TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 6. TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CHAPTER 151. GENERAL PROVISIONS

37 TAC §151.8

The Texas Board of Criminal Justice proposes amendments to §151.8, concerning Advisory Committees. The amendments are proposed in conjunction with a proposed rule review of §151.8 as published in other sections of the Texas Register. The proposed amendments are necessary to update formatting.

Jerry McGinty, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.

Mr. McGinty has also determined that for each year of the first five year period, there will not be an economic impact on persons required to comply with the rule. There will not be an adverse economic impact on small or micro businesses. Therefore, no regulatory flexibility analysis is required. The anticipated public benefit, as a result of enforcing the rule, will be to update the existing rule.

Comments should be directed to Sharon Felfe Howell, General Counsel, Texas Department of Criminal Justice, P.O. Box 4004, Huntsville, Texas 77342, Sharon.Howell@tdcj.texas.gov. Written comments from the general public must be received within 30 days of the publication of this rule in the Texas Register.

The amendments are proposed under Texas Government Code §§492.006, 492.013, 493.003, 510.011 - 510.014, and Chapter 2110; Texas Health & Safety Code §614.002, and §614.009.

Cross Reference to Statutes: None.

§151.8.Advisory Committees.

(a) General. This section identifies advisory committees related to the Texas Department of Criminal Justice (TDCJ) and established by or under state law. The TDCJ Business and Finance Division shall annually evaluate each committee' s work, usefulness, and costs of existence, and [it shall] report that information biennially to the Legislative Budget Board.

(b) Judicial Advisory Council (JAC). The JAC exists pursuant to Texas Government Code §493.003(b). The purpose, tasks, and reporting procedures for the JAC are described in 37 Texas Administrative Code §161.21 relating to the Role of the Judicial Advisory Council. The JAC is abolished on September 1, 2025.

(c) Texas State Council for Interstate Adult Offender Supervision (council). Pursuant to [Texas Government Code] Chapter 510 of the Texas Government Code, the council shall advise the administrator for the Interstate Compact for Adult Offender Supervision and the state's commissioner to the Interstate Commission for Adult Offender Supervision, on the state's participation in commission activities and the administration of the compact. Periodic reporting takes place through meetings held prior to or following a National Commission meeting. Through these meetings, the administrator can discuss issues on a national scope with the national commissioner and the council can provide verbal feedback and direction.

(d) Advisory Committee to the Texas Board of Criminal Justice on Offenders with Medical or Mental Impairments (ACOOMMI). Pursuant to [Texas Health and Safety Code] Chapter 614 of the Texas Health and Safety Code, the ACOOMMI shall advise the Texas Board of Criminal Justice (TBCJ) and the director of the Texas Correctional Office on Offenders with Medical or Mental Impairments on matters related to offenders with medical or mental impairments. The ACOOMMI shall be given the opportunity to report to the TBCJ at each regularly scheduled meeting. The ACOOMMI is abolished on September 1, 2025.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702553

Sharon Howell

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: August 20, 2017

For further information, please call: (936) 437-6700


CHAPTER 152. CORRECTIONAL INSTITUTIONS DIVISION

SUBCHAPTER D. OTHER RULES

37 TAC §152.51

The Texas Board of Criminal Justice proposes amendments to §152.51, concerning Authorized Witnesses to the Execution of an Offender Sentenced to Death. The amendments are proposed in conjunction with a proposed rule review of §152.51 as published in other sections of the Texas Register. The proposed amendments are necessary to update formatting.

Jerry McGinty, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.

Mr. McGinty has also determined that for each year of the first five year period, there will not be an economic impact on persons required to comply with the rule. There will not be an adverse economic impact on small or micro businesses. Therefore, no regulatory flexibility analysis is required. The anticipated public benefit, as a result of enforcing the rule, will be to update the existing rule.

Comments should be directed to Sharon Felfe Howell, General Counsel, Texas Department of Criminal Justice, P.O. Box 4004, Huntsville, Texas 77342, Sharon.Howell@tdcj.texas.gov. Written comments from the general public must be received within 30 days of the publication of this rule in the Texas Register.

The amendments are proposed under Texas Government Code §492.013; Texas Code of Criminal Procedure art. 43.20.

Cross Reference to Statutes: None.

§152.51.Authorized Witnesses to the Execution of an Offender Sentenced to Death.

(a) Purpose. The purpose of this rule [section ] is to specify those adults [persons], 18 years of age or older, who are authorized to witness the scheduled execution of an offender who has been sentenced to death.

(b) Victim Witnesses. Five close relatives of the victim and a spiritual advisor may be victim witnesses. The total number of victim witnesses shall not exceed six, unless the provision in paragraph 3 of this subsection [under (b)(3) of this section] applies, at which time the number of victim witnesses shall not exceed seven.

(1) "Close relative of the victim" means the following persons in relation to the victim for whose death the offender has been scheduled for execution:

(A) The spouse of the victim at the time of the victim's death;

(B) A parent or stepparent of the victim;

(C) An adult brother, sister, child, or stepchild of the victim; [adult is defined as anyone 18 years of age or older;] or

(D) An individual who had a close relationship with the victim or has a close relationship with a relative of the victim, with the recommendation of the Victim Services Division (VSD) director and [the] approval of the Correctional Institutions Division (CID) director.

(2) If there are fewer than five close relatives of the victim, others may be permitted to attend the execution as follows:

(A) Close relatives of a victim for whose death the offender has been convicted but not sentenced to death;

(B) Close relatives of a victim for whose death the offender is unequivocally responsible, with the recommendation of the VSD director and approval of the CID director; and

(C) Surviving victim of a crime for which the offender has been convicted and sentenced to death, with the recommendation of the VSD director and approval of the CID director.

(3) If there are multiple victims involved relating to the offense for which the offender has been convicted and sentenced to death, the total number of witnesses shall be increased to seven.

(4) The spiritual advisor shall be a bona fide pastor or comparable official, such as a minister, priest, or rabbi, of the victim's close relatives' religion.

(c) Offender Witnesses. Individuals that may be offender witnesses are as follows:

(1) Five relatives or friends and a spiritual advisor, if requested by the condemned offender, are eligible to attend the execution of the condemned offender if:

(A) The condemned offender provides a list of witnesses and the name or type of spiritual advisor requested to attend the execution to the death row supervisor or warden's designee at least 14 days prior to the date of execution; and

(B) The witnesses requested are on the offender's approved Visitors List and are 18 years of age or older.

(2) If less than 14 days prior to the scheduled execution the condemned offender requests to change the names of previously submitted witnesses or requested spiritual advisor, the offender shall submit a request in writing to the CID director who shall approve or disapprove the changes.

(3) The spiritual advisor shall be a bona fide pastor or comparable official, such as a minister, priest, or rabbi, of the condemned offender's elected religion.

(d) Other Witnesses. The only persons other than those listed in subsection (b) and (c) [above] who are authorized to witness an execution are:

(1) Texas Department of Criminal Justice (TDCJ) staff or law enforcement staff as deemed necessary by the CID director;

(2) Members of the Texas Board of Criminal Justice;

(3) Inspector general or designee and [the] Office of the Inspector General assigned staff as deemed necessary by the inspector general;

(4) TDCJ chaplains;

(5) Walker County judge;

(6) Walker County sheriff;

(7) Media pool representatives consisting of:

(A) One reporter from the Huntsville Item;

(B) One reporter from the Associated Press;

(C) Three additional print media or broadcast media representatives selected from a list of applicants maintained by the TDCJ Public Information Office; and

(8) Any other person approved by the TDCJ CID director.

(e) Prohibition of Attendance. Any offender currently confined within the TDCJ is specifically denied authorization to witness the execution of an offender.

(f) Victim Notification.

(1) The VSD shall maintain a list of scheduled executions and any subsequent updates regarding significant changes pertaining to the execution, such as dates or court rulings. The Executive Clemency Section of the Board of Pardons and Paroles will provide a list of scheduled executions to the VSD in an expedient manner.

(2) The VSD is responsible for notifying the victim(s) or close relatives of the victim of the scheduled execution date, time, and location, upon request. It is the responsibility of the victim(s) or close relatives to notify the VSD of any [subsequent] address or telephone number changes and their intent to attend.

(3) The relatives of the victim, and surviving victims, shall be identified and approved by the VSD.

(4) It is the responsibility of the VSD to notify the CID director, no later than five days prior to the scheduled execution date, of the names and contact numbers for the victim's witnesses who plan to attend.

(5) The VSD shall contact the relatives of the victim, and surviving victims, and provide information regarding the written procedures affecting their participation.

(g) Requirements for the Execution Chamber. The room provided for the execution shall be arranged so that:

(1) There is sight and sound separation between any offender witnesses and any victim witnesses; and

(2) There is sound separation between the condemned offender and those in attendance, except arrangements shall be provided to allow those in attendance to hear the statements of the condemned offender.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702554

Sharon Howell

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: August 20, 2017

For further information, please call: (936) 437-6700


37 TAC §152.61

The Texas Board of Criminal Justice proposes amendments to §152.61, concerning Emergency Response to Law Enforcement Agencies or Departments and Non-Agent Private Prisons or Jails. The amendments are proposed in conjunction with a proposed rule review of §152.61 as published in other sections of the Texas Register. The proposed amendments are necessary to update formatting.

Jerry McGinty, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.

Mr. McGinty has also determined that for each year of the first five year period, there will not be an economic impact on persons required to comply with the rule. There will not be an adverse economic impact on small or micro businesses. Therefore, no regulatory flexibility analysis is required. The anticipated public benefit, as a result of enforcing the rule, will be to update the existing rule.

Comments should be directed to Sharon Felfe Howell, General Counsel, Texas Department of Criminal Justice, P.O. Box 4004, Huntsville, Texas 77342, Sharon.Howell@tdcj.texas.gov. Written comments from the general public must be received within 30 days of the publication of this rule in the Texas Register.

The amendments are proposed under Texas Government Code §492.013 and §494.008.

Cross Reference to Statutes: None.

§152.61.Emergency Response to Law Enforcement Agencies or Departments and Non-Agent Private Prisons or Jails.

(a) Definitions. The following words and terms, when used in this rule [section], shall have the following meanings unless the context clearly indicates otherwise.

(1) "Assistance" [Assistance] refers to Texas Department of Criminal Justice (TDCJ) resources provided to law enforcement agencies or departments, and non-agent private prisons or jails such as personnel, equipment, vehicles, horses, tracking pack or scent specific canines, and chemical agents.

(2) "Emergency situation" [Emergency Situation] is an event determined by a law enforcement agency that presents an immediate or potential threat to public safety if the TDCJ's assistance is not received. The situation will generally involve multiple offenders, an escape, or a hostage situation.

(3) "Law enforcement agency or department" [Law Enforcement Agency or Department] is defined as the Texas Department of Public Safety (DPS), including the Texas Rangers; a municipal police department; a county sheriff's department; a federal law enforcement agency; a university police department; a campus police department; or a school district police department.

(4) "Non-agent private prison or jail" [Non-Agent Private Prison or Jail] is any privately operated or owned prison or jail in Texas that does not have a contract with the TDCJ to house TDCJ offenders.

(5) "TDCJ facility" [TDCJ Facility] is any facility operated by or under contract with the TDCJ.

(b) Policy. It is the policy of the TDCJ to assist law enforcement agencies or departments requesting assistance in an emergency situation that presents an immediate or potential threat to public safety, such as apprehending an escapee of a municipal or county jail or a privately operated or federal correctional facility, if the TDCJ determines that providing assistance will not jeopardize the safety and security of the TDCJ and its personnel.

(c) Procedures.

(1) Request for Assistance.

(A) If a non-agent private prison or jail believes that an emergency situation has arisen, it must immediately notify the nearest law enforcement agency [in order] to qualify for the TDCJ's assistance. In the case of a non-agent private prison or jail that operates a facility holding county inmates, the facility must first notify the county sheriff [in order] to qualify for the TDCJ's assistance.

(B) The law enforcement agency shall then determine whether the situation is indeed an emergency situation as defined in subsection (a)(2) of this rule [section]. If the situation is determined to be an emergency, the law enforcement agency shall identify the scope of assistance being requested by consulting with the non-agent private prison or jail to determine:

(i) Number and type of personnel needed;

(ii) Number and type of vehicles needed;

(iii) Amount and type of riot equipment needed;

(iv) Number and type of weapons needed, including chemical agents;

(v) Number of tracking pack or scent specific canines needed; and

(vi) Number of horses needed.

(C) After a Texas Ranger, DPS sergeant or higher ranking officer, county sheriff, or municipal police chief reviews the information gathered in subsection (c)(1)(B) of this rule [section] and concurs with the scope of assistance required from the TDCJ, law enforcement agency staff may call the nearest TDCJ facility's warden or designee to request assistance. The law enforcement agency shall describe the assistance being requested and agree to have a representative available to take an active role at the site of the emergency situation when the TDCJ team arrives.

(2) Approval.

(A) The TDCJ warden or designee shall contact the appropriate Correctional Institutions Division (CID) regional director for approval to render assistance. The regional director may agree to provide assistance if the assistance will [shall] not jeopardize the safety and security of the TDCJ and its personnel.

(B) Once the TDCJ's assistance is approved, the warden or designee shall, in conjunction with the CID regional director, determine what requested resources shall be sent, based on the assessment of the information received as well as concurrent TDCJ needs. The warden or designee shall designate the senior member of the TDCJ emergency assistance team.

(3) Emergency Assistance.

(A) The responding TDCJ facility shall report the request for assistance and the facility's response to the Emergency Action Center (EAC) in accordance with AD-02.15, "Operations of the Emergency Action Center and Reporting Procedures for Serious or Unusual Incidents." The warden or designee shall be responsible for all follow-up actions as required by the directive.

(B) Arrival at the Emergency Situation Site.

(i) Upon arrival at the scene of the emergency situation site, the senior member of the TDCJ team shall be briefed by the representative of the law enforcement agency, department, or non-agent private prison or jail required by subsection (c)(1)(C) of this rule [section].

(ii) The senior member of the TDCJ team shall have sole discretion as to which TDCJ resources shall be deployed.

(C) The senior member of the TDCJ team shall be in charge of the TDCJ resources, to include personnel, at all times.

(D) If the emergency situation requires the use of tracking pack or scent specific canines, the requirements of AD-03.26, "The Use of TDCJ Canines," ["Use and Training of Tracking Pack and Scent Specific Canines,"] shall be followed.

(d) Reimbursement for Assistance. The non-agent private prison or jail shall reimburse the TDCJ for all assistance rendered, to include the cost of employees, equipment, and supplies, as well as a minimum of $1,000 for administrative overhead expenses. The TDCJ executive director may waive this requirement.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702555

Sharon Howell

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: August 20, 2017

For further information, please call: (936) 437-6700


CHAPTER 159. SPECIAL PROGRAMS

37 TAC §159.1

The Texas Board of Criminal Justice proposes amendments to §159.1, concerning Substance Abuse Felony Punishment Facilities (SAFPF) Eligibility Criteria. The amendments are proposed in conjunction with a proposed rule review of §159.1 as published in other sections of the Texas Register. The proposed amendments are necessary to clarify that offenders with United States Immigration and Customs Enforcement (ICE) detainers are not eligible to participate in substance abuse felony punishment facilities and to update formatting.

Jerry McGinty, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.

Mr. McGinty has also determined that for each year of the first five year period, there will not be an economic impact on persons required to comply with the rule. There will not be an adverse economic impact on small or micro businesses. Therefore, no regulatory flexibility analysis is required. The anticipated public benefit, as a result of enforcing the rule, will be to ensure that offenders with ICE detainers are not considered for SAFPF placement.

Comments should be directed to Sharon Felfe Howell, General Counsel, Texas Department of Criminal Justice, P.O. Box 4004, Huntsville, Texas 77342, Sharon.Howell@tdcj.texas.gov. Written comments from the general public must be received within 30 days of the publication of this rule in the Texas Register.

The amendments are proposed under Texas Government Code §§492.013, 493.009; Texas Code of Criminal Procedure art. 42A.303.

Cross Reference to Statutes: None.

§159.1.Substance Abuse Felony Punishment Facilities Eligibility Criteria.

(a) Offenders with a [detainer filed by the] United States Immigration and Customs Enforcement detainer are not eligible to participate. Offenders with [or] a felony detainer are not eligible to participate unless the jurisdiction that placed the detainer agrees not to seek custody of the offender [defendant] until after the program and continuum of care requirements have been completed. Exceptions may be made on a case-by-case basis. Offenders sentenced to a prison term and ordered to participate in a substance abuse felony punishment facility (SAFPF) program as a condition of community supervision shall be transferred to a SAFPF six to nine months prior to their projected release date on the [prison] sentence.

(b) Offenders shall be physically and mentally capable of uninterrupted participation in a rigorous, stressful, and confrontational therapeutic community program. Offenders with special medical or behavioral health [psychological] needs shall meet the eligibility criteria for a [the] Special Needs SAFPF as defined in both the Community Justice Assistance Division's (CJAD's) CJAD/SAFPF Procedure Manual and the [and the] Substance Abuse Treatment Operations Manual.

(c) Offenders who have signs or symptoms of acute drug or alcohol withdrawal or who require detoxification are not eligible to participate until they have detoxified.

(d) Pretrial detainees are eligible to participate if ordered to do so pursuant to a drug court program established under Texas Government [Health and Safety] Code §§123.001 - 123.009 [§§469.001 - 469.009] or a similar program. A pretrial detainee is not eligible to participate in a [the] SAFPF program unless the detainee has been unsuccessfully discharged from an outpatient substance abuse treatment program and a residential substance abuse treatment facility, if available, as a condition of a pretrial order for the charges that are currently pending.

(e) Offenders convicted of offenses for which sex offender registration is required are not eligible to participate.

(f) Offenders under the age of 18 are not eligible to participate.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702556

Sharon Howell

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: August 20, 2017

For further information, please call: (936) 437-6700