TITLE 37.PUBLIC SAFETY AND CORRECTIONS

Part 5. TEXAS BOARD OF PARDONS AND PAROLES

Chapter 143. EXECUTIVE CLEMENCY

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC §143.43 and §143.57, concerning the procedure in capital reprieve cases and commutation of death sentence to lesser penalty. The amendments are proposed for the purpose of clarifying the address for submission of an application and supplemental information for a reprieve and commutation of death sentence to a lesser penalty.

Rissie Owens, Chair of the Board, has determined, that for the first five-year period the proposed amendments are in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Ms. Owens also has determined that for each year of the first five years the amended rules as proposed are in effect, the public benefit anticipated as a result of the amendments to this section will be to bring the rules into compliance with current board practice. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rules as proposed.

Comments should be directed to Laura McElroy, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, Texas 78701. Written comments from the general public should be received within 30 days of the publication of this proposal.

Subchapter D. REPRIEVE OF EXECUTION

37 TAC §143.43

The amended rules are proposed under Article IV, Section 11 of the Texas Constitution and Article 48.01, Code of Criminal Procedure, that invest the Board of Pardons and Paroles with the power to recommend clemency, including pardons, commutations of sentence, and reprieves; and under §508.036(b), Government Code, that provides the Board with authority to adopt rules relating to the decision-making processes used by the Board of Pardons and Paroles.

No other statutes, articles or codes are affected by these amendments.

§143.43.Procedure in Capital Reprieve Cases.

(a) The written application in behalf of a convicted person seeking a board recommendation to the governor of a reprieve from execution must be delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757 , not later than the twenty-first calendar day before the execution is scheduled. If the twenty-first calendar day before the execution is scheduled falls on a weekend or state observed holiday, the application shall be delivered not later than the next business day. Otherwise, the applicant's recourse will be directly to the governor.

(b) All supplemental information, including but not limited to amendments, addenda, supplements, or exhibits, must be submitted in writing and delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757 , not later than the fifteenth calendar day before the execution is scheduled. If the fifteenth calendar day before the execution is scheduled falls on a weekend or state observed holiday, all additional information including but not limited to amendments, addenda, supplements, or exhibits shall be delivered not later than the next business day.

(c) Any information filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, which require reproduction facilities, equipment, or technology not operated by the board, must be provided by the applicant in an amount sufficient to allow review by all members of the board. An amount sufficient shall mean not less than 10 and not more than 20 copies of the duplicate item.

(d) A convicted person seeking a board recommendation to the governor of a reprieve from execution may request an interview with a member of the board. Such request shall be included in the written application or any supplement filed therewith in accordance with this section.

(e) Upon receipt of a request for an interview, the presiding officer (chair) shall designate at least one member of the board to conduct the requested interview. Such interview shall occur at the confining unit of TDCJ. Attendance at such interviews shall be limited to the convicted person, the designated board member(s), and TDCJ staff. The board may consider statements by the inmate made at such interviews when considering the inmate's application for reprieve.

(f) The board shall consider and decide applications for reprieve from execution. Upon review, a majority of the board, or a majority thereof, in written and signed form, may:

(1) recommend to the governor a reprieve from execution;

(2) not recommend a reprieve from execution; or

(3) set the matter for a hearing as soon as practicable and at a location convenient to the board and the parties to appear before it.

(g) When the board sets a hearing pursuant to subsection (f)(3) of this section, it shall notify the trial officials of the county of conviction and the attorney general of the State of Texas and allow any such official(s), or the designated representatives thereof, the opportunity to attend the hearing and/or to present any relevant information. At the time of notifying the trial officials, the board shall also notify any representative of the family of the victim (who has previously requested to be notified) of the receipt of the application, the setting of a hearing, and of said representative or family member's rights to provide any written comments or to attend the hearing.

(h) All hearings conducted by the board under this section shall be in open session pursuant to requirements of the Texas Open Meetings Act, Article 6252-17. For the purpose of discussing matters which are deemed confidential by statute, or where otherwise authorized by the provisions of the Texas Open Meetings Act, the proceedings may be conducted in executive session closed to members of the general public, for that limited purpose. Only those persons whose privacy interests and right to confidentiality may be abridged by discussion involving disclosure of confidential information may be allowed to meet with members of the board in their executive session to discuss that information. No decision, vote, or final action by the board shall be made during a closed meeting; the board's decision, vote, or final action shall be made and announced in an open meeting. The hearing may be recessed prior to its completion and reconvened pursuant to the directions of the board.

(i) Advocates for and against the death penalty, generally, and members of the general public may present written information for the board's consideration at its central office headquarters at any reasonable time.

(j) After the conclusion of the hearing, the board shall render its decision, reached by majority vote, within a reasonable time, which decision shall be either to:

(1) recommend to the governor a reprieve from execution;

(2) not recommend a reprieve from execution; or

(3) recess the proceedings without rendering a decision on the merits, if a reprieve has been granted by the governor or if a court of competent jurisdiction has granted a stay of execution.

(k) Each of the provisions of this section and §143.42 of this title (relating to Reprieve Recommended by Board) are subject to waiver by the board when it finds that there exists good and adequate cause to suspend said provisions and adopt a different procedure which it finds to be better suited to the exigencies of the individual case before it.

(l) Successive or repetitious reprieve applications submitted in behalf of the same condemned felon may be summarily denied by the board without meeting.

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 May 26, 2006.

TRD-200602928

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 406-5388


Subchapter E. COMMUTATION OF SENTENCE

37 TAC §143.57

The amended rules are proposed under Article IV, Section 11 of the Texas Constitution and Article 48.01, Code of Criminal Procedure, that invest the Board of Pardons and Paroles with the power to recommend clemency, including pardons, commutations of sentence, and reprieves; and under §508.036(b), Government Code, that provides the Board with authority to adopt rules relating to the decision-making processes used by the Board of Pardons and Paroles.

No other statutes, articles or codes are affected by these amendments.

§143.57.Commutation of Death Sentence to Lesser Penalty.

(a) The board will consider recommending to the governor a commutation of death sentence to a sentence of life imprisonment or the appropriate maximum penalty that can be imposed upon receipt of:

(1) a request from the majority of the trial officials of the court of conviction; or

(2) a written request of the convicted person or representative setting forth all grounds upon which the application is based, stating the full name of the convicted person, the county of conviction, and the execution date.

(b) The written application in behalf of a convicted person seeking a board recommendation to the governor of commutation of the death sentence to a lesser penalty must be delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757 , not later than the twenty-first calendar day before the day the execution is scheduled. If the twenty-first calendar day before the execution is scheduled falls on a weekend or state observed holiday, the application shall be delivered not later than the next business day.

(c) All supplemental information not filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, must be submitted in writing and delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757 , not later than the fifteenth calendar day before the execution is scheduled. If the fifteenth calendar day before the execution is scheduled falls on a weekend or state observed holiday, all additional information including but not limited to amendments, addenda, supplements, or exhibits shall be delivered not later than the next business day.

(d) Any information filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, which require reproduction facilities, equipment, or technology not operated by the board must be provided by the applicant in an amount sufficient to allow review by all members of the board. An amount sufficient shall mean not less than 10 and not more than 20 copies of the duplicate item.

(e) A convicted person seeking a board recommendation to the governor of commutation of the death sentence to a lesser penalty may request an interview with a member of the board. Such request shall be included in the written application or any supplement filed therewith in accordance with this section.

(f) Upon receipt of a request for an interview, the presiding officer (chair) shall designate at least one member of the board to conduct the requested interview. Such interview shall occur at the confining unit of TDCJ. Attendance at such interviews shall be limited to the convicted person, the designated board member(s), and TDCJ staff. The board may consider statements by the inmate made at such interviews when considering the inmate's application for commutation of the death sentence to a lesser penalty.

(g) The board shall consider and decide applications for commutation of the death sentence to a lesser penalty. Upon review, a majority of the board, or a majority thereof, in written and signed form, may:

(1) recommend to the governor the commutation of the death sentence to a lesser penalty;

(2) not recommend commutation of the death sentence to a lesser penalty; or

(3) set the matter for a hearing pursuant to §143.43 of this Chapter (relating to Procedure in Capital Reprieve Cases).

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 May 26, 2006.

TRD-200602930

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 406-5388


Chapter 145. PAROLE

Subchapter A. PAROLE PROCESS

37 TAC §145.3

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 of Pardons and Paroles. The amendment is proposed for the purpose of clarifying the language of the rule.

Rissie Owens, Chair of the Board, has determined, that for the first five-year period the proposed amendment is in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Ms. Owens also has determined that for each year of the first five years the amended rule as proposed are in effect, the public benefit anticipated as a result of the amendment to this section will be to bring the rules into compliance with current board practice. 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, 211 W. 14th Street, Suite 500, Austin, Texas 78701. Written comments from the general public should be received within 30 days of the publication of this proposal.

The amended rule is proposed under §§508.036, 508.0441, and 508.141, Government Code. Section 508.036 provides the board with the authority to adopt rules relating to the decision-making processess used by the board and parole panels. Section 508.0441 provides the board with the authority to adopt reasonable rules as proper or necessary relating to the eligibility of an inmate for release on parole or release to mandatory supervision. Section 508.141 provides the board with the authority to consider and order release on parole.

No other statutes, articles, or codes are affected by the amendment.

§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) Release to parole is a privilege, not an offender right, and the parole decision maker is vested with complete discretion to grant, or to deny parole release as defined by statutory law.

(A) Candidates for parole are to be evaluated on an individual basis.

(B) There are no mandatory rules or guidelines that must be followed in every case because each offender is unique. The board and parole commissioners have the statutory duty to make release decisions which are only in the best interest of society. Parole panels use parole guidelines as a tool to aid in the discretionary parole decision process.

(2) The board will reconsider for release an offender other than an offender serving a sentence for an offense listed in §508.149(a), Government Code, as soon as practicable after the first anniversary of the date of denial, provided the decision to deny parole is on or after January 1, 2004, and the offender is otherwise eligible for consideration.

(3) An offender will be considered for parole when eligible and when the offender meets the following criteria with regard to behavior during incarceration.

(A) Other than on initial parole eligibility, the person must not have had a major disciplinary misconduct report in the six-month period prior to the date he is reviewed for parole; which has resulted in loss of good conduct time or reduction to a classification status below that assigned during that person's initial entry into TDCJ-ID.

(B) Other than on initial parole eligibility, at the time he is reviewed for parole the person must be classified in the same or higher time earning classification assigned during that person's initial entry into TDCJ-ID.

(C) If any offender who has received an affirmative vote to parole and following the vote, notification is received that the offender has been reduced below initial classification status or has lost good conduct time, the parole decision will be reviewed and revoted by the parole panel that rendered the decision.

(D) A person who has been revoked and returned to custody for a violation of the conditions of release to parole or mandatory supervision will be considered for release to parole or mandatory supervision when eligible.

(E) An offender who is otherwise eligible for parole and who has charges pending alleging a felony offense committed while in TDCJ, and for which a complaint has been filed with a magistrate of the State of Texas, any facility under its supervision, or a facility under contract with TDCJ will not be considered for release to parole [ or mandatory supervision ].

(F) An offender who is otherwise eligible for release and meets the criteria for Medically Recommended Intensive Supervision (MRIS) as required by Government Code, §508.146, may be considered for release on parole if the parole review date is more than six months from the date of application for MRIS.

(4) Any consideration by a Board member of an offender's litigation activities when determining an offender's candidacy for parole is strictly prohibited. No offender 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 offender 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 May 26, 2006.

TRD-200602932

Laura McElroy

General Counsel

Texas Board of Pardon and Paroles

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 406-5388


37 TAC §145.16

The Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §145.16, concerning action upon special review--release approved. The amendment is proposed to update the language of the section title and to clarify the procedures regarding subsequent reviews of parole panel votes to approve release to parole or mandatory supervision.

Rissie Owens, Chair of the Board, has determined, that for the first five-year period the proposed amendment is in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Ms. Owens also has determined that for each year of the first five years the amended rule as proposed are in effect, the public benefit anticipated as a result of the amendment to this section will be to bring the rules into compliance with current board practice. 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, 211 W. 14th Street, Suite 500, Austin, Texas 78701. Written comments from the general public should be received within 30 days of the publication of this proposal.

The amended rule is proposed under §§508.036, 508.0441, and 508.141, Government Code. Section 508.036 provides the board with the authority to adopt rules relating to the decision-making processess used by the board and parole panels. Section 508.0441 provides the board with the authority to adopt reasonable rules as proper or necessary relating to the eligibility of an inmate for release on parole or release to mandatory supervision. Section 508.141 provides the board authority to consider and order release on parole.

No other statutes, articles, or codes are affected by the amendment.

§145.16.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 parole panel member from reconsidering a release vote to parole or mandatory supervision.

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 May 26, 2006.

TRD-200602921

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 406-5388


37 TAC §145.17

The Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §145.17, concerning action upon special review--release denied. The amendment is proposed to update the language of the section title and to clarify the procedures regarding subsequent reviews of parole panel votes to deny release to parole or mandatory supervision.

Rissie Owens, Chair of the Board, has determined, that for the first five-year period the proposed amendment is in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Ms. Owens also has determined that for each year of the first five years the amended rule as proposed are in effect, the public benefit anticipated as a result of the amendment to this section will be to bring the rules into compliance with current board practice. 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, 211 W. 14th Street, Suite 500, Austin, Texas 78701. Written comments from the general public should be received within 30 days of the publication of this proposal.

The amended rule is proposed under §§508.036, 508.0441, and 508.141, Government Code. Section 508.036 provides the board with the authority to adopt rules relating to the decision-making processess used by the board and parole panels. Section 508.0441 provides the board with the authority to adopt reasonable rules as proper or necessary relating to the eligibility of an inmate for release on parole or release to mandatory supervision. Section 508.141 provides the board authority to adopt policy establishing the date on which the board may reconsider for release an inmate who has previously been denied release.

No other statutes, articles, or codes are affected by the amendment.

§145.17.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.

(c) All requests for special review shall be in writing.

(d) 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.

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

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

(1) a parole panel denied release to parole or mandatory supervision and a parole panel member who voted with the majority on that panel desires to have the decision reconsidered prior to the next review (NR) date; or

(2) a written request on behalf of an offender is received which cites information not previously available to the parole panel. [ Information not previously available shall mean only: ]

[ (A) responses from trial officials and victims; ]

[ (B) a change in an offender's sentence and judgment; or ]

[ (C) an allegation that the parole panel has committed an error of law or board rule. ]

(3) both parole panel members who voted with the majority are no longer active board members or parole commissioners, and the presiding officer (chair) [ or designated board member may ] places the decision in the special review process to be reconsidered prior to the NR [ next review ] date.

(g) Information not previously available shall mean only:

(1) responses from trial officials and victims;

(2) a change in an offender's sentence and judgment; or

(3) an allegation that the parole panel has committed an error of law or board rule.

(h) [ (g) ] A special review parole panel, other than the current voting panel, shall decide and exercise final action on such requests for special review.

(i) [ (h) ] 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) indicate it is a special review consideration, and either; [ grant special review, and either ]

(A) vote remain set, or

(B) revote the case in accordance with applicable provisions of Chapter 145 of this title (relating to Parole Process).

(j) The special review parole panel shall not set an offender's NR date on a date later than the previous NR date.

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 May 26, 2006.

TRD-200602931

Laura McElroy

General Counsel

Texas Board of Pardon and Paroles

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 406-5388


Subchapter B. TERMS AND CONDITIONS OF PAROLE

37 TAC §145.21

The Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §145.21, concerning parole in absentia (parole review and mandatory supervision for offenders not in actual physical custody of the TDCJ Correctional Institutions Division). The amendment is proposed for the purpose of updating the cross references to §145.16 and §145.17, in the language of the rule.

Rissie Owens, Chair of the Board, has determined, that for the first five-year period the proposed amendment is in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Ms. Owens also has determined that for each year of the first five years the amended rule as proposed are in effect, the public benefit anticipated as a result of the amendment to this section will be to bring the rules into compliance with current board practice. 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, 211 W. 14th Street, Suite 500, Austin, Texas 78701. Written comments from the general public should be received within 30 days of the publication of this proposal.

The amended rule is proposed under §§508.036, 508.0441, and 508.141, Government Code. Section 508.036 provides the board with the authority to adopt rules relating to the decision-making processess used by the board and parole panels. Section 508.0441 provides the board with the authority to adopt reasonable rules as proper or necessary relating to the eligibility of an inmate for release on parole or release to mandatory supervision. Section 508.141 provides the board with the authority to consider and order release on parole.

No other statutes, articles, or codes are affected by the amendment.

§145.21.Parole in Absentia (Parole Review and Mandatory Supervision for Offenders Not in Actual Physical Custody of the TDCJ Correctional Institutions Division).

Offenders serving state prison sentences for Texas crimes and offenders whose parole or mandatory supervision has been revoked who are not in the actual physical custody of the Texas Department of Criminal Justice (TDCJ) Correctional Institutions Division are subject to the parole review process as set out in this chapter and title in accord with the following.

(1) Parole in absentia processing is initiated by the assigned Correctional Institutions Division staff upon referral from the county of conviction when all necessary pen packet documents have been compiled and presented to the Correctional Institutions Division.

(2) Prior to consideration for parole by the parole panel, the offender may be interviewed by a representative of the Correctional Institutions 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; §145.16 of this title, relating to Action upon Special Review [ of 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).

(3) An offender released to parole in absentia or mandatory supervision on a Texas felony sentence shall, after release, be treated the same as an offender released on parole or mandatory supervision directly from the TDCJ Correctional Institutions Division. Such offenders 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 (relating to Revocation of Parole or Mandatory Supervision[ , §§146.3 - 146.10 ]).

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 May 26, 2006.

TRD-200602933

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 406-5388