Administrative Code Provisions | 37 Tex. Admin. Code ยง 95.55 | 2018
(a) Purpose. The purpose of this rule is to establish a procedure to be followed when the second highest level of due process is afforded a youth. Rule violations proven through a Level II Hearing will be part of the youth's disciplinary record.
(b) Definitions. Definitions pertaining to this rule are under § 95.50 of this title.
(c) Applicability. The Level II hearing procedure is appropriate due process in the following instances:
(1) imposing a major disciplinary consequence in accordance with § 95.3 of this title;
(2) placing a youth in the Redirect program in accordance with § 95.17 of this title;
(3) placement of a youth on parole assigned to a home or home substitute in a medium restriction facility for non-disciplinary reasons;
(4) placement of a youth whose initial assignment was to a medium restriction facility in a high restriction facility for non-disciplinary reasons;
(5) with a few exceptions in procedure as identified in § 95.71 of this title:
(A) admission to the Corsicana Stabilization Unit; and
(B) extension of time to treat a psychiatric disorder in connection with a Corsicana Stabilization Unit placement (as appropriate); or
(6) deposit of contraband money into the student benefit fund found in possession of a youth while in a residential program.
(d) Criteria.
(1) To impose a major consequence, place a youth in the Redirect program, or place contraband money in the student benefit fund, the hearing manager must find:
(A) the youth committed an eligible rule violation; and
(B) there are no extenuating circumstances.
(2) To transfer a youth to a higher restriction level for non-disciplinary reasons; the hearing manager must find there are no less restrictive placements appropriate and available for the youth.
(3) For criteria for admission to or extension in the Corsicana Stabilization Unit, see § 87.67 of this title.
(e) Procedure.
(1) When a youth in a residential facility is alleged to have committed a major rule violation or a minor rule violation requiring a security referral, an investigation into that violation must be started within 24 hours of the alleged offense and completed within 24 hours of the time started. A decision on whether or not to pursue a Level II Hearing must be made within 24 hours of the completion of the investigation. Any delay in these timelines must be justified with documentation of circumstances that made it impossible, impractical, or inappropriate to meet them. The investigation must be conducted by a staff member other than the one reporting the alleged violation.
(2) The appropriate staff person shall request permission to schedule a hearing from the facility administrator, parole supervisor, quality assurance administrator, or their designees.
(3) For hearings regarding rule violations or contraband money, the hearing shall be conducted as soon as practical but not later than seven days, excluding weekends and holidays, after the alleged violation was committed or the money was found. A delay of more than seven days in holding the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier.
(4) For hearings regarding a non-disciplinary transfer, the youth may waive the hearing in writing and agree to the transfer. If the youth does not waive the hearing, the hearing must be held prior to the transfer. If good cause compels a pre-hearing transfer, the hearing shall be held within three calendar days after the transfer.
(5) If the youth is being held in a security unit due to potential interference with a pending a Level II hearing, the hearing shall be conducted within five calendar days from the date of admission to detention. A delay of more than five days in holding the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier.
(6) Failure to document circumstances making it impossible, impractical, or inappropriate to timely investigate and hold the hearing may result in a dismissal or reversal of the decision of the hearing manager.
(7) The appropriate facility administrator, parole supervisor, quality assurance administrator, or their designees will appoint a hearing manager and staff representative.
(8) The hearing manager shall be a Texas Youth Commission (TYC) staff member who is trained to function as a hearing manager.
(A) The hearing manager shall not be a person who: (i) witnessed any part of the alleged violation of which the youth is accused; or (ii) made a decision to place the youth in the security unit or in a detention program pending the hearing.
(B) If the youth is currently assigned to an institution, the hearing manager shall be someone not directly responsible for supervising the youth.
(C) If the youth is currently assigned to a halfway house, the hearing manager shall not be a member of the halfway house staff.
(D) If the youth is currently assigned to a contract program, the hearing manager shall not be the TYC quality assurance specialist assigned to that youth.
(E) If the youth is currently assigned to his/her home, the hearing manager shall not be the parole officer assigned to the youth's case or the quality assurance specialist who works directly with the youth's supervising officer.
(9) The staff representative shall be responsible for assembling all evidence and giving all notices required for the hearing as well as presenting all evidence at the hearing.
(10) The youth shall be given written notice of his/her rights not less than 24 hours prior to the hearing. The youth's rights are:
(A) the right to remain silent;
(B) the right to be assisted by an advocate at the hearing;
(C) the right to confront and cross-examine adverse witnesses who testify at the hearing;
(D) the right to contest adverse evidence admitted at the hearing;
(E) the right to call readily available witnesses and present readily available evidence on his/her own behalf at the hearing; and
(F) the right to appeal the results of the hearing. The youth's right to appeal cannot be waived.
(11) The youth shall be assisted by a TYC employee, contract employee, or volunteer who has been trained to serve as an advocate. The youth shall be given the opportunity to choose an advocate from those trained. The youth's choice shall be honored unless there is a showing of unavailability for any reason. If the youth makes no choice, or the first choice is unavailable for any reason, the hearing manager shall appoint the advocate. In cases where the youth is not proficient in the English language, the appointed advocate shall be proficient in English as well as the primary language of the youth or an interpreter shall be used.
(12) The youth and the youth's advocate shall be given written notice of the reasons for calling the hearing, the proposed action to be taken, and the evidence to be relied upon not less than 24 hours prior to the hearing. After receipt of the written notice and consultation with the advocate, the youth may waive the 24-hour notice period by agreeing, in writing, to an earlier hearing time.
(13) All youth in TYC facilities and secure contract placements shall be given the hearing packet (all written materials relied upon and a list of witnesses) at least 24 hours in advance of the hearing. The paperwork may be taken away from the youth if the youth is misusing the papers in any way.
(14) If the youth is less than 18 years of age, reasonable efforts shall be made to inform the youth's parent(s) of the time and place of the hearing not less than 24 hours prior to the hearing. If the youth is 18 years of age or older, such notice shall be provided only with the youth's authorization to release information.
(15) Hearings to impose major consequences, to place a youth in the Redirect program, or to place contraband money in the student benefit fund shall consist of two parts: factfinding and disposition, and shall be held where the youth resides unless the hearing manager determines that some other site is more appropriate. During the fact-finding portion of the hearing, only evidence concerning the alleged misconduct may be considered; the youth's prior behavior shall not be considered unless disposition is reached.
(16) Hearings regarding non-disciplinary transfers shall consist of fact finding to determine if the transfer is necessary because there are no less restrictive placement options appropriate and available for the youth.
(17) The hearing shall be recorded and the recording shall be the official record of the hearing. The recording and the hearing packet shall be preserved for six months following the hearing.
(18) The youth shall be present during the hearing unless the youth waives his/her presence or his/her behavior prevents the hearing from proceeding in an orderly and expeditious fashion.
(A) A voluntary waiver of the youth's presence shall be in writing and signed by the youth and his/her advocate. If the youth does not sign the waiver for any reason, his/her presence is not waived.
(B) If the youth waives his/her presence, the hearing may be conducted by teleconference.
(C) If a youth is excluded for behavioral reasons, or to secure the testimony of a witness, those reasons shall be documented in the hearing record. The advocate shall be present during the testimony and shall have the opportunity to question the witness.
(D) A true plea cannot be entered on behalf of a youth who has waived his/her presence at the hearing.
(19) A victim who appears as a witness should be provided a waiting area where he/she is not likely to come in contact with the youth except during the hearing.
(20) Witnesses will take an oath prior to testifying. Witnesses may testify by telephone or videoconference if in-person testimony is impractical or unfeasible. If testimony is provided by phone, persons required to be present at the hearing must be able to simultaneously hear the testimony.
(21) The hearing manager, staff representative, and advocate may question each witness in turn. The staff representative and advocate may offer summation statements.
(22) To protect the confidential nature of the hearing, persons other than the youth, the youth's advocate, staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the hearing manager; however, any person except the staff representative or the youth's advocate may be excluded from the hearing room if his/her presence causes undue disruption or delay of the hearing. The reason(s) for the exclusions are stated on the record.
(23) With the exception of the youth or staff representative, any person designated as a witness may be excluded from the hearing room during the testimony of other witnesses and may be instructed to refrain from discussing his/her testimony with anyone until all the witnesses have been dismissed.
(24) The hearing manager may permit a witness to testify outside the presence of the youth if such appears reasonable and necessary to secure the testimony of the witness. If the youth is excluded from the hearing room during testimony, the advocate for the youth shall be present during the testimony and shall have the opportunity to review the testimony with the youth before questioning the witness.
(25) The youth shall not be called as a witness unless, after consulting with the advocate, he/she waives his/her right to remain silent on the record. Neither the hearing manager nor the staff representative may question the youth unless he/she waives the right to remain silent.
(A) The youth's failure to testify shall not create a presumption against him/her.
(B) A youth who waives the right to remain silent may only be questioned concerning those issues addressed by his/her testimony.
(26) All credible evidence may be considered, irrespective of its form.
(27) The standard of proof for all disputed issues is a preponderance of the evidence.
(28) The hearing manager may recess or continue the hearing for such period(s) of time as may be necessary to ensure an informed and accurate fact-finding or to secure evidence the hearing manger determines may be relevant.
(29) The hearing manager will announce his/her findings of fact.
(30) If there is a finding of true, the hearing manager shall proceed to disposition and provide the youth an opportunity to present extenuating circumstances, with the exception that extenuating circumstances are not applicable to admissions or extensions of stay in the Corsicana Stabilization Unit or to transfers for non-disciplinary reasons. If no extenuating circumstances are found, the hearing manager shall order the disposition recommended by the staff representative.
(A) A hearing manager's decision that a youth will be transferred is final subject to approval by the appropriate administrator.
(B) A hearing manager's decision that a youth will be issued a consequence to be served at the youth's current placement is final subject to an appeal by the youth.
(C) If extenuating circumstances are found incident to the rule violation(s) proved at a Level II hearing, the youth shall not be assigned the requested dispositions or any other major consequences. However, the true finding will remain in the youth's record and can be considered by the youth's treatment team or parole officer in determining appropriate actions to address the youth's behavior. If extenuating circumstances are found incident to a youth's possession of prohibited money, the hearing manager determines the appropriate way to dispose of the money.
(31) The hearing manager shall prepare a report of his/her findings, which includes grounds for the hearing, evidence relied upon, and the decision.
(32) The youth is informed of his/her right to appeal to the agency's chief administrative officer at the close of the hearing. The pendency of an appeal shall not preclude implementation of the hearing manager's dispositional decision.
(33) A copy of the hearing report is given to the youth immediately following the close of the hearing.