SECTION 415.309. Appealing a Facility Review Board's Determination of Manifest Dangerousness

The individual, LAR, or facility CEO may appeal a facility review board's determination that the individual is manifestly dangerous on the grounds that the determination was substantively flawed or on the grounds that the determination was affected by an error in a procedure specified in this subchapter. Transfer of the individual to the MSU/SAU is not stayed pending appeal.

(1) A request for an appeal from the individual or LAR must be in writing and received by the facility CEO within 10 days after receipt of the written report as described in §415.305(j) of this title (relating to Procedures and Requirements for All Review Boards). The request must include:

(A) the reason(s) why the requestor believes the review board's determination was substantively flawed; or

(B) the reason(s) why the requestor believes the review board's determination was affected by an alleged procedural error, including a description of the procedure specified in this subchapter and the alleged error.

(2) If the facility CEO believes that the determination was substantively flawed or that a procedural error may have affected the determination or if the CEO agrees with the person who requested an appeal that the determination was substantively flawed or that a procedural error may have affected the determination, then the facility CEO will convene the facility review board to conduct a new hearing in accordance with §415.307(1) - (4) of this title (relating to Procedures and Requirements Specific to a Facility Review Board), except that the facility review board members who were impaneled for the original hearing may not be impaneled on the facility review board that convenes for the new hearing. If the individual has already been transferred to the MSU/SAU, then the facility is responsible for returning the individual to the facility for the new hearing. A determination that the individual is manifestly dangerous by the facility review board in accordance with this paragraph may not be appealed.

(3) If the facility CEO does not agree with the person who requested an appeal that the determination was substantively flawed or that a procedural error may have affected the determination, then the facility CEO will notify the person in writing that the appeal has been denied.

Source Note: The provisions of this §415.309 adopted to be effective July 17, 2002, 27 TexReg 6297; amended to be effective July 19, 2011, 36 TexReg 4567