Part 3. OFFICE OF THE ATTORNEY GENERAL
Chapter 61. CRIME VICTIMS' COMPENSATION
Subchapter K. ADDRESS CONFIDENTIALITY PROGRAM
1 TAC §§61.1001, 61.1005, 61.1010, 61.1015, 61.1020, 61.1025, 61.1030, 61.1035, 61.1040, 61.1045, 61.1050, 61.1060, 61.1065, 61.1080, 61.1085, 61.1090
The Office of the Attorney General (OAG) adopts new Subchapter K to Chapter 61 (Crime Victim's Compensation) §§61.1005, 61.1010, 61.1015, 61.1020, 61.1025, 61.1030, 61.1035, 61.1040, 61.1045, 61.1060, 61.1065, 61.1080, 61.1085 and 61.1090, without changes to the proposed text as published in the March 14, 2008, issue of the Texas Register (33 TexReg 2093) and will not be republished. Section 61.1001 and §61.1050 were adopted with changes and will be republished.
The new rules are adopted to implement, interpret, and prescribe the law and minimum standards of practices, procedures, and policies of the OAG relating to providing victims of family violence, sexual assault, and stalking with an address confidentiality program.
According to Article I, Section 31 of the Texas Constitution, the Victims of Crime Auxiliary Fund may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance. Article 56.54 of the Texas Code of Criminal Procedure provides that the OAG may use the Victims of Crime Auxiliary Fund to cover costs incurred by the attorney general in administering the Address Confidentiality Program (ACP) established under Subchapter C. Additionally, Article 56.93 authorizes the OAG to adopt rules to administer the program.
Section 61.1001 provides definitions of terms used in the Address Confidentiality Program. The definition of "law enforcement agency" provided in the proposed rule was deleted. Because there is no statutory definition of the term and the term is not defined in the enabling statute of the ACP, the OAG will make a determination based on the facts and situation as presented in the future. The definition of "state or local agency" was changed in order for the term to have the same meaning as it appears in all sections of the subchapter.
Section 61.1005 establishes the duties and responsibilities of the OAG in relation to the Address Confidentiality Program.
Section 61.1010 establishes eligibility requirements for an applicant to qualify for participation in the Address Confidentiality Program.
Section 61.1015 establishes the required application information and related documentation that must be provided by an applicant seeking participation in the Address Confidentiality Program.
Section 61.1020 establishes the procedure for approval and certification of participation into the Address Confidentiality Program and issuance of an Address Confidentiality Program card for an approved applicant.
Section 61.1025 requires that a state or local agency must accept the substitute post office address.
Section 61.1030 provides reasons for OAG denial of an applicant or exclusion of a participant in the Address Confidentiality Program.
Section 61.1035 establishes a reconsideration procedure for an applicant denied, or a participant cancelled from participation in the Address Confidentiality Program.
Section 61.1040 establishes requirements for a state or local agency to obtain an exemption to not accept the substitute post office address.
Section 61.1045 provides guidelines for an agency to request a reconsideration of disclosure or exemption.
Section 61.1050 lists specific instances when the OAG shall disclose a participant's true address and provides guidelines for an entity to request disclosure of a participant's true address. The process to seek an exception was changed. Upon further review by the OAG, it was determined that seeking the information should follow the already established process of a Public Information Act request as defined in Texas Government Code §552.
Section 61.1055 was deleted. Upon further review by the OAG, it was determined that seeking the information should follow the already established process of a Public Information Act request as defined in Texas Government Code §552.
Section 61.1060 establishes a procedure for a participant to withdraw from the program.
Section 61.1065 provides for the disposal of mail that can not be forwarded.
Section 61.1070 was deleted. Upon further review by the OAG, it was determined that seeking the information should follow the already established process of a Public Information Act request as defined in Texas Government Code §552.
Section 61.1075 was deleted. Upon further review by the OAG, it was determined that seeking the information should follow the already established process of a Public Information Act request as defined in Texas Government Code §552.
Section 61.1080 establishes guidelines for the destruction of information relating to an application and a participant.
Section 61.1085 establishes that a participant desiring to vote is responsible for complying with all legal voting requirements.
Section 61.1090 establishes that a state or local entity accepting a participant's Address Confidentiality Program address will be responsible for administration of its rules and regulations in compliance with the governing Address Confidentiality Program statutes and administrative rules.
The public comment period began March 14, 2008 and ended April 14, 2008. The following is a summary of Comments received and corresponding Agency responses regarding the proposed amendments.
Comment. Concerning §61.1001, Definitions, The Commissioner of Education, The Texas Education Agency (TEA), expressed that the definition of the term "state or local agency" relates to establishing eligibility to participate in the program and does not appear to apply to the term as used in §61.1025.
Agency Response. The Agency agrees and will revise the definition of the term "state or local agency" under §61.1001(15) to clarify its meaning.
Comment. Concerning §61.1001, Definitions, The TEA recommends revision of the rule to clarify whether §61.1025 or any other provisions of the subchapter are applicable to school districts or open-enrollment charter schools. If §61.1025 is applicable to school districts or open-enrollment charters, TEA requests revision of the rules to clarify the manner in which a school district or open-enrollment charter school may determine the student's eligibility for enrollment under §25.001, Education Code.
Agency Response. The Agency declines to make the suggested change because a determination will need to be made when an exemption is sought.
Comment. Concerning §61.1001, Definitions, Ruth Casarez, of Legal Hotline for Texans, expressed that organizations such as Legal Hotline for Texans should be included under the §61.1001(10) definition of "other entity" because such programs do not fit the definition of "Family Violence Center" set out in V.T.C.A., Human Resources Code §51.002.
Agency Response. The Agency disagrees and declines to make the suggested change. Legal Hotline for Texans, is included as an "other entity" under §61.1001(10) if such an entity provides those "shelter services" listed under §61.1001(13) either directly, by referral, or through formal arrangements with other agencies.
Comment. Concerning §61.1001, Definitions, Ruth Casarez, of Legal Hotline for Texans, suggested that in the definition of "victim of family violence" under §61.1001(19), the word "alleged" should be changed to "threatened" to avoid confusion about who would be eligible to participate in the ACP.
Agency Response. The Agency disagrees and declines to make the suggested change.
Comment. Concerning §61.1015, Application for Participation in the Address Confidentiality Program, the Texas Council on Family Violence (TCFV) recommended a revision to §61.1015(b) to add the term "one form of a range of" independent documentary evidence. TCFV expressed that this additional language would expand the type of documentary evidence that an applicant may submit in order to be eligible for participation in the Program. TCFV also recommended the deletion of §61.1015(b)(5), which states "any other information the OAG deems appropriate to be included on the application."
Agency Response. The Agency disagrees and declines to make the suggested change. The meaning of the term "one form of a range of" independent documentary evidence is unclear. Section 61.1015(b)(5) gives the OAG the discretion to review any information included on the application, thereby expanding an applicant's access to eligibility into the Program.
Comment. Concerning §61.1040, Request for Agency Exemption, the TCFV recommended that §61.1040 be entirely deleted. TCFV recognized that Tex. Code Crim. Proc. Art. 56.89(b) states that the OAG may by rule permit an agency to require a participant to provide their true residential, business, or school address if necessary for the agency to perform a duty or function imposed on it by law or administrative requirement. However, TCFV expressed that §61.1040 is optional and is an unnecessary expansion of access to a participant's information, which endangers the safety of the participant. In addition, TCFV expressed that §61.1040 is contrary to the intent of the legislation, which is to protect participant identities from their offenders.
Agency Response. The Agency disagrees and declines to make the recommended change. Statutes exist that require certain governmental agencies to have an individual's true residential address in order to function.
Comment. Concerning §61.1040, Request for Agency Exemption, Texas Senator Eddie Lucio, Jr. expressed that exemptions for state and local agencies to obtain access to participant information should be limited to only those agencies where the need can clearly be identified as required by law or administrative function and, only then, if properly vetted to ensure that it is absolutely necessary.
Agency Response. The Agency agrees. Rule §61.1040 requires that an agency submit to the OAG an explanation of the duty or function imposed on the agency by law, or the administrative requirements, for which an exemption is necessary.
Comment. Concerning §61.1045, Request for Reconsideration of Exemption Denial Determination, the TCFV recommended that §61.1045 be entirely deleted. TCFV expressed that the OAG should not permit an agency to require a participant to provide their true residential, business, or school address, as provided in Tex. Code Crim. Proc. Art. 56.89(b).
Agency Response. The Agency disagrees and declines to make the suggested change.
Comment Concerning §61.1050, Exceptions, Texas Senator Eddie Lucio, Jr. expressed that the term "law enforcement" was included in the statute to ensure that the ACP would not hinder a criminal investigation, but the statute was not intended to include releasing information during the course of routine inquiries. Because protecting ACP participant information is vital to participant safety, Senator Lucio asked that the highest level of safeguards be considered.
Agency Response. Upon further review, the OAG deleted proposed rule §61.1055. Requests for information from an excepted agency will follow the already established process of a Public Information Act request.
Comment. Concerning §61.1050, Exceptions, TCFV expressed that the critical need for law enforcement and DFPS to conduct investigations should be weighed in conjunction with the safety of Program participants. For this reason, TCFV recommended that §61.1050 be strengthened by adding that the OAG shall disclose participant information if requested by a law enforcement agency "for the purpose of conducting an investigation in which the ACP participant has an active case."
Agency Response. The OAG declines to make this change and will leave the determination up to the Public Information Act process.
Comment. Concerning §61.1070 Participant's Consent to Disclose, TCFV recommended that rule §61.1070 be moved to rule §61.1050(4) to ensure that all possible exceptions will go through the same process in order to obtain the participant's confidential address information.
Agency Response. The Agency disagrees and declines to make the recommended change. However, the agency is deleting §61.1070 and §61.1075 so that a determination can follow the already established process of a Public Information Act request.
The amendments are adopted under the Texas Code of Criminal Procedure, Title 1, Article 56.93, which authorizes the Office of the Attorney General to adopt rules reasonable and necessary to implement Article 56.82, in order to serve victims of family violence, sexual assault, or stalking by the creation of an address confidentiality program.
§61.1001.Definitions.
(a) The following words and terms, when used in this subchapter, shall have the following meanings:
(1) Applicant--A person who submits an application to the Office of the Attorney General (OAG) to participate in the Address Confidentiality Program (ACP).
(2) Application--For the purpose of administering the ACP, means the OAG application for participation in the ACP and includes all information and documents submitted by, or on the behalf of, the applicant.
(3) Certification--For the purpose of administering the ACP, means OAG authorization for an applicant to participate in the ACP.
(4) Certified mail--For the purpose of administering the ACP, means any first class letter-size or flat-size mail for which the mailer pays a surcharge to the USPS to be provided with a receipt, and the destination post office records delivery of the mail. Certified mail does not include a package regardless of size or type of mailing.
(5) Counseling--For the purpose of administering the ACP, means victim related guidance, advice, and support with crisis intervention, obtaining information, legal advocacy, prevention of further harm, or meeting other physical, emotional or psychological needs.
(6) Family violence--As defined in Texas Family Code §71.004, means:
(A) an act by a member of family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(B) abuse, as that term is defined by §§261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or
(C) dating violence, as that term is defined by §71.0021.
(7) First Class Mail--For the purpose of administering the ACP, first class mail means United States Postal Service (USPS) first class letter-size mail and first class flat-size mail:
(A) Letter-size mail, as defined in the USPS Domestic Mail Manual, is mail that is not less than 5 inches long or more than 11 1/2 inches long, and not less than 0.007 inches thick or more than 1/4 inch thick. Letter-size mail may not weigh more than 3.5 ounces.
(B) Flat-size mail, as defined in the USPS Domestic Mail Manual, is mail not more than 15 inches long, more than 12 inches high or more than 3/4 inches thick. Flat-size mail may not weigh more than 13 ounces.
(8) Household--A unit composed of persons living together in the same dwelling, without regard to whether they are related to each other, as defined in Texas Family Code §71.005.
(9) Mail sent by a government agency--Letter-size or flat-size mail sent by a federal, state or local government agency. Mail sent by a government agency does not include a package.
(10) Other entity--For the purpose of administering the ACP, means an entity, whether for profit or nonprofit, that provides the services of a victim's assistance counselor and provides counseling and shelter services to victims of family violence.
(11) Package--For the purpose of administering the ACP, a package shall have the same meaning as parcel, as defined in the USPS Domestic Mail Manual. Parcel is mail that does not meet the mail processing category of letter-size mail or flat-size mail.
(12) Sexual offense--For the purpose of administering the ACP, means sexual assault as defined in §22.011, aggravated sexual assault as defined in §22.021, or prohibited sexual conduct as defined in §25.02 of the Texas Penal Code.
(13) Shelter services--For the purpose of administering the ACP, means the following services provided directly, by referral, or through formal arrangements with other agencies:
(A) 24-hour-a-day shelter;
(B) a crisis call hotline available 24 hours a day;
(C) emergency medical care;
(D) intervention services, including safety planning, understanding and support, information, education, referrals, resource assistance, and individual service plans;
(E) emergency transportation;
(F) legal assistance in the civil and criminal justice systems, including identifying individual needs, legal rights, and legal options and providing support and accompaniment in pursuing those options;
(G) information about educational arrangements for children;
(H) information about training for and seeking employment; and
(I) a referral system to existing community services.
(14) Stalking--has the meaning assigned by Texas Penal Code §42.072.
(15) State or local agency--For the purpose of administering the ACP, a state or local agency includes but is not limited to, a governmental agency of the State of Texas or a Texas county, city, town or municipality.
(16) Texas resident--A person who has a domicile in Texas, who lives for more than a temporary period of time in Texas, or who can show intent to establish a domicile in Texas at the time of the alleged crime. Documentary evidence of the applicant's Texas residency may be established by submitting the following documentation in the name of the applicant:
(A) a lease or rental agreement;
(B) utility bills;
(C) school or work records;
(D) a driver's license;
(E) postmarked mail delivered to the applicant at the Texas residence or intended Texas residence;
(F) written verification from a victim's assistance counselor; or
(G) other documentation approved by the OAG.
(17) True Address--The physical address where the applicant actually resides, is employed, or attends school.
(18) Victim's Assistance Counselor--For the purpose of administering the ACP, means an individual authorized by a state or local agency or other for profit or nonprofit entity to meet with or assist individuals applying for participation in the ACP.
(19) Victim of family violence--An individual against whom family violence has been alleged or committed, as defined in Texas Family Code §71.004.
(b) The definitions in this section will be given their most reasonable meaning unless the content clearly indicates otherwise.
§61.1050.Exceptions.
(a) Pursuant to Texas Code of Criminal Procedure Article 56.90(a)(1)(A), the OAG shall disclose a participant's true residential, business, or school address if requested by:
(1) a law enforcement agency;
(2) the Department of Family and Protective Services for the purpose of conducting a child protective services investigation under Texas Family Code §261; or
(3) the Department of State Health Services or a local health authority for the purpose of making a notification of a communicable disease described under Texas Code of Criminal Procedure Article 21.31, Texas Family Code §54.033, or Texas Health and Safety Code §81.051.
(b) Pursuant to Texas Code of Criminal Procedure Article 56.90(a)(1)(B), the OAG shall disclose a participant's true residential, business, or school address if required by a court order.
(c) A request for disclosure of a participant's true residential, business, or school address from an entity pursuant to this section, must be submitted to the OAG as a Public Information Act request. It is recommended that the requestor submit, along with the Public Information Act request, any supporting documentation, such as the following information:
(1) the name of the agency requesting the disclosure and the statutory exception upon which the agency bases its request;
(2) the name and title of the individual authorized to make the request on behalf of the agency;
(3) a signed statement by the agency representative affirming that the information submitted is correct; and
(4) an original certified copy of the court order, if applicable.
(d) The OAG may require additional information as deemed necessary by the OAG.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 5, 2008.
TRD-200802347
Stacey Napier
Deputy Attorney General
Office of the Attorney General
Effective date: May 25, 2008
Proposal publication date: March 14, 2008
For further information regarding this publication, contact Cindy Hodges, Agency Liaison, at (512) 936-1841.