Part 5.
TEXAS BOARD OF PARDONS AND PAROLES
Chapter 143.
EXECUTIVE CLEMENCY
The Texas Board of Pardons and Paroles proposes amendments to 37 TAC §143.43
and §143.57, concerning the procedure in capital reprieve cases and commutation
of death sentence to lesser penalty. The amendments are proposed for the purpose
of clarifying the address for submission of an application and supplemental
information for a reprieve and commutation of death sentence to a lesser penalty.
Rissie Owens, Chair of the Board, has determined, that for the first five-year
period the proposed amendments are in effect, no fiscal implications exist
for state or local government as a result of enforcing or administering this
section.
Ms. Owens also has determined that for each year of the first five years
the amended rules as proposed are in effect, the public benefit anticipated
as a result of the amendments to this section will be to bring the rules into
compliance with current board practice. There will be no effect on small businesses.
There is no anticipated economic cost to persons required to comply with the
amended rules as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this proposal.
Subchapter D. REPRIEVE OF EXECUTION
37 TAC §143.43
The amended rules are proposed under Article IV, Section 11
of the Texas Constitution and Article 48.01, Code of Criminal Procedure, that
invest the Board of Pardons and Paroles with the power to recommend clemency,
including pardons, commutations of sentence, and reprieves; and under §508.036(b),
Government Code, that provides the Board with authority to adopt rules relating
to the decision-making processes used by the Board of Pardons and Paroles.
No other statutes, articles or codes are affected by these amendments.
§143.43.Procedure in Capital Reprieve Cases.
(a)
The written application in behalf of a convicted person
seeking a board recommendation to the governor of a reprieve from execution
must be delivered to the Texas Board of Pardons and Paroles, Clemency Section,
8610 Shoal Creek Boulevard,
Austin, Texas
78757
, not later
than the twenty-first calendar day before the execution is scheduled. If the
twenty-first calendar day before the execution is scheduled falls on a weekend
or state observed holiday, the application shall be delivered not later than
the next business day. Otherwise, the applicant's recourse will be directly
to the governor.
(b)
All supplemental information, including but not limited
to amendments, addenda, supplements, or exhibits, must be submitted in writing
and delivered to the Texas Board of Pardons and Paroles, Clemency Section,
8610 Shoal Creek Boulevard,
Austin, Texas
78757
, not later
than the fifteenth calendar day before the execution is scheduled. If the
fifteenth calendar day before the execution is scheduled falls on a weekend
or state observed holiday, all additional information including but not limited
to amendments, addenda, supplements, or exhibits shall be delivered not later
than the next business day.
(c)
Any information filed with the application, including but
not limited to amendments, addenda, supplements, or exhibits, which require
reproduction facilities, equipment, or technology not operated by the board,
must be provided by the applicant in an amount sufficient to allow review
by all members of the board. An amount sufficient shall mean not less than
10 and not more than 20 copies of the duplicate item.
(d)
A convicted person seeking a board recommendation to the
governor of a reprieve from execution may request an interview with a member
of the board. Such request shall be included in the written application or
any supplement filed therewith in accordance with this section.
(e)
Upon receipt of a request for an interview, the presiding
officer (chair) shall designate at least one member of the board to conduct
the requested interview. Such interview shall occur at the confining unit
of TDCJ. Attendance at such interviews shall be limited to the convicted person,
the designated board member(s), and TDCJ staff. The board may consider statements
by the inmate made at such interviews when considering the inmate's application
for reprieve.
(f)
The board shall consider and decide applications for reprieve
from execution. Upon review, a majority of the board, or a majority thereof,
in written and signed form, may:
(1)
recommend to the governor a reprieve from execution;
(2)
not recommend a reprieve from execution; or
(3)
set the matter for a hearing as soon as practicable and
at a location convenient to the board and the parties to appear before it.
(g)
When the board sets a hearing pursuant to subsection (f)(3)
of this section, it shall notify the trial officials of the county of conviction
and the attorney general of the State of Texas and allow any such official(s),
or the designated representatives thereof, the opportunity to attend the hearing
and/or to present any relevant information. At the time of notifying the trial
officials, the board shall also notify any representative of the family of
the victim (who has previously requested to be notified) of the receipt of
the application, the setting of a hearing, and of said representative or family
member's rights to provide any written comments or to attend the hearing.
(h)
All hearings conducted by the board under this section
shall be in open session pursuant to requirements of the Texas Open Meetings
Act, Article 6252-17. For the purpose of discussing matters which are deemed
confidential by statute, or where otherwise authorized by the provisions of
the Texas Open Meetings Act, the proceedings may be conducted in executive
session closed to members of the general public, for that limited purpose.
Only those persons whose privacy interests and right to confidentiality may
be abridged by discussion involving disclosure of confidential information
may be allowed to meet with members of the board in their executive session
to discuss that information. No decision, vote, or final action by the board
shall be made during a closed meeting; the board's decision, vote, or final
action shall be made and announced in an open meeting. The hearing may be
recessed prior to its completion and reconvened pursuant to the directions
of the board.
(i)
Advocates for and against the death penalty, generally,
and members of the general public may present written information for the
board's consideration at its central office headquarters at any reasonable
time.
(j)
After the conclusion of the hearing, the board shall render
its decision, reached by majority vote, within a reasonable time, which decision
shall be either to:
(1)
recommend to the governor a reprieve from execution;
(2)
not recommend a reprieve from execution; or
(3)
recess the proceedings without rendering a decision on
the merits, if a reprieve has been granted by the governor or if a court of
competent jurisdiction has granted a stay of execution.
(k)
Each of the provisions of this section and §143.42
of this title (relating to Reprieve Recommended by Board) are subject to waiver
by the board when it finds that there exists good and adequate cause to suspend
said provisions and adopt a different procedure which it finds to be better
suited to the exigencies of the individual case before it.
(l)
Successive or repetitious reprieve applications submitted
in behalf of the same condemned felon may be summarily denied by the board
without meeting.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 26, 2006.
TRD-200602928
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 406-5388
37 TAC §143.57
The amended rules are proposed under Article IV, Section 11
of the Texas Constitution and Article 48.01, Code of Criminal Procedure, that
invest the Board of Pardons and Paroles with the power to recommend clemency,
including pardons, commutations of sentence, and reprieves; and under §508.036(b),
Government Code, that provides the Board with authority to adopt rules relating
to the decision-making processes used by the Board of Pardons and Paroles.
No other statutes, articles or codes are affected by these amendments.
§143.57.Commutation of Death Sentence to Lesser Penalty.
(a)
The board will consider recommending to the governor a
commutation of death sentence to a sentence of life imprisonment or the appropriate
maximum penalty that can be imposed upon receipt of:
(1)
a request from the majority of the trial officials of the
court of conviction; or
(2)
a written request of the convicted person or representative
setting forth all grounds upon which the application is based, stating the
full name of the convicted person, the county of conviction, and the execution
date.
(b)
The written application in behalf of a convicted person
seeking a board recommendation to the governor of commutation of the death
sentence to a lesser penalty must be delivered to the Texas Board of Pardons
and Paroles, Clemency Section,
8610 Shoal Creek Boulevard,
Austin,
Texas
78757
, not later than the twenty-first calendar day before
the day the execution is scheduled. If the twenty-first calendar day before
the execution is scheduled falls on a weekend or state observed holiday, the
application shall be delivered not later than the next business day.
(c)
All supplemental information not filed with the application,
including but not limited to amendments, addenda, supplements, or exhibits,
must be submitted in writing and delivered to the Texas Board of Pardons and
Paroles, Clemency Section,
8610 Shoal Creek Boulevard,
Austin,
Texas
78757
, not later than the fifteenth calendar day before the
execution is scheduled. If the fifteenth calendar day before the execution
is scheduled falls on a weekend or state observed holiday, all additional
information including but not limited to amendments, addenda, supplements,
or exhibits shall be delivered not later than the next business day.
(d)
Any information filed with the application, including but
not limited to amendments, addenda, supplements, or exhibits, which require
reproduction facilities, equipment, or technology not operated by the board
must be provided by the applicant in an amount sufficient to allow review
by all members of the board. An amount sufficient shall mean not less than
10 and not more than 20 copies of the duplicate item.
(e)
A convicted person seeking a board recommendation to the
governor of commutation of the death sentence to a lesser penalty may request
an interview with a member of the board. Such request shall be included in
the written application or any supplement filed therewith in accordance with
this section.
(f)
Upon receipt of a request for an interview, the presiding
officer (chair) shall designate at least one member of the board to conduct
the requested interview. Such interview shall occur at the confining unit
of TDCJ. Attendance at such interviews shall be limited to the convicted person,
the designated board member(s), and TDCJ staff. The board may consider statements
by the inmate made at such interviews when considering the inmate's application
for commutation of the death sentence to a lesser penalty.
(g)
The board shall consider and decide applications for commutation
of the death sentence to a lesser penalty. Upon review, a majority of the
board, or a majority thereof, in written and signed form, may:
(1)
recommend to the governor the commutation of the death
sentence to a lesser penalty;
(2)
not recommend commutation of the death sentence to a lesser
penalty; or
(3)
set the matter for a hearing pursuant to §143.43 of
this Chapter (relating to Procedure in Capital Reprieve Cases).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on May 26, 2006.
TRD-200602930
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 406-5388
Subchapter A. PAROLE PROCESS
37 TAC §145.3
The Texas Board of Pardons and Paroles proposes an amendment
to 37 TAC §145.3, concerning policy statements relating to parole release
decisions by the Board of Pardons and Paroles. The amendment is proposed for
the purpose of clarifying the language of the rule.
Rissie Owens, Chair of the Board, has determined, that for the first five-year
period the proposed amendment is in effect, no fiscal implications exist for
state or local government as a result of enforcing or administering this section.
Ms. Owens also has determined that for each year of the first five years
the amended rule as proposed are in effect, the public benefit anticipated
as a result of the amendment to this section will be to bring the rules into
compliance with current board practice. There will be no effect on small businesses.
There is no anticipated economic cost to persons required to comply with the
amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 211 W. 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this proposal.
The amended rule is proposed under §§508.036, 508.0441,
and 508.141, Government Code. Section 508.036 provides the board with the
authority to adopt rules relating to the decision-making processess used by
the board and parole panels. Section 508.0441 provides the board with the
authority to adopt reasonable rules as proper or necessary relating to the
eligibility of an inmate for release on parole or release to mandatory supervision.
Section 508.141 provides the board with the authority to consider and order
release on parole.
No other statutes, articles, or codes are affected by the amendment.
§145.3.Policy Statements Relating to Parole Release Decisions by the Board of Pardons and Paroles.
To aid the Board of Pardons and Paroles in its analysis and research
of parole release, the board adopts the following policies.
(1)
Release to parole is a privilege, not an offender right,
and the parole decision maker is vested with complete discretion to grant,
or to deny parole release as defined by statutory law.
(A)
Candidates for parole are to be evaluated on an individual
basis.
(B)
There are no mandatory rules or guidelines that must be
followed in every case because each offender is unique. The board and parole
commissioners have the statutory duty to make release decisions which are
only in the best interest of society. Parole panels use parole guidelines
as a tool to aid in the discretionary parole decision process.
(2)
The board will reconsider for release an offender other
than an offender serving a sentence for an offense listed in §508.149(a),
Government Code, as soon as practicable after the first anniversary of the
date of denial, provided the decision to deny parole is on or after January
1, 2004, and the offender is otherwise eligible for consideration.
(3)
An offender will be considered for parole when eligible
and when the offender meets the following criteria with regard to behavior
during incarceration.
(A)
Other than on initial parole eligibility, the person must
not have had a major disciplinary misconduct report in the six-month period
prior to the date he is reviewed for parole; which has resulted in loss of
good conduct time or reduction to a classification status below that assigned
during that person's initial entry into TDCJ-ID.
(B)
Other than on initial parole eligibility, at the time he
is reviewed for parole the person must be classified in the same or higher
time earning classification assigned during that person's initial entry into
TDCJ-ID.
(C)
If any offender who has received an affirmative vote to
parole and following the vote, notification is received that the offender
has been reduced below initial classification status or has lost good conduct
time, the parole decision will be reviewed and revoted by the parole panel
that rendered the decision.
(D)
A person who has been revoked and returned to custody for
a violation of the conditions of release to parole or mandatory supervision
will be considered for release to parole or mandatory supervision when eligible.
(E)
An offender who is otherwise eligible for parole and who
has charges pending alleging a felony offense committed while in TDCJ, and
for which a complaint has been filed with a magistrate of the State of Texas,
any facility under its supervision, or a facility under contract with TDCJ
will not be considered for release to parole [
(F)
An offender who is otherwise eligible for release and meets
the criteria for Medically Recommended Intensive Supervision (MRIS) as required
by Government Code, §508.146, may be considered for release on parole
if the parole review date is more than six months from the date of application
for MRIS.
(4)
Any consideration by a Board member of an offender's litigation
activities when determining an offender's candidacy for parole is strictly
prohibited. No offender will be denied the opportunity to present to the judiciary,
including appellate courts, his or her allegations concerning violations of
fundamental constitutional rights. Any consideration of such legal activity
during the parole process is a violation of Board policy. In the event parole
is denied in violation of this subsection, the offender may pursue a remedy
under the special review provisions of §145.17 of this title (relating
to Action Upon Review [
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 26, 2006.
TRD-200602932
Laura McElroy
General Counsel
Texas Board of Pardon and Paroles
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 406-5388
37 TAC §145.16
The Texas Board of Pardons and Paroles proposes an amendment
to 37 TAC §145.16, concerning action upon special review--release approved.
The amendment is proposed to update the language of the section title and
to clarify the procedures regarding subsequent reviews of parole panel votes
to approve release to parole or mandatory supervision.
Rissie Owens, Chair of the Board, has determined, that for the first five-year
period the proposed amendment is in effect, no fiscal implications exist for
state or local government as a result of enforcing or administering this section.
Ms. Owens also has determined that for each year of the first five years
the amended rule as proposed are in effect, the public benefit anticipated
as a result of the amendment to this section will be to bring the rules into
compliance with current board practice. There will be no effect on small businesses.
There is no anticipated economic cost to persons required to comply with the
amended rule as proposed.
Comments should be directed to Laura McElroy, General Counsel, Texas Board
of Pardons and Paroles, 211 W. 14th Street, Suite 500, Austin, Texas 78701.
Written comments from the general public should be received within 30 days
of the publication of this proposal.
The amended rule is proposed under §§508.036, 508.0441,
and 508.141, Government Code. Section 508.036 provides the board with the
authority to adopt rules relating to the decision-making processess used by
the board and parole panels. Section 508.0441 provides the board with the
authority to adopt reasonable rules as proper or necessary relating to the
eligibility of an inmate for release on parole or release to mandatory supervision.
Section 508.141 provides the board authority to consider and order release
on parole.
No other statutes, articles, or codes are affected by the amendment.
§145.16.Action upon Special Review [
(a)
Responses received from trial officials or victims after
a release to parole or release to mandatory supervision decision shall be
considered information not previously available to the parole panel. Provided
that release to parole or mandatory supervision has not occurred, the responses
shall be referred to the parole panel or to the board office corresponding
to the board panel that rendered the release to parole or release to mandatory
supervision decision. A case reviewed by a parole panel, pursuant to the receipt
of information not previously available to the parole panel, may then:
(1)
be continued in a release to parole or release to mandatory
supervision status with or without additional conditions of release imposed;
or
(2)
have the release to parole or release to mandatory supervision
decision withdrawn and the next review date set by the parole panel in accordance
with applicable provisions of Chapter 145 of this title (relating to Parole
Process).
(b)
Nothing in this rule is intended to restrict a parole panel
member from reconsidering a release vote to parole or mandatory supervision.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 26, 2006.
TRD-200602921
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 406-5388
Subchapter E. COMMUTATION OF SENTENCE
Chapter 145.
PAROLE
or mandatory supervision
].
of Information Not Previously Available
]--Release
Denied).
of Information Not Previously Available ]--Release Approved.