PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 146. REVOCATION OF PAROLE OR MANDATORY SUPERVISION

37 TAC §§146.4, 146.5, 146.7, 146.9, 146.10

The Texas Board of Pardons and Paroles proposed amendments to 37 TAC Chapter 146, §§146.4, 146.5, 146.7, 146.9, and 146.10 concerning revocation of parole or mandatory supervision. The amendments are proposed for clarity and to also provide edits for uniformity and consistency through 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 duties concerning continuation, modification, and revocation of parole or mandatory supervision. There will be no effect on small businesses, micro-businesses or rural areas. 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.

§146.4.Procedure after Waiver of Preliminary Hearing.

(a) Following the waiver of the right to a preliminary hearing, the parole panel or a designee of the Board may proceed to a revocation hearing after a finding of probable cause or reasonable belief that the releasee violated a condition of parole or mandatory supervision.

(b) The parole panel or designee of the Board may accept a waiver of the preliminary hearing provided that a waiver of the preliminary hearing includes the following:

(1) information 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 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; and

(2) information which supports the evidence of the alleged rule violations, which may include but are not limited to the following:

(A) [a] complaint and information or [a] grand jury indictment;

(B) [a] judgment and sentence of conviction;

(C) reports of violation;

(D) witness affidavits; or

(E) other evidence, e.g., if the releasee was not indicted by a grand jury or convicted.

§146.5.Procedure after Waiver of Revocation Hearing.

(a) Following a review of the waiver of the right to a revocation hearing and receipt of supporting documentation of evidence of the alleged rule violations as described in §146.4 of this title (relating to Procedure after Waiver of Preliminary Hearing), the parole panel may make final disposition of the case by taking one of the following actions:

(1) continue the parole or mandatory supervision, in any manner warranted by the evidence;

(2) revoke the parole or mandatory supervision in any manner warranted by the evidence, provided that the parole panel finds [that] a preponderance of evidence exists that a condition of parole or mandatory supervision was violated; or

(3) refer the case for further action.

(b) If final Board disposition is an order to revoke the parole or mandatory supervision, the releasee or attorney shall be notified in writing of the parole panel's decision [of the parole panel].

§146.7.Preliminary Hearing.

(a) The parole panel or designee of the Board shall conduct the preliminary hearing. The purpose of the preliminary hearing is to determine whether there is probable cause or a reasonable belief that the releasee violated a condition of parole or mandatory supervision.

(b) The preliminary hearing shall be held at or near the location of the alleged violations or arrest, unless the releasee is:

(1) [the releasee is] detained in federal custody;

(2) [the releasee is being] held in a hospital or other facility for diagnosis or treatment of a physical or mental condition; or

(3) [the releasee is] arrested or detained on the authority of a warrant in a state other than the state of release.

(c) If the decision of the parole panel or designee of the Board is that there is probable cause or reasonable belief to proceed to a revocation hearing, upon the request of the parole panel, designee of the Board or the parole officer, the Board's scheduling staff may schedule a revocation hearing:

(1) at the conclusion of the hearing, or

(2) after a pending charge is adjudicated.

(d) If the parole panel or the designee of the Board finds that there is no probable cause or reasonable belief to proceed to a revocation hearing or does not schedule a revocation hearing, the parole panel or designee of the Board shall collect, prepare and forward to a parole panel, or to the TDCJ PD Interstate Compact for Probation and Parole Supervision, if the hearing was held pursuant to the Interstate Commission for Adult Offender Supervision rules, the following information:

(1) all documents and exhibits offered or admitted into evidence at the preliminary hearing;

(2) a summary report of the evidence relied upon to formulate the Hearing Officer's findings; and

(3) the recording of the hearing.

(e) Following a review of the supporting evidence of rule violations as described in subsection (d) of this section, the parole panel may dispose of the case by taking one of the following actions:

(1) continue the parole or mandatory supervision in any manner warranted by the evidence;

(2) proceed to a revocation hearing; or

(3) refer the case for further action.

(f) No preliminary hearing is required if the releasee:

(1) waives the preliminary hearing;

(2) has been charged only with an administrative violation of a condition of parole or mandatory supervision; or

(3) has been adjudicated guilty of or has pleaded guilty or nolo contendere to an offense committed after release, other than an offense punishable by fine only involving the operation of a motor vehicle, regardless of whether the court has deferred disposition of the case, imposed a sentence in the case, or placed the releasee on community supervision.

§146.9.Revocation Hearing.

(a) The parole panel or designee of the Board shall conduct the revocation hearing. The purpose of the revocation hearing is to consider the evidence offered pursuant to an allegation of a violation of a condition of parole or mandatory supervision. The parole panel or designee of the Board must determine whether it is shown by a preponderance of the credible evidence that the releasee violated a condition of parole or mandatory supervision.

(b) The revocation hearing shall not proceed to the mitigation phase unless it is determined by the parole panel or designee of the Board by a preponderance of the credible evidence that the releasee did violate a condition of parole or mandatory supervision.

(c) At the close of the hearing or within a reasonable time thereafter, the parole panel or designee of the Board shall collect, prepare and forward to the parole panel:

(1) all documents;

(2) a summary report of the hearing separately setting out findings of fact relative to the alleged violation of a condition of parole or mandatory supervision, based on a preponderance of the credible evidence, which includes statements of the evidence relied upon in reaching said finding; and

(3) the hearing recording [of the hearing].

§146.10.Final Board Disposition.

(a) [After reviewing the report of the hearing, the] The parole panel may make final disposition of the case by taking one of the following actions:

(1) continue the parole or mandatory supervision, in any manner warranted by the evidence;

(2) recommend to the Governor that the conditional pardon be continued, revoked, or modified; or

(3) revoke the parole or mandatory supervision, provided that all revocation decisions are preceded by a mitigation hearing; or

(4) refer the case to the Hearing Officer, with or without reopening the hearing, for further development of issues as specified by the parole panel.

(b) If final Board disposition is an order to revoke the parole or mandatory supervision, the releasee or attorney shall be notified in writing and provided with a copy of the report of the Hearing Officer and notice of the right to submit a motion to reopen the hearing.

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 January 24, 2024.

TRD-20240254

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 10, 2024

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