Part 3.
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 revises one of the
Type B-Violent Offender classifying offenses to be consistent with TYC rule
violations. Specifically, the TYC Category I rule violation known as "chunking
bodily fluids," which can be found in §95.3 as published in this issue
of the
Texas Register
, is now included in
the list of offenses classified as Type B-Violent.
Don McCullough, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the amendment.
Mr. McCullough also has determined that for each year of the first five
years the amendment is in effect the public benefit anticipated as a result
of enforcing the amendment will be the use of accurate, clear and current
policy among TYC facilities. There will be no effect on small businesses.
There is no anticipated economic cost to persons who are required to comply
with the amendment as proposed. No private real property rights are affected
by adoption of this amendment.
Comments on the proposal may be submitted to DeAnna Lloyd, Policy Coordinator,
Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765,
or e-mail to deanna.lloyd@tyc.state.tx.us.
The amendment is proposed under the Human Resources Code, §61.075,
which provides the Texas Youth Commission with the authority to modify any
order of the commission affecting a child, except an order of final discharge,
as often as conditions indicate.
The proposed amendment affects the Human Resource Code, §61.034.
§85.23.Classification.
(a)
(No change.)
(b)
Explanation of Terms Used.
(1)
(No change.)
(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)
(No change.)
(B)
following a
Level
[
(3) - (5)
(No change.)
(c)
(No change.)
(d)
Classifications.
(1) - (2)
(No change.)
(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
(Title 5)
for each offense [
(A) - (P)
(No change.)
[(Q)
harassment by persons in secure correctional
facilities, 22.11, all]
(Q)
[
(R)
[
(S)
[
(T)
[
(U)
[
(V)
[
(W)
[
(X)
[
(Y)
[
(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.
(Z)
intentionally causing a person to come
into contact with the blood, seminal fluid, vaginal fluid, urine, and/or feces
of another with the intent to harass, alarm or annoy.
(4) - (8)
(No change.)
(e)
(No change.)
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 January 13, 2004.
TRD-200400204
Neil Nichols
Interim Executive Director
Texas Youth Commission
Earliest possible date of adoption: February 29, 2004
For further information, please call: (512) 424-6014
37 TAC §85.25
The Texas Youth Commission (TYC) proposes an amendment to §85.25,
concerning Minimum Length of Stay. The amendment to the section will add references
to other rules which can have an impact on a youth's minimum length of stay.
Don McCullough, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the amendment.
Mr. McCullough also has determined that for each year of the first five
years the amendment is in effect the public benefit anticipated as a result
of enforcing the amendment will be the use of accurate, clear and current
policy among TYC facilities. There will be no effect on small businesses.
There is no anticipated economic cost to persons who are required to comply
with the amendment as proposed. No private real property rights are affected
by adoption of this amendment.
Comments on the proposal may be submitted to DeAnna Lloyd, Policy Coordinator,
Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765,
or e-mail to deanna.lloyd@tyc.state.tx.us.
The amendment is proposed under the Human Resources Code, §61.034,
which provides the Texas Youth Commission with the authority to make rules
appropriate to the proper accomplishment of its functions.
The proposed amendment affects the Human Resource Code, §61.034.
§85.25.Minimum Length of Stay.
(a) - (c)
(No change.)
(d)
Minimum Length of Stay.
(1) - (4)
(No change.)
(5)
General Offenders must complete a minimum length of stay
of nine (9) months on initial commitment. General offenders on recommitment,
or returning as a result of a Level I due process hearing for a non-felony,
non-high risk offense have no minimum length of stay. (See subsection (c)(3)
of this
section
[
(6)
(No change.)
(e) - (f)
(No change.)
(g)
Restrictions.
(1) - (3)
(No change.)
(4)
For other procedures affecting minimum
length of stay refer to (GAP) §95.7 of this title (relating to Reclassification
Consequence), (GAP) §95.9 of this title (relating to Parole Revocation
Consequence), and (GAP) §95.11 of this title (relating to Disciplinary
Transfer/Assigned Minimum Length of Stay/Demotion of Phase Consequence).
(h)
(No change.)
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 January 13, 2004.
TRD-200400205
Neil Nichols
Interim Executive Director
Texas Youth Commission
Earliest possible date of adoption: February 29, 2004
For further information, please call: (512) 424-6014
Subchapter A. DISCIPLINARY PRACTICES
37 TAC §95.3
The Texas Youth Commission (TYC) proposes an amendment to §95.3,
concerning Rules of Conduct. The amendment to the section will make minor
changes and grammatical clarifications to the definitions of several TYC rule
violations. Failure of a youth to report personal knowledge of a rule violation
has been added as a rule violation.
Don McCullough, 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. McCullough 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 to ensure that the definitions of TYC rule
violations continue to be in keeping with the original intent. 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 DeAnna Lloyd, Policy Coordinator,
Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765,
or email to deanna.lloyd@tyc.state.tx.us.
The amendment is proposed under the Human Resources Code, §61.034,
which provides the Texas Youth Commission with the authority to make rules
appropriate to the proper accomplishment of its functions.
The proposed rule affects the Human Resource Code, §61.034.
§95.3.Rules of Conduct.
(a)-(e)
(No change.)
(f)
Category I Rule Violations. A category I rule violation
is an act of misconduct that constitutes a crime, involves harm to the youth
or others, or threatens facility safety, security, and order. These are the
baseline rules which, when crossed, result in the most severe consequences.
These consequences include referral to criminal court, disciplinary movement,
reclassification, multi-phase demotion, and/or assignment of a disciplinary
minimum length of stay. Category I rule violations are as follows:
(1)
Violate any law [
(2)
(No change.)
(3)
Attempted Escape--youth, with specific intent to escape,
commits an act amounting to more than
planning
[
(4)-(5)
(No change.)
(6)
Failure to Report--youth assigned to minimum or home level
restriction fails to report
to a pre-scheduled appointment with a parole
staff
[
(7)
(No change.)
(8)
Assault on Staff/Volunteer (Offensive Contact)--youth intentionally
or knowingly causes physical contact with a staff
or volunteer
when
the youth knows or should reasonably believe that the staff
or volunteer
will regard the contact as offensive or provocative (includes hitting
without injury, spitting, touching of staff's buttocks or breasts, etc.) Staff
is defined as a TYC employee, contract program employee, or any person who
is providing contract services at a contract program or TYC-operated facility.
(9)-(11)
(No change.)
(12)
Injury to Self--[
(13)
Possession of a
Weapon
[
(14)
Possession or Use of
Unauthorized
Substance
or Intoxicant
--youth is found to be using or possessing any
unauthorized
[
(15)
Refusing a Drug Screen--youth refuses to take a drug screen
when requested to do so by staff
, or youth tampers with or contaminates
the urine sample provided for a drug screen
.
(16)
(No change.)
(17)
Participation in a Riot--youth intentionally participates
with two (2) or more persons in conduct that threatens imminent harm to persons
or property and substantially obstructs the performance of facility operations
or programs.
Incident must take place in a TYC facility or contract program.
(18)
(No change.)
(19)
Inappropriate Sexual Contact--youth engages in inappropriate
sexual contact including [
(20)-(21)
(No change.)
(22)
Chunking Bodily Fluids--with the intent to harass, alarm,
or annoy another person, a youth causes a person to contact the blood, seminal
fluid,
vaginal fluid,
urine, and/or feces of another person. Does
not include saliva.
(23)-(25)
(No change.)
(26)
Attempting, Aiding,
or
Abetting[
(27)
Failing to Report Category I Rule Violation--youth
fails to report personal knowledge of facts concerning a rule violation by
another youth, which are not known to staff.
(g)
Category II Rule Violations. A category II rule violation
is an act of misconduct that reflects a youth's immaturity, lack of responsibility,
and intractability which, if unchecked, could lead to more serious category
I violations. It is willful behavior that 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. Category
II rule violations are as follows:
(1)-(2)
(No change.)
(3)
Contraband [
(4)-(12)
(No change.)
(13)
Attempting, Aiding,
or
Abetting[
(14)
Failing to Report Category II Rule
Violation--youth fails to report personal knowledge of facts concerning a
rule violation by another youth, which are not known to staff.
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(h)
(No change.)
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 January 13, 2004.
TRD-200400208
Neil Nichols
Interim Executive Director
Texas Youth Commission
Earliest possible date of adoption: February 29, 2004
For further information, please call: (512) 424-6014
37 TAC §§95.7, 95.9, 95.11
The Texas Youth Commission (TYC) proposes amendments to §95.7
Reclassification Consequence; §95.9 Parole Revocation Consequence; and §95.11
Disciplinary Transfer/Assigned Minimum Length of Stay/Demotion of Phase Consequence.
The amendments to §95.7 Reclassification Consequence and §95.9 Parole
Revocation Consequence will clarify that the minimum length of stay assigned
as a result of a Level I due process hearing may later be reduced based on
the youth's behavior and progress toward goals. A further revision to §95.9
updates the names of certain TYC rule violations to better reflect their definitions
in the Penal Code. The amendment to §95.11 Disciplinary Transfer/Assigned
Minimum Length of Stay/Demotion of Phase Consequence will clarify that youth
on parole status may not receive demotions to their Resocialization phases
as the result of a Level II due process hearing. A new subsection lists the
category I rule violations which qualify a youth on parole status for disciplinary
transfer to medium restriction or assignment of a disciplinary minimum length
of stay. This new subsection also establishes the possible outcomes if extenuating
circumstances are found during a Level II due process hearing for a youth
on parole status.
Don McCullough, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the sections are in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the sections.
Mr. McCullough also has determined that for each year of the first five
years the sections are in effect the public benefit anticipated as a result
of enforcing the sections will be the efficient and consistent enforcement
of TYC policy. There will be no effect on small businesses. There is no anticipated
economic cost to persons who are required to comply with the sections as proposed.
No private real property rights are affected by adoption of these rules.
Comments on the proposal may be submitted to DeAnna Lloyd, Policy Coordinator,
Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765,
or email to deanna.lloyd@tyc.state.tx.us.
The amendments are proposed under the Human Resources Code, §61.075,
which provides the Texas Youth Commission with the authority to order a child's
confinement under conditions it believes best designed for the child's welfare
and the interests of the public, and to order reconfinement as often as conditions
indicate to be desirable.
The proposed rules affect the Human Resource Code, §61.034.
§95.7.Reclassification Consequence.
(a)-(d)
(No change.)
(e)
Additional Disposition Options. If a youth currently assigned
to a TYC operated institution is found in a
Level
[
(1)
Aggression Management Program. A placement in the Aggression
Management Program (AMP) may be requested for a youth who is currently assigned
to a TYC operated institution under (GAP) §95.21 of this title (relating
to Aggression Management Program). All policy and program requirements of
(GAP) §95.21
of this title
will apply to the assignment in
AMP.
(2)
Behavior Management Program.
(A)
A placement in the Behavior Management Program (BMP) may
be requested for certain youth under (GAP) §95.17 of this title (relating
to Behavior Management Program). All policy and program requirements of (GAP) §95.17
of this title
[
(B)
(No change.)
(f)
Restrictions.
(1)-(2)
(No change.)
(3)
The minimum length of stay
assigned under this policy may be reduced based on the youth's behavior and
progress toward goals.
§95.9.Parole Revocation Consequence.
(a)-(c)
(No change.)
(d)
Criteria and Disposition.
(1)
Parole will be revoked if it is found at a
Level
[
(A)-(B)
(No change.)
(C)
committed one (1) of the following category I rule violations
as defined in (GAP) §95.3 of this title (relating to Rules of Conduct),
and has previously been classified for a high-risk offense:
(i)
Violate any Law
;
[
(ii)
Escape, Attempted Escape, or Abscond
;
[
(iii)
Injury to Self
;
(iv)
Possession of a Weapon
;
[
(v)
Possession or Use of
Unauthorized
Substance
or Intoxicant;
(vi)
Refusing a Drug Screen
;
(vii)
Participation in a Riot
; or
[
(viii)
(No change.)
(2)
Parole of a general offender or a violator of CINS probation
is revoked if it is found at a
Level
[
(A)-(B)
(No change.)
(3)-(4)
(No change.)
(5)
If criteria for revocation are not established at a
Level
[
(e)
Restrictions.
(1)
A
Level
[
(2)-(4)
(No change.)
(5)
The minimum length of stay
assigned under this policy may be reduced based on the youth's behavior and
progress toward goals.
§95.11.Disciplinary Transfer/Assigned Minimum Length of Stay/Demotion of Phase Consequence.
(a)-(b)
(No change.)
(c)
Criteria and Disposition for Disciplinary Transfer, Disciplinary
Assigned Minimum Length of Stay, and Demotion of One or More Behavior Phases
for Youth on Institutional Status
.
(1)
If it is found at a
Level
[
(A)-(C)
(No change.)
(2)
If it is found at a
Level
[
(A)
transferred to a placement of equal or more restriction
than the youth's most recent permanent placement;
and/or
(B)-(C)
(No change.)
[
[
(d)
Additional Disposition Options
for Youth on Institutional
Status
. Pursuant to a
Level
[
(1)
Aggression Management Program. A placement in the Aggression
Management Program (AMP) may be requested for a youth who is currently assigned
to a TYC operated institution under requirements of (GAP) §95.21 of this
title (relating to Aggression Management Program). All policy and program
requirements of (GAP) §95.21
of this title
will apply to the
assignment in AMP.
(2)
Behavior Management Program.
(A)
A placement in the Behavior Management Program (BMP) may
be requested for certain youth under requirements of (GAP) §95.17 of
this title (relating to Behavior Management Program). All policy and program
requirements of (GAP) §95.17
of this title
will apply to the
assignment in a BMP.
(B)
(No change.)
(e)
Criteria and Disposition for
Disciplinary Transfer and Disciplinary Assigned Minimum Length of Stay for
Youth on Parole Status. A youth on parole status may be transferred into a
placement of medium restriction and/or assigned a minimum length of stay only
if it is found at the Level II hearing that the youth has committed one of
the following category I rule violations as defined in (GAP) §95.3 of
this title (relating to Rules of Conduct):
(1)
Violate any Law;
(2)
Escape, Attempted Escape, or Abscond;
(3)
Injury to Self;
(4)
Possession of a Weapon;
(5)
Possession or Use of Unauthorized Substance
or Intoxicant;
(6)
Refusing a Drug Screen;
(7)
Participation in a Riot; or
(8)
Two (2) or More Failures to Comply with Written
Reasonable Request.
(f)
If the hearing manager determines there
are extenuating circumstances incident to the violation(s) proved at a Level
II hearing, the youth shall not be assigned a disciplinary length of stay.
However, if more than one disposition option was requested (with appropriate
and specific notice to the youth), such dispositions may be assessed if the
hearing manager determines that such dispositions are appropriate despite
the finding of extenuation.
(g)
[
(1)
A youth on parole status shall not be moved or transferred
into a placement of high restriction under this rule.
(2)
An assigned disciplinary minimum
length of stay under this policy shall only be for offenses that meet criteria
and shall not exceed six (6) months.
(3)
[
(4)
[
(5)
[
(6)
[
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 January 13, 2004.
TRD-200400209
Neil Nichols
Interim Executive Director
Texas Youth Commission
Earliest possible date of adoption: February 29, 2004
For further information, please call: (512) 424-6014
level
] I hearing,
the offense(s) found at the hearing except when the hearing is for a youth
classified as a sentenced offender, in which case, the youth's classification
continues to be sentenced offender.
listed in
(A-V) of this subsection
] in its entirety except where TYC policy limits
the applicability to
the
specific subsections or under the conditions
named.
(R)
] coercing, soliciting or inducing
gang membership, 22.015, felony only
(S)
] arson, 28.02, all
(T)
] robbery, 29.02, all
(U)
] aggravated robbery, 29.03,
all
(V)
] burglary, 30.02, only with
intent to commit any other type A or type B violent offense
(W)
] intoxication assault, 49.07,
all
(X)
] intoxication manslaughter,
49.08, all
(Y)
] intentionally participating
with at least two
(2)
other persons in conduct at a contract program
or TYC operated facility that threatens imminent harm to persons or property
and substantially obstructs the performance of facility operations or a program
therein.
(Z)
] intentionally, knowingly, or
recklessly causing bodily injury to a:
rule
]).
Chapter 95.
YOUTH DISCIPLINE
of Texas or the United States
]--youth
violates any
city or county ordinance, or any state or federal
law
[
of Texas or the United States not otherwise listed as a Category I or
II rule violation
].
mere preparation
], but fails to effect the intended escape.
as required by the youth's most recent case plan
].
by means of intentional or reckless
conduct,
] a youth
intentionally or knowingly
engages in bodily
harm to self.
weapon
]--youth
is found to be in possession of a weapon or item(s) which can be used
as a weapon
,
or has been
made, or adapted for use as a weapon.
controlled
] substance or intoxicant. This also includes
tobacco for youth in a residential placement.
kissing or
] touching or fondling the
anus, buttocks, breast, or genitals of another for sexual stimulation.
This also includes kissing.
, or Failing
to Report
] Commission of a Category I Rule Violation--youth attempts
to commit a category I rule violation,
or
assists or helps another
youth to commit a category I rule violation[
, or keeps secret the knowledge
of a category I rule violation being planned or committed
].
(Except Drugs/Weapons)
]--youth possesses
an item(s) that is considered improper for children to see or possess or that
may threaten the safety, security, or order of the facility. Consult (GAP) §91.7
of this title (relating to Youth Personal Property) for definition of contraband.
, or Failing
to Report
] Commission of a Category II Rule Violation--youth attempts
to commit a category II rule violation,
or
assists or helps another
youth to commit a category II rule violation[
, or keeps secret the knowledge
of a category II rule violation being committed or planned
].
(14)
] Breaching Group Confidentiality--youth
discloses or discusses information provided to
him/her
[
him
] in a correctional therapy group session to another person not present
in that group session.
(15)
] Violating Security Program/Rules--youth
is not complying with the standardized program or rules of the security unit
while in the security unit.
(16)
] Improper Use of Telephone/Mail--youth
uses the mail or telephone system for communication which is prohibited under
(GAP) §93.13 of this title (relating to Use of Telephone) or (GAP) §93.15
of this title (relating to Youth Mail).
(17)
] Failure to do Proper Housekeeping--youth
does not complete the daily chores of cleaning his/her living environment
to the expected standard.
(18)
] Gang Related Activity--youth
engages in a behavior or activity associated with an organized group or gang
including, but not limited to, tagging, displaying gang hand signals, using
gang slang language, and/or possessing gang writing/symbols of any kind including
on clothing.
(19)
] Lying/Falsifying Documentation/Cheating--youth
lies or withholds information from staff, falsifies a document and/or cheats
in an assignment or test.
(20)
] Threat of Escape--by word,
gesture, or conduct, a youth expresses an intention to escape a residential
placement assignment.
level
]
I hearing to have engaged in a high risk offense. Other dispositions may be
made by the hearing examiner, but only if such conduct meets the criteria
and is specifically requested in the initial hearing request for the
Level I
[
level 1
] reclassification hearing. If extenuating
circumstances are found by the hearing examiner according to the
Level
[
level
] I hearing, other eligible dispositions may be assessed
if the hearing examiner decides that such dispositions are appropriate despite
the finding of extenuation to the reclassifying conduct. Disposition options
are as follows:
, Behavior Management Program
] will apply
to the assignment in BMP.
level
] I hearing that a youth has:
of Texas or the United
States.
]
.
]
.
]
.
]
level
] I hearing
that the youth has committed one (1) of the category I rule violations listed
above; and
level
] I hearing, the youth's parole is not revoked,
but lesser disciplinary consequences may be imposed for any rule violation(s)
proved at the hearing.
level
] I hearing is required
in order to revoke a youth's parole status.
level
]
II hearing that the youth has failed on two
(2)
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 Individual
Case Plan (ICP) or is validly related to previous high risk behavior, a youth
may
receive only one of the following consequences
[
be
]:
level
]
II hearing that the youth has committed any
other
category I rule
violation, the youth may
receive one or more of the following consequences
[
be
]:
(3)
An assigned disciplinary minimum
length of stay under this policy shall only be for offenses that meet criteria
and shall not exceed six (6) months.]
(4)
If the hearing manager determines
there are extenuating circumstances incidental to the violation(s) proved
at a level II hearing, the youth shall not be transferred or assigned a disciplinary
minimum length of stay, but the hearing manager shall notify the administrator
responsible for the program to which the youth is assigned so an appropriate
disciplinary action may be taken.]
level
] II hearing
herein, certain youth in TYC institutions or secure contract programs, who
are assessed a disposition under this rule may also be assessed
placement
in the below disciplinary programs
[
other eligible dispositions
], but only if
specific
criteria have been met and if specifically
requested
(with notice to the youth)
in the
Level
[
level
] II hearing request pursuant to this policy. [
If extenuating
circumstances are found by the hearing manager pursuant to a level II hearing
herein, other eligible dispositions may be assessed if the hearing manager
decides that such dispositions are appropriate despite the finding of extenuation
in the present level II hearing. Disposition options are listed.
]
(e)
] Restrictions.
(2)
] When local authorities make
a written request to defer an allegation to their jurisdiction for prosecution,
TYC will cancel the directive, unless a due process hearing will be scheduled
on other allegation(s). A due process hearing on any allegation(s) shall be
scheduled within seven (7) days (excluding weekends and holidays).
(3)
] A
Level
[
level
] II hearing should be held prior to a disciplinary transfer. When good
cause compels a pre-hearing movement of the youth, the hearing shall be held
within three (3) consecutive days after the movement.
(4)
] A youth assigned a disciplinary
minimum length of stay may remain in the current program or be transferred
and remain in the new placement until the assigned disciplinary length of
stay and other program completion criteria are completed.
(5)
] The [
assigned disciplinary
] minimum length of stay
assigned under this policy
may be
reduced based on the youth's behavior and progress toward goals.