Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 4.
COMMERCIAL VEHICLE REGULATIONS AND ENFORCEMENT PROCEDURES
Subchapter A. REGULATIONS GOVERNING HAZARDOUS MATERIALS
37 TAC §4.1
The Texas Department of Public Safety proposes amendments
to §4.1, concerning Regulations Governing Hazardous Materials. Amendment
to §4.1 is necessary in order to ensure that the Federal Hazardous Material
Regulations, incorporated by reference in the section, reflects all amendments
and interpretations issued through July 1, 2005.
A second amendment to the section is necessary in order to correct an inaccuracy
listed in the current rule.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the rule is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the rule is in effect the public benefit anticipated as a result of
enforcing the rule will be to ensure to the public greater compliance by motor
carriers with all of the statutes and regulations pertaining to the safe operation
of commercial vehicles in this state. There is no anticipated adverse economic
effect on individuals, small businesses, or micro-businesses.
Comments on the proposal may be submitted to Mark Rogers, Major, Texas
Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087,
Austin, Texas 78773-0500, (512) 424-2116.
The amendments are proposed pursuant to Texas Government Code, §411.018,
which authorizes the director to adopt all or part of the federal hazardous
materials rules by reference; and Texas Transportation Code, §644.051,
which authorizes the director to adopt all or part of the federal safety regulations
by reference.
Texas Government Code, §411.018 and Texas Transportation Code, §644.051
are affected by this proposal.
§4.1.Transportation of Hazardous Materials.
(a)
The director of the Texas Department of Public Safety incorporates,
by reference, the Federal Hazardous Materials Regulations, Title 49, Code
of Federal Regulations, Parts 107 (Subpart G), 171 - 173, 177, 178, and 180,
including all interpretations thereto, for commercial vehicles operated in
intrastate, interstate, or foreign commerce, as amended through
July
[
(b)
Explanations and Exceptions.
(1)
Certain terms when used in the federal regulations as adopted
in subsection (a) of this section will be defined as follows:
(A)
the definition of motor carrier will be the same as that
given in Texas Transportation Code, §643.001(6);
(B)
hazardous material shipper means a consignor, consignee,
or beneficial owner of a shipment of hazardous materials;
(C)
interstate or foreign commerce will include all movements
by commercial motor vehicle, both interstate and intrastate, over the streets
and highways of this state;
(D)
department means the Texas Department of Public Safety;
(E)
regional highway administrator means the director of the
Texas Department of Public Safety or the designee of the director;
(F)
farm vehicle means any vehicle or combination of vehicles
controlled and/or operated by a farmer or rancher being used to transport
agriculture products, farm machinery, and farm supplies to or from a farm
or ranch; and
(G)
private carrier means any person not included in the terms
"common carrier by motor vehicle" or "contract carrier by motor vehicle" who
transports by commercial motor vehicle property of which the person is the
owner, lessee, or bailee, when such transportation is for the purpose of sale,
lease, rent or bailment, or in furtherance of commerce.
(2)
All references in Title 49, Code of Federal Regulations,
Parts 107 (Subpart G), 171 - 173, 177, 178, and 180 made to other modes of
transportation, other than by motor vehicles operated on streets and highways
of this state, will be excluded and not adopted by this department.
(3)
Regulations adopted by this department, including the federal
motor carrier safety regulations, will apply to farm tank trailers used exclusively
to transport anhydrous ammonia from the dealer to the farm. The usage of non-
specification farm tank trailers by motor carriers to transport anhydrous
ammonia must be in compliance with Title 49, Code of Federal Regulations, §173.315(m).
(4)
The reporting of hazardous material incidents as required
by Title 49, Code of Federal Regulations, §171.15 and §171.16 for
shipments of hazardous materials by highway is adopted by the department.
(5)
Regulations adopted by this department, including the federal
motor carrier safety regulations, will apply to an intrastate motor carrier
transporting a flammable liquid petroleum product in a cargo tank. The usage
of non- specification cargo tanks by motor carriers for the intrastate transportation
of flammable liquid petroleum products must be in compliance with Title 49,
Code of Federal Regulations, §173.8.
(6)
Regulations and exceptions adopted herein are applicable
to all drivers and vehicles transporting hazardous materials in interstate,
foreign, or intrastate commerce.
(7)
Nothing in this section shall be construed to prohibit
an employer from requiring and enforcing more stringent requirements relating
to safety of operation and employee safety and health.
(8)
Penalties assessed for violations of the regulations adopted
herein will be based upon the provisions of Texas Transportation Code, Chapter
644, and §4.16 of this title (relating to Administrative Penalties,
Payment, Collection and Settlement of Penalties).
(9)
A peace officer certified, in accordance with §4.13
of this title (relating to Authority to Enforce, Training and Certificate
Requirements), to enforce the Federal Hazardous Material Regulations, as adopted
in this section, may declare a vehicle out-of-service using the North American
Standard Hazardous Materials
Out-of-Service
[
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 July 12, 2005.
TRD-200502844
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-2135
37 TAC §§4.11, 4.13, 4.16
The Texas Department of Public Safety proposes amendments
to §§4.11, 4.13, and 4.16 concerning Regulations Governing Transportation
Safety. The amendment to §4.11 updates the rule so that it reflects July
1, 2005 in subsection (a). The amendment is necessary to ensure that the Federal
Motor Carrier Safety Regulations, incorporated by reference in the section,
reflects all amendments and interpretations issued through that particular
date.
Amendments to §4.13 are necessary in order to clarify both the initial
and recertification requirements for peace officers certified under this section.
Amendments to §4.16 are necessary in order to authorize the department
to accept payments of administrative penalties by electronic funds transfer
or credit card, and to specify procedures and fees for accepting these payment
transactions.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the rules are in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of enforcing the rules will be to ensure to the public greater compliance
by motor carriers with all of the statutes and regulations pertaining to the
safe operation of commercial vehicles in this state. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
Comments on the proposal may be submitted to Mark Rogers, Major, Texas
Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087,
Austin, Texas 78773-0500, (512) 424-2116.
The amendments are proposed pursuant to Texas Transportation
Code, §644.051, which authorizes the director to adopt rules regulating
the safe transportation of hazardous materials and the safe operation of commercial
motor vehicles; and authorizes the director to adopt all or part of the federal
safety regulations, by reference. The amendment to §4.16 is also proposed
pursuant to Texas Government Code, §411.0135, which authorizes the department
to adopt rules regulating the method of payment of fees and charges.
Texas Transportation Code, §644.051 and Texas Government Code, §411.0135
are affected by this proposal.
§4.11.General Applicability and Definitions.
(a)
General. The director of the Texas Department of Public
Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations,
Title 49, Code of Federal Regulations, Parts 40, 380, 382, 385, 386, 387,
390 - 393, and 395 - 397 including all interpretations thereto, as amended
through
July
[
(1)
a commercial motor vehicle is safely maintained, equipped,
loaded, and operated;
(2)
the responsibilities imposed on a commercial motor vehicle's
operator do not impair the operator's ability to operate the vehicle safely;
(3)
the physical condition of a commercial motor vehicle's
operator enables the operator to operate the vehicle safely; and,
(4)
the minimum levels of financial responsibility required
to be maintained by motor carriers of property or passengers operating commercial
motor vehicles in interstate, foreign, or intrastate commerce.
(b)
Terms. Certain terms, when used in the federal regulations
as adopted in subsection (a) of this section, will be defined as follows:
(1)
the definition of motor carrier will be the same as that
given in Texas Transportation Code, §643.001(6);
(2)
hazardous material shipper means a consignor, consignee,
or beneficial owner of a shipment of hazardous materials;
(3)
interstate or foreign commerce will include all movements
by motor vehicle, both interstate and intrastate, over the streets and highways
of this state;
(4)
department means the Texas Department of Public Safety;
(5)
director means the director of the Texas Department of
Public Safety or the designee of the director;
(6)
regional highway administrator means the director of the
Texas Department of Public Safety;
(7)
farm vehicle means any vehicle or combination of vehicles
controlled and/or operated by a farmer or rancher being used to transport
agriculture commodities, farm machinery, and farm supplies to or from a farm
or ranch;
(8)
commercial motor vehicle has the meaning assigned by Texas
Transportation Code, §548.001(1) if operated intrastate; commercial motor
vehicle has the meaning assigned by Title 49, Code of Federal Regulations,
Part 390.5 if operated interstate;
(9)
foreign commercial motor vehicle has the meaning assigned
by Texas Transportation Code, §648.001;
(10)
agricultural commodity is defined as an agricultural,
horticultural, viticultural, silvicultural, or vegetable product, bees and
honey, planting seed, cottonseed, rice, livestock or a livestock product,
or poultry or a poultry product that is produced in this state, either in
its natural form or as processed by the producer, including wood chips. The
term does not include a product which has been stored in a facility not owned
by its producer;
(11)
planting and harvesting seasons are defined as January
1 to December 31; and
(12)
producer is defined as a person engaged in the business
of producing or causing to be produced for commercial purposes an agricultural
commodity. The term includes the owner of a farm on which the commodity is
produced and the owner's tenant or sharecropper.
(c)
Applicability.
(1)
The regulations shall be applicable to the following vehicles:
(A)
a vehicle or combination of vehicles with an actual gross
weight, a registered gross weight, or a gross weight rating in excess of 26,000
pounds when operating intrastate;
(B)
a farm vehicle or combination of farm vehicles with an
actual gross weight, a registered gross weight, or a gross weight rating of
48,000 pounds or more when operating intrastate;
(C)
a vehicle designed or used to transport more than 15 passengers,
including the driver; and
(D)
a vehicle transporting hazardous material requiring a placard.
(E)
a motor carrier transporting household goods for compensation
in intrastate commerce in a vehicle not defined in Texas Transportation Code, §548.001(1)
is subject to the record keeping requirements in Title 49, Code of Federal
Regulations, Part 395 and the hours of service requirements specified in this
subchapter.
(F)
a foreign commercial motor vehicle that is owned or controlled
by a person or entity that is domiciled in or a citizen of a country other
than the United States.
(G)
a contract carrier transporting the operating employees
of a railroad on a road or highway of this state in a vehicle designed to
carry 15 or fewer passengers.
(2)
The regulations contained in Title 49, Code of Federal
Regulations, Part 392.9a, and all interpretations thereto, are applicable
to motor carriers operating in intrastate commerce and to for-hire interstate
motor carriers exempt from economic regulation. The term "registration" as
used in Title 49, Code of Federal Regulations, Part 392.9a, for the motor
carriers described in this paragraph, shall mean compliance with the registration
requirements found in Texas Transportation Code, Chapter 643, for vehicles
operating in intrastate commerce, or Texas Transportation Code, Chapters 643
or 645, for for-hire interstate motor carriers exempt from economic regulation.
For purposes of enforcement of this paragraph, peace officers certified to
enforce this chapter, shall verify that a motor carrier is not registered,
as required in Texas Transportation Code, Chapters 643 or 645, before placing
a motor carrier out-of-service. Motor carriers placed out-of-service under
Title 49, Code of Federal Regulations, Part 392.9a may request a review under §4.18
of this chapter. All costs associated with the towing and storage of a vehicle
and load declared out-of-service under subsection (c)(2) shall be the responsibility
of the motor carrier and not the department or the State of Texas.
(3)
All regulations contained in Title 49, Code of Federal
Regulations, Parts 40, 380, 382, 385, 386, 387, 390 - 393 and 395 - 397, and
all interpretations thereto pertaining to interstate drivers and vehicles
are also adopted except as otherwise excluded.
(4)
Nothing in this section shall be construed to prohibit
an employer from requiring and enforcing more stringent requirements relating
to safety of operation and employee health and safety.
§4.13.Authority to Enforce, Training and Certificate Requirements.
(a)
Authority to Enforce.
(1)
An officer of the department may stop, enter or detain
on a highway or at a port of entry a motor vehicle that is subject to Texas
Transportation Code, Chapter 644.
(2)
A non-commissioned employee of the department that is trained
and certified to enforce the federal safety regulations may stop, enter or
detain at a fixed-site facility, or at a port of entry, a motor vehicle that
is subject to Texas Transportation Code, Chapter 644.
(3)
An officer of the department or a non-commissioned employee
of the department that is trained and certified to enforce the federal safety
regulations may prohibit the further operation of a vehicle on a highway or
at a port of entry if the vehicle or operator of the vehicle is in violation
of Texas Transportation Code, Chapter 522, or a federal safety regulation
or rule adopted under Texas Transportation Code, Chapter 644, by declaring
the vehicle or operator out-of-service using the North American Standard Out-of-Service
Criteria as a guideline.
(4)
Municipal police officers from any of the following Texas
cities meeting the training and certification requirements contained in subsection
(b) of this section and certified by the department may stop, enter or detain
on a highway or at a port of entry within the municipality a motor vehicle
subject to Texas Transportation Code, Chapter 644:
(A)
a municipality with a population of 100,000 or more;
(B)
a municipality with a population of 25,000 or more, any
part of which is located in a county with a population of two million or more;
(C)
a municipality any part of which is located in a county
bordering the United Mexican States; or
(D)
a municipality with a population of less than 25,000, any
part of which is located in a county with a population of 2.4 million and
that contains or is adjacent to an international port.
(5)
A sheriff, or deputy sheriff from any of the following
Texas counties meeting the training and certification requirements contained
in subsection (b) of this section and certified by the department, may stop,
enter or detain on a highway or at a port of entry within the county a motor
vehicle subject to Texas Transportation Code, Chapter 644:
(A)
a county bordering the United Mexican States, or
(B)
a county with a population of 2.2 million or more.
(6)
A certified peace officer from an authorized municipality
or county may prohibit the further operation of a vehicle on a highway or
at a port of entry within the municipality or county if the vehicle or operator
of the vehicle is in violation of Texas Transportation Code, Chapter 522,
or a federal safety regulation or rule adopted under Texas Transportation
Code, Chapter 644, by declaring the vehicle or operator out-of-service using
the North American Standard Out-of-Service Criteria as a guideline.
(b)
Training and Certification Requirements.
(1)
Minimum standards. Certain peace officers from the municipalities
and counties specified in subsection (a) of this section before being certified
to enforce this article must meet the following standards:
(A)
successfully complete the North American Standard Roadside
Inspection Course; and
(B)
participate in an on-the-job training program following
this
[
(2)
Hazardous materials. Certain peace officers from the municipalities
and counties specified in subsection (a) of this section and eligible to enforce
the Hazardous Materials Regulations must:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete
the
[
(C)
participate in an on-the-job training program following
this
[
(3)
Cargo Tank Specification. Certain peace officers from the
municipalities and counties specified in subsection (a) of this section and
eligible to enforce the Cargo Tank Specification requirements must:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete
the
[
(C)
successfully complete
the
[
(D)
participate in an on-the-job training program following
this
[
(4)
Other Bulk Packaging. Certain peace officers
from the municipalities and counties specified in subsection (a) of this section
and eligible to enforce the Other Bulk Packaging requirements must:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete the Hazardous Materials Inspection
Course;
(C)
successfully complete the Other Bulk Packaging Course;
and
(D)
participate in an on-the-job training program following
this course with a certified officer and perform a minimum of 16 level I inspections
on vehicles containing hazardous materials in other bulk packaging.
(5)
[
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete
the Passenger Vehicle
[
(C)
participate in an on-the-job training program following
this
[
(6)
[
(A)
the per diem costs of the instructors established in accordance
with the Appropriations Act regarding in-state travel;
(B)
the travel costs of the instructors to and from the training
site;
(C)
all course fees charged to the department;
(D)
all costs of supplies; and
(E)
the cost of the training facility, if applicable.
(7)
[
(A)
submit a schedule of the courses to be instructed;
(B)
submit an outline of the subject matter in each course;
(C)
submit a list of the instructors and their qualifications
to be used in the training course;
(D)
submit a copy of the examination;
(E)
submit an estimate of the cost of the course;
(F)
receive approval from the director prior to providing the
training course;
(G)
provide a list of all peace officers attending the training
course, including the peace officer's name, rank, agency, social security
number, dates of the course, and the examination score; and
(H)
receive from each peace officer, municipality, or county
the cost of providing the training course(s).
(c)
Maintaining Certification.
(1)
To maintain certification to conduct inspections and enforce
the federal safety regulations, a peace officer must:
(A)
Successfully complete the required annual certification
training; and
(B)
Perform a minimum of 32 Level I [
(C)
If the officer is certified to perform hazardous materials
inspections, at least eight inspections (Levels I, II or V) shall be conducted
on vehicles containing non-bulk quantities of hazardous materials.
(D)
If the officer is certified to perform cargo
tank
[
(E)
If the officer is certified to perform
other bulk packaging inspections, at least eight of the inspections (Levels
I, II or V) shall be conducted on vehicles transporting hazardous materials
in other bulk packaging.
(F)
[
(2)
In the event an officer does not meet the requirements
of subsection (c) of this section, his or her certification shall be suspended.
(3)
To be recertified, after suspension, an officer shall pass
the applicable examinations which may include the North American Standard
Roadside
Inspection, the [
(4)
Any officer failing any examination, or failing to successfully
demonstrate proficiency in conducting inspections after allowing any certification
to lapse will be required to repeat the entire training process as outlined
in subsection (b) of this section.
§4.16.Administrative Penalties, Payment, Collection and Settlement of Penalties.
(a)
Administrative Penalties.
(1)
The compliance review may result in the initiation of an
enforcement action based upon the number and degree of seriousness of the
violations discovered during the review as well as those factors listed in
Title 49, Code of Federal Regulations, Part 385.7. As a result of the enforcement
action, the department may impose an administrative penalty against a motor
carrier who violates a provision of the Texas Transportation Code, Title 7,
Subtitle B, Chapter 522 (relating to Commercial Driver's License), Subtitle
C, Chapters 541 - 600 (relating to the Rules of the Road), and Subtitle F,
Chapter 644 (relating to Commercial Motor Vehicles), including any amendments
not codified in the Texas Transportation Code. Each of these provisions relates
to the safe operation of a commercial motor vehicle under Texas Transportation
Code, §644.153(b).
(2)
The department shall have discretion in determining the
appropriate amount of the administrative penalty assessed for each violation,
and adopts the Federal Uniform Fine Assessment Program as a method of determining
penalty assessment. A penalty under this section may not exceed the maximum
penalty provided for a violation of a similar federal safety regulation.
(3)
The amount of the administrative penalty shall be determined
by taking into account the following factors:
(A)
For violations other than those under the hazardous material
regulations:
(i)
nature of the violation;
(ii)
circumstances of the violation;
(iii)
extent of the violation;
(iv)
gravity of the violation;
(v)
degree of culpability;
(vi)
history of prior offenses;
(vii)
ability to pay;
(viii)
the amount necessary to deter future violations;
(ix)
effect on ability to continue to do business; and
(x)
such other matters as justice and public safety may require.
(B)
For hazardous material violations, the factors detailed
in paragraph (3)(A) of this subsection, are considered in addition to the
following factors:
(i)
any good faith effort to comply with the applicable requirements;
and
(ii)
any economic benefit resulting from the violation.
(4)
The department will send a Notice of Claim to the person(s),
Firm, or business in violation of this subchapter by certified mail, return
receipt requested, by personal service, or another manner of delivery that
records the receipt of the notice by the person responsible requiring a response
within 20 business days. The notice will contain the following language in
bold, large face type: "FAILURE TO PAY THIS CLAIM OR RESPOND, AS SPECIFIED
IN THE NOTICE OF CLAIM, WITHIN 20 BUSINESS DAYS WILL RESULT IN THIS NOTICE
OF CLAIM BEING DEEMED A 'FINAL DEPARTMENT DECISION.' A PERSON WHO IS SUBJECT
TO AN ADMINISTRATIVE PENALTY IMPOSED BY THE DEPARTMENT UNDER TEXAS TRANSPORTATION
CODE, §644.153 IS REQUIRED TO PAY THE ADMINISTRATIVE PENALTIES OR RESPOND
TO THE DEPARTMENT'S NOTICE OF CLAIM. A PERSON WHO FAILS TO PAY, OR BECOMES
DELINQUENT IN THE PAYMENT OF THE ADMINISTRATIVE PENALTIES IMPOSED BY THE DEPARTMENT
UNDER TEXAS TRANSPORTATION CODE, §644.153 SHALL NOT OPERATE OR DIRECT
THE OPERATION OF A COMMERCIAL MOTOR VEHICLE ON THE HIGHWAYS OF THIS STATE
UNTIL SUCH TIME AS THE ADMINISTRATIVE PENALTIES HAVE BEEN REMITTED TO THE
DEPARTMENT."
(b)
Payment, Collection and Settlement of Administrative Penalty.
(1)
Payment. A person who is subject to an administrative penalty
imposed by the department as authorized by Texas Transportation Code §644.153(c)
is required to pay the administrative penalty. If payment of costs, fees,
expenses, and reasonable and necessary attorney's fees incurred by the state
has been ordered, any payment of less than the full amount owed will be applied
first to the costs, fees, expenses and attorney's fees, then the balance of
the payment, if any, will be applied to the administrative penalty. The administrative
penalty may be paid through one of the following options:
(A)
Full Payment. Full payment of the administrative penalty
in the form of a check, cashier's check, or money order made payable to the
Department of Public Safety shall be submitted to the Texas Department of
Public Safety, Attn: Motor Carrier Bureau, MSC 0522, 6200 Guadalupe, Building
P, Austin, Texas 78752-4019.
The department may allow payments to be
made by electronic funds transfer or valid credit card issued by a financial
institution chartered by a state or the federal government or by a nationally
recognized credit organization approved by the department.
(i)
The department may assess a discount,
convenience, or service charge for a payment transaction for electronic funds
transfers or credit card payments in an amount that will cover the direct
costs to the department for accepting that payment.
(ii)
The department may assess a service charge
of $30 for a payment transaction that is dishonored or refused for lack of
funds or insufficient funds.
(iii)
Any charge added to an administrative
penalty under paragraph (1)(A)(i) and (1)(A)(ii) of this subsection must be
paid in full, along with the administrative penalty. The department's remedies,
including issuing and continuing an impoundment order, apply to the charges
as well as the administrative penalty.
(B)
Installment Payments.
(i)
A person(s), firm, or business may, upon approval of the
director or the director's designee, be allowed to make installment payments
of an administrative penalty, costs, fees, expenses, and reasonable and necessary
attorney's fees incurred by the state upon submission of adequate proof of
inability to pay the full amount of the claim. An application shall be submitted
on a form approved by the department.
(ii)
The person(s), firm, or business requesting the installment
agreement must submit adequate documentation to support the request and make
all relevant financial records of the person(s), firm, or business available
to the department for inspection and verification.
(iii)
In the event of a default of the installment agreement
by the person(s), firm, or business, then the remaining balance of the installment
agreement will be due immediately.
(iv)
Upon default under an installment agreement, or failure
to respond to the notice of claim within 20 business days, the person(s),
firm, or business is no longer eligible for installment payments.
(v)
Installment payments will be in the form,
and subject to service charges, described in paragraph (1)(A) of this subsection.
(2)
Non-Payment of Administrative Penalty. A person who fails
to pay,
reverses an electronic funds transfer payment or credit card
payment, or otherwise
[
(A)
Issuance of an Impoundment Order. Pursuant to Texas Transportation
Code, §644.153(o) - (s), the department will issue an impoundment order
for the impoundment of any commercial motor vehicle that is operated or directed
by the person(s), firm, or business that fails to pay an administrative penalty
issued under this subchapter.
(B)
Timing and Content of Impoundment Order. The department
shall issue an Impoundment Order if the person(s), firm, or business fails
to respond as specified to the Notice of Claim within 20 business days, or
becomes delinquent in the payment of the full amount under subsection (b)(1)(A)
of this section or any installment payments under subsection (b)(1)(B) of
this section when they become due. The Impoundment Order will contain the
following information:
(i)
Motor Carrier's name, address, city, zip code and telephone
number;
(ii)
The motor carrier's Texas Department of Transportation,
United States Department of Transportation, or Motor Carrier number, if any;
(iii)
The amount of delinquent penalty assessment;
(iv)
The date the Impoundment Order was issued;
(v)
A contact number for the Motor Carrier Bureau;
(vi)
Notice that impoundment will be lifted upon receipt of
full payment of the administrative penalty at the Motor Carrier Bureau or
the designated Commercial Vehicle Enforcement employee as described in paragraph
(5)(C)(i) or (ii) of this subsection; and,
(vii)
In bold, conspicuous letters, notice that the carrier
is responsible for all costs of storage of the vehicle and its cargo, and
towing.
(3)
Prior to impounding any vehicle, the trooper shall verify
the Impoundment Order is still valid. Verification can only be made by the
Manager of the Motor Carrier Bureau or the Manager's designee during regular
business hours, or via electronic inquiry into the Motor Carrier Bureau's
Vehicle Impoundment Database after regular business hours. If a trooper is
unable to verify the Impoundment Order is in force, then the vehicle shall
not be impounded.
(4)
Once a vehicle is impounded, the trooper impounding the
vehicle shall immediately ensure the motor carrier is notified of impoundment
of the vehicle. The trooper will inform the motor carrier of the name, location,
and telephone number of the vehicle storage facility where the vehicle is
impounded, notice the vehicle will not be released until the administrative
penalty has been paid, and a contact number for the Motor Carrier Bureau.
When a vehicle is impounded after regular business hours, the trooper will
notify the Motor Carrier Bureau as soon as possible but not later than the
next regular business day.
(5)
Release of Impounded Vehicles.
(A)
To cancel the Impoundment Order and to release a vehicle
from impoundment, the motor carrier shall pay the administrative penalty in
full, including costs, fees, expenses, and reasonable and necessary attorney's
fees incurred by the state.
(B)
The payment of the administrative penalty must be for the
full amount. The payment must be made by cashier's check or money order payable
to the Texas Department of Public Safety.
(C)
The payment can be made in one of two ways only:
(i)
by sending it to the following address as indicated: Texas
Department of Public Safety, Motor Carrier Bureau, MSC 0522, 6200 Guadalupe,
Bldg. P, Austin, Texas 78752-4019, Attn: Accounting Clerk, Impoundment Notice;
or
(ii)
directly to the trooper at the time of the actual impoundment
or to any Commercial Vehicle Enforcement employee at any department regional,
district or sub-district office. If payment is made on an impounded vehicle
after regular business hours, the trooper will notify the Motor Carrier Bureau
as soon as possible but not later than the next regular business day.
(D)
The impounded vehicle will be released and the impoundment
order will be cancelled only upon receipt of payment as specified under paragraph
(5)(C)(i) or (ii) of this subsection.
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 July 12, 2005.
TRD-200502845
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-2135
Subchapter O. FEES
37 TAC §35.233
The Texas Department of Public Safety proposes new §35.233,
concerning Subscription Fee for Employee Information Updates. Specifically,
the new section provides a mechanism for the payment of a subscription fee
for online employee information updates. This fee is in addition to the fee
charged for the employee information updates. The Texas Online Authority has
determined that the $2.00 fee is reasonable.
Oscar Ybarra, Chief of Finance has determined that for each year of the
first five-year period the rule is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be a mechanism to collect a subscription fee for online employee
information updates under Chapter 1702 of the Texas Occupations Code. The
fee will allow online employee information updates to be submitted by the
public via the Internet using the Texas Online system. There is no anticipated
adverse economic cost to small businesses, or micro-businesses. The cost to
individuals who are required to comply with the rule as proposed will be the
$2.00 subscription fee.
Comments on the proposal may be submitted to Cliff Grumbles, Manager, Private
Security Bureau, Texas Department of Public Safety, Regulatory Licensing Service,
P.O. Box 4143, MSC-0241, Austin, Texas 78765-4143, (512) 424-7711.
The new section is proposed pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the department's work; Texas Occupations Code, Chapter 1702,
and Government Code, §2054.252(g), which allows the increase of fees
by the Texas Online Authority.
Texas Government Code, §411.004(3); Texas Occupations Code, Chapter
1702, and Government Code, §2054.252(g) are affected by this proposal.
§35.233.Subscription Fee for Employee Information Updates.
Each individual registrant or commissioned security officer shall pay
a $2.00 fee for an employee information update. This fee is in addition to
the employee information update fee.
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 July 12, 2005.
TRD-200502846
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-2135
Chapter 87.
TREATMENT
Subchapter B. SPECIAL NEEDS OFFENDER PROGRAMS
37 TAC §87.67
The Texas Youth Commission (the commission) proposes an amendment
to §87.67, concerning Corsicana Stabilization Unit. The amendment to
the section adds a reference to §93.1, concerning Basic Youth Rights.
Robin McKeever, 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.
Neil Nichols, General Counsel, 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 agency-wide awareness and protection
of youth rights. 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 within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, 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 commission with the authority to make rules appropriate
to the proper accomplishment of its functions.
The proposed rule affects the Human Resources Code, §61.034.
§87.67.Corsicana Stabilization Unit.
(a)
(No change.)
(b)
Applicability.
(1)
The mental health status review due process procedures
are found in [
(2)
See [
(3)
See [
(4)
For emergency mental health placements, see [
(5)
Certain basic rights are recognized
for each youth in TYC, see §93.1 of this title (relating to Basic Youth
Rights).
(c)
Admissions.
(1)
(No change.)
(2)
Admission Process.
(A)
(No change.)
(B)
Emergency Referrals. If an emergency exists, procedures
in [
(3)
(No change.)
(d) - (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 July 18, 2005.
TRD-200502916
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-6014
37 TAC §93.1
The Texas Youth Commission (the commission) proposes an amendment
to §93.1, concerning Basic Youth Rights. The amendment to the section
will add a reference to a new rule, §93.12, which is proposed for adoption
in this issue of the
Texas Register
, and deals
with youth visitation in greater detail. The amendment to §93.1 also
deletes some information which will be duplicated in §93.12.
Robin McKeever, 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.
Neil Nichols, General Counsel, 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 protection of youth rights. 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 within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, 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 commission with the authority to make rules appropriate
to the proper accomplishment of its functions.
The proposed rule affects the Human Resources Code, §61.034.
§93.1.Basic Youth Rights.
(a) - (e)
(No change.)
(f)
Right to Personal Possessions. Youth have the right to
keep and use personal possessions so long as these possessions do not endanger
the safety of staff and youth, disrupt programs and activities, encourage
delinquent subcultural values, or appeal to the unique vulnerability of youth
to improper influences. Youth shall not be in possession of contraband as
defined by [
(1) - (4)
(No change.)
(g)
Right to Receive Visitors. Youth have the right to receive
visitors, including but not limited to private in-person communication with
parents. [
(h)
Right of Access to Mail and Telephone. Youth have the right
to correspond freely through the mail except when correspondence among youth
presents a risk to facility security and order. Staff may not read incoming
or outgoing mail. Staff may open incoming mail in the youth's presence to
inspect it for contraband. Staff will not inspect and youth may seal outgoing
mail to special correspondents only. Other outgoing mail from youth may be
inspected for contraband prior to sealing. For additional information and
an explanation of the term special correspondents, refer to [
(i) -(o)
(No change.)
(p)
Right to Express Grievances and Appeal Decisions. Youth
have the right, without fear of reprisal, to have access to a prompt and fair
method of resolving complaints. Youth have the right to appeal to the executive
director from any decision made regarding them. See [
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 July 18, 2005.
TRD-200502917
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-6014
37 TAC §93.12
The Texas Youth Commission (the commission) proposes new §93.12,
concerning Visitation. The new section will set forth the agency's rules regarding
visitation conditions, times, duration and complaints.
Robin McKeever, 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.
Neil Nichols, General Counsel, 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 provide for safe, orderly visitation
which contributes to youth resocialization. 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 within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, Texas Youth
Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765, or email
to deanna.lloyd@tyc.state.tx.us.
The new section is proposed under the Human Resources Code, §61.045,
which assigns to the commission responsibility for the welfare, custody, and
rehabilitation of the children in a school, facility, or program operated
or funded by the commission.
The proposed rule affects the Human Resources Code, §61.034.
§93.12.Visitation.
(a)
Purpose. All Texas Youth Commission (TYC) youth shall be
allowed to receive visitation regardless of the youth’s program placement
to communicate and associate with their family and non-family individuals
at regular intervals.
(b)
Applicability. A youth shall be allowed to receive visits
from his/her attorney or clergy pursuant to §93.11 of this title (relating
to Access to Attorneys and Courts) and §93.17 of this title (relating
to Access to Personal Minister, Pastor, or Religious Counselor).
(c)
Non-Eligible Individuals for Visitation. The following
individuals are not eligible for visitation:
(1)
a former or current TYC youth, except if a former TYC youth
is an immediate family member;
(2)
a parent whose rights have been terminated by a court and
the youth is under age 18;
(3)
any individual who is restricted from contact with a TYC
youth by a valid court order;
(4)
any former or current TYC employee, unless the former or
current TYC employee is an immediate family member of the youth;
(5)
any individual, based upon reasonable cause to believe,
who would pose a risk to the facility/programs safety and security, or interfere
with the youth’s treatment, rehabilitation, or successful reestablishment
in the community; and
(6)
a victim who is under the age of 18 that has not received
approval from the director of clinical services.
(d)
Visitation Scheduling.
(1)
Visitation Days. Visitation days are at least, Saturday
and Sunday to include Thanksgiving and Christmas. Additional visitation days
may be provided, as designated by the chief local administrator (CLA) or designee.
(2)
Visitation Hours. The facility/program must provide two
8-hour visitation days per week. The facility/program may provide extended
visitation hours, as designated by the CLA or designee.
(3)
Length of Visitation.
(A)
General Population. Visitation must be at least two (2)
hours per each visitation. The CLA or designee may authorize longer visitation
periods.
(B)
Security Unit.
(i)
Youth whose placement is in the Institution Detention Program
(IDP) or the Security Program will receive a minimum of one hour per each
visitation.
(ii)
Youth whose placement is in the Behavior Management Program
(BMP) will receive a minimum of one hour per each visitation, with the exception
of youth on stages 3-5. Youth on stages 3-5 will receive a minimum of two
(2) hours per each visitation.
(iii)
Youth whose placement is in the Aggression Management
Program (AMP) will receive:
(I)
30 minutes per each visitation on Stage 1;
(II)
one hour per each visitation on Stage 2-3; and
(III)
two (2) hours per each visitation on Stage 4-5.
(iv)
For youth whose placement is in Protective Custody, the
mental health professional (MHP) will determine if the youth is capable of
receiving visitors. If so, the MHP will determine the length of visitation
and the level of observation.
(C)
Corsicana Stabilization Unit. Youth whose placement is
in the Corsicana Stabilization Unit (CSU) will receive a minimum of one hour
per each visitation in a secure area adjacent to the CSU. The exception to
this is if the clinical staffing team has determined that a CSU youth does
not require restriction to the CSU. In this case, visitation will be the same
as for general population youth at Corsicana Residential Treatment Center.
(4)
Number of Visitors. There is no limit to the number of
visitors per visitation. However, a youth will only be allowed two (2) face-to-face
contact visitors at any one time during each visitation, unless the CLA or
designee grants an increase in the number of face-to-face contact visitors
for the visitation period.
(e)
Conditions of Visitation.
(1)
Adequate Space. Adequate space shall be provided for visitation.
Outdoor visitation may be allowed if safety and weather permit.
(2)
Private Parental Visitation. Parents shall have the right
to private, in-person communication with their child for reasonable periods
of time. The time, place, and conditions of the private, in-person communication
may only be regulated to prevent disruption of scheduled activities and to
maintain the safety and security of the facility/program.
(A)
Private, in-person communication means a communication
between a parent and his/her child in a location where conversation cannot
be overheard by staff.
(B)
Parents desiring to have a private, in-person communication
with their child are expected to make the request at least 24 hours before
the visitation. Requests not made within 24 hours should be accommodated if
possible.
(3)
Special Visitation. Special visitation is provided at times
that may vary from the regular visitation schedule to accommodate visitors
with special circumstances including, but not limited to:
(A)
long-distance travel requirements;
(B)
parent work schedules that preclude visiting during normal
hours; or
(C)
bereavement.
(4)
Contact Visitation. Contact visitation allows visitors
to hug the youth at the beginning and end of the visit, except at the Marlin
Orientation and Assessment Unit (MOAU).
(5)
Dress Code. Visitors must abide by the following dress
code:
(A)
no shorts (exception will be made for youth age 13 and
under);
(B)
no mini skirts, see-through, sleeveless clothing or tops
that expose midriff, or any other clothing for youth age 13 or older which
is determined by staff to be too revealing, too short, or otherwise inappropriate;
(C)
tattoos must be covered (to the extent practical); and
(D)
no clothing depicting drugs, sex, gang culture, obscene
language or disrespect to other persons or ethnicities.
(6)
Disruption During Visitation and Removal.
(A)
The CLA or designee or the director of security may deny
visitation if:
(i)
a visitor appears to be under the influence of drugs or
alcohol;
(ii)
a visitor refuses to cooperate;
(iii)
a visitor creates a disturbance;
(iv)
a visitor is hostile to the point of disruption; or
(v)
evidence exists that a visitor has passed contraband to
a youth or staff member or aided a youth in an escape or attempted escape.
(B)
The CLA or designee or the director of security may determine
the appropriate action to be taken including asking the visitor to leave the
facility/program or notifying local law enforcement. If local law enforcement
is notified, any further action will be at the discretion of the local law
enforcement.
(7)
Denial of Future Visitation of Visitors. The CLA or designee
may deny visitation if evidence exists that a visitor has:
(A)
passed contraband to a youth or staff member;
(B)
aided a youth in an escape or attempted escape;
(C)
provided false information or failed to provide accurate
information to staff with regard to visitation; or
(D)
engaged in disruption of visitation similar to examples
listed in paragraph (6) of this subsection. The severity of the incident is
a factor in determining the length of time visitation may be denied.
(8)
Denial of Visitation for TYC Youth. Youth may not receive
visitors if at the time of visitation:
(A)
the youth is out of control and it is unsafe to allow visitation,
or
(B)
the youth is assaultive or threatens to engage in assaultive
conduct during visitation; or
(C)
the youth engages in misconduct during visitation.
(9)
Denial of Visitation for TYC Campus.
(A)
If a dorm is on shut-down, youth will be allowed visitation
unless youth individually meet criteria for denial of visitation.
(B)
Denial of visitation for an entire campus due to unrest,
the fact that the safety of the campus is uncertain, or any other extraordinary
situation must be approved by the appropriate director of juvenile corrections
and the assistant deputy executive director for juvenile corrections.
(10)
Refusal of Visitation. Youth may refuse to receive visitors.
(11)
Staff Availability During Visitation. The facility/program
staff are required to be available to answer visitors' questions and address
concerns during visitation hours.
(12)
Publication of Rules. The facility/program staff are required
to post the visitation rules in English and Spanish on a central bulletin
board, and assist other non-English speaking individuals to understand posted
rules, as needed. The visitation rules shall:
(A)
address all pertinent issues including, but not limited
to, visitation days and hours, positive identification, visitor dress code,
prohibited contraband, items authorized in visitation area, and expected demeanor
of visitors; and
(B)
be sent with the admission letter to parents or legal guardian.
(f)
Review Process.
(1)
Visitation Complaints. Complaints by parents or youth with
regard to visitation are filed pursuant to §93.31 of this title (relating
to Complaint Resolution System).
(2)
Public Complaints. Complaints by a member of the public
with regard to visitation are filed pursuant to §81.11 of this title
(relating to Complaints from the Public).
(g)
Check-In Process.
(1)
Register. All visitors must register upon entry to a facility/program.
The facility/program staff must document all visitations through the computerized
visitor tracking and reporting system.
(2)
Identification. Adult visitors must produce valid identification
for themselves and accompanying visitor(s) 13 years of age or older. Acceptable
picture identification includes:
(A)
valid state driver’s license;
(B)
state issued identification card;
(C)
current military identification;
(D)
school issued identification card;
(E)
other official picture identification; or
(F)
a TYC visitor identification badge.
(3)
Items. Items brought onto agency property may be limited
and regulated by TYC. Prohibited items are forbidden on campus. For a list
of prohibited items, see §97.10 of this title (relating to Entry Searches).
Visitors will be allowed to bring in the items listed below. All other items
must be left in the visitor’s vehicle unless the control center posts
a list of items otherwise allowed in a visitor’s possession while on
facility grounds. The additional items must be approved by the CLA.
(A)
Identification and car keys.
(B)
Visitors with infants will be allowed to bring a bottle
and a diaper on campus.
(C)
If vending machines are available, visitors will be allowed
to bring in a maximum of ten (10) dollars in coins for the vending machines.
(4)
Search.
(A)
All individuals, vehicles, and items entering the facility/program
are subject to search pursuant to §97.10 of this title.
(B)
Parking lots are subject to inspection by TYC’s canine
(K-9) team(s), and law enforcement maybe notified when necessary. For parking
lot inspections, see §97.13 of this title (relating to Use of Canine
(K-9) Teams).
(C)
Visitors shall declare at the control center all metal
items on their person and must successfully pass through the metal detector.
(D)
Belongings and outer garments (coats, rain gear, etc.)
will be removed and searched.
(E)
Visitors' refusal to submit to a search of their person
or personal property may be considered legitimate grounds for denying access
to the facility/program.
(F)
Visitors refusing or failing to pass successfully through
a metal detector will be denied access.
(G)
Visitors are directed to the visitation area and arrangements
are made to transport youth to the visitation area. When possible, visitors
will be escorted.
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 July 18, 2005.
TRD-200502918
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-6014
37 TAC §93.33
The Texas Youth Commission (the commission) proposes an amendment
to §93.33, concerning Alleged Abuse, Neglect, and Exploitation. The amendment
to the section will authorize an investigator who is conducting an investigation
under this rule to make findings on misconduct other than abuse, neglect,
or exploitation.
The amended section also includes several revisions relating to notification
of findings and access to reports. Specifically, the section will require
that when an allegation is reported by a medical health provider (MHP) employed
or contracted by University of Texas Medical Branch or Texas Tech University
Health Sciences Center, notice of the investigation findings and appeal rights
shall be provided to the MHP. The MHP shall also, upon request, be provided
a redacted copy of the investigation report. The section is also amended to
clarify that investigation reports shall be provided to a law enforcement
or criminal justice agency for purposes of investigation and prosecution,
upon request.
Robin McKeever, 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.
Neil Nichols, General Counsel, 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 the protection of youth committed
to the commission's custody. 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 within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, 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, §61.045,
which assigns to the commission responsibility for the welfare, custody, and
rehabilitation of the children in a school, facility, or program operated
or funded by the commission.
The proposed rule affects the Human Resources Code, §61.034.
§93.33.Alleged Abuse, Neglect and Exploitation.
(a)
(No change.)
(b)
Applicability.
(1)
(No change.)
(2)
For procedures regarding the resolution of youth complaints,
refer to [
(3)
For procedures regarding appeals to the executive director,
refer to [
(4)
For procedures regarding reporting the death of a youth,
refer to [
(c)
Explanation of Terms Used.
(1) - (4)
(No change.)
(5)
Deputy Chief Inspector General - the person employed in
TYC's
Office of General Counsel
[
(6)
Inspector General - the person employed in TYC's
Office
[
(d)
Reporting Requirements.
(1)
Any person having cause to believe that a youth has been
or may be adversely affected by abuse, neglect, or exploitation by an employee,
volunteer or contractor in programs or facilities under TYC jurisdiction will
report the matter in accordance with the provisions of this rule. The report
may be made also to an appropriate law enforcement agency or to the Department
of
Family and Protective Services (DFPS).
[
(2)
The CLA [
(A) - (G)
(No change.)
(3)
A report under subsection (d)(1)
of this section
will
be made immediately or no later than by the end of the current work shift
if the person making the report is an employee, volunteer, or contractor.
A report under subsection (d)(2)
of this section
will be made immediately
upon the CLA's first
knowledge
[
(4) - (5)
(No change.)
(e)
Reporting Contents.
(1)
A report under subsection (d)(1)
of this section
will
be made orally or in writing to the facility's CLA or any TYC staff member.
A youth or parent may also make the report by filing a complaint under the
complaint resolution procedures in [
(2) - (3)
(No change.)
(f)
Actions of the Chief Local Administrator Regarding Report.
Upon receipt of a report under subsection (d)(1)
of this section
or
upon the CLA's first
knowledge
[
(1) - (3)
(No change.)
(g)
(No change.)
(h)
Standards for Investigations.
(1) - (5)
(No change.)
(6)
The investigation will be directed at resolving all the
relevant issues raised by the report.
(A)
With regard to a report of alleged abuse, the investigator
will find whether the:
(i)
(No change.)
(ii)
act or failure to act caused emotional harm or physical
injury
to the youth
; and
(iii)
(No change.)
(B) - (C)
(No change.)
(7) - (8)
(No change.)
(9)
The investigator may make findings on misconduct
other than abuse, neglect or exploitation that is established by the evidence.
However, the absence of such findings should not be regarded as exoneration
of the respondent or other employees as to policy violations or other misconduct
indicated by the evidence.
[
(i)
Investigation Report - Submission and Closure.
(1) - (2)
(No change.)
(3)
The deputy chief inspector general will indicate whether
the report of mistreatment is confirmed or not as follows:
(A)
(No change.)
(B)
if all the requisite findings for abuse, neglect, or exploitation
are not affirmed, the deputy chief inspector general will indicate that the
report is not confirmed as alleged. However, if the findings constitute a
violation of agency policy or standards of care, even though they do not constitute
abuse, neglect, or exploitation, the deputy chief inspector general
may
[
(4)
(No change.)
(5)
If the allegation was reported
by a medical health provider (MHP) who is employed by or contracts with University
of Texas Medical Branch (UTMB) or the Texas Tech University Health Sciences
Center (TTUHSC), the MHP will be notified in writing by the deputy chief inspector
general or designee of the results of the investigation and the MHP's right
to appeal the findings of the investigation report pursuant to §93.53
of this title.
(j)
Actions of the Chief Local Administrator Regarding Investigation
Report.
(1)
Within five (5) working days of receiving a closed investigation
report, the CLA will review the report and [
(A)
notify the appropriate law enforcement agency, the youth,
the youth's parents or guardian, and the
respondent
[
(B)
(No change.)
(2)
The CLA will appeal to the executive director under subsection
(k)(2)
of this section
any investigation findings with which the
administrator is not satisfied.
(k)
Complaints Regarding the Conduct of Investigations and
Periodic Audits.
(1)
Youth and
parent
[
(2)
Any employee, volunteer, or contractor who is
[
(3)
Appeals to the executive director
[
(4)
[
(5)
[
(6)
[
(l)
Standards for Compiling Investigation Information and Confidentiality
of Reports.
(1) - (2)
(No change.)
(3)
The identity of the person making an allegation, and the
files, reports, records, tapes, communications, and working papers used or
developed in an investigation, or in providing services as a result of the
investigation, are confidential and not open for public inspection under the
provisions of §261.201 of the Family Code
,
[
(4)
A report will be provided to a law enforcement agency or
other criminal justice agency for purposes of investigation and prosecution
upon request
.
(5)
A report will be provided to a parent, managing conservator
or other legal representative of a youth upon request. The information contained
in the report will be
redacted
[
(6)
A report will be provided to
the MHP employed by or who contracts with UTMB or the TTUHSC who reported
the allegation upon request. The information contained in the report will
be redacted to protect the identity of the person making the report, other
youth, and any other person who may be harmed by the disclosure.
(7)
Evidence gathered in the course
of an investigation may be provided, upon request, to an employee having a
right to the information in order to appeal the investigation findings or
defend against a disciplinary action arising from the investigation findings.
(A)
Investigation reports are confidential youth
records and the information contained therein may be used by the employee
only for the appeal of investigation findings or to defend against a disciplinary
action arising from an investigation.
(B)
The CLA has the discretion to delete names when
the CLA determines the names are not necessary for the fair resolution of
contested facts. The CLA must ensure that any information which is confidential
by law is deleted prior to delivery to the respondent.
[
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 July 18, 2005.
TRD-200502919
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-6014
37 TAC §93.53
The Texas Youth Commission (the commission) proposes an amendment
to §93.53, concerning Appeal to Executive Director. The amendment to
the section will describe in greater detail the executive director's actions
upon receipt of an appeal. Language will be added which establishes that the
executive director's appeal decision constitutes the exhaustion of administrative
remedies for purposes of appeal to the courts. The amended section also directs
commission staff to assist youth complainants in interpreting appeal decisions.
Finally, the section will be amended to reflect that employees of the commission
or facilities operated under contract with the commission have appeal rights
under the commission's personnel policies, not under this section, which addresses
appeals by youth and their parents or guardians.
Robin McKeever, Assistant Deputy Executive Director for Financial Support,
has determined that for the first five-year period the amended section is
in effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the section.
Neil Nichols, General Counsel, has determined that for each year of the
first five years the amended section is in effect the public benefit anticipated
as a result of enforcing the section will be provision of appropriate levels
of review for decisions affecting youth committed to the commission. 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 within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, 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, §61.045,
which assigns to the commission responsibility for the welfare, custody, and
rehabilitation of the children in a school, facility, or program operated
or funded by the commission.
The proposed amendment affects the Human Resources Code, §61.034.
§93.53.Appeal to Executive Director.
(a)
Purpose. The purpose of this rule is to permit Texas Youth
Commission (TYC) youth[
(b)
Appeal of Youth Complaint Resolutions to the Executive
Director. Any disposition of any complaint made under §93.31 of this
title (relating to Complaint Resolution System) may be appealed to the executive
director, only after all levels of appeal have been exhausted locally.
[
(c)
Direct Appeals to the Executive Director.
A
direct appeal to the executive director may be filed in matters limited to:
(1) - (3)
(No change.)
(4)
a disciplinary transfer or assigned disciplinary length
of stay under [
(5)
Behavior Management Program
[
(6)
Aggression Management Program
[
(7)
(No change.)
(8)
an appeal of a
Level
[
(9)
a result of the second and subsequent
Level
[
(10)
a decision to extend the youth's stay in the
Security
Program
[
(11)
a decision from a mental health status review hearing
pursuant to [
(12)
a decision from a Title IV-E hearing; [
(13)
the
findings
[
(d)
Filing Deadline.
All appeals to the executive
director must be
submitted in writing and clearly describe the grounds
for the appeal and
filed within six (6) months of the decision being
appealed. Appeals filed after that time may be considered at the discretion
of the executive director.
(e)
Action of the Executive Director.
[
(1)
The executive director responds in writing
to each appeal. Failure to respond to an appeal within 30 working days will
constitute an exhaustion of administrative remedies for purposes of appeal
to the courts, but will not be construed as acceptance or rejection of any
contention made in the appeal.
(2)
The executive director will consider the
recommendations of the Office of General Counsel in reaching a decision on
appeals of investigation findings, including any additional findings or information
that resulted from further investigation.
(3)
The executive director may uphold, reverse
or modify the complaint resolution or return the complaint to the CLA with
directions. The executive director's disposition of a youth complaint may
also be in the form of a determination that the complaint involves operational
issues that have been adequately addressed and resolved at the facility level.
(4)
The executive director or his/her designee
may determine that an issue has not been sufficiently developed to render
an informed appeal resolution. If so, the executive director or his/her designee
may, prior to the issuance of a response:
(A)
conduct further investigation;
(B)
provide specific direction or instruction about information
needed concerning the investigation and state a time frame in which to comply
with the direction or instruction; or
(C)
re-open the investigation, and if the investigation finding(s)
are changed, the parties entitled to notification will be notified of their
right to appeal the new finding(s).
(f)
Distribution of Appeals. Appeal decisions shall be
distributed to the following:
[
(1)
the complainant;
(2)
the complainant's attorney or representative,
if any;
(3)
the chief local administrator (CLA) where
the grievance is filed; and
(4)
other persons as deemed appropriate.
(g)
Appropriate TYC staff shall assist youth
in interpreting appeal decisions from TYC's executive director.
(h)
The appeal decision of the executive director
is the final administrative resolution of an issue appealed and constitutes
an exhaustion of administrative remedies for purposes of appeal to the courts.
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 July 18, 2005.
TRD-200502920
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-6014
Subchapter A. DISCIPLINARY PRACTICES
37 TAC §95.21
The Texas Youth Commission (the commission) proposes an amendment
to §95.21, concerning Aggression Management Program. The amendment to
the section will establish lengths of visitation periods for youth assigned
to the Aggression Management Program. Youth generally are allowed longer visitation
periods as they progress through the stages of the program.
Robin McKeever, 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.
Neil Nichols, General Counsel, 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 the provision of an incentive for
youth to make progress in the treatment program designed to address aggressive
behavior. 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 within 30 days of the publication
of this notice to DeAnna Lloyd, Chief of Policy Administration, 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, §61.045,
which assigns to the commission responsibility for the welfare, custody, and
rehabilitation of the children in a school, facility, or program operated
or funded by the commission.
The proposed rule affects the Human Resources Code, §61.034.
§95.21.Aggression Management Program.
(a) - (e)
(No change.)
(f)
Admission Decision Process.
(1)
The [
(2)
(No change.)
(g) - (h)
(No change.)
(i)
Program Requirements.
(1)
Within seven (7) calendar days,
a comprehensive
[
(2) - (4)
(No change.)
(j)
Program Components. Program
structure
[
(1)
Physical Structure.
(A)
(No change.)
(B)
Mechanical restraints are used for youth on Stage
1
[
(C)
(No change.)
(2) - (6)
(No change.)
(7)
Physical Exercise.
(A)
(No change.)
(B)
On Stages
4 and 5
[
(8)
Family Notification
and
[
(9)
Youth Rights. Certain basic rights are recognized for
each youth in TYC
pursuant to §93.1 of this title (relating to Basic
Youth Rights)
[
(k)
Program Progress. The AMP is comprised of five (5) stages.
A review of the youth's progress for each stage is made weekly by the treatment
team.
(1)
Stage
1
[
(A) - (B)
(No change.)
(C)
Visitation. At least 30 minutes per each
visitation, if safety permits.
(D)
[
(i)
At least two 30-minute per week individual therapy sessions
provided by the PSW.
(ii)
At least 30 minutes per week of individual and/or group
therapy by the AMP psychologist or appropriate designee in the absence of
the AMP psychologist.
(iii)
At least six (6) hours daily of academic services will
be provided to the youth. Up to two (2) hours of academic services may be
provided in the AMP classroom.
(iv)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(E)
[
(i)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(ii)
One hour each day of games and recreation out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(2)
Stage
2
[
(A) - (B)
(No change.)
(C)
Visitation. At least one hour per each
visitation, if safety permits.
(D)
[
(i)
At least two 30-minute per week individual therapy sessions
provided by the PSW.
(ii)
At least 30 minutes per week of individual and/or group
therapy by the AMP psychologist or appropriate designee in the absence of
the AMP psychologist.
(iii)
Fifty minutes per day of Behavior Group provided by
an appropriate staff.
(iv)
At least six (6) hours daily of academic services will
be provided to the youth. Four (4) hours of academic services will be provided
in the AMP classroom.
(v)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(E)
[
(i)
Fifty minutes per day of Behavior Group provided by an
appropriate staff.
(ii)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(iii)
Up to two (2) hours each day of games and recreation
out of the room or in the enclosed outdoor recreation area as the youth's
behavior and weather permit.
(3)
Stage
3
[
(A) - (B)
(No change.)
(C)
Visitation. At least one hour per each
visitation, if safety permits.
(D)
[
(i)
At least one 60-minute or two 30-minute per week individual
therapy sessions provided by the PSW.
(ii)
At least 30 minutes per week of individual and/or group
therapy by the AMP psychologist or appropriate designee in the absence of
the AMP psychologist.
(iii)
Fifty minutes per day of Behavior Group provided by
an appropriate staff.
(iv)
At least six (6) hours daily of academic services will
be provided to the youth. Four (4) hours of academic services will be provided
in the AMP classroom.
(v)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(vi)
May eat meals out of the room with up to three (3) other
youth as safety permits.
(E)
[
(i)
Fifty minutes per day of Behavior Group provided by an
appropriate staff.
(ii)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(iii)
Up to four (4) hours each day of games and recreation
out of the room or in the enclosed outdoor recreation area as the youth's
behavior and weather permit.
(iv)
May eat meals out of the room with up to three (3) other
youth as safety permits.
(4)
Stage
4
[
(A) - (B)
(No change.)
(C)
Visitation. At least two (2) hours per
each visitation, if safety permits.
(D)
[
(i)
At least one 60-minute or two 30-minute per week individual
therapy sessions provided by the PSW.
(ii)
At least two 30-minute bi-weekly individual and/or group
therapy sessions by the AMP psychologist or appropriate designee in the absence
of the AMP psychologist.
(iii)
Fifty minutes per day of Behavior Group provided by
an appropriate staff in accordance with TYC Case Management Standards.
(iv)
Five (5) hours per week of Core Group conducted by the
PSW in accordance with TYC Case Management Standards.
(v)
Four (4) hours daily of academic services will be provided
to the youth in the campus school. Two (2) hours daily of academic services
will be provided in the AMP classroom.
(vi)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(vii)
One hour structured activity per day with an assigned
general campus dorm as safety permits.
(viii)
May eat meals out of the room with up to three (3)
other youth as safety permits.
(ix)
The appropriate education staff will communicate daily
to the AMP staff the youth's progress and problem areas in the campus school.
The AMP staff will communicate daily to the appropriate education staff the
youth's progress and problem areas in AMP.
(E)
[
(i)
Fifty minutes per day of Behavior Group provided by an
appropriate staff.
(ii)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(iii)
Up to four (4) hours each day of games and recreation
out of the room or in the enclosed outdoor recreation area as the youth's
behavior and weather permit.
(iv)
May eat meals out of the room with up to three (3) other
youth as safety permits.
(5)
Stage
5
[
(A) - (B)
(No change.)
(C)
Visitation. At least two (2) hours per
each visitation, if safety permits.
(D)
[
(i)
At least one 60-minute or two 30-minute per week individual
therapy sessions provided by the PSW.
(ii)
At least two 30-minute bi-weekly individual and/or group
therapy sessions by the AMP psychologist or appropriate designee in the absence
of the AMP psychologist.
(iii)
Fifty minutes per day of Behavior Group provided by
an appropriate staff.
(iv)
Five (5) hours per week of Core Group conducted by the
PSW.
(v)
Fourteen hours each day to participate in a full school
day in the campus school and to participate in programming in the assigned
dorm.
(vi)
May eat meals out of the room with up to three (3) other
youth as safety permits.
(vii)
The appropriate education staff will communicate daily
to the AMP staff the youth's progress and problem areas in the campus school.
The AMP staff will communicate daily to the appropriate education staff the
youth's progress and problem areas in AMP.
(E)
[
(i)
Participate in weekend activities on assigned dorm as
youth's behavior and safety permit.
(ii)
If youth cannot participate in weekend activities on
assigned dorm, the following must occur:
(I)
Fifty minutes per day of Behavior Group provided by an
appropriate staff.
(II)
One hour each day of large muscle exercise out of the
room or in the enclosed outdoor recreation area as the youth's behavior and
weather permit.
(III)
Up to four (4) hours each day of games and recreation
out of the room or in the enclosed outdoor recreation area as the youth's
behavior and weather permit.
(IV)
May eat meals out of the room with up to three (3) other
youth as safety permits.
(6)
(No change.)
(l)
Progress Reviews.
(1)
Treatment Review Team
.
(A) - (B)
(No change.)
(2)
(No change.)
(3)
Independent Review Team.
(A)
The IRT reviews all youth not making satisfactory progress
through the AMP. The team assesses youth who have been on Stage
1
[
(B) - (C)
(No change.)
(4)
(No change.)
(m)
Program Completion and/or Release.
(1)
Youth must be released from AMP when the following events
occur:
(A)
the completion of Stage
5
[
(B)
(No change.)
(2)
(No change.)
(3)
If transportation is not available to the assigned facility
upon the completion of Stage
5
[
(n)
Program Monitoring and Youth Rights.
(1)
To ensure the program is being implemented according to
the provisions of this rule, the superintendent or assistant superintendent
will visit the AMP daily and the DOCS will visit the AMP weekly. In the absence
of the superintendent and the assistant superintendent, the
administrative
duty officer
[
(2)
The administrative assistant to the superintendent shall
visit the AMP daily to ensure that the youth
have
[
(3)
The youth will be offered the opportunity for a face-to-face
meeting
[
(o)
(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 July 18, 2005.
TRD-200502921
Dwight Harris
Executive Director
Texas Youth Commission
Earliest possible date of adoption: August 28, 2005
For further information, please call: (512) 424-6014
Subchapter A. SECURITY AND CONTROL
April
] 1, 2005. All other references in this section to
the Code of Federal Regulations also refer to amendments and interpretations
issued through
July
[
April
] 1, 2005.
Out of State
]
Criteria as a guideline.
Subchapter B. REGULATIONS GOVERNING TRANSPORTATION SAFETY
April
] 1, 2005. All other references in
this subchapter to the Code of Federal Regulations also refer to amendments
and interpretations issued through
July
[
April
] 1, 2005.
The rules adopted herein are to ensure that:
each
] course with a certified officer and perform a
minimum of
32
[
30
] level one inspections.
a Basic
]
Hazardous Materials
Inspection
Course; and
each
] course with a certified officer and perform a
minimum of 16 level one inspections on vehicles containing non-bulk quantities
of hazardous materials.
a Basic
]
Hazardous Materials
Inspection
Course;
a
] Cargo
Tank Inspection Course; and
each
] course with a certified officer and perform a
minimum of 16 level one inspections on vehicles transporting hazardous materials
in cargo tanks.
(4)
]
Passenger Vehicle
[
Motor Coach
]. Certain peace officers from the municipalities and counties
specified in subsection (a) of this section and eligible to enforce
the passenger vehicle
[
motor coach
] requirements must:
a Motor Coach
] Inspection Course; and
each
] course with a certified officer and perform a
minimum of 8 level I inspections on
passenger vehicles such as
motor
coaches/buses.
(5)
] Training provided by the department.
When the training is provided by the Texas Department of Public Safety, the
department shall collect fees in an amount sufficient to recover from municipalities
and counties the cost of certifying its peace officers. The fees shall include:
(6)
] Training provided by other
training entities. A public or private entity desiring to train police officers
in the enforcement of the Federal Motor Carrier Safety Regulations must:
or Level V
]
inspections per calendar year.
tank/bulk packaging
] inspections, at least eight inspections
(Levels I, II or V) shall be conducted on vehicles transporting hazardous
materials in cargo tanks.
(E)
] If the officer is certified
to perform
passenger vehicle
[
motor coach/bus
] inspections,
at least eight of the inspections (Levels I or V) shall be conducted on
passenger vehicles such as
motor coaches/buses.
General
] Hazardous Materials Inspection
Course, the Cargo
Tank
[
Tank/Bulk Packaging
] Inspection
Course,
the Other Bulk Packaging Inspection Course,
and/or the
Passenger Vehicle
[
Motor Coach/Bus
] Inspection Course and
repeat the specified number of inspections with a certified officer.
or
] becomes delinquent in the payment
of the administrative penalty imposed by the department as authorized by Texas
Transportation Code, §644.153(c) shall not operate or direct the operation
of a commercial motor vehicle on the highways of this state until such time
as the administrative penalty has been remitted to the department. The department
will make every effort to collect an administrative penalty once an enforcement
action has been deemed as a Final Departmental Decision, including referring
the administrative penalty to the Office of the Attorney General, or issuing
an impoundment Order.
Chapter 35.
PRIVATE SECURITY
Part 3.
TEXAS YOUTH COMMISSION
(GAP)
] §95.71 of this title (relating to Mental
Health Status Review Hearing Procedure).
(GAP)
] §95.55 of this title (relating
to Level II Hearing Procedure).
(GAP)
] §95.51 of this title (relating
to Level I Hearing Procedure).
(GAP)
] §87.71 of this title (relating to Emergency Mental Health Admission).
(GAP)
] §87.71 of this title (relating to Emergency Mental
Health Admission) must be followed. Consistent with emergency criteria, staff
may request of the superintendent immediate placement of the youth in the
CSU. On admission, requirements in this policy are effective for all emergency
admissions.
Chapter 93.
YOUTH RIGHTS AND REMEDIES
(GAP)
] §91.7 of this title (relating to Youth
Personal Property). TYC may also limit a youth's personal possessions, including
items:
The conditions of the in-person communication may only be regulated
to prevent disruption of scheduled activities and to maintain the safety and
security of the facility. However, the conversation should under no circumstances
be monitored. Youth have a corresponding right to refuse to receive visitors.
]
See §93.12 of this title (relating to Visitation).
(GAP)
] §93.15
of this title (relating to Youth Mail). Youth will be provided access to telephones
to the extent possible within plant limitations, with equal opportunities
for telephone use being provided to all residents within a facility. Youth
will have access to a telephone in the event of an emergency. TYC does not
have a responsibility to pay for incoming or outgoing long-distance calls,
except in an emergency. See [
(GAP)
] §93.13 of this title (relating
to Use of Telephone).
(GAP)
] §93.31
of this title (relating to Youth Complaint Resolution System).
(GAP)
] §93.31 of this title (relating to Complaint
Resolution System).
(GAP)
] §93.53 of this title (relating to
Appeal
[
Appeals
] to the Executive Director).
(GAP)
] §99.51 of this title (relating to Death of
a Youth).
office of general counsel
] who is responsible for overseeing investigations of allegations of
abuse, neglect or exploitation and compiling investigation information.
office
] of General Counsel and located in a TYC facility
or district office who is responsible for conducting investigations.
Protective and
Regulatory Services (DPRS).
]
of residential facilities
] will report
the following incidents and injuries in accordance with the same provisions
of this rule that are applicable to reports of persons having cause to believe
that a youth has been or may be adversely affected by abuse, neglect, or exploitation
by an employee, volunteer, or contractor:
learning
] of the incident
or injury prompting the report.
(GAP)
] §93.31 of this
title [
(relating to Complaint Resolution System)
]. A TYC staff
member who receives a report made under subsection (d)(1)
of this section
will refer it immediately to the facility's CLA.
learning
] of an incident
or injury under subsection (d)(2)
of this section
, the CLA will
immediately take the following actions:
In the event the investigator determines
that the evidence affirms findings pertaining to a different type of allegation
than the one assigned, the investigator will indicate those findings in the
written report.
]
will
] confirm the report as a violation of agency policy
or standards of care.
, if satisfied with the findings,
will take the following actions
]:
person
accused of wrongdoing
] of the results of the investigation
and
the right to appeal the investigation findings (see subsection (k) of this
section)
; and
Parent
] complaints
regarding the conduct of investigations and appeals of investigation findings
will be handled in accordance with the provisions of [
(GAP)
] §93.53
of this title [
(relating to Appeals to the Executive Director)
].
The CLA and employees, volunteers, or contractors who are
] found to
have engaged in wrongdoing
or the CLA
may appeal
the
investigation
findings to the executive director within ten (10)
working
days
of receipt of notice of the outcome of the investigation.
The appeal
] will be made in writing and clearly describe the grounds
for the appeal. The executive director will consider the recommendations of
the
Office of General Counsel
[
office of general counsel
]
in reaching a decision on the appeal, including any additional findings or
information that may result from its further investigation into the matter.
(3)
] The complaint or appeal, and
the executive director's decision regarding the complaint or appeal, will
be referred to the TYC Board for its review at the next regularly scheduled
meeting.
(4)
] The TYC Board will take whatever
action it determines appropriate with regard to the complaint to ensure the
investigations are conducted properly.
(5)
] The TYC Board will ensure there
is a periodic internal audit of procedures in the section related to alleged
abuse, neglect, and exploitation investigations.
and
]
Chapter 552 of the Government Code
, and §61.073 of the Human Resources
Code
.
edited
] to protect the
identity of the person making the report, [
of
] other youth, and
[
of
] any other person who may be harmed by the disclosure.
(6)
Evidence contained in a report
may be revealed to an employee having a right to the information to appeal
the investigation findings or to defend a disciplinary action based on them.
Except in employment termination cases, the decision authority has the discretion
to delete names when the decision authority determines the names are not necessary
for the fair resolution of contested facts. Investigation reports are confidential
youth records and the information contained in them may be used by the employee
only for the appeal of an investigation or to defend a disciplinary action
arising from an investigation.]
,
]
and
their parents or guardians[
, and TYC or contract program employees
] to appeal decisions made by
TYC or contract program employees to the TYC executive director.
An appeal to the executive director may be filed after all preliminary levels
of appeal have been exhausted, concerning any TYC or contract program employee
decision regarding a complaint.
]
(GAP)
] §95.11 of this title (relating to Disciplinary
Transfer/Assigned Minimum Length of Stay/Demotion of Phase Consequence);
behavior management
program
] length of stay [
and extension
] under [
(GAP)
] §95.17 of this title (relating to Behavior Management Program);
aggression
management program
] length of stay under [
(GAP)
] §95.21
of this title (relating to Aggression Management Program);
level
] IV hearing
when a youth is being detained in a location other than a TYC operated institution;
level
] IV hearing pursuant to [
(GAP)
] §95.59 of this
title (relating to Level IV Hearing Procedure) when a youth is in an institution
detention program;
security program
], if the youth has already been
in the
Security Program
[
security program
] for 240 continuous
hours or longer;
(GAP)
] §95.71 of this title (relating to Mental
Health Status Review Hearing Procedure);
or
]
conduct
] of an alleged
mistreatment investigation pursuant to [
(GAP)
] §93.33 of this
title (relating to Alleged Abuse, Neglect, and Exploitation).
The
executive director shall respond to each appeal, in writing, within 30 working
days after receipt of the appeal. When the response cannot be completed within
30 working days, a delay letter explaining that the decision is delayed but
will be forthcoming is sent to the complainant. Failure to respond to an appeal
within this time period will constitute an exhaustion of administrative remedy
for purposes of appeal to the courts, but will not be construed as acceptance
or rejection of any contention made in the appeal.
]
Opinions are distributed to the
youth, the youth's attorney or representative, if any, and certain TYC staff.
]
Chapter 95.
YOUTH DISCIPLINE
local
] AMP Admission Review Committee
at MCSJCF is composed of at least the assistant superintendent, AMP psychologist,
and the AMP program administrator. The
MCSJCF
[
facility
]
psychiatrist shall review admission decisions for youth with a psychiatric
history.
an
] assessment will be completed for each youth admitted to AMP
to provide a basis for the individual case plan (ICP)
.
Structure
] is designed to maximize the safety and security of youth
and staff.
I
] while not confined to their rooms and Stages
2 and 3
[
II/III
] while in the infirmary.
IV and V
], the
youth will participate in physical exercise on the general campus as safety
permits.
,
] Involvement
[
and Visitation
]. Youths' families will be encouraged to be involved
in the youths' treatment. All families receive an orientation to the AMP,
and are offered the opportunity to have input into the youth treatment plan
and to contact the youth by letters and visitation. Refer to §87.5 of
this title (relating to Family Involvement).
, with the exception of phone usage. Youth will
be allowed phone usage pursuant to §93.11 of this title (relating to
Access to Attorneys and Courts), and as provided for each AMP stage listed
below
].
I
]. Youth on Stage
1
[
I
] require the most external control. Youth spend the
majority of time confined to their rooms. When out of the room, youth are
in handcuffs and shackles.
(C)
] Weekday Services and Activities.
(D)
] Weekend Services and Activities.
II
]. Youth on Stage
2
[
II
] continue to spend the majority of the day confined
to their rooms but may be out of their rooms for activities without the use
of mechanical restraints.
(C)
] Weekday Services and Activities.
(D)
] Weekend Services and Activities.
III
]. Youth on Stage
3
[
III
] have additional time out of their rooms to participate
in activities without the use of mechanical restraints.
(C)
] Weekday Services and Activities.
(D)
] Weekend Services and Activities.
IV
]. Youth on Stage
4
[
IV
] attend campus school and are working on issues related
to transitioning to regular campus programming.
(C)
] Weekday Services and Activities.
(D)
] Weekend Services and Activities.
V
]. Youth on Stage
5
[
V
] are participating in the program of an assigned general
population dorm.
(C)
] Weekday Services and Activities.
(D)
] Weekend Services and Activities.
I
] for more than 30 days, on Stages
2-5
[
II to V
]
for more than 45 days or who have not achieved Stage
5
[
V
] within nine (9) months of admission to review the justification and
documentation of the reasons the youth has failed to progress in the program
stages and to determine if appropriate interventions are being provided the
youth.
V
]; or
V
], the youth will be
transferred to MCSJCF's general population.
ADO
] will visit the AMP, and in the absence
of the DOCS, the designated psychologist will visit the AMP.
has
]
access to or use of the complaints resolution system. In the absence of the
administrative assistant, the superintendent will designate
to
an
informed staff the duties of ensuring that the youth
have
[
has
] access to the complaints resolution system.
interview
] with the assistant superintendent weekly.
Chapter 97.
SECURITY AND CONTROL