The Policy Board of the Texas Board of Pardons and Paroles adopts an amendment to 37 TAC ง145.12, concerning action upon review with one minor change to the text as published in the October 30, 1998, issue of the Texas Register (23 TexReg 11094), in order to clarify the procedures on new voting options for use by parole panels when considering inmates for release on parole.

The Policy Board’s purpose in creating and refining these new voting options is to ensure that the inmate completes the rehabilitation program before release to parole by establishing the earliest program start date and determining the minimum number of months the inmate is to participate in the program before release to parole.

There was one comment to the proposed amendment. The commenter suggested, and the Policy Board agrees, that at the end of paragraph (5), the words "required aftercare program" be changed to "required post-release program" to more accurately reflect the Policy Board’s intention not to inadvertently impose some limitation on the discretion of TDCJ to assign inmates to the appropriate post-release program, which includes an aftercare component.

The amendment is adopted under the Code of Criminal Procedure, Article 42.18, ง8(g) and ง508.044(d)(1), Government Code, which provide the Policy Board with the authority to promulgate rules with respect to the release of inmates on parole and งง508.045-508.047 and ง508.150, Government Code, which provide the Board with the authority to release inmates eligible for parole.

ง145.12 Action Upon Review

A case reviewed by a parole panel for parole consideration may be:

(1)-(3) (No change.)
(4) determined that the totality of the circumstances favor the inmate’s release on parole, further investigation (FI) is ordered in the following manner; and, upon release to parole, all conditions of parole or release to mandatory supervision that the parole panel is required by law to impose as a condition of parole or release to mandatory supervision are imposed:

(A) FI-1–Release when eligible;
(B) FI-2 (Month/Year)–Release on a specified future date within the three year incarceration period following either the prior parole docket date or date of the panel decision if the prior parole docket date has passed;
(C) FI-3 R (Month/Year)–Transfer to a TDCJ rehabilitation program. Release to parole only after program completion and no earlier than three months from specified date. Such TDCJ program may include the Pre-Release Substance Abuse Program (PRSAP). In no event shall the specified date be set more than three years from the current docket date or the date of the panel decision if the current docket date has passed;
(D) FI-4 (Month/Year)–Transfer to Pre-parole Transfer facility prior to presumptive parole date set by board panel and release to parole supervision on presumptive parole date, but in no event shall the specified date be set more than three years from either initial eligibility date, current docket date or date of panel decision, if the aforementioned dates have passed;
(E) FI 5–Transfer to Inpatient Therapeutic Community Program. Release to aftercare component only after completion of IPTC program;
(F) FI 6 R (Month/Year)–Transfer to a TDCJ rehabilitation program. Release to parole only after program completion and no earlier than six months from specified date. Such TDCJ program may include the Pre-Release Therapeutic Community (PRTC). In no event shall the specified date be set more than three years from the current docket date or the date of the panel decision if the current docket date has passed;
(G) FI-9 R (Month/Year)–Transfer to a TDCJ rehabilitation program. Release to parole only after program completion and no earlier than nine months from specified date. Such TDCJ program may include the In-Prison Therapeutic Community (IPTC). In no event shall the specified date be set more than three years from the current docket date or the date of the panel decision if the current docket date has passed;
(H) FI-18 R (Month/Year)–Transfer to a TDCJ rehabilitation program. Release to parole only after program completion and no earlier than 18 months from specified date. Such TDCJ program may include the Sex Offender Treatment Program (SOTP). In no event shall the specified date be set more than three years from the current docket date or the date of the panel decision if the current docket date has passed;

(5) any person released to parole or mandatory supervision after completing a TDCJ treatment program must participate in and complete any required post-release program.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 19, 1999.

TRD-9900340

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Effective date: February 8, 1999

Proposal publication date: October 30, 1998

For further information, please call: (512) 463-1883

37 TAC ง145.16

The Policy Board of the Texas Board of Pardons and Paroles adopts an amendment to 37 TAC ง145.16, concerning action upon special review of additional information not previously available following approval for release to parole, with one non-substantive change to the text as published in the October 16, 1998, Texas Register (23 TexReg 10626).

The amendment is adopted in order to provide for a review of additional information received by the Board following a release decision but before the inmate’s actual release.

One comment was received and the change was adopted in which it was suggested that the words "for any reason" in the proposed new language at the end of subsection (b) be deleted in order to make sure that the rule is structured in accordance with applicable laws regarding rulemaking.

The amendment is adopted under the Code of Criminal Procedure, Article 42.18, ง8(g), and Government Code, ง508.044(d)(1), which provide the Policy Board with the authority to adopt rules with respect to the release of prisoners for parole and mandatory supervision; and Government Code, ง508.045, which provides parole panels with the authority to release inmates eligible for parole.

ง145.16. Action upon Special Review of Information Not Previously Available–Release Approved.

(a) Responses received from trial officials or victims after a release to parole or release to mandatory supervision decision shall be considered information not previously available to the parole panel. Provided that release to parole or mandatory supervision has not occurred, the responses shall be referred to the parole panel or to the board office corresponding to the board panel that rendered the release to parole or release to mandatory supervision decision. A case reviewed by a parole panel, pursuant to the receipt of information not previously available to the parole panel, may then:

(1) be continued in a release to parole or release to mandatory supervision status with or without additional conditions of release imposed; or
(2) have the release to parole or release to mandatory supervision decision withdrawn and the next review date set by the parole panel in accordance with applicable provisions of Chapter 145 of this title (relating to Parole Process).

(b) Nothing in this rule is intended to restrict a board member from reconsidering a release to parole or mandatory supervision vote.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 19, 1999.

TRD-9900335

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Effective date: February 8, 1999

Proposal publication date: October 16, 1998

For further information, please call: (512) 463–1883

37 TAC ง145.17

The Policy Board of the Texas Board of Pardons and Paroles adopts new 37 TAC ง145.17, concerning action upon special review with one minor language change in the text as published in the October 16, 1998, issue of the Texas Register(23 TexReg 10627).

The new rule is adopted for the purpose of providing a forum for receipt and consideration of information not previously available to the parole panel where the decision of the panel was to deny release to parole or mandatory supervision.

The commenter suggested, and the Policy Board agrees that the words "to reconsider the decision prior to the next review date" in subsection (d)(1) should be corrected to read "to have the decision reconsidered prior to the next review date."

The new rule is adopted under the Code of Criminal Procedure, Article 42.18, ง8(g), and Government Code, ง508.044(d)(1), which provide the Policy Board with the authority to adopt rules with respect to the release of prisoners for parole and mandatory supervision; and Government Code, ง508.045, which provides parole panels with the authority to release inmates eligible for parole.

ง145.17. Action upon Special Review of Information Not Previously Available-Release Denied

(a) This rule provides a forum for receipt and consideration of information not previously available to the parole panel where the decision of the panel was to deny release to parole or mandatory supervision. While affording a remedy for consideration of such information, the Board also intends by this rule to reduce frivolous and duplicate requests for special consideration.

(b) Requests for special review shall apply only to cases reviewed for release to parole or mandatory supervision where the decision of the parole panel was to deny release to parole or mandatory supervision.

(d) Requests for special review shall be considered in the following circumstances:

(1) a parole panel denied release to parole or mandatory supervision and a board member who voted with the majority on that panel desires to have the decision reconsidered prior to the next review date; or
(2) a petition on behalf of an inmate cites information not previously available to the parole panel.

(e) Information not previously available shall mean only:

(1) responses from trial officials and victims;
(2) a change in an inmate’s sentence and judgment; or
(3) an allegation that the parole panel commits an error of law or board rule.

(f) All requests for special review shall be filed with The Texas Board of Pardons and Paroles, Board Administrator, P.O. Box 13401, Austin, Texas 78711.

(g) The board administrator shall refer to the special review parole panel only those requests for special review which meet the criteria set forth herein.

(h) A special review parole panel shall decide and exercise final action on such requests for special review.

(i) Upon considering a case for special review, the special review parole panel may take the following action:

(1) defer for request and receipt of further information;
(2) deny special review; or
(3) grant special review and revote the case in accordance with applicable provisions of Chapter 145 of this title (relating to Parole Process).

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 19, 1999.

TRD-9900337

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Effective date: February 8, 1999

Proposal publication date: October 16, 1998

For further information, please call: (512) 463–1883

Part VI. Texas Department of Criminal Justice

Chapter 151. General Provisions

37 TAC ง151.55

The Texas Department of Criminal Justice adopts an amendment to ง151.55, concerning the disposal of surplus agricultural goods and agricultural personal property without changes to the proposed text as published in the November 27, 1998, issue of the Texas Register.

The amendment will increase accountability for the disposal of surplus agricultural goods and agricultural personal property.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Government Code, ง497.113, which specifically authorizes this section and ง492.013, which grants rulemaking authority to the Board.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900512

Carl Reynolds

General Counsel

Texas Department of Criminal Justice

Effective date: February 14, 1999

Proposal publication date: November 27, 1998

For further information, please call: (512) 463–9693

Chapter 155. Reports and Information Gathering

Subchapter C. Procedures for Resolving Contract Claims and Disputes

37 TAC ง155.31

The Texas Department of Criminal Justice adopts new ง155.31, concerning procedures for resolving contract claims and disputes, with minor changes to the text as proposed in the November 27, 1998, issue of the Texas Register (23 TexReg 11913).

The new section establishes procedures for resolving contract claims and disputes between TDCJ and other contract parties with respect to construction and non-construction contracts. Changes were made pursuant to internal review of the board’s proposal, and serve to clarify the procedures for parties to a contract claim. A contract claim deadline of 180 days from the date of substantial contract completion has been added.

No comments were received regarding adoption of the new section.

The new section is adopted under the Government Code, ง492.013, which grants general rulemaking authority.

ง55.31. Establishing Procedures for Resolving Contract Claims and Disputes.

(a) Purpose. The purpose of this section is to establish procedures for resolving contract claims and disputes between TDCJ and other contract parties with respect to construction and non-construction contracts.

(b) Policy. It is the policy of the Texas Board of Criminal Justice (the Board) and TDCJ to resolve contract claims and disputes as efficiently and as expeditiously as possible, consistent with prudent stewardship of State of Texas assets.

(1) Contract Disputes Committee (the Committee).

(A) The executive director will name the members and chairman of a Committee or Committees to serve at his or her pleasure. It will be the responsibility of the Committee to gather information, study, and meet informally with contractors, if requested, to resolve any disputes that may exist between the department office and the contractor, and which result in one or more contract claims or disputes.
(B) TDCJ stresses that, to every extent possible, disputes between a contractor and TDCJ employee, design professional, or other contractor in charge of a project or providing services in connection with a project should be resolved during the course of the contract. If, however, after completion of a contract, or when required for orderly performance prior to completion, resolution of a contract claim or dispute is not reached with the department office, the contractor should file a detailed report and request with the department office director under whose administration the contract was or is being performed that the contract claim or dispute be referred to the committee. In no event may such a contract claim or dispute be filed with the department if more than 180 days have elapsed since the date of substantial contract completion. The filed documents will be transmitted to the Committee.
(C) The Committee will secure detailed reports and recommendations from the responsible department office, and may confer with any other department office it deems appropriate.
(D) The Committee will then afford the contractor an opportunity for a meeting to informally discuss the disputed matters and to provide the contractor an opportunity to present additional relevant information and respond to information the Committee has received from the department office.
(E) The Committee chairman will give written notice of the Committee’s proposed disposition of the claim to the contractor. If that disposition is acceptable, the contractor shall advise the Committee chairman in writing within 20 days of the date such notice is received, and the chairman will forward the agreed disposition to the executive director for a final and binding order on the claim. If the contractor is dissatisfied with the proposal of the Committee, the contractor may appeal to the executive director. If the department office is dissatisfied with the proposal of the Committee, the department office may appeal to the executive director.

(2) Appeal to the Executive Director

(A) An aggrieved contractor or department office may file a written appeal of the Committee’s decision to the executive director within ten days of the Committee’s decision. The executive director or his or her designee may uphold, reverse, or modify the decision of the Committee.
(B) The executive director or his or her designee will give written notice of the proposed disposition of the claim or dispute to the contractor and department office. If that disposition is acceptable to the contractor, the contractor shall advise the executive director, in writing, within 20 days of the date such notice is received.

(3) Mediation. If the executive director’s disposition is not acceptable to the contractor, the contractor and TDCJ shall mediate in good faith in an attempt to resolve the claim or dispute. TDCJ and the contractor shall agree to a mediator and shall conduct such mediation pursuant to Chapter 2008 of the Texas Government Code and งง154.051-154.073 of the Texas Civil Practice and Remedies Code. The department office shall have no right to object to the disposition of the claim or dispute made by the executive director or his or her designee.
(4) Unsuccessful Mediation. In the event mediation does not resolve the claim or dispute to the satisfaction of the contractor and TDCJ, the parties may pursue legal remedies that would otherwise be available. TDCJ and the Board do not waive sovereign immunity from suit or liability due to the establishment of this Rule.
(5) Approval. Any settlement reached pursuant to this section may require the approval of the Texas Board of Criminal Justice, the Attorney General of Texas, the Governor of Texas, or the Texas Legislature, as required by Board policy, statutes and rules of the State of Texas, and the General Appropriations Act.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900513

Carl Reynolds

General Counsel

Texas Department of Criminal Justice

Effective date: February 14, 1999

Proposal publication date: November 27, 1998

For further information, please call: (512) 463–9693

Part XIII. Texas Commission on Fire Protection

Chapter 423. Fire Suppression

Subchapter B. Minimum Standards for Aircraft Rescue Fire Fighting Personnel

37 TAC ง423.203

The Texas Commission on Fire Protection adopts an amendment to ง423.203, concerning minimum standards for basic aircraft rescue fire fighting personnel certification, without changes to the text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12246).

The justification for this section is that the public is assured that persons responding as aircraft rescue fire fighting personnel are properly trained and evaluated in the skills necessary to safely and effectively perform their duties.

The amendments to ง423.203 add language that requires skills testing for persons seeking certification as aircraft rescue fire fighting personnel.

There were no comments received on the proposed amendments.

The amendment is adopted under Texas Government Code, ง419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, ง419.022, which provides the commission with the authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900503

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Effective date: March 1, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 918–7189

Chapter 437. Fees

37 TAC ง437.17

The Texas Commission on Fire Protection adopts new ง437.17, concerning fees for records review, without changes to the text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12247).

The justification for this section is a more efficient use of agency resources in that a records review fee will discourage requests from all but serious applicants for testing.

The new section allows the commission to charge a fee for review of training records for individuals seeking certification for out-of-state or military training. It also allows the commission to charge a fee for review of training records from the State Firemen’s and Fire Marshals’ Association of Texas or other in-state volunteer records.

There were no comments received on the proposed new section.

The new section is adopted under Texas Government Code, ง419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and ง419.026, which provides the commission with authority to establish fees for certification and examinations.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900502

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Effective date: March 1, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 918–7189

Chapter 439. Examinations for Certification

37 TAC ง439.13

The Texas Commission on Fire Protection adopts an amendment to ง439.13, concerning testing for proof of proficiency, without changes to the text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12248).

The justification for this section is the elimination of the requirement of skills evaluation deemed unnecessary where an individual has maintained skills by documenting continuing education.

The amendment to ง439.13 allows an individual who has been out of the fire service and whose certificate has expired for more than one year to be exempted from the performance skills portion of the proficiency examination provided the individual can document twenty hours of continuing education for each year since the expiration of the certificate, up to a maximum of one hundred hours.

There were no comments received on the proposed amendments.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900501

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Effective date: March 1, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 918–7189

Chapter 443. Certification Curriculum Manual

37 TAC ง443.5

The Texas Commission on Fire Protection adopts an amendment to ง443.5, concerning the effective date of new curricula or changes to curricula required by law or rule, without changes to the text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12248).

The justification for this section is that firefighters will be trained and tested in accordance with the most current National Fire Protection Association standards and associated reference materials.

The amendment to ง443.5 allows the commission to specify a date for adoption of changes to the curriculum manual, other than January 1.

There were no comments received on the proposed amendments.

The amendment is adopted under Texas Government Code, ง419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, ง419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900500

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Effective date: March 1, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 918–7189

Chapter 449. Head of a Fire Department

37 TAC ง449.1

The Texas Commission on Fire Protection adopts the repeal of ง449.1, concerning head of a fire department, without changes as published in the December 4, 1998, issue of the Texas Register (23 TexReg 12249).

The justification for this repeal is that the repeal is being replaced with new language that assures that persons appointed as a department head for a fire department are properly trained, tested, and possess experience deemed necessary for the position.

The subject matter of the repealed section will be replaced by a proposed new section dealing with the same subject matter. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, ง419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, ง419.032(f), which provides that the commission shall adopt rules for the purpose of this subsection relating to the appointment of a person to the position of head of the fire department.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900499

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Effective date: March 1, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 918–7189

The Texas Commission on Fire Protection adopts new ง449.1, concerning minimum standards for the head of a fire department, without changes to the text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12250).

The justification for this section is that the public is assured that persons appointed as a department head for a fire department are properly trained, tested, and possess experience deemed necessary for the positions.

Certification as head of a department requires completion of all requirements for certification as fire protection personnel in any discipline with an approved curriculum including testing and training and five years of experience. Alternatively, an individual with ten years of out-of-state experience in a structural fire protection personnel position or ten years of volunteer fire fighter experience may qualify for a basic certification examination. The new rule does not require current emergency care attendant certification for head of department certification and does not require performance skills evaluation for certification as head of a department. In addition, the new rule requires experience in fire suppression for departments providing fire suppression duties and experience in fire prevention activities for a department providing fire prevention only. Certification as head of the department in any one discipline does not authorize an individual to perform duties in any discipline other than the one in which certification is obtained.

There were no comments received on the proposed new section.

The new section is adopted under Texas Government Code, ง419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, ง419.032(f), which provides that the commission shall adopt rules for the purpose of this subsection relating to the appointment of a person to the position of head of the fire department.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 25, 1999.

TRD-9900498

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Effective date: March 1, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 918–7189

Chapter 461. General Administration

37 TAC ง461.4

The Texas Commission on Fire Protection adopts an amendment to ง461.4, concerning the general administration of the Fire Department Emergency Program, without changes to the text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12251).