37 TAC §95.51
The Texas Youth Commission (the commission) proposes an amendment
to §95.51, concerning Due Process Hearings Procedures. The amendment
to the section will align the rule regarding admissibility of youth statements
with the current laws in the Juvenile Justice Code, found in Texas Family
Code §51.095. It will allow such statements to be admitted in Level I
Hearings under the same rules that allow them to be admissible in a juvenile
court. Also, the amendment will allow Hearing Examiners to find violations
that differ from those alleged as long as the youth and his attorney received
adequate notice of the conduct being called into question.
Robin McKeever, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the section is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the section.
Neil Nichols, General Counsel, has determined that for each year of the
first five years the section is in effect the public benefit anticipated as
a result of enforcing the section will be in compliance with current laws
and efficient use of the commissions resources. There will be no effect on
small businesses. There is no anticipated economic cost to persons who are
required to comply with the section as proposed. No private real property
rights are affected by adoption of this rule.
Comments on the proposal may be submitted within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, Texas Youth
Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765, or email
to deanna.lloyd@tyc.state.tx.us.
The amendment is proposed under the Texas Family Code, §51.095,
which provides the commission the authority to permit the admissibility of
non-recorded oral statements under certain circumstances.
The proposed rule affects the Human Resources Code, §61.034.
§95.51.Level I Hearing Procedure.
(a) - (c)
(No change.)
(d)
Procedure.
(1)
The hearing shall be conducted by a
hearing
[
hearings
] examiner appointed by the Texas Youth Commission (TYC) hearings
section chief. The
hearing
[
hearings
] examiner shall
be impartial.
(2) - (4)
(No change.)
(5)
The primary service worker (PSW) requests a hearing by
completing the Level I Hearing Request E-form and transmitting it to the legal
services department as soon as practical but no later than seven (7) days,
excluding weekends and holidays, after the alleged violation. A delay of more
than seven (7) days in scheduling the hearing must be justified by documentation
of circumstances
(including a deferral to local authorities)
[
,
] which made it impossible, impractical, or inappropriate to schedule
the hearing earlier.
(6)
The date and time for the hearing shall be determined by
the
hearing
[
hearings
] examiner.
(7)
The hearing shall be held in the community where the alleged
rule violation occurred unless, for good cause, the
hearing
[
hearings
] examiner directs that it be held in another locale.
(8)
All necessary parties shall be present at the hearing site
unless it is conducted pursuant to (GAP) §95.53 of this title [
(relating to Level I Hearing by Telephone)
].
(9)
(No change.)
(10)
If the youth is under 18 years of age, the
[
The
] staff representative shall make reasonable efforts to inform the
youth's parent(s) of the date, time and place of the hearing not less than
three (3) working days prior to the scheduled hearing date.
If the youth
is 18 years of age or older, such notice shall be provided only with the youth's
authorization to release information.
(11)
The staff representative shall provide counsel for the
youth with written notice of the date, time, and place of the hearing not
less than three (3) working days prior to the scheduled hearing date. The
notice to counsel shall also include:
(A)
the name, address, and telephone number of the staff representative
and the
hearing
[
hearings
] examiner;
(B)
a list of all witnesses the staff representative intends
to call;
(C)
an indication of the expected testimony of each witness;
(D)
copies of any statements made by the youth;
(E)
copies of any statements, affidavits, reports, or other
documentation relied upon as grounds for the proposed action; and
(F)
copies of any reports or summaries which will be relied
upon at disposition.
(12)
Requests for continuance or postponement shall be directed
to the
hearing
[
hearings
] examiner.
(13)
If defense counsel has not received at least ten (10)
days notice of the items listed in subsection (d)(11) of this
section
[
policy,
] and requests a continuance, the
hearing
[
hearings
] examiner shall postpone the hearing. The
hearing
[
hearings
] examiner may, upon his/her own motion or the good cause motion
of any party, recess or continue the hearing for such periods of time as may
be necessary.
(14 - (15)
(No change.)
(16)
Prior to the hearing, the
hearing
[
hearings
] examiner may review copies of any documentation previously provided
to counsel except for those documents which relate solely to dispositional
criteria. Such information shall be made available to the
hearing
[
hearings
] examiner only if the hearing proceeds to disposition.
(17)
The
hearing
[
hearings
] examiner
or designee may sign and issue a subpoena to compel the attendance of a witness
at the hearing or the production of books, records, papers, or other objects.
(A) - (B)
(No change.)
(18)
(No change.)
(19)
To protect the confidential nature of the hearing, persons
other than the youth, counsel for the youth, the staff representative, and
the youth's parent(s) may be excluded from the hearing room at the discretion
of the
hearing
[
hearings
] examiner, however:
(A) - (B)
(No change.)
(20)
The hearing shall be tape-recorded and the
hearing
[
hearings
] examiner shall retain copies of all documents
admitted into evidence. Physical evidence may be retained at the discretion
of the
hearing
[
hearings
] examiner; if not retained,
an adequate description of the item(s) shall be entered in the record by oral
stipulation.
(21) - (22)
(No change.)
(23)
The
hearing
[
hearings
] examiner
may administer an oath. All witnesses shall take an oath to testify truthfully.
(24)
(No change.)
(25)
The
hearing
[
hearings
] examiner
may question each witness at his/her discretion. Counsel for the youth and
the staff representative shall be given an opportunity to question each witness.
(26)
The
hearing
[
hearings
] may permit
a witness to testify outside the presence of the youth if such appears reasonable
and necessary to secure the testimony of the witness. If the youth is excluded
from the hearing room during testimony, counsel for the youth shall be present
during the testimony and shall have the opportunity to review the testimony
with the youth before questioning the witness.
(27) - (28)
(No change.)
(29)
The
hearing
[
hearings
] examiner
shall determine the admissibility of evidence. Irrelevant, immaterial, or
unduly repetitious evidence shall be excluded.
(30) - (35)
(No change.)
(36)
A youth's non-recorded oral statement is
admissible
if it:
[
admissible only if it relates facts which would not have
otherwise been discovered, are found to be true and which tend to establish
the youth's involvement in illegal activities.
]
(A)
relates facts which are found to be true
and which tend to establish the youth's quilt; or
(B)
was res gestae of the conduct that is the
subject of the hearing or of the arrest; or
(C)
does not stem from law enforcement or agency
staff questioning of youth; or
(D)
is voluntary and bears on the youth's credibility
as a witness.
(37)
A youth's recorded oral statement (tape recorded, videotaped,
or otherwise electronically recorded) concerning his/her possible involvement
in illegal activities is admissible if it is accompanied by evidence on the
recording that it was given after the youth was advised of the rights in
paragraph (35) of this section
[
section (d)(35) of this policy
]. All voices on the recording must be identified and the recording
must be accurate and unaltered. A transcript of the recordings is not sufficient.
(38)
The
hearing
[
hearings
] examiner
shall rule immediately on any motions or objections made in the course of
the hearing. All such motions, objections, and rulings shall be included in
the
hearing
[
hearings
] examiner's written report.
(39)
Following the presentation of all evidence pertaining
to the factual issues raised at the hearing, the
hearing
[
hearings
] examiner shall announce his/her findings as to those issues.
(A)
The hearing examiner may find that the evidence suffices
to prove conduct other than that originally alleged and enter the appropriate
finding in the record if the original allegation gave sufficient notice of
the conduct proved.
[
When the fact finding concerns an allegation
of criminal conduct, the hearings examiner may find that the evidence suffices
to prove an offense other than that originally alleged and enter the appropriate
allegation in the record if the original allegation gave sufficient notice
of the offense proved.
]
(B)
Irrespective of the evidence, the
hearing
[
hearings
] examiner may not find a criminal offense more serious than
that originally alleged unless the original allegation has been amended on
the record and after notice to counsel for the youth.
(C)
If the
hearing
[
hearings
] examiner's
findings require that disposition be made, the hearing shall proceed to disposition;
if not, the hearing shall be adjourned with no change in the youth's status.
(40)
The
hearing
[
hearings
] examiner
may receive additional evidence for purposes of disposition. The evidence
received at disposition may be in the form of testimony from witnesses submitted
during fact-finding or at disposition, as well as written reports offered
by youth, staff, professionals, counselors, or consultants. Relevant documents
contained in the youth's record may be admitted and considered. All written
documents offered shall be provided to the parties three (3) days prior to
the hearing unless otherwise waived.
(41)
Following announcement of the decision as to disposition,
the
hearing
[
hearings
] examiner shall inform the youth
of the right to appeal any or all findings and decision made at the hearing.
(42)
Immediately following the close of the hearing, the
hearing
[
hearings
] examiner shall give the youth a copy of
the Hearing Examiner's Report of a Level I Hearing form.
(43)
A notice of appeal or request for a rehearing shall not
suspend implementation of the
hearing
[
hearings
] examiner's
decision(s), which shall be effective when announced at the hearing.
(44)
As soon as possible following the conclusion of the hearing,
the
hearing
[
hearings
] examiner shall prepare a written
report which shall include:
(A) - (E)
(No change.)
(45)
Copies of the
hearing
[
hearings
]
examiner's report shall be provided to counsel for the youth and the staff
representative.
(46)
An edited copy of the
hearing
[
hearings
] examiner's report is given to the youth.
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 June 13, 2006.
TRD-200603233
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: July 30, 2006
For further information, please call: (512) 424-6301
37 TAC §95.55
The Texas Youth Commission (the commission) proposes an amendment
to §95.55, concerning Due Process Hearings Procedures. The amendment
to this section will allow the commission to conform to the rules as set out
in the Human Resources Code §61.0731(a) which prohibits the commission
to notify parents of a youth who is 18 years or older of Level II hearing
unless the youth consents to such notification.
Robin McKeever, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the section is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the section.
Neil Nichols, General Counsel, has determined that for each year of the
first five years the section is in effect the public benefit anticipated as
a result of enforcing the section will be in compliance with the law governing
disclosure of information regarding a youth who is 18 years of age or older.
There will be no effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the section as proposed. No
private real property rights are affected by adoption of this rule.
Comments on the proposal may be submitted within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, Texas Youth
Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765, or email
to deanna.lloyd@tyc.state.tx.us.
The amendment is proposed under the Human Resources Code, §61.0731(a),
which requires the commission not to release information about a youth who
is 18 years of age or older unless the youth consents to such disclosure.
The proposed rule affects the Human Resources Code, §61.034.
§95.55.Level II Hearing Procedure.
(a) - (c)
(No change.)
(d)
Procedure.
(1) - (2)
(No change.)
(3)
If the youth is admitted to Institution Detention Program
(IDP) pending a Level II hearing, the hearing shall be conducted within ten
(10) days
, excluding weekends and holidays,
from date of admission
to detention. A delay of more than ten (10) days
, weekends and holidays,
in conducting the hearing must be justified by documentation of circumstances
which made it impossible, impractical, or inappropriate to conduct the hearing
earlier.
(4) - (9)
(No change.)
(10)
If the youth is less than 18 years of age, reasonable
[
Reasonable
] efforts shall be made to inform the youth's
parent(s) of the time and place of the hearing not less than 24 hours prior
to the hearing.
If the youth is 18 years of age or older, such notice
shall be provided only with the youth's authorization to release information.
(11) - (17)
(No change.)
(18)
To protect the confidential nature of the hearing, persons
other than the youth, the youth's advocate, staff representative, and the
youth's parent(s) may be excluded from the hearing room at the discretion
of the
hearing
[
hearings
] manager; however, any person
except the youth's advocate may be excluded from the hearing room if his/her
presence causes undue disruption or delay of the hearing. The reason(s) for
the exclusions are stated on the record.
(19)
(No change.)
(20)
The
hearing
[
hearings
] manager may
permit a witness to testify outside the presence of the youth if such appears
reasonable and necessary to secure the testimony of the witness. If the youth
is excluded from the hearing room during testimony, the advocate for the youth
shall be present during the testimony and shall have the opportunity to review
the testimony with the youth before questioning the witness.
(21) - (23)
(No change.)
(24)
The
hearing
[
hearings
] manager may
recess or continue the hearing for such period(s) of time as may be necessary
to insure an informed and accurate fact-finding or to secure evidence the
hearing manger determines may be relevant.
(25) - (29)
(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 June 13, 2006.
TRD-200603232
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: July 30, 2006
For further information, please call: (512) 424-6301