Part I.
Texas Department of Public Safety
Chapter 3.
Traffic Law Enforcement
Subchapter E. Requirements for Displaying Vehicle Inspection Certificate
37 TAC §3.71
The Texas Department of Public Safety proposes an amendment
to §3.71 concerning vehicles exempt from the vehicle inspection program.
The justification for this section is to reflect the statutory provisions
regarding certain registered vehicles and the exemption of those vehicles
from the requirements of undergoing a vehicle inspection and displaying a
valid inspection certificate.
Tom Haas, Chief of Finance, has determined that for each year of the first
five-year period the rule is in effect there will be minimal fiscal implications
to state government and no fiscal implications to local government.
Mr. Haas also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be additional flexibility and convenience in obtaining an inspection
and clearer interpretation and understanding of the exemptions associated
with the vehicle inspection program. There is no anticipated economic cost
to persons who are required to comply with the section as proposed. There
are no anticipated economic costs to small or large businesses.
Comments on the proposal may be submitted to Mary Ann Courter, Chief of
Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas
78773-0140, (512) 424-2890.
The amendment is proposed pursuant to Texas Government Code,
§411.006(4), which provides the director with the authority to adopt
rules, subject to commission approval, considered necessary for the control
of the department.
Texas Government Code, §411.006(4) is affected by this proposal.
§3.71.Certain Registered Vehicles Exempt from Inspection.
A vehicle displaying an all-terrain validation sticker, antique license,
antique validation sticker, disaster relief license, farm trailer license,
former military vehicle license, in-transit license, machinery license, parade
license, permit license, rental trailer license, or a trailer or travel trailer
license plate if the actual gross weight or registered gross weight is 4,500
pounds or less, is not required to display a valid inspection certificate.
Additionally, a vehicle displaying a factory delivery permit,
a vehicle
being conveyed displaying a converter's temporary cardboard tag,
a one-trip
permit, or a 144-hour or 72-hour permit when issued for mobile drilling and
servicing equipment used in gas, oil, or crude production, is not required
to display a valid inspection certificate. A vehicle displaying a dealer issued
charitable organization tag or demonstration/in-transit tag [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July
30, 1999.
TRD-9904607
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 424-2135
Subchapter H. Commercial Motor Vehicle Compulsory Inspection Program
37 TAC §23.101
The Texas Department of Public Safety proposes amendments
to §23.101 concerning the Commercial Motor Vehicle Compulsory Inspection
Program. The amendment to §23.101, subsection (b) is necessary to reflect
changes resulting from the re-codification of Texas Civil Statutes to Texas
Transportation Code. Amendment to subsection (f), adds new paragraphs (6)
and (7) which are necessary to implement changes to the definition of commercial
motor vehicles resulting from the passage of House Bill 385 passed during
the 76th Texas Legislative Session.
The authority section for the amendment of §23.101 is codified in
Texas Transportation Code, Chapter 548, Subchapter D, which requires the Commission
to establish an inspection program for commercial motor vehicles that meets
the requirements of the Federal Motor Carrier Safety Regulations and also
requires a commercial motor vehicle registered in this state to pass an annual
inspection. The Commission established 37 TAC §23.101 (relating to Commercial
Vehicle Compulsory Inspection Program), which implemented an inspection program
that has been certified by the Federal Highway Administrator as meeting the
federal requirements of Title 49, Code of Federal Regulations, Part 396. House
Bill 385 extends the inspection requirements to include a school bus and a
school activity bus.
In this proposed amendment to §23.101, the Commission is establishing
procedures that would provide an operator of a school bus or a school activity
bus an opportunity to comply with the provisions of Texas Transportation Code,
§548.352 (relating to Prima Facie Speed Limits), by obtaining a commercial
vehicle inspection certificate.
Tom Haas, Chief of Finance, has determined that for each year of the first
five-year period the rule is in effect, there will be some minor fiscal implications
to state or local government if they choose to operate a school bus or school
activity bus per Texas Transportation Code, §548.352 (relating to Prima
Facie Speed Limits). The anticipated cost for complying with this rule as
proposed is the $50 inspection certificate fee.
Mr. Haas also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
or administering the rule will be that individuals are fully informed regarding
the requirements of operating a school bus or school activity bus at the speed
limits authorized in House Bill 385. There will be some minor economic impact
on small or large businesses. The anticipated cost for complying with this
rule as proposed is the $50 inspection certificate fee.
Comments on the proposal may be submitted to Mary Ann Courter, Chief of
Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas
78773-0140, (512)424-2890.
The amendment is proposed pursuant to Texas Transportation Code,
Chapter 548 and Texas Government Code, §411.006(4), which provide the
Public Safety Commission of the Texas Department of Public Safety with the
authority to establish rules for the conduct of the work of the Texas Department
of Public Safety, and which authorizes the Commission to adopt rules establishing
an inspection program for commercial motor vehicles.
This proposal affects Texas Transportation Code, Chaper 548, Subchapter
D.
§23.101.Commercial Motor Vehicle Compulsory Inspection Program.
(a)
All commercial motor vehicles registered in this state
shall be required to pass an annual inspection of all safety equipment required
by the Federal Motor Carrier Safety Regulations on or before the expiration
of the current state inspection certificate and not later than December 31,
1994.
(b)
All commercial motor vehicles required to be inspected
under the Federal Motor Carrier Safety Regulations are also subject to the
regular state inspection requirements as provided in
Texas Transportation
Code, Chapter 548
[
(c)
A fee of $50 will be charged for each commercial motor
vehicle safety inspection. A unique inspection certificate will be issued
by the department to designate that the vehicle has met the Federal Motor
Carrier Safety Regulations and state inspection requirements.
(d)
The commercial motor vehicle inspection certificate will
expire on the last day of the month and year indicated.
(e)
Except for any appropriate grace period, a person may not
operate a commercial motor vehicle registered in this state unless it is equipped
as required by the Federal Motor Carrier Safety Regulations and displays a
valid commercial motor vehicle inspection certificate.
(f)
For purposes of the Commercial Motor Vehicle Compulsory
Inspection Program, the term "commercial motor vehicle" means a self-propelled
or towed vehicle used on a public highway to transport passengers or property
if:
(1)
the vehicle or combination of vehicles has a gross weight,
registered weight, or gross weight rating of more than 26,000 pounds;
(2)
the vehicle is a farm vehicle with a gross weight,
a registered weight, or a gross weight rating of more than 48,000 pounds;
(3)
the vehicle is designed to transport more than 15
passengers, including the driver;
(4)
the vehicle is used in the transportation of hazardous
materials in a quantity requiring placarding as required under the federal
Hazardous Materials Transportation Act (49 U.S.C., §§1801-1813);[
(5)
the vehicle or combination of vehicles has a gross
weight rating of more than 10,000 pounds and is operated in interstate commerce
and registered in this state
;
[
(6)
the vehicle is a school
bus that will operate at a speed authorized by Texas Transportation Code,
§545.352(b)(A); or
(7)
the vehicle is a school
activity bus, as defined in Texas Transportation Code, §541.201, that
has a gross weight, registered weight, or gross weight rating of more than
26,000 pounds, or is designed to transport more than 15 passengers, including
the driver.
(g)
Exceptions to the commercial motor vehicle safety inspection
program are:
(1)
all school bus operations used to transport only children
and or school personnel from home to school and school to home, except that
contract school buses used for any purpose other than transporting children
to and from school only are not exempt;
(2)
transportation performed by the federal government,
state, or any political subdivision of a state or an agency established under
a compact between states that has been approved by the Congress of the United
States;
(3)
the occasional transportation of personal property
by individuals not for compensation or in the furtherance of a commercial
enterprise;
(4)
the transportation of human corpses or sick or injured
persons;
(5)
the operation of fire trucks and rescue vehicles while
involved in emergency and related operations;
(6)
the private transportation of passengers; and
(7)
farm vehicles with a gross weight, registered weight,
or gross weight rating less than 48,000 pounds (except interstate operation
of more than 10,000 pounds).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on July
30, 1999.
TRD-9904608
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 424-2135
Chapter 141.
General Provisions
Subchapter G. Definition of Terms
37 TAC §141.111
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §141.111, concerning Definition of Terms.
The amendment is proposed for the purpose of defining "Policy Board" and to
delete the definition of the obsolete "Executive Committee." The new definitions
are proposed in order to continue compliance with House Bill 1386, Chapter
161, §7, Acts of the 75th Legislature, Regular Session, (effective September
1, 1997), recommended by the Sunset Advisory Commission, by which the Legislature
created the Policy Board.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of the Policy
Board's procedures.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §§2,
6A, 6C, and 7 of the Code of Criminal Procedure (repealed effective September
1, 1999), to be recodified as §§508.001(8), 508.036, and 508.0361
of the Government Code.
There is no cross-reference to the proposed amended rule.
§141.111. Definitions.
The following words and terms, when used in this section, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(18)
(No change.)
[
Executive committee--Six
members appointed by the Chairman to perform duties as described in Texas
Code of Criminal Procedure, Article 42.18, §6(c).]
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
Policy Board--Six members
of the board appointed by the governor as an additional duty of office, who
vote on policy matters affecting the entire board.
(37)-(49)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
July 29, 1999.
TRD-9904553
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
Subchapter A. Parole Process
37 TAC §145.3
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §145.3, concerning policy statements
relating to parole release decisions by the Board. The amendment is proposed
for the purpose of clarifying the procedures involved in consideration of
inmates eligible for release on special needs parole.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will that inmates will be allowed to
pursue an application for special needs parole if they are more than six months
away from their parole review date.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§145.3.Policy Statements Relating to Parole Release Decisions by the Board of Pardons and Paroles.
To aid the Board of Pardons and Paroles in its analysis and research
of parole release, the board adopts the following policies.
(1)
(No change.)
(2)
An inmate will be considered for parole when eligible
and when the inmate meets the following criteria with regard to behavior during
incarceration.
(A)-(E)
(No change.)
(F)
An inmate who is otherwise eligible for
release and meets the criteria for special needs parole as required by Government
Code, §508.146 may be considered for release on parole if the parole
docket date is more than six months from the date of application for special
needs parole.
(3)
Any consideration by a Board member of an inmate's
litigation activities when determining an inmate's candidacy for parole is
strictly prohibited. No inmate will be denied the opportunity to present to
the judiciary, including appellate courts, his or her allegations concerning
violations of fundamental constitutional rights. Any consideration of such
legal activity during the parole process is a violation of Board policy. In
the event parole is denied in violation of this subsection, the inmate may
pursue a remedy under the special review provisions of
§145.17 of
this title (relating to Action upon Review of Information Not Previously Available--Release
Denied)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on July
29, 1999.
TRD-9904556
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
37 TAC §145.21
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §145.21, concerning parole in absentia
for prisoners not in actual physical custody of the TDCJ Institutional Division.
The amendment is proposed for the purpose of making non-substantive changes
in the language of the rule.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of procedures
regarding parole review and mandatory supervision for prisoners not in actual
physical custody of the TDCJ Institutional Division.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§145.21.Parole in Absentia (Parole Review and Mandatory Supervision for Prisoners Not in Actual Physical Custody of the TDCJ [
Prisoners serving state prison sentences for Texas crimes and prisoners
whose
parole or mandatory supervision
[
(1)
Parole in absentia processing is initiated by the assigned
Institutional Division staff upon referral from the county of conviction when
all necessary pen packet documents have been compiled and presented to the
Institutional Division.
(2)
Prior to consideration for parole by the parole panel,
the inmate may be interviewed by a representative of the Institutional Division
for the purpose of obtaining a parole release plan and completion of a parole
in absentia summary in order that the parole panel may make an informed decision
concerning parole release suitability (§145.12 of this title (relating
to Action upon Review)
;
[
(3)
A prisoner released to parole in absentia or mandatory
supervision on a Texas felony sentence shall, after release, be treated the
same as a prisoner released on parole or mandatory supervision directly from
the TDCJ [
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on July
29, 1999.
TRD-9904554
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
37 TAC §145.26
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §145.26, concerning annual report status.
The amendment is proposed for the purpose of updating the rule to reflect
current Board policy of not approving parolees for annual report status.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of procedures
regarding annual report status of releasees.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§145.26.Annual Report Status.
(a)
Annual report status is a releasee status which releases
the parolee from the original terms and conditions of parole, releases the
individual from the direct supervision of a parole officer, and is conditional
upon the releasee's acceptance of and compliance with the annual report rules.
(b)
A releasee
shall not
[
[
a minimum of two years if
released from a sentence of less than ten years; or]
[
a minimum of three years
if released from a sentence of ten years or more but less than 30 years; or]
[
a minimum of five years
if released from a sentence of 30 years or more.]
[
A recommendation to a parole
panel for transfer to annual report status must be approved by the supervisor
of the region of the Pardons and Paroles Division in which the releasee is
under active supervision at the time of the recommendation.]
[
The releasee remains subject
to the rules of the board and subject to its orders while on an annual report
status.]
(c)
[
[
The rules for a releasee on
annual report status are listed in the following paragraphs.]
[
Each year, from the date of the acceptance
of this order for annual report, the releasee will report in writing to the
regional supervisor of the region of parole supervision where releasee was
residing when first placed on annual reporting status; said report showing
his or her current employment and residence. This annual report will be made
until the term of his or her administrative release expires. Failure to submit
this report each year could result in his or her being returned to active
release supervision, or the issuance of a pre-revocation warrant or summons
for his or her arrest and possible return to the TDCJ-Institutional Division.]
[
The releasee will obey all federal, state,
county and municipal laws and ordinances.]
[
The releasee will not communicate with
any inmate of a penal institution, unless approved in writing to do so by
a warden or general manager of the penal institution; the original or a copy
of such approval shall be immediately sent by the releasee to the Director
of Parole Supervision, 8610 Shoal Creek Boulevard, Box 13401, Austin, Texas
78711.]
[
The releasee shall not own, possess, use
nor have under his or her control any firearms, prohibited weapons or illegal
weapons as defined in the Texas Penal Code; nor shall he unlawfully carry
any weapon nor use, attempt or threaten to use any tool, implement or object
or to cause or to threaten to cause any bodily injury.]
[
The releasee will report, in writing,
the fact of any arrest or change or residential address within five days of
its occurrence, to the supervisor of the region of the Pardons and Paroles
Division in the region where releasee was residing when first placed on annual
report.]
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on July
29, 1999.
TRD-9904555
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
37 TAC §145.54
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §145.54, concerning a releasee's motion
to reopen a hearing. The amendment is proposed for the purpose of changing
the application period from 30 days to 45 days from the date of the Board's
revocation decision. In addition, the amendment is proposed for the purpose
of making non-substantive changes in the language of the rule.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of procedures
regarding the application process for motions to reopen the revocation hearing.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§145.54.Releasee's Motion To Reopen Hearing.
(a)
[
(1)
that there is new, relevant, competent evidence which is
of probative value on a material issue of fact or law, not merely collateral
or cumulative, which, in the exercise of reasonable diligence, was unavailable
at the time of the hearing;
(2)
that the findings of fact [
(A)
are not supported by a preponderance of the credible evidence;
or
(B)
are contrary to the law;
(3)
that the
procedures
[
(b)
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 (certified, return receipt requested) and addressed to the Texas Board
of Pardons and Paroles,
Board Administrator
[
[(c)
On receipt of any such request for reopening,
the staff counsel shall cause the same to be transmitted to the board or board
panel, together with any response thereto by the staff counsel for final action
on the request. Whenever such a transmittal includes such a response, the
releasee and his or her attorney, if any, shall be notified in writing of
the board's decision.]
(c)
[
(1)
granting of the motion and ordering that the hearing be
reopened for a stated specified and limited purpose, in which event the case
shall be referred to a parole panel;
(2)
denial of the motion; or
(3)
reversal of the final board disposition previously
entered and withdrawal of the warrant, under the same terms and provisions
as provided in
§146.10
[
(d)
The releasee and his or her attorney,
if any, shall be notified in writing of the board's decision.
(e)
When a releasee's motion
to reopen
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
July 29, 1999.
TRD-9904557
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
37 TAC §145.55
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §145.55, concerning procedures after
a motion to reopen is granted. The amendment is proposed for the purpose of
making non-substantive changes in the language of the rule.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of procedures
after a motion to reopen is granted.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§145.55.Procedure after Motion To Reopen Is Granted; Time; Rights of the Releasee; Final Disposition.
(a)
When the board panel disposes of a releasee's motion to
reopen under §145.54 of this title (relating to Releasee's Motion To
Reopen Hearing) by granting said
motion
[
(b)
The purpose of the further proceedings before the parole
panel or hearing officer under this section shall be as specified by the board
panel in its order granting the releasee's motion to reopen pursuant to
§145.54(c)(1)
[
(c)
When the parole panel or hearing officer convenes the reopening
of the hearing, it shall have before it the entire record previously compiled
in the case, including:
(1)
the record, report, and recommendation of the preliminary
or revocation
hearing
(§146.7 of this title (relating to Preliminary
Hearing) and §146.9 of this title (relating to Revocation Hearing))
[
(2)
any amendments, supplements, or modifications of the
record, report, [
(3)
the releasee's motion to reopen the hearing under
§145.54 of this title (relating to Releasee's Motion To Reopen Hearing);
and
(4)
any
transmittal submitted to the board panel
with recommendation from board staff
[
(d)
The parole panel or hearing officer before which a case
is reconvened under this section shall give due weight to the findings of
fact and conclusions of law entered in the hearing officer's report, except
to the extent that such findings may be undermined or called into question
in the board's order for reopening pursuant to
§145.54(c)(1)
[
(e)
In carrying out its responsibility under subsection (d)
of this section, the parole panel or hearing officer may, in
his or her
[
(f)
At the conclusion of the proceedings before the parole
panel or hearing officer, or within a reasonable time thereafter, the parole
panel [
(1)
recommending to the board or governor that the
parole
or mandatory supervision
[
(2)
ordering the withdrawal of the warrant, if any, and
continuation of the
parole or mandatory supervision
[
(g)
The
releasee
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
July 29, 1999.
TRD-9904558
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
37 TAC §145.71
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §145.71, concerning the procedure for
filing motions for reinstatement of the releasee following a revocation of
parole or mandatory supervision. The amendment is proposed for the purpose
of making non-substantive changes in the language of the rule.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of procedures
that are to be followed when requesting a reinstatement of parole.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§145.71.Reinstatement; Exceptional Circumstances; Hearing.
(a)
Except for persons revoked and reinstated in accord with
the provisions of §145.56 of this title (relating to Revocation of [
(b)
A request for reinstatement of a revoked
releasee
[
(1)
judicial reversal of a judgment of conviction of a criminal
offense
where the
[
(2)
initial revocation effected without opportunity for
a hearing
as required under law
[
(3)
other exceptional circumstances.
(c)
All requests for reinstatement of
parole or mandatory
supervision
[
(d)
Upon review of the person's request for reinstatement of
parole or mandatory supervision
[
(1)
order that the revoked
releasee
[
(2)
grant a reinstatement hearing;
(3)
deny the request for reinstatement; or
(4)
take any other action allowed by law.
(e)
If the board grants a reinstatement hearing, the case shall
be referred to a parole panel or a designee of the board
to conduct
[
(f)
In any reinstatement hearing, the burden is on the revoked
releasee to show by a preponderance of the credible evidence that there
are
[
(g)
After
a
hearing under
Chapter 146 of this
title (relating to Revocation of Parole or Mandatory Supervision
[
(1)
reinstatement under the same or modified conditions of
release;
(2)
deny the request for reinstatement; or
(3)
take any other action allowed by law.
(h)
Upon the approval of reinstatement by a parole panel, the
person shall be ordered released.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
July 29, 1999.
TRD-9904559
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
Subchapter A. Rules and Conditions of Mandatory Supervision
37 TAC §149.5
The Policy Board of the Texas Board of Pardons and Paroles
proposes an amendment to 37 TAC §149.5, concerning annual report status.
The amendment is proposed for the purpose of updating the rule to reflect
current Board policy of not approving persons on mandatory supervision for
annual report status.
Gerald Garrett, Chair of the Policy Board, has determined that for the
first five-year period the proposed amended rule is in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering this section.
Chairman Garrett also has determined that for each year of the first five
years the amended rule as proposed is in effect, the public benefit anticipated
as a result of enforcing the section will be a clarification of procedures
regarding annual report status of persons on mandatory supervision.
There will be no effect on small businesses. There is no anticipated economic
cost to persons required to comply with the amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments
from the general public should be received within 30 days of the publication
of this amendment.
The amendment is proposed under Article 42.18, §6A(c)(1),
Code of Criminal Procedure, Article, to be recodified effective September
1, 1999, as §508.036(c)(1); and under Article 42.18, §8(g), to be
recodified effective September 1, 1999, as §508.044(d), Government Code.
Both of these statutes provide specific rulemaking authority for the Policy
Board of the Board of Pardons and Paroles.
There is no cross-reference to the proposed amended rule.
§149.5.Annual Report Status.
(a)
Annual report status is a mandatory supervision releasee
status which releases the releasee from the original terms and conditions
of mandatory supervision, releases the releasee from direct supervision of
a parole officer, and is conditional upon the mandatory supervision releasee's
acceptance of and compliance with the annual report rules.
(b)
A mandatory supervision releasee
shall not
[
[(c)
A recommendation for transfer to annual
report status must be approved by the supervisor of the region of the Division
of Parole Supervision in which the mandatory releasee is under active supervision
at the time of the recommendation.]
[(d)
Transfer to annual report status in no
way affects the authority of a parole panel to recommend the revocation of
mandatory supervision. The releasee remains subject to the jurisdiction of
the board and subject to its orders while on annual report status.]
(c)
[
[(f)
The rules for a mandatory supervision
releasee on annual report are as follows.]
[(1)
Each year, from the date of the acceptance of the order
for annual report, the releasee will submit, in writing, to the regional supervisor
of the region of parole supervision, a report showing his or her current employment
and residence. This annual report will be made until the term of his or her
mandatory supervision expires. Failure to submit this report each year could
result in the releasee being returned to active mandatory supervision, or
the issuance of a prerevocation warrant for his or her arrest and possible
return to the Texas Department of Corrections.]
[(2)
The releasee will obey all federal, state, and municipal
laws and ordinances.]
[(3)
The releasee will not communicate with any inmate
of a penal institution nor visit any such institution, except as provided
in §149.4 of this title (relating to Visits to Penal Institutions).]
[(4)
The releasee will not own, possess, use, sell, nor
have under his or her control any firearm, prohibited weapon, or illegal weapon;
nor shall he or she unlawfully carry any weapon; nor use, attempt, or threaten
to use any tool; implement, or object to cause or threaten to cause any bodily
injury.]
[(5)
The releasee will report, in writing, the fact of
any arrest, or change of residential address within five days of its occurrence,
to the supervisor of the region of the Division of Parole Supervision in the
region where releasee was residing when first placed on annual report.]
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
July 29, 1999.
TRD-9904560
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 463-1883
Chapter 343.
Standards for Juvenile Pre-Adjudication Secure Detention Facilities
also
]is
not required to display a valid inspection certificate.
A vehicle which
qualifies for a tax exemption under Tax Code, §152.092 is not required
to display a valid inspection certificate.
Chapter 23.
Vehicle Inspection
Texas Civil Statutes, Article 6701d, §140
].
or
]
.
]
Part V.
Texas Board of Pardons and Paroles
(19)
(20)
] 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.
(21)
] Full Pardon--An unconditional
act of executive clemency by the governor which serves to release the grantee
from the conditions of his or her sentence and from any disabilities imposed
by law thereby.
(22)
] Further Investigation
(FI)--An initial determination by a parole panel favorable to parole of an
inmate, subject to additional investigation and processing.
(23)
] Hearing officer--A
staff member designated by the board and assigned to conduct an administrative
release revocation hearing concerning one or more allegations of violation
of the terms and/or conditions of parole, mandatory supervision, or conditional
pardon.
(24)
] Hearing section--The
hearings section of the Texas Board of Pardons and Paroles.
(25)
] Inmate--A person incarcerated
in the TDCJ-Institutional Division, other penal institution, or jail serving
a sentence imposed upon conviction of a felony.
(26)
] Mandatory supervision--The
non-discretionary release of a prisoner from imprisonment but not from the
legal custody of the state, under such conditions and provisions for supervision
as the board panel may determine. A prisoner released to mandatory supervision
is deemed as if on parole. For the purposes of revocation, the terms "parole"
and "mandatory supervision" are interchangeable and reference to either one
of said terms includes the other.
(27)
] Mandatory supervision
certificate--An order of the board or board panel incorporating the terms
and conditions of supervision.
(28)
] Mandatory supervision
date--The date on which the release to mandatory supervision of an eligible
prisoner may occur.
(29)
] Mandatory supervision
releasee and mandatory releasee--A person released from prison under mandatory
supervision (see definition of "mandatory supervision" set forth in this section).
A mandatory releasee is also an administrative releasee (see definition of
"administrative releasee" set forth in this section).
(30)
] Pardon--See the definition
of full pardon set forth in this section.
(31)
] Parole--The discretionary
release of a prisoner from imprisonment but not from the legal custody of
the state, under such conditions and provisions for supervision as the board
or board panel may determine.
(32)
] Parole certificate--An
order of the board or board panel, incorporating the terms and conditions
of release (See Contract of Release).
(33)
] Parole officer--A person
duly appointed by the director of the TDCJ-Parole Division and assigned the
duty of supervising administrative releasees.
(34)
] Parole panel--A three
member decision-making body authorized to act in administrative release matters.
(35)
] Parolee--A person released
from prison on parole (see definition of parole set forth in this section).
A parolee is also an administrative releasee (see definition of "administrative
releasee" set forth in this section).
(36)
] Party--Each person
or agency named or admitted as a party.
Chapter 145.
Parole
§145.16(b) of this title (relating to Action Upon
Review of Additional Information)
].
Subchapter B. Terms and Conditions of Parole - ] Institutional Division).
administrative release
status
] has been revoked who are not in the actual physical custody
of the Texas Department of Criminal Justice [
--
] Institutional
Division are subject to the parole review process as set out in this chapter
and title [
, generally,
] in accord with the following.
and
] §145.16 of this title
(relating to Action upon
Special
Review of [
Additional
]
Information
Not Previously Available--Release Approved), and §145.17
of this title (relating to Action upon Special Review of Information Not Previously
Available--Release Denied)
).
-
] Institutional Division. Such [
administrative
] releasees are subject to revocation for violation of the terms and
conditions of their release pursuant to the provisions and procedures of
Chapter 146 of this title
[
this chapter and title relating to the
revocation
]
(relating to Revocation
of
Parole or Mandatory
Supervision (§§146.3-146.10))
[
administrative release
(§§145.41-145.55 of this title (relating to Parole and Mandatory
Supervision and Executive Clemency))
].
may
] be considered
by a parole panel for annual report status [
upon the recommendation of
his or her parole officer after having been satisfactorily under supervision
for:
]
(1)
(2)
(3)
(c)
(d)
(e)
] A parole panel may, at its
discretion and without notice, set aside
any previous
[
an
] order of transfer to annual report status and impose any additional
rules or conditions of release as the parole panel may deem to be proper.
(f)
(1)
(2)
(3)
(4)
(5)
Subchapter C. Revocation of Parole or Mandatory Supervision
When the releasee receives notice as a result of
a revocation hearing that the board's decision is revocation,
]
The releasee
[
he or she
] shall have
45
[
30
] days from the date of the board's
revocation
decision
to request a reopening of the case for further development of factual or legal
issues. Such a reopening shall be granted [
under the following circumstances
and/or
] on the following grounds only:
and/
] or conclusions
of law, or both:
procedure
] followed in the hearing, review, [
and/
] or disposition
of the case are
violations
[
violative
] of the law.
Staff Counsel
], P.O. Box 13401, Austin, Texas 78711.
(d)
] On transmittal, the board shall
dispose of the motion by:
§145.53(d)
] of this
title (relating to Final Board Disposition) [
, and §145.57 of this
title (relating to Warrant Withdrawal Approved by the Board)
].
for
reopening
] 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 §145.55
of this title (relating to Procedure after Motion To Reopen Is Granted; Time;
Rights of the Releasee; Final Disposition).
notion
], the
case shall be disposed of or referred to a parole panel or hearing officer
for final disposition in accordance with this section
;
and the
previous disposition of the case made by the board under
§146.10
[
§145.50(b)
] of this title (
relating to Final
Board Disposition
[
relating to Administrative Release (Revocation)
Preliminary Hearing
]) shall be set aside and
shall be
of
no force and effect.
§145.54(d)(1)
] of this title (relating
to Releasee's Motion To Reopen Hearing).
(§145.50 of this title (relating to Administrative Release (Revocation)
Preliminary Hearing) and §145.51 of this title (relating to Administrative
Release Revocation Hearing))
] collected [
and/
] or prepared
by the [
staff
] hearing officer originally assigned to the case;
and/
] or recommendation as developed through prior
reopenings of the case [
under §145.52(b)(2) and (c) and §145.53(b)(3)
and (e) of this title (relating to Review of Administrative Release Revocation
Hearing Record; Report and Recommendation of the Hearing Officer; and Final
Board Disposition)
];
response or recommendation
of the staff counsel regarding the record, report, or recommendation of the
hearing officer of the releasee's motion to reopen
].
§145.54(d)(1)
] of this title (relating to Releasee's Motion
To Reopen Hearing). When the parole panel or hearing officer, on the basis
of proceedings before it under this section, determines not to give weight
to one or more findings of fact or conclusions of law duly entered in the
hearing officer's report, it shall specify which findings [
and/
]
or conclusions are rejected, the reasons therefor, and whether new findings
[
and/
] or conclusions are to be substituted [
and/
] or
added to the report.
its
] discretion, hear new evidence offered by the releasee
or the board's representative.
or hearing officer
] shall make final disposition of the
case by taking one of the following actions:
administrative release in question
]
be revoked; or
administrative
release
] under the same or modified terms [
and/
] or conditions,
or, when the sentence of the
releasee
[
release
] has
expired, release to discharge.
administrative release
]
shall be entitled to the same rights at any proceedings under this section
as those enumerated in
Chapter 146 of this title (relating to Revocation
of Parole or Mandatory Supervision)
[
§145.49 of this title
(relating to Rights of the Administrative Releasee in the Revocation Process),
except to the extent that said rights have been fully and completely afforded
during previous proceedings under §145.51 of this title (relating to
Administrative Release Revocation Hearing)
].
Subchapter D. Reinstatement of Parole or Mandatory Supervision After Revocation
Administrative Release (
] Parole[
,
]
or
Mandatory
Supervision); Recommendation; Proclamation; Warrant), there is no entitlement
to consideration for reinstatement of a revoked
releasee
[
administrative release
].
administrative release may be addressed to the board and
]
should specify the [
purported
] exceptional circumstances which
justify such action as follows:
which
] offense constituted an underlying
factor in the initial revocation decision;
, under the old law which
authorized to board to revoke the administrative release status when the releasee
received a new felony conviction with time served in a penal institution,
but only where the releasee is arrested/detained on authority of the warrant
subsequent to the date the court declared the old law
]; or
administrative release
]
must be in writing
and delivered to the board or placed in the United States mail (certified,
return receipt requested) and addressed to the Texas Board of Pardons and
Paroles, Board Administrator, P. O. Box 13401, Austin, Texas 78711
[
shall be referred to the General Counsel or Director of Paroles, Hearings,
and Clemency for review, investigation, and transmittal
].
administrative release
],
the board shall:
administrative
release
] be reinstated;
for the conducting of
] such hearing, to be held within a reasonable
time.
exist
] exceptional circumstances which warrant such
action.
the applicable sections therefor under Chapter 147 of this title (relating
to Hearings)
], the parole panel shall make final disposition as follows:
Chapter 149.
Mandatory Supervision
may
] be considered for annual report status [
upon the evaluation
and recommendation of his or her parole officer after having been satisfactorily
under mandatory supervision for a reasonable time
].
(e)
] A parole panel may, at its
discretion and without notice, set aside
any previous
[
an
] order of transfer to annual report and impose any additional rules
of mandatory supervision as the parole panel may deem to be proper.
Part XI.
Texas Juvenile Probation Commission