| (a) Purpose. This rule establishes the procedure to
be followed to ensure youth are afforded appropriate due process before
certain actions are taken.
(b) Definitions. Definitions pertaining to this rule
are under §380.9550 of this title unless otherwise defined within
this rule.
(c) Applicability. A Level II hearing is appropriate
due process in the following instances:
(1) imposing a disciplinary consequence designated
as a major consequence in accordance with §380.9503 of this title;
(2) placing a youth in the moderate or intensive level
of the intervention program in accordance with §380.9510 of this
title;
(3) transferring a parole-status youth from a home
or home substitute to a medium-restriction facility for non-disciplinary
reasons;
(4) transferring an institutional-status youth who
was initially assigned to a medium-restriction facility in accordance
with §380.8521 of this title to a high-restriction facility for
non-disciplinary reasons;
(5) transferring a conditionally placed youth to a
higher-restriction facility pursuant to §380.8545 of this title;
(6) with a few exceptions in procedure as identified
in §380.9571 of this title:
(A) admitting a youth to a Texas Juvenile Justice Department
(TJJD)-operated crisis stabilization unit; and
(B) extending the time to treat a psychiatric disorder
in connection with a crisis stabilization unit placement (as appropriate);
or
(7) depositing into the student benefit fund money
possessed by a youth in a residential program in violation of §380.9503
of this title.
(d) Criteria.
(1) In order for a youth to receive a major consequence,
in accordance with §380.9503 of this title, or have contraband
money seized and placed in the student benefit fund, the hearing manager
shall find:
(A) the youth committed an eligible rule violation;
and
(B) there are no extenuating circumstances, as defined
by §380.9550 of this title.
(2) In order for the youth to be placed in the moderate
or intensive level of the intervention program, the hearing manager
must find the youth committed an eligible rule violation.
(3) In order for a youth to be transferred to a higher-restriction
placement for non-disciplinary reasons, the hearing manager must find
that there are no less restrictive placements appropriate and available
for the youth.
(4) In order for a conditionally placed youth to be
transferred to a higher-restriction placement, the hearing manager
must find one or more of the criteria required in §380.8545 of
this title.
(5) For criteria for admission to or extension in a
crisis stabilization unit, see §380.8767 of this title.
(e) Requesting the Hearing.
(1) The appropriate staff person, as specified by TJJD
procedural manuals, must request permission to schedule a hearing
from the facility administrator, parole supervisor, contract case
management supervisor, or their designees. The hearing must be requested
and scheduled as soon as practical but no later than seven days, excluding
weekends and holidays, after the alleged violation or discovery of
the alleged violation.
(2) For hearings involving a non-disciplinary transfer
or transfer from a conditional placement, the youth may waive the
hearing and agree to the transfer. The waiver must be in writing.
If the youth does not waive the hearing, the hearing must be held
before the transfer. However, if good cause compels a pre-hearing
transfer, the hearing must be held no later than three calendar days
after the transfer.
(3) Failure to meet any timeline in this subsection
must be justified with documentation of circumstances that made it
impossible, impractical, or inappropriate to meet the deadline. Failure
to document these justifications may result in a dismissal of the
allegations or a reversal of the decision(s) of the hearing manager.
(f) Hearing Manager.
(1) The hearing manager must be a TJJD employee trained
to function as a hearing manager. The hearing manager must be impartial
and may not be a person who:
(A) witnessed any part of the alleged violation(s);
(B) made any prior decisions regarding the youth based
on the alleged violation; or
(C) is directly responsible for supervising the youth.
(2) If the youth is currently assigned to a halfway
house, the hearing manager may not be a member of the halfway house
staff.
(3) If the youth is currently assigned to a contract
program, the hearing manager may not be the TJJD case management specialist
assigned to that youth.
(4) If the youth is currently assigned to his/her home,
the hearing manager may not be the parole officer or parole supervisor
assigned to the youth's case.
(g) Staff Representative.
(1) The staff representative shall be a TJJD employee
trained to function as a staff representative.
(2) The staff representative is responsible for assembling
all evidence, giving all required notices, and presenting evidence
at the hearing.
(h) Advocate.
(1) A TJJD employee, contract employee, or volunteer
who has been trained to serve as an advocate shall assist the youth.
If a youth hires his or her own counsel, then no advocate will be
appointed.
(2) The youth is given the opportunity to choose an
advocate from among those trained. The youth's choice shall be honored
unless there is a showing of unavailability of the requested advocate.
If the youth does not choose an advocate or the requested advocate
is unavailable, an advocate will be appointed.
(3) The advocate may not be a person who was a witness
to the alleged violation.
(4) If the youth is not proficient in the English language,
the advocate must be proficient in English and in the youth's primary
language or an interpreter shall be used.
(i) Notice.
(1) Not later than 24 hours before the hearing, the
youth and the youth's advocate shall be given:
(A) written notice of the reasons for calling the hearing;
(B) written notice of the proposed action to be taken;
(C) written notice and copies of the evidence to be
relied upon; and
(D) written notice of the following rights of the youth:
(i) the right to remain silent;
(ii) the right to be assisted by an advocate in the
hearing process;
(iii) the right to confront and cross-examine adverse
witnesses who testify at the hearing;
(iv) the right to contest adverse evidence admitted
at the hearing;
(v) the right to call readily available witnesses and
present readily available evidence on his/her own behalf at the hearing;
and
(vi) the right to appeal the results of the hearing.
The right to appeal cannot be waived.
(2) Staff currently employed at and youth currently
residing at the location of the hearing are considered to be "readily
available" and shall be called to testify at the youth's request.
If there are unusual circumstances that would prevent the witness
from attending in person or by phone or videoconference, the hearing
may be postponed or continued to allow a witness's testimony. If the
witness's testimony cannot be secured within a reasonable time, the
hearing may proceed without the witness. The reasons for proceeding
without requested witnesses shall be documented and placed in the
hearing record.
(3) Evidence is considered "readily available" if it
is within the control of any TJJD staff member at the location of
the hearing or is otherwise easily attainable. Video created by TJJD,
such as body-worn-camera video and surveillance video, is generally
considered "readily available" and shall be shown to the youth if
used as evidence during the hearing. The reasons for excluding requested
evidence must be documented and placed in the hearing record.
(4) All youth in TJJD facilities and contract placements
shall be given the hearing packet (all written materials relied upon
and a list of witnesses) at least 24 hours before the hearing. The
paperwork may be taken away from the youth if the youth is misusing
the papers in any way.
(5) After receipt of the written notice and consultation
with the advocate, the youth may waive the 24-hour-notice period by
agreeing, in writing, to an earlier hearing time.
Cont'd... |
