Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 148. SEX OFFENDER CONDITIONS OF PAROLE OR MANDATORY SUPERVISION

37 TAC §§148.41 - 148.43, 148.45, 148.48, 148.50 - 148.55

The Texas Board of Pardons and Paroles proposed amendments to 37 TAC Chapter 148, §§148.41, 148.42, 148.43, 148.45, 148.48, 148.50, 148.51, 148.52, 148.53, 148.54, 148.55 concerning sex offender conditions of parole or mandatory supervision. The amendments to §§148.45, 148.47, 148.48 and 148.50 are proposed to provide edits for uniformity and consistency throughout the rules; and to clarify Board requirements concerning ex parte consultations and witnesses in the sex offender conditions hearing process.

Marsha Moberley, 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.

Ms. Moberley also has determined that during 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 the effective administration of sex offender conditions hearings. 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, Section 2006.001(2).

Comments should be directed to Bettie 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 proposed under §§508.036(b), 508.0441, 508.045, and 508.228, Government Code. Section 508.036(b) authorizes the Board to adopt rules relating to the decision-making processes used by the Board and parole panels. Section 508.0441 authorizes the Board to adopt reasonable rules as proper or necessary relating to the eligibility of an offender for release to parole or mandatory supervision and to act on matters of release to parole or mandatory supervision. Section 508.045 authorizes a parole panel to grant or deny parole, revoke parole or mandatory supervision, and conduct revocation hearings. Section 508.228 authorizes a parole panel to impose sex offender conditions after a hearing for offenses where a sex offense occurred during the commission of the offense.

No other statutes, articles, or codes are affected by these amendments.

§148.41.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 the information presented shall be given effect by the Hearing Officer.

(c) To give effect to subsction (b) of this section [~~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 and/or privileged information.

§148.42.Authority of Hearing Officers.

(a) A Hearing Officer shall have the following authority:

(1) to administer oaths;

(2) to examine witnesses;

(3) to rule on the admissibility of evidence;

(4) to rule on motions and objections;

(5) to recess any hearing from time to time and place to place;

(6) to reopen, upon request of a parole panel, or reconvene, or both, any hearing;

(7) to issue on behalf of the Board subpoenas and other documents authorized by and signed by a Board Member in accordance with statutory authority;

(8) to maintain order and decorum throughout the course of any proceedings;

(9) to collect documents and exhibits comprising the record of the hearing;

(10) to prepare the report of the hearing for [to] the parole panel to make final [~~for~~] disposition of the case; and

(11) to determine the weight to be given to particular evidence or testimony and to determine the credibility of witnesses.

(b) If a Hearing Officer fails to complete an assigned case, another Hearing Officer may complete the case without the necessity of duplicating any duty or function performed by the previous Hearing Officer.

§148.43.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 [~~in a matter~~] may not [~~communicate,~~] 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.

§148.45.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 Division who has acted or served in the capacity of supervising, advising, or agent officer in the case.

(2) When [~~In the event that it appears to the satisfaction of~~] the Hearing Officer determines 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 their 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 may present testimony by written statement[~~, and~~] upon a favorable good cause determination [~~determined~~] by the Hearing Officer[~~, may present testimony by written statement~~].

§148.48.Record.

(a) The record in any case includes all pleadings, motions, and rulings; evidence received or considered; matters officially noticed; questions and offers of proof, objections, and rulings on them; all relevant Division documents, staff memoranda, or reports submitted to or considered by the Hearing Officer involved in making the decision; and any decision, opinion, or report by the Hearing Officer presiding at the hearing.

(b) All hearings shall be electronically recorded in their entirety.

(c) The hearing record is made a part of the official parole record maintained by the [~~TDCJ Parole~~] Division. All requests for copies of the hearing report or hearing recording shall be addressed to the [~~TDCJ Parole~~] Division.

§148.50.Procedure after Waiver of Hearing.

(a) The parole panel may accept a waiver of the hearing provided that a waiver of the hearing includes the following:

(1) information that the releasee was served with written notice of the following:

(A) notice of the right to a hearing, the purpose of which is to determine whether sex offender conditions may be imposed as a special condition of the release;

(B) notice of the right to full disclosure of the evidence;

(C) notice that the releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;

(D) notice that the releasee has the right to confront and cross-examine witnesses unless the parole panel or designee of the Board specifically finds good cause is shown;

(E) notice that the matter will be heard by an impartial decision-maker; and

(F) the opportunity to waive in writing the right to a hearing.

(2) information the Division relied upon to identify the releasee as a sex offender.

(b) After reviewing the waiver of the right to a sex offender condition hearing and receipt of supporting documentation of evidence of the releasee's sexually [~~sexual~~] deviant behavior in the offense for which the releasee is currently on supervision, the parole panel or designee of the Board must determine that, by a preponderance of the evidence, the releasee constitutes a threat to society by reason of their [~~his/her~~] lack of sexual control. The parole panel shall make final disposition of the case by taking one of the following actions:

(1) impose sex offender conditions; or

(2) deny the imposition of sex offender conditions.

§148.51.Scheduling of Hearing.

Upon request, the Board or the Board's scheduling staff shall schedule the hearing unless:

(1) fewer than seven (7) calendar days have elapsed from the time the releasee received notice; 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 hearing, the purpose of which is to determine whether sex offender conditions may be imposed as a special condition of the release;

(B) notice of the right to full disclosure of the evidence;

(C) notice that the releasee has the opportunity to be heard in person and to present witnesses and documentary evidence;

(D) notice that the releasee has the right to confront and cross-examine witnesses unless the parole panel or designee of the Board [~~Hearing Officer~~] specifically finds good cause is shown;

(E) notice that the matter will be heard by an impartial decision-maker; and

(F) opportunity to waive in writing the right to a hearing.

§148.52.Hearing.

(a) The designee of the Board shall conduct the hearing for the purpose of determining whether sex offender conditions may be imposed as a special condition of release.

(b) The designee of the Board must determine, as shown by a preponderance of the evidence, that the releasee constitutes a threat to society by reason of their [~~his/her~~] lack of sexual control.

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

(1) all documents;

(2) a summary report of the hearing with a written statement as to the evidence relied upon to make a finding or no finding that the releasee constitutes a threat to society by reason of their [~~his/her~~] lack of sexual control; and

(3) the recording of the hearing.

§148.53.Final Board Disposition.

(a) After reviewing the evidence in the summary report of the hearing, the parole panel shall make final disposition of the case by taking one of the following actions:

(1) impose sex offender conditions; or

(2) deny imposition of the sex offender condition [~~conditions~~].

(b) The releasee or attorney shall be notified in writing of the Board's disposition and provided a copy of the summary report of the hearing and notice of the right to submit a petition to reopen the hearing.

§148.54.Releasee's Motion to Reopen Hearing.

(a) The releasee or releasee's attorney shall have 30 days from the date of the parole panel's decision to request a reopening of the case for any substantial error in the process.

(b) A request to reopen the hearing submitted later than 30 days from the date of the parole panel's decision will not be considered unless under exceptional circumstances including but not limited to:

(1) a judicial order requiring a hearing;

(2) the initial decision was made without the opportunity for a hearing or waiver.

(c) Any such request for reopening made under this section must be in writing and delivered to the Board or placed in the United States mail and addressed to the Texas Board of Pardons and Paroles, General Counsel, 8610 Shoal Creek Blvd., Austin, Texas 78757.

(d) On transmittal, a parole panel designated by the Chair other than the original parole panel shall dispose of the motion by:

(1) granting [of] the motion and ordering that the hearing be reopened for a stated specified and limited purpose;

(2) denial of the motion; or

(3) reversal of the parole panel decision previously entered.

(e) The releasee and attorney, if any, shall be notified in writing of the parole panel's decision.

(f) When a releasee's motion to reopen the hearing under this section is granted, the releasee shall be deemed to have consented to such further reasonable delay in the final disposition of their [~~his or her~~] case as shall be required for the procedure under §148.55 of this title (relating to Procedure after Motion to Reopen Is Granted; Time; Rights of the Releasee; Final Disposition).

§148.55.Procedure after Motion to Reopen Is Granted; Time; Rights of the Releasee; Final Disposition.

(a) When the parole panel disposes of a releasee's motion to reopen under §148.54 of this title (relating to Releasee's Motion to Reopen Hearing) by granting the [~~said~~] motion to reopen the hearing, the case shall be disposed of or referred to a parole panel or designee of the Board for final disposition in accordance with this section and the previous disposition of the case made by the parole panel under §148.53 of this title (relating to Final Board Disposition), shall be set aside, and shall be of no force and effect.

(b) The purpose of the further proceedings before the parole panel or designee of the Board under this section shall be as specified by the parole panel in its order granting the releasee's motion to reopen pursuant to §148.54 of this title.

(c) When the parole panel or designee of the Board convenes the reopening of the hearing, it shall have before it the entire record previously compiled in the case, including:

(1) the record, report, and decision of the hearing under §148.52 of this title (relating to Hearing) collected or prepared by the parole panel or designee of the Board originally assigned to the case;

(2) any amendments, supplements, or modifications of the record, report, or decision as developed through prior reopenings of the case;

(3) the releasee's motion to reopen the hearing pursuant to §148.54 of this title; and

(4) any transmittal submitted to the parole panel with the recommendation from Board staff. Any transmittal submitted to the parole panel by the General Counsel constitutes legal advice that [~~which~~] is confidential under law[,] and shall not be released to the public as part of the hearing packet.

(d) At the conclusion of the proceedings before the parole panel or designee of the Board, or within a reasonable time thereafter, the parole panel shall make final disposition of the case by taking one of the following actions in any manner warranted by the evidence:

(1) continue the parole panel's action; or

(2) withdraw the imposition of the special conditions [~~condition~~].

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 13, 2025.

TRD-202500072

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: February 23, 2025

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

CHAPTER 150. MEMORANDUM OF UNDERSTANDING AND BOARD POLICY STATEMENTS

SUBCHAPTER A. PUBLISHED POLICIES OF THE BOARD

37 TAC §150.55

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 150, §150.55 concerning Conflict of Interest Policy. The amendments to §150.55 are proposed to provide edits for clarity and to correct titles.

Ms. Moberley also has determined that during the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amendments to this section will be to promote consistency and uniformity in the Board's rules. 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.

The amended rules are proposed under Subtitle B, Ethics, Chapter 572 and Sections §§508.0441 and 508.035, Government Code. Subtitle B, Ethics, Chapter 572 is the ethics policy of this state for state officers or state employees. Section 508.0441 requires the Board to implement a policy which, clearly defines under what circumstances a Board member or parole commissioner should disqualify themselves on parole or mandatory supervision decisions. Section 508.035, Government Code requires the Presiding Officer to establish policies and procedures to further the efficient administration of the business of the Board.

No other statutes, articles, or codes are affected by these amendments.

§150.55.Conflict of Interest Policy.

(a) Section 1--Policy.

(1) It is the policy of the Board that no Board Member or Parole Commissioner shall have any interest, financial or otherwise, direct or indirect; or engage in any business transaction or professional activity or incur any obligation [~~obligations~~] of any nature that is in substantial conflict with the proper discharge of their duties in the public interest. In implementing this policy, they are provided the following standards of conduct, disclosure, and disqualification to be observed in the performance of their official duties.

(2) A Board Member or Parole Commissioner shall respect and comply with the law and not allow their family, social, or other relationships to influence their conduct, decisions, or judgment.

(b) Section 2--Disclosure.

(1) A Board Member or Parole Commissioner shall submit generally, and on a case-by-case basis, written notice to the Presiding Officer (Chair) of any substantial interest held by the Board Member or Parole Commissioner in a business entity doing business with the Board of Criminal Justice, TDCJ, or the Board.

(2) A Board Member or Parole Commissioner having a personal or private interest in any measure, proposal, or decision pending before the Board (including parole and discretionary mandatory supervision release decisions) shall immediately notify the Chair in writing of such interest. The Chair shall publicly disclose the Board Member's or Parole Commissioner's interest to the Board in a meeting of the Board. The Board Member or Parole Commissioner shall not vote or otherwise participate in the decision. The disclosure shall be entered into the minutes or official record of the meeting.

(3) A Board Member or Parole Commissioner shall consider the possibility that they have a conflict of interest before making any decision or vote.

(4) If a Board Member or Parole Commissioner is uncertain whether any part of the conflict-of-interest policy applies to them in a specific matter, they shall request the General Counsel of the Board to determine whether a disqualifying conflict of interest exists.

(1) No Board Member or Parole Commissioner shall accept or solicit any gift, favor, or service that may reasonably tend to influence them in the discharge of their official duties or that they know or should know is being offered with the intent to influence their official conduct.

(2) No Board Member or Parole Commissioner shall accept employment or engage in any business or professional activity which they might reasonably expect would require or induce them to disclose confidential information acquired by reason of their official position [~~duties~~].

(3) No Board Member or Parole Commissioner shall accept other employment or compensation that could reasonably be expected to impair their independence of judgment in the performance of their official duties.

(4) No Board Member or Parole Commissioner shall make personal investments that could reasonably be expected to create a substantial conflict between their private interest and the public interest.

(5) No Board Member or Parole Commissioner shall intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised their official powers or performed their official duties in favor of another.

(d) Section 4--Recusal and Disqualification.

(1) Recusal [~~Disqualification~~]. A Board Member shall recuse themself from voting on all clemency matters, and a Board Member or Parole Commissioner shall recuse themself from voting on all decisions to release on parole or discretionary mandatory supervision, and decisions to continue, modify, or revoke parole or mandatory supervision when:

(A) they know that individually or as a fiduciary, they have an interest in the subject matter before them; or

(B) the Board Member or Parole Commissioner or their spouse is related by affinity or consanguinity within the third degree to a person who is the subject of the decision before them.

(2) Disqualification [~~Recusal~~]. A Board Member shall disqualify themself from voting on all clemency matters, and a Board Member or Parole Commissioner shall disqualify themself from voting on all decisions to release on parole or discretionary mandatory supervision, and decisions to continue, modify, or revoke parole or mandatory supervision when:

(A) their impartiality might reasonably be questioned;

(B) they have a personal bias or prejudice concerning the subject matter or person in the decision before them; or

(C) they were a complainant, a material witness, or served as counsel for the state or the defense in the prosecution of the subject of the parole decision or revocation decision before them.

(e) Section 5--Documentation.

(1) A Board Member or Parole Commissioner shall notify the Chair and General Counsel in writing when they recuse or disqualify [~~or recuse~~] themself from voting;

(2) A Board Member or Parole Commissioner shall provide the specific reason for disqualification or recusal;

(3) A Board Member or Parole Commissioner shall document the recusal or disqualification on the minute sheet of the offender's file; and

(4) A Board Member or Parole Commissioner shall place the written notification in the offender's file.