Part III.
Texas Youth Commission
Chapter 85.
Admission and Placement
Subchapter B. Placement Planning
37 TAC §85.23
The Texas Youth Commission (TYC) proposes an amendment to
§85.23, concerning classification. The amendment to the section will
change the agency definition of the classifying offense for "participating
in a riot" which continues to be classified as a Type B - violent offense.
The revision allows certain activities by two or more rather than six or more
youth to be considered a riot.
Terry Graham, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the section is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the section.
Mr. Graham also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be increased security for youth and staff in TYC contract
placements and TYC operated facilities. There will be no effect on small businesses.
There is no anticipated economic cost to persons who are required to comply
with the section as proposed. No private real property rights are affected
by adoption of this rule.
Comments on the proposal may be submitted to Gail Graham, Policy and Manuals
Manager, Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin,
Texas 78765.
The amendment is proposed under the Human Resources Code, §61.075,
concerning determination of treatment, which provides the Texas Youth Commission
with the authority to order the child's confinement under conditions it believes
best designed for the child's welfare and the interests of the public.
The proposed rule implements the Human Resource Code, §61.034.
§85.23. Classification.
(a)
Purpose. The purpose of this rule is to establish a system
for classifying each youth admitted to TYC, which can be consistently applied
and ensures consistent management of each youth.
(b)
Explanation of Terms Used.
(1)
Classification - the designation assigned each youth based
on the youth's offense history, the classifying offense, and a finding regarding
extenuating circumstances incident to the classifying offense. A youth who
commits an offense while in TYC custody may be administratively reclassified
through a Level I hearing.
(2)
Classifying Offense - the offense on which classification
is based. It is the most serious of the relevant offenses documented in the
youth's record. Relevant offenses are:
(A)
on commitment, the committing offense and any offense(s)
for which the youth was on probation at the time of the committing offense;
or
(B)
following a level I hearing, the offense(s) found at the
hearing.
(3)
Committing Offense - the most serious of the
offenses found at the youth's most recent judicial proceeding.
(4)
Most Serious Offense - the offense having the most
severe consequences attached. The most serious offense is determined according
to the following hierarchy, with each subsequent factor being considered only
if two or more relevant offenses yield the same result under the preceding
factor. If two or more offenses yield the same results through all steps of
the hierarchy, determination of the most serious offense is left to the discretion
of the staff assigning classification. The most serious offense is:
(A)
an offense which carries determinate sentence;
(B)
the offense for which the designated minimum length of
stay will produce the longest time in the physical custody of TYC;
(C)
the offense which requires the highest level of restriction
in placement;
(D)
the offense which carries the most severe criminal penalty;
and
(E)
the most recently adjudicated offense.
(5)
Federal Offenses - youth who have committed
federal offenses and are sent to TYC by Federal courts. If a committing and/or
classifying offense is a violation of a federal statute, the offense will
be treated as a violation of a state statute which prohibits the same conduct
as the relevant federal statute. Federal violations will be identified by
the code number assigned to the corresponding substantive state statute preceded
by an "F".
(c)
Classification assignment is based on the policy in effect
at the time a youth is classified or is reclassified as appropriate. Classification
of youth currently classified shall not change when the criteria for classification
changes.
(d)
Classifications.
(1)
Sentenced Offender. A sentenced offender is a youth committed
to TYC pursuant to §54.04(d)(3) or §54.05(f) Family Code for offenses
committed:
(A)
prior to January 1, 1996, for:
(i)
murder, 19.02, all;
(ii)
capital murder, 19.03, all;
(iii)
aggravated kidnapping, 20.04, all;
(iv)
aggravated sexual assault, 22.021, all;
(v)
deadly assault on a law enforcement officer, corrections
officer, or court participant, 22.03, all;
(vi)
criminal attempt, 15.01, only if the offense attempted
was Capital Murder (Sec.19.03).
(B)
on or after January 1, 1996, for an offense listed in
subparagraph (A) of this paragraph or:
(i)
sexual assault, 22.011, all;
(ii)
aggravated assault, 22.02, all;
(iii)
aggravated robbery, 29.03, all;
(iv)
injury to a child, elderly individual, or disabled individual,
22.04, first, second or third degree felony only
(v)
deadly conduct, 22.05, felony only;
(vi)
aggravated or first degree controlled substances felony,
subchapter D, Chapter 481 Health and Safety Code, aggravated or first degree
felony only;
(vii)
criminal solicitation, 15.03, all;
(viii)
indecency with a child, 21.11, second degree felony
only;
(ix)
criminal solicitation of a minor, 15.031, all;
(x)
criminal attempt, 15.01, only if offense attempted was
a murder (sec. 19.02), indecency with a child (sec. 21.11(a)(1)), aggravated
kidnapping (sec. 20.04), sexual assault 22.011(a)(2) upon a child only, aggravated
sexual assault (sec. 22.021), aggravated robbery (sec. 29.03), or repeat conviction
under Health and Safety Code 481.134(c), (d), (e), or (f);
(xi)
habitual felony conduct, as defined in Juvenile Justice
Code, 51.031;
(C)
on or after September 1, 1997, for an offense listed in
subparagraph (A) or (B) of this paragraph or: arson, 28.02, first degree felony
only.
(2)
Type A - Violent Offender. A type A violent
offender is a youth whose classifying offense is the commission, attempted
commission, conspiracy to commit, solicitation, solicitation of a minor to
commit, or engaging in organized criminal activity to commit one of the offenses
listed in this paragraph and who has not been sentenced to commitment in TYC.
TYC adopts the Texas Penal Code definition (Title 5) for each offense in its
entirety except where TYC policy limits the applicability to the specific
subsections or under the conditions named.
(A)
murder, 19.02, all;
(B)
capital murder, 19.03, all;
(C)
sexual assault, 22.011, all;
(D)
aggravated sexual assault, 22.021, all.
(3)
Type B - Violent Offender. A type B violent
offender is a youth whose classifying offense is the commission, attempted
commission, conspiracy to commit, solicitation, solicitation of a minor to
commit, or engaging in organized criminal activity to commit one of the offenses
listed in this paragraph and who has not been sentenced to commitment in TYC.
TYC adopts the Texas Penal Code definition for each offense listed in (A-
V
[
(A)
manslaughter, 19.04, all;
(B)
criminally negligent homicide, 19.05, all;
(C)
unlawful restraint, 20.02, felony only;
(D)
kidnapping, 20.03, all;
(E)
aggravated kidnapping, 20.04, all;
(F)
assault, 22.01, felony only;
(G)
indecency with a child, 21.11, all;
(H)
sexual assault, 22.011, all (only for youth classified
before July 1, 1996);
(I)
aggravated assault, 22.02, all;
(J)
aggravated sexual assault, 22.021, all (only for youth
classified before July 1, 1996);
(K)
injury to child, elderly or disabled individual, 22.04,
all;
(L)
abandoning or endangering a child, 22.041, all;
(M)
deadly conduct, 22.05, felony only;
(N)
terroristic threat, 22.07, felony only;
(O)
aiding suicide, 22.08, felony only;
(P)
tampering with a consumer product, 22.09, all;
(Q)
arson, 28.02, all;
(R)
robbery, 29.02, all;
(S)
aggravated robbery, 29.03, all;
(T)
burglary, 30.02, only with intent to commit any other
type A or type B violent offense;
(U)
intoxication assault, 49.07, all;
(V)
intoxication manslaughter, 49.08, all;
(W)
intentionally participating with
two
[
(X)
intentionally, knowingly, or recklessly causing bodily
injury to a:
(i)
TYC employee;
(ii)
contract program employee;
(iii)
volunteer; or
(iv)
person who is providing contract services at a contract
program or TYC operated facility.
(4)
Chronic Serious Offender. A chronic serious
offender is a youth whose classifying offense is a felony and who has been
found to have committed at least one felony in each of at least three separate
and distinct due process hearings, where the second felony was committed after
the disposition of the first felony and the third felony was committed after
the disposition of the second felony.
(5)
Controlled Substances Dealer. A controlled substances
dealer is a youth whose classifying offense is any felony grade offense defined
as a manufacture or delivery offense under the Texas Controlled Substances
Act, Chapter 481, Health and Safety Code.
(6)
Firearms Offender. A firearms offender is a youth
whose classifying offense involved a finding by the court or TYC hearings
examiner that the youth possessed a firearm during the offense. Classifying
offenses for this classification are not limited to offenses specified in
Chapter 46 of the Texas Penal Code.
(7)
Violator of CINS Probation. A violator of CINS probation
is a youth who:
(A)
is committed for violating terms of probation by an act
which would not be punishable by imprisonment or confinement in jail if committed
by an adult; and
(B)
was on probation at the time of the probation revocation
for no act more serious than Conduct Indicating a Need for Supervision (CINS)
as defined in the Texas Family Code, Title 3.
(8)
General Offender. A general offender is a youth
who is not eligible for any other classification.
(e)
Extenuating Circumstances.
(1)
A designated classification, except sentenced offender,
may be waived and a less restrictive classification assigned by a TYC hearings
examiner at a TYC Level I due process hearing when the hearings examiner finds
extenuating circumstances.
(2)
Extenuating circumstances incident to a violent offense
are those facts which indicate that the youth is not a significant danger
to the physical or emotional well-being of another. Examples of such facts
include, but are not limited to:
(A)
the youth was an indirect or passive participant in a
violent act;
(B)
the youth set fire to an abandoned vehicle;
(C)
the youth engaged in consensual sexual intercourse with
someone who was capable of appraising the nature of that act and of resisting
it.
(3)
Extenuating circumstances incident to offenses
other than violent offenses are those facts which explain a youth's conduct
but do not constitute a legally-recognized defense to the conduct. Examples
of such facts include, but are not limited to acts in which:
(A)
the only property involved in the offense was of minimal
value and was returned 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;
(D)
the youth was persuaded to participate in the offense
by a parent or other authority figure.
(4)
When extenuating circumstances incident to the
classifying offense are found, the designated classification may be waived.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
March 1, 1999.
TRD-9901238
Steve Robinson
Executive Director
Texas Youth Commission
Earliest possible date of adoption: April 11, 1999
For further information, please call: (512) 424-6244
Subchapter A. Disciplinary Practices
37 TAC §95.3
The Texas Youth Commission (TYC) proposes an amendment to
§95.3, concerning rules of conduct, contraband and dress. The amendment
to the section will add Participating in a Riot, as described in (GAP) §85.23
of this title (relating to classification), to the list of major rule violations
in TYC youth rules of conduct. Other amendments to the rule specifically prohibit
the wear and use of body piercing paraphernalia.
Terry Graham, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the section is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the section.
Mr. Graham also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be safety and protection for youth placed in TYC facilities
and TYC staff. There will be no effect on small businesses. There is no anticipated
economic cost to persons who are required to comply with the section as proposed.
No private real property rights are affected by adoption of this rule.
Comments on the proposal may be submitted to Gail Graham, Policy and Manuals
Manager, Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin,
Texas 78765.
The amendment is proposed under the Human Resources Code, §61.076,
which provides the Texas Youth Commission with the authority to correct the
socially harmful tendencies of a child committed to the commission by requiring
modes of life and conduct that seem best adapted to fit the child for return
to full liberty without danger to the public.
The proposed rule implements the Human Resource Code, §61.034.
§95.3. Rules of Conduct, Contraband and Dress.
(a)
Purpose. The purpose of this rule is to establish rules
of conduct, contraband and dress youth will be expected to follow agencywide.
Violations of the rules result in disciplinary consequences that are proportional
to the severity and extent of the violation and follow appropriate due process.
(b)
Texas Youth Commission (TYC) facilities and programs shall
maintain youth discipline to the extent necessary to keep order and provide
a safe and constructive environment for youth, staff and visitors.
(c)
Rules in this policy may be restated in greater detail
or otherwise adapted to accommodate a particular program in order to help
clarify expected behavior in that program. All adapted or restated rules shall
remain consistent with the general rules of conduct.
(d)
The rules are posted in a conspicuous area accessible
to youth in each facility and program.
(e)
Rules of Conduct. It is a violation to knowingly violate
or attempt to violate or help someone else violate any of the Rules of Conduct.
Repeated violations of any rule of conduct will result in more serious disciplinary
consequences.
(1)
A major rule violation is any of the following acts for
which major consequences may be levied. Major consequences include referral
to criminal court, disciplinary movement and/or reclassification and/or assignment
of a minimum length of stay.
(A)
Violate any law of Texas or of the United States.
(B)
Escape or attempt escape, or abscond or attempt to abscond.
(C)
Cause physical pain or bodily injury to one's self or
to another person.
(D)
Possess a weapon.
(E)
Inhale, ingest or otherwise consume or import into the
body any controlled substance or intoxicant, or refuse to take a drug test.
(F)
Intentionally damage or destroy property which causes
a loss of $100 or more.
(G)
Fail on two or more occasions to comply with the conditions
of release under supervision and/or a written reasonable request of staff
that is either present in the ICP or is validly related to previous high-risk
behavior.
(H)
Participating in a Riot as
set forth in (GAP) §85.23 of this title (relating to Classification.
(2)
Minor misbehavior is willful behavior, which
breaks rules for which minor consequences, called on-site disciplinary consequences,
may be levied. Minor consequences include loss of privileges, restriction,
or confiscation of contraband.
It is a minor misbehavior to:
[
(A)
Take, use or damage property without proper permission.
(B)
Possess items instructed not to possess including contraband.
(C)
Be with someone told not to be with.
(D)
Threaten to cause harm to someone.
(E)
Engage in inappropriate physical or sexual contact.
(F)
Engage in tattooing [
(G)
Engage in setting a fire without permission from staff.
(H)
Lend, borrow, or trade personal property without permission
from staff.
(I)
Curse or use disrespectful language or behavior toward
another.
(J)
Fail to report to someone in authority when told to do
so.
(K)
Enter restricted areas without proper permission.
(L)
Use or possess tobacco in places where it is prohibited.
(M)
Disrupt an authorized activity.
(N)
Deliberately disobey a reasonable request of staff.
(O)
Miss scheduled activities or curfew time.
(P)
Gamble.
(Q)
Fail to follow the dress code.
(R)
Fail to report others' misconduct.
(f)
Contraband. Consistent with the Rules of Conduct, youth
in a residential program which is under contract to TYC or operated by TYC
shall not have contraband. Contraband items will be confiscated and disposed
of in accordance with (GAP) §97.11 of this title (relating to Disposition
of Unauthorized Items Seized). Contraband includes:
(1)
anything which it is a crime to possess under municipal
ordinances or state or federal law, (including solvent inhalants, drugs, and
alcohol);
(2)
narcotics paraphernalia;
(3)
items which can be used, made, or adapted to use
as weapons;
(4)
pictures which depict sexually explicit male or female
nudity or sexual acts, including magazines or periodicals which routinely
publish such pictures;
(5)
items such as posters or clothing with slogans, mottos
or emblems which are obscene, advocate illegal or immoral conduct, hold individuals
or groups up to ridicule, or reinforce delinquent subcultural values, or in
any way disrupt programs or activities; and
(6)
money in excess of the amount permitted by facility
rules.
(g)
Dress Code. Any youth in a residential program operated
by TYC must dress in accordance with these rules.
(1)
Clothing will be clean, fit properly, and be appropriate
to the activity at all times.
(2)
Undergarments must be worn and must not show. Females
will wear bras.
(3)
Patches, embroidery, buttons, and writing on clothing
must not signify anything about drugs, alcohol, sex, obscene language, violent
acts, or show disrespect to any group or class of people.
(4)
Shoes or acceptable footwear will be worn as appropriate
to the activity at all times.
(5)
Boys will not wear earrings
; girls may, in
some facilities, be allowed to wear earrings. No youth are allowed to wear
piercing paraphernalia otherwise
.
(h)
Hair.
(1)
All males in TYC residential programs or contract residential
programs are required to wear their hair in a standardized style.
(2)
Hair should be clean and well groomed.
(3)
Youth must be clean shaven.
(i)
Symbolic Expression. A facility superintendent/facility
administrator may adopt rules for the facility to prohibit any symbolic expression(s)
that have been shown to precipitate violent behavior which endangers the safety
of youth, staff or visitors at the facility. All rules adopted by a facility
administrator and approved by the appropriate director of juvenile corrections
must be clearly communicated to each youth and posted at the same place as
other rules set out in this policy.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
March 1, 1999.
TRD-9901240
Steve Robinson
Executive Director
Texas Youth Commission
Earliest possible date of adoption: April 11, 1999
For further information, please call: (512) 424-6244
Subchapter A. Security and Control
U)
] of this subsection in its entirety except where
TYC policy limits the applicability to specific subsections or under the conditions
named.
six
] or more persons in conduct at a
contract program or
TYC
operated
facility that
threatens imminent harm to
[
endangers
] persons or property and substantially obstructs
the performance of facility operations
or a program therein
;
Chapter 95.
Youth Discipline
Minor misbehaviors are:
]
self or other or ear
]
or body
piercing
(including ears) of either self or others
.
Chapter 97.
Security and Control