TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 143. EXECUTIVE CLEMENCY

SUBCHAPTER A. FULL PARDON AND RESTORATION OF RIGHTS OF CITIZENSHIP

37 TAC §§143.1 - 143.5, 143.7 - 143.14

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter A, concerning full pardon and restoration of rights of citizenship, §§143.1 - 143.5, 143.7 - 143.14. The amendments proposed are to capitalize titles throughout the rules. The substantive amendment to §143.2 adds language directly related to the Code of Criminal Procedures related to DNA testing and evidence.

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 bring the rule into compliance with current board practice and current statutory requirements. 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.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Mr. Gutiérrez also has determined that during the first five years that the proposed amendment is in effect, the amendment 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.

There will be no economic effect on rural communities.

Comments should be directed to Bettie Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, TX 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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution authorizes the board to make clemency recommendations to the Governor. Article 48.01, Code of Criminal Procedure, authorizes the board make clemency recommendations to the Governor.

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

§143.1.Authority to Grant Pardons.

Except in cases of treason or impeachment, after conviction or successful completion of a term of deferred adjudication community supervision, the Governor [governor] may grant a full pardon upon the recommendation and advice of a majority of the Board [board] as authorized by the Texas Constitution, Article IV, Section 11 and Texas Code of Criminal Procedure, Articles 48.01 and 48.03.

§143.2.Pardons for Innocence.

(a) On the grounds of innocence of the offense for which convicted or successfully completed a term of deferred adjudication community supervision, the Board [board] will consider applications for recommendation to the Governor [governor] for a pardon for innocence upon receipt of:

(1) a written recommendation of at least two of the current trial officials of the sentencing court, with one trial official submitting documentary evidence of actual innocence; or

(2) a certified order or judgment of a court having jurisdiction accompanied by a certified copy of the findings of fact and conclusions of law where the court recommends that the Court of Criminal Appeals grant state habeas relief on the grounds of actual innocence.

(b) Evidence submitted under subsection (a)(1) of this section shall include the results and analysis of pre-trial and post-trial forensic DNA testing [tests] of biological material as defined in the Chapter 64, Code of Criminal Procedure [or other forensic tests], if any, and may also include affidavits of witnesses upon which the recommendation of actual innocence is based.

§143.3.Twelve Months on Parole.

When any offender has served 12 months on parole for an offense committed on or before August 28, 1977, in a manner acceptable to the Board [board], upon request, the Board [board] may review the offender's record upon application therefore and make a determination whether to recommend to the Governor [governor] that the offender be pardoned and finally discharged from the sentence under which he/she is serving.

§143.4.Parolee Discharging Sentence.

Whenever any offender who has been paroled for an offense committed on or before August 28, 1977, has complied with the rules and conditions governing his parole until the end of the term to which he/she was sentenced, and without a revocation of his parole, the Board [board] may report such fact to the Governor [governor ] prior to the issuance of the final order of discharge. The Board [board] may, at this time, recommend to the Governor [governor] a full pardon as authorized by the Texas Constitution, Article IV, Section 11 and Texas Government Code, §508.119.

§143.5.Discharged Offender.

Upon request from a person who has discharged a felony sentence or successfully completed a term of deferred adjudication community supervision, the Board [board] will consider recommending a full pardon. Applicant's name, TDCJ-CID or SID number, county of conviction, offense, and length of sentence shall be furnished for identification.

§143.7.Prior Out-of-State or Federal Convictions.

Where there exists one or more convictions or successful completion of a punishment similar to a term of deferred adjudication community supervision for offenses of felony grade, in other states or in federal court, prior to the last Texas conviction, the Board [board ] will consider recommending a pardon only if the applicant:

(1) provides a clearance by full pardon from the jurisdiction(s) of the previous conviction(s); or

(2) furnishes proof in writing that the other jurisdiction(s) will not act until a full pardon is granted by the Governor of Texas.

§143.8.Suspended Sentence, Felony Conviction.

Upon a written application from the applicant or person acting on their behalf, the Board [board] will consider recommending full pardon for a suspended sentence. Applicant's name, SID number, the county of conviction, offense, and sentence shall be furnished when the request is made.

§143.9.Sentence of Probation, Felony Conviction.

The Board [board] will consider recommending a full pardon for a sentence of probation only upon a showing of receipt of maximum relief available through the court of conviction, and then, only in an extreme or unusual circumstance which prevents the applicant from gaining a livelihood or in the event of loss of civil rights. The burden of showing such extreme or unusual circumstance rests upon the applicant.

§143.10.Misdemeanor.

The Board [board] will consider recommending a full pardon in misdemeanor cases only when exceptional, extreme, and unusual circumstances exist. The burden of showing such exceptional, extreme, and unusual circumstances rests upon the applicant.

§143.11.Request of the Governor.

The Board [board] shall consider a recommendation for a full pardon or request for restoration of firearm rights in any case upon the request of the Governor [governor] as authorized by Texas Government Code, Section 508.050.

§143.12.Restoration of Firearm Rights.

(a) The Board [board] will consider recommending restoration of the right to receive, possess, bear, and transport in commerce a firearm only in extreme and unusual circumstances which prevent the applicant from gaining a livelihood, and only if the applicant:

(1) provides either proof of clearance by a previously granted full pardon or a request for such express restoration in a pending application for a full pardon from jurisdiction(s) of the relevant conviction(s) or successful completion of a punishment similar to a term of deferred adjudication community supervision; and

(2) provides proof of application under the United States Code, Title 18, Section 925(c), for exemption, relief from disabilities to the Director of Alcohol, Tobacco, Firearms and Explosives, and furnishes copies of all relevant applications and responses thereto by the Director of Alcohol, Tobacco, Firearms and Explosives including any final actions by said Director of Alcohol, Tobacco, Firearms and Explosives.

(b) The burden of showing such extreme and unusual circumstance rests upon the applicant.

§143.13.Posthumous Pardon.

Upon request from a person acting on behalf of a deceased person who was convicted of a felony offense, the Board [board] will consider recommending a full pardon for the deceased person.

§143.14.Consideration of Request or Application.

(a) The Board [board] will consider a written request or application for executive clemency submitted pursuant to Subchapter A of this chapter (relating to Full Pardon and Restoration of Rights of Citizenship).

(b) When an application for executive clemency is denied by the Governor [governor] or not recommended by the Board [board], a person may submit a subsequent written application for executive clemency on or after the second anniversary of the denial.

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 26, 2018.

TRD-201800348

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480


SUBCHAPTER B. CONDITIONAL PARDON

37 TAC §§143.21 - 143.24

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter B, concerning conditional pardon, §§143.21 - 143.24. The amendments proposed are to capitalize titles 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 bring the rule into compliance with current board practice. 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.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Mr. Gutiérrez also has determined that during the first five years that the proposed amendments are in effect, the amendment 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.

There will be no economic effect on rural communities.

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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution authorizes the board to make clemency recommendations to the Governor. Articles 48.01, Code of Criminal Procedure, authorize the board make clemency recommendations to the Governor.

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

§143.21.Definition.

A conditional pardon is a form of executive clemency which, upon application, may be recommended by the Board [board] to the Governor [governor], except in cases of treason or impeachment, and if granted, serves to release a person from the conditions of his or her sentence and/or any disabilities imposed by law thereby, subject to the conditions contained in the clemency proclamation. A person released pursuant to the terms of a conditional pardon is considered for the purposes of revocation thereof to be a releasee, §141.111 of this title (relating to Definitions), and all such revocation proceedings are governed by the sections for revocation of release, §§146.3 - 146.12 of this title (relating to Revocation of Parole or Mandatory Supervision).

§143.22.Consideration of Application.

The Board [board] will consider a written application for conditional pardon, only to release an offender to another country or in cases where extreme, exceptional, and unusual circumstances exist, and only after minimum statutory parole eligibility has been attained. The burden of showing such extreme, exceptional, and unusual circumstances rests upon the applicant.

§143.23.Revocation of Conditional Pardon.

(a) A conditional pardon may be revoked if the terms and conditions of the clemency proclamation are breached. All such revocation proceedings shall be conducted in accordance with the sections applicable to a releasee who is the subject of the revocation process.

(b) The Board [board] or parole panel, on order of the Governor [governor], is responsible for ordering the issuance of any warrant upon being notified by the Division that a violation has occurred. The warrant shall issue to appropriate law enforcement authorities, authorizing any sheriff, peace officer, or other addressee named therein to arrest and hold the named releasee until further order of the Governor [governor] or the Board [board] or until such time as he/she may be placed in the custody of an agent of the TDCJ-CID, or until further order of the Governor [governor ] or the Board [board].

§143.24.Request of the Governor.

The Board [board] shall consider a recommendation for conditional pardon in any case upon the request of the Governor [governor] as authorized by Texas Government Code, Section 508.050.

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 26, 2018.

TRD-201800349

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480


SUBCHAPTER C. REPRIEVE

37 TAC §§143.31 - 143.35

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter C, concerning reprieve, §§143.31 - 143.35. The amendments proposed are to capitalize titles 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 bring the rule into compliance with current board practice. There is no anticipated economic cost to persons required to comply with the amended rules as proposed.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Mr. Gutiérrez also has determined that during the first five years that the proposed amendment is in effect, the amendment 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.

There will be no economic effect on rural communities.

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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution authorizes the board to make clemency recommendations to the Governor. Articles 48.01, Code of Criminal Procedure, authorize the board make clemency recommendations to the Governor.

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

§143.31.General Rules.

(a) The Governor [governor] may grant a reprieve upon the written recommendation of a majority of the Board [board] as authorized by the Texas Constitution, Article IV, Section 11.

(b) A reprieve is not recommended as a matter of right and each request will be judged on the merits of the case and the security risk involved.

(c) Except at the request of the Governor [governor], the Board [board] will consider only such requests for reprieves as meet the general and specific criteria set out in these sections.

(d) The Board [board] will not consider a written application for reprieve from a TDCJ-CID sentence which involves travel outside the State of Texas.

(e) The Board [board] will not consider a written application for reprieve from a TDCJ-CID sentence requested for business reasons.

(f) The Board [board] may recommend a reprieve either in custody of a peace officer or without custody.

(g) The Board [board] will not recommend a reprieve without custody if the offender has a detainer filed against his release.

(h) Except as otherwise specified in these sections, a Board [board] recommendation for a reprieve shall be for a specified time, including a beginning and ending date.

(i) Upon expiration of the specified time of the reprieve, a person granted a reprieve that remains at large, is subject to arrest without further action of the Board [board] or the Governor [governor].

(j) The Board [board] will consider a written request for an extension of a reprieve only if the request meets the requirements for the original reprieve.

(k) If at any time the Board [board] is made aware that the conditions of a reprieve have been violated, the Board [board] may recommend to the Governor [governor] the revocation of such reprieve.

§143.32.Reprieve for Family Emergency.

(a) The Board [board] will consider a written application for reprieve for a family emergency only in cases of critical illness or death of a member of the offender's immediate family.

(b) The immediate family includes only the parents, spouse, and children of the offender, and a person other than a parent who assumed the responsibilities and acted as the parent of the offender during his/her childhood.

(c) Prior to consideration of the application for reprieve for family emergency, the Board [board] may require written:

(1) verification of the critical illness by the attending physician; or

(2) verification of the death and of the time and place of the funeral, by the mortician; and

(3) proof of the parent-child relationship if the request is for the illness or death of a person, not a parent, who acted as the offender's parent during his/her childhood.

(d) A Board [board] recommendation for reprieve in the continuous custody of a peace officer is contingent upon a verified arrangement by the offender's family to secure and pay the expense of a peace officer to guard the offender.

§143.33.Emergency Reprieve to Attend Civil Court Proceedings.

(a) An emergency reprieve to attend a civil court proceeding cannot be used for any other purpose unless specific permission is given in the Governor's [governor's] proclamation, and if for any reason the cause is not tried as scheduled, the offender shall immediately return to TDCJ-CID. The offender may not, during the reprieve, take temporary employment or travel for any purpose, be it business, visiting relatives, or for an unsolicited visit to the Board [board].

(b) The Board [board] will consider a written application for an emergency reprieve to attend civil court proceedings only upon receipt of the following:

(1) a request for reprieve by the offender or his or her representative stating the offender's vested interest in the cause and the date his presence is required with reasons requiring his attendance if date is prior to date set for trial;

(2) a letter signed by the presiding judge of the court in which the cause is pending, stating:

(A) the style and number of the cause;

(B) that a special setting for trial has been made on the docket of the court stating the date of such setting;

(C) that the presence of the offender is an absolute necessity for the protection of his or her interest in the litigation, and that his or her deposition would not suffice to protect that interest; and

(D) the estimated approximate time required to complete the trial.

§143.34.Emergency Medical Reprieve.

The Board [board] will consider a written application for an indefinite medical emergency reprieve in instances such as terminal illness or total disability. Prior to consideration of the application for emergency medical reprieve, the Board [board] may require written verification of the terminal illness or total disability by the attending physician.

§143.35Reprieve from Misdemeanor Jail Sentence and/or Fine.

(a) The Board [board] will consider a written application for reprieve from a misdemeanor jail sentence and/or fine upon the majority written recommendation of trial officials.

(b) The Board [board] will also consider a written application for reprieve from a misdemeanor jail sentence and/or fine, only for medical reasons or reasons of financial hardship (loss of home or business, or the lack of support for family) or other compelling hardships, only upon receipt in writing of the following information:

(1) a request for reprieve clearly stating the medical reason for the application:

(A) a certified copy of the judgment and sentence for each cause for which the applicant is presently confined;

(B) a statement from the attending physician indicating the condition of the applicant and medical treatment recommended; and

(C) a clear statement of financial responsibility for hospitalization or other treatment.

(2) a request for reprieve clearly stating the nature of the hardship for the request;

(A) a certified copy of the judgment and sentence for each cause for which the applicant is presently confined; and

(B) a statement from the prospective employer stating the nature of the employment offer and whether or not the employment offered will be permanent if duties are performed satisfactorily.

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 26, 2018.

TRD-201800350

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480


SUBCHAPTER D. REPRIEVE FROM EXECUTION

37 TAC §§143.41 - 143.43

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter D, concerning reprieve from execution, §§143.41 - 143.43. The amendments proposed are to capitalize titles throughout the rules. The substantive amendments to §143.42 adds "execution number" to paragraph (1) of this rule.

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 bring the rule into compliance with current board practice and provide clarification for the application 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.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Government Growth Impact Statement - Mr. Gutiérrez also has determined that during the first five years that the proposed amendments are in effect, 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; do not create a new regulation; do 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.

There will be no economic effect on rural communities.

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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution authorizes the board to make clemency recommendations to the Governor. Article 48.01, Code of Criminal Procedure, authorizes the board to make clemency recommendations to the Governor.

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

§143.41.Governor's Reprieve.

(a) The Governor [governor] shall have the power to grant one reprieve in any capital case for a period not to exceed 30 days as authorized by the Texas Constitution, Article IV, Section 11.

(b) The Governor [governor] shall have the power, upon the written and signed recommendation and advice of a majority of the Board [board], to grant a reprieve in any capital case at any time after conviction.

(c) The duration of a gubernatorial reprieve granted under subsection (b) of this section may be equal to, greater than, or less than 30 days, but in no event shall any such reprieve exceed the period recommended by the Board [board].

§143.42.Reprieve Recommended by the Board.

The Board [board] will consider a reprieve of execution from death sentence upon receipt of a written application in behalf of an offender. The individual filing such application, if other than the offender, may be required to demonstrate that he/she is authorized by the offender to file such application. Any such application shall be addressed to the Texas Board of Pardons and Parole and contain the following information:

(1) the name of the applicant, execution number, together with any other pertinent identifying information;

(2) identification of the applicant's agents, if any, who are presenting the application;

(3) certified copies of the indictment, judgment, verdict of the jury, and sentence in the case, including official documentation verifying the scheduled execution date, if said information is not contained in the sentence;

(4) a brief statement of the offense for which the offender has been sentenced to death;

(5) a brief statement of the appellate history of the case, including its current status;

(6) a brief statement of the legal issues which have been raised during the judicial progress of the case;

(7) the requested length of duration of the reprieve, which shall be in increments of 30 days that is, 30, 60, 90, etc., unless a different duration is requested upon the basis of the grounds for the application set forth pursuant to paragraph (8) of this section; and,

(8) all grounds upon the basis of which the reprieve is requested; provided that such grounds shall not call upon the Board [board] to decide technical questions of law which are properly presented via the judicial process.

§143.43.Procedure in Capital Reprieve Cases.

(a) The written application in behalf of an offender seeking a Board [board] recommendation to the Governor [governor] of a reprieve from execution must be delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757, not later than the twenty-first calendar day before the execution is scheduled. If the twenty-first calendar day before the execution is scheduled falls on a weekend or state observed holiday, the application shall be delivered not later than the next business day.

(b) All supplemental information, including but not limited to amendments, addenda, supplements, or exhibits, must be submitted in writing and delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757, not later than the fifteenth calendar day before the execution is scheduled. If the fifteenth calendar day before the execution is scheduled falls on a weekend or state observed holiday, all additional information including but not limited to amendments, addenda, supplements, or exhibits shall be delivered not later than the next business day.

(c) Any information filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, must be provided by the applicant in an amount sufficient to allow review by all members of the Board [board]. An amount sufficient shall mean not less than 12 and not more than 20 copies of the duplicate item.

(d) An offender seeking a Board [board] recommendation to the Governor [governor] of a reprieve from execution may request an interview with a member of the Board [board]. Such request shall be included in the written application or any supplement filed therewith in accordance with this section.

(e) Upon receipt of a request for an interview, the Presiding Officer (Chair) [presiding officer (chair)] shall designate at least one member of the Board [board] to conduct the requested interview. Such interview shall occur at the confining unit of TDCJ-CID. Attendance at such interviews shall be limited to the offender, the designated Board Member(s), Board [board member(s), board] staff, and TDCJ-CID staff. The Board [board] may consider statements made by the offender at such interviews and any other materials the offender delivers to the Board Member [board member] during the interview when considering the offender's application for reprieve.

(f) The Board [board] shall consider and decide applications for reprieve from execution. Upon review, a majority of the Board [board], or a majority thereof, in written and signed form, may:

(1) recommend to the Governor [governor] a reprieve from execution;

(2) not recommend a reprieve from execution; or

(3) set the matter for a hearing as soon as practicable and at a location convenient to the Board [board] and the parties to appear before it.

(g) When the Board [board] sets a hearing pursuant to subsection (f)(3) of this section, it shall notify the trial officials of the county of conviction and the attorney general of the State of Texas and allow any such official(s), or the designated representatives thereof, the opportunity to attend the hearing and/or to present any relevant information. At the time of notifying the trial officials, the Board [board] shall also notify any representative of the family of the victim (who has previously requested to be notified) of the receipt of the application, the setting of a hearing, and of said representative or family member's rights to provide any written comments or to attend the hearing.

(h) All hearings conducted by the Board [board ] under this section shall be in open session pursuant to requirements of the Texas Open Meetings Act. For the purpose of discussing matters which are deemed confidential by statute, or where otherwise authorized by the provisions of the Texas Open Meetings Act, the proceedings may be conducted in executive session closed to members of the general public, for that limited purpose. Only those persons whose privacy interests and right to confidentiality may be abridged by discussion involving disclosure of confidential information may be allowed to meet with members of the Board [board] in their executive session to discuss that information. No decision, vote, or final action by the Board [board] shall be made during a closed meeting; the Board's [board's] decision, vote, or final action shall be made and announced in an open meeting. The hearing may be recessed prior to its completion and reconvened pursuant to the directions of the Board [board].

(i) Advocates for and against the death penalty, generally, and members of the general public may present written information for the Board's [board's] consideration at its central office headquarters at any reasonable time.

(j) After the conclusion of the hearing, the Board [board] shall render its decision, reached by majority vote, within a reasonable time, which decision shall be either to:

(1) recommend to the Governor [governor] a reprieve from execution;

(2) not recommend a reprieve from execution; or

(3) recess the proceedings without rendering a decision on the merits, if a reprieve has been granted by the Governor [governor] or if a court of competent jurisdiction has granted a stay of execution.

(k) Each of the provisions of this section and §143.42 of this title (relating to Reprieve Recommended by the Board) are subject to waiver by the Board [board] when it finds that there exists good and adequate cause to suspend said provisions and adopt a different procedure which it finds to be better suited to the exigencies of the individual case before it.

(l) Successive or repetitious reprieve applications submitted in behalf of the same offender may be summarily denied by the Board [board] without meeting.

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 26, 2018.

TRD-201800351

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480


SUBCHAPTER E. COMMUTATION OF SENTENCE

37 TAC §§143.51 - 143.55, 143.57, 143.58

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter E, concerning commutation of sentence, §§143.51 - 143.55, 143.57, and 143.58. The amendments proposed are to capitalize titles throughout the rules. The substantive amendment to §143.57 includes language from Board Rule 143.42 for consistency.

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 bring the rule into compliance with current board practice and provide clarification for the application process. There is no anticipated economic cost to persons required to comply with the amended rules as proposed.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Mr. Gutiérrez also has determined that during the first five years that the proposed amendments are in effect, 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.

There will be no economic effect on rural communities.

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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution authorizes the board to make clemency recommendations to the Governor. Articles 48.01, Code of Criminal Procedure, authorize the board make clemency recommendations to the Governor.

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

§143.51.Commutation of Sentence.

Except in cases of treason and impeachment, upon the recommendation of the Board [board], the Governor [governor] may grant a commutation of sentence as authorized by the Texas Constitution, Article IV, Section 11.

§143.52.Commutation of Sentence, Felony, or Misdemeanor.

(a) The Board [board] will consider recommending to the Governor [governor] a commutation of sentence upon a request accompanied by the written recommendation of a majority of the trial officials.

(b) If the offender has the recommendation of two of the current trial officials and no written communication is received from the third trial official, the Board [board] shall give the remaining trial official notice that such a clemency recommendation is being considered by the Board [board].

(c) In cases tried prior to the tenure of the present office-holders, the recommendation of persons holding such offices at the time of the trial of the case may be used to bolster and support the recommendation of the current trial officials, if in compliance with the requirements of subsection (d) of this section.

(d) The requirements of a recommendation of the current trial officials for commutation of sentence must include the following:

(1) a statement that the penalty now appears to be excessive;

(2) a recommendation of a definite term now considered by the officials as just and proper; and

(3) a statement of the reasons for the recommendation based upon facts directly related to the facts of the cases and in existence, but not available to, the court or jury at the time of the trial, or a statutory change in penalty for the crime which would appear to make the original penalty excessive.

(e) If the offender is not confined in the TDCJ-CID, a certified copy of the judgment and sentence must be furnished.

§143.53.Commutation of Remainder of Jail Sentence and/or Fine after Reprieve.

The Board [board] will consider recommending to the Governor [governor] a commutation of the remainder of the time left to serve on a jail sentence and/or commutation of fine after satisfactory completion of a reprieve of the jail sentence and/or fine.

§143.54.Commutation for Jail Time Served before Sentence for Felony Conviction.

The Board [board] will consider a written application for commutation, on a felony conviction, resulting in credit for time served in jail from the time of sentence only if the applicant has been continuously in jail during the entire period for which the application is made and only upon receipt in writing of the following information from the judge of the court of conviction:

(1) the name of the convicted defendant;

(2) the cause number and court in which the conviction occurred;

(3) a statement that it was the intent of the sentencing judge, at the time of sentencing, that the applicant be given credit for the jail time served, but that such credit was not given through oversight or error, as the case may be;

(4) a statement of the exact number of days, months, or years which should be credited on the sentence;

(5) a statement that the applicant was continuously in custody and in jail for the total credit period requested;

(6) a request that the Board [board] make favorable recommendation to the Governor [governor] that such time credit be allowed.

§143.55.Commutation of Sentence for Time Out of TDCJ-CID on Reprieve.

(a) The Board [Board] will consider a written request for commutation for time out of TDCJ-CID on reprieve only for medical reprieves.

(b) A request for commutation for time out of TDCJ-CID on medical reprieve will be considered only if:

(1) the offender has returned to the TDCJ-CID;

(2) the calendar time under consideration for commutation is time the offender was actually confined as a resident patient (not an out-patient) in a hospital or institution; and

(3) the offender has in all things complied with the rules of the hospital or institution during the emergency medical reprieve.

(c) Such commutation shall not exceed the actual amount of calendar time that the offender is absent from the TDCJ-CID on emergency medical reprieve.

§143.57.Commutation of Death Sentence to Lesser Penalty.

(a) The Board [board] will consider recommending to the Governor [governor] a commutation of death sentence to a sentence of life imprisonment or the appropriate maximum penalty that can be imposed upon receipt of:

(1) a request from the majority of the trial officials of the court of conviction; or

(2) a written request of the offender or representative setting forth all grounds upon which the application is based, stating the full name of the offender, the county of conviction, [and] the execution date, and contain the information outlined in §143.42(1) - (6) of this chapter (relating to Reprieve Recommended by the Board).

(b) The written application in behalf of an offender seeking a Board [board] recommendation to the Governor [governor] of commutation of the death sentence to a lesser penalty shall be addressed to the Texas Board of Pardons and Paroles and must be delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757, not later than the twenty-first calendar day before the day the execution is scheduled. If the twenty-first calendar day before the execution is scheduled falls on a weekend or state observed holiday, the application shall be delivered not later than the next business day.

(c) All supplemental information not filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, must be submitted in writing and delivered to the Texas Board of Pardons and Paroles, Clemency Section, 8610 Shoal Creek Boulevard, Austin, Texas 78757, not later than the fifteenth calendar day before the execution is scheduled. If the fifteenth calendar day before the execution is scheduled falls on a weekend or state observed holiday, all additional information including but not limited to amendments, addenda, supplements, or exhibits shall be delivered not later than the next business day.

(d) Any information filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, must be provided by the applicant in an amount sufficient to allow review by all members of the Board [board]. An amount sufficient shall mean not less than 12 and not more than 20 copies of the duplicate item.

(e) An offender seeking a Board [board] recommendation to the Governor [governor] of commutation of the death sentence to a lesser penalty may request an interview with a member of the Board [board]. Such request shall be included in the written application or any supplement filed therewith in accordance with this section.

(f) Upon receipt of a request for an interview, the Presiding Officer (Chair) [presiding officer (chair)] shall designate at least one member of the Board [board] to conduct the requested interview. Such interview shall occur at the confining unit of TDCJ-CID. Attendance at such interviews shall be limited to the offender, the designated Board Member(s), Board [board member(s), board] staff, and TDCJ-CID staff. The Board [board] may consider statements made by the offender at such interviews and any other materials the offender delivers to the Board Member [board member] during the interview when considering the offender's application for commutation of the death sentence to a lesser penalty.

(g) The Board [board] shall consider and decide applications for commutation of the death sentence to a lesser penalty. Upon review, a majority of the Board [board ], or a majority thereof, in written and signed form, may:

(1) recommend to the Governor [governor] the commutation of the death sentence to a lesser penalty;

(2) not recommend commutation of the death sentence to a lesser penalty; or

(3) set the matter for a hearing pursuant to §143.43 of this chapter (relating to Procedure in Capital Reprieve Cases).

§143.58.Request of the Governor.

The Board [board] shall investigate and consider a recommendation of commutation of sentence in any case, upon the written request of the Governor [governor] as authorized by Texas Government Code Section 508.050.

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 26, 2018.

TRD-201800352

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480


SUBCHAPTER F. REMISSION OF FINES AND FORFEITURES

37 TAC §§143.71 - 143.74

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter F, concerning remission of fines and forfeitures, §§143.71 - 143.74. The amendments proposed are to capitalize titles 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 bring the rule into compliance with current board practice. 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.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Government Growth Impact Statement - Mr. Gutiérrez also has determined that during the first five years that the proposed amendments are in effect, 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; do not create a new regulation; do 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.

There will be no economic effect on rural communities.

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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution authorizes the board to make clemency recommendations to the Governor. Articles 48.01, Code of Criminal Procedure, authorizes the board to make clemency recommendations to the Governor.

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

§143.71.Remission of Fine.

(a) The Board [board] will consider a written application to remit a fine upon the majority written recommendation of the trial officials, said recommendation to be furnished upon official letterhead of each official.

(b) The Board [board] will also consider a written application to remit a fine, only for medical reasons, or reasons of financial hardship (loss of home or business, or the lack of support for family) or other compelling hardships only upon receipt of the following information:

(1) a request to remit a fine(s) clearly stating the medical reason for the application:

(A) a certified copy of the judgment and sentence for each cause for which the applicant is presently confined;

(B) a statement from the attending physician indicating the condition of the applicant and medical treatment recommended;

(C) a clear statement of financial responsibility for hospitalization or other treatment; and

(D) the recommendation of a majority of the trial officials that the fine be remitted to be furnished only on official letterhead of each official.

(2) a request to remit a fine(s) clearly stating the nature of the hardship for the application:

(A) a certified copy of the judgment and sentence for each cause for which the applicant is presently confined;

(B) a written statement from the prospective employer stating the nature of employment offer and whether or not the employment offered will be permanent, if duties are performed satisfactorily; and

(C) the recommendation of a majority of the trial officials that the fine be remitted to be furnished only on official letterhead of each official.

§143.72.Remission of Fine after Reprieve.

The Board [board] will consider recommending to the Governor [governor] remission of fine after satisfactory completion of a reprieve of fine upon receipt of a written application from the applicant or person acting for him and a recommendation of a majority of the trial officials, to be furnished upon official letterhead of each official.

§143.73.Remission of Bond Forfeiture.

The Board [board] will consider recommending to the Governor [governor] remission of bond forfeiture upon receipt of:

(1) a written majority recommendation of the trial officials and the commissioner's court in the county of forfeiture to be furnished upon official letterhead of each official; or

(2) a written application accompanied by the following:

(A) a letter setting out the necessity for the executive clemency;[.]

(B) a certified copy of the final judgment of forfeiture;

(C) letters from trial officials on official letterhead setting out their attitude toward remitting the bond forfeiture;

(D) a recommendation of the commissioner's court of the county in which final judgment of forfeiture was entered, by certified copy of the court's order or on the official letterhead of the court or county judge;

(E) a sworn statement as to whether or not either of the sureties received a fee for making the bond or bail involved in this application; whether or not they are then, or have been in the past, engaged in making bail or appearance bonds for a fee or any consideration of value;

(F) a summary statement of the amount of assets and liabilities of the applicant, or applicants;

(G) a statement from the sheriff or county treasurer as to whether or not the judgment or any part thereof has been paid or satisfied in any manner on official letterhead of the appropriate official; and

(H) a statement, verified by the sheriff of the county of conviction, as to whether or not the principal is in custody, or has been tried for the criminal offense subsequent to his failure to appear.

§143.74.Request of the Governor.

The Board [board] shall consider a written request for remission of fine or forfeiture in any case upon the request of the Governor [governor] as authorized by Texas Government Code Section 508.050.

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 26, 2018.

TRD-201800354

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480


SUBCHAPTER G. RESTORATION OF DRIVER'S LICENSE

37 TAC §143.81, §143.82

The Texas Board of Pardons and Paroles proposes amendments to 37 TAC Chapter 143, Subchapter G, concerning restoration of driver's license, §143.81 and §143.82. The amendments proposed are to capitalize titles 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 bring the rule into compliance with current board practice. 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.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendments will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Government Growth Impact Statement. Mr. Gutiérrez also has determined that during the first five years that the proposed amendments are in effect, 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.

There will be no economic effect on rural communities.

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 email 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 the Texas Constitution, Article 4, Section 11, and the Code of Criminal Procedure, Article 48.01. Article 4, Section 11, Texas Constitution, authorizes the board to make clemency recommendations to the Governor. Articles 48.01, Code of Criminal Procedure, authorize the board make clemency recommendations to the Governor.

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

§143.81.Preliminary Requirements.

The Board will consider recommending to the Governor [governor] restoration of a driver's or commercial operator's license only after denial of an application for an occupational driver's or commercial operator's license by the district court having jurisdiction; the applicant must furnish an official statement of the reason(s) for the court's denial.

§143.82.Subsequent Requirements.

Upon making a preliminary determination to recommend to the Governor [governor] the restoration of a driver's or commercial operator's license, the Board [board] will require from the applicant or person acting for him, certified copies of all judgments which resulted in the revocation or suspension of the license; or if the suspension or revocation resulted from administrative action by the Texas Department of Public Safety, a copy of the final departmental order of suspension is required. No further action will be taken by the Board [board] prior to receipt of the required judgment(s) or order.

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 26, 2018.

TRD-201800355

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 11, 2018

For further information, please call: (512) 406-5480