Adopted Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 147. HEARINGS

SUBCHAPTER A. GENERAL RULES FOR HEARINGS

The Texas Board of Pardons and Paroles adopts amendments to 37 TAC Chapter 147, Subchapter A, §147.1, §147.3, §147.5, and §147.6 concerning general rules for hearings. Rule §147.6 is adopted without changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5533) and will not be republished. Rules §147.1, §147.3, and §147.5 are adopted with changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5533) and will be republished.

The amendments are adopted to provide edits for uniformity and consistency throughout the rules, correct grammatical errors, delineate prohibited acts in ex parte communications, and clarify the hearing officer's responsibility regarding written testimony.

No public comments were received regarding adoption of these amendments.

The amended rules are adopted under Sections 508.0441, 508.045, 508.281, and 508.283, Government Code. Section 508.0441 relates to the board member and parole commissioner release and revocation duties. Section 508.045 provides parole panels with the authority to grant, deny, revoke parole, or revoke mandatory supervision. Sections 508.281 and 508.283 relate to hearings to determine violations of the releasee's parole or mandatory supervision.

§147.1.Public Hearings.

(a) All hearings on matters not confidential or privileged by law, or both, shall be open to the public.

(b) Appropriate federal and state constitutional provisions, statutes, regulations, and judicial precedent establishing the confidential or privileged nature of information presented shall be given effect by the Hearing Officer.

(c) To effect this provision, the Hearing Officer shall have the authority to close the hearing to the extent necessary to protect against the improper disclosure of confidential privileged information.

(d) If the Hearing Officer closes the hearing pursuant to this section, in no event shall the Hearing Officer exclude from the hearing a party as defined by §141.111 of this title (relating to Definition and Terms) and includes:

(1) the releasee;

(2) the releasee's attorney;

(3) the releasee's interpreter;

(4) Board Member or Board employee;

(5) TDCJ employee;

(6) County jail employee; and

(7) Prosecuting attorney.

(e) When the Hearing Officer closes the hearing, the Hearing Officer shall announce on the record that the hearing will be closed to the public to protect the confidential or privileged information being introduced into evidence. After the confidential or privileged evidence is obtained, the Hearing Officer shall open the hearing to the public and announce the same on the record.

§147.3.Ex Parte Consultations.

Unless required for the disposition of matters authorized by law, Hearing Officers, Board Members and Parole Commissioners assigned to render a decision or to make findings of fact and conclusions of law in an individual case may not, directly or indirectly, initiate, permit, nor consider communications in connection with any issue of fact or law with any party, except on notice and opportunity for all parties to participate.

§147.5.Witnesses.

(a) The Hearing Officer may determine whether a witness may be excused under the rule that excludes witnesses from the hearing.

(1) In no event shall the Hearing Officer exclude from the hearing a party under the authority of this section. For these purposes, the term "party" means the definition in §141.111 of this title (relating to Definition of Terms) and includes:

(A) the releasee;

(B) the releasee's attorney; and

(C) no more than one representative of the TDCJ Parole Division who has acted or served in the capacity of supervising, advising, or agent officer in the case.

(2) In the event it appears to the Hearing Officer that an individual who is present at the hearing and intended to be called by a party as a witness has no relevant, probative, noncumulative testimony to offer on any material issue of fact or law, then the Hearing Officer, in his sound discretion, may determine that such individual should not be placed under the rule and excluded from the hearing.

(b) All witnesses who testify in person are subject to cross-examination unless the Hearing Officer specifically finds good cause for lack of confrontation and cross-examination.

(c) Witnesses personally served with a subpoena and who fail to appear at the hearing, and upon a favorable good cause determination by the Hearing Officer, may present testimony by written statement.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 24, 2024.

TRD-202400255

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Effective date: February 13, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 406-5478

SUBCHAPTER B. EVIDENCE

37 TAC §147.24, §147.26

The Texas Board of Pardons and Paroles adopts amendments to 37 TAC Chapter 147, Subchapter B, §147.24 and §147.26 concerning evidence. The rules are adopted without changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5534). The rules will not be republished.

The amendments are adopted to provide edits for uniformity and consistency throughout the rules and to correct grammatical errors.