Part 3. TEXAS YOUTH COMMISSION

Chapter 85. ADMISSION AND PLACEMENT

Subchapter B. PLACEMENT PLANNING

37 TAC §85.23

The Texas Youth Commission (TYC) proposes an amendment to §85.23, concerning Classification. The amendment to the section will ensure that sentenced offenders are not released from confinement except under rules controlling such release. The amendment will also add the penal code offense 22.11 Harassment by Persons in Certain Correctional Facilities, also known as "chunking", and 22.105 Coercing, Soliciting or Inducting Gang Membership, as a type B violent offense. The classification, type B violent offender is a TYC administratively assigned classification based on a youth's committing or classifying offense. A 12 month minimum length of stay in a high restriction facility is attached when a youth is classified as a type B violent offender.

Terry Graham, Assistant Deputy Executive Director for Financial Support, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Graham also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be greater protection for TYC staff and the general public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. No private real property rights are affected by adoption of this rule.

Comments on the proposal may be submitted to Gail Graham, Policy and Manuals Manager, Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas, 78765.

The amendment is proposed under the Human Resources Code, §61.75, which provides the Texas Youth Commission with the authority to determine the treatment of youth.

The proposed rule implements the Human Resource Code, §61.034, which provides the Texas Youth Commission with the authority to adopt rules to accomplish its function.

§85.23.Classification.

(a)

(No change.)

(b)

Explanation of Terms Used.

(1)

(No change.)

(2)

Classifying offense--the offense on which classification is based. It is the most serious of the relevant offenses documented in the youth's record. Relevant offenses are:

(A)

(No change.)

(B)

following a level I hearing, the offense(s) found at the hearing except when the hearing is for a youth classified as a sentenced offender, in which case, the youth's classification continues to be sentenced offender .

(3)-(5)

(No change.)

(c)

(No change.)

(d)

Classifications.

(1)-(2)

(No change.)

(3)

Type B-Violent Offender. A type B violent offender is a youth whose classifying offense is the commission, attempted commission, conspiracy to commit, solicitation, solicitation of a minor to commit, or engaging in organized criminal activity to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition for each offense listed in (A)-(V) of this subsection in its entirety except where TYC policy limits the applicability to specific subsections or under the conditions named.

(A)-(P)

(No change.)

(Q)

harassment by persons in secure correctional facilities, 22.11

(R)

coercing, soliciting or inducing gang membership, 22.015, felony only

(S)

[ (Q) ] arson, 28.02, all

(T)

[ (R) ] robbery, 29.02, all

(U)

[ (S) ] aggravated robbery, 29.03, all

(V)

[ (T) ] burglary, 30.02, only with intent to commit any other type A or type B violent offense

(W)

[ (U) ] intoxication assault, 49.07, all

(X)

[ (V) ] intoxication manslaughter, 49.08, all

(Y)

[ (W) ] intentionally participating with at least two other persons in conduct at a contract program or TYC operated facility that threatens imminent harm to persons or property and substantially obstructs the performance of facility operations or a program therein[ . ]

(Z)

[ (X) ] intentionally, knowingly, or recklessly causing bodily injury to a:

(i)

TYC employee;

(ii)

contract program employee;

(iii)

volunteer; or

(iv)

person who is providing contract services at a contract program or TYC operated facility.

(4)-(8)

(No change.)

(e)

(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 March 1, 2000.

TRD-200001647

Steve Robinson

Executive Director

Texas Youth Commission

Earliest possible date of adoption: April 23, 2000

For further information, please call: (512) 424-6244

Chapter 223. ENFORCEMENT AND COMPLIANCE MATTERS DIVISION

37 TAC §223.2

The Texas Commission on Law Enforcement Officer Standards and Education proposes new §223.2, concerning an answer required from a person whose license the executive director proposes to deny, cancel, suspend, or revoke. The new section explains the authority the executive director has in these cases. A licensee must file an answer either consenting to the penalty recommended by the executive director in his petition or request a contested case hearing.

Dr. D.C. Jim Dozier, Executive Director of the Commission, has determined that for the first five-year period that the new section is in effect, there will be fiscal implications for state and local governments as a result of enforcing the rule. Under the terms of this rule, it will maximize the efficiency of the enforcement process by eliminating unnecessary expenditures for personnel time on cases where respondents have not preserved their right to a contested case hearing.

Dr. Dozier has also determined that for each year of the first-five years the new section is in effect, the public benefit anticipated as a result of enforcing this section, will result in a savings to the tax payers of the State of Texas by eliminating the need to conduct contested case matters where the respondent waives the right to a hearing. The rule will also maximize the efficiency of the State Office of Administrative Hearings process. In the Commission's experience, 90% of respondents do not appear at the contested case hearing set before SOAH and consequently the relief sought is granted by default. There will be no effect on small or micro-businesses. There is no anticipated economic costs to persons who are required to comply with the rule as proposed.

Written comments should be submitted to Dr. D.C. Jim Dozier, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. Highway 290 East, Suite 200, Austin, Texas 78723, or by facsimile (512) 936-7714. Comments must be received no later than 30 days from the date of publication of the proposal in this issue of the Texas Register .

The new section is proposed under Texas Occupations Code Annotated, Chapter 1701, §1701.151 which authorizes the Commission to promulgate rules for the administration of this chapter.

The following statute is affected by this proposed new rule: Texas Occupations Code Annotated, Chapter 1701§1701.151-General Powers.

§223.2.Answer Required.

(a)

In order to preserve the right to a hearing as described in §211.15 of this title (relating to License Action), a person whose license the executive director proposes to deny, cancel, suspend, or revoke must file an answer either consenting to the penalty recommended by the executive director in his petition, or requesting a contested case hearing. An answer must be filed with the executive director not later than 20 days after the date the executive director's petition is received by the respondent. Failure to timely file an answer may result in the issuance of a default order.

(b)

The answer described in subsection (a) of this section may be in the form of a general denial as that term is used in the district courts of the State of Texas.

(c)

Any affirmative defenses must be specifically pled in an answer, or they shall be deemed waived by the respondent.

(d)

If a respondent fails to timely file an answer as required by subsection (a) of this section, the executive director may recommend to the commission that it enter a default order against the respondent. The executive director may support the motion with documentary evidence, including affidavits, exhibits and pleadings, and oral testimony, as may be appropriate to demonstrate that the respondent received the petition and failed to timely file an answer. The commission will consider motions for default orders at its quarterly commission meetings. If the executive director moves for issuance of a default order under this section, it is not necessary to set the matter for hearing under §211.9 of this title (relating to Contested Cases and Hearings). The commission may grant the default order requested by the executive director, or may order the case referred to SOAH for a contested case hearing.

(e)

If a person timely files an answer as required by subsection (a) of this section, but fails to appear at the contested case hearing after receiving timely and adequate notice, the executive director may move for default judgment against the respondent as provided by SOAH rule, 1 Tex. Admin. Code §155.55.

(f)

Upon issuance of a default order by the commission, notice shall be provided to the respondent in accordance with §211.15 (b) of this title (relating to License Action).

(g)

The effective date of this section is June 1, 2000.

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 March 10, 2000.

TRD-200001855

Edward T. Laine

Chief, Professional Standards and Administrative Operations

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: June 1, 2000

For further information, please call: (512) 936-7700