TITLE 37.PUBLIC SAFETY AND CORRECTIONS

Part 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

Chapter 16. COMMERCIAL DRIVERS LICENSE

Subchapter B. APPLICATION REQUIREMENTS AND EXAMINATIONS

The Texas Department of Public Safety adopts an amendment to §16.40, concerning Application Requirements And Examinations, without changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2260).

Amendment to the section is necessary in order for the department to inform the public of the procedures required of individuals to provide Social Security Number when applying for a commercial driver license. Recently, the department adopted amendments to §15.42, (relating to Social Security Number) clarifying what documents an applicant must present to provide as proof of their social security number when applying for a driver license. The department failed at that time to make a similar change to the Commercial Driver License section.

No comments were received regarding adoption of the amendment.

The amendment is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §522.005.

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 April 28, 2004.

TRD-200402853

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Effective date: May 18, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 424-2135

Part 3. TEXAS YOUTH COMMISSION

Chapter 81. INTERACTION WITH THE PUBLIC

37 TAC §81.34

The Texas Youth Commission (TYC) adopts an amendment to §81.34, concerning Notice of Youth Confessions of Child Abuse, with changes to the proposed text as published in the March 19, 2004, issue of the Texas Register (29 TexReg 2855). Changes to the proposed text consist of a minor grammatical correction.

The justification for amending the section is the availability and use of clear, current policy. The amendment reflects the updated rule name of §93.33, concerning Alleged Abuse, Neglect, and Exploitation. References to the Department of Protective and Regulatory services have also been updated to reflect that agency's new name, Department of Family and Protective Services (DFPS).

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.034, which provides the Texas Youth Commission with the authority to establish rules appropriate to the proper accomplishment of its functions.

The adopted rule implements the Human Resources Code, §61.034.

§81.34.Notice of Youth Confessions of Child Abuse

(a) Purpose. The purpose of this rule is to provide guidelines according to the Texas Family Code (TFC), chapter 261, Subchapter B, for Texas Youth Commission (TYC) supervisors to report information given to them by TYC staff members or volunteers regarding TYC youth confessing, while in any TYC operated facility or contract care program, to abusing or neglecting a child or children some time in the past when they were not in a TYC operated facility or contract care program.

(b) Applicability. This rule does not apply to reporting suspected abuse or neglect of youth in TYC programs. See §93.33 of this title (relating to Alleged Abuse, Neglect and Exploitation).See Chapter 261, Subchapter B, Family Code, for reporting confessions of TYC youth who are released under TYC supervision that they abused or neglected children when they were not in a TYC operated facility or contract care program. Such reports must be made within 48 hours to the Department of Family and Protective Services (DFPS) or to a state or local law enforcement agency.

(1) A TYC staff member or volunteer who has cause to believe, based on information provided by a youth in a TYC operated facility or contract care program, that the youth is responsible for abusing or neglecting a child or children some time in the past when the youth was not in a TYC operated facility or contract care program, must report that information, not later than the 48 hours after the staff member first receives it, to DFPS, to a state or local law enforcement agency, or to the person's appropriate TYC supervisor.

(2) A report does not need to be made if it is determined from existing documentation that the youth's statement:

(A) has already been referred to DFPS or a law enforcement agency by an agency supervisor and the new report includes no new information;

(B) relates only to conduct that resulted in the youth's commitment to TYC; or

(C) relates only to conduct that resulted in a previous juvenile court adjudication, deferred prosecution or disposition without referral to court.

(d) Referral of Report for Investigation.

(1) If the victim in a report made pursuant to subsection (c) is a member of the youth's same household, the appropriate TYC supervisor receiving the report shall refer it immediately to DFPS or to the appropriate state or local law enforcement agency for investigation if:

(A) the report is of injuries inflicted at any time that required prompt medical attention or hospitalization and that endangered the alleged victim's life or could have caused permanent functional impairment or disfigurement; or

(B) the report is of oral, anal, or genital intercourse that occurred at any time.

(2) If the victim in a report made pursuant to subsection (c) is not a member of the youth's same household and the youth is considered a high risk, the appropriate TYC supervisor receiving the report shall refer it immediately to DFPS or to the appropriate state or local law enforcement agency for investigation if:

(A) the report is of injuries inflicted within the previous twelve months that required prompt medical attention or hospitalization and that endangered the alleged victim's life or could have caused permanent functional impairment or disfigurement; or

(B) the report is of oral, anal, or genital intercourse that occurred within the previous twelve months and that was without consent under the law.

(3) For the purposes of this subsection, a youth is considered a high risk if the report made pursuant to subsection (c), considered in the context of the TYC youth's current circumstances, presents a real and significant likelihood that the alleged victim (if the alleged victim is still a child at the time of the report) will be abused or neglected by the TYC youth in the foreseeable future.

(e) Content of Referred Report. A report referred to DFPS or to an appropriate state or local law enforcement agency pursuant to subsection (d) shall include the most accurate and detailed information possible at the time the report is made. Whenever possible, a first-hand account should be provided directly by the person to whom the youth confessed.

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 April 28, 2004.

TRD-200402854

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: May 18, 2004

Proposal publication date: March 19, 2004

For further information, please call: (512) 424-6014

Chapter 85. ADMISSION AND PLACEMENT

Subchapter B. PLACEMENT PLANNING

37 TAC §85.23

The Texas Youth Commission (TYC) adopts an amendment to §85.23, concerning Classification, without changes to the proposed text as published in the March 19, 2004, issue of the Texas Register (29 TexReg 2855).

The justification for amending the section is the availability and use of clear, current policy. The amendment revises one of the Type B - Violent Offender classifying offenses to be more consistent with TYC rule violations; specifically, the TYC Category I rule violation known as "chunking bodily fluids," which can be found in §95.3, is now included in the list of offenses classified as Type B - Violent. The amendment also updates the listing of sentenced offender classifying offenses to include manslaughter and intoxication manslaughter pursuant to Family Code §53.045, as amended by the 77th Texas Legislature.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.075, which provides the Texas Youth Commission with the authority to modify any order of the commission affecting a child, except an order of final discharge, as often as conditions indicate.

The adopted rule implements the Human Resources Code, §61.034.

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 April 28, 2004.

TRD-200402855

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: May 18, 2004

Proposal publication date: March 19, 2004

For further information, please call: (512) 424-6014

37 TAC §85.61

The Texas Youth Commission (TYC) adopts an amendment to §85.61, concerning Discharge/Transfer of Custody, without changes to the proposed text as published in the March 19, 2004, issue of the Texas Register (29 TexReg 2856).

The justification for amending the section is to clarify the policy requirements and procedures for discharge of youth with mental illness or mental retardation. The amendment clarifies the circumstances under which a youth with a mental illness or mental retardation may be discharged from the custody of TYC without completing the agency's Resocialization program. Recent revisions to §87.79 provide that certain youth with mental disabilities, who have completed length of stay requirements but not the Resocialization program, may be referred for outpatient care to the Mental Health Authority (MHA) in the youth's home county. Section 85.61 will be amended to delete language that provided for discharge prior to completion of the Resocialization program only upon commitment to the Texas Department of Mental Health and Mental Retardation.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.075, which provides the Texas Youth Commission with the authority to discharge a youth from its control when it is satisfied the discharge will best serve the youth's welfare and the protection of the public.

The adopted rule implements the Human Resources Code, §61.034.

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 April 28, 2004.

TRD-200402856

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: May 18, 2004

Proposal publication date: March 19, 2004

For further information, please call: (512) 424-6014

Chapter 95. YOUTH DISCIPLINE

Subchapter B. DUE PROCESS HEARINGS PROCEDURES

37 TAC §95.51

The Texas Youth Commission (TYC) adopts an amendment to §95.51, concerning Level I Hearing Procedure, with changes to the proposed text as published in the March 19, 2004, issue of the Texas Register (29 TexReg 2857). Changes to the proposed text consist of minor grammatical corrections.

The justification for amending the section is compliance with state law. The amendment makes several procedural updates to comply with recent legislation, as well as to address certain areas where policy had not provided specific direction to staff. The amended section establishes procedures for issuing and enforcing witness subpoenas. Revisions to procedures governing the postponement of a hearing establish that all parties shall present good cause to request a continuance. Updates to rules governing admission of evidence allow certain affidavits, recorded oral statements, and documents received from other states via the Insterstate Compact on Juveniles be deemed reliable and admissible.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.075, which provides the Texas Youth Commission with the authority to order a youth's confinement under conditions it believes best designed for the welfare of the youth and the interests of the public, and revoke or modify an order of the Commission, other than final discharge, as often as conditions indicate to be desirable.

The adopted rule implements the Human Resources Code, §61.034.

§95.51.Level I Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish a procedure to be followed when the highest level of due process is afforded a youth. The Level I hearing procedure is appropriate due process in the following instances:

(1) parole revocation;

(2) reclassification;

(3) extension of time to treat a psychiatric disorder in connection with a Corsicana Stabilization Unit placement at the Corsicana Residential Treatment Center (as appropriate).

(b) Applicability.

(1) See §95.53 of this title (relating to Level I Hearing by Telephone) for circumstances in which the hearing may be conducted by telephone.

(2) See §95.9 of this title (relating to Parole Revocation Consequence).

(3) See §95.7 of this title (relating to Reclassification Consequence).

(4) See §87.67 of this title (relating to Corsicana Stabilization Unit).

(c) Explanation of Terms Used. Preponderance of the evidence--a standard of proof meaning the greater weight and degree of credible evidence admitted at the hearing, e.g., whether the credible evidence makes it more likely than not that a particular proposition is true.

(d) Procedure.

(1) The hearing shall be conducted by a hearings examiner appointed by the Texas Youth Commission (TYC) hearings section chief. The hearings examiner shall be impartial.

(2) The hearing shall be conducted in two parts: fact-finding and disposition.

(A) The purpose of the fact-finding shall be to establish whether the youth's behavior and/or circumstances require that action be taken.

(B) The purpose of the disposition shall be to determine whether the action proposed by TYC staff is appropriate under TYC policy.

(3) The person requesting a hearing shall appoint a staff representative to appear at the hearing and present the reasons for the proposed action. The staff representative shall also be responsible for making relevant information available to all parties to the hearing.

(4) The youth shall be assisted by legal counsel at the hearing. The agency will arrange counsel for indigent youth.

(5) The primary service worker (PSW) requests a hearing by completing the Level I Hearing Request E-form and transmitting it to the legal services department as soon as practical but no later than seven (7) days, excluding weekends and holidays, after the alleged violation. A delay of more than seven (7) days in scheduling the hearing must be justified by documentation of circumstances, which made it impossible, impractical, or inappropriate to schedule the hearing earlier.

(6) The date and time for the hearing shall be determined by the hearings examiner.

(7) The hearing shall be held in the community where the alleged rule violation occurred unless, for good cause, the hearings examiner directs that it be held in another locale.

(8) All necessary parties shall be present at the hearing site unless it is conducted pursuant to §95.53 of this title (relating to Level I Hearing by Telephone).

(9) The staff representative shall provide the youth with written notice of the date and time of the hearing not less than three (3) working days before the scheduled date. This notice shall include:

(A) the reason(s) for the hearing;

(B) the proposed action to be taken; and

(10) The staff representative shall make reasonable efforts to inform the youth's parent(s) of the date, time and place of the hearing not less than three (3) working days prior to the scheduled hearing date.

(11) The staff representative shall provide counsel for the youth with written notice of the date, time, and place of the hearing not less than three (3) working days prior to the scheduled hearing date. The notice to counsel shall also include:

(A) the name, address, and telephone number of the staff representative and the hearings examiner;

(B) a list of all witnesses the staff representative intends to call;

(D) copies of any statements made by the youth;

(E) copies of any statements, affidavits, reports, or other documentation relied upon as grounds for the proposed action; and

(F) copies of any reports or summaries which will be relied upon at disposition.

(12) Requests for continuance or postponement shall be directed to the hearings examiner.

(13) If defense counsel has not received at least ten (10) days notice of the items listed in subsection (d)(11) of this policy, and requests a continuance, the hearings examiner shall postpone the hearing. The hearings examiner may, upon his/her own motion or the good cause motion of any party, recess or continue the hearing for such periods of time as may be necessary.

(14) As soon as possible following receipt of the notice of hearing, and no later than the commencement of the hearing, counsel shall inform the staff representative of any witnesses he/she wishes to call on behalf of the youth. The staff representative will, if necessary, assist counsel in contacting those witnesses and securing their attendance at the hearing.

(15) The staff representative shall provide counsel for the youth with reasonable access to all information concerning the youth, which is held by TYC. Counsel for the youth will respect the confidential nature of such information and will comply with reasonable requests to withhold sensitive information from the youth or the youth's family.

(16) Prior to the hearing, the hearings examiner may review copies of any documentation previously provided to counsel except for those documents which relate solely to dispositional criteria. Such information shall be made available to the hearings examiner only if the hearing proceeds to disposition.

(17) The hearings examiner or designee may sign and issue a subpoena to compel the attendance of a witness at the hearing or the production of books, records, papers, or other objects.

(A) A peace officer, apprehension specialist, non-party parole officer or other TYC official shall serve a copy of the subpoena to the witness at least three (3) days prior to the date the witness is requested to appear. The subpoena may be served by hand delivery, certified mail or any other manner allowable in a court of original criminal jurisdiction.

(B) A person who testifies falsely, fails to appear when subpoenaed, or fails or refuses to produce material under the subpoena is subject to the same orders and penalties to which a person taking those actions before a court is subject.

(18) A victim who appears as a witness should be provided a waiting area which eliminates or minimizes contact between the victim and the youth, the youth's family, or witnesses on behalf of the youth.

(19) To protect the confidential nature of the hearing, persons other than the youth, counsel for the youth, the staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the hearings examiner, however:

(A) observers may be permitted with the consent of the youth;

(B) any person except the youth's counsel may be excluded from the hearing room if their presence causes undue disruption or delay of the hearing. The reason(s) for the youth's exclusion are stated on the record.

(20) The hearing shall be tape-recorded and the hearings examiner shall retain copies of all documents admitted into evidence. Physical evidence may be retained at the discretion of the hearings examiner; if not retained, an adequate description of the item(s) shall be entered in the record by oral stipulation.

(21) Factual issues not in dispute may be stipulated to by the staff representative and counsel for the youth. Such stipulations shall be made on the record of the hearing.

(22) A youth accused of misconduct shall be given the opportunity to respond "true" or "not true" to each allegation of such conduct prior to any evidence being heard on such allegations.

(A) The youth shall have a right to respond "not true" to any such allegation and require that proof of the allegation be presented at the hearing.

(B) A response of "true" to any such allegation shall be sufficient to establish each and every element necessary to proof of that allegation without the presentation of any other evidence.

(23) The hearings examiner may administer an oath. All witnesses shall take an oath to testify truthfully.

(24) With the exception of the youth and the staff representative, any person designated as a witness may be excluded from the hearing room during the testimony of other witnesses and may be instructed to refrain from discussing their testimony with anyone until all the witnesses have been dismissed.

(25) The hearings examiner may question each witness at his/her discretion. Counsel for the youth and the staff representative shall be given an opportunity to question each witness.

(26) The hearings examiner may permit a witness to testify outside the presence of the youth if such appears reasonable and necessary to secure the testimony of the witness. If the youth is excluded from the hearing room during testimony, counsel for the youth shall be present during the testimony and shall have the opportunity to review the testimony with the youth before questioning the witness.

(27) The youth shall not be called as a witness unless, after consulting with counsel, the youth waives his/her right to remain silent on the record.

(A) The youth's failure to testify shall not create a presumption against him/her.

(B) A youth who waives his/her right to remain silent may only be questioned concerning those issues addressed by the youth's testimony.

(28) All factual issues shall be determined by a preponderance of the evidence.

(29) The hearings examiner shall determine the admissibility of evidence. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.

(30) The rules of evidence will generally be applicable to the fact-finding portion of the hearing. Unless specifically precluded by statute, evidence not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Criminal exclusionary rules are not applicable in TYC hearings.

(31) Copies of due process hearing documents need not be certified if such document(s) are part of the youth's record(s) or have been received through Interstate Compact. Such documents are considered reliable and admissible for all purposes.

(32) Accomplice testimony is sufficient to prove an allegation if it is corroborated by other evidence tending to connect the youth with the alleged violation. The corroboration is not sufficient if it merely shows the commission of the violation alleged. If two accomplices testify, the testimony of each can serve to corroborate the other.

(33) Legally recognized privileges of relationships will be given effect.

(34) Evidence otherwise admissible may be received in written form if so doing will expedite the hearing and will not significantly prejudice the rights or interests of the youth. This includes but is not limited to use of affidavits admitted to show the following:

(A) ownership and lack of consent;

(B) identity of signature on instrument and lack of consent of complaining witness in a forgery case;

(D) chain of custody;

(E) identity of substance found in a urine sample;

(F) identity of a controlled substances found in possession of a youth.

(35) A youth's written statement concerning his/her possible involvement in illegal activities is admissible if it is signed by the youth and accompanied by evidence indicating that the youth made the statement voluntarily after being advised of:

(A) the right to remain silent;

(B) the possible consequences of giving the statement;

(D) the right to have an attorney provided if the youth is indigent.

(36) A youth's non-recorded oral statement is admissible only if it relates facts which would not have otherwise been discovered, are found to be true and which tend to establish the youth's involvement in illegal activities.

(37) A youth's recorded oral statement (tape recorded, videotaped, or otherwise electronically recorded) concerning his/her possible involvement in illegal activities is admissible if it is accompanied by evidence on the recording that it was given after the youth was advised of the rights in section (d)(35) of this policy. All voices on the recording must be identified and the recording must be accurate and unaltered. A transcript of the recordings is not sufficient.

(38) The hearings examiner shall rule immediately on any motions or objections made in the course of the hearing. All such motions, objections, and rulings shall be included in the hearings examiner's written report.

(39) Following the presentation of all evidence pertaining to the factual issues raised at the hearing, the hearings examiner shall announce his/her findings as to those issues.

(A) When the fact-finding concerns an allegation of criminal conduct, the hearings examiner may find that the evidence suffices to prove an offense other than that originally alleged and enter the appropriate allegation in the record if the original allegation gave sufficient notice of the offense proved.

(B) Irrespective of the evidence, the hearings examiner may not find a criminal offense more serious than that originally alleged unless the original allegation has been amended on the record and after notice to counsel for the youth.

(C) If the hearings examiner's findings require that disposition be made, the hearing shall proceed to disposition; if not, the hearing shall be adjourned with no change in the youth's status.

(40) The hearings examiner may receive additional evidence for purposes of disposition. The evidence received at disposition may be in the form of testimony from witnesses submitted during fact-finding or at disposition, as well as written reports offered by youth, staff, professionals, counselors, or consultants. Relevant documents contained in the youth's record may be admitted and considered. All written documents offered shall be provided to the parties three (3) days prior to the hearing unless otherwise waived.

(41) Following announcement of the decision as to disposition, the hearings examiner shall inform the youth of the right to appeal any or all findings and decision made at the hearing.

(42) Immediately following the close of the hearing, the hearings examiner shall give the youth a copy of the Hearing Examiner's Report of a Level I Hearing form.

(43) A notice of appeal or request for a rehearing shall not suspend implementation of the hearings examiner's decision(s), which shall be effective when announced at the hearing.

(44) As soon as possible following the conclusion of the hearing, the hearings examiner shall prepare a written report which shall include:

(A) a summary of the evidence presented;

(B) findings of fact, including the reliability of the evidence and the credibility of the witnesses, and the reasons for those findings;

(D) an explanation of the dispositional decision; and

(E) rulings made on motions and objections and the reasons therefore.

(45) Copies of the hearings examiner's report shall be provided to counsel for the youth and the staff representative.

(46) An edited copy of the hearings examiner's report is given to the youth.

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 April 28, 2004.

TRD-200402857

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: May 18, 2004

Proposal publication date: March 19, 2004

For further information, please call: (512) 424-6014