TJJD DUE PROCESS HEARINGS MANUAL I. DUE PROCESS AND TJJD HEARINGS Due process is the constitutional concept that that the law and legal proceedings must be fair. The type of “process” that is “due” is dependent on what is at stake. The minimum process due in any type of legal proceeding is “notice” and the “opportunity to be heard in an orderly proceeding.” The more at stake, the more “process” “due.” For example, in a criminal case in which one’s freedom is at stake, the allegations must be proven “beyond a reasonable doubt.” There are rules about what types of evidence can be admitted, including rules against hearsay evidence and rules to ensure the evidence presented is credible and reliable. In a civil case where the things in issue are not related to one’s freedom, there is a lower standard of proof (preponderance of the evidence or clear and convincing evidence, depending on the case) and there are less restrictive rules of evidence. This is an example of varying levels of “process” being “due.” TJJD has administrative hearings for various reasons, frequently to impose some form of discipline on a youth to address misbehavior. The aim of any disciplinary measure is to impose the least restrictive consequences which are effective in correcting the behavior of the youth and ensuring safety and order. The youth committed to TJJD are expected to follow reasonable and appropriate rules of conduct. Discipline of youth is necessary to keep order and to provide a safe and constructive environment for youth, staff, and others. Youth must have access to rules by posting the rules conspicuously in facilities and/or programs. These agency-wide rules may be restated in greater detail or otherwise adapted to accommodate a particular program in order to help clarify expected behavior in that program. Rule violations result in disciplinary consequences proportionate to the severity and extent of the violation(s). All disciplinary procedures must provide appropriate due process. Rule violations are classified as major or minor rule violations for youth in facilities and as parole rule violations for youth on parole. Rule violations occur when a youth knowingly violates the rules, attempts to violate the rules, or helps someone else violate the rules. Repeated rule violations can result in more serious disciplinary consequences. Major rule violations are serious violations that threaten the safety and security of the facility. Minor rule violations are acts of misconduct that reflect a youth’s immaturity, lack of responsibility, and reactivity which, if unchecked, could lead to more serious major rule violations. Major and minor rule violations are listed in GAP.380.9503. Major rule violations, as well as minor rule violations that become so serious that a youth must be sent to security, can subject a youth to major consequences, including a thirty day loss of privileges. Certain rule violations can result in a youth being assigned to the Redirect program while other violations may result in a youth having to serve an additional portion of his minimum length of stay before earning eligibility to transition to a medium restriction facility.

Minor rule violations should be addressed by staff on the dorm through informal techniques. If they continue, minor consequences, such as a short-term loss of privileges, may be imposed. Parole rule violations are violations of parole for which a youth can be sanctioned. Minor sanctions include curfew restrictions and additional community service hours. Serious or persistent parole rule violations may result in revocation of parole. Parole rule violations are listed in GAP.380.9504. The level of due process in each TJJD hearing is different based on what the purpose of the hearing is. This manual is designed to provide guidance and instruction to staff participating in TJJD administrative hearings. A. Level I Hearings – Brief Overview Level I Hearings have the most due process because they are hearings in which a youth’s conditional liberty – parole – is at stake. Because parole is only a “conditional liberty” (i.e. youth was granted release from a facility before youth was discharged from TJJD and keeping his freedom is based on following certain conditions), the standard of proof is not as high as in a criminal proceeding. The standard of proof is “preponderance of the evidence.” Preponderance of the evidence means “the greater weight and degree of credible evidence admitted at the hearing.” In other words, whether the credible evidence makes it more likely than not that a particular proposition is true. The Texas Civil Rules of Evidence generally apply in TJJD hearings, which means that persons with direct knowledge of alleged conduct must be brought in to testify in person. With limited exceptions, hearsay evidence is not admitted. Level I Hearings have an attorney who serves in the role of fact-finder. This person works for TJJD and is called an Administrative Law Judge. These hearings also have a defense attorney who represents the youth. The defense attorney is someone who contracts with TJJD but who works to represent the youth at the hearing. B. Level II Hearings – Brief Overview Level II Hearings have the second highest level of due process, but it is much less than in a Level I Hearing. Level II Hearings are used for several reasons, including:

1. disciplinary transfer from a medium to high restriction facility (institutional status youth only);

2. non-disciplinary transfer from parole to medium or medium to high restriction facility;

3. placement in the Redirect program; 4. placement in the Phoenix program; 5. suspension of privileges for 30 days;

6. extension of time to earliest date eligible for transition from high to medium restriction placement;

7. seizure of contraband money; and 8. admission to or extension in a TJJD Stabilization Unit.

In order for a rule violation to be a part of a youth’s disciplinary record, it must be proven through at least a Level II Hearing. Only rule violations that are a part of the youth’s disciplinary record may be used to demonstrate the youth is not eligible for facility release onto parole and may be considered by the Release Review Panel to extend a youth’s stay in TJJD. All credible evidence, irrespective of its form, is admissible in a Level II Hearing. Types of evidence include live testimony, written statements, video, photographs, nurse’s notes, etc. A TJJD staff member trained to serve as a hearing manager will serve as the impartial fact-finder in a Level II Hearing. A TJJD staff member trained to serve as an advocate will assist the youth in questioning evidence and presenting his case. Another trained TJJD staff member trained will serve as the staff representative, who is responsible for gathering and presenting the evidence against the youth. C. Level III Hearings – Brief Overview In high restriction facilities, Level III Hearings are used only to determine if a youth should be admitted or extended in the security unit. These hearings are very informal and consist of a decision authority considering all available evidence, giving the youth the opportunity to present evidence, and determining what rule violation, if any, was committed and whether or not security admission (or extension) criteria is present. There is no advocate appointed for the security admission hearing, but there is one appointed for all extension hearings. In medium restriction facilities and on parole, Level III Hearings are used to impose minor consequences on youth. These are informal hearings in which a decision authority considers all available evidence, allows the youth to present evidence, and determines what rule violation, if any, was committed and what the appropriate minor consequence for that rule violation is. Consequences should be related to the particular violation and designed to correct the youth’s behavior. D. Level IV Hearings – Brief Overview Level IV Hearings are used to determine if a youth will be detained in a community detention facility (juvenile or adult) or in a TJJD security unit until a pending Level I or II Hearing can be conducted. If the pending hearing is a Level II disciplinary hearing, only youth who are assigned to a medium restriction placement on institutional status may be detained as a temporary assignment in a high restriction security unit via a Level IV

Hearing. (Youth assigned to a high restriction facility must have Level III Hearings to remain in the security unit when there is a Level II Hearing pending.) Level IV Hearings can also be used to hold institutional status youth, regardless of assigned location, in a TJJD security unit if county charges are pending or filed or the youth is awaiting a court hearing or trial if certain other criteria are met. II. LEVEL I HEARINGS – IN DETAIL Level I Hearings are held only when staff is seeking to revoke the parole of a youth. A parole youth may be assigned to a home placement or to a medium restriction placement, such as a halfway house. Regardless of where the youth is assigned, if he is on parole status, the only way to return him to a high restriction facility is through a Level I Hearing. In order to revoke parole, staff must prove at the hearing that the youth has committed either a law violation (federal, state, or city) or a parole rule violation listed in GAP.380.9504. In addition, staff must prove that revocation of parole is in the best interest of the youth and/or the community and/or that the youth is in need of further rehabilitation at a TJJD or contract placement. This portion of the manual is designed to provide practical information on everything related to a Level I Hearing as well as legal information regarding the rules and procedures of a Level I Hearing. If, after reading this manual, staff sill has a question regarding a hearing, they may contact an attorney in Central Office at (512) 424-6180 for assistance. The attorney may help with determining the right allegation, with wording an allegation, with determining which witnesses need to testify, and may advise on the sufficiency of the evidence. A. Two-Part Hearing Level I Hearings are two-part hearings. The first part is called “Fact Finding.” In Fact Finding, staff must prove by a preponderance of evidence that the youth committed a violation of law or a parole rule violation listed in GAP.380.9504. Major rule violations in GAP.380.9503 do not apply to youth on parole except in limited circumstances, such as youth assigned to medium restriction placements. However, regardless of where a youth is assigned, the major rule violations in GAP.380.9503 do constitute parole rule violations and cannot be used as the basis for a revocation hearing. The Rules of Evidence that apply in the Fact Finding portion of the hearing are described later in this manual. The second part of the hearing is called “Disposition.” In Disposition, staff must prove by a preponderance of evidence that parole revocation is in the best interest of the youth and/or community and/or that the youth is in need of further rehabilitation at a TJJD or contract placement. More detailed information regarding Disposition is described later in this manual.

B. Notification regarding possible violation by youth If a youth commits a violation of law and is arrested or detained, staff will likely be notified by local authorities. If a youth has violated a TJJD parole rule that is not a violation of law, staff may know about the violation or may be made aware of it by the youth’s parents or some organization such as Southwest Key Tracking to which the youth has been assigned. Once a report of a violation has been received, staff should decide whether to seek parole revocation or to address the violation informally through a Level III Hearing. Making this decision involves gathering as much evidence as possible to determine if there is sufficient evidence to prove the violation as well as evaluating whether or not parole revocation is in the best interest of the youth and/or community and/or if the youth is in need of further rehabilitation at a TJJD or contract placement. More detailed information about this is contained later in this manual. C. Directive to Apprehend or “Hold” If staff plans to seek parole revocation and believes the youth meets criteria to be detained until the Level I Hearing, staff should issue a Directive to Apprehend if a youth is not in custody or a “Hold” if the youth is in custody. Contact the TJJD OIG for instructions and assistance on issuing Directives and Holds. A Level IV Hearing will likely be necessary to keep the youth detained until the hearing. The Level IV process is described later in this manual. D. Requesting and getting approval for a Level I Hearing As soon as staff decides that a Level I Hearing is needed, he must obtain authorization for the hearing from his parole supervisor, quality assurance supervisor, or halfway house superintendent. Approval must be granted before any other steps are taken. Factors to consider in determining whether a Level I Hearing is appropriate include the nature of the offense, available evidence to prove the offense, whether or not disposition criteria can be proven, possible extenuating circumstance, and any pending local prosecution. E. Location of the Level I Hearing Once approval has been obtained, staff must determine where the hearing will be held. Policy states that unless the Administrative Law Judge directs otherwise if good cause exists, the hearing shall be held in the community where the offense occurred. It may sometimes be necessary to hold the hearing elsewhere. However, wherever the hearing is held, the youth must have access to his attorney and all witnesses must be willing to travel to the site of the hearing. If that is not possible, staff will need to arrange to transport the youth back to the community where the offense occurred.

Staff must ensure that a suitable room is located and reserved with the appropriate authorities. Usually a conference room in a local juvenile detention facility, courthouse, parole office, halfway house, jail, or TJJD facility is adequate. The room should be large enough to accommodate 6 or more people for 2 to 3 hours comfortably with adequate space, seating, and ventilation. The room needs to be private. Local authorities/staff need to be made aware of the hearing so they can direct witnesses or other participants to the proper location. The staff representative for the hearing should arrive early to ensure the room is available and arranged for the hearing. If possible, staff should be at the check in area for when other participants arrive so that everyone will be escorted at the same time in order to ensure everyone is in the right place. Staff must ensure that the victim and his family are provided a waiting area that is separate from the youth and/or his family. F. Security at the hearing Because Level I hearings are frequently tense and potentially volatile, staff should determine if extra security is necessary. Many youth will remain orderly and well-behaved at a hearing, but occasionally security personnel may be needed. Staff should make arrangements to have security personnel at the hearing if necessary. The Administrative Law Judge should be notified of the situation and will determine whether the youth should be restrained during the hearing. G. Submitting a Level I Hearing Request to Legal Once a decision has been made to request a Level I Hearing and the parole supervisor has approved such request, staff is responsible for emailing a completed LS-177 form to the TJJD Hearings Coordinator at hearings.coordinator@TJJD.state.tx.us. The hearing must be requested as soon as possible after the alleged violation was committed but no more than seven working days after unless it was impossible, impractical, or inappropriate to have requested the hearing earlier. Examples of when it is impossible, impractical, or inappropriate include: staff not learning of the offense until some time after it was committed; the youth’s whereabouts being unknown; or the youth needing mental or medical issues tended to. To count seven working days, the day after the incident counts as Day 1. Weekends and holidays do not count. The hearing must be requested by 5:00 p.m. on Day 7 of the count.

If the youth is not on the requesting staff person’s caseload, that person should indicate for whom he is conducting a courtesy hearing. A courtesy hearing is just that, a hearing being conducted out of courtesy to assist the assigned parole officer. This is typically done if the youth is detained in a part of the state that is some distance from the home parole site. A hearing done by any member of the halfway house staff where the youth is assigned is not a courtesy hearing.

If the youth is detained, indicate the location, address, and phone number of where the youth is detained. If the youth is not in detention pending the hearing, list the youth’s home address and phone number. Include all allegations, date(s) of offense(s), and incident numbers (from the CCF-225 in the computer system).

“PSW notes” are to inform Legal of reason(s) for delay when the most recent violation alleged occurred more than seven days prior to the hearing request, days that the PSW is off (do not include duty days or report days because they will not be scheduled around), or any other information helpful to Legal in scheduling.

Indicate the placement recommendation and where transportation should pick up youth after the hearing (if revoked). The staff representative should also have a plan developed for the youth in the event parole is not revoked. This may or may not include a change in placement.

Indicate whether or not there is a possibility of a true plea by phone (yes or no). The youth will have to speak with his attorney before a phone hearing can be scheduled. Phone hearings are allowed only when the youth plans to plead true to the allegation and when there will be limited testimony in Disposition. More information on this is provided herein.

Provide information on the site of hearing, including address and phone number (this is for the hearing you are requesting, not to tell Legal where prior hearings have been held). The staff representative is responsible for securing a hearing location that will allow all necessary participants to be present.

Legal will determine the time and date of the hearing by coordinating the Administrative Law Judge’s schedule and defense attorney availability. Every attempt will be made to set the hearing within ten days of the date it is requested and it will often be set earlier than that. If a hearing is set on staff’s “report day” or “duty day,” he must make arrangements for someone to assist him with his other obligations so that he may be present at the hearing.

If the youth is indigent, Legal will secure a defense attorney. If Legal cannot locate an attorney for the date originally set for the hearing, the hearing will be rescheduled until an attorney can be secured. Staff holding the hearings are responsible for keeping the defense attorney informed of any delays or changes in hearing time or date.

H. Multiple youth as co-actors

If two (or more) TJJD youth are alleged to be involved in the same offense as co-actors, staff requesting the hearing must inform Legal of that fact at the time the hearings are requested. If the youth do not have defenses that conflict with one another, one hearing may be scheduled and one defense attorney may be appointed to represent both youth. If staff plans to request separate hearings and use the testimony of one youth against the other, staff must notify Legal when the hearing is requested to determine how many defense attorneys must be appointed and how to schedule the hearings. The ALJ must also be aware of this before the hearing to be sure to provide the youth notice about his right against incriminating himself.

Any questions about requesting or scheduling a hearing should be directed to the Hearings Coordinator at 512-424-6180 or 512-424-6189.

I. County charges and deferrals If there are either juvenile or adult county charges pending against the youth, staff will need to contact the local authorities to find out if they plan to pursue the charges and where they are in the process. If the youth was under 17 when the offense was committed, the pending charges will be with the juvenile court. Staff should speak with the juvenile authorities (most likely the juvenile probation department) to find out if they want TJJD to defer its parole revocation hearing until the county has completed its charges. If that is the case, staff must get a written request from the local authorities (district attorney, juvenile probation chief, etc.) asking that TJJD defer its proceedings until the local authorities have finished. TJJD may not keep a detainer or “hold” on a youth when it has deferred charges to the local authorities. If their proceedings result in the youth being recommitted to TJJD, there will be no need to hold a parole revocation hearing. If their proceedings do not end with the youth being recommitted to TJJD, staff can then decide to pursue a Level I parole revocation hearing. Staff has 7 working days from the time the county proceedings end to request a Level I Hearing in order for it to not be considered stale. The written deferral request as well as evidence of when TJJD was made aware that the county process was completed must be included with the hearing packet. If the request to defer is not in writing, then staff’s later request to proceed will be considered stale. If the youth was 17 or over when the offense was committed, the pending charges will be with the adult system. Staff should speak with the authorities (district attorney or police) to find out if charges are pending. If the pending charges are not a first degree felony, staff can choose to defer to the adult system without getting a written request. The best time to defer is when the youth is likely to get a sentence in the adult system that will result in him being discharged from TJJD (for example, 6 months in county jail or any amount of supervised adult probation). If the pending charge is a first degree felony, then a written request from local authorities is necessary before staff can defer the charges. Once a parole officer defers to the adult system, he must remove any detainer or “hold” on the youth, which means the youth may be able to bond out of jail. Once the adult proceedings are finished (or if charges are dropped), staff has 7 working days to request a Level I Hearing if circumstances warrant it. If a deferral request is received or TJJD decides to defer on its own (when permissible), all allegations against the youth, including technical violations, are deferred and no hearing is held. TJJD does not obtain “permission” from the local authorities to proceed with its charges. Except in the case of pending adult charges that are not a first-degree felony, if the local authorities do not ask TJJD to defer to them, TJJD must proceed by requesting the hearing within the required 7 days or the allegations will be stale and staff will not be able to request a hearing later.

J. Detention pending Level I Hearing using a Level IV Hearing – GAP.380.9561 Youth are not placed in detention for the purpose of punishment. Youth may be detained pending a Level I Hearing if certain criteria are met. A Level IV Hearing is required to be completed or waived in a timely manner in order to detain a youth pending the Level I Hearing. A failure to timely hold or get a waiver of a Level IV Hearing will result in the youth being released until his Level I Hearing. The timelines for holding Level IV Hearings vary depending on if the youth is in a TJJD institution or in a county detention facility or jail. For detailed information regarding Level IV Hearings, see “Level IV Hearings in Detail” in this manual. K. Telephone True Plea – GAP.380.9553 TJJD policy allows for Level I Hearings to be conducted by phone if the youth wishes to plead true to the allegation(s) against him, no translator is needed, his due process rights will not be significantly diminished by a telephone hearing, and the staff representative has no objection to a telephone hearing. A true plea by phone can be arranged if the youth has spoken to his attorney and he and the attorney have completed Form LS-165, which is the Waiver of an On-Site Level I Hearing. Practically speaking, a telephone hearing should only be scheduled when the youth does not plan to contest the evidence presented in Disposition (i.e. the Summary of Adjustment). If some of the facts as stated in that documented will be challenged, it is best to have the hearing on-site, even if the youth plans to plead true to the allegation(s). In the event there will be a phone hearing, the youth’s attorney should notify the Legal Department in advance of the hearing to schedule it. A telephone hearing will follow the same procedure as any on-site Level I Hearing; the only difference is the Administrative Law Judge is on the phone rather than at the site of the hearing. The Administrative Law Judge may adjourn the phone hearing if the Administrative Law Judge decides the true plea cannot be accepted or if additional evidence becomes necessary in the disposition phase of the hearing. If a Level IV Hearing is necessary due to a failed telephone hearing, the Administrative Law Judge can serve as the decision authority. When a telephone hearing is scheduled, the original date and time of the on-site hearing will remain on the calendar until the phone hearing is successfully completed. In the event there is a failed telephone hearing, the hearing will proceed on the day it was originally scheduled. Therefore, staff should not tell witnesses in advance of the phone hearing that they will not need to appear, as there is always a chance that a phone hearing will fail and the on-site hearing will need to be held. L. Disposition Only Hearing – Interstate Compact If a youth is in another state through Interstate Compact and is returned to Texas due to a parole violation, a fact finding document from the other state (court or hearing document)

is all that is necessary to show the youth violated parole. This will be a Disposition only hearing, meaning all that will be addressed is whether or not criteria for parole revocation are present. M. Level I pre-hearing preparation The majority of staff’s work on a Level I Hearing will be done in pre-hearing preparation. Depending on the allegation, different people will need to be contacted. If there is a criminal violation, the local police should be contacted so that staff can get a copy of the police report. This will provide staff information on the victims and other witnesses. Staff will need to contact victims and witnesses and ensure they will appear at the hearing. 1. Fact Gathering Staff will typically be notified of a possible parole violation shortly after the youth has been detained, unless staff knows of a violation and issues the Directive to Apprehend after becoming aware of the violation. Once staff is made aware that a youth has been detained, he needs to visit the youth in detention or jail as soon as possible and must regularly visit the youth as required by GAP.380.9741. Staff needs to provide the youth with a notice of rights, notice of the allegations for which he is being investigated, and the possible consequences of that violation. There is a Notice of Rights Form (LS-128) and a Youth Statement Form (LS-129). Staff should take the forms when he visits the youth. Staff should have the youth read the Notice of Rights Form or read it to the youth if necessary. Staff must answer any questions the youth has about his rights and ask him to answer the questions on the form and sign it in the appropriate places. If there are any doubts regarding whether the youth understands his rights, those doubts must be removed before discussing the allegation with the youth. Staff may ask the youth to explain his rights to make sure he understands them. Remember that staff may be called to testify if there is a question regarding the voluntariness of a youth’s statement. For a statement to be voluntary, the youth must have understood his rights. 2. Youth Statements If, after signing the Notice of Rights Form, the youth wishes to make a written statement, he should write it himself on the Youth Statement Form. If the youth wants staff to write while he dictates, staff may do so. However, it is best to have an impartial witness listen to staff read the youth’s rights to him and watch as staff transcribes what the youth says. This should be a witness who will be available to testify at the hearing if necessary. A youth’s written statement is admissible in a Level I Hearing only if it is signed by the youth and accompanied by evidence indicating that the youth made the statement voluntarily after being advised of: his right to remain silent, the possible consequences of giving the statement, his right to consult with an attorney prior to giving the statement, and his right to have an attorney provided for him if he is indigent. The youth does not have to be taken to a magistrate before giving a written statement, although a magistrate’s juvenile

warning form and determination of voluntariness is less likely to come under attack by the defense attorney. Both types of written statements are admissible at the hearing under most circumstances. A youth’s recorded oral statement (tape recorded, videotaped, or otherwise electronically recorded) concerning his possible involvement in illegal activities is admissible if it is accompanied by evidence on the recording that it was given after the youth was advised of the rights above. All voices on the recording must be identified and the recording must be accurate and unaltered. A copy of every electronic recording of any statement made by the youth must be provided to the defense attorney. A transcript of the recordings is not sufficient. A youth’s non-recorded oral statement is only admissible in a Level I in certain, limited circumstances. It is admissible if it relates facts that are found to be true and tend to establish the youth’s guilt. For example, if the youth tells police where to find the stolen property and they find it where he said it would be, then his statement related facts that were shown to be true (i.e. where the property would be found) and it tended to establish his guilt (because it was stolen property and he knew where to find it). A youth’s oral statement is also admissible if it was res gestae of the conduct that is the subject of the hearing or of the arrest. This means if the statement was made at the time the youth was committing the offense or at the time he was being arrested, it is admissible. For example, if a police officer pulls a bag of marijuana out of the youth’s backpack and the youth says, “That’s mine,” that statement is admissible. A youth’s oral statement is admissible even if it does not meet one of the first two criteria as long as the statement was not made as a result of law enforcement or TJJD staff questioning of the youth. Finally, any statement made by the youth, whether or not it was as a result of questioning by law enforcement or TJJD staff, is admissible as long as it is voluntary and bears on the youth’s credibility as a witness. For example, if the youth told police he did commit the offense and then testified in a Level I Hearing that he did not, his prior statement that he committed the offense would be admissible. Understand, though, that this statement is admissible only to show the youth is not being truthful; it is not admissible to prove that he committed the offense because he told police he had done so. Even if a youth’s statement is admissible and goes toward proving he committed the offense, the youth’s statement alone is insufficient evidence to prove the offense. There must be independent evidence that the offense the youth describes did occur. For example, even if a youth provides a written statement that he used drugs, if he pleads not true at the hearing, this written statement is not sufficient to prove he used drugs. Staff will need to have submitted a urine specimen to a lab and have an affidavit from that lab showing the specimen was positive for a substance. If a youth admits to sexual assault, there must be some evidence that the sexual assault he is describing did in fact occur, such as testimony from the victim that she was raped, even if she cannot identify the attacker.

3. Offense Reports Staff should read all police reports, incident reports, or other offense reports as soon as they are available. These reports will give staff information on the possible allegations and on the strengths and weaknesses related to proving those allegations. Staff will also get the names of potential witnesses from the reports as well as information on any physical evidence or other written reports that might exist. If the report is incomplete or hard to understand, staff should speak directly with the person who made the report. Remember that the person who made the report may not have any first hand knowledge of the incident described in the report. Staff should also contact the person who determined an offense occurred (arresting police officer, for example), as that person is likely to be the one with the most information. Sometimes the report may not be available; therefore, staff will need to start the investigation without the report, even though there may not be much information to start with. Although staff needs to gather all the offense reports and will need to provide them to the youth’s defense attorney, the reports are not admissible at a Level I Hearing because they are considered hearsay. Evidentiary rules will be discussed later in this manual. 4. Witnesses Staff needs to talk to every person who has knowledge of the alleged violation(s). Offense reports may not be accurate. Even if accurate, they will likely be a summary of statements from other people and will not include all of the details of the incident. In speaking to witnesses, staff may discover the witness did not see or hear what the offense report says he saw or heard. Staff may also learn that the witness’ statement is suspect and it may destroy his credibility or might learn that the witness has additional information about the offense. Staff will have to bring in witnesses with first hand knowledge of the facts regarding the allegation to testify at the hearing, so he needs to speak with them to determine who needs to testify. Staff should also attempt to speak with any defense witnesses of whom he is made aware. If the defense witnesses refuse to speak with staff, he should ask the defense attorney for a brief summary of the expected testimony. Remember, the defense attorney is not required to give advance notice of any witnesses he plans to call; however, many will if asked. Staff is responsible for getting witnesses to appear at the hearing. Unless staff can guarantee a witness will be present, such as when the witness is TJJD staff, subpoenas should be issued. Staff may also need to subpoena documents or video. The subpoena is the LS-170 Form. The subpoena is to be handed personally to the witness (or records custodian if for documents/video/etc) if at all possible. If staff delivers it to someone like a desk sergeant to pass to the police officer witness, staff should call the police officer witness several days before the hearing to ensure he will attend the hearing. If the defense attorney requests certain people or documents be subpoenaed, staff needs to issue those subpoenas unless doing so will result in undue harassment, inconvenience, or expense to the staff. If the

attorney is not satisfied with the agency’s informal subpoena, contact the Legal Department. Although policy says the subpoena will be issued by the Administrative Law Judge, in reality staff typically issues the subpoena and signs it in the name of the assigned Administrative Law Judge. Texas Government Code Ann. §2001.103 sets the amount for witness payments and reimbursements and will most likely come from the budget where the staff representative is located. In reality, funds are extremely limited and witnesses are normally not compensated unless they have traveled a great distance or gone to great expense to attend the hearing. Staff should never promise any witness that witness fees will be paid without first getting approval from the supervisor. If for any reason an enforceable subpoena is required, staff should contact the Chief Administrative Law Judge to discuss the matter and to determine if one will be issued. 5. Accomplices An accomplice is another person who acted in concert with the youth to commit the violation. An accomplice may be called to testify at the hearing. However, an accomplice’s testimony alone is not enough to prove an allegation. There must be additional evidence to corroborate the accomplice’s testimony that also links the youth to the offense. Two accomplices can corroborate one another. Alternatively, other evidence can be used. Staff should speak with any accomplice to determine if he is credible and if his testimony contradicts any other information. 6. Real evidence Real evidence is tangible things that are necessary to prove an allegation. If staff determines that real evidence is necessary, he should examine the objects and make arrangements to produce them at the hearing. Examples of real evidence include a knife that is being offered to show that it is a deadly weapon. Most of the time, real evidence is not necessary. Someone can describe the object or a photograph of the object can be used, as long as there is someone present who can identify the item in the photograph as the same item involved in this offense. Admitting real evidence and photographs at a hearing will be discussed later in this manual. 7. Documentary evidence Most documents are not admissible at a Level I Hearing because they constitute hearsay. There are, however, some documents that are admissible under TJJD rules. The most common are certain affidavits. If the owner of property that was stolen, entered, or used without permission did not see the youth commit the offense and has no relevant information to provide other than that he owned the property in question and did not grant his consent for it be taken, entered, or used, he may complete an affidavit of non-consent. The most common offenses for the use of this affidavit are burglary (home, building, vehicle), theft, criminal trespassing, and unauthorized use of a vehicle.

An affidavit may also be used to show that a substance or urine specimen was tested at a lab and to show the results of that test. Affidavits can be used to identify a signature in a forgery case. They can be used to admit business records. They can be used to establish lack of consent in an escape case. An affidavit cannot be used to describe the youth’s actions in an offense. Affidavits must be notarized by a notary public. Bear in mind that the defense attorney may attack the affidavit. However, if the Administrative Law Judge determines it is necessary, the hearing may be continued to secure the presence of the affiant at the hearing. Other documents that are admissible include a judgment from a court showing a youth pled “guilty” or “true” to an offense. A plea of “no contest” or nolo contendere is not sufficient. The order or another document, such as an indictment or other charging instrument, must show the date of the offense and describe the behavior in order for it to be sufficient to prove the offense. If two documents are required, there must be something, such as a Case Number, establishing that the two documents are for the same matter. If there is no way to link the two documents together, staff will need to bring in witnesses to prove the offense; the guilty plea will not be sufficient to prove the violation. For a document to be admitted, staff must identify the document on the record. If it is Conditions of Parole or another document containing a written reasonable request the youth is required to follow, unless the defense attorney is willing to allow the document to be admitted without objection, the staff at the hearing must be able to testify he went over the document with the youth and had the youth sign the document in his presence. If the document is a due process hearing document that is part of the youth’s master file or was received through Interstate Compact (such as the court documents committing the youth to TJJD), it will be considered reliable and admissible for all purposes. If the document is being admitted under TJJD’s provision that documents that a reasonably prudent person would rely upon in the conduct of his own affairs, it must be a document that is clear as to what it is, such as an estimate to repair a particular item that is on the letterhead of the repair company. 8. Post-hearing placement Staff must develop a plan for placement for if the youth is revoked and for if the youth is not revoked. If the youth is revoked for a misdemeanor or technical violation, the youth may be eligible for placement in a medium restriction facility, depending on the answers to section D. of Form CCF-060 (for data entry purposes, this is referred to as the 060R). Staff must be prepared to answer the three questions on that section at the hearing. After the hearing, staff must do the data entry and indicate his recommendation for placement in either medium or high restriction and the reasons for that recommendation. The ALJ will send his recommendations as well. (Note: The data entry must be done for every youth revoked at a Level I, even if not eligible for medium restriction).

Staff must also develop a plan for placement for if the youth is not revoked. This may include returning the youth home or may include an alternate placement. Staff must not wait until after the hearing to develop this plan. N. Level I Hearing Packet A hearing packet will be prepared for every Level I Hearing. This will include things like the notices, allegation(s), witness list, police reports, youth statements, documentary evidence, and disposition documents. The hearing packet must be provided to the youth’s defense attorney at least three working days before the hearing. The day of the hearing does not count and the day the packet is given to the attorney the packet does not count – there must be three working days between those two days. For example, if the hearing is on Monday, the packet must be delivered to the defense attorney no later than the preceding Tuesday. Because of these timelines, it is important that staff works quickly to assemble the evidence and get the packet ready. Staff may have to hand deliver the hearing packet to ensure it gets to the defense attorney on time. It is preferable for staff to make an appointment to meet with the defense attorney and speak openly about the youth, providing all necessary materials and information. If necessary, staff can speak with the defense attorney to ask if the defense attorney will waive the three-day notice period. The defense attorney is to receive the entire packet and must also receive information on the date, time, and place of the hearing and name, address, and phone number of the staff representative and the Administrative Law Judge. The defense attorney is also entitled to reasonable access to all information concerning the youth that is held by TJJD. For example, the attorney has the right to look at the youth’s file at a reasonable time and location. Materials from the file may be copied at the defense attorney’s own expense. The attorney is required to respect the confidential nature of the information and will comply with reasonable requests to withhold sensitive information from the youth or his family (GAP.380.9990). Staff must also present a hearing packet to the Administrative Law Judge. This can be provided to the Administrative Law Judge at the hearing site or can be provided in advance. The ALJ will arrive at least 15 minutes in advance of the hearing to review the packet. 1. Notices The youth must be given written notice of his rights before staff speaks to him about the allegations. This was discussed previously in this manual and should be reviewed if necessary. The proper form to use is the LS-128. The youth must also be given written notice of the date, time, and location of the hearing; the allegation(s) against him; and the possible consequence no less than three working days prior to the hearing. The proper form to use is the LS-167, Youth Notice of Level I Hearing. Staff must also make reasonable efforts to give the youth’s parents notice of the same information no less than three working days prior to the hearing. This notice may be delivered in person, by mail, or by phone. The proper form to use is the LS-168, Family Notice of Youth Hearing. If the youth is 18 years of age or older, staff may not give his parents any information regarding the hearing

unless the youth has consented in writing on Form LS-020. Copies of all notices must be included in the hearing packet. 2. Allegations Once staff has identified the proper allegations, he should go to Appendix A of this manual, find the allegations, and write them out. The information in parenthesis needs to be completed with the actual information. The manual should be followed exactly, as the allegations are prepared in a way that sets out everything that must be proven to prove an offense. Staff should make sure they have sufficient evidence to prove every element of the offense. Staff should direct any questions regarding allegations to the Hearings Section by calling the Chief Administrative Law Judge or the Hearings Coordinator. 3. Witness List/Summary of Evidence The witness list must include the name of each witness expected to testify and a brief summary of the expected testimony. For example:

a. Mary Smith will testify she is the owner of the automobile in question and did not give anyone consent to drive it.

b. Bill Jones will testify that he saw Johnny Scofflaw driving Ms. Smith’s automobile on the date and time alleged.

c. Officer Jerry Johnson will testify that he arrested Johnny Scofflaw in Ms. Smith’s automobile on the date and time alleged.

Witnesses can only testify regarding things about which they have personal knowledge. Witnesses should be listed in the order they are expected to testify. Witnesses whose testimony is not relevant should not be included. Examples of this are a police officer whose only role was transporting a youth from the scene to jail or a person whose only information about the incident came from other people. In addition to a witness list, there should be an evidence summary. This is a list of each piece of evidence staff plans to admit with a brief description and explanation of why it is being admitted. For example:

a. Statement of Youth: Written Statement given by youth after magistrate’s warning and notice of rights given to the youth.

b. Knife with 7-inch blade: Recovered from youth’s pocket by police officer. Will be identified by the victim as the knife used by the youth during the assault.

c. White sweater with green and blue stripes: Worn by youth during the assault, recognized by several witnesses, and recovered by police in the youth’s bedroom.

4. Youth Statements

If the youth has given any written statements, they should be included in the packet even if they are not admissible. Admissibility of statements was discussed earlier in this manual and should be reviewed for additional information. 5. Witness Statements and Affidavits If any witness has made a written statement, it should be included in the packet. These are helpful to the Administrative Law Judge and the defense attorney in questioning the witnesses; however, unless the statement qualifies as an exception to the hearsay rule, it will not be admitted into evidence. Affidavits are written statements that have been properly notarized. As described earlier, certain affidavits are admissible. However, any affidavit that describes a youth’s conduct or otherwise describes what happened during the incident is not admissible unless there is a valid hearsay exception. 6. Police Reports/Incident Reports Although not admissible into evidence, police reports and/or incident reports are to be included in the hearing packet. They will help the Administrative Law Judge and defense attorney understand what happened in the incident and more effectively question the witnesses. 7. Disposition Documentation A Summary of Adjustment (CCF-810) must be completed for every hearing. This document is used to provide an accurate picture of the youth and his activities while on parole, both positive and negative. It is important to include information on when and why the youth was committed to TJJD; any prior parole periods and revocations; any issues the youth has had while on parole and what has been done to address those issues; any constructive activities the youth has engaged in while on parole; any special needs the youth has that can best be addressed at TJJD; what community resources have been used to address the youth’s behavior while allowing him to remain in the community; and any actions the youth has engaged in while on parole that demonstrate he is a threat to himself, others, or property. There is further discussion about Disposition later in this manual.

O. Level I Hearing General Rules 1. Punctuality The scheduled time for the hearing is when the hearing is to begin. Everyone should arrive to the hearing site with sufficient time to do any prehearing preparation and begin on time. Hearings are often scheduled two hours or less apart and it is important to begin on time. If staff is aware of a need to make any changes in the hearing time or place, including cancelling the hearing, he must notify the Hearings Coordinator as soon as possible and before the Administrative Law Judge leaves to attend the hearing. Notification should be made by email to hearings.coordinator@TJJD.state.tx.us and by phone. Staff must verify with a live person that notice of the cancellation or change was received. Be mindful that ALJs may be traveling long distances for hearings and set a travel schedule around other hearings and need to have notice of changes as far in advance as possible. 2. Professionalism The Administrative Law Judge, staff, and defense attorneys are professionals and are expected to project that image. In the context of a hearing, this requires a dignified appearance and demeanor, courtesy, and a controlled presence under pressure. In addition to its necessary primary function, every hearing is also an educational event. The youth may learn something about responsibility and consequences. The defense attorney, the youth’s family, each witness, and each observer (if any) will certainly form an opinion of TJJD based upon their perceptions of the two TJJD officials present at each hearing. Each staff member and administrative law judge is expected to conduct himself in a professional manner. Staff should dress more formally for a hearing than they would for regular contacts with the youth. 3. Role of the Administrative Law Judge The Administrative Law Judge is assigned by the Hearings Coordinator. They are assigned by location, so the same ALJ will typically cover the same areas of the state. The role of the ALJ is to conduct the hearing, question witnesses, decide on the credibility of the witnesses, determine whether or not there is sufficient evidence to prove the allegation(s), and determine whether or not the youth’s parole will be revoked. 4. Role of Staff Staff is responsible for deciding to request the hearing, for conducting the prehearing investigation, and for contacting and securing the presence of the witnesses and evidence necessary for the hearing. Once the hearing begins, most of staff’s work is finished. During the fact finding phase, staff is primarily an interested observer. If staff has personal knowledge relevant to an allegation, he will be sworn in and will testify. Otherwise, staff’s participation will center on asking any questions of witnesses that might be necessary to get in important evidence. Sometimes staff is aware of information a witness has that the

ALJ is not aware of; if the ALJ does not ask a question to reveal that information, staff will be given the opportunity to do so. Staff will likely be asked to testify during the disposition phase of the hearing to provide information about the youth’s behavior while on parole. If the staff doing the hearing is doing so as a courtesy for someone else, that staff is expected to be familiar with the youth’s background and capable of answering questions about the youth and should have the youth’s master file at the hearing. It is also a good idea to have the youth’s parole officer or other PSW participate by phone to ensure someone is present who can answer questions. An inability to provide sufficient information about the youth may result in a youth’s parole not being revoked because the criteria for revocation were not proven by a preponderance of evidence. 5. Exclusion of Observers or Youth TJJD hearings are not open to the public. Therefore, the ALJ has the discretion to exclude people other then the youth, the youth’s attorney, and the staff representative. Interns, TJJD staff, and other interested people will usually be permitted to observe the hearing if the youth and defense attorney do not object. If staff suggests security personnel be present at the hearing, the ALJ will normally allow that person to be present. Any person may be excluded if his presence causes undue disruption or delay of the hearing. The youth may be excluded in two instances. One is if he is causing an undue disruption or delay in the hearing. Another is if the only way to secure the testimony of a witness is to remove the youth from the room. If the youth is removed, the defense attorney must be allowed to review the witness’ testimony with the youth prior to cross examining the witness. 6. The Record The hearing will be electronically recorded and the Administrative Law Judge will note the youth’s name and TJJD number, the defense attorney’s name, staff’s name, and the names of witnesses or others present at the hearing. This will be the official “record” of the hearing. The ALJ will also determine if the defense attorney has had sufficient time to consult with the youth and if the defense attorney is familiar with TJJD proceedings. 7. “The Oath” and “The Rule” Before taking any evidence, the Administrative Law Judge will administer an oath to all witnesses. They will swear or affirm that they will testify truthfully. Once all witnesses have been sworn, the ALJ will invoke “the Rule.” That means that, with the exception of the youth and staff representative, all witnesses will be excluded from the hearing room during the testimony of other witnesses and will be instructed to refrain from discussing their testimony with anyone until the hearing has ended. If the youth decides to testify, he will be sworn in. If the youth’s parents will be testifying during fact-finding, they will be excluded from the room but will be allowed to attend during disposition.

P. Level I Hearing Procedure 1. Explanation and Rights At the beginning of the hearing, the ALJ will explain to the youth the purpose of the hearing, the process that will be followed, and the possible consequences if the allegation is found true. It will be explained that the hearing is a two-part hearing. The first part is Fact Finding, which is for the purpose of determining whether or not the youth committed any of the alleged violations presented at the hearing. The second part is Disposition, which is for the purpose of determining whether or not parole revocation is appropriate under TJJD policy. The youth will be informed that the hearing will not proceed to Disposition unless the ALJ finds that at least one allegation has been proven. The youth will be given the opportunity to ask questions during this introduction. The ALJ will also explain the youth’s rights to him, which are: the right to remain silent and that doing so will not be held against him by the ALJ in making his decision; the right to a defense attorney and the right to request a recess to speak with the attorney; and the right to appeal any decisions. If the youth, after consulting with his attorney, decides to waive his right to remain silent and testify, the youth may be cross-examined only regarding the things he testified about. That means questions unrelated to his testimony may not be asked. 2. Notification Regarding Offense Severity If the allegation against the youth is one that qualifies as a “high severity” offense under the CCF-040, the youth will be given notice of this and what it means. A youth with a “high severity” offense will undergo additional reviews before being released, will not be discharged from TJJD until reaching age 19, and may have additional parole restrictions when released. 3. Allegations and Amendments The allegations will be read into the record. The ALJ will review them for any problems in the way they are written. Minor amendments may be made and any objection by the defense attorney to the form of the allegation will be addressed. If the allegation is amended because it fails to adequately notify the youth of the alleged misconduct, a continuance may result. The staff representative and defense counsel may stipulate (agree as true) to factual issues not in dispute. Such stipulations shall be made on the record at the hearing.

4. Plea The youth shall be given the opportunity to respond “true” or “not true” to each allegation. A response of “not true” will require that evidence be presented at the hearing to prove the allegation. A response of “true” will require the ALJ to question the youth about the voluntariness of the plea, about his understanding of the possible consequences of the plea, and about whether he is admitting to the alleged conduct. If it is determined that the “true” plea was knowingly and voluntarily given, the ALJ will get sufficient information from the youth to supply a factual basis for every element of the allegation. It is the responsibility of the ALJ to ensure the youth understands the allegation and admits that the underlying facts are true. If any of the elements in the allegation are inaccurate, it is appropriate to amend the allegation as long as what it is amended to still includes the elements of the offense. If the ALJ accepts the “true” plea, the fact-finding witnesses are dismissed and the hearing continues to disposition. If the youth does not admit to all of the facts necessary to prove the allegation or the ALJ is not satisfied that the “true” plea is knowingly and voluntarily made, then a “not true” plea must be entered and evidence must be presented. 5. Testimony The ALJ will question each of staff’s witnesses at his discretion. The questioning will be based on the description of the witness’ expected testimony as set out in the Summary of Evidence as well as any information contained in police or other written reports. Once the ALJ has questioned each witness, the staff and defense attorney will have the opportunity to question the witness. The defense attorney will begin the questioning of each defense witness, followed by the ALJ and staff. 6. Documentary and Physical Evidence All documentary evidence will be marked for identification by the ALJ. All admitted documentary evidence will be retained in the hearing file. Any physical evidence may be retained at the discretion of the ALJ. Normally, physical evidence is not retained if an adequate description of the item can be entered into the record. 7. Motions and Objections The ALJ will rule immediately on any motions or objections made at the hearing. All such motions, objections, and rulings shall be included in the ALJ’s written report. Motions and

objections may be made by staff or the defense attorney and should be as specific as possible. 8. Defenses and Affirmative Defenses The defense attorney may raise a defense or put on an affirmative defense to the allegations. The purpose of a defense is to overcome the culpability of the youth. If a defense is proven, the allegation will be found not true. Defenses may be a denial, a legal justification, or an exception to the sufficiency of the evidence. The penal code lists several affirmative defenses applicable to TJJD hearings, including but not limited to: insanity (8.01); mistake of fact (8.02); mistake of law (8.03); duress (8.05); entrapment (8.06); justification (9.02); necessity (9.22); self-defense (9.31); defense of third person (9.33); protection of property (9.41 – 9.43); consent to assaultive conduct (22.06). Please note that while Penal Code 8.04 lists intoxication, voluntary intoxication is not a defense to the misconduct. The youth has the burden of proving any offered affirmative defense by a preponderance of the evidence. There are also some affirmative defenses specific to particular violations. These will not be discussed, but staff should be aware that they exist. 9. Summation and Argument After all testimony and evidence has been received, the ALJ will offer the defense attorney and staff the opportunity to briefly summarize the relevant evidence and make a closing argument. 10. Findings of Fact

After hearing all the evidence regarding the allegation(s), the ALJ will verbally state whether or not he finds the allegation(s) to be true. The ALJ may find that the evidence proves a different allegation than what was originally alleged and may amend the allegation to comport with the evidence as long as the original allegation gave sufficient notice of the conduct found true and the amended allegation is the same level or a less serious offense than originally alleged. The ALJ may not find a more serious offense than what was alleged unless the allegation has been amended on the record and the defense attorney has waived proper notice or a right to a continuance. If the ALJ does not find that any allegation was proven, the hearing ends and the youth remains on parole. If the ALJ finds any allegation was proven, the hearing proceeds to disposition.

11. Disposition – Revocation Criteria In order for a youth’s parole to be revoked, the staff representative must prove that parole revocation is in the best interest of the youth and/or of the community and/or that the youth is need of further rehabilitation at a TJJD or contract placement. Staff must complete a Summary of Adjustment (CCF-810) providing an accurate picture of the youth’s adjustment on parole, specifically addressing certain factors. The ALJ is looking at the “totality of circumstances” related to the youth’s time on parole to determine if parole revocation is appropriate. One such factor is severity of the offense proven at the hearing. This means more than the offense level (felony, misdemeanor, technical). It means how harmful or dangerous the offense was or how pervasive the misconduct. For example, a Robbery is a dangerous, violent offense; repeatedly failing to report is not. However, failing to report over a long period of time is considered severe. Additionally, failing to do anything on parole, even over a short period of time, is considered severe. Another factor that is being considered is any behavioral or adjustment issues the youth has had during the current parole period and what has been done to address those issues. The staff should describe any Level III Hearings held and the consequences imposed as well as any interventions used that were not the result of a Level III Hearing. Information that the parent or guardian has provided about the youth’s time on parole is also helpful. The ALJ is also considering whether or not the youth’s behavior while on parole indicates he is a threat to himself, others, or property. Staff should include descriptions of behaviors that indicate the youth is a threat but should refrain from making conclusory statements, such as, “the youth is a threat.” Additionally, the ALJ is considering why the youth is in need of services at TJJD. To address this, staff should identify any issues that require further rehabilitation, such as criminal/delinquent behavior, drug and alcohol issues, relapses into the offense cycle, etc. It is very important that staff fully address whether appropriate community-based alternatives have been exhausted. Staff should describe any programs the youth has been assigned to and whether or not the youth has participated in those programs. If there are no appropriate available programs in the youth’s area, state that in the Summary of Adjustment. If the youth has committed an act that is so severe that community programs are not appropriate, that must be stated. The impact of the youth’s offenses on any victims is considered by the ALJ. TJJD has a form (LS-210) that victims can complete for the Level I Hearing. It is important that staff give victims the opportunity to complete this form. Staff is also to detail any constructive activities the youth has been participating in. If he has not been doing anything, that should be stated.

Any police reports relating to the youth’s behavior on parole should be included to show why parole revocation is appropriate. Those that are tied to the offenses proven at the hearing can provide additional information regarding the offense (particularly if the youth has pled true so that there has been no witness testimony to describe the offense). Police reports related to unproven offenses cannot be used to prove the youth committed the offenses but can be used to show things like the youth’s behavior during the arrest, when and where the arrest occurred, and other details that demonstrate reasons the youth’s parole should be revoked. Witness testimony can be considered. Any witness testimony that was offered during fact finding can be considered by the ALJ. Additionally, staff may want to call witnesses, such as the youth’s parent(s), to provide information about the youth’s behavior while on parole. If witnesses cannot attend the hearing, their written statements can be admitted in the Disposition phase. To avoid confusion, it is important to understand what is NOT required to revoke a youth’s parole. There is no requirement that the youth have violated the law. There is no requirement that the youth be a serious threat to persons or property. There is no requirement that all 8 factors in policy be shown in order to revoke parole – they are simply a guide to what is being considered to determine if parole revocation is in the best interest of the youth and/or community or if the youth is in need of further rehabilitation at a TJJD facility. There is no requirement that a certain number of Level III Hearing be conducted before revocation. If the offense is serious, revocation may be warranted without prior sanctions. If the youth fails to comply with any parole conditions immediately after being released on parole, revocation may be warranted without prior sanctions. However, if the youth commits few or non-serious technical violations, Level III Hearings are likely going to be warranted before moving to revocation. Tips for completing the Summary of Adjustment:

a. Show the date the youth was paroled. Youth who are violating parole immediately after release may need to be revoked more quickly than those who have done well for a long time (depending on the offense, of course).

b. Show the youth’s committing offense and offense history. Youth with more serious

and/or more numerous offenses may need to be revoked more quickly.

c. Show if the youth has previous revocations. Youth who repeatedly violate parole may need to be revoked more quickly.

d. Show how the youth’s behavior on parole is consistent with his behavior in the

institution (or his behavior prior to commitment) to show a continuing pattern of behavior (offense cycle) that suggests a need for rehabilitation.

e. Show the youth’s history of non-compliance while on parole and steps taken to

address. Do not simply say a Level III Hearing was held. Tell what the youth did

wrong, what consequence was imposed to address it, and when this happened. Describe any interventions used (counseling, discussions with the family regarding behaviors, etc.). Tell whether or not the youth was responsive to the interventions that were used. If the youth engaged in violations that did not result in a Level III Hearing but did result in referral to certain programs (example – referral to AA/NA without a Level III Hearing), provide that information. The ALJ is looking at “adjustment issues” and methods used to address them, not how many Level III Hearings were held.

f. Review any 047 on the youth (Release Review Panel Report) as well as the youth’s

history in the institution, including Stage at time of release. Point out if the youth is continuing to engage in the same conduct or if the youth is failing to progress in treatment areas the Release Review Panel said could be met in the community. If the youth is not doing his part to have those needs met in the community, revocation may be necessary.

g. Address community programs (or lack thereof), whether they have been tried and,

if not, why they are not appropriate for the youth. For example, there is likely not an appropriate community program for a youth committing robbery. That would be an example of where revocation is in the best interest of the community due to the threat the youth poses. Another example is a youth in need of specialized treatment who lives in a rural area with no community providers (or no affordable providers). When it is true, state “all community-based alternatives have been exhausted” and say what they were and how they were exhausted.

h. If you believe the youth is a threat to himself, others, or property, say what makes

you believe this, not just that you do. Specific examples of behavior to support this must be included.

i. Ask victims to complete a victim statement when appropriate (Form LS-210 is

specifically for Level I Hearings).

j. Do not include conclusory statements like, “The youth should be revoked because he is in need of further rehabilitation.” Describe the things that make you believe this – the ALJ is the one who will determine if the evidence shows the youth is in need of further rehabilitation.

k. Do not include conclusory statements like, “The youth assaulted his father.”

Describe the actual incident, i.e. “The youth punched his father in the face, causing him to suffer a bloody nose.”

l. Make sure the ALJ knows why you believe the youth needs to be revoked. He

already knows that is what you believe since you requested the hearing. What he needs to have to make the decision is the information that supports your belief.

12. Disposition - Extenuating Circumstances

As part of the Disposition phase, the youth and his attorney will be given the opportunity to present evidence of any extenuating circumstances incident to the proven offense(s). Extenuating circumstances are not a recognized legal defense; they are simply a good reason for why the youth engaged in the misconduct.

If the ALJ finds that extenuating circumstances exist, he has two options. He may decide that, because of the extenuating circumstances, parole revocation is not appropriate, in which case the youth will remain on parole. However, he may also decide that, even with extenuating circumstances, parole revocation is still appropriate, in which case the youth will be assigned a lesser minimum length of stay than usually assigned to the highest offense level found true at the hearing.

13. Minimum Length of Stay

Per TJJD policy, there are certain minimum lengths of stay assigned at Level I Hearings based on the most serious offense proven at the hearing. The most serious offense is the one that results in the longest minimum length of stay. If the most serious offense is a felony, the minimum length of stay is 9 months. If it is a misdemeanor, the minimum length of stay is 6 months. If it is a technical parole violation, the minimum length of stay is 3 months. Minimum lengths of stay are not “stacked.” If a felony and misdemeanor are found true, the minimum length of stay is 9 months, based on the felony. The minimum length of stay starts on the day the youth’s parole is revoked.

As noted above, a youth may be assigned a lesser minimum length of stay if extenuating circumstances are found but parole is still revoked.

14. Ruling and Appeal

After all evidence has been presented in Disposition, the ALJ will make a ruling as to whether or not parole will be revoked and what minimum length of stay will be assigned.

If parole is revoked or if an allegation is found true even if parole is not revoked, the youth has a right to appeal to the Executive Director. He does this by writing a letter to the Executive Director. The attorney may assist the youth with the appeal or may file the appeal on behalf of the youth. The youth is entitled to staff assistance in writing an appeal if the youth requests. According to GAP.380.9353, appeals to the Executive Director must be submitted within six months of the hearing but may be accepted late at the discretion of the Executive Director or designee.

A pending appeal does not stop the youth from being transferred back to a TJJD facility.

Q. Post-Hearing Matters 1. Transportation

Because staff will have arranged for a youth’s placement prior to the hearing, a follow-up telephone call to transportation is the only remaining item to be completed following the hearing. Transportation should be informed of whether or not the youth’s parole has been revoked and whether or not the youth needs to be moved.

A copy of the Administrative Law Judge’s Report (CCF-160) and a copy of the hearing packet should be left for Transportation staff. The youth will not be transported if Transportation does not have this paperwork.

2. Defense Attorney Evaluations

Unless it is not advised due to safety concerns, the staff representative, the youth, and any present parent will be given a form to complete evaluating the defense attorney’s services. The parole officer will give this form to the pertinent persons outside of the presence of the defense attorney and will assist the youth and parent as necessary in completing the form. The parole officer will deliver the forms to the ALJ for an on-site hearing and will fax or email the completed forms to the Hearings Coordinator for all phone hearings. If it is determined that it is unsafe or unwise to have the forms completed at the hearing, the staff representative will contact the Chief Administrative Law Judge so that other arrangements for completing the survey will be made.

3. Administrative Law Judge’s Report

As soon as possible after the hearing, the ALJ will prepare a written report of the hearing, which will summarize the evidence, findings of facts, conclusions of law, disposition, and rulings on motions and objections. The report will be sent to the parole officer, youth, and defense attorney. It is staff’s responsibility to ensure a copy of the report is placed in the youth’s master file. The youth’s copy may be edited if necessary for the protection of the youth (if there is information in the report that would be counterproductive to the youth’s rehabilitation).

R. Rules of Evidence

The rules of evidence for Level I Hearings are those applicable to civil non-jury trials in the District Courts of Texas. However, unless specifically precluded by law, evidence that is not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their own affairs. For example, a credit card statement from a reputable credit card company might be admitted to show a charge to a particular merchant or a phone bill might be admitted to show a call to or from a particular number. Alternatively, an estimate from a reputable company might be admitted to show the amount of damage to a piece of property or an internet printing from the Kelly Blue Book might be admitted to show the current value of a vehicle.

The ALJ shall determine the admissibility of evidence. Irrelevant, immaterial, or unduly repetitious evidence may be excluded. Inadmissible evidence will not be considered by the ALJ in making his decision.

1. Basic Evidence Concepts

Relevance: Evidence that is rationally related to the material facts in question.

Material Fact: A fact that pertains to some element of an allegation that the youth committed a violation.

Unduly Repetitious Evidence: Evidence that unnecessarily repeats testimony already given by the same witness. Evidence from a different source is admissible even if it tends to duplicate evidence presented by someone else or some other document.

Credibility: Worthiness of belief. The ALJ is the sole judge of the credibility of each witness or document. He will consider many factors in evaluating the credibility of the evidence, including the following:

a. internal inconsistencies;

b. inherent unbelievability;

c. absence of any corroborating facts;

d. degree of detail in the testimony;

e. demeanor of the testifying witness;

f. vocabulary or style in a confession indicating the influence of another person or some other factor that casts doubt on the voluntariness or credibility of the confession;

g. testimony of another witness suggesting bias or undue influence.

Weight (of a piece of evidence): The extent to which a particular piece of evidence influences the decision maker; the power or effectiveness of that bit of evidence to influence the finding of fact.

Admissibility v. Sufficiency of Evidence: A bit of evidence may be admissible under the Rules of Evidence but still not adequate, by itself, to support a conclusion that the allegation has been proven. The ALJ may determine that particular testimony is not credible or may give very little weight to a particular quantum of evidence. Evidence is not sufficient unless it is of character, weight, and amount that it will satisfy the burden of proof required in administrative hearings.

Burden of Proof: The burden to affirmatively prove all the elements of each formal allegation. TJJD bears that burden, meaning it must give evidence to prove every element of the allegation by a preponderance of the evidence. If TJJD produces credible evidence of every element, the ALJ may find the allegation proven unless the youth produces conflicting evidence as to one or more elements. If the evidence does conflict as to any element, the ALJ must weigh the evidence on each side, giving greater weight to the evidence that seems more credible. If the ALJ cannot determine which story is more credible, the conflict must be resolved in favor of the youth. If TJJD does produce sufficient evidence to prove the elements of the allegation, the youth is entitled to present defenses. The youth bears the burden of proving the defenses by a preponderance of the evidence.

Preponderance of the Evidence: “More likely than not.” The greater weight and degree of credible evidence admitted at the hearing must show the youth did commit the offense. There must be sufficient evidence to overcome the presumption of innocence and weigh in favor of guilty.

Privileges: Legally recognized right to prevent disclosure of certain information in court. All legally recognized privileges, such as attorney-client, doctor-patient, and spousal privilege, will be given full effect.

2. Hearsay

Hearsay is a verbal or written statement or expression or non-verbal conduct intended as a substitute for verbal expression, other than one made by the witness while testifying at the hearing, offered in evidence to prove the truth of the matter asserted in the statement.

Examples of Hearsay statements:

a. Ms. Brown tells a police officer the youth stole her television. At the hearing, the police officer testifies that Ms. Brown told him the youth stole her television. The police officer’s testimony is hearsay because he is testifying as to what Ms. Brown told him in order to prove that what she said is true, i.e. the youth stole her television. This is inadmissible hearsay.

b. The youth’s father tells the parole officer the youth left home and did not return. The father is not present at the hearing on an allegation of abscond. The parole officer testifies that the father told her the youth left home and did not remove. This was offered to prove that what the father said was true, i.e. the youth did in fact leave home and not return. This is inadmissible hearsay.

c. The principal writes a letter to the parole officer informing him the youth has been absent from school for three months. The principal is not present at the hearing. The parole officer offers the principal’s letter to prove the youth was absent from school. This is inadmissible hearsay. However, a business records affidavit from the principal along with school records showing the youth’s absences would be admissible evidence.

d. The police officer arrests the youth inside a jewelry store at 2:00 a.m. The police officer is not present at the hearing. Staff offers the police report to prove the youth was inside the jewelry store at 2:00 a.m. The report is inadmissible hearsay.

Not all statements made outside the hearing are hearsay. Many statements are offered only to show the statement was made, not that what was said was true. Although they may be inadmissible for other reasons, they are not inadmissible as hearsay.

Examples of Non-Hearsay statements:

a. The allegation is telephone harassment. The complainant testifies as to what was said in the telephone calls. The issue here is not whether what was said was true but whether or not the statements were made and were of such a nature as to annoy or alarm the person called. These are non-hearsay statements.

b. The allegation is resisting arrest. A witness testifies that the officer was wearing street clothes but told the youth, “I’m a police officer and you are under arrest.” The statement is not offered to show that the person was a police officer; it is offered to show the youth had notice that the person was a police officer. This is a non-hearsay statement.

c. The allegation is Repeated Non-Compliance of parole conditions. Staff introduces the agreement signed by the youth. The agreement is not being offered to prove its truth, but to show that the youth had notice of the conditions. There may need to be testimony to prove the youth is the one who actually signed the document, but the document is non-hearsay.

d. The police officer testified that he arrived at the scene because dispatch called him and told him there was a burglary in progress. This statement is not being offered to prove there was a burglary in progress; it is being offered to show why the police officer arrived at the scene. This is a non-hearsay statement.

Hearsay is not admissible in any trial or hearing unless it falls within an exception to the Hearsay Rule. There are reasons for this, including:

a. Lack of Oath: The out-of-court declarant was not under oath at the time the statement was made. The person, therefore, had no legal obligation to be truthful.

b. No Opportunity to Observe Declarant: The ALJ is not given an opportunity to observe the demeanor of the person making the statement, which is often a way to determine if the person is being truthful.

c. Reliability Problems: There is a possibility of inaccurate reporting and/or distortion of what the out-of-court declarant said. It is also possible that the witness is simply making up all or part of the statement.

d. No Confrontation: There is no opportunity at the hearing to cross-examine and confront the out-of-court declarant.

Exceptions to the Hearsay Rule (only those most prevalent at TJJD Hearings are included here):

a. Present Sense Impression: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Example: A witness testifies he heard the woman yell, “He stole my purse!” and then saw the youth running away with a purse. This statement is admissible because it was made at the time the woman was experiencing her purse being stolen.

b. Excited Utterance: A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition. Example: The woman, still dazed and upset, told the police officer her boyfriend had just hit her and busted her lip. Her demeanor showed she was still under the stress of the event. This is an admissible statement.

c. Statements made for the Purpose of Medical Diagnosis or Treatment: Statements made for the purposes of medical diagnosis or treatment and describing medical history, past or present systems, pain, sensations, or the inception or general character of the cause thereof, insofar as reasonably pertinent to diagnosis or treatment. Example: Doctor testifies that a woman told him she suffered a black eye when her son punched her in the face. This is an admissible statement.

d. Recorded Recollection: A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable him or her to testify fully and accurately. The record must have been made or adopted by the witness when the matter was fresh in the witness’ memory and must be shown to have reflected that knowledge correctly.

e. Records of Regularly-Conducted Activity: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by (or from information transmitted by) a person with knowledge. The record must be kept in the course of a regularly conducted business activity. It must also have been the regular practice of that business activity to make such records. The required predicate may be laid by the testimony (or affidavit) of the custodian or records or another qualified witness.

f. Absence of Entry in Records: Records that are kept in accordance with the provisions of 5 above can be used to show the absence of an entry that would have been present had the event to be recorded occurred.

g. Statement Against Interest: A statement which was, at the time it was made, so far contrary to the declarant’s pecuniary or proprietary interest, or which so far tended to subject him to civil or criminal liability or to make him an object of

hatred/ridicule, or disgrace, that a reasonable person in his position would not have made the statement unless he believed it to be true. Note: This does not apply to statements of a TJJD youth.

h. TJJD Affidavits: TJJD has created some special exceptions by permitting the admission of certain affidavits, as previously discussed in this manual.

Practical implications of the Hearsay Rule: Since a witness is only allowed to testify to matters of which he has personal knowledge (and not to the truth of matters witnessed by others), staff must be sure to:

a. Investigate the case;

b. Determine who can testify;

c. Secure the presence of all necessary witnesses at the hearing. Police reports are not admissible to prove the offense. Additionally, although several officers may have been involved in the case, they may not all have personal knowledge of the relevant facts and may not all be able to testify. If is proper to have the officers who will testify review their reports prior to the hearing.

3. Real Evidence

Real evidence is tangible things admitted into evidence, as distinguished from a description given by a witness. Examples are weapons, the physical appearance of a person (marks, scars, fingerprints, tattoos, height, build, hair color, etc.) exhibited to the ALJ, or other inanimate objects somehow connected with an issue in the hearing.

a. Predicate for Admissibility: Generally, things and objects offered into evidence do not identify themselves. As a rule, real evidence must be authenticated by the testimony of some witness who can identify the object and state facts connecting it to some issue in the case.

b. Chain of Custody: If the offered item is unique (one of a kind), there is usually no need to prove the chain of custody. However, whenever the item is not readily distinguishable from other similar items, showing the chain of custody becomes important in identifying the item.

Question: How do you know this is the same pencil Johnny used to stab the victim?

Answer: As the victim lay bleeding, I took the pencil from Johnny’s hand. When I returned to my office, I wrote my initials and the date on a piece of tape and wrapped it around the pencil. I put it in an envelope, sealed it, and dated and initialed the envelope. I gave the envelope to the principal for safe keeping. Before I left school to come to this hearing, the principal gave me the envelope, still sealed. This is the pencil that was in the envelope and is the pencil I took from Johnny. Here is the tape with my initials and here is the envelope it was in.

c. Lack of Absolute Certainty in Identification: When an issue is raised as to whether the thing offered is the same as that which was connected with the event in question, the offering party must establish its identity as a prerequisite to admission. The fact that the youth denies connection with an article does not make its introduction erroneous. If the issue of identity of an item has been raised, the ALJ will consider the evidence and resolve the factual issue of identity, based on a preponderance of the evidence. If from the evidence a reasonable person could infer identity, any lack of certainty in identification goes to the weight and not to the admissibility of the article.

d. Changed Conditions: It may happen that the present condition of an object is not the same as at the time in question. If the changes are so extensive that the object is of no value in determining its former condition, the ALJ will exclude it. If, however, the object is in a sufficiently similar condition (and any changes can be described and accounted for) the ALJ may admit the item.

4. Photographs/Video

Whenever a photograph/video portrays any facts relevant to an issue in the case, it is admissible in evidence provided it is first verified by a witness as being a correct representation of such facts. The verifying witness need not be the photographer. It is essential, however, that the witness 1) have personal knowledge of the scene or object depicted, and 2) be able to state that the photograph correctly and accurately represents the scene or object.

The fact that the photograph or video was taken considerably before or after the relevant event will not prevent its admission into evidence, provided it is shown to be an accurate depiction of conditions at the crucial time. Even where the scene has changed since the time in question, the photograph/video may still be used if the changes are adequately explained so that the photograph/video will assist the ALJ in arriving at a correct understanding of conditions at the time in issue.

If there was no witness to the photographed/video recorded scene, such as may be the case with security cameras, someone with knowledge of the recording device will need to testify and a chain of custody will need to be proven up to establish the video or photograph was not altered.

5. Circumstantial Evidence

All evidence can be classified as either “direct” or “circumstantial” evidence. Direct evidence is evidence based on someone’s personal knowledge or observation that, if true, proves a fact to be true without the need to infer or presume anything. Circumstantial evidence is evidence of specific conditions or actions from which the ALJ may reasonably infer facts relevant to a given case.

Example: It is alleged that the youth stabbed and killed the victim. The testimony of a witness that he saw the youth stab the victim would be direct evidence. The testimony of a

second witness that all she saw was the youth running from the scene shortly after the time of the stabbing would be circumstantial evidence of the youth’s guilt (i.e. evidence that he was at the scene at the time of murder). While presence at the scene or fleeing from the scene are not in and of themselves sufficient to prove the youth committed the offense, it is circumstantial evidence that, if combined with other supporting evidence (such as the weapon was found in youth’s pocket), could be used by the ALJ as a basis for finding the allegation true.

The weight to be given any piece of evidence is left entirely for the ALJ to determine. There are no rules which require that greater weight be assigned to direct evidence. The probative value of a bit of circumstantial evidence in a particular case depends upon many considerations. In one case, direct evidence may be more convincing; in another, the circumstantial evidence may be of greater cogency.

An allegation can be proved by circumstantial evidence alone if the evidence is sufficient to establish each necessary element by a preponderance of the evidence and sufficient to convince a reasonable person of its truth.

6. Character Evidence

a. Character of Youth: During the fact finding phase of the hearing, evidence of the youth’s bad character (or prior bad acts) is not admissible to prove that he/she committed the act(s) set out in the allegation.

Exception: If the defense first offers evidence of the youth’s good character, the parole officer may respond with evidence of the youth’s character, but such evidence must relate to a trait involved in the allegation. For example, if the allegation is theft and the youth has a history of dishonesty or stealing, that can come in once the defense offers evidence of the youth’s good character.

b. Character of Witness. The credibility of any witness may be attacked or supported by evidence in the form of opinion or reputation, subject to two limitations: the evidence may refer only to character for truthfulness or untruthfulness, and evidence of truthful character is admissible only after the character of the witness for truthfulness has been put in issue (Texas Rules of Evidence 608(a)).

For purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a felony or of a misdemeanor involving moral turpitude may be admitted if such conviction is established by public record or admitted by the witness and the hearings examiner determines that the value of such evidence outweighs the prejudicial effect to a party (Texas Rules of Evidence 609). Note: This rule applies to convictions only, not to juvenile adjudications and not to adults who received deferred adjudication.

7. Expert Witnesses

a. Admissible When Helpful: If scientific, technical, or other specialized knowledge will assist the ALJ to understand the evidence or to determine a fact in issue, an expert witness may testify in the form of an opinion or otherwise.

b. Definition of an Expert: An expert is one who possesses superior knowledge in a

specialized field by virtue of skill, experience, training, or education.

c. Facts Upon Which an Expert Relies: The expert may testify in terms of opinion or inference and give his/her reasons therefore. The expert may be required to disclose the underlying facts or data upon which he/she relied in forming his/her opinion or in drawing the inference. The facts or data may be those made known to the expert during the hearing.

d. Opinion Testimony by a Non-Expert Witness: If the witness is not testifying as an

expert, any testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness’ testimony or to the determination of a fact in issue.

NOTE: Expert testimony is required to support a test result that a substance is a

controlled substance. Testimony about the results of a lab test may be provided by affidavit.

8. Stipulations

In order to expedite the hearing, the youth’s attorney may stipulate that certain factual elements of a formal allegation are accurate and uncontested. Any stipulation should be made on the record. It can be made at any point during the hearing. If the youth’s attorney and staff agree to a stipulation, the ALJ will accept the stipulated facts as true.

Example: When the allegation is Unauthorized Use of a Motor Vehicle and the vehicle’s owner has no personal knowledge of who operated the vehicle so would only testify as to ownership and lack of consent for anyone else to operate it, the defense attorney may agree to stipulate that “If Mr. Owner were called as a witness, he would testify that he is the owner of a Ford Pickup Truck, License Number AFX-812; that he gave no one permission to operate his vehicle on June 1, 2010, and that his vehicle was taken from his driveway on that day.”

9. Official Notice

The Administrative Procedures and Texas Register Act (APTRA), Section 14(a) provides: “In connection with any hearing held under the provision of this Act, official notice may be taken of all facts judicially cognizable.”

Judicial notice may be taken of any fact not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the tribunal or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

The ALJ may take official notice of a fact at any stage of the proceeding, whether requested to do so or not. (See T.R.E. 201 (b), (c), or (f).)

Types of Facts of Which Notice May be Taken: The following are some of the facts of which notice may be taken:

a. Geographical facts in general, including location of cities, towns, and counties; b. Acts of the Texas Legislature (but not city ordinances); c. Matters relating to the conduct of business, occupations, and professions in general; d. Historical events in general; e. Facts relating to human life, health, habits, etc.; f. Natural laws and natural forces, including climatic conditions of a certain time and

place; g. Scientific facts; h. Statistical facts, including Census data; i. Ordinary meaning of words, phrases, and abbreviations; j. Time, days, and dates; k. Weights and measures.

Cautionary Note: Official notice is not a substitute for proper preparation and presentation of evidence. Although courts do adjudicate a wide variety of facts for which no evidence was introduced, the doctrine does not guarantee that a judge or ALJ will take notice of a particular fact at a particular hearing.

10. Criminal Exclusionary Rules

Criminal Exclusionary rules are inapplicable to TJJD hearings. Evidence which is obtained from possibly unlawful searches and seizures or which is obtained following arrests without probable cause will be admitted. The Texas Juvenile Justice Department will not exclude relevant evidence regarding the possible misconduct of its youth as a means of deterring improper police conduct. It is TJJD’s position that its primary objective is meeting its correctional responsibility to its youth; ignoring evidence of a youth’s misbehavior as a means to achieve some other societal objective would be improper. Additionally, case law provides that the rules of evidence that apply in administrative probation or parole revocation hearings can be more flexible than those which apply in criminal trials.

III. LEVEL II HEARINGS – IN DETAIL Level II Hearings have the second highest level of due process. GAP.380.9503 and GAP.380.9555 are relevant to Level II Hearings and should be reviewed. For a rule violation to be part of a youth’s formal disciplinary record, it must be proven through at least a Level II Due Process Hearing (offenses proven through a Level I are also a part of the formal disciplinary record, though Level I Hearings are not conducted for institutional status youth). In addition to that, there are certain sanctions that can be imposed on a youth for rule violations. A. Disposition Options for misconduct There are a variety of disposition options for youth misconduct. Some are considered disciplinary while others are not. More than one disposition option may be imposed for the same misconduct when appropriate. This is a detailed description of the disposition options available for various types of misconduct. Note that disposition options vary depending on if a youth is assigned to a high or a medium-restriction placement. 1. Disciplinary Transfer (TR) A youth assigned to a medium-restriction placement who is on institutional status (not on parole status) may be transferred to a high-restriction facility if that youth commits a major rule violation as defined in GAP.380.9503. Parole status youth may only be transferred to high-restriction via a Level I Hearing, and that can only be for violations in GAP.380.9504. Disciplinary transfer should be used only when a youth has demonstrated such serious or pervasive misbehavior as to demonstrate he needs be returned to a high-restriction placement. When possible, lesser interventions should be used to keep the youth in the medium-restriction placement. 2. Suspension of all Privileges for 30 days (SUP) Youth in medium-restriction placements who have committed a major rule violation may have this sanction imposed. Youth in high-restriction facilities who have committed a minor rule violation that resulted in a referral to security or a major rule violation may have this sanction imposed. This is a suspension of all privileges for 30 days. If imposed, the youth will still have the opportunity to earn privileges during those 30 days but will not be allowed to have them. The Multi-Disciplinary Team (MDT) may restore the privileges prior to the end of the 30 days if the youth’s behavior warrants it.

3. Loss of Transition Eligibility (LTE)

This sanction is available for youth in a high-restriction facility who commit the following major rule violations:

a. Assault causing bodily injury to staff b. Assault causing bodily injury to youth c. Sexual misconduct – penetration d. Sexual misconduct – fondling

Though worded “loss of transition eligibility,” this is actually a 30-day extension to the

earliest date a youth might possibly be eligible for transition from a high to a medium-restriction placement, rather than a “loss” of anything. For example, a youth with a 12-month minimum length of stay might be eligible for transition to a halfway house after completing 9 months provided other conditions in policy are met. If he has a Level 2 Hearing with this sanction, he will not possibly be eligible until completing 10 months.

If a youth is nearing the time in which he might be eligible to transition and does not meet

transition criteria as set out in policy, this sanction will have no impact, because he will not be transitioning anyway. If a youth has passed the earliest date of transition eligibility and has not met the other criteria, this sanction will have no impact. This sanction has impact only if used more than one month prior to the youth’s earliest possible transition date and the youth is likely to be eligible for transition.

If a youth has multiple hearings with this sanction, the time is extended by an additional

30 days for each additional hearing. However, this sanction cannot be used to extend a youth past his minimum length of stay date.

It should be noted that this is different from the policy that says a youth does not meet

release criteria if he has had a major rule violation proven through a Level II Hearing in the preceding 30 days. That applies no matter what sanction is imposed.

4. Redirect Program

The Redirect Program is a non-disciplinary intensive intervention program for youth in

high-restriction placements who have committed certain rule violations. For details on the Redirect Program, see GAP.380.9517.

At least one of the following rule violations must be proven for a youth to be placed in the

Redirect Program:

a. assault or fighting; b. escape or attempted escape; c. vandalism (major rule violation only); d. sexual misconduct (excluding kissing);

e. possessing or threatening others with a weapon or item which could be used as a weapon;

f. chunking bodily fluids; or g. tampering with safety equipment.

Before the Superintendent may approve a hearing requesting placement in Redirect, there must be a determination that:

a. the youth poses a continuing risk for the admitting behavior(s); b. less restrictive methods of documented intervention have been attempted when

appropriate; and c. the mental status of the youth has been assessed by a psychologist and there are no

therapeutic contraindications for admission to the Redirect program.

In order to show this, the MDT must meet and the CCF-518 must be completed and submitted to the Superintendent with the request to place the youth in Redirect. This must all be done prior to the hearing.

If the youth is in special education and the offense for which Redirect is sought occurred during school or during a school-related activity, a Manifestation Determination Review (MDR) must be completed before the youth may physically be placed in Redirect. Because the timelines for the MDR are different from the timelines for the Level II Hearing, the Level II Hearing will be held prior to the MDR. If the youth can safely be returned to the dorm awaiting the MDR decision, he should be. If he cannot, the facility should contact the Regional Director or Assistant Director of Youth Services to discuss placement options, including security.

5. Placement in the Phoenix Program The Phoenix Program is a highly-structured program operated in a self-contained unit at the McLennan County State Juvenile Correctional Complex. For details, see GAP.380.9535. A youth may be placed in the Phoenix Program if one of the following is proven through a Level II Hearing:

1. Assault causing moderate or serious bodily injury to another youth; 2. Assault causing substantial bodily injury to staff; 3. Fighting causing moderate or serious bodily injury to another youth; 4. Chunking bodily fluids at staff (not saliva); 5. Committing assault proven true through a Level II Hearing on three

separate occasions within a 90-day period, if the second assault occurred after the hearing on the first assault and the third assault occurred after the hearing on the second assault;

6. Engaging in any other major rule violation when the totality of the circumstances justifies placement in the program and the executive director directs such placement.

Just like for the Redirect Program, if admission is sought for a special education student for conduct that occurred while at school or at a school-related activity, an MDR must be conducted. If criteria for the Phoenix Program is shown in the hearing, the youth’s information is sent to the admission committee for review and a determination of whether or not the youth will be admitted. The youth may be placed in a Redirect Program while awaiting this decision. The committee must be given a current mental health assessment indicating there is no therapeutic contraindication to placement in the program. The youth will only be admitted if the committee determines that the Phoenix Program represents the most appropriate intervention given the circumstances. In the even the number of referrals exceeds the number of available beds, priority for admission is given to:

1. youth with the most dangerous behavior; 2. youth with chronic aggressive behavior; 3. youth with greater frequency of weapon use; or 4. a directive from the executive director or designee.

Upon admission to the Phoenix Program, the youth will be demoted to the lowest stage in CoNEXTions. 5. Seizure of Contraband Money

If a youth is found in possession of contraband money, which is money in excess of what is allowed by facility rules or in a form not allowed by facility rules, that money can only be seized through a Level II Hearing. Money seized is to be placed in the student benefit fund. If extenuating circumstances are found incident to the youth’s possession of the contraband money, the hearing manager is to determine an appropriate disposition of the money.

If the allegation is not proven through a Level II Hearing, the money cannot be seized; it must be placed in the youth’s trust fund account. If no Level II Hearing is held, the money cannot be seized; it must be placed in the youth’s trust fund account.

B. Fact Finding Only Hearing

Because a Level II Hearing must be held to place a rule violation in a youth’s disciplinary record, which is required for the youth to lose release eligibility under TJJD policy or for the Release Review Panel to consider a rule violation when determining if a youth’s stay in TJJD should be extended, there may be times that a hearing is held with no disposition imposed at the time of the hearing. This option should be used sparingly, since when a

hearing is held the point is to address youth misbehavior and a consequence issued at the time of the hearing is the most effective way to do this.

C. Non-Disciplinary Disposition Options

There are non-disciplinary reasons to have a Level II Hearing, both of which concern placement. The disposition options are discussed herein. The procedures for these hearings are discussed in detail later in this manual.

1. Non-Disciplinary Transfer – Parole Status Youth

There are times that a youth on parole no longer has an approved placement, for a variety of reasons. When the youth needs a place to stay and there is not one available in the community, a Level II Hearing can be held for non-disciplinary reasons to place him in a medium-restriction placement, such as a halfway house. The focus of the hearing is whether or not there is an available placement and, if not, whether or not the proposed placement is the least restrictive available for the youth. If a youth is transferred to a medium-restriction placement via this method, the parole officer is still responsible for keeping up with the youth and for working to find another appropriate home placement for the youth. As soon as another placement is secured, the youth is to be released from the medium-restriction placement and placed in the new placement.

In no case may this hearing be used as a substitute for a disciplinary hearing.

This is the only type of Level II Hearing that can be waived. Form LS-206 must be completed by the youth. A Level II Hearing Form (CCF-170) must still be completed and entered into the system.

2. Non-Disciplinary Transfer – Institutional Status Youth

For youth on institutional status in medium-restriction placements, there are times that the youth’s needs cannot be met at the medium-restriction placement. Examples include a change in mental health needs, medical circumstances, or rehabilitative needs that cannot be met at the medium-restriction placement. The focus of the hearing is whether or not the youth has needs that cannot be met at the medium-restriction placement and whether or not the proposed placement is the least restrictive placement appropriate to meet his needs.

In no case may this hearing be used as a substitute for a disciplinary hearing.

This is the only type of Level II Hearing that can be waived. Form LS-206 must be completed by the youth. A Level II Hearing Form (CCF-170) must still be completed and entered into the system.

3. Placement or Extension in the Corsicana Stabilization Unit or Ron Jackson Stabilization Unit

TJJD policy provides methods for obtaining mental health treatment in certain cases. Emergency mental health treatment can be obtained under GAP.380.8771. Youth with certain types of mental health treatment needs can be admitted to a TJJD Stabilization Unit following the appropriate referral and screening process. (See GAP.380.8767). Youth can be placed in the Stabilization Unit either through the centralized placement unit or through an emergency referral. Initial placement in the unit is on a temporary basis.

A decision to admit a youth is made by a hearing manager during a mental health status review hearing held (using Level II hearing procedures) within 96 hours of the youth’s arrival (or the next working day if the 96th hour is a weekend or holiday). The hearing manager must be a mental health professional, defined as a doctoral level psychologist, master’s level associate psychologist, licensed professional counselor, or a licensed clinical social worker, who has been trained to conduct the hearings and who does not have direct or primary responsibility in the youth’s current diagnosis or treatment. The advocate must be a mental health professional or a caseworker assigned to the Stabilization Unit who has been trained to conduct Level II Hearings.

The sole purpose of the hearings is to determine if criteria for admission to the Stabilization Unit is present. In order to be eligible for admission, the hearing manager must find:

a. The youth demonstrates serious dysfunction in behavior, judgment, thinking, or mood; and

b. the dysfunction is the result of a current neurological deficit and/or emotional disturbance and/or psychiatric disorder, e.g. psychosis, major affective disorder, organic disorder, or anxiety disorder; and the dysfunction is not the result of a primary conduct disorder or antisocial personality disorder; and

c. the youth’s behavior presents a risk of serious harm to the youth or others; or d. the youth, if not treated, will continue to suffer severe and abnormal mental,

emotional, or physical distress and will continue to experience deterioration in his/her ability to function independently, as evidenced by the youth’s inability to attend to basic needs, such as food, health, personal hygiene, or safety; and

e. the stabilization unit is the least-restrictive intervention alternative that is appropriate and available to safely and effectively meet the treatment needs and to control the dysfunctional behavior.

The hearing manager’s decision must be supported by expert testimony of a psychiatrist that the youth does meet admission criteria. The psychiatrist’s testimony may be a written or verbal evaluation and recommendation concerning whether or not the youth meets the requisite admission or extension criteria.

If the youth’s treatment needs and appropriateness for admission cannot be determined during the 96-hour mental status review hearing, the youth may be temporarily admitted

for diagnostic and assessment purposes for up to 45 days from the date of arrival as long as the hearing manager concludes:

a. the youth does exhibit evidence of psychiatric dysfunction; and b. the youth has exhibited recent behavior that presents a danger to self or others

or chronic failure to progress in his/her prior placement; and c. the youth is in need of comprehensive psychiatric and psychological evaluation

in a specialized setting; and d. the SU is the least restrictive setting in which to effectively accomplish this

evaluation.

A second hearing is required if it is determined that a youth needs treatment on the Stabilization Unit for more than 90 days. An extension hearing must be held every 90 days. A Level II Hearing is used for SU placement for both institutional and parole status youth. In order to extend the youth, the hearing manager must find:

a. the youth continues to meet admission criteria; and

b. the youth’s treatment plan has been implemented appropriately; or

c. the youth has symptoms of mental illness and will benefit from treatment in the SU and continued treatment in this setting is deemed to be in the youth’s best interest.

The extension hearing must be held two weeks before the 90th day from the admission or previous extension hearing unless the youth is being considered for transition out of the youth before the end of the 90 days or as soon as the youth returns to the unit if in a state hospital at the time the hearing is required.

A non-parole status youth is placed in the appropriate placement by CPU once released from the stabilization unit. A parole status youth must be returned to parole as soon as he no longer meets the criteria for SU placement.

D. Required Notices

Regardless of the reason for the Level II Hearing, the Staff Representative must meet with the youth before the hearing and give him certain notices. The first notice that must be given is the LS-200 Form. This form gives the youth notice that he is being investigated for a possible hearing and gives the notice of his rights. This should be given to the youth as soon as there is a possibility of requesting a Level II Hearing.

Once a hearing has been called, the youth and advocate must receive notice of the hearing date and time, the allegations, the proposed disposition, and all evidence that will be relied upon, including the names of all witnesses and a description of their expected testimony, no less than 24 hours before the hearing. Proof of this notice is included in the LS-201 for

the youth and the LS-204 for the advocate, but those forms alone are not sufficient to meet the notice requirements.

The allegation must be written out in full using the Allegations Manual in this guide. The LS-174 should be used to provide notice of the witnesses who will be called and a summary of their expected testimony. All incident reports and written statements must be included in the packet. The LS-201 and LS-204 are also used to provide notice of where evidence such as a video may be found by the advocate and youth for review. This evidence must be available to them at least 24 hours prior to the hearing. It must be in a location that is reasonable for the advocate and youth to access.

The 24-hour notice may be waived by the youth if, after discussing it with his advocate, he agrees to an earlier hearing time and both the youth and advocate sign Form LS-205.

In addition to notice to the youth and advocate, the Staff Representative must make reasonable efforts to notify the youth’s parents of the date, time, and allegation for the hearing not less than 24 hours before the hearing, and preferably sooner than that. Every effort should be made to make this notice by telephone so the parent gets sufficient notice in advance of the hearing. If the youth is 18 or over, then the youth must have given written consent for his parents to be notified about the hearing. This consent is provided on the LS-020.

Information about other youth, including their names and TJJD numbers, should not be sent to the parent. Initials should be used. Additionally, when anything in the allegation or packet is about another youth, the TJJD number of the other youth is not to be provided to anyone who is not TJJD staff, including the youth the hearing is on.

E. Youth Rights 1. Right to Remain Silent

A youth has the right to remain silent, which means he does not have to talk about the allegation before or during the hearing. If the youth decides to give a written statement, it is admissible at the hearing as long as it is accompanied by evidence that it was voluntarily given by the youth after his rights were given to him (the evidence is the forms listed above). Use Form LS-129 to obtain the youth’s statement.

Part of the advocate’s job at the hearing is to make sure the right to remain silent is protected by not letting the youth answer questions unless he has explicitly stated, on the record, that he wishes to give up his right to remain silent and answer questions. If a youth decides to testify, he first answers questions from the advocate, then from the hearing manager and staff representative. The hearing manager and staff representative can only question the youth about things he testified about when questioned by the advocate. They may not ask questions about anything else.

It is a violation of the youth’s right to remain silent for the hearing manager and/or staff representative to ask the advocate to ask the youth questions and then for the advocate to tell them what the youth said. Likewise, the youth is not entitled to have the advocate testify for him in an attempt to avoid questioning by the staff representative and hearing manager. If the youth wishes to have evidence presented, he may do so by bringing in witnesses or written statements or may testify himself.

2. Right to be assisted by an advocate

A responsible TJJD staff member, contract employee, or volunteer who has been trained to serve as an advocate must represent the youth in the hearing. Training must be attended annually. The youth has the right to choose an advocate to represent him (it must be a trained advocate) or may have one appointed. The youth may have a parent serve as his advocate; however a TJJD-trained advocate must assist. A licensed attorney may choose to represent the youth, as well. If a licensed attorney is representing the youth, there will not also be a TJJD-trained advocate present.

3. Right to question witnesses and evidence against him

The advocate, on behalf of the youth, is to ask questions of the witnesses who testify at the hearing to examine whether or not they are providing truthful and accurate testimony. The advocate is also to point out any issues with evidence against the youth, such as inconsistencies and other things that make it not credible or reliable. The advocate should converse with the youth about the evidence to discover anything that should be called into question.

4. Right to present available witnesses or evidence on his own behalf

The youth has the right to have witnesses come and testify for him to tell what happened. The advocate should find out from the youth who he would like to testify and request that arrangements be made for these people to testify or should obtain written statements from them. The youth may request evidence, such as a video of the incident, be presented. All readily available witnesses and evidence the youth requests must be brought to the hearing. Any evidence at the facility is considered readily available, including video. Any staff who works at the facility or any youth who is housed at the facility is considered readily available. Witnesses may testify by telephone if necessary, such as when the hearing is on their off day or during a different shift.

5. Right to appeal

The youth has the right to appeal the decision to the Executive Director of TJJD. Advocates, attorneys, parents, or TJJD staff may also file an appeal on behalf of the youth. The appeal will be assigned to an attorney in the Office of General Counsel to review and provide an answer to the youth.

F. Level II Hearing Process 1. Timelines

Within 24 hours after a report of a major rule violation (or a minor rule violation that resulted in a security referral if in an institution), a case manager, program specialist, or other appropriate staff not involved in the incident is to review the incident and assess whether or not to request a Level II Hearing. If it is decided that a Level II Hearing will be requested, a CCF-169 should be completed and submitted to the appropriate Program Administrator (Superintendent or QAS).

The Program Administrator must approve or disapprove the request. The hearing must be held within seven working days (working days are Mondays through Fridays, excluding holidays) of the date the alleged violation was committed unless there is documented evidence proving it was impossible, impractical, or inappropriate to have held the hearing sooner. The staff representative at the hearing is responsible for presenting this evidence at the hearing. The hearing manager is responsible for ruling on whether or not it was in fact impossible, impractical, or inappropriate to have requested or held the hearing sooner. Some common examples of what is impossible, impractical, or inappropriate are:

a. Staff was unaware of the violation for some time after it happened. If that is the case, the seven days starts when staff is aware of the violation and staff must document when he became aware;

b. The hearing was scheduled to be held in a timely manner but a necessary person, such as the advocate or a witness, was unexpectedly unavailable the day of the hearing and, in the case of it being the advocate, there was not an alternate advocate available with sufficient time to prepare for the hearing; or

c. The youth is temporarily removed from the facility due to county charges or medical or mental health issues. If that is the case, the seven days starts when the youth returns to the facility; or

d. The advocate is an attorney and is not available within the seven days.

There is an exception to the seven-day rule. If the reason the youth is admitted to security is potential interference with the investigation or hearing, then the Level II Hearing must be held no later than five calendar days. If the youth is released from security before the fifth day, the seven working days rule applies. Once you get to day 5, even if the youth is released, the hearing must be held. This rule is not designed to allow you to simply detain the youth for four days and then let him out; if he is being detained due to potential interference, there must be evidence of that potential interference.

When counting days, the day of the incident does not count. The day following the incident is Day 1. The day the hearing is held does count. It must be held on Day 7 or earlier (or Day 5 if detained as described above).

2. Participants and Responsibilities

Staff Witnesses: Any staff person who witnesses an incident that becomes the subject of the Level II Hearing may be requested to provide a statement or to testify at the hearing. Staff must provide an honest written statement. Staff must appear to testify if requested, and truthfully answer all questions put to them (by the staff representative, advocate, and hearing manager).

Program Administrator: The appropriate facility administrator, parole supervisor, QA administrator, or designee who is responsible for approving/disapproving hearing requests. In doing so, he should review the request and determine if a hearing is appropriate. He must review the statements and evidence to determine if there is sufficient evidence of a major rule violation (or minor rule violation with security referral at a high-restriction facility). He should determine if the requested disposition is appropriate for the offense and if a Level II Hearing is warranted. In making these decisions, he must ensure the disposition is allowable under policy for the alleged offense, review the severity of the offense and the youth’s history to determine if a Level II Hearing is necessary to stop the youth’s misbehavior, and determine if the requested disposition is fair and appropriate for the youth.

The Program Administrator is responsible for appointing a staff representative and a hearing manager. The hearing manager and staff representative are not to be from the same dorm, halfway house, or parole office. After the hearing, the Program Administrator is responsible for reviewing the CCF-170 (Hearing Manager’s Report) for policy compliance and is responsible for ensuring the form is data entered into the system within 72 hours of the hearing. In the event of an appeal, the Program Administrator is responsible for ensuring the appeal gets to the Office of General Counsel within 48 hours of the youth’s decision to appeal.

Hearing Manager: A TJJD staff person (or contract employee) who is trained to serve as a hearing manager (training must be updated annually) serves as the decision maker in the Level II Hearing. This is an impartial person who has had no involvement in the incident, including witnessing any part of it; has had no involvement in the decision to have the Level II Hearing; has had no involvement in the security admission decision; is not a current supervisor of the youth; is not employed on the same dorm, in the same halfway house, or in the same parole office as the staff representative; and is not someone who, based on past dealings with the youth, feels he cannot be impartial. The hearing manager is responsible for appointing the youth’s advocate. The youth may choose his own advocate or may choose to have one appointed. Only advocates who have been trained in the 12 months preceding the hearing may be chosen or appointed.

The hearing manager will review the evidence presented, determine if he needs additional evidence, and make decisions as to whether or not the allegation was proven and whether or not there are extenuating circumstances. The hearing process will be defined later in this manual.

Staff Representative: The youth’s primary service worker (case manager, QA, parole officer) typically serves as the staff representative, though someone else may also do so. Once assigned, the staff representative must begin gathering evidence. The staff representative should read the incident report (CCF-225) and any witness statements closely and critically, looking to see if the people writing the reports were actually witnesses. The staff representative should determine who were actually witnesses and contact those people. After speaking with them, staff should determine if he should obtain a written statement or call the witnesses to testify. Written statements provide much less information than a live person testifying so, when possible, staff should consider having the witnesses testify. Staff should also review any videos that exist and make sure they are available for the youth and advocate to review in advance and to present at the hearing.

After gathering the evidence, the staff representative must determine what allegation(s) is/are appropriate. There will be a rule violation marked on the CCF-225. The staff representative is not required to use this allegation. Based on the evidence the staff representative gathers, he is to determine the proper allegation. Major and minor rule violations are defined in GAP.380.9503. The Allegations Manual in this guide should be referred to for guidance on writing the allegations properly.

The staff representative must assemble a packet containing the allegation, required notice forms, witness list, and documentary evidence and must provide this to the youth and advocate no less than 24 hours prior to the hearing. Failure to provide adequate notice may result in the allegations being dismissed and the hearing cancelled.

The staff representative is responsible for presenting the evidence at the hearing. This includes questioning his witnesses and questioning any witnesses the youth might bring as well as presenting documentary and video evidence. The staff representative has the burden of proving the allegation(s) by a preponderance of the evidence, which means he must prove that it is more likely than not that the youth did commit the alleged violation.

The staff representative must prove every element of the offense – meaning he must prove the youth acted with the required intent (intentionally and knowingly or, in limited cases, recklessly), that the youth did commit the act, and that the youth’s action(s) did cause the required result. If any part of that is missing, the allegation has not been proven.

Advocate: A TJJD staff person, contract employee, or volunteer who has been trained to serve as an advocate (training must be attended annually) may serve in this role. The advocate’s role is to represent the youth in the hearing by helping the youth challenge the evidence against him and present evidence favorable to him and by ensuring the youth’s rights are protected during the hearing. The youth may choose his own advocate from among those trained. If a youth’s parent wishes to serve as his advocate, a TJJD trained advocate must assist.

As soon as he is appointed, the staff representative must speak to the youth and get his version of events. He must talk to witnesses the youth identifies and determine if he should obtain written statements from any of them or if he should call them to testify. Once he

gets the packet, he must review the information in there critically and look for any inconsistencies or questions raised by the evidence. If there is a video, he should watch it before the hearing.

At the hearing, the advocate must challenge the evidence against the youth. This includes showing that a witness or written statement is not credible (i.e. not believable) or not reliable (it may not be dishonest, but the person’s memory cannot be relied upon enough to know if what he is saying is an accurate description of what happened).

The advocate must also present evidence favorable to the youth. This would be witnesses who have information about the incident that shows the youth was not responsible or did not commit the violation as alleged.

The advocate is responsible for presenting the youth’s case. In addition to challenging evidence against him and presenting evidence favorable to him, the advocate must also present any defenses available to the youth and any extenuating circumstances. The advocate must present the case for the youth, even if the youth has waived his right to be present at the hearing. The advocate may not plead True on behalf of the youth.

3. Confidentiality and Disruptions

To protect the confidential nature of the hearing, everyone but the hearing manager, staff representative, advocate, youth, and youth parents is to be excluded from the room unless the youth and advocate agree that the person can be present (or if it is a person whose presence is necessary for security purposes).

Any person other than the staff representative and advocate may be removed from the hearing room if he is engaging in behavior that causes an undue disruption or delay of the hearing. The reasons for removal must be stated on the record.

4. Witnesses

All witnesses are to be sworn in by the hearing manager. The hearing manager should have each witness raise his right hand and answer the question, “Do you swear or affirm that you will tell the truth, the whole truth, and nothing but the truth?” Witnesses must come in and testify one and a time and must be told they are not to discuss their testimony with anyone until the hearing is over. The only witnesses who may be present while others testify are the staff representative and the youth (both of whom may or may not be witnesses).

The youth has the right to be present when others testify. The only exception is if the hearing manager determines that the only way to get the witness to testify is to allow the witness to do so outside of the presence of the youth.

If the staff representative believes this to be the case, the staff representative must present this to the hearing manager and explain why the witness will not testify in the presence of

the youth. The advocate must be present for this conversation and may object. The hearing manager will have to decide if there is sufficient reason to believe the witness will only testify if the youth is removed from the room. The hearing manager may need to ask questions of the witness to make this decision. This discussion and ruling must take place on the record and outside of the presence of the youth.

If the hearing manager decides to let the witness testify outside of the presence of the youth, the youth must be removed from the room while the witness testifies. Arrangements need to be made to get the witness into the room without the witness seeing the youth. After the witness answers questions from the staff representative and hearing manager, the advocate must be given time to speak to the youth about the testimony and then will return and question the witness. The youth will know the name of the witness and will be told what the witness says; this provision simply allows the witness to testify outside of the presence of the youth.

5. Youth Waiver of Attendance

The youth may, in writing, voluntarily waive his right to be present at the Level II Hearing. Form LS-202 is used for this. Through his behavior, the youth may also waive his presence at the hearing. If this is the case, the reasons for the youth not appearing must be stated on the record.

6. Defenses

Common defenses include: mistake of fact (the incident did not happen); mistaken identity (the incident happened, but another youth committed the misconduct); and self-defense (the youth is entitled to use the amount of force reasonably necessary to prevent injury to himself and to remove himself from the situation; hitting back just because someone hit you is not self-defense unless it was necessary to remove oneself from harm’s way).

7. Extenuating Circumstances

The advocate must be prepared to present extenuating circumstances, if there are any. An extenuating circumstance is not a defense that makes the conduct not a violation; it is simply a good explanation for why the youth engaged in the conduct.

Examples of extenuating circumstances are:

a. the only property involved in the offense was of minimal value and the youth returned it undamaged to its owner;

b. the only bodily injury intended or inflicted by the youth consisted of brief or minor discomfort;

c. the youth’s conduct was an impulsive response to perceived provocation and posed no threat to persons or property; or

d. the youth was persuaded to participate in the offense by a parent or other authority figure.

If the hearing manager finds extenuating circumstances do exist, the youth cannot be given a major consequence. However, the rule violation will remain in the youth’s disciplinary record and the treatment team may consider it in determining appropriate actions to address the youth’s behavior.

In the event an extenuating circumstance is found for an allegation of Possession of Contraband Money, the money is not placed in the student benefit fund; the hearing manager is responsible for determining an appropriate disposition of the money.

8. Evidence

Any credible evidence, regardless of its form, is admissible in a Level II Hearing. This includes but is not limited to video, incident reports, written statements, nurse’s notes, and photographs. Hearsay evidence is admissible. The key to whether or not evidence is to be considered by the hearing manager is its credibility. If the hearing manager does not believe someone’s testimony or a written statement, the hearing manager is not to consider that evidence in making his decision. If the hearing manager believes video or photographs have been in any way altered, that would not be credible evidence and the hearing manager is not to consider it.

Both the youth and advocate are entitled to see all evidence at least 24 hours prior to the hearing and must be provided copies of it or information on where they can view it if it is not able to be copied.

9. Hearing Format

The hearing manager will call the hearing to order and explain the process and rights to the youth.

The staff representative will read the allegation(s) into the record one at a time. The youth will plead to each one separately.

The hearing manager will ask the youth if he understands the allegation and how he wishes to plead. If the youth pleads true, the hearing manager will ask him some questions to make sure no one promised him anything or threatened him to get him to plead true and to make sure the youth is admitting to all of the elements of the offense. Remember, only the youth may plead true to an allegation, if the youth is not present, the advocate must plead not true.

If the youth pleads not true (or is not present), the staff representative will present evidence. The advocate and hearing manager will have an opportunity to question witnesses and voice issues about other evidence. Once the staff representative has presented all of his evidence, the advocate will present his evidence. The staff representative and hearing manager will have the opportunity to question witnesses and voice issues about other evidence.

Once both sides have presented their evidence, the hearing manager may request to hear from other people or to have other evidence admitted in order to ensure he is making an informed fact-finding decision. The hearing manager may recess the hearing to do this.

Once all evidence has been presented, the hearing manager announces whether or not he finds each allegation to be true. If no allegations are found true, the hearing ends. If any allegation is found true, the hearing proceeds to Disposition.

In Disposition, the hearing manager gives the youth the opportunity to present evidence of any extenuating circumstances. If the hearing manager finds extenuating circumstances, no consequences are imposed. If the hearing manager does not find extenuating circumstances, the consequences requested by the staff representative are imposed as long as they are permitted by policy for the allegation(s) found true.

At the end of the hearing, the hearing manager reminds the youth of his right to appeal. (Note: There is no automatic appeal if the youth is not present – when the youth is given his copy of the CCF-170, he must be told of his right to appeal).

G. Approvals, Data Entry, Record Keeping, and Appeals

The program administrator (superintendent, parole supervisor, QAS) is responsible for reviewing the CCF-170 for policy compliance before it is entered into the system.

The CCF-170 must be entered into the system within 72 hours of the hearing.

The hearing packet goes in the youth’s masterfile. A copy of the hearing packet and the digital recording must be maintained at the facility for at least six months. The facility who requested the hearing is responsible for data entry and for maintaining the records.

The appeal must be sent to the Office of General Counsel within 48 hours of the youth’s decision to appeal. The packet should be scanned and emailed to the Legal Assistant for Appeals at hearing.appeals@TJJD.state.tx.us or faxed to 512-424-6166 if unable to scan and email. A copy of the digital recording must be placed in the Z-drive under the appropriate facility folder. This must be a copy, not the original, as it will be deleted once the appeal is answered. If the packet is too large to email, it may also be saved on the Z-drive but an email alerting the Legal Assistant for Appeals about the appeal must be sent.

IV. LEVEL III HEARINGS – IN DETAIL A. Security Admission In high-restriction facilities, a Level III Hearing is held only to decide if a youth will be admitted to or extended in the security unit. A paper CCF-171 must be completed for each Level III Hearing and must be data entered into CCS. When a youth is referred to security, a CCF-225 must accompany him to the security unit (or arrive within the time prescribed by policy). Once the CCF-225 arrives, the security caseworker will hold a Level III Hearing to determine if the youth will be admitted to the security unit. To do this, the security caseworker will read the CCF-225 and any accompanying documents, will talk to any witnesses if necessary (this can typically be done by calling the dorm), and will listen to what the youth has to say, if the youth wishes to speak. Once all the evidence has been reviewed, the security caseworker will determine which rule violation, if any, there are reasonable grounds to believe the youth committed. The security caseworker must circle the rule violation on page 2 of the CCF-225. If the security caseworker determines no rule violation was committed, the youth must be released from security. If the security caseworker determines a rule violation was committed, he must then determine if security admission criteria is present. See GAP.380.9740. Security admission criteria are:

a. the youth is a serious and continuing escape risk; b. the youth is a serious and immediate physical danger to others and staff cannot

protect them except by admitting the youth to security program; c. the confinement is necessary to prevent imminent and substantial destruction of

property; d. confinement is necessary to control behavior that disrupts programming to the

extent that the current program cannot continue except by admitting the youth to the security program; or

e. the youth is likely to interfere with a pending or ongoing investigation or a requested or scheduled due process hearing.

If a youth is admitted to security, he may be held for up to 24 hours. However, as soon as the reason for admission is no longer present, the youth must be released. B. Security Extension If the youth has not been released within 24 hours, another Level III Hearing must be held. The purpose of this hearing is to determine if criteria for extension in the security unit is present. To extend a youth, there must be new behavior that demonstrates one of the above-

listed grounds for security admission is present or the youth has violated a security program rule. An extension is valid for up to 24 hours. However, as soon as the reason for the extension is no longer present, the youth must be released. A new CCF-225 must be created detailing the behavior that justifies the extension for each day. A new CCF-171 must be prepared and entered into the system for each hearing. There may be four extension hearings, for a total of five calendar days in security. There must be an advocate for every extension hearing. If after five days, the grounds for security extension are still present, the Superintendent must request permission from the Director of Youth Services or Designee (i.e. Regional Director) to keep the youth in security. This request must be accompanied by evidence that the youth’s behavior demonstrates he meets security extension criteria and there is no less restrictive alternative in the facility. C. Minor Sanctions for Medium Restriction Facilities and Parole For medium-restriction facilities and parole, Level III Hearings are held in order to impose a minor sanction. Staff (parole officer, caseworker, etc.) must tell the youth what rule violation staff believes the youth committed and what evidence staff has to prove that. The youth has an opportunity to challenge the evidence, present his version of events, and present any extenuating circumstances. After that, the staff person must determine if there are reasonable grounds to believe the youth committed a violation (and which one) and if there are any extenuating circumstances. If there are reasonable grounds to believe an offense was committed and there are no extenuating circumstances, a minor consequence may be imposed. D. Appeals Youth may appeal Level III Hearings on the following grounds:

a. The violation was not committed; b. Security admission criteria is not present; c. Extenuating circumstances should have been found; or d. The sanction imposed is not appropriate for the offense

The appeal is to be assigned to the Superintendent, QA, or Parole Supervisor, as appropriate. The youth may appeal that response to the Executive Director. It will be assigned to an attorney in the Office of General Counsel for response. Please email all appeals to hearing.appeals@TJJD.state.tx.us.

V. LEVEL IV HEARINGS – IN DETAIL A. Reasons for a Level IV Hearing A Level IV Hearing can be held for the following reasons: 1. To detain a youth pending a Level I Hearing 2. To detain a youth pending a Level II Hearing seeking disciplinary transfer 3. To detain a youth pending a transfer to TDCJ hearing 4. To detain a youth pending a county trial or hearing or pending county charges. Under no circumstances may a youth be placed in detention for the purpose of punishment. B. Timelines If a youth is detained in a county juvenile detention facility and they are holding the youth using their own detention hearings, no further action is necessary by staff. If, however, the county decides to release a youth, staff must hold a Level IV Hearing to keep the youth detained. If the youth is moved to a TJJD facility after a county detention hearing, a TJJD Level IV Hearing will be due within 72 hours of the youth’s arrival at the TJJD facility. The reason another hearing is necessary is because the county has no authority to order a youth detained in a TJJD facility. If the youth is detained in a county juvenile detention facility that is not holding its own detention hearings or if the youth is being held in a county jail, staff must hold a Level IV Hearing prior to the 10th working day after the youth was detained. The day the youth was detained is not counted. The day after the youth was detained counts as Day 1. Weekends and holidays are not counted. The hearing must be held no later than 5:00 p.m. on Day 10 of the count. If community detention is not available, staff may detain the youth in a TJJD facility. In order to have a youth temporarily admitted, staff must provide to the institution a copy of the written request for the Level I Hearing (LS-177) or Level II Hearing, a written statement including the purpose of admission along with any supporting documentation (incident reports, arrest reports, expected length of stay), and the medical file or pertinent medical records and any medication the youth is taking. The admitting staff will review that information to determine if there are reasonable grounds to believe criteria for admission have been met (criteria for detention will be explained herein). If the criteria are not met or policy and procedures are not followed, the youth will be released. If the youth is admitted, the Level IV Hearing must held within 72 hours. If the 72nd hour falls on a weekend or holiday, the hearing must be held no later than the next working day. If the youth is detained as a result of the Level IV Hearing, subsequent Level IV Hearings must be held every 10 working days until the Level I Hearing is held.

C. Hearing Process – Level IV Pending a Level I A youth will be represented by a defense attorney at a Level IV Hearing. Proving that a Level I Hearing has been requested is one of the things staff must do during the hearing. Therefore, the Level I Hearing must be requested before the Level IV Hearing is due (and before the youth is placed in a TJJD facility). Once the hearing has been requested and defense attorney assigned, staff should contact the defense attorney regarding the Level IV Hearing. The youth, after speaking with his defense attorney, may waive the Level IV Hearing. To do this, both the youth and attorney must sign an LS-276 Form. If the hearing is not waived, staff and defense attorney must schedule a time to hold the Level IV Hearing. If the defense attorney is not available before the Level IV Hearing is due, staff should contact the Hearings Coordinator to have another defense attorney appointed for the Level IV Hearing. This should be done no later than the day before the hearing is due. A failure to hold the Level IV Hearing (or get a waiver) in a timely manner will result in TJJD lifting its hold on the youth and may result in the youth being released from detention pending the Level I Hearing. If multiple Level IV Hearings are required, then a new waiver form must be completed for each one. If the youth does not wish to waive a subsequent hearing, then the hearing must be held. A Level IV Hearing requires an impartial decision authority (not staff or parole supervisor and no one involved in the decision to detain the youth or admit the youth to the TJJD security unit). The supervisor who approved the Level I Hearing is responsible for appointing the decision authority. The decision-maker must be knowledgeable in TJJD policies. In order to detain a youth, the decision-maker must find that detention criteria are met. For detention pending a Level I Hearing, that means the decision-maker must find: 1) there are reasonable grounds to believe the youth engaged in a violation of law or a parole rule violation under GAP.380.9504; 2) a Level I Hearing has been requested; and 3) either a) the youth is likely to abscond and not appear at a disciplinary hearing; b) suitable supervision, care, or protection for the youth is not being provided by the parent or guardian to ensure protection of the public safety or prevention of youth self-injury and a less restrictive temporary shelter is not available or is inappropriate; or c) the youth is accused of committing a felony offense and may be dangerous to himself or others if released. The youth’s parole officer needs to present evidence to prove all of the things required. The LS-177 with the date and time of the hearing should be used to prove the hearing has been requested. Any incident reports or police reports should be used to show there are reasonable grounds to believe the youth committed a violation. Written documents or oral testimony can be used to show why detention is necessary based on one of the three possible factors. If the argument for detention is lack of suitable supervision, staff must also address why there are no less-restrictive shelters available or appropriate. The defense attorney may present reasons why detention is not appropriate.

The standard of proof in a Level IV Hearing is “reasonable grounds to believe.” This means there is information that would indicate to a reasonable person that the facts as alleged are true. All credible evidence may be considered, regardless of form. This means both oral and written evidence can be considered, as well as hearsay evidence, as long as the decision-maker believes it to be true. The Level IV Hearing will be recorded. The recording will be preserved for six months. If the decision authority determines detention criteria are not met, the youth must be released to his assigned location. Whether or not the youth is detained as a result of the Level IV Hearing has no impact on the Level I Hearing. The youth has the right to appeal the Level IV Hearing and is notified of that right at the end of the Level IV Hearing. Appeals should be sent to the Office of General Counsel – Appeals Section immediately by scanning and emailing the packet to hearing.appeals@TJJD.state.tx.us and saving the electronic recording on the Z-drive under the appropriate location’s folder. If the recording is not electronic, it must be sent by overnight mail. Any errors related to a Level IV Hearing become moot once the Level I Hearing is held. The only purpose of a Level IV Hearing is to detain the youth pending the Level I Hearing. The only cure for errors in a Level IV Hearing is to release the youth until the Level I Hearing. Once the Level I Hearing is held, there is no cure available for any errors in the Level IV Hearing. B. Hearing Process – Level IV Pending a Level II Youth may be detained pending a Level II only if it is a Level II Hearing seeking disciplinary transfer to a higher restriction facility. Youth will be assigned an advocate. After speaking with the advocate, the youth may waive the Level IV Hearing. If the youth does not waive the Level Hearing, the same process as described above is followed, except there is no defense attorney involved. C. Hearing Process – Level IV Pending Court Hearing/Trial or County Charges A youth may be detained in the TJJD security unit (institution detention) if:

1. a court hearing or trial has been requested in writing or scheduled (this includes a hearing regarding transfer to prison) or

2. criminal or delinquent conduct charges are pending or have been filed (by the county or SPU), AND

a. suitable alternative placement within the facility is unavailable due to

on-going behavior of the youth that creates disruption of the routine of the youth’s current program; or

b. the youth is likely to interfere with the judicial process, to include failing to appear; or

c. the youth represents a danger to others; or

d. the youth has escaped or attempted to escape, as defined in §95.3 of this title, or is likely to engage in any of the foregoing rule violations.

Charges are considered to be pending if there is reliable information that the district attorney intends to request an indictment or to file with the court a petition or other charging instrument. Charges are considered to be filed when an indictment has been issued or when a petition or other charging instrument has been filed with the court. If the youth is awaiting a court hearing for early transfer to the Texas Department of Criminal Justice – Institutions Division, the court hearing is considered to be “requested in writing” when TJJD makes a written request to the court for a hearing date. The staff referring the youth for detention must obtain approval from the appropriate supervisor before placing the youth in detention. Staff must make arrangements for the immediate release of the youth and return to the appropriate placement if approval is not granted, it is determined charges will not be filed or will be dropped, or it is determined that the court hearing or trial will be canceled. At the time of admission, the referring staff must have documentation that charges are pending or filed or that a court hearing or trial is scheduled or has been requested in writing, a written statement including the purpose of admission along with supporting documentation, the medical file or copies of pertinent medical records as well as any medication the youth is taking (if youth is not permanently assigned to the high-restriction facility where detained). The admitting staff must review the information presented to determine whether there are reasonable grounds to believe the admission criteria is present. If so, the youth may be admitted to institution detention for up to 72 hours. The Director of Security (or designee), is to review the admission decisions within one workday to determine if criteria has been met. If criteria are not met or policy or procedures are not followed, the youth is to be released from the security unit. The Director of Security (or designee) cannot be the referring staff or admitting staff. If the youth is admitted to detention, the Level IV Hearing must be held no more than 72 hours after admission (or the next workday if the 72nd hour falls on a weekend or holiday) and every ten working days after that. The appropriate staff will be responsible for appointing a decision-maker, who is impartial and who is not the person who referred or admitted the youth to detention nor the person who reviewed the initial admission decision. The decision-maker must be knowledgeable about the policies and procedures. The youth will be appointed a TJJD employee, contract employee, or volunteer trained to serve as an advocate to represent him in the hearing. The youth may waive the Level IV Hearing after speaking to the advocate. Every time another hearing is required by timelines,

the youth must speak to his advocate and determine if he wishes to waive the hearing. A new waiver form must be completed each time. If a hearing is not timely held or waived, the youth must be released. The staff requesting the detention has to prove that detention criteria are present. The advocate may present any evidence as to why the youth should not be detained. The standard of proof is reasonable grounds to believe. All credible evidence may be considered, regardless of form. The hearing must be recorded and the recording preserved for six months. The youth is notified in writing of his right to appeal. The appeal of the first Level IV Hearing is to the facility administrator. The appeal of the second Level IV Hearing is to the Executive Director. The third and subsequent Level IV Hearings are automatically appealed to the Executive Director, even if the youth waives the hearing. The staff requesting the detention is responsible for initiating the automatic appeal(s). Appeals to the Executive Director should be sent to the Office of General Counsel – Appeals Section immediately by scanning and emailing the packet to hearing.appeals@TJJD.state.tx.us and saving the electronic recording on the Z-drive under the appropriate location’s folder. If the recording is not electronic, it must be sent by overnight mail.