Any state may submit an informal written request to the Executive Director for assistance in interpreting the rules of this compact. The Executive Director may seek the assistance of legal counsel, the Executive Committee, or both, in interpreting the rules. The Executive Committee may authorize its standing committees to assist in interpreting the rules. Interpretations of the rules shall be issued in writing by the Executive Director or the Executive Committee and shall be circulated to all of the states. / Advisory Opinion Policy
All Advisory Opinions At-A-Glance
Guidance Concerning Out-of-State Travel for Sex Offenders
Whether a receiving state’s compact administrator may prohibit an offender, whose supervision was transferred to the receiving state pursuant to ICAOS, from traveling outside of the receiving state while under supervision in the receiving state? Whether the sentencing court in the sending state retains the authority, in light of ICAOS and its attendant rules and regulations, to authorize an offender’s out-of-state travel for work purposes once his or her supervision has been transferred to another state pursuant to ICAOS?
Since ICAOS Rule 4.101 requires that a receiving state shall supervise a compact offender “consistent with the supervision of similar offenders sentenced in the receiving state” then compact offenders should be subject to the same exception as offenders sentenced in the state.
The sentencing court in the sending state does not surrender its’ jurisdiction over an offender whose supervision is transferred to another state. The sending state court continues to exercise some authority over a compact offender for the duration of the period of supervision.
Authority to Issue Travel Permits
Authority of judges and probation or parole officers to permit certain offenders to travel outside of Texas who, by reason of the type of crime committed or the duration of the travel, are not eligible for transfer of supervision under the provisions of the Interstate Compact for Adult Offender Supervision (“ICAOS”) or ICAOS administrative rules. Whether offenders whose offenses otherwise qualify for transfer of supervision under the provisions of ICAOS rules may be permitted to travel out of state for a period of forty-five (45) days or less?
Offenders not subject to ICAOS may, depending on the terms and conditions of their sentences, be permitted to move across state lines without prior approval from the receiving state and neither judges nor probation officers are prohibited by ICAOS from allowing such offenders to travel.
An offender who is not relocating but simply leaving the state (for a period not exceeding 45 consecutive days) for routine business travel, vacations, visits to family, medical appointments, and other such out-of-state travel normally undertaken in the activities of everyday life is not subject to the ICAOS rules concerning a transfer of supervision, other than notification requirements in victim sensitive cases, even if otherwise eligible to transfer supervision under the Compact.
1. Whether a sending state is required to provide details of the sex offense in a request for reporting instructions for sex offenders living in the receiving state at the time of sentencing, pursuant to Rule 3.101-3 (c)(1).
2. Whether a receiving state can deny a transfer request of an offender where the sending state has imposed a condition on the offender that the receiving state is unable to enforce.
3. Whether the provisions of the Compact and its rules supersede conflicting state laws.
The provisions of Rule 3.103(e) (1) and (2) (governing offenders in the receiving state at time of sentencing) are premised on the proposition that the offender’s continued lawful presence in the receiving state under the compact ultimately depends upon the determination of the offender’s eligibility for transfer.
Under ICAOS Rule 4.103, the addition of a special condition which the receiving state is unable to enforce only requires that the receiving state notify the sending state of its inability to enforce a special condition at the time the transfer request is made [ICAOS Rule 4.103 (d)].
It is unquestionably the case that the provisions of the Compact and its rules, by virtue of congressional consent under Article I, Section 10, Clause 3 of the federal Constitution have been ‘transformed into federal law’ and supersede conflicting state laws.
Whether All Violations Must Occur in the Receiving State
Although the rule does not explicitly state that such violations must occur in the receiving state, it is unreasonable to assume that Rule 5.103 (a) intends that significant violations occurring in the sending state prior to transfer are also to be considered by the receiving state to satisfy the requirements of the rule. The provisions of ICAOS Rule 3.101 are unequivocal in requiring that to be eligible for mandatory transfer an offender must be “in substantial compliance with the terms of supervision in the sending state,” in addition to the other requirements set forth in that rule.
In order to qualify for a subsequent ‘mandatory transfer’ under Rule 3.101 an offender would have to demonstrate ‘substantial compliance’ with the terms of supervision in the sending state without which such offender would be disqualified. If the receiving state has accepted the subsequent transfer and by such act has in effect agreed that the offender is in substantial compliance with the terms of supervision, then it is unreasonable to assume the subsequent application of Rule 5.103 (a) to include those prior violations as a basis to require retaking.
Denial of Reporting Instructions
Where an investigation by the receiving state reveals that a transfer request for an offender living in the receiving state at the time of sentencing does not comply with the provisions of Rule 3.101(b) which requires a valid plan of supervision, a receiving state may properly deny the transfer request. If this determination is made prior to the expiration of the time frames set forth in Rule 3.103(a) the issuance of reporting instructions to such an offender has become moot. If the investigation has not been completed, reporting instructions are required to be issued as provided in Rule 3.103(a). Upon completion of investigation, if the receiving state subsequently denies the transfer on the same basis or upon failure to satisfy any of the other requirements of Rule 3.101, the provisions of Rule 3.103(e)(1) and (2) clearly require the offender to return to the sending state or be retaken upon issuance of a warrant.
Offenders in Federal Housing
A receiving state is not authorized to deny a transfer of an offender based solely on the fact that the offender intends to reside in Section 8 housing. Denial of transfer on this basis, with the exception of sex offenders and those convicted of the manufacture or production of methamphetamine, is tantamount to adding a special condition or requirement prior to the acceptance of transfer in violation of ICAOS Rule 3.101.
Clarification that a receiving state “shall supervise an offender... consistent with the supervision of other similar offenders sentenced in the receiving state”
Under the Compact an offender whose sentence includes provisions which, for example, require completion of other terms and conditions such as a court ordered treatment or behavioral modification program or periodic reports filed with the court in addition to merely requiring compliance with all laws, is not in actuality an “unsupervised offender.” As such the relocation of offenders under such sentences is subject to the jurisdiction of the ICAOS and applications for transfer should continue to be submitted and investigated as required under the Compact. During the term of the conditions imposed by the sending state such an offender is subject to the rules of the Compact governing supervision of offenders generally as provided in Chapters 4 and 5 of the Compact rules.
Each state should determine the extent to which authority is vested in parole and probation officers as well as other law enforcement and peace officers to effect such an arrest, including the need for a warrant. If application for issuance of an arrest warrant must be made to a judge, it may be helpful to point out that Article V, subsection (b) of the state statute enacting ICAOS provides that ICAOS rules have the force and effect of statutory law and are binding in the compacting states. Article IX further provides that the courts of each compacting state shall enforce the Compact and take all actions necessary and appropriate to effectuate the Compact’s purposes and intent.