37 TAC §95.51, §95.55
The amendment is adopted under the Texas Family Code, §51.095,
which provides the commission the authority to permit the admissibility of
non-recorded oral statements under certain circumstances and the Human Resources
Code, §61.0731(a), which requires the commission not to release information
about a youth who is 18 years of age or older unless the youth consents to
such disclosure.
§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 hearing examiner appointed
by the Texas Youth Commission (TYC) hearings section chief. The hearing examiner
shall be impartial.
(2)
The hearing shall be conducted in two parts: fact-finding
and disposition.
(A)
The purpose of the factfinding 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 (including a deferral to local authorities) 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 hearing examiner.
(7)
The hearing shall be held in the community where the alleged
rule violation occurred unless, for good cause, the hearing 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.
(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
(C)
the youth's rights in connection with the hearing.
(10)
If the youth is under 18 years of age, 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. If the youth is 18 years of age or older, such
notice shall be provided only with the youth's authorization to release information.
(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 hearing examiner;
(B)
a list of all witnesses the staff representative intends
to call;
(C)
an indication of the expected testimony of each witness;
(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 hearing examiner.
(13)
If defense counsel has not received at least ten (10)
days notice of the items listed in subsection (d)(11) of this section and
requests a continuance, the hearing 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 hearing 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 hearing examiner only if the hearing proceeds
to disposition.
(17)
The hearing 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 hearing 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 hearing examiner
shall retain copies of all documents admitted into evidence. Physical evidence
may be retained at the discretion of the hearing 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 hearing 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 hearing 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 hearing 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 hearing 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;
(C)
lack of permission to leave designated placement;
(D)
chain of custody;
(E)
identity of substance found in a urine sample;
(F)
identity of a controlled substance 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;
(C)
the right to consult with an attorney prior to giving the
statement; and
(D)
the right to have an attorney provided if the youth is
indigent.
(36)
A youth's non-recorded oral statement is admissible if
it:
(A)
relates facts which are found to be true and which tend
to establish the youth's guilt; or
(B)
was res gestae of the conduct that is the subject of the
hearing or of the arrest; or
(C)
does not stem from law enforcement or agency staff questioning
of youth; or
(D)
is voluntary and bears on the youth's credibility as a
witness.
(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 paragraph
(35) of this section. 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 hearing 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 hearing examiner's written report.
(39)
Following the presentation of all evidence pertaining
to the factual issues raised at the hearing, the hearing examiner shall announce
his/her findings as to those issues.
(A)
The hearing examiner may find that the evidence suffices
to prove conduct other than that originally alleged and enter the appropriate
finding in the record if the original allegation gave sufficient notice of
the conduct proved.
(B)
Irrespective of the evidence, the hearing 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 hearing 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 hearing 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 hearing 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 hearing
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 hearing 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 hearing 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;
(C)
conclusions of law;
(D)
an explanation of the dispositional decision; and
(E)
rulings made on motions and objections and the reasons
therefore.
(45)
Copies of the hearing examiner's report shall be provided
to counsel for the youth and the staff representative.
(46)
An edited copy of the hearing 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 August 10, 2006.
TRD-200604157
Dwight Harris
Executive Director
Texas Youth Commission
Effective date: August 30, 2006
Proposal publication date: June 30, 2006
For further information, please call: (512) 424-6014