Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 1.
ORGANIZATION AND ADMINISTRATION
Subchapter H. PROFESSIONAL CONDUCT
37 TAC §1.114
The Texas Department of Public Safety proposes an amendment
to §1.114, concerning Major Infraction Applicable to Any Member. Amendment
to the section adds new paragraph (14) which is necessary as a result of the
passage of Texas Senate Bill 1074, Acts 2001, 77th Legislature, Regular Session,
chapter 947, §1, which prohibits a peace officer from engaging in racial
profiling and grants rulemaking authority to the Texas Department of Public
Safety.
Tom Haas, Chief of Finance, has determined that for each year of the first
five-year period the rule is in effect there will be no fiscal implications
to state or local government, or local economies.
Mr. Haas also has determined that for each year of the first five-year
period the rule is in effect the public benefit anticipated as a result of
enforcing the rule will be assurance to the public that proper action will
be taken against any member of the department committing a major infraction
which is not considered professional conduct. There is no anticipated adverse
economic effect on individuals, small businesses, or micro-businesses.
Comments on the proposal may be submitted to Captain John Reney, Jr., Traffic
Law Enforcement Division, Texas Department of Public Safety, P.O. Box 4087,
Austin, Texas 78773-0500, (512) 424-5996.
The amendment is proposed 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.
Texas Government Code, §411.004(3) is affected by this proposal.
§1.114.Major Infraction Applicable to Any Member.
(a)
(No change.)
(b)
Any of the major infractions listed as follows may be deemed
sufficient cause for the discharge, suspension, demotion, or removal of any
member of the department of public safety:
(1) - (11)
(No change.)
(12)
acceptance of fees, gifts, or money contrary to the rules
of the department and/or laws of the state; [
(13)
any act on or off duty which reflects discredit to the
department of public safety
; or
[
(14)
racial profiling.
(c)
(No change.)
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 March 5, 2002.
TRD-200201343
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 424-2135
Subchapter C. PEYOTE
37 TAC §§13.41, 13.42, 13.44, 13.45, 13.47, 13.48, 13.50, 13.52, 13.54, 13.58
The Texas Department of Public Safety proposes amendments
to §§13.41, 13.42, 13.44, 13.45, 13.47, 13.48, 13.50, 13.52, 13.54,
and 13.58, concerning Controlled Substances. The sections are being amended
to clarify the definition of an Indian to conform to requirements the Federal
American Indian Religious Freedom Act (AIRFA) places upon Texas; to clarify
the identification requirements for individuals purchasing peyote; and to
revise or eliminate requirements for documentation of the source of peyote.
Tom Haas, Chief of Finance, has determined that for each year of the first
five-year period the rules are in effect there will be no fiscal implications
to state or local government, or local economies.
Mr. Haas also has determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of enforcing the rules will be relaxed compliance burdens for affected parties.
There is no anticipated adverse economic effect on individuals, small businesses,
or micro-businesses.
Comments on the proposal may be submitted to Linda Schaefer, Manager, Texas
Prescription/Controlled Substances Registration Section, Texas Department
of Public Safety, P.O. Box 4087, Austin, Texas 78773-0439, (512) 424-2458.
The amendments are proposed pursuant to Texas Government Code, §411.006(4),
which provides that the director of the department shall adopt rules, subject
to commission approval, considered necessary for the control of the department;
and Health and Safety Code, §481.003(a), which authorizes the director
to adopt rules to administer and enforce the Texas Controlled Substances Act.
Texas Government Code, §411.006(4) and Health and Safety Code, §481.003(a)
are affected by this proposal.
§13.41.Subchapter Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.
(1) - (3)
(No change.)
(4)
Indian--An individual with not less than 25% Indian blood
who is
declared by a
[
[(A)
an enrolled member of a tribe recognized
under federal law; and]
[
(5)
(No change.)
§13.42.Peyote Distributor Registration.
(a) - (c)
(No change.)
(d)
Activity not authorized. A distributor registration does
not authorize the distributor to:
(1) - (2)
(No change.)
(3)
deliver to an individual who is
an
[
(4)
import or export peyote
except as permitted by federal
law
.
§13.44.Certificate and ID Card.
(a)
(No change.)
(b)
Return. If the director suspends, revokes, denies, cancels,
or accepts voluntary surrender of a distributor's certificate of registration,
the distributor must return the following to the director (CSR Section) within
seven days:
(1) - (3)
(No change.)
(4)
each [
[
(5)
[
(c) - (d)
(No change.)
§13.45.Employee Information.
(a) - (c)
(No change.)
[(d)
Name format. The distributor must report
an employee's name to the director (CSR Section) in the format required by
this subsection. The director will use the same name format on documents issued
by the director. The standard format, including name order, is:]
[(1)
given or first name;]
[(2)
additional middle names, if any;]
[(3)
mother's family name; and]
[(4)
father's family name.]
§13.47.Possession and Display of Identification and Access Information.
(a) - (d)
(No change.)
(e)
Manner of compliance. An individual may comply with subsection
(d)(1) of this section by presenting[
[
[(2)
a completed form issued by the director
to record this information.]
§13.48.Source Information.
(a)
(No change.)
(b)
Ensure lawful access. A distributor may not deliver peyote
to another distributor or an Indian unless the distributor takes reasonable
steps to ensure the peyote was harvested or cut in Texas by the distributor
or an employee of the distributor on land to which the distributor has a legal
right of entry. The director will deem a distributor has taken reasonable
steps under this subsection if the distributor:
(1)
makes express verbal inquiry about the source of all peyote
supplied to the distributor by an employee or another distributor;
and
(2)
obtains from the employee or other distributor a verbal
or written statement certifying the source of all peyote supplied to the distributor[
[(3)
maintains the certification in a log
of the source of all peyote.]
[(c)
Statement of lawful access. A distributor
must:]
[(1)
ensure the employee or other distributor, who supplies
peyote to the distributor in a single transaction, completes or causes to
be completed a written statement certifying under subsection (d) of this section
the source of the peyote involved in the transaction; and]
[(2)
maintain the source log as a record of acquisition under
this subchapter.]
[(d)
Source log. A source log under this section
must include:]
[(1)
a reasonably accurate description of the quantity of peyote
supplied in the transaction;]
[(2)
a reasonably accurate description of the physical property
where each quantity of peyote was harvested or cut;]
[(3)
the name of the individual who asserts authority to give
permission on behalf of the landowner for peyote to be harvested or cut;]
[(4)
the name of the harvester;]
[(5)
the date each quantity of peyote was harvested or cut;
and]
[(6)
the signature of the distributor].
§13.50.Sale in Person.
(a) - (b)
(No change.)
(c)
Standard method. A distributor may deliver peyote to an
Indian member of the Native American Church if the purchasing Indian furnishes
to the distributor [
(d)
Required contents.
A
[
(1)
(No change.)
(2)
contain the following:
(A)
the full name and either a cross-reference to
an
[
(B)
the date of issuance and expiration for the [
(C)
the signature of the president, vice president, or other
designated custodian of the state or local organization of the Native American
Church who personally issued the [
(e)
Recommended contents. The director encourages but does
not require that
a
[
(1) - (3)
(No change.)
(f)
Timely transmission. A church representative should timely
mail or cause to be mailed or otherwise transmit electronically to the director
(CSR Section) a [
(g)
Alternative method. In lieu of the standard method documentation
required by this section, a distributor may deliver peyote to an Indian member
of the Native American Church if the purchasing Indian furnishes [
(1)
(No change.)
(2)
an authorization
[
(A) - (B)
(No change.)
(h)
(No change.)
(i)
A church may request a copy of a sample authorization letter[
§13.52.Sales Receipt.
(a)
(No change.)
(b)
Contents. Each sales receipt must contain the following:
(1) - (5)
(No change.)
(6)
for
the purchasing
Indian:
[
(A)
the
church membership
number;
(B)
the travel permit number; or
(C)
the issue date of the
[
(7) - (9)
(No change.)
(c)
(No change.)
§13.54.Declaration as Native American Church.
(a)
While the director does not require an entity
to seek recognition or registration as a church, an entity, that seeks to
declare itself to the director under this subchapter as a Native American
Church, must submit and update the following information to the director (CSR
Section):
(1)
the state charter; and
(2)
the identity of
its president, vice president,
and other designated custodian or current officer, including the full name,
Indian name, [
(b)
In addition to the information submitted
to the director under subsection (a) of this section, the entity may submit
the following additional identifying information about each custodian or officer:
(1)
tribe;
(2)
agency enrolled with; and
(3)
census number or enrollment number.
§13.58.Miscellaneous.
(a)
(No change.)
(b)
AIRFA. Nothing in this subchapter affects the ability of
an individual to use, possess, or transport peyote under federal law, if the
individual:
(1)
(No change.)
(2)
is a member of
an
[
(3)
(No change.)
(c)
(No change.)
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 March 5, 2002.
TRD-200201344
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 424-2135
37 TAC §13.273, §13.276
The Texas Department of Public Safety proposes amendments
to §13.273 and §13.276, concerning Controlled Substances. Amendment
to §13.273 clarifies grounds for denial and corrects cross-reference
that was in error. Amendment to §13.276 also corrects cross-reference
that was in error due to renumbering of a previous version of the rules.
Tom Haas, Chief of Finance, has determined that for each year of the first
five-year period the rules are in effect there will be no fiscal implications
to state or local government, or local economies.
Mr. Haas also has determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of enforcing the rules will be relaxed compliance burdens for affected parties.
There is no anticipated adverse economic effect on individuals, small businesses,
or micro-businesses.
Comments on the proposal may be submitted to Linda Schaefer, Manager, Texas
Prescription/Controlled Substances Registration Section, Texas Department
of Public Safety, P.O. Box 4087, Austin, Texas 78773-0439, (512) 424-2458.
The amendments are proposed pursuant to Texas Government Code, §411.006(4),
which provides that the director of the department shall adopt rules, subject
to commission approval, considered necessary for the control of the department;
and Health and Safety Code, §481.003(a), which authorizes the director
to adopt rules to administer and enforce the Texas Controlled Substances Act.
Texas Government Code, §411.006(4) and Health and Safety Code, §481.003(a)
are affected by this proposal.
§13.273.Denial.
(a)
Grounds. Except as provided by
§13.274(b)
[
(1) - (4)
(No change.)
(5)
the applicant has a registration currently revoked, suspended,
or voluntarily surrendered; [
(6)
the applicant
would
[
(7)
the applicant does not qualify under this
chapter for issuance of registration.
(b)
(No change.)
§13.276.Probation or Reprimand.
(a) - (c)
(No change.)
(d)
End of probation. A probated registration remains probated
until:
(1) - (3)
(No change.)
(4)
the registration has been revoked under
§13.274
[
(e) - (f)
(No change.)
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 March 5, 2002.
TRD-200201345
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 424-2135
Subchapter A. ADMINISTRATIVE LICENSE REVOCATION
37 TAC §§17.2 - 17.4, 17.6, 17.13, 17.15
The Texas Department of Public Safety proposes amendments
to §§17.2 - 17.4, 17.6, 17.13 and 17.15, concerning Administrative
License Revocation. The rules as proposed incorporate recent amendments to
Texas Transportation Code, Chapters 524 and 724 resulting from the passage
of Texas House Bill 63, Acts 2001, 77th Legislature, Regular Session, chapter
444. Revisions to certain definitions contained in §17.2 were also required
to reflect changes in other departmental rules. In addition, language regarding
the collection of the reinstatement fee following a disqualification has been
deleted from §17.15.
Tom Haas, Chief of Finance, has determined that for each year of the first
five-year period the rules are in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Haas also has determined that for each year of the first five-year
period the rules are in effect the anticipated public benefit resulting from
adoption of the sections will be efficiency in driver improvement and enhanced
public safety on public highways. There is no anticipated adverse economic
effect on individuals, small businesses, or micro-businesses. The anticipated
economic cost to individuals who are required to comply with the sections
as proposed will be a reinstatement fee of $125.
Comments on the proposal may be submitted to Angela Parker, Director of
Legal Staff, Driver License Division, Texas Department of Public Safety, P.O.
Box 4087, Austin, Texas 78773-0380, (512) 424-5235.
The amendments are proposed 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, Chapters
524 and 724, which provide that the department may adopt rules to administer
those chapters.
Texas Government Code, §411.004(3) and Texas Transportation Code,
Chapters 524 and 724 are affected by this proposal.
§17.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
(No change.)
(2)
Address of record--A person's most recent residence address
as shown by the records of the department in accordance with Texas Transportation
Code, Chapter 521[
(3) - (9)
(No change.)
(10)
Arresting officer--Refers to a certified Texas peace officer
who arrests a person for an offense under Texas Penal Code, §49.04,
§49.06,
§49.07, or §49.08, or Alcoholic Beverage Code, §106.041,
or any other offense against the laws of the State of Texas.
(11) - (23)
(No change.)
(24)
Driver's license--Has the meaning assigned in Texas Transportation
Code, Chapter 521.
The term also includes a commercial driver's license
or a commercial driver learner's permit issued under Texas Transportation
Code, Chapter 522.
(25)
(No change.)
(26)
Instrument or breath test instrument--Has the meaning
assigned in
§19.7
[
(27)
License or license to operate a motor vehicle--Has the
meaning assigned in Texas Transportation Code, Chapter 521.
The term
also includes a commercial driver's license or a commercial driver learner's
permit issued under Texas Transportation Code, Chapter 522.
(28) - (32)
(No change.)
(33)
Person--Refers to the following: an individual arrested
for a violation of Texas Penal Code, §49.04,
§49.06,
§49.07,
or §49.08; a minor arrested or detained for a violation of Texas Alcoholic
Beverage Code, §106.041; or the operator of a commercial motor vehicle
who refused to provide a specimen of breath, blood or urine when requested
to do so by a peace officer, or who provided a specimen with an alcohol concentration
defined in Texas Transportation Code, Chapter 522, whether or not the operator
of the commercial motor vehicle was arrested for a violation of Texas Penal
Code, §49.04, §49.07, or §49.08.
(34) - (38)
(No change.)
(39)
Temporary driving permit--Refers to the
authorization to operate a motor vehicle issued pursuant to Texas Transportation
Code, §524.011(b)(3) or §724.032(a)(3). The temporary driving permit
is incorporated in the notice of suspension (Form DIC-25) and notice of disqualification
(Form DIC-57).
(40)
[
§17.3.Notice of Suspension or Disqualification.
(a)
(No change.)
(b)
Notice given by a peace officer.
(1) - (4)
(No change.)
(5)
If a person arrested for an offense under Texas Penal Code, §49.04,
§49.06,
§49.07, §49.08, or an offense under Texas Alcoholic
Beverage Code, §106.041, or a person requested to submit a breath, blood
or urine specimen under Texas Transportation Code, Chapter 522, refuses to
give a specimen as designated by the peace officer, the officer shall personally
serve notice of driver's license suspension or disqualification on the person.
(c) - (d)
(No change.)
§17.4.ALR Reports.
Following an ALR contact, the peace officer shall submit an ALR report
to the department on a form approved by the department.
(1)
ALR Reports: breath, blood or urine test refusal. This
section applies to offenses under Texas Penal Code, §49.04,
§49.06,
§49.07, §49.08, Texas Transportation Code, Chapter 522, or
Texas Alcoholic Beverage Code, §106.041. An ALR report based on a breath,
blood or urine test refusal shall contain the following information:
(A) - (E)
(No change.)
(F)
the notice of suspension
and temporary driving permit
(Form DIC-25) served and/or the notice of disqualification
and
temporary driving permit
(Form DIC-57); and
(G)
(No change.)
(2)
ALR Reports: breath, blood or urine test failures. This
section applies to offenses under Texas Penal Code, §49.04, §49.07, §49.08,
Texas Transportation Code, Chapter 522, or Alcoholic Beverage Code, §106.041.
An ALR report based on a breath, blood or urine test failure shall be sworn
to by the arresting officer (or by the peace officer requesting the specimen
in the case of a commercial motor vehicle operator who is not arrested) and
shall contain the following information:
(A) - (E)
(No change.)
(F)
the notice of suspension
and temporary driving permit
(Form DIC-25) served and/or the notice of disqualification
and
temporary driving permit
(Form DIC-57); and
(G) - (H)
(No change.)
(3)
ALR Reports: offense under Alcoholic Beverage Code, §106.041,
no specimen requested. An ALR report shall contain the following information:
(A) - (C)
(No change.)
(D)
the notice of suspension
and temporary driving permit
[
(E) - (F)
(No change.)
§17.6.Rescission.
(a)
(No change.)
(b)
If for any reason the department declines to prosecute
an ALR suspension or disqualification, or rescinds said action after imposition,
the department shall send notice of rescission to the person at his/her address
of record, and current address, if different.
Under such circumstances,
the department shall return the person's driver license if it was previously
surrendered or confiscated.
(c)
(No change.)
§17.13.Effect of Acquittal; Notification to the Department.
(a)
Upon notification that a criminal charge under Texas Penal
Code, §49.04,
§49.06,
§49.07, §49.08, or Texas
Alcoholic Beverage Code, §106.041, has resulted in an acquittal, the
department shall not impose a suspension arising out of the same conduct or
transaction. If a suspension has already been imposed, the department shall
rescind the suspension and remove references to the suspension from the computerized
driving record of the defendant.
(b) - (c)
(No change.)
§17.15.Reinstatement.
A driver's license suspended under Texas Transportation Code, Chapter
524 or Chapter 724[
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 March 5, 2002.
TRD-200201342
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 424-2135
Chapter 141.
GENERAL PROVISIONS
Subchapter A. BOARD OF PARDONS AND PAROLES
37 TAC §141.3
The Texas Board of Pardons and Paroles proposes an amendment
to 37 TAC §141.3, concerning the general conditions for governance of
the Board of Pardons and Paroles. The board proposes an amendment to §141.3
in order to conform the rule relating to policy board duties with the statutory
language.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed amended rule is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett also has determined that, for each year of the first five years
the amended rule as proposed is in effect, the public benefit anticipated
as a result of the amendment to this section will be a clarification of the
rule relating to the policy board's authority.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
The amended rule is proposed under §508.036, Government
Code, which specifies the duties and responsibilities of the policy board.
The cross-reference to the proposed amended rule is §508.0361, Government
Code.
§141.3.Policy Board Administration.
(a)
The policy board shall determine matters that affect all
board members.
(b)
The policy board shall:
(1)
adopt rules which govern the decision-making
processes of the board;
(2)
establish work hours and caseloads for members
of the board and assign additional duties, as necessary, to members of the
policy board;
(3)
develop polices to ensure board members implement
the updated parole guidelines and assign precedential value to previous decisions
of the board relating to the granting of parole and the revocation of parole
or mandatory supervision;
(4)
require members of the board to file activity
reports regarding release decisions made by members of the board, workload,
hours worked, and implementation of parole guidelines;
(5)
report annually on all board activities and
parole release decisions to the governor and the legislature.
[
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 March 11, 2002.
TRD-200201478
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
37 TAC §141.5
The Texas Board of Pardons and Paroles proposes an amendment
to 37 TAC §141.5, concerning the general conditions for governance of
the Board of Pardons and Paroles. The board proposes a non-substantive amendment
to §141.5 to clarify language in the rule in regard to parliamentary
authority.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed amended rule is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett also has determined that, for each year of the first five years
the amended rule as proposed is in effect, the public benefit anticipated
as a result of the amendment to this section will be a clarification of the
language within the rule.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
This amendment is proposed under §508.36, §508.0361,
and §508.047, Government Code which vests the board with authority to
promulgate rules concerning the governance of the board.
There is no cross-reference to the proposed amended rule.
§141.5.Parliamentary Authority.
The current edition of the
Robert's Rules of Order[
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 March 11, 2002.
TRD-200201479
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
37 TAC §141.7
The Texas Board of Pardons and Paroles proposes an amendment
to 37 TAC §141.7, concerning the general conditions for governance of
the Board of Pardons and Paroles. The board proposes an amendment to §141.7
to conform the rule to 37 TAC §141.3, relating to policy board administration.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed amended rule is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett also has determined that, for each year of the first five years
the amended rule as proposed is in effect, the public benefit anticipated
as a result of the amendment to this section will be a clarification of the
authority of the board's presiding officer to administer board member caseloads.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
The amended rule is proposed under §§508.0355 and 508.045,
Government Code, which directs the Board's presiding officer to designate
the composition of board panels.
There is no cross-reference to the proposed amended rule.
§141.7.Composition of Parole Panels.
[
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 March 11, 2002.
TRD-200201480
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
37 TAC §141.71
The Texas Board of Pardons and Paroles proposes a non-substantive
amendment to 37 TAC §141.71, concerning the general conditions for governance
of the Board of Pardons and Paroles. The board proposes an amendment to §141.71
to update a statutory citation in this section.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed amended rule is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett also has determined that, for each year of the first five years
the amended rule as proposed is in effect, the public benefit anticipated
as a result of the amendment to this section will be a correction of the statutory
citation to the Public Information Act.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
This amendment is proposed under §§508.36 and 508.047,
Government Code which vests the board with authority to promulgate rules concerning
the governance of the board.
There is no cross-reference to the proposed amended rule.
§141.71.Minutes of the Board and Board Records.
All minutes of the board and parole panels, final decisions relating
to parole, pardons, and clemency, statistical and general information concerning
the parole program and system, including the names of paroled prisoners and
data recorded in connection with parole services shall be matters of public
record and subject to public inspection during normal business hours except
as limited by exceptions recognized under common law and the Texas
Public
Information Act
[
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 March 11, 2002.
TRD-200201481
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
37 TAC §141.82
The Texas Board of Pardons and Paroles proposes a non-substantive
amendment to 37 TAC §141.82, concerning the general conditions for governance
of the Board of Pardons and Paroles. The board proposes a non-substantive
amendment to §141.82 to update the statutory authority cited within this
section.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed amended rule is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett also has determined that, for each year of the first five years
the amended rule as proposed is in effect, the public benefit anticipated
as a result of the amendment to this section will be the update of the statutory
citation.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
This amendment is proposed under §508.36, §508.044,
and §508.281, Government Code which vests the board with authority to
promulgate rules concerning the governance of the board.
The cross-reference to the proposed amended rule is §508.084, Government
Code, relating to the requirement for an attorney to file a fee affidavit
form.
§141.82.Fee Affidavits.
(a)
Any person who represents an inmate for compensation before
the board or any of its members, before a parole panel, or any board employee
for the purpose of submitting or presenting information or arguments for and
in behalf of any person within the jurisdiction of the board, shall submit
before or at the time of such appearance a completed fee affidavit form.
(b)
The completed fee affidavit form shall state whether any
fee has been, or is to be paid for his participation or services in the case
and all other information required by
§508.084 of the Government
Code
[
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 March 11, 2002.
TRD-200201482
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
Subchapter B. TERMS AND CONDITIONS OF PAROLE
37 TAC §145.27
The Texas Board of Pardons and Paroles proposes an amendment
to 37 TAC §145.27, concerning conditions and rules of parole or mandatory
supervision. The board proposes an amendment to §145.27 to conform this
section to the revised parole certificate.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed amended rule is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett also has determined that, for each year of the first five years
the amended rule as proposed is in effect, the public benefit anticipated
as a result of the amendment to this section will be to clarify that a standard
requirement exists that all releasees participate in the Texas Department
of Public Safety Personal Identification Program.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
This amendment is proposed under §§508.036 and 508.044,
Government Code which vests the board with authority to promulgate rules under
which releasees are to be heard on parole revocations.
The cross-reference to the proposed amended rule is Chapter 521 of the
Texas Transporation Code.
§145.27. Personal Identification Program [
[
(a)
[
[
(b)
[
(c)
[
(d)
[
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 March 11, 2002.
TRD-200201483
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
The Texas Board of Pardons and Paroles proposes the repeal of 37 TAC §§145.54,
145.55, 145.58, 145.71, and 145.72 concerning hearing procedures in the revocation
process of parole or mandatory supervision. The sections are proposed for
repeal to incorporate new and old language under Chapter 146, Revocation of
Parole or Mandatory Supervision.
Gerald Garret, Chair of the Board, has determined that, for the first five-year
period the proposed repeal of these rules is in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
this section.
Mr. Garrett has also determined that, for each year of the first five years
the proposed repeal is in effect, the anticipated public benefit of this repeal
will be to streamline and clarify the rules on reopening and reinstatement
processes for offenders.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed rule amendment.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 14th St., Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this amendment.
Subchapter C. REVOCATION OF PAROLE OR MANDATORY SUPERVISION
37 TAC §§145.54, 145.55, 145.58
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Pardon and Paroles or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of the sections are proposed under §508.036, §508.044
and §508.281 Government Code which vests the Board with authority to
promulgate rules under which releasees are to be heard on parole revocations.
There is no cross-reference to the proposed repealed rules.
§145.54. Releasee's Motion to Reopen Hearing.
§145.55. Procedure after Motion to Reopen is Granted; Time; Rights of the Releasee; Final Disposition.
§145.58. Revocation Without Prejudice.
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 March 11, 2002.
TRD-200201485
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
37 TAC §145.71, §145.72
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Pardons and Paroles or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of the sections are proposed under §508.036, §508.044
and §508.281 Government Code which vests the Board with authority to
promulgate rules under which releasees are to be heard on parole revocations.
There is no cross-reference to the proposed repealed rules.
§145.71. Reinstatement; Exceptional Circumstances; Hearing.
§145.72. Terms and Conditions.
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 March 11, 2002.
TRD-200201486
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
37 TAC §146.11, §146.12
The Texas Board of Pardons and Paroles proposes new rules
37 TAC §146.11 and §146.12, relating to motions to reopen hearings
or to reinstate supervision. The new sections are proposed as a new part of
Chapter 146, Revocation of Parole or Mandatory Supervision. The purpose of
the proposed new rules is to incorporate the rules on the reopening and reinstatement
processes into the rules relating to revocation procedures of the hearing
process.
Gerald Garrett, Chair of the Board, has determined that, for the first
five-year period the proposed new rules are in effect, no fiscal implications
exist for state or local government as a result of enforcing or administering
these sections.
Mr. Garrett also has determined that, for each year of the first five years
the new rules as proposed are in effect, the anticipated public benefit as
a result of enforcing these new rules will be to streamline and clarify the
rules on the reopening and reinstatement processes for offenders.
No anticipated economic corollary exists to small businesses or to persons
required to comply with the proposed new rules.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 West 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 for new rules.
The new rules are proposed under §508.036, §508.044,
and §508.281 Government Code which vests the Board with authority to
promulgate rules under which releasees are to be heard on parole revocations.
There is no cross-reference to the proposed new rules.
§146.11.Releasee's Motion To Reopen Hearing or Reinstate Supervision.
(a)
The releasee or releasee's attorney shall have 60 days
from the date of the board panel's revocation decision to request a reopening
of the case for any substantial error in the revocation process or upon newly
discovered information.
(b)
A request to reopen the revocation hearing or reinstate
supervision submitted later than 60 days from the date of the board panel's
revocation decision will not be considered unless under exceptional circumstances
including but not limited to:
(1)
judicial reversal of a judgment of conviction of a criminal
offense where the offense constituted an underlying factor in the initial
revocation decision;
(2)
judicial order requiring a hearing;
(3)
initial revocation effected without opportunity for a hearing
or waiver as required under law.
(c)
Any such request for reopening made under this section
must be in writing and delivered to the board or placed in the United States
mail (certified, return receipt requested) and addressed to the Texas Board
of Pardons and Paroles, Board Administrator, P.O. Box 13401, Austin, Texas
78711.
(d)
Via transmittal, a board panel designated by the chair
other than the original panel shall dispose of the motion by:
(1)
granting of the motion and ordering that the hearing be
reopened for a stated specified and limited purpose;
(2)
denial of the motion; or
(3)
reversal of the panel decision previously entered and withdrawal
of the board's revocation warrant, under the same terms and provisions as
provided in §146.10 of this title (relating to Final Board Disposition).
(e)
The releasee and attorney, if any, shall be notified in
writing of the board panel's decision.
(f)
When a releasee's motion to reopen the hearing under this
section is granted, the releasee shall be deemed to have consented to such
further reasonable delay in the final disposition of his or her case as shall
be required for the procedure described in §146.12 of this title (relating
to Procedure after Motion To Reopen Is Granted; Time; Rights of the Releasee;
Final Disposition).
§146.12.Procedure after Motion To Reopen Is Granted; Time; Rights of the Releasee; Final Disposition.
(a)
When the board panel disposes of a releasee's motion to
reopen under §146.11 of this title (relating to Releasee's Motion To
Reopen Hearing or Reinstate Supervision) by granting said motion to reopen
the hearing, the case shall be disposed of or referred to a board panel or
designee of the board for final disposition in accordance with this section
and the previous disposition of the case made by the board panel under §146.10
of this title (relating to Board Disposition) shall be set aside and shall
be of no force and effect.
(b)
The purpose of the further proceedings before the board
panel or designee of the board under this section shall be as specified by
the board panel in its order granting the releasee's motion to reopen pursuant
to §146.11(d)(1) of this title.
(c)
When the board panel or designee of the board convenes
the reopening of the hearing, it shall have before it the entire record previously
compiled in the case, including:
(1)
the record, report, and recommendation of the preliminary
or revocation hearing (§146.7 of this title (relating to Preliminary
Hearing) and §146.9 of this title (relating to Revocation Hearing)) collected
or prepared by the designee of the board originally assigned to the case;
(2)
any amendments, supplements, or modifications of the record,
report, or recommendation as developed through prior reopenings of the case;
(3)
the releasee's motion to reopen the hearing under §146.11
of this title; and
(4)
any transmittal submitted to the board panel with recommendation
from board staff. Any transmittal submitted to the board panel by the general
counsel constitutes legal advice which is confidential under law, and shall
not be released to the public as part of the hearing packet.
(d)
At the conclusion of the proceedings before the board panel
or designee of the board, or within a reasonable time thereafter, the board
panel shall make final disposition of the case by taking one of the following
actions in any manner warranted by the evidence:
(1)
continue the revocation action;
(2)
rescind the revocation action and reinstate supervision,
under the previous or modified conditions;
(3)
rescind the revocation action and reinstate supervision,
imposing confinement in an ISF or SAFP;
(4)
if the releasee received a conditional pardon, recommend
to the governor that the revocation action be continued, modified, or rescinded.
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 March 11, 2002.
TRD-200201484
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 406-5458
Chapter 155.
REPORTS AND INFORMATION GATHERING
Subchapter A. PROCEDURES TO DETERMINE PREVAILING WAGE RATES
37 TAC §155.1
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Criminal Justice or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Criminal Justice proposes
the repeal of §155.1, concerning Procedures to Determine Prevailing Wage
Rates. The repeal deletes language that describes a practice that is obsolete
and no longer within the agency's authority.
Brad Livingston, Chief Financial Officer for the Texas Department of Criminal
Justice has determined that there will be no fiscal implications for state
or local government as a result of enforcing or administering the section
as proposed.
Mr. Livingston has also determined that for each year of the first five
year period the repeal is in effect, the public benefit anticipated as a result
of enforcing the repeal as proposed will be a cleaner version of agency rules
and regulations. There will be no effect on small businesses. There will be
no anticipated economic cost to individuals.
Comments should be directed to Carl Reynolds, General Counsel, Texas Department
of Criminal Justice, P.O. Box 13084, Capitol Station, Austin, Texas 78711.
The amendments are proposed under the Government Code, §492.013,
which grants general rulemaking authority
There is no cross-reference to statute.
§155.1.Procedures To Determine Prevailing Wage Rates.
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 March 8, 2002.
TRD-200201449
Carl Reynolds
General Counsel
Texas Department of Criminal Justice
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 463-0422
or
]
.
]
Chapter 13.
CONTROLLED SUBSTANCES
:
]
(B)
a certified member of a declared
]
Native American Church
to be a member of the church
.
a member
of a federally recognized
] Indian
as the term is defined in
[
tribe under
] AIRFA, unless the individual is also an Indian as
the term is defined in this subchapter; or
source log;
]
(5)
each
] unused or voided sale of peyote
receipt, DPS Form NAR-96C; and
(6)
] each completed receipt or other
document relating to the purchase, acquisition, or sale of peyote not already
submitted to the director.
:
]
(1)
]
an original or copy of an ownership document,
lease agreement, or other document showing the individual's lawful access
to the land in question
.
[
; or
]
; and
]
a photo
] identification [
card,
]
that includes reasonably accurate identification information[
,
]
and
a
[
an authorization letter or
] travel permit. The
identification [
card
] and the [
letter or
] permit must
collectively contain the full name, including Indian name, [
tribe,
]
degree of Indian blood (not less than 25%),
and
date of birth[
, agency enrolled with, and census number or enrollment number
] of the
purchasing or harvesting Indian.
An authorization
letter or
] travel permit, that is used in the standard method, must:
the
] identification card number or some other reasonably accurate
identification of the purchasing or harvesting Indian;
letter
or
] permit; and
letter or
] permit to the purchasing
or harvesting Indian.
an authorization letter or
] travel
permit, that is used in the standard method, contain the following:
letter or
] permit described by subsections (d)
and (e) of this section. The director will deem a [
letter or
] permit
to be timely mailed if it is on file with the director before anyone attempts
to purchase or harvest peyote under its authority. If the CSR Section receives
the [
letter or
] permit before the distributor delivers the peyote,
the director may then respond knowledgeably to an inquiry made about the legitimacy
of the peyote purchase, harvest, possession, or transportation even if some
of the prospective information reported under subsection (e) of this section
may have changed.
a photo
] identification [
card,
] that includes reasonably accurate
identification information[
,
] and:
a
] letter signed
by the president, vice president, or other designated custodian of the state
or local organization of the Native American Church certifying:
, certificate of authorization,
] or travel permit from the director.
Indian's
]
, certificate
of
] authorization
letter
[
, or permit number and its
expiration date
];
tribe,
] degree of Indian blood, date of birth, [
agency enrolled with, census number or enrollment number,
] address,
and telephone number of each
custodian or
officer.
a federally recognized
] Indian tribe; and
Subchapter M. DENIAL, REVOCATION, AND RELATED DISCIPLINARY ACTION
§13.264(b)
] of this title (relating to Revocation), the director
may deny an application for registration and may refuse issuance of the appropriate
registration if:
or
]
does
] not qualify
for
a
[
the
] registration under the Act, §481.063(e)
; or
[
.
]
§13.264
] of this title (relating to Revocation).
Chapter 17.
ADMINISTRATIVE LICENSE REVOCATION
; or an alternate address provided to the department
in accordance with Texas Transportation Code, Chapter 521
].
§19.7(i)
] of this title
(relating to Explanation of Terms and Actions).
(39)
] Test record or breath alcohol
test record--Means the record of a breath alcohol test generated by a breath
test instrument.
served
] (Form DIC-25)
served
;
, or disqualified under Texas Transportation Code,
Chapter 522,
] may not be reinstated and another driver's license may
not be issued until the
suspended
[
suspended/disqualified
] person files an appropriate application and pays to the department
a reinstatement fee of
$125
[
$100
], in addition to any
other fees required by law.
Part 5.
TEXAS BOARD OF PARDONS AND PAROLES
(b)
Members of the policy board
shall coordinate activities of the board, assure a maximum efficiency and
fair distribution of the caseload, and administer other matters as required
by the presiding officer.]
, current edition,
] shall govern the conduct of all meetings of the
board except as may be otherwise specified in statutory law or herein.
Parole panels shall determine member caseload.
] The presiding
officer (chair) shall designate the composition of each panel.
Subchapter C. SUBMISSION AND PRESENTATION OF INFORMATION AND REPRESENTATION OF INMATES
Open Records Act
].
Subchapter D. REGISTRATION OF VISITORS AND FEE AFFIDAVITS
the Code of Criminal Procedure, Article 42.18, §11
].
Chapter 145.
PAROLE Condition Requiring Certain Releasees to Participate in the Texas Department of Public Safety Personal Identification Program ].
(a)
The purpose of this rule is
to adopt into rule the Policy Board Order 98-10.01 adopted and made effective
on October 7, 1998.]
(b)
] Any person released to parole
or mandatory supervision who does not hold a Texas driver's license shall
participate in the Texas Department of Public Safety Personal Identification
Card Program under Chapter 521 of the Texas Transportation Code.
(c)
The parole certificates of
all persons released to parole or mandatory supervision shall be modified
to include a standard condition that requires that all releasees shall participate
in the Texas Department of Public Safety Driver's License Program or Personal
Identification Program as a term and condition of parole or mandatory supervision.]
(d)
] Participation shall be deemed
satisfactory if the releasee has in possession at all times a valid Texas
driver's license or personal identification card duly issued by the Texas
Department of Public Safety.
(e)
] All persons on release to parole
or mandatory supervision shall comply with all applicable laws, rules and
regulations in connection with the Texas Department of Public Safety Driver's
License Program or the Personal Identification Card Program.
(f)
] This condition shall be strictly
enforced and shall remain in effect and govern all persons released to parole
or mandatory supervision for the duration of the supervision period.
Chapter 145.
PAROLE
Subchapter D. REINSTATEMENT OF PAROLE OR MANDATORY SUPERVISION AFTER REVOCATION
Chapter 146.
REVOCATION OF PAROLE OR MANDATORY SUPERVISION
Part 6.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Chapter 165.
STATE AID DISTRIBUTION AND MONITORING