(a) Purpose. This rule establishes the procedure to be followed to ensure youth are afforded appropriate due process before certain actions are taken.
(b) Definitions. Definitions pertaining to this rule are under §380.9550 of this title unless otherwise defined within this rule.
(c) Applicability. A Level II hearing is appropriate due process in the following instances:
  (1) imposing a disciplinary consequence designated as a major consequence in accordance with §380.9503 of this title;
  (2) placing a youth in the moderate or intensive level of the intervention program in accordance with §380.9510 of this title;
  (3) transferring a parole-status youth from a home or home substitute to a medium-restriction facility for non-disciplinary reasons;
  (4) transferring an institutional-status youth who was initially assigned to a medium-restriction facility in accordance with §380.8521 of this title to a high-restriction facility for non-disciplinary reasons;
  (5) transferring a conditionally placed youth to a higher-restriction facility pursuant to §380.8545 of this title;
  (6) with a few exceptions in procedure as identified in §380.9571 of this title:
    (A) admitting a youth to a Texas Juvenile Justice Department (TJJD)-operated crisis stabilization unit; and
    (B) extending the time to treat a psychiatric disorder in connection with a crisis stabilization unit placement (as appropriate); or
  (7) depositing into the student benefit fund money possessed by a youth in a residential program in violation of §380.9503 of this title.
(d) Criteria.
  (1) In order for a youth to receive a major consequence, in accordance with §380.9503 of this title, or have contraband money seized and placed in the student benefit fund, the hearing manager shall find:
    (A) the youth committed an eligible rule violation; and
    (B) there are no extenuating circumstances, as defined by §380.9550 of this title.
  (2) In order for the youth to be placed in the moderate or intensive level of the intervention program, the hearing manager must find the youth committed an eligible rule violation.
  (3) In order for a youth to be transferred to a higher-restriction placement for non-disciplinary reasons, the hearing manager must find that there are no less restrictive placements appropriate and available for the youth.
  (4) In order for a conditionally placed youth to be transferred to a higher-restriction placement, the hearing manager must find one or more of the criteria required in §380.8545 of this title.
  (5) For criteria for admission to or extension in a crisis stabilization unit, see §380.8767 of this title.
(e) Requesting the Hearing.
  (1) The appropriate staff person, as specified by TJJD procedural manuals, must request permission to schedule a hearing from the facility administrator, parole supervisor, contract case management supervisor, or their designees. The hearing must be requested and scheduled as soon as practical but no later than seven days, excluding weekends and holidays, after the alleged violation or discovery of the alleged violation.
  (2) For hearings involving a non-disciplinary transfer or transfer from a conditional placement, the youth may waive the hearing and agree to the transfer. The waiver must be in writing. If the youth does not waive the hearing, the hearing must be held before the transfer. However, if good cause compels a pre-hearing transfer, the hearing must be held no later than three calendar days after the transfer.
  (3) Failure to meet any timeline in this subsection must be justified with documentation of circumstances that made it impossible, impractical, or inappropriate to meet the deadline. Failure to document these justifications may result in a dismissal of the allegations or a reversal of the decision(s) of the hearing manager.
(f) Hearing Manager.
  (1) The hearing manager must be a TJJD employee trained to function as a hearing manager. The hearing manager must be impartial and may not be a person who:
    (A) witnessed any part of the alleged violation(s);
    (B) made any prior decisions regarding the youth based on the alleged violation; or
    (C) is directly responsible for supervising the youth.
  (2) If the youth is currently assigned to a halfway house, the hearing manager may not be a member of the halfway house staff.
  (3) If the youth is currently assigned to a contract program, the hearing manager may not be the TJJD case management specialist assigned to that youth.
  (4) If the youth is currently assigned to his/her home, the hearing manager may not be the parole officer or parole supervisor assigned to the youth's case.
(g) Staff Representative.
  (1) The staff representative shall be a TJJD employee trained to function as a staff representative.
  (2) The staff representative is responsible for assembling all evidence, giving all required notices, and presenting evidence at the hearing.
(h) Advocate.
  (1) A TJJD employee, contract employee, or volunteer who has been trained to serve as an advocate shall assist the youth. If a youth hires his or her own counsel, then no advocate will be appointed.
  (2) The youth is given the opportunity to choose an advocate from among those trained. The youth's choice shall be honored unless there is a showing of unavailability of the requested advocate. If the youth does not choose an advocate or the requested advocate is unavailable, an advocate will be appointed.
  (3) The advocate may not be a person who was a witness to the alleged violation.
  (4) If the youth is not proficient in the English language, the advocate must be proficient in English and in the youth's primary language or an interpreter shall be used.
(i) Notice.
  (1) Not later than 24 hours before the hearing, the youth and the youth's advocate shall be given:
    (A) written notice of the reasons for calling the hearing;
    (B) written notice of the proposed action to be taken;
    (C) written notice and copies of the evidence to be relied upon; and
    (D) written notice of the following rights of the youth:
      (i) the right to remain silent;
      (ii) the right to be assisted by an advocate in the hearing process;
      (iii) the right to confront and cross-examine adverse witnesses who testify at the hearing;
      (iv) the right to contest adverse evidence admitted at the hearing;
      (v) the right to call readily available witnesses and present readily available evidence on his/her own behalf at the hearing; and
      (vi) the right to appeal the results of the hearing. The right to appeal cannot be waived.
  (2) Staff currently employed at and youth currently residing at the location of the hearing are considered to be "readily available" and shall be called to testify at the youth's request. If there are unusual circumstances that would prevent the witness from attending in person or by phone or videoconference, the hearing may be postponed or continued to allow a witness's testimony. If the witness's testimony cannot be secured within a reasonable time, the hearing may proceed without the witness. The reasons for proceeding without requested witnesses shall be documented and placed in the hearing record.
  (3) Evidence is considered "readily available" if it is within the control of any TJJD staff member at the location of the hearing or is otherwise easily attainable. Video created by TJJD, such as body-worn-camera video and surveillance video, is generally considered "readily available" and shall be shown to the youth if used as evidence during the hearing. The reasons for excluding requested evidence must be documented and placed in the hearing record.
  (4) All youth in TJJD facilities and contract placements shall be given the hearing packet (all written materials relied upon and a list of witnesses) at least 24 hours before the hearing. The paperwork may be taken away from the youth if the youth is misusing the papers in any way.
  (5) After receipt of the written notice and consultation with the advocate, the youth may waive the 24-hour-notice period by agreeing, in writing, to an earlier hearing time.
Cont'd...