37 TAC §§145.50 - 145.59
The Texas Board of Pardons and Paroles adopts, on
an emergency basis, new rules to 37 TAC, Chapter 145, Subchapter C, §§145.50
- 145.59, concerning a court-ordered Special Condition X hearing for
Raul Meza.
The new rules are adopted on an emergency basis to comply with
federal case law requiring the Texas Board of Pardons and Paroles
to conduct a hearing (Raul Meza v. Livingston, et. al.,
Cause No. 1:05CV1008, United States District Court,
Western District, Austin Division). The adoption of the rules permits
the Texas Board of Pardons and Paroles to comply with the effective
date of these rules and to establish procedures to comply with the
federal court's order.
The emergency rules are adopted under §§508.082,
508.083 and 508.0441, Government Code. Section 508.082 requires the
board to adopt rules relating to the submission and presentation of
information and arguments to the board, a parole panel, and the department
for and in behalf of an inmate. Section 508.083 relates to representation
of an inmate in a matter before the board or a parole panel. Section
508.0441 provides the board with the authority to determine conditions
of parole or mandatory supervision, including special conditions.
The emergency rules are adopted under Government Code, §2001.034.
Cross-reference to Statute: Government Code, Chapter 2002.
§145.50.Statement of Purpose for the Court-Ordered Hearing Rules.
The purpose of the rules in this subchapter is to establish
procedures to conduct a court-ordered Special Condition X hearing
for Raul Meza, TDCJ# 332350.
(1) Raul Meza filed a civil rights lawsuit styled Raul
Meza v. Travis County, et. al., Cause No. 1:05CV1008, United States
District Court, Western District, Austin Division, on December 20,
2005. In March of 2007, Meza named all the board members of the Texas
Board of Pardons and Paroles as defendants in the lawsuit. The case
proceeded to a bench trial on November 10, 2008. The final judgment
was entered on March 24, 2009 in favor of Meza.
(2) In the court's judgment, the court determined that
the "State," the Texas Board of Pardons and Paroles and the Texas
Department of Criminal Justice, failed to afford Meza "a hearing meeting
the requirements of due process" when it imposed sex-offender conditions
on Meza's parole. The court ordered the "State" to "provide Meza with
"an appropriate hearing regarding the imposition of sex-offender conditions
on Meza's parole consistent with the Court's Findings of Fact and
Conclusion of Law..."
(3) The Assistant Attorney Generals for the "State"
defendants filed a Motion to Stay the Judgment in the federal district
court on April 23, 2009. The court denied the motion on May 19, 2009.
The Assistant Solicitor General for the "State" defendants plans to
file a Motion to Stay the Judgment with the United States Court of
Appeals, Fifth Circuit. In the event that the Fifth Circuit denies
Motion to the Stay the Judgment, the Board of Pardons and Paroles
will adhere to the rules set forth in this subchapter to conduct a
Special Condition X hearing for Raul Meza, TDCJ# 332350.
§145.51.Hearing.
(a) The hearing shall be scheduled not earlier than
the 30th day from the date the Texas Board of Pardons and Paroles
receives the transmittal, supporting documents and the parole file
from the Texas Department of Criminal Justice Parole Division. The
hearing on this matter not confidential or privileged by law, or both,
shall be open to the public.
(b) Appropriate federal and state constitutional provisions,
statutes, regulations, and judicial precedent establishing the confidential
or privileged nature of information presented shall be given effect
by the parole panel.
(c) To effect this provision, the parole panel shall
have the authority to close the hearing to the extent necessary to
protect against the improper disclosure of confidential and/or privileged
information.
§145.52.Authority of Parole Panel.
(a)
The Presiding Officer (Chair) of the Texas Board
of Pardons and Paroles shall designate the parole panel that will
conduct the Special Condition X hearing.
(b) The parole panel members shall have the following authority:
(1) to administer oaths;
(2) to examine witnesses;
(3) to rule on the admissibility of evidence;
(4) to rule on motions and objections;
(5) to recess any hearing from time to time and place to place;
(6) to issue subpoenas for witnesses and other documents
in accordance with statutory authority;
(7) to maintain order and decorum throughout the course
of any proceedings;
(8) to collect documents and exhibits comprising the
record of the hearing;
(9) to act as the finder of facts and determine the
weight to be given to particular evidence or testimony and to determine
the credibility of witnesses;
(10) to make findings of facts and conclusions of laws; and
(11) to make the final decision to impose or not impose
Special Condition X.
§145.53.Right to Counsel.
(a) Meza may be represented by counsel at the Special
Condition X hearing. Counsel shall complete and submit the appropriate
fee affidavit when the hearing is convened by the parole panel in
accordance with Section 508.084, Texas Government Code.
(b) Due to the unique nature of this hearing, if Meza
is unable to afford an attorney, an attorney will be appointed to
represent him.
§145.54.Witnesses.
(a) The parole panel may determine whether a witness
may be excused under the rule that excludes witnesses from the hearing.
(1) In no event shall the parole panel exclude from
the hearing a party under the authority of this section. A party includes:
(A) Meza;
(B) Meza's attorney; and
(C) no more than one representative of the Texas Department
of Criminal Justice Parole Division.
(b) All witnesses who testify in person are subject
to cross-examination unless the parole panel specifically finds good
cause for lack of confrontation and cross-examination.
(c) Witnesses personally served with a subpoena and
who fail to appear at the hearing, and upon good cause determined
by the parole panel, may present testimony by written statement.
§145.55.Ex Parte Consultations.
Unless required for the disposition of matters authorized by
law, the parole panel assigned to render a decision or to make findings
of fact and conclusions of law in this case may not communicate, directly
or indirectly, in connection with any issue of fact or law with any
party, except on notice and opportunity for all parties to participate.
§145.56.Evidence.
(a) All parties shall have an opportunity to present
evidence in the form of testimony and written documentation. The parole
panel shall determine the order of presentation of evidence.
(b) The parole panel shall apply the Texas Rules of
Evidence. When necessary to ascertain facts not reasonably susceptible
of proof under these rules, evidence not admissible thereunder may
be admitted, except where precluded by statute, if it is of a type
commonly relied upon by reasonably prudent persons in the conduct
of their affairs.
(c) The parole panel shall give effect to the rules
of privilege recognized by law.
(d) Relevant testimony shall be confined to the subject
of the pending matter. In the event any party at a hearing shall pursue
a line of questioning that is, in the opinion of the parole panel,
irrelevant, incompetent, unduly repetitious, or immaterial, such questioning
shall be terminated.
(e) Relevant staff reports may be admitted as evidence in any hearing.
(f) Evidence may be stipulated by agreement of all parties.
(g) Objections to evidence offers may be made and shall
be ruled upon by the parole panel, and any objections and the rulings
thereon shall be noted in the record.
§145.57.Motions.
Unless made during a hearing, motions shall be made in writing,
set forth the relief or order sought, and shall be filed with the
parole panel. Motions based on matters which do not appear of record
shall be supported by affidavit.
§145.58.Record.
(a) The record in any case includes all pleadings,
motions, and rulings; evidence received or considered; matters officially
noticed; questions and offers of proof, objections, and rulings on
them; all relevant Texas Department of Criminal Justice Parole Division
documents, staff memoranda or reports submitted to or considered by
the parole panel involved in making the decision, and any decision,
opinion, or report by the parole panel presiding at the hearing.
(b) All hearings shall be electronically recorded in
their entirety, and at the parole panel's option shall be either copied
or transcribed upon the request and deposit of estimated costs by
Meza or his attorney.
§145.59.Decisions.
(a) A final decision or order shall be in writing stating
the evidence relied upon and the reasons for the decision.
(b) Meza shall be notified personally or by mail of
any decision or order.
This agency hereby certifies that the emergency adoption
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 July 2, 2009.
TRD-200902740
Bettie Wells
General Counsel
Texas Board of Pardons and Paroles
Effective Date: July 2, 2009
Expiration Date: October 29, 2009
For further information, please call: (512) 406-5388