PART 5. TEXAS BOARD OF PARDONS AND PAROLES
CHAPTER 146. REVOCATION OF PAROLE OR MANDATORY SUPERVISION
The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 146, Revocation of Parole or Mandatory Supervision. The amendments are proposed to reflect the changes made by the 88th Legislature in SB 374 to Government Code, Section 508.282(a), regarding the time for the parole panel, board designee, or department to dispose of the charges against an inmate or person described by Government Code, Section 508.281(a), and to also provide edits for uniformity and consistency throughout the rules.
David Gutiérrez, Chair of the Board, determined that for each year of the first five-year period the proposed amendments are in effect, no fiscal implications exist for state or local government as a result of enforcing or administering these sections.
Mr. Gutiérrez also has determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amendments to these sections will be to clarify the procedures in the parole process. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rules as proposed. The amendments will not create or eliminate a government program; will not require the creation or elimination of employee positions; will not require an increase or decrease in future legislative appropriations to the agency; will not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; will not increase or decrease the number of individuals subject to the rules' applicability; and will not positively or adversely affect this state's economy.
An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on micro-businesses, small businesses, or rural communities as defined in Texas Government Code §2006.001(2).
Comments should be directed to Bettie L. Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, Texas 78701, or by e-mail to bettie.wells@tdcj.texas.gov. Written comments from the general public should be received within 30 days of the publication of this proposal.
The amended rules are adopted under Texas Government Code Sections 508.036(b), 508.0441(a)(5), 508.045(c), 508.281, 508.2811, and 508.283. Section 508.036(b) requires the board to adopt rules relating to the decision-making processes used by the Board and parole panels. Section 508.0441(a)(5) vests the Board with the authority to determine the continuation, modification, and revocation of parole or mandatory supervision. Section 508.045(c) provides parole panels with the authority to conduct parole revocation and mandatory supervision revocation hearings; and to grant, deny, revoke parole or mandatory supervision. Sections 508.281 and 508.2811 relate to hearings to determine violations of the releasee's parole or mandatory supervision. Sections 508.282 and 508.283 concern deadlines and sanctions for parole revocation and mandatory supervision revocation hearings.
No other statutes, articles, or codes are affected by these amendments.
§146.6.Scheduling of Preliminary Hearing.
(a) Upon request, the Board or the Board's scheduling staff shall schedule a preliminary hearing unless:
(1) more than fourteen calendar days have elapsed from the time the warrant is executed; or
(2) information has not been presented to the Board or the Board's scheduling staff that the releasee was served with the following:
(A) notice of the right to a preliminary hearing and that its purpose is to determine whether there is probable cause or reasonable belief to believe the releasee has committed a parole violation;
(B) written notice of the allegations of parole violation against the releasee;
(C) notice of the right to full disclosure of the evidence;
(D) notice that releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;
(E) notice that the releasee has the right to confront and cross-examine adverse witnesses unless the Hearing Officer specifically finds good cause for not allowing confrontation of the witness;
(F) notice that the case will be heard by a parole panel or designee of the Board;
(G) notice that the releasee has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the releasee waives the revocation hearing, the Board will in all probability revoke; and
(H) notice that the releasee has the right to retain an attorney and the conditional right to an appointed attorney.
(b) For the purposes of subsection (a)(1) of this section, a warrant is executed if:
(1) the releasee is arrested only on a charge that
the releasee has committed a violation of a condition of parole or
mandatory supervision and is not charged before the [41] 91st day with the commission of an offense; or
(2) the sheriff having custody of the releasee notifies the division that the releasee has discharged the sentence or that the prosecutor has dismissed the charge under Article 32.02, Code of Criminal Procedure.
(c) If the Board or the Board's scheduling staff receives a request for a preliminary hearing later than the fourteenth calendar day following the provisions described in subsection (a)(1) of this section, the Board or the Board's scheduling staff shall require the requestor to provide an explanation of the delay.
(d) Subsection (a)(1) of this section does not apply when a releasee is:
(1) transferred under Section 508.284, Government Code
to a correctional facility operated by or under contract with the
TDCJ [department]; or
(2) returned to custody from another state, a federal correctional institution, or a medical or psychiatric facility.
(e) In cases under subsection (d) of this section, a preliminary hearing shall be held within a reasonable time.
§146.8.Scheduling of Revocation Hearings.
(a) Upon request, the Board or the Board's scheduling staff shall schedule a revocation hearing unless information has not been presented to the Board or the Board's scheduling staff that the releasee was served with the following:
(1) notice of the right to a revocation hearing and that its purpose is to make a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation of parole;
(2) written notice of the allegations of parole violation against the releasee;
(3) notice of the right to full disclosure of the evidence against the releasee;
(4) notice that releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;
(5) notice that the releasee has the right to confront and cross-examine adverse witnesses unless the Hearing Officer specifically finds good cause for not allowing confrontation of the witness;
(6) notice that releasee has an opportunity to be heard and to show that he did not violate the conditions, or if the releasee did, that circumstances in mitigation suggest that the violation does not warrant revocation;
(7) notice that the case will be heard by a parole panel or designee of the Board;
(8) notice that the releasee has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the releasee waives the revocation hearing, the Board will in all probability revoke; and
(9) notice that the releasee has the right to retain an attorney and the conditional right to an appointed attorney.
(b) If the releasee is not entitled to a preliminary hearing and requests a revocation hearing, the Board or the Board's scheduling staff shall schedule a revocation hearing unless:
(1) more than fourteen calendar days have elapsed from the time that the warrant is executed; or
(2) information has not been presented to the Board or the Board's scheduling staff that the releasee was served with the following:
(A) notice of the right to a revocation hearing and that its purpose is to make a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation of parole;
(B) written notice of the claimed allegations of parole violation against the releasee;
(C) notice of the right to full disclosure of the evidence;
(D) notice that releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;
(E) notice that the releasee has the right to confront and cross-examine adverse witnesses unless the Hearing Officer specifically finds good cause for not allowing confrontation of the witness;
(F) notice that releasee has an opportunity to be heard and to show that he did not violate the conditions, or if the releasee did, that circumstances in mitigation suggest that the violation does not warrant revocation;
(G) notice that the case will be heard by a parole panel or designee of the Board;
(H) notice that the releasee has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the releasee waives the revocation hearing, the Board will in all probability revoke; and
(I) notice that the releasee has the right to retain an attorney and the conditional right to an appointed attorney.
(c) If the Board or the Board's scheduling staff receives a request for a revocation hearing later than the fourteenth calendar day following the provisions described in subsection (b)(1) of this section, the Board or the Board's scheduling staff shall require the requestor to provide an explanation of the delay.
(d) Subsection (b)(1) of this section does not apply when a releasee is:
(1) transferred under Section 508.284, Government Code to a correctional facility operated by or under contract with the department; or
(2) returned to custody from another state, a federal correctional institution, or a medical or psychiatric facility.
(e) For the purposes of subsection (b)(1) of this section, a warrant is executed if:
(1) the releasee is arrested only on a charge that
the releasee has committed a violation of a condition of parole or
mandatory supervision and is not charged before the [41] 91st day with the commission of an offense; or
(2) the sheriff having custody of the releasee notifies the division that the releasee has discharged the sentence or that the prosecutor has dismissed the charge under Article 32.02, Code of Criminal Procedure.
(f) In cases under subsection (d) of this section, a revocation hearing shall be held within a reasonable time.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 28, 2023.
TRD-202302691
Bettie Wells
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: September 10, 2023
For further information, please call: (512) 406-5478