Administrative Order No. 2009-116Supreme Court of Arizona.
November 10, 2009.
Affecting Administrative Order No. 2004-02.
REBECCA WHITE BERCH, Chief Justice.
An amendment to the above captioned section of the Arizona Code of Judicial Administration having come before the Arizona Judicial Council on October 21, 2009, and having been approved and recommended for adoption,
Now, therefore, pursuant to Article VI, Section 3, of the Arizona Constitution,
IT IS ORDERED that Arizona Code of Judicial Administration § 6-211 is amended as indicated on the attached document. All other provisions of §6-211 as adopted, remain unchanged and in effect.
Dated this 10th day of November, 2009.
ARIZONA CODE OF JUDICIAL ADMINISTRATION Part 6: Probation Chapter 2: Adult Services Section 6-211: Intercounty Courtesy Transfers A. Definitions.
“Absconder” means a probationer who has moved from the primary place of residence without permission of the probation officer or whose whereabouts are unknown.
“Administrative director” means both the administrative director of the Administrative Office of the Courts (AOC) and the director’s designee.
“Court” means the superior court.
“Department” means the superior court adult probation department in each county.
“Family” means parents, grandparents, adult children, adult siblings, legal spouse, legal guardian, domestic partner, aunt, uncle, parents-in-law or stepparent of the probationer who is willing and able to assist and support the probationer and who has resided in the receiving county for at least 180 days at the time of transfer.
“Intercounty courtesy transfer” means the transfer of a probationer’s supervision from one Arizona county probation department to another Arizona county probation department.
“Notify” means written communication by mail, fax or email.
“Probationer” means an individual placed on supervised probation by the Superior Court of Arizona for a violation of any criminal offense or by a limited jurisdiction court for a violation of A.R.S. §§ 13-3601.01 or 13-3601.02. and placed on supervised probation with superior court.
“Receiving county” means the county in which the transferred probationer relocated for courtesy supervision.
“Receiving department” means the department in the county wherein the probationer relocated or is requesting to relocate.
“Reporting Instructions” means the temporary permission provided to a probationer to proceed to and remain in receiving county during the investigation of a transfer request.
“Resident” means a probationer who has resided in the receiving county for at least 180 days at the time of sentencing.
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“Residential treatment” means any type of licensed treatment or counseling where the probationer resides at the facility. Halfway houses are not considered residential treatment.
“Sending county” means the county where the probationer was convicted and placed on probation supervision.
“Sending department” means the department in the county where the probationer was convicted and placed on probation supervision.
“Stable residence” means one that is verified by home ownership, rental lease agreement, business relationships or ownerships, children enrolled in school system, property or rental tax records, or utility bills.
“Transferred probationer” means a probationer whose probation supervision has been accepted by another Arizona county probation department for intercounty courtesy supervision.
“Verifiable offer of employment” means acceptable
employment, considering the conditions of probation and the nature of the offense, that is confirmed either by a current pay stub or written, telephonic or personal contact with the prospective employer.
“Visible means of support” means proof of federal supplemental income, worker’s compensation, social security benefits, financial support from family member, or employment pay stub.
B. Applicability. Article VI, Section 3 of the Arizona Constitution, A.R.S. § 12-254 and A.R.S. § 13-901, authorizes the Supreme Court to establish guidelines to govern the supervision of adult probationers.
C. Purpose. To provide uniform guidelines for the intercounty courtesy transfer and supervision of adult probationers within Arizona and ensurecontinuity of supervision to provide the probationer the best opportunityfor positive behavioral change.
D. General Administration.
1. The AOC shall:
a. Prepare written material setting forth various techniques, practices, guidelines and other recommendations regarding the intercounty courtesy transfer of adult probationers;
b. Conduct educational sessions regarding intercounty courtesy transfers;
c. Provide general assistance to departments on intercounty courtesy transfers; and
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d. Adopt other administrative practices and procedures, consistent with this section, as necessary for the expedient administration of intercounty courtesy transfers.
2. Each department shall designate one or more liaisons to oversee intercounty courtesy transfer matters. The liaison shall:
a. Coordinate all incoming and outgoing transfers from the time of the request for transfer or reporting instructions until acceptance or rejection;
b. Monitor departmental compliance with this section;
c. Resolve all compliance issues in a timely manner; and
d. Notify the chief probation officer or designee immediately of all unresolved compliance issues for dispute resolution.
3. Each department shall provide ongoing training for all department staff involved in intercounty courtesy transfers.
4. Each department is authorized to transfer supervision data electronically from any compatible automated system Both departments involved in the intercounty courtesy transfer of a probationer shall submit supervision data electronically within the Adult Probation Enterprise Tracking System (APETS).
5. Both departments involved in the intercounty courtesy transfer of a probationer shall transfer supervision data electronically within the Adult Probation Enterprise Tracking System (APETS) provided both are using APETS Each department shall comply with all confidentiality provisions adopted by the supreme court.
6. The department shall consider the possibility of a transfer of jurisdiction under Rule 27.2.b for those probationers who have residency in the receiving county. Each department shall comply with all confidentiality provisions adopted by the supreme court.
E. Transfer Request Eligibility Requirements.
1. In accordance with caseload capacities a A
department shall accept a probationer who intends to reside in the county for a minimum of 120 days and who has:
a. Is a resident Stable residence in the county; or
b. Has Ffamily residing within the county and has demonstrated positive behavioral change; or
c. Has a verifiable offer of employment. A visible means of support;
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d. A verifiable offer of employment.
2. In accordance with caseload capacities a A
department may accept a probationer who:
a. Intends to reside in the county for a minimum of 120 days and does not meet eligibility requirements in subsection E(1) but whose transfer plan will assist in the probationer’s rehabilitation positive behavioral change and is in the best interest of public safety; or
b. Intends to reside in a residential treatment facility in the county for a minimum 120 days. If the intended stay in a residential treatment facility is less than 120 days, an agreement to provide supervision may be arranged by the liaisons from the counties involved in the intercounty courtesy transfer; or.
c. Intends to reside in the county for a minimum of 120 days and participate in any program that the receiving county allows offenders from their jurisdiction to attend.
3. A department shall not accept a new transfer request for a probationer who:
a. Has not been sentenced to supervised adult probation;
b. Has not satisfied all conditions such as electronic monitoring, jail, treatment (other than long-term residential treatment), and work release; Is subject to pending probation violation proceedings; or
c. Is subject to pending probation violation proceedings; or Does not intend to reside in the county for a minimum of 120 days, unless qualified under subsection E(2)(b)(c). These cases shall be handled pursuant to the department’s policies and procedures for temporary travel.
d. Is convicted of a felony offense that requires the probationer to register pursuant to A.R.S. § 13-3821 and whose residence does not meet the requirements outlined in A.R.S. § 13-922 within the time period specified by the receiving county. Does not intend to reside in the county for a minimum of 120 days, unless qualified under subsection E(2)(b)(c). These cases shall be handled pursuant to the department’s policies and procedures for temporary travel.
4. The sending department shall contact the receiving department’s liaison when it is impossible for a condition to be satisfied prior to the transfer request to determine if the department has the resources to allow the probationer to comply with the special condition.
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F. Financial Requirements.
1. All transferred probationers shall continue to remit payment for court-ordered assessments to the clerk of the superior court in the county where the probationer was sentenced, pursuant to departmental policies and procedures.
2. All transferred probationers on intensive probation supervision (IPS) shall surrender their paychecks for payment of court-ordered assessments pursuant to the departmental policies and procedures of the sending and receiving departments.
3. The sending department shall suspend the probation service fee assessment of a transferred probationer if the probationer has also been sentenced to probation and ordered to pay a probation service fee assessment in the receiving county.
4. The department having responsibility over the first conviction shall collect the probation service fee assessment if the transferred probationer has been placed on supervised probation with two or more departments and does not reside in the jurisdiction of any of the departments.
5. A Jjudges from the sending county are authorized to may assess a probationer who requests a transfer
additional amounts monthly as part of the probation service fees charged pursuant to A.R.S. § 13-901(A), totaling no more than $150 for each transfer request following due consideration of the probationer’s ability to pay the increased fee.
6. Departments shall establish written policies and procedures regarding the assessment of any additional probation service fee for each transfer request.
G. Investigation Procedures for Intercounty Courtesy Transfer Requests.
1. Prior to requesting intercounty courtesy transfer of supervision and authorization for the probationer to relocate, each sending department shall:
a. Ensure the probationer meets eligibility requirements; and
b. Verify Obtain the prospective residence mailing address, and, if applicable, a contact phone number, a map to the residence and employment of the probationer; and
c. Complete an intercounty courtesy transfer request packet and forward it to the receiving department.
2. Each intercounty courtesy transfer request shall include:
a. Copies of: Intercounty Courtesy Transfer Request;
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(1) Intercounty Courtesy Transfer Request;
(2) Intercounty Courtesy Transfer Agreement;
(3) The sentencing court order;
(4) Signed conditions of probation;
(5) Pre-sentence Investigation (PSI). If the PSI has been waived by the court, the police report and criminal history shall be included;
(6) Photograph;
(7) Psychological or medical reports with all pertinent releases of information, if applicable; and
(8) Any assessments or evaluations not available in the electronic case record.
b. Each intercounty courtesy transfer request packet shall include the following in APETS: Intercounty Courtesy Transfer Agreement;
(1) A case note that includes a status of all conditions of probation, if applicable, to include information about any outstanding warrants
(2) Current risk and needs assessment, if applicable;
(3) Drug, alcohol and sex offender screening instruments, if applicable and available;
(4) DNA collection verification, if applicable;
c. Copies of the sentencing court order;
d. Signed conditions of probation;
e. Pre-sentence Investigation (PSI). If the PSI has been waived by the court, the police report and criminal history shall be included;
f. Photograph;
g. Psychological or medical reports with all pertinent releases of information, if applicable;
h. Transfer summary, including status of all conditions of probation;
i. Current risk and needs assessment;
j. Copy of all drug, alcohol and sex offender screening instruments, if applicable and available;
k. DNA verification, if applicable;
l. Sex offender registration verification, if applicable; and
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m. A current warrants check. All active warrants must be cleared prior to a transfer request.
3. The receiving department shall begin the investigation and contact the liaison in the sending department to request any documentation missing from the intercounty courtesy transfer request or the electronic record of the case. The sending department shall provide the missing information in a timely manner to facilitate the transfer and reply from the receiving department.
4. The receiving department shall conduct an investigation and submit a written reply via email to the sending department within 30 days of receipt of an intercounty courtesy transfer request. The investigation shall follow departmental policies and procedures and at a minimum include:
a. Verbal or written confirmation from any other adults those living at the proposed residence that they are willing to have the probationer reside at that location and understand all of the court imposed conditions; and
b. An initial verification on-site home visit of the proposed residence with a walk through; and
c. Verification, either personal, written or telephonic, of the proposed employment or plan to secure employment including business name, address, telephone number, probationer’s work hours, wages, and supervisor.
5. The receiving department shall mail, fax or email the reply to the intercounty courtesy transfer request to the sending department. The reply shall include the following:
a. Whether the request is approved or denied. If denied, include reasons for the denial A statement addressing eligibility requirements; and
b. Notification of any court-ordered conditions of probation that cannot be met. The steps undertaken by the probation officer during the investigation to verify the stated reasons for the request;
c. Notification of any court-ordered conditions of probation that cannot be met; and
d. Whether the request is approved or denied.
6. The reply to an intercounty courtesy transfer request that has been approved shall also include:
a. Name, county, email address and telephone number of the assigned supervising probation officer;
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b. The conditions of probation under which the transferred probationer will be supervised, including any special supervision requirements; and
c. Instructions to the transferred probationer for reporting, if not previously provided.
7. Supervision: The receiving department shall immediately begin active supervision of the transferred probationer once the intercounty courtesy transfer request is approved. Supervision shall continue until maximum expiration, until permission to close supervision has been granted by the sending department, or until the receiving department returns the transferred probationer pursuant to subsection L(2)(c).
a. For a probationer who has arrived and reported in the receiving county under approved reporting instructions, the receiving department shall be responsible for conducting contacts in accordance with their department’s case management standards and the Arizona Code of Judicial Administration.
b. The receiving department shall immediately begin active supervision of the transferred probationer once the intercounty courtesy transfer request is approved and once the offender reports to the receiving county.
c. Supervision shall continue until maximum expiration, until notification of early termination, or until the receiving department returns the transferred probationer pursuant to subsection L(2)(c).
8. If the intercounty courtesy transfer request is denied and the probationer has already reported on approved reporting instructions relocated, the receiving department shall direct the transferred probationer to immediately return to the sending county and report to the sending department the sending department shall provide reporting instructions to the receiving department within 5 business days from the receipt of the denial. If the probationer is on IPS, the reporting instructions shall be provided within 2 business days from the receipt of the denial.
9. If the probationer does not relocate within 30 days after the intercounty courtesy transfer request is approved, the receiving department shall immediately notify the liaison in the sending department to determine the status of the probationer. The receiving department shall immediately notify the liaison in the sending department if the probationer is on IPS and has not relocated within 72 hours.
H. Reporting Instructions.
1. For standard probationers who are living in the receiving county at the time of sentencing, the sending department shall request reporting instructions and the receiving department shall provide them within two business days of receipt of the request. The standard probationer may proceed prior to the receipt of the reporting instructions. The
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sending department shall contact the liaison in the receiving department to request ting instructions if the sending department verified the probationer’s need to relocate to the completion of a transfer investigation. The sending department shall then de the reporting instructions to the probationer if the reporting instructions are provided by the receiving department.
2. For probationers on intensive probation supervision and who are living in the receiving county at the time of sentencing, the sending department shall request reporting instructions and the receiving department shall provide them within one business day of receipt of the request. To allow for a residence verification, the intensive supervision probationer shall not proceed until reporting instructions are approved and received. The sending department shall forward a copy of the probation conditions to the receiving department within 24 hours when reporting instructions are provided.
3. For probationers required to register as a sex offender or subject to sex offender conditions and who were living in the receiving county at the time of sentencing, they shall not proceed until reporting instructions are requested and approved by the receiving department. The receiving department shall provide the reporting instructions within two business days from receipt of the request. The sending department shall submit the intercounty courtesy transfer request to the receiving department within 15 days of receipt of reporting instructions.
4. For probationers not residing in the receiving county at the time of sentencing, a sending department may request reporting instructions and the receiving department shall respond within five business days from receipt of the request. The receiving department shall require the probationer to comply with the reporting instructions until the investigation is complete.
5. For probationers under interstate compact supervision, the sending department shall request and receive reporting instructions from the receiving department prior to allowing the probationer to proceed to the receiving county. The receiving department shall respond within five business days from receipt of the request. The receiving department shall immediately notify the liaison in the sending department to determine the status of the probationer if the probationer fails to comply with the reporting instructions and is unable to be contacted or located.
6. The process for requesting reporting instructions is as follows: receiving department liaison shall obtain the probationer’s name, date of birth, county of conviction, and the name and telephone number of the probation officer if the receiving department is contacted by a probationer who did not receive reporting instructions. The receiving department liaison shall immediately contact the liaison in the sending department to discuss the matter.
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a. The sending department shall contact the liaison in the receiving department to request reporting instructions via the approved form. The sending department shall then provide the reporting instructions to the probationer if the reporting instructions are approved by the receiving department.
b. The sending department shall forward a copy of the probation conditions to the receiving department within one business day when reporting instructions are approved.
c. The sending department shall forward if available a copy of the pre-sentence report or police report to the receiving department within one business day when reporting instructions are approved for all probationers on intensive probation supervision and probationers required to register as a sex offender or subject to sex offender conditions.
d. The sending department shall submit the intercounty courtesy transfer request packet to the receiving department within fifteen business days of receipt of approved reporting instructions.
e. The receiving department shall require the probationer to comply with the reporting instructions until the investigation is complete.
f. The receiving department shall immediately notify the liaison in the sending department to determine the status of the probationer if the probationer fails to comply with the reporting instructions and is unable to be contacted or located.
g. The receiving department liaison shall obtain the probationer’s name, date of birth, county of conviction, and the name, email address and telephone number of the probation officer if the receiving department is contacted by a probationer who did not receive reporting instructions. The receiving department liaison shall immediately contact the liaison in the sending department to discuss the matter.
I. Standards of Supervision.
1. Each receiving department shall supervise a transferred probationer as they would a probationer sentenced in their county for the same offense and in accordance with departmental policies and procedures and applicable sections of this code.
2. The receiving department shall comply with any special supervision requirements requested, provided that the receiving department uses the supervision technique or program for their own probationers. The receiving department shall notify the sending department of any supervision requirements which cannot be met. The sending department shall be responsible for either a modification of probation at the time ofPage 11
transfer or probation termination, or retaining the case until the condition has been satisfied.
3. The receiving department shall forward to the sending department all requests to change the level of supervision on a transferred probationer on intensive probation supervision for determination The receiving department shall determine the level of supervision of the transferred probationer pursuant to departmental policies and procedures and applicable sections of this code.
4. The receiving department shall only issue an out-of-state travel permit for a transferred probationer if approved by both departments The receiving department shall forward to the sending department all requests to change the level of supervision on a transferred probationer on IPS for determination.
5. The receiving department shall forward any supervision plan prepared pursuant to departmental policies and procedures and applicable sections of this code to the sending department. A.R.S. § 13-3822 (A) provides:
Within seventy-two hours, excluding weekends and legal holidays, after moving from the person’s residence within a county or after changing the person’s name, a person who is required to register under this article shall inform the sheriff in person and in writing of the person’s new residence, address or new name. If the person moves to a location that is not a residence and the person receives mail anywhere, including a post office box, the person shall notify the sheriff of the person’s address. If the person does not have an address or a permanent place of residence, the person shall register as a transient not less than every ninety days with the sheriff in whose jurisdiction the transient is physically present. Within three days after receipt of such information, the sheriff shall forward it to the department of public safety and the chief of police, if any, of the place from which the person moves, and shall forward a copy of the statement, fingerprints and photograph of the person to the chief of police, if any, of the place to which the person has moved.
6. The receiving department shall not approve out-of-state travel for a transferred probationer unless approved by the sending department as well. A.R.S. § 13-3822 (B) provides:
Within seventy-two hours after a person moves from a county in which the person is registered, the person shall notify in writing the sheriff of the county from which the person moves. If the person is subject to community notification requirements, the sheriff of the county from which the person moves shall advise the local lawPage 12
enforcement agency of the county to which the person moves of the move. . . .
7. A.R.S. § 13-922 13-3822 (A) provides:
A. An adult probation officer shall not approve the residence of a probationer who has been convicted of a felony offense that requires the probationer to register pursuant to § 13-3821 in any multifamily dwelling unless the number of probationers who are required to register and who reside in the multifamily dwelling is less than ten per cent of the number of dwelling units that are contained in the multifamily dwelling. Not more than one probationer who is classified as a level three offender pursuant to §§ 13-3825 and 13-3826 shall reside in a multifamily dwelling.
B. Subsection A of this section does not apply to any of the following:
1. A person who was convicted of a sexual offense and who was placed on probation before the effective date of this section until that person changes residence.
2. A person who resides in a residential treatment facility or a person who participates in a supervised program that provides transitional services, including diagnostic evaluation, behavioral, medical, psychiatric, psychological and social service care.
3. A juvenile who resides with a parent or guardian.
4. A multifamily dwelling in an industrial or commercial zone.
C. This section does not limit the court’s discretion to prohibit or restrict, as a condition of probation, a person who is convicted of a sexual offense from residing in any multifamily dwelling.
D. A public entity or an employee of a public entity is not liable for any failure to prevent a violation of this section unless the public employee, acting within the scope of the public employee’s employment, intended to disregard the provisions of this section or to cause injury or was grossly negligent.
E. This section applies only in counties with a population of more than two million five hundred thousand persons.
F. For the purposes of this section:
1. “Multifamily dwelling” means a building or buildings that are located in an area zoned residential, that are attached to each other, that contain two or more dwelling units, including triplexes, fourplexes and apartments, and that have as their primary access a common hallway or corridor.
2. “Multifamily dwelling unit” means one or more rooms within a building that are arranged, designed or used for residential purposes and that contain independent sanitary and cooking facilities.
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3. “Residential treatment facility” means a residential facility that provides any service or care, including diagnostic evaluation, behavioral, medical, psychiatric, psychological and social service care, vocational rehabilitation or career counseling, to residents and that is licensed by this state or a political subdivision of this state.
Within seventy-two hours, excluding weekends and legal holidays, after moving from the person’s address within a county or after changing the person’s name, a person required to register under the provisions of this article shall inform the sheriff in person and in writing of the person’s new address or new name. If the person moves to a location which is not a residence and the person receives mail at a post office box, the person shall notify the sheriff of the location of the post office box and the post office box number. . . .
8. Each department shall comply with all provisions of the Victims’ Bill of Rights. A.R.S. § 13-3822 (B) provides:
Within seventy-two hours after a person moves from a county in which the person is registered, the person shall notify in writing the sheriff of the county from which the person moves. If the person is subject to community notification requirements, the sheriff of the county from which the person moves shall advise the local law enforcement agency of the county to which the person moves of the move. . . .
9. The sending department determines the length of supervision. Each department shall comply with all provisions of the Victims’ Bill of Rights.
J. Transfer of Supervision to a Second Department.
1. The receiving department shall assist with a second intercounty courtesy transfer request if the sending and receiving departments grant permission for a transferred probationer to relocate a second time. The original receiving department shall continue to supervise the transferred probationer until the second intercounty transfer request is approved.
2. The receiving department shall not grant permission for the transferred probationer to relocate a second time until the second intercounty transfer request is approved or reporting instructions are provided.
3. Each department involved in the transfer of supervision to a second department shall comply with all provisions set forth in this code.
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K. Requests for Return to Sending Department.
1. Prior to allowing the transferred probationer to proceed to the sending county, Tthe receiving department shall contact the liaison in the sending department provide the proposed address, telephone number and obtain reporting instructions before allowing the probationer to proceed back to the originating county when a transferred probationer requests to return to the sending county and provide the sending department with the transferred probationer’s proposed address, telephone number and name of contact person(s).
2. The liaison in the sending department shall provide approve reporting instructions allowing the transferred probationer to return within two business days.
3. The receiving department shall provide written reporting instructions to the transferred probationer with the written reporting instructions.
L. Probation Violation Procedures.
1. Each department shall comply with departmental policies and procedures and applicable sections of this code governing all facets of probation violation procedures.
2. Violation Procedures for Non-Absconders:
a. The receiving department shall immediately notify the sending department of all alleged violations of the conditions of probation that would result in the request of a petition to revoke in the receiving county. Notification shall be via fax, mail or email and shall include: all documentation requested by the sending department.
(1) The facts and details of each alleged violation;
(2) Any supporting evidence such as police reports, drug testing results, progress reports from the treatment provider, or a search report from conducting a warrantless search;
(3) Any statements made by the transferred probationer relevant to the alleged violation(s);
(4) A history of supervision detailing changes in employment, residence or general attitude;
(5) The receiving department’s efforts in assisting the transferred probationer in complying with the conditions of probation; and
(6) The receiving department’s recommendation regarding continued supervision.
b. The sending department shall respond to the notification of alleged violation(s) via fax, mail or email within 5 working days of receipt of the notification. The response shall include the sending department’s decision regarding action to be taken.
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c. When If the receiving department’s
recommendsation is revocation of a transferred probationer based on evidence that would result in the revocation of a probationer sentenced in the receiving county, by the sending department and the sending department refuses to take any action, then following advance written notification of the intent to return the transferred probationer to the sending county, the receiving department may order direct
the transferred probationer to return and report to the sending county with advance notice to the sending department probation officer of record.
d. The receiving department shall continue to supervise the transferred probationer during any probation revocation process until the court disposes of the petition to revoke or the transferred probationer is returned to the sending county.
3. Violation Procedures for Absconders. The receiving department shall notify the sending department via fax, mail or email that the transferred probationer has absconded. Each department shall comply with departmental policies and procedures and applicable sections of this code concerning absconders.
M. Closing Supervision.
1. Receiving departments shall close supervision only on receipt of notice by the sending department under the following conditions:
a. Notification of revocation resulting in termination of probation Disposition of a petition to revoke;
b. Notification of Ttermination or expiration of the probation grant by the court;
c. The transferred probationer has been approved and relocated to relocate to another county or another state a second time;
d. After notification to the sending county that Tthe transferred probationer has absconded;
e. The sending department directs the return of the transferred probationer; or
f. Notification of the death of the a transferred probationer. The receiving department shall forward verification of death a death certificate to the sending department. ; or
g. Return of the transferred probationer to the sending department after violation, pursuant to subsection L(2)(c).
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2. If the transferred probationer has reached the maximum discharge date and if permission to close supervision is not granted by the sending department, the receiving department shall close supervision and notify the sending department.
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