TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT

CHAPTER 380. RULES FOR STATE-OPERATED PROGRAMS AND FACILITIES

SUBCHAPTER A. ADMISSION, PLACEMENT, RELEASE, AND DISCHARGE

DIVISION 6. PAROLE AND DISCHARGE

37 TAC §380.8595

The Texas Juvenile Justice Department (TJJD) proposes amendments to §380.8595, concerning Parole Completion and Discharge.

The amended rule will remove the requirement that youth with offenses of high severity or who were ever classified as Type A Violent must remain on parole until age 19. These youth may now successfully complete parole and be discharged before reaching age 19.

The amended rule will also add two new requirements for the successful completion of parole: 1) youth with a committing or revocation offense of high severity must successfully complete 90 days on the minimum level of parole supervision and 2) all other youth must successfully complete 30 calendar days on the minimum level of parole supervision.

In addition, the amended rule will clarify that youth may qualify for discharge upon successfully completing 40 hours of approved constructive activities each week for the four consecutive weeks immediately prior to the discharge date (instead of each week for at least 30 days).

The amended rule will also remove the condition that a youth must never have been classified as a Type A Violent offender nor had a committing offense of high severity in order for that youth to be discharged prior to the completion of parole requirements to enlist in the military.

The amended rule will also clarify that youth placed out of state may be discharged when the youth is adjudicated by a juvenile court or convicted by a criminal court in the placement state and that approval from the executive director is not required for such discharges.

In addition, the amended rule will remove the condition that a youth must never have been classified as a Type A Violent offender nor had a committing offense of high severity in order for that youth to be discharged prior to the completion of parole requirements to obtain appropriate services and also will clarify that a designee of the executive director may approve such discharges.

The amended rule will also clarify that special discharges for reasons other than those listed in the rule may be approved by a designee of the executive director.

The amended rule will also add that TJJD discharges a youth when the youth is placed on actively supervised adult probation for conduct that occurred in a TJJD or contract residential facility while the youth was not on parole status and the youth spent at least 180 days in county jail awaiting the disposition.

In addition, the amended rule will specify that TJJD notifies the youth's parole officer at least ten calendar days before the youth's discharge or as soon as practicable, if the youth is not on parole status at a home location at the time of discharge, and that TJJD notifies the chief juvenile probation officer for the county in which the youth will be living after discharge at least ten calendar days before the youth's discharge or as soon as practicable, if that county is different than the one that committed the youth.

FISCAL NOTE

Mike Meyer, Chief Financial Officer, has determined that for each year of the first five years the amended section is in effect, there will be no significant fiscal impact for state or local government as a result of enforcing or administering the section.

PUBLIC BENEFITS/COSTS

Rebecca Walters, Senior Director of Youth Placement, Re-entry, and Program Development, has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of administering the section will be the availability of rules that have been updated to conform to current laws, to more accurately reflect TJJD’s current operational practices, and to move the agency toward best practices in supervision and discharge of youth on parole.

Mr. Meyer has also determined that there will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. No private real property rights are affected by adoption of this section.

PUBLIC COMMENTS

Comments on the proposal may be submitted within 30 days after publication of this notice to Josh Bauermeister, Policy Writer, Texas Juvenile Justice Department, P.O. Box 12757, Austin, Texas, 78711, or e-mail to policy.proposals@tjjd.texas.gov.

STATUTORY AUTHORITY

The amended section is proposed under Texas Human Resources Code §242.003, which authorizes TJJD to adopt rules appropriate to the proper accomplishment of its functions and to adopt rules for governing TJJD schools, facilities, and programs, and §245.001, which authorizes TJJD to employ parole officers to investigate, place, supervise, and direct the activities of a parolee to ensure the parolee’s adjustment to society in accordance with the rules adopted by the TJJD Board.

No other statute, code, or article is affected by this proposal.

§380.8595.Parole Completion and Discharge.

(a) Purpose. This rule establishes [The purpose of this rule is to establish] criteria for discharging certain youth from the jurisdiction of the Texas Juvenile Justice Department (TJJD).

(b) Applicability. This rule applies only to non-sentenced offenders. Refer to §380.8565 of this title for information relating to discharging [discharge of] sentenced offenders.

(c) Discharge Criteria.

(1) Discharge Due to Successful Completion of Parole.

(A) Youth [who have never been classified as a Type A Violent offender and whose committing offense(s) are of moderate or low severity] may qualify for discharge upon completion of the following criteria:

(i) successful completion of the following amount of time on the minimum [pre-discharge] level of parole supervision (or equivalent, if on parole in another state):[;]

(I) 90 days for a youth with a committing or revocation offense of high severity; or

(II) 30 calendar days for all other youth; and

(ii) compliance with the youth’s conditions of parole/placement [parole, based on the individual needs assessment];

(iii) no pending criminal charges or delinquency petitions or referrals [criminal charges];

(iv) completion of 60 hours of approved community service while on parole status [as specified in the youth’s conditions of parole (credit is granted for community service performed while in a medium restriction facility, if applicable)]; and

(v) completion of 40 hours of approved constructive activities [as defined on the conditions of parole] each week for the four consecutive weeks immediately prior to the discharge date [at least 30 days]. Constructive activity includes, but is not limited to, time spent working, attending school, attending treatment or counseling [treatment/counseling], completing community service, actively searching for employment, and/or [and] providing direct supervision to a child.

(B) The executive director or [his/her] designee may approve the discharge of a youth who has not yet completed [prior to completion of] the requirements in subparagraph (A) of this paragraph when consideration of the [a] youth’s committing offense, behavior, history, and progress toward [towards] completion of parole/placement [parole] conditions justifies an earlier discharge.

(2) Direct Discharge from Residential Facility by Release Review Panel. Pursuant to §380.8557 of this title, the Release Review Panel may discharge a youth directly from a residential facility if it determines: [placement upon a finding that]

(A) the youth is no longer in need of rehabilitation; or

(B) [that TJJD is no longer the most suitable location to provide the needed rehabilitation.

(3) Discharge Due to Age.

[(A) Youth committed to TJJD before February 1, 2009, who were ever classified as Type A Violent offenders or youth committed to TJJD on or after February 1, 2009, with committing or revocation offenses of high severity are discharged on:]

[(i) the day before the 19th birthday, if the youth is assigned to a residential facility; or]

[(ii) the last working day prior to the 19th birthday, if the youth is assigned to a non-residential placement.]

(A) [(B)] Any youth who has not previously been discharged due to successful completion of parole or by the Release Review Panel is discharged on:

(i) the day before the 19th birthday, if the youth is assigned to a residential facility; or

(ii) the last working day prior to the 19th birthday, if the youth is assigned to a non-residential placement.

(B) [(C)] A youth on parole status who is discharged due to age is considered to have successfully completed parole if the youth:

(i) is not in jail or on abscond status;

(ii) has no pending criminal charges or delinquency petitions or referrals [criminal charges]; and

(iii) has substantially complied with all parole requirements.

(4) Discharge Due [due] to Special Circumstances.

(A) Youth [who have never been classified as a Type A Violent offender and do not have a committing offense of high severity] may be discharged prior to completion of parole requirements to enlist in the military. Only the executive director may approve such a discharge.

(B) In addition to other discharge criteria listed in this rule, a youth [Youth] placed out of state may be discharged [when requested by the placement state for satisfactory adjustment or] when the youth is adjudicated by a juvenile court or convicted by a criminal court in [court action is taken by] the placement state. [Only the executive director may approve such a discharge.]

(C) Youth who have completed length-of-stay requirements and who are unable to progress in the agency’s rehabilitation program because of mental illness or intellectual disability must [mental retardation may] be discharged as specified in §380.8779 of this title.

(D) Youth [who have never been classified as a Type A Violent offender and do not have a committing offense of high severity] who are age 18 or older may be discharged prior to completion of parole requirements in order to obtain appropriate services. Only the executive director or designee may approve such a discharge.

(E) Upon approval from the executive director or designee, youth [Youth] may be discharged for special circumstances other than those addressed in subparagraphs (A) - (D) of this paragraph [upon the executive director’s approval].

(5) Other Types of Discharges. TJJD discharges a youth when:

(A) the youth is sentenced for a minimum of 180 days in a state or county jail as part of the disposition of a criminal case;

(B) [(A)] the youth is placed on actively supervised adult probation for conduct that occurred while on TJJD parole status;

[(B) the youth is sentenced for a minimum of 180 days in a state or county jail as part of the disposition of a criminal case;]

(C) the youth is placed on actively supervised adult probation for conduct that occurred while the youth was in a TJJD or contract residential facility and not on parole status and the youth spent at least 180 days in county jail awaiting the disposition;

(D) [(C)] the court orders a reversal of the commitment;

(E) [(D)] records are closed following the [a] youth’s death; or

(F) [(E)] the youth is sentenced to the Texas Department of Criminal Justice - Correctional Institutions [Institutional] Division.

(d) Notification.

(1) TJJD immediately notifies the youth of the discharge and provides the youth and the parent/guardian a written explanation of procedures for sealing records.

(2) TJJD notifies the following at least ten calendar days before the youth’s discharge or as soon as practicable:

(A) the committing juvenile court;

(B) the prosecuting attorney;

(C) the youth’s parole officer, if the youth is not on parole status at a home location at the time of discharge;

(D) the [county] chief juvenile probation officer for [in] the county in which the youth will be living after discharge if that county is different than the one that committed the youth [to which the youth is being moved]; and

(E) any entity that has issued an active warrant for the youth.

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 March 3, 2017.

TRD-201700835

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: April 16, 2017

For further information, please call: (512) 490-7278


PART 15. TEXAS FORENSIC SCIENCE COMMISSION

CHAPTER 651. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER A. ACCREDITATION

37 TAC §651.7

The Texas Forensic Science Commission ("Commission") proposes an amendment to 37 TAC §651.7 to 1) add the forensic discipline "forensic odontology used for purposes of human identification and age assessment, not to include bite mark comparison related to patterned injuries"; 2) add the forensic discipline "testing and/or screening conducted for sexually transmitted diseases"; and 3) remove the forensic discipline "forensic hypnosis" from the list of forensic disciplines exempt from statutory Commission Accreditation. The amendments are necessary to update the rule language in Title 37, Part 1, Chapter 651, Subchapter A, §651.7 to reflect adoptions made by the Commission at its October 5, 2016 quarterly meeting, excluding forensic odontology used for human identification and age assessment from accreditation oversight in Texas and removing forensic hypnosis from the list of forensic disciplines exempt from accreditation oversight in Texas and at its February 10, 2016 meeting, excluding testing and/or screening conducted for sexually transmitted diseases from accreditation oversight in Texas. The adoption was made in accordance with the Commission’s accreditation authority to exempt from the crime laboratory accreditation process a type of analysis, examination, or test as described in Texas Code. Crim. Proc. art. 38.01 §4-d(c).

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendment will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There will be no anticipated effect on local employment or the local economy as a result of the proposal.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission has also determined that for each year of the first five years the proposed amendment is in effect, the anticipated public benefit will be accurate and updated rules.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission has determined that the proposed amendment will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person who is required to comply with the rule as proposed.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by March 29, 2017 to be considered by the Commission.

Statutory Authority. The amendment is proposed under Texas Code Crim. Proc. art 38.01 §4-d.

Cross reference to statute. The proposal affects 37 Texas Admin. Code §651.7.

§651.7.Disciplines, Subdisciplines, and Procedures Exempt from Statutory Commission Accreditation.

(a) This section describes a discipline, subdiscipline, or procedure that is 'forensic analysis' but is not subject to accreditation by one or more recognized accrediting bodies.

(b) Even though a discipline or subdiscipline is forensic analysis, the Commission has determined that no accreditation is appropriate or available from a recognized accrediting body for the following disciplines, subdisciplines, or procedures and a laboratory may not apply for Commission accreditation for:

(1) sexual assault examination of the person;

(2) forensic anthropology, entomology, or botany;

(3) environmental testing;

(4) facial or traffic accident reconstruction;

(5) serial number restoration;

(6) polygraph examination;

(7) voice stress, voiceprint, or similar voice analysis;

[(8) forensic hypnosis;]

(8) [(9)] statement analysis;

(9) [(10)] profiling; [or]

(10) forensic odontology for purposes of human identification or age determination, not to include bite mark comparison related to patterned injuries;

(11) testing and/or screening conducted for sexually transmitted diseases; or

(12) [(11)] other discipline or subdiscipline so determined by the Commission, including those identified and listed at the Commission's website.

(c) A request for exemption shall be submitted in writing to the Commission.

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 February 27, 2017.

TRD-201700778

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: April 16, 2017

For further information, please call: (512) 936-0661