| (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
Cont'd... |
