| (6) If the youth is younger than 18 years of age, reasonable
efforts shall be made to inform the youth's parent/guardian of the
time and place of the hearing at least 24 hours before the hearing.
If the youth is 18 years of age or older, such notice may be provided
only with the youth's authorization to release the information.
(j) Location of Hearing, Youth's Presence at Hearing,
and Official Record of Hearing.
(1) The hearing shall be held where the youth resides
unless the hearing manager determines another site is more appropriate.
(2) The hearing shall be recorded. The recording is
the official record of the hearing. The recording and the hearing
packet shall be preserved for six months after the hearing.
(3) The youth shall be present during the hearing unless
the youth waives his/her presence, his/her behavior prevents the hearing
from proceeding in an orderly and expeditious fashion, or his/her
temporary removal from the hearing room is necessary to secure the
testimony of a witness.
(A) A voluntary waiver of the youth's presence must
be in writing and signed by the youth and his/her advocate. If the
youth does not sign the waiver for any reason, his/her presence is
not waived.
(B) If a youth is excluded from the hearing for behavioral
reasons or to secure the testimony of a witness, the reason(s) for
the exclusion shall be documented in the hearing record. The advocate
shall be present during the testimony and must have the opportunity
to question the witness.
(C) A true plea cannot be entered on behalf of a youth
who has waived his/her presence at the hearing.
(4) A victim who appears as a witness shall be provided
a waiting area where he/she is not likely to come in contact with
the youth or the youth's parent/guardian except during the hearing.
(5) To protect the confidential nature of the hearing,
persons other than the youth, the youth's advocate, the staff representative,
and the youth's parent/guardian may be excluded from the hearing room
at the discretion of the hearing manager; however, any person except
the staff representative or 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 exclusion(s) shall be stated
on the record.
(6) The hearing may be held by conference call or videoconference.
If the hearing is held by conference call or videoconference, all
required participants must be able to simultaneously hear one another.
(k) Hearing Process.
(1) Except as provided by paragraphs (2) and (3) of
this subsection, hearings consist of two parts: fact finding and disposition.
During the fact-finding portion of the hearing, only evidence concerning
the alleged violation(s) may be considered. The youth's prior behavior
may not be discussed or considered unless disposition is reached.
In the disposition phase, the youth will be given the opportunity
to present evidence of extenuating circumstances.
(2) The following types of hearings consist only of
fact finding to determine if the criteria for transfer are met:
(A) non-disciplinary transfer hearings; and
(B) conditional placement transfer hearings requested
because the conditional placement is no longer a viable option.
(3) A mental health status review hearing consists
only of fact finding to determine if the criteria for admission or
extension in a crisis stabilization unit are met.
(4) The youth shall be given the opportunity to plead
"true" or "not true" to each allegation. If the youth pleads "true,"
the hearing manager shall ask questions of the youth to ensure he/she
did so voluntarily and that he/she did commit the violation.
(5) If the youth pleads "not true," the staff representative
has the burden of proving by a preponderance of evidence that the
youth did commit the alleged violation(s).
(6) Witnesses shall take an oath before testifying.
Witnesses may testify by phone or videoconference if in-person testimony
is impractical or unfeasible. If testimony is provided by phone, persons
required to be present at the hearing must be able to simultaneously
hear the testimony.
(7) The hearing manager, staff representative, and
advocate may question each witness in turn.
(8) With the exception of the youth or 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.
(9) The hearing manager may permit 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 advocate for
the youth must be present during the testimony and must have the opportunity
to review the testimony with the youth before questioning the witness.
(10) The youth may not be called as a witness unless,
after consulting with the advocate, he/she waives on the record his/her
right to remain silent. Neither the hearing manager nor the staff
representative may question the youth unless he/she waives the right
to remain silent.
(A) The youth's failure to testify shall not create
a presumption or inference against him/her.
(B) A youth who waives the right to remain silent may
be questioned concerning only those issues addressed by his/her testimony.
(11) All credible evidence may be considered, irrespective
of its form.
(12) The standard of proof for all disputed issues
is a preponderance of evidence.
(13) The hearing manager may recess or continue the
hearing for such period(s) of time as may be necessary to ensure an
informed and accurate fact finding or to secure evidence the hearing
manager determines may be relevant.
(14) After all evidence has been presented, the staff
representative and advocate may offer summation statements.
(15) The hearing manager shall announce his/her findings
of fact.
(16) If there is a finding of true, the hearing manager
shall proceed to disposition, unless the hearing consists only of
fact finding as described in paragraphs (2) and (3) of this subsection.
During disposition, the hearing manager shall provide the youth an
opportunity to present evidence of extenuating circumstances. If no
extenuating circumstances are found, the hearing manager shall make
the disposition finding of which the youth was given notice.
(17) If the hearing manager finds extenuating circumstances
incident to the rule violation(s) proved at the hearing, the youth
may not be assigned any consequence designated as a major consequence
in accordance with §380.9503 of this title. However, the true
finding will remain in the youth's disciplinary record and may be
considered by the youth's treatment team or parole officer in determining
appropriate actions to address the youth's behavior. If extenuating
circumstances are found incident to a youth's possession of prohibited
money, the hearing manager determines the appropriate way to dispose
of the money. A finding of extenuating circumstances does not prohibit
placement of a youth in the intervention program under §380.9510
of this title, but the admission review shall take the finding into
account.
(18) A hearing manager's decision to impose a disciplinary
consequence is final, subject to appeal. However, the youth's treatment
team may reduce or suspend the imposition of the consequence if warranted.
(19) The hearing manager shall prepare a report of
his/her findings, which includes the grounds for the hearing, the
evidence relied upon, and the decision.
(20) After the hearing manager announces his/her decision,
he/she shall inform the youth of the youth's right to appeal to the
executive director or designee. The hearing manager's decision is
implemented even if the youth appeals and the response is pending.
(21) A copy of the hearing report shall be given to
the youth immediately after the hearing is closed.
(22) The hearing manager's report shall be reviewed
by the appropriate supervisor, institutional superintendent, halfway
house superintendent, or parole supervisor, as are all disciplinary
reports, to ensure consistency in the application of policy.
|
| Source Note: The provisions of this §380.9555 adopted to be effective September 1, 2009, 34 TexReg 5554; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639; amended to be effective October 1, 2015, 40 TexReg 6138; amended to be effective May 19, 2023, 48 TexReg 705 |
