TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 141. GENERAL PROVISIONS

SUBCHAPTER G. DEFINITION OF TERMS

37 TAC §141.111

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC, Chapter 141, Subchapter G, §141.111, concerning definitions. The proposed amendment to §141.111 is to add 37 (Remain Set).

David Gutiérrez, Chair of the Board, determined that for each year of the first five-year period the proposed amendments are in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Mr. Gutiérrez also has determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amendments to this section will be to provide definitions relating to the parole and mandatory supervision processes. There is no anticipated economic cost to persons required to comply with the amended rule as proposed.

Mr. Gutiérrez also has determined that during the first five years that the proposed amendment is in effect, The amendment will not create or eliminate a government program; will not require the creation or elimination of employee positions; will not require an increase or decrease in future legislative appropriations to the agency; will not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit or repeal an existing regulation; will not increase or decrease the number of individuals subject to the rules' applicability; and will not positively or adversely affect this state's economy.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on micro-businesses, small businesses, or rural communities as defined in Texas Government Code, Section 2006.001(2).

Comments should be directed to Bettie Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, TX 78701, or by e-mail to bettie.wells@tdcj.texas.gov. Written comments from the general public should be received within 30 days of the publication of this proposal.

The amended rule is proposed under Sections 508.036, 508.0441, and 508.045, Government Code. Section 508.036 authorizes the Board to adopt rules relating to the decision-making processes used by the Board and parole panels. Sections 508.0441 and 508.045 authorize the Board to adopt reasonable rules as proper or necessary relating to the eligibility of an offender for release to mandatory supervision and to act on matters of release to mandatory supervision.

No other statutes, articles or codes are affected by these amendments.

§141.111.Definition of Terms.

The following words and terms used within these rules shall have the following meanings, unless the context clearly indicates otherwise.

(1) Administrative Violation of Parole or Mandatory Supervision--A technical violation of parole or mandatory supervision which does not allege criminal conduct.

(2) Affinity (Marriage)--A husband-wife relationship (first degree). By virtue of the marriage, a spouse is also related to individuals related to the other spouse by blood (consanguinity), and the degree of relationship by affinity is the same as the underlying relationship of consanguinity. The ending of a marriage by divorce or death of a spouse ends relationships of affinity created by that marriage unless a child of that marriage is living, in which case the marriage is considered to continue as long as a child of that marriage lives.

(3) Board--The Texas Board of Pardons and Paroles, consisting of seven members appointed by the Governor.

(4) Commutation of sentence--An act of clemency by the Governor which serves to modify the conditions of a sentence.

(5) Conditional pardons--A form of executive clemency granted by the Governor which serves to release a person from the conditions of his or her sentence and any disabilities imposed by law thereby, subject to the conditions contained in the clemency proclamation. A person released pursuant to the terms of a conditional pardon is considered, for purposes of revocation thereof, to be a releasee.

(6) Consanguinity--A relationship in which one individual is related to another individual where one is a descendant of the other or where they share a common ancestor. An adopted child is considered to be a child of the adoptive parent for this purpose. The degree of relationship by consanguinity may be determined by adding the number of generations between an individual and the individual's ancestor or descendant.

(7) Consanguinity within the third degree--An individual's relatives within the third degree by consanguinity are the individual's parent or child (relatives in the first degree); brother, sister, grandparent, or grandchild (relatives in the second degree); and great-grandparent, great-grandchild, aunt who is a sister of a parent of the individual, uncle who is a brother of a parent of the individual, nephew who is a child of a brother or sister of the individual, or niece who is a child of a brother or sister of an individual (relatives in the third degree).

(8) CU/FI--Consecutive felony sentence vote that designates the date on which the offender would have been eligible for release on parole if the offender had been sentenced to serve a single sentence. This is not a vote to release on parole.

(9) CU/NR--Consecutive felony sentence vote to deny favorable parole action and set for review on a future specific month and year (set-off).

(10) CU/SA--Consecutive felony sentence vote to deny parole and not release the offender until the serve-all date.

(11) DMS--Mandatory supervision vote to deny release to mandatory supervision and set for review on a future specific month and year (set-off).

(12) Department--The Texas Department of Criminal Justice.

(13) Division--The Parole Division of the Texas Department of Criminal Justice.

(14) Eligible inmate--An offender who has been sentenced to a term of imprisonment in the Texas Department of Criminal Justice Correctional Institutions Division; is confined in a penal or correctional institution, including a jail or a correctional institution in another state; and is eligible for release on parole.

(15) Fiduciary--A person holding a position of trust, who has the duty, created by the undertaking, to act primarily for another's benefit in that undertaking.

(16) Full Pardon--An unconditional act of executive clemency by the Governor which serves to release a person from the conditions of his or her sentence and from any disabilities imposed by law thereby.

(17) Further Investigation (FI)--An initial determination by a parole panel favorable to parole of an offender, subject to additional investigation and processing.

(18) Hearing Officer--A staff member designated by the Board and assigned to conduct a preliminary or revocation hearing concerning one or more allegations of violation of the terms and conditions of parole, mandatory supervision, or conditional pardon; and a sex offender conditions hearing to determine whether the offender constitutes a threat to society by reason of lack of sexual control.

(19) Initial review--The review conducted by the Board not later than the 180th day an offender is eligible for release on parole.

(20) Inmate--A person incarcerated in the TDCJ-Correctional Institutions Division (CID), other penal institution, or jail serving a sentence imposed upon conviction of a felony.

(21) Institutional Parole Officer--A staff member responsible for interviewing offenders and preparing case summaries for review by a parole panel or the Board; and notifying the offender of the releasee decision along with the approval or denial reasons.

(22) Mandatory supervision--The non-discretionary release of an offender from incarceration, but not from the legal custody of the state, under such conditions and provisions for supervision as the parole panel may determine. For the purposes of revocation, the terms "parole" and "mandatory supervision" are interchangeable and reference to either one of said terms includes the other.

(23) Mandatory supervision date--The date on which the release to mandatory supervision of an eligible offender may occur.

(24) Offender--A person incarcerated in the TDCJ-Correctional Institutions Division (CID), other penal institution, or jail serving a sentence imposed upon conviction of a felony or a person released from prison on parole or mandatory supervision.

(25) Offender's file--The paper and electronic file maintained by the TDCJ Parole Division as the official custodian of record.

(26) Pardon--See the definition of "full pardon" set forth in this section.

(27) Parole--The discretionary release of an offender from incarceration, but not from the legal custody of the state, under such conditions and provisions for supervision as a parole panel may determine.

(28) Parole certificate--An order of the Board incorporating the terms and conditions of release.

(29) Parole panel--A three member decision-making body of the Board authorized to act in release matters. In certain cases, the full Board acts as the parole panel.

(30) Party--Each person or agency named or admitted as a party.

(31) Posthumous--An event occurring after death.

(32) Preliminary hearing--Hearing to determine whether probable cause exists to continue holding the offender in custody pending the outcome of the final hearing.

(33) Preponderance of the Evidence--Evidence that is of greater weight or more convincing than the evidence that is offered in opposition to it; that is evidence which as a whole shows that the fact sought to be proved is more probable than not.

(34)Projected Release Date--The minimum expiration date as determined by the Texas Department of Criminal Justice.

(35) Release plan--Proposed community and place of residence and proposed employment or proposed provision for maintenance and care of the releasee.

(36) Releasee--A person released from TDCJ-CID on parole or mandatory supervision.

(37) Remain Set- A decision by the Board, after a special review, to continue the initial denial vote set off.

(38) [(37)] Remission of fine or forfeiture--An act of clemency by the Governor releasing a person from payment of all or a portion of a fine or canceling a forfeiture of a bond.

(39) [(38)] Reprieve--A temporary release from the terms of an imposed sentence.

(40) [(39)] Review period--A period in which a parole panel will review an eligible offender for release on parole or mandatory supervision.

(41) [(40)] Revocation--The cancellation of parole, mandatory supervision, or a person granted a conditional pardon to immediate incarceration or recommend to the Governor revocation of a conditional pardon without further hearing or, in the instance of reprieve of a fine, to immediate payment of the fine.

(42) [(41)] RMS--Mandatory supervision vote to release to mandatory supervision when TDCJ-CID determines that the offender has reached the projected release date.

(43) [(42)] Serve-All (SA)--A decision by the Board to deny parole and not release the offender until the serve-all date.

(44) [(43)] Serve-All Date--The projected release date or minimum expiration date as determined by the Texas Department of Criminal Justice.

(45) [(44)] SID--State Identification Number assigned by the Texas Department of Public Safety.

(46) [(45)] TDCJ--Texas Department of Criminal Justice.

(47) [(46)] TDCJ-CID--Texas Department of Criminal Justice-Correctional Institutions Division.

(48) [(47)] Treatment--Refers to rehabilitation programs also referred to as counseling or therapy.

(49) [(48)] Trial officials--The present sheriff, each chief of police, prosecuting attorney, and judge in the county and court of conviction and release.

(50) [(49)] Victim--A person who is the victim of the offense of sexual assault, indecency with a child by contact, continuous sexual abuse of a young child or children, aggravated sexual assault, kidnapping, aggravated robbery, trafficking of persons, or injury to a child, elderly individual, or disabled individual or who has suffered personal injury or death as a result of the criminal conduct of another, as defined in the Texas Code of Criminal Procedure, Article 56.01, Sections 2(a) and 3.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 19, 2018.

TRD-201801708

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: June 3, 2018

For further information, please call: (512) 406-5480