TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 146. REVOCATION OF PAROLE OR MANDATORY SUPERVISION

37 TAC §§146.6, 146.8, 146.11

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 146, §§146.6, 146.8, and 146.11 concerning revocation of parole or mandatory supervision. The amendments are proposed to capitalize titles and reformat statutory references throughout the rules.

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 these sections.

Mr. Gutiérrez also has determined that during the first five years that the proposed amendments are in effect, the amendments 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.

Comments should be directed to Bettie Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, Texas 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 rules are proposed under Texas Government Code Sections 508.036, 508.0441(a)(5), 508.045(c), 508.281, 508.2811, and 508.283. Section 508.036 requires the board to adopt rules relating to the decision-making processes used by the board and parole panels. Section 508.0441(a)(5) vests the Board with the authority to determine the continuation, modification, and revocation of parole or mandatory supervision. Section 508.045(c) provides parole panels with the authority to conduct parole revocation and mandatory supervision revocation hearings; and to grant, deny, revoke parole or mandatory supervision. Sections 508.281 and §508.2811 relate to hearings determining violations of the releasee's parole or mandatory supervision. Sections 508.282 and 508.283 concern deadlines and sanctions for parole revocation and mandatory supervision revocation hearings.

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

§146.6.Scheduling of Preliminary Hearing.

(a) Upon request, the Board or the Board's scheduling staff shall schedule a preliminary hearing unless:

(1) more than fourteen calendar days have elapsed from the time that the warrant is executed; or

(2) information has not been presented to the Board or the Board's scheduling staff that the releasee was served with the following:

(A) notice of the right to a preliminary hearing and that its purpose is to determine whether there is probable cause or reasonable belief to believe the releasee has committed a parole violation;

(B) written notice of the allegations of parole violation against the releasee;

(C) notice of the right to full disclosure of the evidence;

(D) notice that releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;

(E) notice that the releasee has the right to confront and cross-examine adverse witnesses unless the Hearing Officer specifically finds good cause for not allowing confrontation of the witness;

(F) notice that the case will be heard by a parole panel or designee of the Board;

(G) notice that the releasee has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the releasee waives the revocation hearing, the Board will in all probability revoke; and

(H) notice that the releasee has the right to retain an attorney and the conditional right to an appointed attorney.

(b) For the purposes of subsection (a)(1) of this section, a warrant is executed if:

(1) the releasee is arrested only on a charge that the releasee has committed a violation of a condition of parole or mandatory supervision and is not charged before the 41st day with the commission of an offense; or

(2) the sheriff having custody of the releasee notifies the division that the releasee has discharged the sentence or that the prosecutor has dismissed the charge under Article 32.02, [Texas] Code of Criminal Procedure.

(c) If the Board or the Board's scheduling staff receives a request for a preliminary hearing later than the fourteenth calendar day following the provisions described in subsection (a)(1) of this section, the Board or the Board's scheduling staff shall require the requestor to provide an explanation of the delay.

(d) Subsection (a)(1) of this section does not apply when a releasee is:

(1) transferred under Section 508.284, Government Code[, Section 508.284,] to a correctional facility operated by or under contract with the department; or

(2) returned to custody from another state, a federal correctional institution, or a medical or psychiatric facility.

(e) In cases under subsection (d) of this section, a preliminary hearing shall be held within a reasonable time.

§146.8.Scheduling of Revocation Hearings.

(a) Upon request, the Board or the Board's scheduling staff shall schedule a revocation hearing unless information has not been presented to the Board or the Board's scheduling staff that the releasee was served with the following:

(1) notice of the right to a revocation hearing and that its purpose is to make a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation of parole;

(2) written notice of the allegations of parole violation against the releasee;

(3) notice of the right to full disclosure of the evidence against the releasee;

(4) notice that releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;

(5) notice that the releasee has the right to confront and cross-examine adverse witnesses unless the Hearing Officer specifically finds good cause for not allowing confrontation of the witness;

(6) notice that releasee has an opportunity to be heard and to show that he did not violate the conditions, or if the releasee did, that circumstances in mitigation suggest that the violation does not warrant revocation;

(7) notice that the case will be heard by a parole panel or designee of the Board;

(8) notice that the releasee has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the releasee waives the revocation hearing, the Board will in all probability revoke; and

(9) notice that the releasee has the right to retain an attorney and the conditional right to an appointed attorney.

(b) If the releasee is not entitled to a preliminary hearing and requests a revocation hearing, the Board or the Board's scheduling staff shall schedule a revocation hearing unless:

(1) more than fourteen calendar days have elapsed from the time that the warrant is executed; or

(2) information has not been presented to the Board or the Board's scheduling staff that the releasee was served with the following:

(A) notice of the right to a revocation hearing and that its purpose is to make a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation of parole;

(B) written notice of the claimed allegations of parole violation against the releasee;

(C) notice of the right to full disclosure of the evidence;

(D) notice that releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;

(E) notice that the releasee has the right to confront and cross-examine adverse witnesses unless the Hearing Officer specifically finds good cause for not allowing confrontation of the witness;

(F) notice that releasee has an opportunity to be heard and to show that he did not violate the conditions, or if the releasee did, that circumstances in mitigation suggest that the violation does not warrant revocation;

(G) notice that the case will be heard by a parole panel or designee of the Board;

(H) notice that the releasee has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the releasee waives the revocation hearing, the Board will in all probability revoke; and

(I) notice that the releasee has the right to retain an attorney and the conditional right to an appointed attorney.

(c) If the Board or the Board's scheduling staff receives a request for a revocation hearing later than the fourteenth calendar day following the provisions described in subsection (b)(1) of this section, the Board or the Board's scheduling staff shall require the requestor to provide an explanation of the delay.

(d) Subsection (b)(1) of this section does not apply when a releasee is:

(1) transferred under Section 508.284, Government Code[, Section 508.284,] to a correctional facility operated by or under contract with the department; or

(2) returned to custody from another state, a federal correctional institution, or a medical or psychiatric facility.

(e) For the purposes of subsection (b)(1) of this section, a warrant is executed if:

(1) the releasee is arrested only on a charge that the releasee has committed a violation of a condition of parole or mandatory supervision and is not charged before the 41st day with the commission of an offense; or

(2) the sheriff having custody of the releasee notifies the division that the releasee has discharged the sentence or that the prosecutor has dismissed the charge under Article 32.02, [Texas] Code of Criminal Procedure.

(f) In cases under subsection (d) of this section, a revocation hearing shall be held within a reasonable time.

§146.11.Releasee's Motion to Reopen Hearing or Reinstate Supervision.

(a) The releasee or releasee's attorney shall have 60 days from the date of the parole panel's revocation decision to submit a written request for reopening a case for any substantial error in the revocation process or upon newly discovered information.

(b) A written request to reopen the revocation hearing or reinstate supervision submitted later than 60 days from the date of the parole panel's revocation decision will not be considered unless under exceptional circumstances including but not limited to:

(1) judicial reversal of a judgment of conviction of a criminal offense where the offense constituted an underlying factor in the initial revocation decision;

(2) judicial order requiring a hearing;

(3) initial revocation effected without opportunity for a hearing or waiver as required under law.

(c) Any such request for reopening made under this section must be in writing and delivered to the Board or placed in the United States mail and addressed to the Texas Board of Pardons and Paroles, Attention: General Counsel, 8610 Shoal Creek Blvd., Austin, Texas 78757.

(d) On transmittal, a parole panel designated by the Chair [chair] other than the original panel shall dispose of the motion by:

(1) granting of the motion and ordering that the hearing be reopened for a stated specified and limited purpose;

(2) denial of the motion; or

(3) reversal of the panel decision previously entered and withdrawal of the Board's revocation warrant, under the same terms and provisions as provided in §146.10 of this title (relating to Final Board Disposition).

(e) The releasee and attorney, if any, shall be notified in writing of the parole panel's decision.

(f) When a releasee's motion to reopen the hearing under this section is granted, the releasee shall be deemed to have consented to such further reasonable delay in the final disposition of his or her case as shall be required for the procedure described in §146.12 of this title (relating to Procedure after Motion to Reopen is Granted; Time; Rights of the Releasee; Final Disposition).

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 January 18, 2019.

TRD-201900152

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 3, 2019

For further information, please call: (512) 463-8216