         UNITED STATES COURT OF APPEALS
                  FIFTH CIRCUIT

                  _________________

                     No. 99-40897

                  (Summary Calendar)
                  _________________


MICHAEL A. MAGOON,


                        Petitioner - Appellant,

versus


TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION


                        Respondents - Appellees.
______________________________________________________

                  _________________

                     No. 99-41060

                   (Summary Calendar)
                  __________________

STEPHEN F. AUSTIN,


                        Petitioner - Appellant,


versus


GARY L. JOHNSON, DIRECTOR,
               TEXAS DEPARTMENT OF CRIMINAL
               JUSTICE, INSTITUTIONAL DIVISION,


                                               Respondent - Appellee.



                           Appeals from the United States District Court
                               For the Southern District of Texas
                                       No. G-99-CV-304
                                       No. G-99-CV-424

                                           January 5, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

       Texas prisoners Michael Magoon and Stephen Austin challenge the constitutionality of the

work requirement of Tex. Gov’t Code § 497.090.1 Magoon was granted a certificate of appealability

(COA) from this court on the question of whether the Texas Department of Criminal Justice “violated

the Thirteenth Amendment and the Ex Post Facto Clause when it disciplined [Magoon] with the loss

of good-time credit as punishment for refusing to work.” Austin was granted a COA on the question

of whether the Texas Department of Criminal Justice “violated the Thirteenth Amendment and the

Ex Post Facto Clause when it disciplined [Austin] with the loss of good-time credit and placement

in solitary confinement as punishment for refusing to work when he was not sentenced to hard labor.”

Given the similarity of the issues presented in the COAs, we consolidate the cases for purposes of this


       *
               Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
       1
        Section 497.090 was repealed in September 1999 and replaced by Tex. Gov’t Code Ann.
§ 497.099. Section 497.099 provides that inmates shall be required to work to the extent that they
are physically and mentally capable, and that inmates may be compensated on an incentive basis.

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opinion. Because it now appears from the briefs and documents submitted to this court that the COA

questions may not be squarely presented by these two cases, we remand for a determination of the

impact of § 497.090 on Magoon and Austin’s sentences.

       First, it is dubious whether the loss of good-time credits is an issue in these cases. Magoon

argues that he has been disciplined with solitary confinement, a change in custody classification, the

loss of commissary privileges, assignment to extra duty hours, and the loss of 60 days of good-time

credit for failing to turn out for his work assignment. It appears that the loss of good-time credits

will have no effect, however, on the length of Magoon’s sentence. Magoon was convicted of second

degree robbery in 1993, a conviction that made him ineligible for release to mandatory supervision

under 1993 Texas law. See Tex. Crim. P. art. 42.18 § 8(c)(10).2 Austin, by contrast, is eligible for

release to mandatory supervision, but has not alleged and apparently has not suffered a loss of good-

time credits. Austin did maintain that he had lost good-time credits in his request for a COA, but the

State has offered proof to the contrary, and Austin has not challenged that proof in this appeal.

Austin makes reference to a change in his time-earning trustee class in his reply brief, but this claim

is unsubstantiated by any documentation. Like Magoon, Austin has also been disciplined with loss

of recreation and commissary privileges, as well as placement in punitive segregation. Given that

these apparent facts differ subst antially from the facts upon which the COAs were granted, we

remand first to establish whether either prisoner suffered a loss of good-time credit or a change in

time-earning classification.

       Second, we remand for a determination of whether Magoon and Austin’s claims are properly



       2
           This provision has since been repealed. See Acts 1997, 75th Leg., ch. 165, § 12.22, eff. Sept.
1, 1997.

                                                    -3-
presented as a petition for a writ of habeas corpus under 28 U.S.C. § 2254, or whether they are

actually § 1983 claims. In Austin’s case, without the good time credit issue, his only real challenge

is to his placement in punitive segregation. Such challenges are most commonly brought as § 1983

claims. See, e.g., Mitchell v. Sheriff Dept., Lubbock County, Texas, 995 F.2d 60 (5th Cir. 1993); see

also Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) (citation omitted) (“if ‘a favorable

determination would not automatically entitle [the prisoner] to accelerated release,’ the proper vehicle

is a § 1983 suit.”). Magoon’s case is similar. His COA was granted only on the issue of whether the

loss of good-time credits was constitutional, but in his case it seems clear that the length of his

incarceration will be unaffected by our resolution of that question. As a result, Magoon’s only

arguable claim appears to be that he was placed in solitary confinement as punishment for his failure

to work. We remand therefore to establish whether Magoon and Austin have presented claims

cognizable as petitions for a writ of habeas corpus or as § 1983 claims.

       Turning to the merits of the claims, both Magoon and Austin argue that the Texas prison

work requirement violates the Thirteenth Amendment and the Ex Post Facto Clause. The Thirteenth

Amendment provides that “[n]either slavery nor involuntary servitude, except as a punishment for

crime whereof the party shall have been duly convicted, shall exist within the United States, or any

place subject to their jurisdiction.” U.S. Const. Amend. XIII § 1. To establish a Thirteenth

Amendment violation, a prisoner must prove compulsion; when one has a choice, even a painful one,

there is no involuntary servitude. See Channer v. Hall, 112 F.3d 214, 217-18 (5th Cir. 1997).

Assuming arguendo that both Austin and Magoon have been placed in punitive segregation for their

refusal to work, the compulsion requirement has been met. In Channer, however, we recognized the

existence of a judicially-created “housekeeping-chore” exception to the prohibition against


                                                  -4-
involuntary servitude. See id. at 218-19 (“the federal government is entitled to require a communal

contribution by an INS detainee in the form of housekeeping tasks”). This exception is applicable

to the cases of both Austin and Magoon))the work they were assigned to included shower squad

and laundry. Thus, as the facts appear on the current appellate record, the Thirteenth Amendment

challenge by both petitioners should fail on the merits.

       Austin and Magoon also allege violations of the Ex Post Facto Clause. The inquiry for ex

post facto claims is well-established: “[t]o fall within the ex post facto prohibition, a law must be

retrospective))that is, ‘it must apply to events occurring before its enactment’))and it ‘must

disadvantage the offender affected by it,’ by altering the definition of criminal conduct or increasing

the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997). The Ex Post Facto

Clause has been found to be violated by statutes that alter the punitive conditions outside a sentence.

See Weaver v. Graham, 450 U.S. 24, 32, 101 S.Ct. 960, 966, 67 L.Ed.2d 17 (1981); see also In re

Medley, 134 U.S. 160, 167, 10 S.Ct. 384, 386, 33 L.Ed. 835 (1890) (ex post facto violation where

new statute required solitary confinement for prisoner prior to execution; solitary confinement is not

“a mere unimportant regulation as to the safe-keeping of the prisoner”). Because both prisoners were

convicted prior to the enactment of Tex. Gov’t Code § 497.090, the application of the work

requirement to them is retrospective treatment. Here assuming arguendo that both Magoon and

Austin were placed in punitive segregation as a consequence of their failure to work, their ex post

facto claim may be meritorious. The State responds that while this particular code provision may

have been new, “other Texas laws requiring the same were in effect prior to the date Austin

committed his offense...there was indeed fair warning of the probability that Texas prison inmates are

required to work while incarcerated.” It may be true that there were other work statutes in the Texas


                                                 -5-
legislative history, but it is not clear whether those statutes also carried the disciplinary measure of

punitive segregation. We remand therefore to determine the viability of the ex post facto claim.

        In sum, these cases are remanded for determination of (1) the nature of the punishment

received by Magoon and Austin for their refusal to work; (2) whether their claims are properly

presented as petitions for writ of habeas corpus; (3) the viability of those claims in light of the

historical statutory scheme of the Texas prison work requirement. The cases are to be consolidated

to the extent that both prisoners did indeed receive punitive segregation as a result of their refusal to

work, both claims are properly brought as § 1983 claims, and resolution of both cases hinges on the

same constitutional issues.

        Magoon’s request for a temporary restraining order is DENIED. Magoon’s motion to

supplement his brief is DENIED. Magoon’s second motion to supplement his brief is DENIED.

Magoon’s motion for leave to file memorandum, treated as a motion to file supplemental briefs is

GRANTED, as Magoon asserts that the prison was on lockdown while he was attempting to file his

reply brief. Magoon’s motion to supplement briefs to clarify issues is DENIED. Austin’s motion to

file a supplemental reply brief is DENIED.                Appellees’ motions to consolidate are

CONDITIONALLY GRANTED.

        REMANDED.




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