and disparities are NOT limited to federal and/or state-protected suspect classifications based on race, religion, national origin, alienage, sexual orientation, or gender identity. The Adult Treatment Court Best Practice Standards, 2nd ed. (2023), pp. 32, 35, and 39.
II. THE MILITIARY/VETERAN CULTURE
III. VETERANS WITH AN UNFAVORABLE MILITARY DISCHARGE ARE UNDERSERVED
II. THE MILITIARY/VETERAN CULTURE
A justice-involved person's self or other identification as a member of the military or a veteran amount to a sociocultural identity with the military/veteran culture.*
III. VETERANS WITH AN UNFAVORABLE MILITARY DISCHARGE ARE UNDERSERVED
III. VETERANS WITH AN UNFAVORABLE MILITARY DISCHARGE ARE UNDERSERVED
III. VETERANS WITH AN UNFAVORABLE MILITARY DISCHARGE ARE UNDERSERVED
Traditionally, veterans with an unfavorable military discharge have lesser access to VA healthcare benefits. Likewise, justice-involved veterans with an unfavorable discharge experience lesser access to veteran treatment court programs.
IV. JUSTICE-INVOLVED VETERANS WITH CERTAIN OFFENSES ARE UNDERSERVED
IV. JUSTICE-INVOLVED VETERANS WITH CERTAIN OFFENSES ARE UNDERSERVED
III. VETERANS WITH AN UNFAVORABLE MILITARY DISCHARGE ARE UNDERSERVED
Justice-involved veterans with certain offenses experience lesser access to veteran treatment court programs.
V. CULTURAL DISPARITIES
IV. JUSTICE-INVOLVED VETERANS WITH CERTAIN OFFENSES ARE UNDERSERVED
V. CULTURAL DISPARITIES
Lesser access of justice-involved veterans to VTC programs based on an unfavorable military discharge and/or having a certain offense, which is not explained by culturally unrelated or neutral factors, amounts to cultural disparities.
Note:
IV. JUSTICE-INVOLVED VETERANS WITH CERTAIN OFFENSES ARE UNDERSERVED
V. CULTURAL DISPARITIES
* For a comprehensive reading of the military/veteran culture, see, Ross PT, et al., A Greater Mission: Understanding Military Culture as a Tool for Serving Those Who Have Served. J Grad Med Educ. 2015 Dec; 7(4):519-22; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4675404/. Accessed 08/20/2024. And, Olenick M, et al., US Veterans and Their Unique Issues: Enhancing Health Care Professional Awareness, Advances in Medical Education and Practice 2015:6 635–639; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4671760/. Accessed 08/20/2024
The Lack of Authority of the Attorney Representing the State
SENATE BILL NO. 1940 & LEGISLATIVE INTENT
The Senate committee analysis of S.B. 1940 states that the bill "does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution." I.e., the attorney representing the state or prosecutors. In other words, S.B. 1940 does not provide specific instructions or powers for a state officer, department, agency, or institution to create new rules or regulations.
Restated, S.B. 1940 does not explicitly authorize any additional rulemaking beyond what is already established by existing laws or regulations. Essentially, it maintains the status quo without introducing new regulatory powers. In short, S.B. 1940 does not empower the attorney representing the state to make additional rules beyond what is already in place in the language of the bill itself.
Threshold Matters Related to the "Status Quo"
I. The Authority of the Legislature to Delegate Its Powers
III. Acts of the Legislature, Abuse of Discretion, and Absurd Results
I. The Authority of the Legislature to Delegate Its Powers
It is well-established that the Legislature has the authority to delegate its powers to the attorney representing the state to "prescribe details, [...] such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act."[1] However, to be valid, "such delegation must establish reasonable standards to guide the entity to which the powers are delegated."[2]
Section 124.002(a) sets forth medicolegal standards based on a justice-involved veteran (1) suffering from a mental health illness or disorder, (2) that "affected the defendant's criminal conduct at issue in the case," and (3) state penological standards based on public safety and rehabilitation. Tex. Gov't Code, sec. 124.002(a)(1)(A)-(B) & (2).
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[1]. Ex parte Granviel, 561 S.W.2d 503, 514 (Tex. Cr. App.1978); FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 879 (Tex. 2000)("A delegation of legislative power occur when an entity is given a public duty and the discretion to set public policy, promulgate rules to achieve that policy, or ascertaining conditions upon which existing law will apply.").
[2]. Ex parte Smalley, 156 S.W.3d 608, 610 (Tex. App. - Dallas 2004)(citing R.R. Comm'n of Tex. v Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex. 1992)); Granviel, supra., 561 S.W.2d at 514 (stating that delegation is lawful "where standards formulated for guidance and limited discretion, though general, are capable of reasonable application.").
II. "Consent" Does Not Mean "Arbitrariness"
III. Acts of the Legislature, Abuse of Discretion, and Absurd Results
I. The Authority of the Legislature to Delegate Its Powers
There is no indication in the plain meaning of the term "consent" nor under Section 124.002 or any other provision under Chapter 124 of the Government Code, that the Legislature intended to restrict the statute's application only to those classes or types of offenses deemed eligible, albeit arbitrarily, by the attorney representing the state. It is well-established, however, in the context of activities closely associated with the "decision whether or not to prosecute, or what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor's] discretion."[3] Moreover, "Legislatures know that prosecutors have broad enforcement discretion."[4] By the same token, it cannot be seriously argued that the Legislature is unaware that overly broad discretion is a recipe of abuse.[5]
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[3]. See, Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668 (1978), accord, Neal v. State, 150 S.W.3d 169, 173 (T. ex. Cr. App. 2004).
[4]. See, Darryl K. Brown, Factually Baseless Enforcement of Criminal Law Is Okay, Full Enforcement Is Not, 104 Marq. L. Rev. 511, 516 (2020).
[5]. Bordenkircher, supra, 434 U.S. at 365, 98 S.Ct. at 669 ("There is no doubt that the breath of discretion that our country's legal system vests in prosecuting attorneys come with the potential for both individual and institutional abuse.").
III. Acts of the Legislature, Abuse of Discretion, and Absurd Results
III. Acts of the Legislature, Abuse of Discretion, and Absurd Results
III. Acts of the Legislature, Abuse of Discretion, and Absurd Results
In enacting a statute, it is presumed that the Legislature intended "a just and reasonable result" and "a result feasible of execution."[6] To interpret the consent authority of the attorney representing the state under Section 124.002(a) as a grant of unfettered discretion ignores an important statutory mandate that unequivocally expresses that it "shall be the primary duty" of the attorney representing the state "not to convict, but to see that justice is done."[7]
In the context of eligibility to a VTC program, an abuse of discretion occurs when a judicial officer acts on "any kind of blanket policy, rules, criteria, etc."[8] In addition, it is assumed that the Legislature "would not act in an absurd way,"[9] nor "unreasonably or arbitrarily."[10] To interpret the term "consent," as used in Section 124.002(a), to encompass authority of the attorney representing the state to define eligible offenses for participation in a VTC program would confound this basic tenet of legislative intent.
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[6]. Tex. Government Code, sec. 311.021(3)-(4).
[7]. Tex. Code Crim Proc, art. 2.01.
[8]. Simeone v. State, 276 So.3d 797, 805 (Fla 4d 2019). See also, Maderi v. State, 336 So.3d 854, 856 (Fla. 2d 2022)(where trial court's acceptance of state attorney's blanket policy to exclude person from VTC program based on offenses not expressly excluded by statute governing eligibility constitutes an "abdication" of the judge's discretion to determine eligibility).
[9]. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Cr. App. 1991).
[10]. Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968).
Prosecutorial Discretion Is Not a License to Violate Legislatively Expressed Public Policy
In 2022, the House Committee on Criminal Justice Reform reviewed the use of prosecutorial discretion, particularly regarding local policies not to prosecute certain crimes.[1] The committee highlighted that while discretion reflects community goals, prosecutors must uphold state laws, emphasizing accountability for those who do not.[2]
The Texas Legislature establishes public policy, illustrated by S.B. 1940. However, discretion among district attorneys can create inconsistent eligibility for VTC programs across counties, raising concerns that political motivations may impact access for justice-involved veterans. VTC programs aim to support veterans with mental health issues from military service, and any internal policies contradicting this mission go against public policy and disrespect their service.
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[1] Texas House Committee on Criminal Justice Reform, Interim Report to the 88th Texas Legislature, pp. 3, 10 (January 2023).
[2] Id., at 10.
Contravention of Public Policies
I. Non-Uniformity of Law
II. Political Influence/Motivation
II. Political Influence/Motivation
In 2003, the Texas Legislature mandated evidence-based best practices in substance abuse treatment.[1] In 2013, S.B. 462 expanded this requirement to Specialty Court programs,[2] including the VTC Program.[3] While S.B. 462 supporters argued for a uniform structure, opponents claimed it undermined local control.[4]
Unbridled authority to determine eligible offenses under Section 124.002(a) effectively allows the application of the statute to vary from county to county where VTC programs are established. On its face, such an application violates Article 3, sec. 56, of the Texas Constitution, which is meant, inter alia, to "secure uniformity of law throughout the State as far as possible."[5]
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[1]. Acts 2003, 78th Leg., R.S., Ch. 1122 (H.B. 2668), § 2, Eff. Sept. 1, 2003 (now codified at Section 509.015, Tex. Gov’t Code)(expressly requiring "best practices" for substance abuse treatment conditions of community supervision).
[2] Acts 2013, 83rd Leg, R.S., Ch. 747 (S.B. 462), § 1.01, Eff. Sept. 1, 2013 (codified at Section 121.002(d)(1), Tex. Gov’t Code). See also, Tex. Gov’t Code § 71.037 (same).
[3] Tex. Gov’t Code § 772.0061(a)(2)(D).
[4] Tex. House Committee on Judiciary and Civil Jurisprudence, House Research Organization (HRO) Bill Analysis, S.B. 462 (May 15, 2013).
[5]. Miller v. El Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941); accord, Tex. Atty. Gen. Op. JM-880, at 2 (1996)(for the proposition that application of a statute that has "the effect of allowing [the purpose of the law] to vary from county to county [...] would violate both 'due process' and 'equal protection' constitutional rights.").
II. Political Influence/Motivation
II. Political Influence/Motivation
II. Political Influence/Motivation
The attorney representing the state could theoretically[6] deny eligibility to driving while intoxicated (DWI) offenses based on a policy politically influenced/motivated by the Mothers Against Drunk Drivers (MADD) organization,[7] or domestic violence offense based on a policy influenced/motivated by the Texas Council on Family Violence,[8] instead of effectuating the true legislative purpose of the VTC statute.
Given these public policy concerns, it is absurd to believe that the Legislature intended eligibility to the VTC program to be based upon offense criteria that the attorney representing the state, in his discretion, might choose ad hoc to consent to. "Put differently, this means that mandatory or overly aggressive prosecution policies contravene legislative intent."[9]
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[6]. See, Byrd v. State, 499 S.W.3d 443, 450 (Tex. Cr. App. 2016)(questioning the absurdity of a statute's application to an "extremely unlikely scenario, [...] nevertheless a theoretical possibility.").
[7]. MADD provides victim services that include "providing advocacy in the criminal and civil justice systems." Simpson v. State, 447 S.W.3d 264, 267 n.19 (Tex. Cr. App. 20140. They are a "political interest group" credited with having an "extremely effective" advocacy. See, Michelle M. Mello, et al., Empirical Health Law Scholarship; The State of the Field, 96 Geo. L. J. 649, 672 (2008).
[8]. Founded in 1978, the Texas Council on Family Violence (TCFV) is a powerful nonprofit coalition aimed at addressing domestic violence in Texas through lobbying. Source: Texas State Historical Association, Texas Council on Family Violence; website: https://www.tshaonline.org/ (accessed 10/20/2024).
[9]. See, Factually Baseless Enforcement, supra., at 516.
Criminogenic Risk & Needs Assessment
I.
III.
II.
In the context of drug courts,[1] of which veterans treatment court is a "hybrid,"[2][3] drug addiction is "criminogenic and, therefore treating the addiction instead of incarcerating the defendant is a more effective and long-lasting response to drug-related criminal behavior."[4][5]
With respect to veterans, "the uniqueness of [their] needs is said to derive from the impact of military service, in particular the traumatic and potentially criminogenic impact of combat"[6]
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[1]. The Texas drug court program was established by the Legislature in 2001. Acts 2001, 77th Leg., R.S., Ch. 1510 (H.B. 1287), Sec, 1, Eff. Sept. 1, 2001 (now codified at Chapter 123, Government Code).
[2]. Judge Robert T. Russell, Veterans Treatment Court: A Proactive Approach, 35 New Eng. J. on Crim. & Civ. Confinement 357, 365 (2009).
[3]. See, S.B. 462, Senate Committee Report, Bill Analysis ("[T]he drug court model has often been replicated in order to divert nonviolent offenders suffering from mental health and/or substance abuse issues from the criminal justice system intensive treatment programs.").
[4]. Erin R. Collins, Status Courts, 105 Geo. L.J. 1481, 1488 (2017)(emphasis and underscore added).
[5]. For a comprehensive discussion on criminogenic assessment, see, Edward J. Latessa, et al., Community Supervision and Violent Offenders: What the Research Tells Us and How to Improve Outcomes, 103 Marq. L. Rev. 911 (2019).
[6]. Status Courts, supra. (emphasis and underscore added).
II.
III.
II.
The Legislature expressed public policy when it enacted S.B. 1940 and authorized a VTC program for justice-involved veterans with any misdemeanor or felony offense.[7] In addition, since 2003, legislatively expressed public policy has increasingly expanded the application of evidence-based best practices across the state's criminal justice system,[8] especially in the area of criminogenic risks and needs assessment.[9]
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[7]. See, Fairfield Insurance Company v. Stephens Martin Paving, LP, 246 S.W.3d 653, 665 (Tex. 2008)(citations omitted)("The Legislature determines public policy through the statutes it passes.").
[8]. See, Juliene James, et al., A View from the States: Evidenced-Based Public Safety Legislation, 102 J. Crim. L. & Criminology 821 (2012)(discussing the adoption of evidence-based practices by several states, including Texas).
[9]. See, James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1554 (1981)("Because prosecutors make decisions that can determine conviction and punishment, it is fair to test their process of decision against the standards imposed on other officials who make similarly critical judgments.").
III.
III.
III.
Significantly, criminogenic risk and needs assessment is utilized throughout Texas criminal justice system decision-making, from sex offender treatment,[10] substance abuse treatment,[11] reentry and community supervision,[12] and juvenile justice.[13]
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[10]. In 2006, the Council on Sex Offender Treatment adopted standards and practice requiring treatment programs to "target specific criminogenic needs to reduce re-offense rates." 22 Texas Administrative Code (TAC), Rule 810.62.
[11]. In 2011, the Community Justice Assistance Division adopted amendments to 37 TAC Rule 163.40, related to substance abuse treatment definitions and criteria, that incorporated "criminogenic risks and needs."
[12]. In 2013, the Texas Department of Criminal Justice was mandated to "adopt a standardized instrument to assess, based on criminogenic factors, the risks and need of each offender in the adult criminal justice system" and to make the instrument available to community supervision departments." Tex. Government Code, sec. 501.0921(a)-(b).
[13]. In 2017, the Texas Juvenile Justice Department adopted criminogenic risks and needs assessment. See, 37 TAC Rules 341.00(7), .502(c), .504(1)(A)-(B), .506(c)(1)-(2).
Why a “Bad Paper Discharge” Has No Role in VTC Eligibility
I. Introduction
II. Understanding the Impact of Bad Paper Discharges
II. The Legal Standard for VTC Eligibility in Texas
Veterans Treatment Courts (VTCs) serve as a lifeline for veterans entangled in the criminal justice system, offering them a second chance to rebuild their lives. However, many VTC programs in Texas restrict participation to veterans with honorable discharges. This exclusionary practice disregards the nuanced causes behind so-called “bad paper” discharges[1]and conflicts with the medicolegal standard set by Texas law.
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[1]“Bad paper discharge” refers to a not fully “Honorable” discharge.
II. The Legal Standard for VTC Eligibility in Texas
II. Understanding the Impact of Bad Paper Discharges
II. The Legal Standard for VTC Eligibility in Texas
Under the Texas Government Code § 124.002, veterans can participate in a VTC program if they suffer from conditions like traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), or military sexual trauma (MST) that directly contributed to their criminal conduct. Nowhere in the statute is eligibility tied to the type of discharge a veteran received.
Yet, despite this medicolegal standard, a 2024 study by Veterans Access to Justice shows that many Texas VTC programs still only allow veterans with honorable discharges to participate, limiting access for those with “bad paper” discharges.[2]
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[2]Veterans Access To Justice, Study Of Best Practice Standards & Other Matters: Military Discharge. Website: https://veteransaccess2justice.org/best-practice-standards(accessed 10/24/2024).
II. Understanding the Impact of Bad Paper Discharges
II. Understanding the Impact of Bad Paper Discharges
II. Understanding the Impact of Bad Paper Discharges
A bad paper discharge often stems from misconduct, but research reveals that underlying service-related mental health conditions frequently contribute to such behavior.
The Government Accountability Office (GAO) reported that between 2011 and 2015, 62% of service members discharged for misconduct were diagnosed with PTSD, TBI, or other mental disorders within two years of their separation.[3] Similarly, the “Kurta Memo” (2017), issued by the Department of Defense (DoD), highlighted that misconduct could itself be a symptom of underlying trauma, urging agencies to consider these diagnoses when reviewing discharge statuses.[4]
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[3] Neil Krishan. Psychiatric Disorders, Military Misconduct, and Discharge Status for U.S. Veterans. J. Am. Acad. Psychiatry Law 50(1)(2022), at 3.
[4] Id., at 4.
Analysis of VTC Program Issues
The issue of prosecutorial discretion in Veterans Treatment Court (VTC) programs has significant implications for justice-involved veterans seeking rehabilitation over incarceration. While Texas law under Government Code § 124.002(a) grants state attorneys the authority to consent to a veteran’s participation in a VTC, it also raises critical questions about fairness, uniformity, and legislative intent. Too often, the denial of consent is accepted at face value, potentially excluding eligible veterans based on arbitrary or politically motivated policies. Such exclusions contradict the broad eligibility standards set forth by the legislature and undermine public policy aimed at addressing the unique challenges faced by veterans with service-related trauma. This analysis explores why prosecutorial denial of consent should not be readily accepted as legitimate and emphasizes the importance of safeguarding veterans’ rights to access life-changing rehabilitation programs.
1. Legislative Intent for Broad Eligibility
2. Prosecutorial Discretion and Potential for Abuse
2. Prosecutorial Discretion and Potential for Abuse
Textual Analysis: The VTC Program Issues (the "Issue") emphasize that Texas Government Code § 124.002(a) allows veterans charged with "any" misdemeanor or felony offense to participate in a VTC program, provided two conditions are met:
- The state’s attorney consents.
- The court finds the veteran meets certain conditions.
Absence of Exceptions: The legislature did not explicitly create any exclusions for certain offenses, which suggests a broad eligibility standard.
2. Prosecutorial Discretion and Potential for Abuse
2. Prosecutorial Discretion and Potential for Abuse
2. Prosecutorial Discretion and Potential for Abuse
Consent Requirement: The Issue discusses the state attorney’s broad discretion to approve or deny participation but notes concerns over potential conflicts of interest and abuse of discretion.
Legislative Efforts: Past bills (e.g., H.B. 2864 and H.B. 3882) sought to address the unfettered discretion issue but failed to pass.
Policy Concerns: There are concerns that prosecutorial discretion leads to non-uniform application across Texas counties, violating the Texas Constitution's mandate for uniform laws.
3. Mental Health and Service-Related Trauma
2. Prosecutorial Discretion and Potential for Abuse
3. Mental Health and Service-Related Trauma
The eligibility framework considers whether:
- The veteran suffers from a military-related condition (e.g., PTSD, TBI).
- The condition affected the veteran’s criminal conduct.
- Alternatively, participation is deemed likely to ensure public safety through rehabilitation.
- This highlights a public policy shift favoring treatment and rehabilitation over punishment.
4. Discharge Status Controversy
4. Discharge Status Controversy
3. Mental Health and Service-Related Trauma
Bad Paper Discharges: The Issue argues that excluding veterans with bad paper discharges (i.e., discharges that are not fully honorable) conflicts with the statute’s intent.
Impact of Trauma: It references studies and Department of Defense guidance showing that misconduct often stems from underlying service-related trauma.
5. Evidence-Based Practices
4. Discharge Status Controversy
5. Evidence-Based Practices
Texas law increasingly emphasizes evidence-based practices across criminal justice programs, including those addressing criminogenic risks and needs. VTCs, as hybrids of drug courts, are designed to follow these best practices.
Conclusion
4. Discharge Status Controversy
5. Evidence-Based Practices
The Issue presents a case for ensuring that VTC eligibility is broad, uniform, and focused on rehabilitation, without arbitrary exclusions. It suggests that prosecutorial discretion, political motivations, and local policies may be undermining legislative intent and veterans’ access to critical services.