Proposed Rules Title 1

TITLE 1. ADMINISTRATION

Part 3. OFFICE OF THE ATTORNEY GENERAL

Chapter 61. CRIME VICTIMS' COMPENSATION

Subchapter K. ADDRESS CONFIDENTIALITY PROGRAM

1 TAC §§61.1001, 61.1005, 61.1010, 61.1015, 61.1020, 61.1025, 61.1030, 61.1035, 61.1040, 61.1045, 61.1050, 61.1055, 61.1060, 61.1065, 61.1070, 61.1075, 61.1080, 61.1085, 61.1090

The Office of the Attorney General (OAG) proposes new Chapter 61, Subchapter K, §§61.1001, 61.1005, 61.1010, 61.1015, 61.1020, 61.1025, 61.1030, 61.1035, 61.1040, 61.1045, 61.1050, 61.1055, 61.1060, 61.1065, 61.1070, 61.1075, 61.1080, 61.1085, and 61.1090, relating to rules governing the administration of the Address Confidentiality Program. The new rules implement, interpret, and prescribe the law and minimum standards of practices, procedures, and policies of the OAG relating to providing victims of family violence, sexual assault, and stalking with an address confidentiality program.

According to Article I, Section 31 of the Texas Constitution, the Texas Compensation to Victims of Crime Fund may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance. Article 56.54 of the Texas Code of Criminal Procedure provides that the OAG may use the Compensation to Victims of Crime Auxiliary Fund to cover costs incurred by the OAG in administering the Address Confidentiality Program established under Subchapter C. Additionally, Article 56.93 authorizes the OAG to adopt rules to administer the program.

New §61.1001 provides definitions of terms used in the Address Confidentiality Program.

New §61.1005 establishes the duties and responsibilities of the OAG in relation to the Address Confidentiality Program.

New §61.1010 establishes eligibility requirements for an applicant to qualify for participation in the address confidentiality program.

New §61.1015 establishes the required application information and related documentation that must be provided by an applicant seeking participation in the Address Confidentiality Program.

New §61.1020 establishes the procedure for approval and certification of participation into the Address Confidentiality Program and issuance of an Address Confidentiality Program card for an approved applicant.

New §61.1025 requires that a state or local agency must accept the substitute post office address.

New §61.1030 provides reasons for OAG denial of an applicant or exclusion of a participant in the Address Confidentiality Program.

New §61.1035 establishes a reconsideration procedure for an applicant denied, or a participant cancelled from participation in the Address Confidentiality Program.

New §61.1040 establishes requirements for a state or local agency to obtain an exemption to not accept the substitute post office address.

New §61.1045 provides guidelines for an agency to request a reconsideration of disclosure or exemption.

New §61.1050 lists specific instances when the OAG shall disclose a participant's true address and provides guidelines for an entity to request disclosure of a participant's true address.

New §61.1055 establishes a reconsideration procedure for an agency denied disclosure of a participant's true residential, school or business address.

New §61.1060 establishes a procedure for a participant to withdraw from the program.

New §61.1065 provides for the disposal of mail that cannot be forwarded.

New §61.1070 requires consent when the OAG deems it necessary to disclose an applicant's or participant's true residential, business or school address in order to administer the Address Confidentiality Program.

New §61.1075 establishes a procedure for requesting a reconsideration of an applicant's disclosure determination.

New §61.1080 establishes guidelines for the destruction of information relating to an application and a participant.

New §61.1085 establishes that a participant desiring to vote is responsible for complying with all legal voting requirements.

New §61.1090 establishes that a state or local entity that accepts a participant's Address Confidentiality Program address will be responsible for administration of its rules and regulations in compliance with the governing Address Confidentiality Program statutes and administrative rules.

Herman Millholland, Chief, Crime Victim Services Division of the Office of the Attorney General, has determined that for each year of the first five years that the proposed rules will be in effect, there will be no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the proposed rules. Mr. Millholland has determined that for each year of the first five years that the proposed rule will be in effect, there will be no additional estimated reductions in costs to the state and to local governments as a result of enforcing or administering the proposed rules. Mr. Millholland has determined that for each year of the first five years that the proposed rules will be in effect, there will be no additional estimated loss or increase in revenues to the state or to local governments as a result of enforcing or administering the proposed rules. Mr. Millholland has determined that for each year of the first five years that the proposed rules will be in effect, that enforcing or administering the rules have very few implications relating to cost or revenues of the state or local governments.

Mr. Millholland has determined that for each year of the first five years that the proposed rules will be in effect, the anticipated public benefit is clarification of policies, with the public benefit of having a more effective and efficient administration of an address confidentiality program for certain crime victims. Mr. Millholland has determined that for each year of the first five years that the proposed rules will be in effect, the probable economic cost to persons required to comply with the proposed rules is minimal.

Mr. Millholland has determined that the proposed rules will not affect a local economy, and therefore, no local impact statement has been drafted.

Mr. Millholland has determined that the proposed rules will not have an adverse economic effect on small business or micro-businesses.

Comments may be submitted no later than 30 days from the date of publication to Elaine Sample, Assistant Attorney General, Crime Victim's Compensation Program, Crime Victim Services Division, Office of the Attorney General, P.O. Box 12198, Mail Code, Austin, Texas 78711-2198, or by telephone (512) 936-1239 or by e-mail to Elaine.Sample@oag.state.tx.us.

The new sections are proposed under the Texas Code of Criminal Procedure, Title 1, Article 56.93, which authorizes the Office of the Attorney General to adopt rules reasonable and necessary to implement Article 56.82, in order to serve victims of family violence, sexual assault, or stalking by the creation of an address confidentiality program.

The proposed sections affect Texas Code of Criminal Procedure, Chapter 56.

§61.1001.Definitions.

(a) The following words and terms, when used in this subchapter, shall have the following meanings:

(1) Applicant--A person who submits an application to the Office of the Attorney General (OAG) to participate in the Address Confidentiality Program (ACP).

(2) Application--For the purpose of administering the ACP, means the OAG application for participation in the ACP and includes all information and documents submitted by, or on the behalf of, the applicant.

(3) Certification--For the purpose of administering the ACP, means OAG authorization for an applicant to participate in the ACP.

(4) Certified mail--For the purpose of administering the ACP, means any first class letter-size or flat-size mail for which the mailer pays a surcharge to the USPS to be provided with a receipt, and the destination post office records delivery of the mail. Certified mail does not include a package regardless of size or type of mailing.

(5) Counseling--For the purpose of administering the ACP, means victim-related guidance, advice, and support with crisis intervention, obtaining information, legal advocacy, prevention of further harm, or meeting other physical, emotional or psychological needs.

(6) Family violence--As defined in Texas Family Code §71.004, means:

(A) an act by a member of family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(B) abuse, as that term is defined by Texas Family Code §261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or

(7) First Class Mail--For the purpose of administering the ACP, means United States Postal Service (USPS) first class letter-size mail and first class flat-size mail:

(A) Letter-size mail, as defined in the USPS Domestic Mail Manual, is mail that is not less than 5 inches long or more than 11 1/2 inches long, and not less than 0.007 inches thick or more than 1/4 inch thick. Letter-size mail may not weigh more than 3.5 ounces.

(B) Flat-size mail, as defined in the USPS Domestic Mail Manual, is mail not more than 15 inches long, more than 12 inches high or more than 3/4 inches thick. Flat-size mail may not weigh more than 13 ounces.

(8) Household--A unit composed of persons living together in the same dwelling, without regard to whether they are related to each other, as defined in Texas Family Code §71.005.

(9) Law enforcement agency--A governmental agency that employs peace officers as delineated by Texas Code of Criminal Procedure Article 2.12.

(10) Mail sent by a government agency--Letter-size or flat-size mail sent by a federal, state or local government agency. Mail sent by a government agency does not include a package.

(11) Other entity--For the purpose of administering the ACP, means an entity, whether for profit or nonprofit, that provides the services of a victim's assistance counselor and provides counseling and shelter services to victims of family violence.

(12) Package--For the purpose of administering the ACP, a package shall have the same meaning as parcel, as defined in the USPS Domestic Mail Manual. Parcel is mail that does not meet the mail processing category of letter-size mail or flat-size mail.

(13) Sexual offense--For the purpose of administering the ACP, means sexual assault as defined in §22.011, aggravated sexual assault as defined in §22.021, or prohibited sexual conduct as defined in §25.02 of the Texas Penal Code.

(14) Shelter services--For the purpose of administering the ACP, means the following services provided directly, by referral, or through formal arrangements with other agencies:

(A) 24-hour-a-day shelter;

(B) a crisis call hotline available 24 hours a day;

(D) intervention services, including safety planning, understanding and support, information, education, referrals, resource assistance, and individual service plans;

(E) emergency transportation;

(F) legal assistance in the civil and criminal justice systems, including identifying individual needs, legal rights, and legal options and providing support and accompaniment in pursuing those options;

(G) information about educational arrangements for children;

(H) information about training for and seeking employment; and

(I) a referral system to existing community services.

(15) Stalking--Has the meaning assigned by Texas Penal Code §42.072.

(16) State or local agency--For the purpose of establishing eligibility to participate in the ACP under Texas Code of Criminal Procedure Article 56.83, means a State of Texas governmental agency or a Texas county, city, town, or municipality that offers the services of a victim's assistance counselor.

(17) Texas resident--A person who has a domicile in Texas, who lives for more than a temporary period of time in Texas, or who can show intent to establish a domicile in Texas at the time of the alleged crime. Documentary evidence of the applicant's Texas residency may be established by submitting the following documentation in the name of the applicant:

(A) a lease or rental agreement;

(B) utility bills;

(D) a driver's license;

(E) postmarked mail delivered to the applicant at the Texas residence or intended Texas residence;

(F) written verification from a victim's assistance counselor; or

(G) other documentation approved by the OAG.

(18) True Address--The physical address where the applicant actually resides, is employed, or attends school.

(19) Victim's Assistance Counselor--For the purpose of administering the ACP, means an individual authorized by a state or local agency or other for profit or nonprofit entity to meet with or assist individuals applying for participation in the ACP.

(20) Victim of family violence--An individual against whom family violence has been alleged or committed, as defined in Texas Family Code §71.004.

(b) The definitions in this section will be given their most reasonable meaning unless the content clearly indicates otherwise.

§61.1005.Address Confidentiality Program.

(a) Pursuant to Texas Code of Criminal Procedure Article 56.82, the ACP is administered by the OAG to establish an address confidentiality program to assist victims of family violence, sexual offenses, and stalking, in maintaining a confidential mailing address. The OAG shall:

(1) Designate a substitute post office box address for participants to use in place of the participant's true residential, business, or school address;

(2) Act as agent to receive service of process and mail on behalf of the participant;

(3) Forward to the participant the first class mail or mail sent by a government agency received by the OAG on behalf of the participant.

(b) The following will not be forwarded to the participant by the OAG:

(1) packages;

(2) certified mail that does not meet the definition of first class mail; and

(3) government mail that does not meet the definition of first class mail.

(c) A summons, writ, notice, demand, or process may be served on the OAG on behalf of the participant by delivery of two copies of the document to the OAG. The OAG shall retain a copy of the summons, writ, notice, demand, or process and forward the original to the participant via first class or certified mail not later than the third day after the date of service on the OAG.

(d) The OAG may not make a copy of a participant's mail received by the OAG, except that the OAG shall retain a copy of the envelope in which certified mail is received on behalf of the participant and the OAG will forward the certified mail if it meets the definitions of first class mail.

(e) The attorney general or an agent or employee of the attorney general is immune from liability for any act or omission by the agent or employee in administering the ACP if the agent or employee was acting in good faith and in the course and scope of assigned responsibilities and duties.

(f) An agent or employee of the attorney general who does not act in good faith and in the course and scope of assigned responsibilities and duties in disclosing a participant's true residential, business, or school address is subject to prosecution under Chapter 39, Texas Penal Code.

(g) The OAG is not responsible for updating or modification of the participant's public records regarding the substitute address. ACP participants remain personally responsible for compliance with all applicable federal, state, and local laws and regulations, including those which require a valid physical address of residency.

(h) The OAG is not responsible for tracking or otherwise maintaining mail or records of mail received on behalf of a participant, unless otherwise required by statute.

(i) The OAG is not responsible for notifying any person or entity of the expiration or cancellation of the participant's participation in the ACP.

(j) Upon a final determination of the expiration or cancellation of the participant's participation in the ACP, the OAG will return the participant's mail to sender.

§61.1010.Eligibility to Participate in the Address Confidentiality Program.

(a) An application for participation must be completed by the applicant in person at the state or local agency or other entity with which the application is filed.

(b) A state or local agency or other entity with which an application is filed shall forward the application to the OAG.

(c) Pursuant to Texas Code of Criminal Procedure Article 56.83, to be eligible to participate in the ACP, an applicant must:

(1) meet with a victim's assistance counselor from a state or local agency or other entity;

(2) file an application for participation with the OAG or a state or local agency or other entity;

(3) designate the OAG as agent to receive service of process and mail on behalf of the applicant; and

(4) live at a residential address, or relocate to a residential address, that is unknown to the person who committed, or is alleged to have committed, the family violence, sexual offense, or stalking.

§61.1015.Application for Participation in the Address Confidentiality Program.

(a) An application for participation in the ACP must contain the date, the applicant's name and signature affirming the following:

(1) the applicant fears for the safety of the applicant, the applicant's child, or another person in the applicant's household because of threat of immediate or future harm by the person alleged to have committed the family violence, sexual offense, or stalking;

(2) the applicant's true residential address that, to the best of the applicant's knowledge, is unknown to the alleged offender and, if applicable, the applicant's business and school address;

(3) a statement by the applicant as to whether an existing court order or a pending court case for child support or child custody or visitation that involves the applicant and, if so, the name of the legal counsel of record and each parent involved in the court order or pending case; and

(4) the name, title, and signature of the victim's assistance counselor who met with the applicant, and, if applicable, the name, title, and signature of the victim's assistance counselor who assisted the applicant in the preparation of the application.

(b) In addition to the application, the OAG may require an applicant to submit independent documentary evidence that family violence, a sexual offense, or stalking occurred. Independent documentary evidence may include, but is not limited to:

(1) an active or recently issued protective order;

(2) an incident report or other record maintained by a law enforcement agency or official;

(3) a statement from a physician or other health care provider regarding the applicant's medical condition as a result of the family violence, sexual offense, or stalking;

(4) a statement from a mental health professional, a member of the clergy, an attorney or other legal advocate, a trained staff member of a family violence center, or another professional who has assisted the applicant in addressing the effects of the family violence, sexual offense, or stalking; or

(5) any other information the OAG deems appropriate to be included on the application.

§61.1020.Approval of Application and Certification; Renewal.

(a) The OAG shall review and, if appropriate, approve the applicant's application and certify the applicant's participation in the ACP.

(b) Upon certification into the ACP, the OAG will issue an ACP authorization card (ACP card) to the ACP participant. The ACP card is valid as long as the ACP participant remains certified under the ACP.

(1) An ACP card is property of the OAG and must be surrendered or destroyed upon cancellation of participation in the ACP.

(2) An ACP card is an official governmental record and is void if altered, sold, or damaged.

(3) Participants may request a new ACP card in the event the card is lost, stolen, or destroyed.

(4) The OAG may issue and replace ACP cards upon certification or request for a replacement ACP card.

(d) To renew a certification, a participant must submit a new ACP application and comply with the requirements as if submitting an application for the first time. An applicant may use the same incident of family violence, sexual offense, or stalking as the basis for renewal of their application for participation. An application for renewal will be treated as an original application.

§61.1025.Acceptance of Substitute Address.

Pursuant to Texas Code Criminal Procedure Article 56.89(a), a state or local agency must accept the substitute post office box address designated by the OAG if the substitute address is presented to the agency by a participant in place of the participant's true residential, business, or school address.

§61.1030.Denial or Cancellation.

(a) Pursuant to Texas Code of Criminal Procedure Article 56.86(a), an applicant is ineligible for, and a participant may be excluded from, participation in the ACP if the applicant or participant knowingly makes a false statement on an application to the OAG.

(b) Pursuant to Texas Code of Criminal Procedure Article 56.86(b), a participant may be excluded and hence cancelled from participation in the ACP if:

(1) mail forwarded to the participant by the OAG is returned undeliverable on at least four occasions;

(2) the participant changes the participant's true residential address as provided in the application filed by the participant, and does not submit an OAG Change of Address form notifying the OAG at least 10 business days before the date of the address change; or

(3) the participant changes the participant's name.

(c) The OAG shall send a written determination and reason for denial or cancellation to the applicant or participant, as soon as practicable.

§61.1035.Request for Reconsideration of Denial or Cancellation Determination.

(a) An ACP applicant or participant has 30 days from the date of receipt of the determination of denial or cancellation to seek a reconsideration by submitting a Request for Reconsideration of Denial/Cancellation form to the OAG, along with supporting documentation. The OAG may require additional information as deemed necessary. If the applicant or participant fails to file a Reconsideration of Denial/Cancellation form within the 30-day time period, the decision of the OAG becomes final.

(b) The OAG shall make a determination on the request for reconsideration based on the information submitted. As soon as practicable, the OAG shall issue a determination on the request for reconsideration.

(d) An applicant or participant who has previously been denied or cancelled from participation in the ACP may reapply in the event of a new qualifying incident.

§61.1040.Request for Agency Exemption.

(a) An agency may seek an exemption determination from the OAG under Texas Code of Criminal Procedure Article 56.89(b), to require a participant to provide the participant's true residential, business, or school address. To seek an exemption determination, the agency must file a Request for Agency Exemption form that includes, but is not limited to, the following information:

(1) the name of the agency along with an explanation and supporting documentation that shows the exemption is necessary for the agency to perform a duty or function that is imposed by law or administrative requirement;

(2) the name and title of the individual authorized to make the request on behalf of the agency;

(3) verification that the requestor will maintain the confidentiality of the participant's true residential, business, or school address; and

(4) verification by the agency representative affirming that the information submitted is correct.

(b) The OAG may require additional information deemed necessary by the OAG.

(d) An agency may submit a request for an exemption determination at any time even if there is no current case pending at the agency.

(e) An agency previously denied an exemption may reapply in the event of new information.

§61.1045.Request for Reconsideration of Exemption Denial Determination.

(a) If an agency is denied a request under Texas Code of Criminal Procedure Article 56.89(b), an agency has 30 days from the date of receipt of the exemption denial determination to submit a written request for reconsideration to the OAG, along with supporting documentation. The OAG may require additional information as deemed necessary.

(b) The OAG shall make a determination on the request for reconsideration based on the information submitted. The OAG shall issue a determination on the request for reconsideration as soon as practicable.

(d) An agency previously denied an exemption may reapply in the event of new information.

§61.1050.Exceptions.

(a) Pursuant to Texas Code of Criminal Procedure Article 56.90(a)(1)(A), the OAG shall disclose a participant's true residential, business, or school address if requested by:

(1) a law enforcement agency;

(2) the Department of Family and Protective Services for the purpose of conducting a child protective services investigation under Texas Family Code Chapter 261; or

(3) the Department of State Health Services or a local health authority for the purpose of making a notification of a communicable disease described under Texas Code of Criminal Procedure Article 21.31, Texas Family Code §54.033, or Texas Health and Safety Code §81.051.

(b) Pursuant to Texas Code of Criminal Procedure Article 56.90(a)(1)(B), the OAG shall disclose a participant's true residential, business, or school address if required by a court order.

(c) A request for disclosure of a participant's true residential, business, or school address from an entity pursuant to this section, must be submitted on an Agency Request for Disclosure form. The request shall contain the following information:

(1) the name of the agency requesting the disclosure and the reason for the request;

(2) the name and title of the individual authorized to make the request on behalf of the agency;

(3) signed verification that the requestor will maintain the confidentiality of the participant's true residential, business or school address;

(4) a signed statement by the agency representative affirming that the information submitted is correct; and

(5) an original certified copy of the court order, if applicable.

(d) The OAG may require additional information as deemed necessary by the OAG.

(e) The OAG will issue a written determination as soon as practicable. If the OAG determination is to disclose the information, the information will be provided to the agency at the same time as the determination. If the OAG's determination is to not disclose the information, the agency may file a request for reconsideration.

§61.1055.Request for Reconsideration of Denial of Exception.

(a) If an agency is denied under Texas Code of Criminal Procedure Article 56.90, an agency has 30 business days from the date of receipt of the disclosure determination to submit a written request for reconsideration to the OAG, along with supporting documentation. The OAG may require additional information as deemed necessary.

(d) An agency previously denied disclosure may reapply in the event of new information.

§61.1060.Withdrawal From Participation.

A participant may withdraw from participation in the ACP by submitting to the OAG a Withdrawal From Participation form signed by the participant.

§61.1065.Mail That Cannot Be Forwarded.

If a participant receives mail that cannot be forwarded, the ACP may dispose of such mail in accordance with United States Postal Service laws, regulations and guidelines, including, but not limited to, returning mail to the sender or refusing to accept delivery of such mail.

§61.1070.Participant's Consent to Disclose.

(a) The applicant is required to consent to the OAG's disclosure of the participant's true residential, business or school address if the OAG deems it necessary to administer the ACP.

(b) If the OAG deems it necessary to disclose the participant's true residential, business or school address, the OAG will send the participant a notification of disclosure.

§61.1075.Request for Reconsideration of OAG Disclosure Determination.

Within the time period stated in the notification of disclosure, counted from the date of receipt of the notification, the applicant must submit a written request for reconsideration of the OAG's disclosure determination, along with supporting documentation. The OAG may require additional information as deemed necessary.

§61.1080.Destruction of Information.

(a) The OAG shall destroy all information relating to a participant on the third anniversary of the date participation in the ACP ends.

(b) The OAG shall destroy all information relating to a denied application on the third anniversary of the date of the denial.

§61.1085.Voter Registration.

A participant who desires to register to vote is responsible for compliance with the requirements of the registrar of the county in which the participant resides and all other applicable federal, state, and local laws and regulations.

§61.1090.State or Local Agency Responsibility.

A state or local agency that accepts an ACP participant's substitute post office box address is responsible for the administration of its rules and regulations in compliance with Texas Code of Criminal Procedure Chapter 56, Subchapter C.

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 February 29, 2008.

TRD-200801238

Stacey Napier

Deputy Attorney General

Office of the Attorney General

Earliest possible date of adoption: April 13, 2008

For information regarding this publication, contact Lauri Saathoff, Agency Liaison, at (512) 463-2096.