37 Tex. Admin. Code § 380.9551 - Level I Hearing Procedure
(a) Purpose. This
rule establishes the due process procedure to be followed when seeking to
revoke the parole status of a youth due to behavior that presents an
unacceptable risk to the safety of persons and property.
(b) Definitions. Definitions pertaining to
this rule are under §
380.9550 of this title.
(c) General Provisions.
(1) A Level I hearing is required to revoke a
youth's parole status. Parole status may be revoked if it is found that a youth
has committed a law violation or a parole rule violation as established in
§
380.9504 of this title and:
(A) revocation is determined to be in the
best interest of the youth or community; and/or
(B) the youth is found to be in need of
further rehabilitation at a residential facility operated by the Texas Juvenile
Justice Department (TJJD) or under contract with TJJD.
(2) The hearing examiner must consider the
following information to determine if parole revocation is appropriate:
(A) the severity of the offense(s) found true
at the hearing;
(B) any behavioral
or adjustment issues while on parole and the steps taken by the staff
representative to address those issues;
(C) whether or not the youth's conduct while
on parole presents a threat to persons or property;
(D) reasons the youth is in need of services
offered at a TJJD or contract facility;
(E) whether appropriate community-based
alternatives have been exhausted;
(F) any impact statement(s) written by the
victim(s);
(G) any participation in
constructive activity; and
(H) any
extenuating circumstances.
(3) The youth must be assisted by an attorney
at the hearing. The agency will appoint an attorney for indigent youth from the
list of defense attorneys who contract with TJJD for this purpose.
(4) A Level I hearing on any allegation(s)
must be requested as soon as possible but no later than seven days after the
date of the alleged offense, excluding weekends and holidays, except when:
(A) TJJD staff documents that it was
impossible, impractical, or inappropriate to have requested the hearing sooner;
or
(B) local authorities make a
written request that TJJD defer an allegation to their jurisdiction for
prosecution; or
(C) TJJD staff
elects to defer a Level I hearing on all allegations of misconduct due to
criminal allegation(s) pending or filed as adult charges, except that if the
pending charge is a first degree felony or capital offense, there must be a
written request as described in subparagraph (B) of this paragraph to defer the
allegation.
(5) TJJD may
re-issue a directive to apprehend and request a Level I hearing concerning new
or previously deferred allegation(s) if later circumstances make such action
appropriate.
(6) If a youth is on
parole from another state and is being supervised by TJJD under agreement with
the other state, a parole revocation hearing may be held by TJJD and the youth
may be returned to the sending state. Such a hearing is coordinated by the
Texas Interstate Compact for Juveniles Office and the TJJD Office of General
Counsel.
(7) If a TJJD parolee
commits an offense in another state, the return of the youth is coordinated by
the Texas Interstate Compact for Juveniles Office and the TJJD Office of
General Counsel. A parole revocation hearing is coordinated by and held at the
request of the assigned TJJD staff representative.
(d) Notice.
(1) The staff representative must provide the
youth with written notice of the date and time of the hearing not less than
three working days before the scheduled hearing date. This notice must include:
(A) the reason(s) for the hearing;
(B) the proposed action to be taken;
and
(C) the youth's rights in
connection with the hearing.
(2) If the youth is under 18 years of age,
the staff representative must make reasonable efforts to inform the youth's
parent/guardian of the date, time, and location of the hearing and the reasons
for the hearing not less than three working days before the scheduled hearing
date. If the youth is 18 years of age or older, this notice may be provided
only with the youth's written authorization.
(3) The staff representative must provide the
youth's attorney with written notice of the date, time, and location of the
hearing and the reasons for the hearing not less than three working days before
the scheduled hearing date. The notice to the attorney must also include:
(A) the name, address, and telephone number
of the staff representative and the hearing 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 that will be relied upon at
disposition.
(4) The
staff representative must provide the youth's attorney with reasonable access
to all information held by TJJD concerning the youth. The youth's attorney must
respect the confidential nature of this information and must comply with TJJD
requests to withhold sensitive information from the youth or the youth's
family.
(5) As soon as possible
after receiving the hearing notice and no later than the commencement of the
hearing, the youth's attorney must inform the staff representative of any
witnesses he/she wishes to call on behalf of the youth. If necessary and
possible, the staff representative must assist the youth's attorney in
contacting those witnesses and securing their attendance at the
hearing.
(6) The staff
representative must ensure that all witnesses he/she intends to call are given
written notice of the time, date, and location of the hearing not less than
three days before the hearing.
(e) Evidence.
(1) All factual issues are determined by a
preponderance of evidence.
(2) The
Texas Rules of Evidence generally apply to the fact-finding portion of the
hearing. Unless specifically precluded by statute, evidence that is not
admissible under those rules may be admitted if it is of a type commonly relied
upon by reasonably prudent persons in the conduct of their affairs. Criminal
exclusionary rules do not apply in TJJD hearings.
(3) The hearing examiner must determine the
admissibility of evidence. Irrelevant, immaterial, or unduly repetitious
evidence is excluded.
(4) A
judgment from a court indicating a youth has pled guilty or true to an offense
and has not received deferred adjudication or deferred prosecution is
sufficient to prove the youth committed the offense.
(5) Copies of due process hearing documents
need not be certified if these documents are part of the youth's record(s) or
have been received through the Interstate Compact for Juveniles. These
documents are considered reliable and admissible for all purposes.
(6) Accomplice testimony is sufficient to
prove an allegation if it is corroborated by other evidence tending to connect
the youth with the alleged violation. The corroboration is not sufficient if it
merely shows the commission of the alleged violation. If two accomplices
testify, the testimony of each may serve to corroborate the other.
(7) Legally recognized privileges of
relationships are given effect.
(8)
Evidence that is otherwise admissible may be received in written form if doing
so will expedite the hearing and will not significantly prejudice the rights or
interests of the youth. This includes but is not limited to use of affidavits
admitted to show the following:
(A) ownership
and lack of consent;
(B) identity
of signature on instrument and lack of consent of complaining witness in a
forgery case;
(C) lack of
permission to leave designated placement;
(D) chain of custody;
(E) identity of substance found in urine
sample; and
(F) identity of
controlled substance found in youth's possession.
(9) A youth's written statement concerning
his/her possible involvement in an alleged violation is admissible if it is
signed by the youth and accompanied by evidence indicating that the youth made
the statement voluntarily after being advised of:
(A) the right to remain silent;
(B) the possible consequences of giving the
statement;
(C) the right to consult
with an attorney prior to giving the statement; and
(D) the right to have an attorney provided if
the youth is indigent.
(10) A youth's non-recorded oral statement is
admissible if it:
(A) relates facts that are
found to be true and that tend to establish the youth's guilt; or
(B) was res gestae of the
conduct that is the subject of the hearing or the arrest; or
(C) does not stem from law enforcement or
TJJD staff questioning of youth, even if the statement does not meet criteria
in subparagraph (A) or (B) of this paragraph; or
(D) is voluntary and bears on the youth's
credibility as a witness, even if the statement stems from law enforcement or
TJJD staff questioning of the youth.
(11) A youth's recorded oral statement (i.e.,
audio recorded or visually 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 (9) of this subsection. All voices on the
recording must be identified and the recording must be accurate and unaltered.
A transcript of the recordings is not sufficient.
(12) A youth's admissible
out-of-hearing/court statement admitting he/she committed an offense is
sufficient to prove the offense only if it is corroborated by other evidence
that the offense wascommitted.
(f) Hearing Process.
(1) The hearing must be conducted by an
impartial hearing examiner appointed by the TJJD general counsel.
(2) The TJJD staff member requesting a
hearing must appoint a staff representative to appear at the hearing and to
present the reasons for the proposed action. The staff representative is also
responsible for making relevant information available to all parties to the
hearing.
(3) The hearing must be
held in the community where the alleged rule violation occurred unless the
hearing examiner directs that it be held in another location and determines
that doing so will not deprive the youth of his/her due process
rights.
(4) All necessary parties
must be present at the hearing site unless the hearing is conducted by
telephone pursuant to §
380.9553 of this title.
(5) With the consent of the parties,
witnesses may appear via telephone or video conference unless the hearing
examiner determines that doing so will deprive the youth of his/her due process
rights. If a witness appears via telephone or video conference, all required
participants must be able to simultaneously hear one another.
(6) At the request of the staff
representative or defense attorney, the hearing examiner may sign and issue a
subpoena to compel the attendance of a necessary witness at the hearing or the
production of books, records, papers, or other objects. A person who testifies
falsely, fails to appear when subpoenaed, or fails or refuses to produce
material under the subpoena is subject to the same orders and penalties as a
person who takes those actions before a court.
(7) Before the hearing, the hearing examiner
may review copies of any documentation previously provided to the youth's
attorney except for those documents that relate solely to dispositional
criteria. The hearing examiner may review information relating solely to
dispositional criteria only if the hearing proceeds to disposition.
(8) To protect the confidential nature of the
hearing, persons other than the youth, the youth's attorney, the staff
representative, and the youth's parent/guardian may be excluded from the
hearing room at the discretion of the hearing examiner; however:
(A) observers may be permitted with the
consent of the youth and the youth's attorney; and
(B) any person except the youth's attorney or
the staff representative may be excluded from the hearing room if his/her
presence causes undue disruption or delay of the hearing. The reason(s) for the
youth's exclusion must be stated on the record.
(9) A victim who appears as a witness must be
provided a waiting area that eliminates or minimizes contact between the victim
and the youth, the youth's family, and witnesses on behalf of the
youth.
(10) The hearing is
conducted in two parts: fact-finding and disposition.
(A) The purpose of the fact-finding is to
establish whether there is a preponderance of evidence to prove the youth
engaged in the alleged misconduct.
(B) The purpose of the disposition is to
determine whether revocation of parole status is appropriate under the
circumstances.
(11) The
hearing must be recorded. The hearing examiner must retain copies of all
documents admitted into evidence. Physical evidence may be retained at the
discretion of the hearing examiner; however, if it is not retained, an adequate
description of the item(s) must be entered in the record by oral
stipulation.
(12) Factual issues
not in dispute may be stipulated by the staff representative and the youth's
attorney. Such stipulations must be made on the record of the
hearing.
(13) The youth must be
given the opportunity to respond "true" or "not true" to each allegation before
any evidence concerning the allegation is heard.
(A) The youth has a right to respond "not
true" to each allegation and to require that proof of the allegation be
presented at the hearing.
(B) A
response of "true" to any allegation is sufficient to establish each and every
element necessary to prove that allegation without the presentation of any
other evidence.
(14) The
hearing examiner must administer an oath to all witnesses to testify
truthfully.
(15) With the exception
of the youth and the staff representative, any person designated as a witness
may be excluded from the hearing room during the testimony of other witnesses
and may be instructed to refrain from discussing his/her testimony with anyone
until all the witnesses have been dismissed.
(16) The hearing examiner may question each
witness at the hearing examiner's discretion. The youth's attorney and the
staff representative must be given an opportunity to question each
witness.
(17) The hearing examiner
may allow a witness to testify outside the presence of the youth if doing so
appears reasonable and necessary to secure the testimony of the witness. If the
youth is excluded from the hearing room during testimony, the youth's attorney
must be present during the testimony and must have the opportunity to review
the testimony with the youth before questioning the witness.
(18) The youth may not be called as a witness
unless, after consulting with his/her attorney, the youth waives his/her right
to remain silent on the record.
(A) The
youth's decision not to testify does not create a presumption against
him/her.
(B) A youth who waives
his/her right to remain silent may be questioned only concerning those issues
addressed by the youth's testimony.
(19) The hearing examiner must rule
immediately on any motions or objections made in the course of the hearing. The
motions, objections, and rulings must be included in the hearing examiner's
written report.
(20) The hearing
examiner may, upon his/her own motion or the good cause motion of any party,
recess or continue the hearing when doing so is necessary to ensure an informed
fact finding.
(21) After the
presentation of all evidence pertaining to the factual issues raised at the
hearing, the hearing examiner must announce his/her findings on those issues.
(A) The hearing examiner may find that the
evidence suffices to prove conduct other than the conduct that was originally
alleged if the original allegation gave sufficient notice of the conduct
proved.
(B) Regardless of the
evidence, the hearing examiner may not find a criminal offense more serious
than the offense that was originally alleged unless the original allegation has
been amended on the record and after notice to the youth's attorney.
(C) If the hearing examiner finds any
allegation to be true, the hearing proceeds to disposition. If the hearing
examiner does not find any allegation to be true, the hearing is adjourned with
no change in the youth's status.
(22) In the disposition phase, the staff
representative presents evidence to establish why he/she believes the youth's
parole status should be revoked. The youth is given the opportunity to present
evidence as to why his/her parole status should not be revoked, including
evidence of extenuating circumstances.
(23) The evidence considered during
disposition may be in the form of testimony from witnesses submitted during
fact-finding or 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 to
be offered must be provided to the parties no later than three days before the
hearing unless otherwise waived. Hearsay evidence is admissible in
disposition.
(24) Parole status may
be revoked if the hearing examiner determines that revocation is:
(A) in the best interest of the youth;
and/or
(B) in the best interest of
the community; and/or
(C) the youth
is in need of further rehabilitation at a residential facility operated by TJJD
or under contract with TJJD.
(25) If parole is revoked, the youth is
assigned a minimum length of stay in accordance with §
380.8525 of this title, based on
the most serious offense found true at the hearing. This minimum length of stay
may be reduced in accordance with §
380.8525 of this title.
(26) If the hearing examiner determines there
are extenuating circumstances, the hearing examiner must take that into account
when determining if the criteria for parole revocation exist. If, despite a
finding of extenuating circumstances relevant to the proven offense, the
hearing examiner finds revocation is appropriate under the circumstances, the
youth's parole status will be revoked but the assigned minimum length of stay
will be reduced, as determined by the hearing examiner.
(27) If the youth's parole status is not
revoked, lesser disciplinary consequences may be imposed for any rule
violation(s) proved at the hearing.
(28) After announcing the disposition
decision, the hearing examiner must inform the youth of the right to appeal any
or all findings and decisions made at the hearing.
(29) Immediately after the hearing is closed,
the hearing examiner must give the youth a copy of the hearing report
form.
(30) The hearing examiner's
decision is effective and implemented when announced at the hearing, even if
the youth appeals and a response is pending.
(31) As soon as possible after the hearing is
closed, the hearing examiner must prepare a written report that includes:
(A) a summary of the evidence
presented;
(B) findings of fact,
including the reliability of the evidence and the credibility of the witnesses,
and the reasons for those findings;
(C) conclusions of law;
(D) an explanation of the dispositional
decision; and
(E) rulings made on
motions and objections and the reasons for those rulings.
(32) Copies of the hearing examiner's report
must be provided to the youth, the youth's attorney, and the staff
representative.
Notes
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