(Cite as: 383 F.Supp. 53)

Morales v. Turman,
D.C.Tex. 1974.
                                       
          United States District Court, E.D. Texas, Sherman Division.
                            Alicia MORALES, et al.,
                                      v.
James A. TURMAN, Individually and in his official capacity as Executive       
Director of the Texas Youth Council, et al. v. UNITED STATES of America,      
  Amicus Curiae, American Orthopsychiatric Association et al., Amici Curiae.
                               Civ. A. No. 1948.
                                       
                                Aug. 30, 1974.

Civil action concerning both the adjudicatory and postadjudicatory stages of  
the juvenile justice system in the state of Texas.  The District Court,       
Justice, J., held, inter alia, that numerous criteria would have to be        
followed by the state in order to afford proper treatment to incarcerated     
juveniles, and also held that two facilities for boys maintained by the state 
would have to be closed on ground that the confinement in such facilities     
constituted cruel and unusual punishment.

Order accordingly.

See also, D.C., 326 F.Supp. 677;59 F.R.D. 157;364 F.Supp. 166.

Peter B. Sandmann, San Francisco, Cal., Steven L. Bercu, Richardson, Tex.,    
William P. Hoffman, Jr., Washington, D.C., for plaintiffs.
John L. Hill, Atty. Gen. of Texas, Tex., Larry York, Joe B. Dibrell, Jr., Max 
P. Flusche, Jr., and Thomas W. Choate, Asst. Attys. Gen., Austin, Tex., Robert
F. Salter, Staff Atty., Gatesville, for defendants.
Louis M. Thrasher, Michael Lottman, William Malcolm Logan, Jr., Daniel E.     
Maeso and Michelle White, Attys., Civil Rights Div., Dept. of Justice, for    
amicus curiae, United States of America, Larry A. Schwartz, Patricia M. Wald, 
for amici curiae, American Orthropsychiatric Association, et al.

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.'

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).

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^FN1  and involuntarily committed to the custody of the Texas Youth 
Council (hereinafter called the TYC).^FN2   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.
^FN3 

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).  *59 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).^FN4 

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,      
forth-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.  
                                                      
                                                      
                                  12.4 mos.  29 mos.  
                        Gainesvil                     
                        le                            
                                                      
                        Brownwood 12.0 mos.  21 mos.  
                                                      
                                                      
                                  10.0 mos.  26 mos.  
                        Gatesvill                     
                        e                             
                                                      
                        Mountain  18.8 mos.  30 mos.  
                        View                          
                                                      

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.^FN5 

II.  ELEVENTH AMENDMENT

The defendants' contention that this civil action is barred 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 *60 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:

[1] The injunction issued in Exparte 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.
<section> 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, *61    
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. <section> 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 *62 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 communicated*63  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.

[2] In summary, the only enactments of state-wide application that the        
defendants suggest are challenged herein *64 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. <section>  
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*65  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 Gainesville 
State School for Girls, Bercu and Hoffman returned to Gainsville 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. 
/6/ 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.

*66 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.  ^  
FN7 

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         
attorneyclient 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;^FN8  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.^FN9   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 *67 of law accompanying that order, it was    
stated that:

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.

[3] 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 *68 TYC 'policy' must necessarily await a better record.

[4][5] 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.^FN10   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.

[6][7] 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.^FN11 

On December 27, 1972, this court entered an agreed order, which is also shown 
in a footnote.^FN12 

*70 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).

[8] 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*71  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.  ^   
FN13  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 *72 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.

[9] 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 case 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 *73 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 *74 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 instructions.*75   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 Gatesville 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.^FN14   In another incident,*76  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 extra duty to the complainant or his transfer to Mountain View for an      
eighteen-month stay.

Expert witnesses testified that it is very difficult, even with a             
conscientious staff, to detect brutality in a large institution. Although the 
most reliable source for such charges is inmate complaints, many inmates who  
first report brutality will often retract their reports.  New or emotionally  
disturbed students, not knowledgeable in the ways of the institution,         
sometimes will 'blurt out' instances of brutality.  Dr. Jerome Miller, a      
particularly well-qualified expert, contended that such allegations should be 
investigated, even when the student later disclaims the charge.  Dr. Miller   
explained that 'most allegations, not all but certainly most, and virtually   
all of the serious allegations that come to us from young people, ultimately  
turn out to have some sound basis in fact and in reality.' According to the   
expert witnesses, in a large institution such as Gatesville, which banishes   
the troublesome elements of its population to another institution such as     
Mountain View, repressive measures and corporal punishment are almost         
inevitable.  Expert witnesses further concluded that knowledge of and         
opposition to brutality is apt to rise to the surface more quickly in small,  
community-based programs.

3.  Girls' Institutions

Although brutality in the girls' institutions did not appear to be as         
widespread as that in the boys' at the time this court entered its emergency  
order, *77 some instances of physical abuse were nevertheless present.  Some  
incidents occurred in school, e.g., one Gainesville girl was slapped hard by  
her teacher after she threw her book on the desk; another was struck by one of
the school principals.  Some of the physical abuse was administered by        
houseparents, referred to sometimes as 'papa' or 'mama.'  A Crockett girl     
observed 'Papa' Watson grab a girl by her hair and throw her into a STC cell. 
Another girl was similarly assaulted by 'Papa' Watson when she did not sit    
down quickly; on four occasions, this same girl was injured when struck with  
an eighteen-inch key chain by 'Mama' Watson.

4.  Conclusions

Schools under the jurisdiction of the TYC, particularly Mountain View and     
Gatesville, have been the scenes of widespread physical and psychological     
brutality.  In the emergency interim relief order, several practices found to 
be in violation of the eighth amendment's proscription of cruel and unusual   
punishment were enjoined on the grounds that such practices were so severe as 
to degrade human dignity; were inflicted in a wholly arbitrary fashion; were  
so severe as to be unacceptable to contemporary society; and finally, were not
justified as serving any necessary purpose.  See Furman v. Georgia, 408 U.S.  
238, 257-306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J.); see also    
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

Practices found by this court to violate the eighth amendment were: the       
widespread practice of beating, slapping, kicking, and otherwise physically   
abusing juveniles in the absence of any exigent circumstances, see Ingraham v.
Wright, 498 F.2d 248 (5th Cir. July 29, 1974); the use of tear gas and other  
chemical crowd-control devices in situations not posing an imminent threat to 
human life or an imminent and substantial threat to property; the placing of  
juveniles in solitary confinement or other secured facilities, in the absence 
of any legislative or administrative limitation on the duration and intensity 
of the confinement and subject only to the unfettered discretion of           
correctional officers; the requirement that inmates maintain silence during   
periods of the day merely for the purpose of punishment; and the performance  
of repetitive, nonfunctional, degrading and unnecessary tasks.  Included as   
such tasks (the so-called 'make work') were: requiring a juvenile to pull     
grass without bending his knees on a large tract of ground not intended for   
cultivation or any other purpose; forcing him to move dirt with a shovel from 
one place on the ground to another and then back again many times; and making 
him buff a small area of the floor for a period of time exceeding that in     
which any reasonable person would conclude that the floor was sufficiently    
buffed.

In addition to these practices, which obviously constitute some form of       
affirmative action on the part of the defendants, there are also certain      
abuses that arise because of a defendant's failure to act.  Confinement under 
circumstances giving rise to a high probability of physical injury to inmates,
whether because of insufficient custodial staff or otherwise, may constitute  
cruel and unusual punishment.  E.g., New York State Association for Retarded  
Children v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973).  Two practices fall  
in this category of eighth amendment violations. The first is the practice of 
housing up to forty boys in an open dormitory, with the only correctional     
officer on duty locked in a 'cage' and prevented from assisting boys in an    
emergency.  This 'cageman' is confined to a small area, elevated above the    
dormitory and separated from the two areas of the dormitory by wire mesh.  He 
must call by telephone to other correctional officers outside the dormitory   
for assistance in times of stress. The second such practice is the failure to 
administer proper psychological testing or other screening procedures to      
eliminate potential staff members unqualified to treat juvenile *78 offenders.
With respect to these two deficiencies, the National Advisory Commission on   
Criminal Justice Standards and Goals, Task Force on Corrections recommends the
following:

Correctional authorities should:

1.  Evaluate their staff periodically to identify persons who may constitute a
threat to offenders and where such individuals are identified, reassign or    
discharge them.

2.  Develop institution classification procedures that will identify          
violence-prone offenders and where such offenders are identified, insure      
greater supervision.

3.  Implement supervision procedures and other techniques that will provide a 
reasonable measure of safety for offenders from the attacks of other          
offenders.  Technological devices such as closed circuit television should not
be exclusively relied upon for such purposes.

Corrections Task Force Standard 2.4, Page 31.

In addition to certain practices found unconstitutional under the eighth      
amendment, the emergency interim relief order held that the racially          
segregated dormitories at Mountain View were unconstitutional, Brown v. Board 
of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Washington v.  
Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff'd 390 U.S. 333, 88 S.Ct. 994, 19     
L.Ed.2d 1212 (1968), and that the segregation of some juveniles from the      
general population on the basis of suspected homosexuality, when performed by 
correctional officers untrained in psychology or any other field that would   
qualify them for such task, was unconstitutional as a violation of the        
juvenile's right to treatment.

All such practices found constitutionally deficient in the emergency interim  
relief order, except those relating to the abuses of the large dormitory      
setting and inadequate personnel screening, will be the subject of a final    
injunction.  With respect to the abuses relating to the large dormitory       
setting and the inadequate screening of personnel, the parties will be        
directed to seek to agree on a plan consistent with the guidelines set out    
above by the Corrections Task Force.  This court further directs the parties  
to attempt to agree on a plan for a grievance procedure designed to bring to  
the attention of TYC personnel, and ultimately the TYC Board, allegations of  
staff brutality or other forms of physical or psychological abuse.

C.  Disciplinary Procedures

1.  Security Treatment Center (STC), Mountain View

The security wing in the maximum security facility, Mountain View State School
for Boys, is used to confine boys for disciplinary reasons.  Although boys    
have been confined in security for as long as thirty days, the average period 
of stay is fifteen to seventeen days.  The inmates are not informed of what   
conduct can or will result in security incarceration, and a decision to       
confine a boy is ordinarily within the complete discretion of a correctional  
officer.  Records of Mountain View show that typical offenses and             
corresponding periods of incarceration include: 'not doing exercises,'        
twenty-three days; 'gambling for candy,' fifteen days; 'trying to slip letters
out,' twenty-five days; 'writing love notes to another boy,' or 'writing love 
letters to a lady academic teacher' or 'refusing to work,' fourteen days; '   
throwing a bar of soap at a boy,' nine days; 'masturbation,' twelve days.

Each cell in the STC is a six-by-twelve foot locked room, with a solid door.  
The door has a small window, which is painted over, and a narrow slit for food
trays.  The cell's only artificial light resembles the headlamp on an         
automobile and is located in a wall near the door.  This light is never turned
off or dimmed and is presumably intended to keep the room's occupant awake.   
Moreover, the cell is poorly ventilated; it is hot in summer and cold in      
winter. On weekends and after 3:30 o'clock, p.m., the guard does not have a   
key to the *79 locked security cells.  In an emergency, he must call out to a 
supervisor outside the unit to come and open a door.  On one occasion, it took
twenty minutes for the supervisor to open the cell of a sick boy.

Prior to the entry of the emergency interim relief order enjoining certain    
practices, the rules and work assignments were legion, and limited only by the
sometimes vicious imaginations of the correctional officers in charge.        
Violation of the rules by a boy in the STC resulted in longer security        
incarceration or imposition of 'racking.'  Such boys were not allowed to speak
except to answer a staff member; and they were not allowed to look out the    
window. Until the rule was suspended in the spring of 1973, inmates of the STC
were not permitted to sit on their beds during the day, to attend school, to  
have school books, or to go to sleep until 10:00 o'clock, p.m.  If they fell  
asleep before that time, they were required to buff the floor and walls of    
their cell with a towel. The 'no sleeping' rule applied to all boys, including
those on sleep-inducing medication.

Many other examples were submitted in evidence of practices sanctioned by TYC 
staff, prior to entry of the emergency order: boys in security were allowed   
one visitor per month for ten minutes, and the visitor had to be accompanied  
by a supervisor; the boys' caseworkers were prohibited from visiting them in  
the STC; haircuts were administered to boys in the STC while lined up, heads  
bowed (boys who raised their heads were knocked down by a guard); while       
outside the security wing, boys in the STC were required to hold their heads  
down (although they were instructed not to do so when Special Agents of the   
Federal Bureau of Investigation photographed the security work detail).

One work detail for boys in security was 'picking'- a useless, strenuous,     
degrading exercise performed five hours a day.  When 'picking', boys were     
lined up foot to foot, heads down, and were required to strike the ground with
heavy picks, swung overhead as the line moved forward.  Nothing was ever      
planted in the picked ground.  The regimen consisted of working for an hour   
and a half at a time with fifteen-minute breaks.  During the breaks, the boys 
were required to sit in a line with their heads between their legs, looking   
down; they were not allowed to look in either direction or to talk.  Boys in  
the STC who refused to leave their security cells to work on this detail were 
often forced to endure the introduction of tear gas into their cells.  An     
infraction of a rule relating to the 'picking' detail was the subject of      
summary, brutal punishment. For the less than heinous offense of talking while
he was picking, one boy was punched in the chest by a correctional officer    
until he doubled over, and was then hit in the mouth.  Others were beaten     
because they dropped their picks or became ill.

Review of placement in the STC is done twice weekly by the discipline         
committee, which consists of the superintendent, assistant superintendent,    
school principal, casework supervisor, correctional officer supervisor, and   
one chaplain.  Before the entry of the emergency interim relief order, the    
committee review procedures were often violent.  A boy under review by the    
discipline committee was required to run in his bare feet- at top speed- from 
the security wing to the committee meeting room.  If the boy did not run fast 
enough, he was 'racked' or beaten by a correctional officer.  A boy before the
committee had no advocate, and his caseworker was usually not there.  He was  
never told at the meeting whether he was to be released or any reasons for the
commitee's actions.

Expert witnesses were unanimous in concluding that it is anti-therapeutic and 
psychologically destructive to confine a child in the STC for as long as      
thirty days for disruptive behavior. Expert witnesses also found no merit in  
the rule of enforced silence, the ban on sleeping, the unrestricted use of    
tear *80 gas, and the demeaning procedures before the discipline committee.   
It was also their judgment that most other so-called disciplinary practices at
the Mountain View STC have no rehabilitative value; that they are strictly    
punitive and serve only to degrade and belittle the boy concerned.  Expert    
witnesses further testified that isolation (or complete segregation from the  
group and program) should take place only in a child's individual room; that  
restrictions should be placed on the duration of the confinement; and that    
caseworkers should be required to visit the confined juvenile regularly.

2.  Mountain View

Like the boys 'on the hill' (in the STC), who are assigned the 'picking'      
detail as punishment, those in the nonsecurity portions of Mountain View,     
prior to the entry of the emergency interim relief order, were also assigned  
certain degrading, make-work tasks.  One such 'extra duty' task was 'grass    
pulling.'  For as much as two hours at a time, without a break, and for as    
long as six hours a day, boys were required to pull grass from the ground.  In
fulfilling this task, they were ordered to bend at the waist, keeping their   
knees straight, without looking at or talking with other boys.  Although this 
position was extremely uncomfortable and difficult to maintain for a long     
period of time, boys bending their knees were 'racked,' kicked in the teeth,  
punched, and beaten.

Boys were put on this extra duty for such offenses as 'talking back,' talking 
in the 'chow line,' 'not finishing all the food on their plate,' 'wearing     
shoes in the dormitory,' 'not changing their pants,' 'just irritating a       
correctional officer,' or 'going in the peach orchard without permission.'  At
some time in the late spring of 1973, after experts and counsel had visited   
Mountain View, the grass pulling position was changed to permit the boys to   
bend their knees.

The 'grass pulling' detail was often associated with various acts of violence 
by the staff.  One particular incident is revealing. While on grass pulling   
duty in March 1973, R.J. became tired after three hours and bent his knees.   
For this, he was kicked in the back and punched in the mouth by Correctional  
Officer Doyle, and told to go back to pulling.  When he again became tired and
started to stand up, Correctional Officer Schnick kicked him in the head with 
his booted foot.  (Schnick's height is six feet, two or three inches; he      
weighs about 200 pounds.  R.J. was five feet, six inches in height and weighed
approximately 110 pounds.) When R.J. complained that his side hurt, Schnick   
told him to keep pulling, and later kicked R.J. twice more in the head.       
Apparently desperate, R.J. escaped from the work detail and ran to the        
superintendent's office.  There, he met Correctional Officer Supervisor       
Freeman, who pulled the boy into his office by the neck.  After slapping R.J.,
the officer told him to get up against the wall and put his hands in his      
pockets.  Freeman (in the presence of Correctional Officer Supervisor 'Chop   
Chop' Wimberly^FN15  ) then struck the boy many times in the jaw and stomach  
with fist and open hand, and kicked R.J. when the boy fell down.  Freeman     
thereupon ordered another boy to bring R.J. clean clothes (to replace his     
bloody ones), made R.J. sign a false incident report written by Freeman, and  
then hit R.J. in the jaw again. Subsequently, Freeman directed R.J. to run    
back to 'grass pulling' duty.  Freeman followed R.J. closely in a pickup      
truck, all the while racing its engine.  Late that evening, R.J. was placed in
the STC for running away from work duty.

A Mountain View teacher, Jones, who had observed Schnick's brutality to R.J.  
on the grass pulling detail, reported to Correctional Officer Supervisor      
Freeman that he thought the discipline was 'too rough.'  In response, Freeman 
*81 merely shrugged his shoulders.  When Jones explained to Mountain View     
Superintendent Adams how the boy was punched and kicked, Adams told Jones that
Schnick 'probably thought he was doing the right thing at the particular time'
and that 'if (he) didn't like the way things were run around there (Jones)    
could find another job.'  Jones was not asked to make a written report on the 
incident or told that he could do so by either Freeman or Adams.  Schnick was 
still employed at Mountain View as of July 1, 1973, at least four months after
the incident.

In another incident, T.A., who was assigned one night to 'grass pulling' duty,
performed the task while resting his weight on both knees.  When this         
violation of the rules was discovered, he was called to the supervisor's      
office by Correctional Officer Supervisor Sassy.  The officer had the room    
cleared, then instructed T.A. to put his hands in his pockets and get up      
against the wall.  Sassy (described as being about six feet, two or three     
inches in height and weighing about 290 pounds) then 'racked' T.A. and punched
him in the face and chest, causing significant injury to T.A.'s nose and      
mouth.  T.A. was subsequently ordered back to grass pulling.  Late that       
evening, he was forced by Sassy to sign an incident report saying that the    
injuries were sustained when he was struck by a football.  On this occasion,  
Sassy threatened T.A., stating that if T.A. did not sign the report, he would 
'lock (T.A.) up and get (him) for it.'  Only then was T.A. permitted to go to 
the infirmary for treatment.  The incident report was a complete              
falsification, written by another boy at Sassy's direction.

Another degrading, useless, makework task at Mountain View is placement 'on   
shovel.'  When performing this detail, boys line up in a circle with shovels, 
run around the circle with a shovelful of dirt, and then drop the dirt in     
another pile.  This fruitless activity may continue for as long as six hours  
at a time.  When lawyers started visiting the institution in August and       
September of 1972, the dirt circle trails were obliterated by 'picking,' so   
that evidence of this extra duty was not visible.

3.  Gatesville

Boys arriving at Gatesville are neither given copies of the rules nor given   
any instructions as to their nature or content. Rather, each correctional     
officer imposes his own set of rules, placing the burden on the new arrival to
learn either by his own mistakes or from those of others.  Before entry of the
emergency interim relief order, Gatesville, like Mountain View, had a variety 
of 'disciplinary' measures.  One form of punishment was placement 'on crumb'  
-sitting on a chair in the dormitory day room all day long, facing a wall, and
neither talking nor participating in any activities.  In one case, a boy      
talking while 'on crumb' was slapped off his chair, then kicked and struck by 
Correctional Officer Schultz.  In another case, a boy falling asleep when 'on 
crumb' was forced to stand and hold a chair off the ground at arm's length for
an agonizingly long period of time.

Other practices included shaving a boy's hair because he did not keep it      
combed, shaving a boy's face with a pocketknife, and, for smoking, requiring a
boy to stand against the wall with his arms in the air.  Extra duty also      
included forcing a boy to work in the 'R.D.' (a sewage or garbage ditch).     
After working in this ditch, up to the waist in garbage and stench for four   
hours, a boy would then be required to go to lunch without changing clothes or
taking a shower.  Superintendent Dwain Place instituted no investigation of   
any kind into allegations made at the trial of this case that boys were forced
to do such unproductive and humiliating labor, and indicated that he had no   
intention of doing so.  He felt that, although working in the 'R.D.' ditch    
would not be helpful to a boy, such work could be justified, because, in his  
judgment, anything that helps the staff control boys is therapeutic.

*82 4.  Crockett

Girls entering Crockett State School for Girls are given a copy of some of the
rules regulating their conduct in the institution. Violation of these rules   
may result in a girls' confinement in the Security Treatment Cottage (STC).   
During the period preceding entry of the emergency interim relief order, many 
girls were kept in STC longer than the thirty-day maximum permitted by TYC    
policy.  In Superintendent Harrell's opinion, TYC policy was not violated by  
keeping a girl in the STC for thirty days, letting her out a few hours, and   
then putting her back in.  Although the professed purpose of confinement in   
the STC was not punishment, girls were not permitted to talk to fellow        
students while there.

Another disciplinary measure was placement of a girl in 'room lockup.'  This  
meant that the room was stripped of all furnishings, forcing the girl to sleep
on the floor.  One girl was put on room lockup for seven days without clothes 
and shoes; another was allowed out of her locked room only for an hour and a  
half each day, received no academic education, and was visited by no one      
except a psychiatrist, and then on only one occasion. Still another girl was  
confined in the STC for twenty-four days and was never visited by a           
psychiatrist or her caseworker.  She had been in the STC eleven times while at
Crockett.  An average stay in the STC was seven to ten days.

Superintendent Harrell testified that since the girls perceived the STC as    
punishment, he abolished it in June 1973, without the knowledge or approval of
the TYC Central Office.  Under the new system, a misbehaving girl is placed in
the individual room of a regular cottage when isolation is necessary.         
Harrell's new procedure is very similar to that adopted by the court in its   
emergency order.

5.  Gainesville

Unlike the girls entering Crockett, those arriving at Gainesville receive no  
written rules regarding conduct.  Girls are sent to the STC at the discretion 
of the staff; they are not told the reason they are sent.  Misconduct meriting
discipline includes whispering, 'lagging' in line, calling a houseparent '    
Honey,' and chewing gum. The weekly discipline committee ordinarily does not  
meet as to a girl's placement in the STC until after transfer; thus, one girl 
was in the STC for six days before the first meeting of the committee relating
to her case.  The average stay in the STC at Gainesville is fourteen days.    
Girls are not visited by their caseworkers while in the STC; often they see   
nobody outside the STC except for the discipline committee.

The STC consists of individual, locked rooms in a cottage.  Four STC rooms are
stripped cells, where the only piece of furniture is a bed.  A girl can be    
placed in the STC by the staff supervisor on duty at the time a problem       
arises; if in the academic school, a girl can be placed in the STC by a       
teacher who has no training in the treatment of adolescent girls.  The        
practice of not allowing girls to wear their own clothing in the STC and      
forcing them to wear loose-fitting nightgowns, observed in March 1973, was    
changed just prior to the trial of this case.  Moreover, about one-third of   
the girls in the STC recently have been permitted to attend regular academic  
classes.

6.  Brownwood

Both the Brownwood State School and Home and the Brownwood Statewide Reception
Center have provisions for security measures, some of which served as         
something of a model for this court's ruling regarding secure confinement in  
its emergency interim relief order. Under its former program, girls, on the   
recommendation of a psychiatrist, psychologist, or caseworker, could be placed
in the STC for escaping.  A girl could also be put in a stripped isolation    
room for up to thirty minutes without staff contact.  During the week, the    
offending girl's social worker was required to approve a security transfer;   
*83 on weekends, it was the function of the houseparent supervisor.           
Caseworkers were required to visit girls in isolation daily. Girls wore their 
own clothes and usually attended regular school after the second day in       
isolation. Brownwood is contemplating a crisis intervention program with '    
floating' staff to treat the girls who need security treatment in their       
cottages. The Brownwood Reception Center's security wing includes five        
stripped cells. Any girl incarcerated there is given a blanket and wears      
pajamas. The staff usually manages to deal with girls who pose problems in the
regular rooms without resorting to punishment or confinement in security. The 
security wing at Brownwood was not used more than five or six times in the    
year prior to July 1973. Before entry of this court's emergency order,        
however, a girl entering confinement in the STC might remain there as long as 
it was felt necessary to control her behavior- whether twenty minutes or      
several days.

7.  Conclusions

[10] Although some TYC personnel, testifying in behalf of the defendants,     
indicated that they did not impose 'punishment' on juveniles, but rather '    
special treatment' or some form of 'behavior modification,' such semantical   
differences are not worth pursuing for purposes of this analysis.  Any        
substantial deprivation of liberty or property, regardless of its             
characterization, may raise a due process claim under the fourteenth          
amendment.  E.g., Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33   
L.Ed.2d 548 (1972).  Yet certain forms of disciplinary action, special        
treatment, or behavior modification are not substantial enough to require the 
imposition of due process procedures prior to the taking of such action, and  
may be continued by the defendants.  Such disciplinary action, special        
treatment, or behavior modification must, nevertheless, be consistent with    
other sections of this court's order regarding cruel and unusual punishment   
and the juvenile's right to treatment.

In the interim emergency relief order, this court identified the placement of 
a juvenile in a secure facility (either solitary confinement, security, or    
dormitory confinement, as those terms were defined) as a substantial          
deprivation of liberty requiring invocation of certain due process procedures.
 Under that order, 'solitary confinement' (defined as the placing of a TYC    
inmate alone in a room (other than a locked or otherwise secured room or cell 
in the inmate's own dormitory)) is permitted only when such confinement is    
clearly necessary to prevent imminent physical harm to the inmate or to other 
persons or clearly necessary to prevent imminent and substantial destruction  
of property.  Placement of a juvenile in 'security' (defined as the placing of
an inmate in a locked or otherwise secured building which may contain one or  
more solitary confinement rooms or cells) is permitted only when clearly      
necessary to prevent escape or clearly necessary to restrain behavior that    
creates substantial disruption of the routine of the institution. Finally, '  
dormitory confinement' (defined as the placing of an inmate alone in a locked 
or otherwise secured room in his own dormitory) is provided as an alternative 
to either solitary confinement or security, but subject to the same standard  
for determining whether confinement is proper.

Confinement in either solitary confinement or security is not permitted under 
the emergency order for longer than three consecutive days, in the absence of 
a written report prepared and signed by the inmate's caseworker, detailing the
justification for such confinement.  Moreover, the burden of preparing such   
reports shifts to the executive director of the TYC after five consecutive    
days of solitary confinement, and after ten consecutive days of security      
confinement.

[11] From a study of the post trial briefs of the parties, this court         
concludes that these procedures do not provide a constitutionally sufficient  
check on potential abuse of confinement in solitary*84  confinement or        
security.  The court further concludes that due process requires the          
imposition of certain procedures to be invoked after five consecutive days of 
solitary confinement and after ten consecutive days of security confinement.  
These procedures will require: that the juvenile be given a hearing before an 
impartial tribunal, the exact composition of which the parties should seek to 
define in their negotiations, as hereinafter prescribed; that such tribunal   
file written findings within forty-eight hours following the date of the      
hearing with the executive director of the TYC; and that the executive        
director file forthwith copies of such findings with this court and all       
counsel until further order from this court.  At his hearing, the juvenile    
shall have the right to representation by an advocate of his choice           
(presumably his caseworker) and shall have the right to call witnesses and to 
cross-examine the witnesses testifying against him.  See generally Nelson v.  
Heyne, supra; Inmates v. Affleck, 346 F.Supp. 1354 (D.R.I.1972); Lollis v. New
York State Department of Social Services, 322 F.Supp. 473 (S.D.N.Y.1970), 328 
F.Supp. 1115 (S.D.N.Y.1971).

The testimony of the expert witnesses was to the effect that a small portion  
of the juvenile population may require a secure setting.  However, a decision 
initially to place or transfer a juvenile to such a secure setting must be in 
accordance with procedural due process.  See Baxstrom v. Herold, 383 U.S. 107,
86 S.Ct. 760, 15 L.Ed.2d 620 (1966) (prisoner transferred to a mental hospital
without judicial determination violates equal protection); Shone v. Maine, 406
F.2d 844 (1st Cir. 1969) (juvenile transferred to prison requires due         
process); People ex rel. Goldfinger v. Johnston, 53 Misc.2d 949, 280 N.Y.S.2d 
304 (Sup.Ct.1967) (juvenile transferred to 'defective delinquent' institution 
requires hearing); Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970)          
(classification changes within prison require written record and reasons for  
contemplated change in status).

In its emergency interim relief order, this court provided that, before a     
juvenile could be assigned or transferred to the maximum security unit ^FN16  
(presently Mountain View State School for Boys), it would be necessary that   
the classification committee make a determination that the juvenile had in the
past (either prior to or subsequent to commitment) committed acts that, if    
committed by an adult, would constitute certain serious offenses, which were  
enumerated by the court.

[12][13] After consideration of the arguments contained in the briefs of      
counsel, the court is now persuaded that the commission of a particular       
offense does not necessarily imply that the offender should be subjected to   
confinement in a maximum security facility. Instead, the standard for         
determining whether a juvenile should be assigned to such a facility must be  
based on a finding that the juvenile is exceptionally dangerous; that is, that
he will likely cause severe injury to himself or others unless dealt with     
carefully in a secure setting.  The determination of this standard must not be
entrusted to laymen; it is requisite that it be made by majority vote of a    
panel of well-qualified psychiatrists and psychologists.^FN17   Moreover, the 
Board must make its decision only after complete and painstaking *85          
psychological testing and psychiatric diagnosis, as well as a thorough review 
of the juvenile's history.  A finding of exceptional dangerousness will carry 
with it authorization for secure confinement and intensive treatment.

[14] A determination that a juvenile is exceptionally dangerous may be made   
only after a hearing, and will be deemed to be invalid unless accompanied by  
written findings showing an adequate basis to justify the decision.  The      
juvenile under consideration should have the right to be present and be       
represented at the hearing (but need not be present during the Board's        
deliberations); have the right to ask any questions or make any statements    
that he wishes; have a reasonable opportunity to call witnesses and present   
other evidence in his own behalf, after hearing the evidence against himself; 
and be given a copy of the written findings and decision of the Board.

The procedures outlined above shall apply to all decisions regarding the      
placement of juveniles in a maximum security setting. However, upon initial   
placement in the custody of the TYC, a juvenile reasonably suspected of       
exceptionally dangerous propensities may be placed in the maximum security    
facility for a period of time not to exceed seven days, upon an express order 
from the Executive Director.  At the conclusion of the seven-day period, the  
Board authorized to assign or transfer juveniles to maximum security must have
rendered its decision in accordance with the foregoing procedures or the      
juvenile must be released for non-secure treatment.

VIII.  ASSESSMENT AND PLACEMENT

The TYC operates two reception centers.  The Statewide Reception Center for   
Girls, located at Brownwood, possesses a maximum capacity of 100 girls and is 
under administration of the General Superintendent of the Brownwood State Home
and School for Girls. The Statewide Reception Center for Boys, located at     
Gatesville, has a capacity of 120 boys and is administered by personnel under 
the direction of the General Superintendent of the Gatesville State School for
Boys.  Girls remain at Brownwood for approximately two weeks.  The primary    
purpose of the classification procedures at both reception centers is the     
assignment of students to the various training schools and the provision of   
certain diagnostic and social information about the child.  Nevertheless,     
there are no written formal criteria for assigning youths to any particular   
institutions, including Mountain View, the maximum security facility for boys.

A.  Gatesville Reception Center for Boys

The Gatesville Reception Center handles about 1,700 boys per year, of whom    
about two-thirds are new commitments.  The other one-third are                
reclassification cases (boys transferred from Gatesville to Mountain View) or 
parole revocations.  The reception center staff consists of five caseworkers, 
two psychologists, one educational diagnostician, and three part-time         
psychiatrists. Both psychologists have a Master's degree.  One spends a little
more than half his time testing boys over sixteen for vocational              
rehabilitation services, which are rendered by the Texas Vocational           
Rehabilitation Agency after the boys' discharge from the institution.  The    
education diagnostician has a Bachelor of Arts degree; three of the five      
caseworkers have Master's degrees. Although it is often necessary to evaluate 
Mexican Nationals and Mexican American boys, no one in the Gatesville         
Reception Center speaks Spanish.^FN18  Approximately one-third of the new     
admissions are Black, but none of the staff, whether professional or          
non-professional, is Black.

*86 Placement decisions, which take only a few minutes, are made by a         
classification committee in weekly meetings.  The committee consists of the   
Director of Admissions, the Director of the Reception Center, a clinical      
psychologist, a medical psychiatric social worker, a chaplain, a casework     
coordinator, and an academic superintendent.  The committee may consider up to
thirty-five cases in a single session, with discussion primarily centered on  
the nature of the particular boy's offense.  Age, sex, aggressiveness,        
educational level, and availability of a vacancy at a particular school are   
also determining criteria in placement. Aggressiveness is determined mainly on
the basis of the boy's past record of behavior or his size.  The caseworker's 
recommended placement is generally approved.  Since the classification        
committee does not usually have the time to read the information in a boy's   
file before making a placement decision, and since the boy is not present     
during its deliberations, the committee relies on the oral presentation of the
intake social worker who makes the placement recommendation.

In considering assignments to Mountain View, the maximum security facility,   
the committee reviews the juvenile's past legal history, including arrests.   
The record received from the juvenile court, however, often does not show the 
disposition of arrests. Moreover, there are no formal written criteria        
regarding which boys should be sent to Mountain View.  Serious offenders as   
well as runaways from Gatesville may be sent there.  In the fiscal year ending
August 31, 1972, thirty per cent of the boys admitted to Mountain View were   
reclassified students from Gatesville.  Yet the evidence showed that neither  
members of the classification committee, nor the TYC Central Office staff who 
must approve any transfer to Mountain View, have any familiarity with the     
program at Mountain View.

The frequent turnover of personnel on the classification committee disrupts   
any continuity of its classification decisions.  Thus, the psychologist who   
tests a particular boy may not be the one who participates in his placement   
decision.  If the social worker at the classification committee is not the    
same intake officer who interviewed the particular boy being placed, it is    
unlikely that anyone on the committee will have had any personal contact with 
him.

Examination by a psychologist or psychiatrist is not necessarily available to 
every boy entering the reception center.  Moreover, the psychologist does not 
ordinarily make treatment recommendations for the boys examined, and makes no 
follow-up investigation or report as to the boys he does examine or test, to  
ascertain what kind of treatment they receive after placement. Even a boy     
under consideration for placement in Mountain View may not be seen by a       
psychiatrist.  When the psychiatrist has recommended against placement of a   
particular boy in Mountain View, he does not ordinarily receive a report from 
the classification committee as to what happened to him.  Although they are   
presumably otherwise qualified, the psychologists at the reception center have
not had prior training in working with adolescents and do not perform any     
inservice training for the staff at the Gatesville school.

B.  Brownwood Reception Center for Girls

Brownwood Reception Center classifies girls into four categories: immature    
delinquent, neurotics, unsocialized delinquents, and subcultural delinquents. 
Although these categories are used in assigning girls to cottages and         
treatment programs at Brownwood, they are not used at Gainesville or Crockett.
 These classification categories, developed by Dr. Quay, have not yet been    
validated on a female population, but were developed and tested on an older   
male population at the Federal Youth Center at Morgantown, West Virginia.  The
Reception Center at Brownwood has one individual on its staff with a Master of
Social Work (MSW) degree and three *87 holding Bachelor of Arts degrees in    
psychology or social science.  Its director also holds a MSW degree.

The final placement decision for a girl is made at a meeting attended by the  
medical psychiatric caseworker, the girl's caseworker, the academic           
educational-vocational counselor, the houseparent supervisor, the chaplain, a 
school teacher, and, sometimes, the psychologist.  The girl under             
consideration is not present at the placement decision.  Although a letter is 
sent to the girl's family requesting any information that would be helpful in 
assessing her, the director of the center testified that he would prefer, as  
an alternative, to meet with each girl's family to discuss her problems.      
Entering girls receive a medical and dental checkup as well as a psychiatric  
interview.  The eleven subtests of the Weschler Intelligence Tests are used to
diagnose learning disabilities.  The Lorge-Thorndike Intelligence             
group-administered test is not used, because it is considered insufficiently  
individualized to provide an accurate assessment of the girls.

Girls may be assigned to Brownwood, Gainesville or Crockett. The younger girls
are customarily assigned to Brownwood.  Eighty per cent of the girls assigned 
to Brownwood were committed for offenses such as runaway or truancy, offenses 
which are not within TYC jurisdiction after September 1, 1973, under the new  
Texas family law code.^FN19   The older and allegedly more 'sophisticated'    
girls, on the other hand, are sent to Gainesville.  Gainesville, in August    
1973, had a population of about 120 girls, a reduction from a total of 220    
present in the institution a year before.  The testimony of expert witnesses  
indicated that these girls perceive themselves as the worst offenders.  The   
1972 Annual Report of the TYC indicates that 124 out of the 220 girls at      
Gainesville during that reporting period were committed for 'disobedience;'   
eleven for 'immorality;' thirty-six for drug and alcoholic offenses;          
thirty-five for theft; and ten for violent offenses.

The Brownwood Reception Center has made some adjustments for Mexican American 
girls.  Two Mexican American, Spanish-speaking caseworkers are included on the
staff.  Although Mexican American girls are given a vocabulary test before    
taking other tests and their scores on the other tests are then adjusted by a 
bilingual index, expert witnesses testified that the bilingual index does not 
adequately compensate for cultural differences and is, therefore, inadequate  
for diagnosing these girls.  Expert witnesses also testified that these tests 
are based on middle-class cultural assumptions that will not accurately test a
Mexican American's intelligence or achievement.

C.  Conclusions

TYC personnel and expert witnesses were in almost complete agreement with     
respect to two conclusions: First, since so few choices in placement are      
presently available to the classification committee at the Gatesville         
Reception Center, the classification procedure itself is practiically         
meaningless.  According to these witnesses, the present placement system      
accomplishes no more than would random placement on a space-available basis.  
Secondly, though the Brownwood classification procedures provide more         
opportunities for meaningful placement, these recommendations cannot be       
carried out at the receiving schools.  At Crockett, for example, there is no  
attempt to write an individual treatment program for each student, and the    
recommendations from Brownwood are not considered a binding treatment plan.   
At Gainesville, attempts at written goals are made for each girl by her social
worker; but expert witnesses were of the opinion that the plans are naive and 
over-simplified, by reason of the staff's lack of sophistication and training.

[15][16] On the basis of the evidence given by expert witnesses with respect  
*88 to the assessment and placement of juveniles, it is concluded that a      
juvenile's constitutional right to treatment requires the maintenance of the  
following minimal professional standards:

(1) Every child committed to a state agency by the juvenile court must have   
the benefit of an individual assessment, to serve as the basis for his        
treatment plan.  The plan should include, inter alia, a family history, a     
developmental history, a physical examination, psychological testing, a       
psychiatric interview, community evaluation, and a language and education     
analysis evaluation.

(2) Social work staff involved in the assessment must be trained at the       
Master's degree level in social welfare or closely related fields.

(3) Social work staff must not have caseloads exceeding fifteen cases per     
week.

(4) Psychologists with Master's degrees and properly trained in testing       
procedures are adequate, but only if a Doctoral-level psychologist is         
available to supervise their work.  A psychiatrist, however, must be available
for interviews.

(5) For adequate classification, there must be daily contact between          
caseworker and juvenile, so as to evaluate the juvenile's amenability to      
guidance and counseling.

(6) The Weschler individualized intelligence quotient test, rather than the   
group Lorge-Thorndike IQ test, must be utilized.

(7) The Leiter and Weschler tests, which are standardized for Blacks and      
Mexican Americans and are calculated to better alleviate the discrimination   
factor, must be utilized.

(8) Adequate psychological testing should take approximately fifteen hours and
require the services of one psychologist for every three boys classified per  
week.

IX.  ACADEMIC EDUCATION

A.  Findings

Although each TYC institution has been accorded the status of an independent  
school district by the Texas Education Agency, and each has been accredited by
that agency, the quality of TYC education, particularly at Gatesville and     
Gainesville, compares unfavorably with the quality of general public school   
education in Texas, and reflects a dramatic lack of awareness of the special  
and varied needs of TYC students.  Expert witnesses opined that only four and 
sixtenths per cent of all juveniles incarcerated by the TYC are at their      
proper educational grade level, and the average reading level is approximately
five years below the norm.

All school facilities are operated eleven months of the year, except Mountain 
View, which is operated on a twelvemonth basis. Students at Gatesville are    
placed in academic grade assignments according to the results of their        
achievement tests.  Grades are labeled one through twelve, and a student is   
often assigned to a grade lower than the one at which he may have been        
functioning in his home community.  At Brownwood, in contrast, students below 
the ninth grade in achievement level are placed in non-graded classes,        
according to ge, and receive individual instruction.

No teacher at Gatesville or Gainesville is certified by the Texas Education   
Agency as qualified in the field of special education. Mountain View and      
Crockett each has one teacher certified for special education, and Brownwood  
has two.  A statistical survey indicates, however, that a significant number  
of juveniles are in need of some form of special education.  The following    
numbers of children at TYC institutions were diagnosed as being seriously     
emotionally disturbed as of May 1, 1973:


                                                          Giddings         18 
                                                                              
                                                                              
                                                                          117 
                                                          Gatesvill           
                                                          e                   
                                                                              
                                                          Mountain        158 
                                                          View                
                                                                              
                                                          Brownwood        13 
                                                                              
                                                                              
                                                          Crockett         35 
                                                                              
                                                                              
                                                                           31 
                                                          Gainesvil           
                                                          le                  
                                                                              

The category defined as 'seriously emotionally disturbed' excludes sociopathic
and psychopathic children.  In addition, *89 as of May 1, 1973, the following 
numbers of children in TYC institutions have intelligence quotients recorded  
as lower than seventy:


                                                          Brownwood        17 
                                                                              
                                                                              
                                                          Crockett         38 
                                                                              
                                                                              
                                                                           11 
                                                          Gainesvil           
                                                          le                  
                                                                              
                                                          Giddings          5 
                                                                              
                                                                              
                                                                          102 
                                                          Gatesvill           
                                                          e                   
                                                                              
                                                          Mountain         36 
                                                          View                
                                                                              

The Language Training Center at Gatesville, for students with learning        
disabilities, currently serves those students whose diagnostic tests indicate 
this program to be appropriate for their needs; however, only students with   
intelligence quotients over ninety and who test two years below their grade   
level may participate in the program.  Moreover, tests are not routinely given
for minimal brain dysfunction or dyslexia at the classification center.

No bilingual programs for Spanish-speaking youths exist in any of the TYC     
institutions.  Two applications for federal assistance to initiate such a     
program have been denied, and no state funds have been appropriated to        
institute the program.  Tests of Spanish-speaking boys for intelligence       
quotients and reading achievement are not conducted in Spanish.  At           
Gatesville, eighty-eight of a total of 106 teachers are Anglo.  Questionably, 
as many as ten Gatesville teachers speak Spanish, although only two are       
Mexican Americans.  Of the more than 1,000 students at Gatesville,            
approximately one-third are Anglo, over one-third are Black, and the remainder
are Mexican American.  In April 1973, there were thirty Mexican Nationals at  
Gatesville, awaiting return to Mexico by immigration authorities.

The educational testing procedures are generally inadequate, and since        
decisions regarding placement of students in educational programs at          
Gatesville are made primarily on the basis of the test scores, this is a      
significant deficiency.  Irrespective of the reason, any Gatesville boy who   
cannot read is placed in the same remedial reading class.  Thus,              
Spanish-speaking boys, retarded children, and those who are unable to read    
because of emotional causes or past truancy are placed in the same class.  As 
mentioned earlier, these classes are not taught by persons certified as       
qualified in the field of special education.  Moreover, tests for             
Spanish-speaking boys who may have learning disabilities- and who thus may be 
eligible for the class for dyslexic children- are not given in Spanish.

B.  Conclusions

[17] On the basis of the evidence produced by expert witnesses with respect to
academic education testing, it is concluded that a juvenile's right to        
treatment requires the maintenance of the following minimal professional      
standards:

1) The Weschler IQ Test, rather than the Lorge-Thorndike IQ Test, must be used
for testing generally.

2) Neither the Lorge-Thorndike IQ Test nor the Gray-Votow-Rogers Achievement  
Test, which is inappropriate for testing Mexican Americans and Blacks on many 
subjects, should be used for testing for dyslexia.

[18] Using as a foundation the evidence of expert witnesses, it is concluded  
that, for the purpose of detecting mental retardation in juveniles and        
providing them with the proper special education,^FN20  the juvenile's right  
to treatment requires the maintenance of the following minimal professional   
standards:

1) Normal IQ and achievement tests (both verbal and non-verbal) must be       
utilized, with special emphasis on tests *90 which are appropriate for the    
student's background.^FN21 

2) Examiners who are familiar with the background of the student and of his   
culture and language must be a part of the staff.

3) Information must be obtained about the student's family background and     
emotional status, as well as observations relating to the student's behavior.

[19] Again postulated upon the testimony of expert witnesses, it is the       
conclusion of this court that, as to special education teachers, a juvenile's 
right to treatment requires the maintenance of the following minimal          
professional standards:

1) Special education teachers, certified by the state as qualified to teach   
either emotionally disturbed, mentally retarded, or minimally brain damaged   
children, must be utilized to treat children in these categories.

2) In-service training by an outside consultant must be provided for special  
education teachers at least once a week.  (Such consultants are available from
the Texas Education Agency.)

3) A minimal teacher-student ratio for TYC students in the categories above   
specified is one special education teacher for each eight of such students,   
plus supporting personnel (such as educational diagnosticians and the like).  
^FN22 

[20] As to other supporting personnel, this court adopts the opinion of expert
witnesses that a juvenile's right to treatment requires the maintenance of the
following minimal professional standards:

1) One educational diagnostician is essential for each 150-200 TYC students.

2) Assessment by language pathologists, sometimes referred to as speech       
therapists, is an essential complement to any other professional assessments, 
and such an assessment is necessary to diagnose the underlying learning       
difficulty that may be initially identified by a psychologist or teacher.

[21] On the basis of the evidence of expert witnesses, this court concludes   
that, since the state removes Mexican American children from their family,    
friends, ethnic background and culture, transporting them in most cases       
hundreds of miles to a predominantly Anglo rural setting, these juveniles'    
right to treatment requires that the state establish a program for bilingual  
education. The parties are directed to propose such a program in general      
accordance with the provisions set out in United States v. Texas, 342 F.Supp. 
24 (E.D.Tex.1971), aff'd 466 F.2d 518 (5th Cir. 1972), discussed in Project   
Report: DeJure Segregation of Chicanos in Texas Schools, 7 *91                
Harv.Civ.Rights- Civ.Lib.Rev. 307, 376-91 (1972).

X.  VOCATIONAL EDUCATION

A. Findings

A vocational program is available to certain TYC inmates, although the process
of selecting those eligible for the program is not clear.  The evidence       
admitted at the trial of this civil action primarily concerned the Gatesville 
program.  Some boys are enrolled, at least in part, on the basis of an        
expressed interest.  Nevertheless, there are no vocational counselors         
available at Gatesville and no established testing procedures to determine    
which boys should be enrolled.  The vocational program consists of educational
courses and so-called 'work experience.'  Boys are assigned to the educational
courses on a space-available basis, with the overflow reporting for 'work     
experience.'

Work experience programs at Gatesville consist of such essentially            
institution-maintaining endeavors as work in the laundry, maintenance         
division, warehouse, food service division, dormitory clothing room, and other
areas.  State funds have not been appropriated by the legislature for the     
payment for work performed in vocational shops maintaining institutional      
equipment, state-owned property, or in-service industries.  Thus, Gatesville  
vocational students do not get paid for such work.  Accordingly, the work     
experience program (which has been in existence at Gatesville for at least    
twenty-three years) permits the institution to employ fewer people to perform 
institution-maintaining work than would otherwise be required. Work experience
supervisors at Gatesville are not accredited teachers, and the students       
receive no school credit for their work in the work experience programs.

Some attempt is made to coordinate the vocational education and the academic  
education courses at Gatesville; but the work experience program is not       
coordinated with academic education. Students are assigned to a full day's    
academic education program or to a half-day academic program, with the other  
half-day devoted to a vocational or work experience assignment.  A full day's 
academic program is pursued by the younger students assigned to the Valley,   
Riverside, and Hackberry schools.  A half-day academic and half-day vocational
or work experience program is pursued by older students at the Hilltop, Live  
Oak, and Terrace schools. Students at the Sycamore school have a choice of    
following a full day's high school program or a half-day academic program, the
other half of the day being devoted to a vocational course.

The work experience program altogether fails to provide any meaningful or     
realistic vocational training.  The vocational education courses, although    
potentially useful, are not coordinated with a practical and realistic attempt
at job placement outside the Gatesville institution.  Since no follow-up study
has been accomplished to determine whether Gatesville students are able to    
procure jobs in fields related to their vocational education training, the TYC
has no way of evaluating the effectiveness of the vocational education        
programs nor of assuring that students leave the TYC schools with marketable  
skills.  It is clear that there has been no employer or union input in        
fashioning the vocational education programs, for they have not been geared to
meet actual employer needs or union requirements.  There is, moreover, no     
ongoing contact by employers with the vocational education programs of the TYC
schools, since the schools are too far removed from the major employers in    
Texas to make these contacts convenient.

Although one vocational rehabilitation counselor is present at Gatesville, he 
perceives his job as merely recommending students for vocational              
rehabilitation after their release from the TYC, and not as a part of the     
entire treatment program.  Of the more than 1,000 Gatesville students, only   
about 130 are on the caseload of the vocational rehabilitation specialist.    
The vast majority of *92 the students are eligible for the services of the    
vocational rehabilitation specialist; but it is apparent that the one-man     
staff cannot adequately handle the caseload.  It also appears that no         
systematic contact with the vocational education instructors is maintained by 
the vocational rehabilitation specialist, although the latter is responsible  
for evaluating the student's potential for success in vocational              
rehabilitation.

B.  Conclusions

[22] Giving weight to the evidence supplied by expert witnesses with respect  
to vocational education, it is concluded that a juvenile's right to treatment 
requires the maintenance of the following minimal professional standards:

1.  Each student should be provided with an employability plan, based on      
extensive counseling regarding career options.

2.  Adequate procedures to assure placement with prospective employers should 
be maintained by the TYC.

3.  Adequate on-the-job training, obtained through work release programs,     
should be provided.

4.  Adequate support services, such as remedial reading and mathematics,      
should be provided.

5.  Appropriate limitations must be placed on the so-called 'work experience' 
consisting of essentially institution-maintaining work, so as to prevent such 
work from dominating the daily activities of stu