Part 6. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Chapter 152. CORRECTIONAL INSTITUTIONS DIVISION
Subchapter B. CORRECTIONAL CAPACITY
The Texas Board of Criminal Justice adopts new §152.37, concerning Addition to Capacity, without changes to the proposed text as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9301) and will not be republished.
The purpose of the rule is to establish the maximum capacity of two units that have been transferred from the Texas Youth Commission to the Texas Department of Criminal Justice.
No comments were received regarding the new rule.
The new rule is adopted under Texas Government Code, §492.001 and §492.013.
Cross Reference to Statutes: Texas Government Code, Chapter 499, Subchapter E.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2008.
TRD-200800318
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Effective date: February 12, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 463-0422
The Texas Board of Criminal Justice adopts the amendments to §163.31, concerning Sanctions, Programs, and Services, without changes to the proposed text as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9301) and will not be republished.
The amendments are necessary to add clarity.
No comments were received regarding the amendments.
The amendments are adopted under Texas Government Code, §509.003 and §509.016.
Cross Reference to Statutes: Texas Government Code, §492.013.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2008.
TRD-200800317
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Effective date: February 12, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 463-0422
The Texas Board of Criminal Justice adopts the amendments to §163.36, concerning Mentally Impaired Offender Supervision, without changes to the proposed text as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9303) and will not be republished.
The amendments are necessary to add clarity.
No comments were received regarding the amendments.
The amendments are adopted under Texas Government Code, §509.003 and §614.013.
Cross Reference to Statutes: Texas Government Code, §509.003 and §614.013.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2008.
TRD-200800319
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Effective date: February 12, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 463-0422
The Texas Board of Criminal Justice adopts the amendments to §163.39, concerning Residential Services, with changes to the proposed text as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9303).
The amendments are necessary to add clarity and conform to state and federal law.
Comments were received on January 8, 2008, from Lynda Woolbert, Executive Director for the Coalition for Nurses in Advanced Practice.
Comment: Ms. Woolbert suggested changes to subsection (m)(1), which specifies the type of health care professional who ensures that meals meet nationally recommended allowances for basic nutrition. She pointed out that a registered nurse with a Bachelor of Science degree in nursing would also be qualified to provide this service.
Response: A registered nurse with a Bachelor of Science degree, as well as a physician assistant, are among those qualified to review meals to ensure they meet recommended allowances. The recommended change has been incorporated into the appropriate sentence in subsection (m)(1).
Comment: Ms. Woolbert requested a change to subsection (n)(2)(A)(v), which addresses the requirement for on-call emergency health care providers if there is no emergency facility nearby. She suggested that because rural communities do not always have an on-call physician available, that an advanced practice nurse would be qualified to provide the on-call service mentioned in this subsection of the rule. Ms. Woolbert recommended that the proposed language "Emergency on-call physician, dentist, and mental health professional services..." be changed to: "Emergency on-call health care professionals to provide medical, dental and mental health services...."
Response: The term "health care professionals" can be too broadly interpreted, as it could be construed to include an emergency medical technician (EMT), registered nurse or LVN. Those health care professionals are not qualified to provide the level of emergency health care intended in this rule. However, an advanced practice nurse and a physician assistant are qualified to provide the service when a physician is not available, so the phrase was changed to incorporate "advanced practice nurse or physician assistant" into subsection (n)(2)(A)(v).
Comment: Ms. Woolbert suggested a change in subsection (n)(3), Health Screening and Medical Examinations, which concerns the questionnaire for health screening that documents inquiries and observations about other health problems. She recommended that "responsible physician" be changed to "health authority."
Response: Because the screening questionnaire is developed before the patient is seen and is not dependent upon the provider who performs the medical examination, this suggestion was accepted and incorporated into subsection (n)(3)(A)(v).
Comment: Ms. Woolbert suggested that because there are other health care professionals who can legally prescribe medications in Texas, that in subsection (n)(6)(B), (7)(E) and (9)(C)(vii), "physician" be changed to "practitioner," which is defined in the Texas Occupations Code, §551.003(34) and Texas Health and Safety Code, §483.001(12) and §481.002(39).
Response: The substitution of "practitioner" for "physician" makes the language too broad, as the definitions for "practitioner" in the above mentioned citations include anybody who can prescribe medications, including veterinarians. However, the language has been changed in subsection (n)(6)(B), (7)(E) and (9)(C)(vii) to include that an advanced practice nurse and a physician assistant can prescribe medication in those circumstances.
In addition to the comments above, during the comment period, the General Counsel determined that a change was necessary in subsection (i), Incident Notification. Because judges do not supervise CSCDs, the phrase "...the judge or one of the judges supervising the department..." was changed to "...the district judge who sits on the Community Justice Council or, if applicable, the judge designated to perform administrative duties for the district courts trying criminal cases...."
The amendments are adopted under Texas Government Code, §509.003.
Cross Reference to Statutes: Texas Government Code, §492.013.
§163.39.Residential Services.
(a) General Administration.
(1) Purpose. Residential facilities and contract residential beds funded by the Texas Department of Criminal Justice - Community Justice Assistance Division (TDCJ-CJAD) shall provide the courts with a sentencing alternative for the purpose of:
(A) Confining offenders placed on community supervision and others who are eligible in accordance with statutes;
(B) Providing sanctions, services, and programs to modify criminal behavior, deter criminal activity, protect the public and restore victims of crime;
(C) Strengthening and expanding the options that are available to judges to impose alternatives other than imprisonment for offenders who violate court-ordered conditions of community supervision; and
(D) Reducing the offender's likelihood of a subsequent arrest, recidivism and technical violations.
(2) Feasibility Studies. A judicial district interested in establishing a residential Community Corrections Facility (CCF) shall first conduct and prepare a feasibility study in accordance with the TDCJ-CJAD Feasibility Study Guidelines-Community Corrections Facility. The product and results of such feasibility study shall be submitted to TDCJ-CJAD. After the receipt by TDCJ-CJAD of the initial feasibility study related to a proposed CCF, the Community Supervision and Corrections Department (CSCD) may be required to provide supplemental information or additional materials for further review and consideration.
(3) Notice of Construction or Operation of a CCF.
(A) If a CSCD or private vendor operating under a contract with a CSCD or judicial district proposes to construct or operate a CCF within 1,000 feet of a residential area, a primary or secondary school, property designated as a public park or public recreation area by the state or a political subdivision of the state, or a church, synagogue, or other place of worship, the CSCD shall prominently post an outdoor sign at the proposed location of the facility. The sign shall be at least 24 by 36 inches in size written in lettering at least two (2) inches in size. The sign shall state that a correctional or rehabilitation facility is intended to be located on the premises, and provide the name and business address of the CSCD. The municipality or county in which the CCF is to be located may require the sign to be both in English and a language other than English, if it is likely that a substantial number of the residents in the area speak a language other than English as their familiar language.
(B) The CSCD shall provide notice of the proposed location of the facility to the commissioners court of the county and/or governing body of the municipality where the facility is intended to be located not later than 60 days before the CSCD begins construction or operation of the facility. The notice shall contain the following:
(i) A statement of the entity's intent to construct or operate a correctional or rehabilitation facility in an area;
(ii) A description of the proposed location of the facility; and
(iii) A statement that Texas Local Government Code, Chapter 244 governs the procedure for notice of and consent to the facility.
(4) Public Meetings. A CSCD or private vendor having a contract with a CSCD or judicial district shall not establish a CCF unless the community justice council serving the CSCD has held a public meeting before the action is taken. In addition, a CSCD may not expend funds provided by the TDCJ-CJAD to lease or purchase real property, construct buildings, or use a facility or real property acquired or improved with state funds for a CCF unless the community justice council serving the CSCD has held a public meeting before the action is taken. The public meeting shall be held at a site as close as practicable to the location at which the proposed action is to be taken. The meeting shall not be held on a Saturday, Sunday or legal holiday. The meeting shall begin after 6:00 p.m. More than 30 days before the date of the meeting, the department that the facility is to serve, or a vendor proposing to operate a facility, at a minimum shall:
(A) Publish by advertisement a notice that is not less than three and a half (3 1/2) inches by five (5) inches of the date, hour, place and subject of the hearing as required in subsection (a)(4) of this rule in three (3) consecutive issues of a newspaper of, or in newspapers that collectively have, general circulation in the county in which the proposed facility is to be located. The notice shall specifically state the address of the facility or property on which a proposed action is to be taken and provide a description of the proposed action.
(B) Mail a copy of the notice to each police chief, sheriff, city council member, mayor, county commissioner, county judge, school board member, state representative and state senator who serves or represents the area, unless the proposed facility has been previously authorized to operate at a particular location by a community justice council.
(5) Maximum Resident Capacity and Facility Utilization. The maximum resident capacity of a CCF shall be defined as the total number of residents who can be housed at the facility at any given time as delineated by the operating agency in the most current community justice plan and approved by the TDCJ-CJAD director. CCFs funded through TDCJ-CJAD shall reach 90 percent capacity within the first six (6) months of operation and maintain a minimum of 90 percent thereafter, using appropriate and eligible placements only. Any revisions to the maximum and minimum resident capacities for the CCF shall be subject to the approval by the TDCJ-CJAD through the community justice plan amendment process.
(6) Contract Residential Services. Business entities, agencies or persons contracting with CSCDs or judicial districts for residential services shall comply with all applicable competitive bidding and other laws and regulations. CSCDs or judicial districts contracting with business entities, agencies or persons for residential services shall comply with any applicable competitive bidding and other laws and regulations. The CSCD director shall monitor, audit and inspect the performance and compliance of the service provider and vendor with the terms and conditions of the contract with the CSCD and with applicable laws and regulations.
(7) Mission Statement. The CSCD director and facility director shall prepare and maintain a mission statement that describes the general purposes and overall goals of the facility's programs.
(b) Personnel.
(1) Screening for Tuberculosis (TB) Infection. The CSCD director or facility director shall ensure that as soon as practicable but not later than seven (7) calendar days of assuming any duties within a CCF, all staff undergo a screening for TB infection. Follow-up screening for TB infection shall be conducted on all staff, at a minimum, once every year from the anniversary date of the initial screening. The results of all screenings shall be maintained on file.
(2) Required Personnel.
(A) Each facility with an employment component shall have a designated employment coordinator whose duties and responsibilities include assisting residents in obtaining/maintaining employment. The employment coordinator shall be responsible for addressing other employment issues for residents such as résumé development, interviewing skills/techniques and appropriate dress for job interviews.
(B) Every facility shall have a designated staff member whose duties and responsibilities include facilitating or ensuring the required cognitive and other facility programs are accomplished.
(3) Criminal Histories and Arrest Records. Prior to employment and on at least an annual or more frequent basis thereafter, criminal histories and arrest records shall be obtained from both the Texas Department of Public Safety (DPS) and National Crime Information Center NCIC on each of the CCF's employees, contract vendor staff (if applicable) and volunteers. This requirement shall apply to both vendor contract and the CSCD operated CCFs. Upon verification that no new conviction(s) have occurred, an entry documenting such shall be made in the personnel file. The criminal history document and/or other arrest record documentation shall then be destroyed. Employees who have access to criminal histories must meet the Texas Department of Public Safety (DPS) criteria for accessing the Texas Law Enforcement Telecommunication System (TLETS) operated by the DPS or files containing a copy of an employee's or resident's criminal history.
(4) Residential Officer Certification. Governed by §163.33(f) of this title.
(5) Residential Personnel Training. Initial Training Requirements and Defensive Driving are governed by §163.33(j) of this title. Training Requirements for Monitoring Self-Administration of Medications are set forth in subsection (n)(10) of this rule.
(c) Building, Safety, Sanitation and Health Codes.
(1) Compliance. The CSCD director and facility director shall ensure that the facility's construction, maintenance and operations complies with all applicable state, federal and local laws, building codes and regulations related to safety, sanitation and health. Records of compliance inspections, audits or written reports by internal and external sources shall be kept on file for examination and review by the TDCJ-CJAD and other governmental agencies and authorities from program inception forward. The CSCD director and facility director shall promptly notify the TDCJ-CJAD in writing of any circumstances wherein the facility or its operations do not maintain such compliance.
(2) Water Supply. The CSCD director or designee shall ensure that the facility's potable water source and supply is sanitary and approved by an independent, qualified agency or individual in compliance with the applicable governmental laws and regulations.
(3) Sanitation. The facility shall conform to the applicable sanitation and health regulations and codes.
(4) Waste. The liquid and solid wastes related to the facility shall be collected, stored and disposed of in accordance with a plan approved by the regulatory authority, agency or department.
(5) Physical Plant. The facility's buildings, including the improvements, fixtures, electric and heating and air conditioning, shall conform to all applicable building codes of federal, state and local laws, ordinances, regulations and minimum guidelines established by the TDCJ-CJAD for physical plants and facilities housing residents.
(6) Fires. The facility, its furnishings, fire protection equipment and alarm system shall comply with the regulations of the fire authority having jurisdiction. Fire drills are to be conducted at least quarterly. There shall be a written evacuation plan to be used in the event of a fire. The plan is to be certified by an independent qualified governmental agency or department or individual trained in the application of national and state fire safety codes. Such plan shall be reviewed annually, updated if necessary, and reissued to the local fire jurisdiction. The facility shall conduct fire inspections at least quarterly or at intervals approved by the fire authority having jurisdiction. Fire safety equipment located at the facility shall be tested as specified by the manufacturer or the fire authority, whichever is more frequent. An annual inspection of the facility shall be conducted by the fire authority having jurisdiction or other qualified person(s).
(7) Emergency Plan. There shall be a written emergency plan for the facility and its operations, which includes an evacuation plan, to be used in the event of a major flood, storm or other emergencies. This plan shall be reviewed annually and updated, if necessary. Evacuation drills shall be conducted at least three (3) times yearly. Each shift at least yearly shall conduct an evacuation drill when the majority of residents are present. All facility personnel shall be trained in the implementation of the written emergency plan. The evacuation plan shall specify preferred evacuation routes, subsequent dispositions and temporary housing of residents and provisions for access to medical care or hospital transportation for injured residents and/or staff. The facility's emergency plan shall be distributed to local authorities such as law enforcement, state police, civil defense, etc. to keep them informed of their roles in the event of an emergency. The emergency plan shall include the following:
(A) Location of buildings/room floor plan;
(B) Use of exit signs and directional arrows that are easily seen and read; and
(C) Location(s) of publicly posted plan.
(d) Separate Offender Housing. The CSCD director and facility director shall ensure that a facility that is part of or attached to a detention facility or a correctional institution shall house facility residents separately from the offenders incarcerated in the detention facility. At no time shall the CCF residents/offenders be co-mingled with these incarcerated offenders.
(e) Program and Service Areas.
(1) Space and Furnishings. The facility shall have space and furnishings to accommodate activities such as group meetings, private counseling, classroom activities, visitation and recreation.
(2) Housekeeping and Maintenance. The CSCD director and facility director shall ensure the facility is clean and in good repair, and a housekeeping and maintenance plan is in effect.
(3) Other Physical Environment and Facilities Issues. In each facility:
(A) Space shall be provided for janitor closets which are equipped with cleaning implements;
(B) There shall be storage areas in the facility for clothing, bedding and cleaning supplies;
(C) There shall be clean, usable bedding, linens and towels for new residents with provision for exchange or laundering on at least a weekly basis;
(D) On an emergency or indigent basis, the facility shall provide personal hygiene articles;
(E) There shall be adequate control of vermin and pests;
(F) There shall be timely trash and garbage removal; and
(G) Sanitation and safety inspections of all internal and external areas and equipment shall be performed and documented on a routine basis to protect the health and safety of all residents, staff and visitors.
(f) Supervision.
(1) Operations Manual. An operations manual shall be prepared for and used by each CCF which shall contain information and specify procedures and policies for resident census, contraband, supervision, physical plant inspection and emergency procedures, including detailed implementation instructions. The operations manual shall be accessible to all employees and volunteers. The operations manual shall include, at a minimum, the matters set forth in the Guidelines for the Policies and Procedures of the TDCJ-CJAD Funded Residential Facilities. The operations manual shall be submitted to the TDCJ-CJAD director for review and approval. The manual shall be approved by the TDCJ-CJAD director at least 60 days prior to the acceptance of any residents into the facility. The CSCD director and facility director shall ensure that the operations manual is reviewed at least every two (2) years, and new or revised policies and procedures are made available, including all changes, to designated staff and volunteers prior to implementation. This manual shall be submitted to the TDCJ-CJAD upon request or for auditing purposes.
(2) Staffing Availability. The CSCD director and facility director shall ensure that the facility has the staff needed to provide coverage of designated security posts, surveillance of residents and to perform ancillary functions. The facility shall have at least one (1) staff member on duty that is the same gender as the resident population.
(3) Activity Log. The CSCD director and facility director shall ensure that CCF staff maintain an activity log and prepare shift reports that record, at a minimum, emergency situations, unusual situations and incidents and all absences of residents from a facility.
(4) Use of Force. The CSCD director and facility director shall ensure that a CCF has written policies, procedures and practices that restrict the use of physical force to instances of self-protection, protection of residents or others or prevention of property damage. In no event shall the use of physical force against a resident be justifiable as punishment. A written report shall be prepared following all uses of force, and promptly submitted to the CSCD director and facility director for review and follow-up. The application of restraining devices, aerosol sprays, chemical agents, etc. shall only be accomplished by an individual who is properly trained in the use of such devices and only in an emergency situation for self-protection, protection of others or other circumstances as described previously.
(5) Use of Firearms. The CSCD director and facility director shall ensure that the possession of firearms by staff is banned and the use of firearms is prohibited in or on facility property except in the execution of official duties by certified peace officers or other duly licensed law enforcement personnel.
(6) Access to Facility. The facility shall be secured to prevent unrestricted access by the general public or others without proper authorization.
(7) Control of Contraband/Searches. All facilities shall incorporate into the facility operations manual a list of authorized items offenders are allowed to possess while a resident of the facility. All incoming residents shall receive a copy of this list during the intake/orientation process, along with a written explanation of the provisions of Texas Penal Code, Section 38.114, which states that any resident found to possess any item not provided by, or authorized by the facility director, or any item authorized or provided by the facility that has been altered to accommodate a use other than the originally intended use, may be charged with a Class C misdemeanor. Any employee or volunteer who provides contraband to a resident of a CCF may be charged with a Class B misdemeanor. There shall also be policies defining facility shakedowns, strip searches and pat searches of residents to control contraband and provide for its disposal.
(8) Levels of Security. The CSCD director and facility director shall ensure that appropriate levels of security are maintained for the population served by the facility at all times. These levels of security shall create, as a minimum, a monitored and structured environment in which a resident's interior and exterior movements and activities can be supervised by specific destination and time. At the discretion of the facility director or designee, residents may be granted exterior movements. Exterior movements include, but are not limited to employment programs, community service restitution, support/treatment programs and programmatic incentives. The following minimum requirements shall be met for all exterior movements:
(A) The facility director or designee approves the exterior movement;
(B) A staff member orally advises the resident of the conditions and limitations of the exterior movement;
(C) The resident acknowledges in writing an understanding of the conditions and limitations of the exterior movement; and
(D) Exterior movements involving programmatic incentives may only be granted if the following additional requirements are met:
(i) The resident meets all established requirements for the programmatic incentive, as determined by the supervisor of the program, and submits a written request for the exterior movement;
(ii) The requested absence will not exceed 72 hours unless there are unusual circumstances;
(iii) The resident provides an itinerary for the absence including method of travel, departure and arrival times and locations during the exterior movement;
(iv) The facility director or designee approves the itinerary and establishes the conditions of the exterior movement involving programmatic incentives; and
(v) A staff member shall make random announced or unannounced personal or telephone contacts with the resident to verify the location of the resident during the exterior movement.
(9) Emergency Furloughs. At the discretion of the facility director or designee, a resident may be granted an emergency furlough for the purpose of allowing a resident to attend a funeral, visit a seriously ill person, obtain medical treatment or attend to other exceptional business. Emergency furloughs may only be granted if the following conditions are met:
(A) The resident submits a written request for the emergency furlough;
(B) The facility director or designee verifies through an independent source including, but not limited to a physician, Red Cross representative, minister, rabbi, priest or other spiritual leader that the presence of the resident is appropriate;
(C) The resident provides a proposed itinerary including method of travel, departure and arrival times and locations during the emergency furlough;
(D) The requested absence shall not exceed 72 hours unless there are unusual circumstances;
(E) The court of original jurisdiction approves the travel if the resident will depart the State of Texas;
(F) The facility director or designee approves the itinerary and establishes the conditions of the emergency furlough; and
(G) The facility director or designee provides by e-mail or fax the approved itinerary to the CSCD director of the court of the original/sending jurisdiction prior to the date that the emergency furlough is approved to begin.
(10) Supervision Process. Governed by §163.5(c) of this title.
(11) The CCF shall ensure that Spanish language assistance and the translation of selected documents are provided for Spanish-speaking residents who cannot speak or read English.
(g) Resident Abuse, Neglect and Exploitation. The facility shall protect the residents from abuse, neglect and exploitation. In accordance with the Prison Rape Elimination Act of 2003 (Public Law 108-79), all CCFs shall establish a zero tolerance standard for the incidence of sexual assault. Each facility shall make prevention of offender sexual assault a top priority. The CCFs shall have policies and procedures in accordance with national standards published by the Attorney General of the United States. These policies and procedures shall include, but not be limited to the following:
(1) Detection, prevention, reduction and punishment of offender sexual assault;
(2) Standardized definitions to record accurate data regarding the incidence of offender sexual assault; and
(3) A disciplinary process for facility staff who fail to take appropriate action to detect, prevent and reduce sexual assaults, to punish residents guilty of sexual assault and to protect the Eighth Amendment rights of all facility residents.
(h) Rules and Discipline. There shall be documentation of program rule violations and the disciplinary process.
(1) Rules of Conduct. All incoming residents and staff shall receive written rules of conduct which specify acts prohibited within the facility and penalties that can be imposed for various degrees of violation.
(2) Limitations of Corrective Actions. Specific limits on corrective actions and summary punishment shall be established and strictly adhered to in an effort to reduce the potential of staff participating in abusive behavior towards participants. Limits shall include:
(A) No physical contact by staff shall be made on a resident;
(B) No profanity, sexual or racial comments shall be directed at residents by staff;
(C) Residents shall not be used to impose corrective actions on other residents;
(D) The severity of the corrective action shall be commensurate with the severity of the infraction; and
(E) The duration of corrective action shall be limited to the minimum time necessary to achieve effectiveness.
(3) Grievance Procedure. A grievance procedure shall be available to all residents in a CCF. The grievance procedure shall include at least one (1) level of appeal and shall be evaluated at least annually to determine its efficiency and effectiveness.
(4) Spanish translations of the disciplinary rules and procedures shall be provided for Spanish-speaking residents who cannot speak or read English.
(i) Incident Notification. Within 24 hours of occurrence, the CSCD director and facility director shall notify and report by telephone or fax all serious or unusual events pertaining to the facility's operations and staff to the district judge who sits on the Community Justice Council or, if applicable, the judge designated to perform administrative duties for the district courts trying criminal cases, the TDCJ Emergency Action Center (EAC) in Huntsville, Texas (Phone Number (936) 437-6600; Fax Number (936) 437-8996) and if applicable, the CSCD director of the original/sending jurisdiction if the incident involves a resident from that sending jurisdiction. The TDCJ-EAC shall be responsible for notifying the TDCJ-CJAD director and appropriate CJAD management staff. Such serious and unusual events for this purpose shall include, but are not limited to the following:
(1) The death of a resident or staff member while at the facility;
(2) Any incident which results in life threatening or serious bodily injury to a resident or staff member while at the facility or on assignment (including emergency furloughs or programmatic incentives) away from the facility;
(3) Major disturbance or riot at the facility or in its vicinity; and
(4) Any incident involving serious misconduct by facility staff, which may result in the filing of criminal charges or civil action;
(5) Any incidence of absconding by a resident convicted of an offense as identified in Title 5 of the Texas Penal Code (Title 5) and placed in the facility for such offense; and
(6) Any incidence of absconding by a resident who is suspected of committing a felony offense during the course of absconding from the facility or within 24 hours after leaving the facility.
(j) Residents' Rights. Residents shall be granted access to courts and any attorney licensed in the United States or a legal aid society (an organization providing legal services to residents or other persons) contacting the resident in order to provide legal services. Such contacts include, but are not limited to: confidential telephone communications, uncensored correspondence and confidential visits.
(k) Resident Eligibility. A CSCD or other governmental entity that operates a residential facility, contracts for the operation of a residential facility or contracts for beds/services shall define a specific target population of medium to high risk/needs offenders to be served. Placement of offenders in a CCF shall only be by an order of the court, which may include a pre-trial agreement signed by the judge presiding over an established drug court. Applicable screening shall be conducted to include screening for substance abuse, medical and mental health issues and shall meet minimum eligibility criteria as outlined in this rule.
(1) CCFs shall accept only those offenders who meet the target population criteria as defined by the facility and are physically and mentally capable of participating in any program offered at the facility, if participation in the program is required of all residents in the facility. Exceptions to this requirement:
(A) Placement is prohibited by statute;
(B) The offender matches the profile of offenders historically committed to county jail/prison from the jurisdiction; or the offender has high risk/needs, who, if supervised at a lower supervision level would have an increased likelihood of violating the conditions of community supervision; and
(C) The local jurisdiction may house offenders convicted under Title 5 and in accordance with statute, in the CCF if Title 5 offenders are included in the facility's program proposal within the community justice plan that is submitted by the jurisdiction's community justice council and approved by the local judiciary. In currently operating facilities where the jurisdiction desires to add Title 5 offenders to the target population, a public meeting shall be held, in accordance with the law and TDCJ-CJAD standards and policy, to advise the public of the types of offenders/offenses who will potentially be placed in the facility. Public support shall be considered by the TDCJ-CJAD for final approval of the change in offender population to be targeted. If a jurisdiction has documentation that this requirement was previously met, it can provide that documentation to the TDCJ-CJAD for review and possible exemption from having an additional public meeting. If a facility is approved to house Title 5 offenders, the CSCD director and the facility director shall comply with all applicable provisions contained in the Texas Government Code, §76.016, Victim Notification, the Texas Code of Criminal Procedure (TCCP) Chapter 56, Rights of Crime Victims and TCCP art. 42.21, Notice of Release of Family Violence Offenders.
(D) Prior or within ten 10 days after admission to the facility, the offender shall undergo a screening process to include a substance abuse screening instrument to determine the offender's appropriateness for placement. The process shall be documented and maintained in the supervision case file. Should the offender not meet the facility defined eligibility criteria, the offender may be referred back to the court of original jurisdiction.
(2) Courtesy Supervision. CCFs shall, on a space available basis, accept eligible adult offenders needing the residential services on courtesy supervision from other jurisdictions. CSCDs that manage CCFs are responsible for the direct supervision of all residents in the CCF while in the residential placement.
(l) Denying Admission or Continued Placement. If an offender is placed into a CCF as a condition of community supervision and the offender is an inappropriate placement, by statute or standard, or does not meet eligibility criteria of the facility as approved by the TDCJ-CJAD, the CSCD or facility director shall notify, in writing, the court of original jurisdiction of these circumstances. If a CCF facility has reached capacity at the time of the eligible offender's placement to that facility, such offender may be placed on a waiting list for that facility and returned to the court of original jurisdiction for further instructions or an alternative sanction.
(m) Food Service. The food preparation and dining area shall provide space for meal service based on the population size and need.
(1) Dietary Allowances. Meals shall be approved and reviewed annually by a registered dietician, licensed nutritionist, registered nurse with a minimum of a Bachelor of Science degree in nursing, physician assistant, or physician to ensure that the meals meet the nationally recommended allowances for basic nutrition.
(2) Special Diets. Each facility shall provide special diets as prescribed by appropriate medical or dental personnel.
(3) Food Service Management. Food service operations shall be supervised by a staff member who is experienced in institutional food preparation or mass food management. Food services staff, including residents assigned to work in the facility kitchen, shall meet all requirements established by the local health authorities.
(4) Exclusion as Discipline. The use of food as a disciplinary measure is prohibited.
(5) Meal Requirements. The CSCD director or facility director shall ensure that at least three (3) meals (including two (2) hot meals) are provided during each 24-hour period. Variations may be allowed based on weekend and holiday food service demands, or in the event of emergency or security situations, provided basic nutritional goals are met.
(n) Health Care.
(1) Access to Care.
(A) Residents shall have unimpeded access to health care and to a system for processing complaints regarding health care.
(B) The facility shall have a designated health authority with responsibility for health care pursuant to a written agreement, contract or job description. The health authority may be a physician, health administrator or health agency. In the event that the designated health authority is a free community health clinic (one which provides services to everyone in the community regardless of ability to pay), then the CCF is not required to enter into a written contract or agreement. A copy of the mission statement of the free community health clinic and a copy of the criteria for admission shall be on file in lieu of a contract between the two (2) agencies.
(C) Each CCF shall have a policy defining the level, if any, of financial responsibility to be incurred by the resident who receives the medical or dental services.
(2) Emergency Health Care.
(A) Twenty-four hour emergency health care shall be provided for residents, to include arrangements for the following:
(i) On site emergency first aid and crisis intervention;
(ii) Emergency evacuation of the resident from the facility;
(iii) Use of an emergency vehicle;
(iv) Use of one (1) or more designated hospital emergency rooms or other appropriate health facilities;
(v) Emergency on-call services from a physician, advanced practice nurse, or physician assistant, a dentist and a mental health professional when the emergency health facility is not located in a nearby community; and
(vi) Security procedures providing for the immediate transfer of residents, when appropriate.
(B) A training program for direct care personnel shall be established by a recognized health authority in cooperation with the facility director that includes the following:
(i) Signs, symptoms and action required in potential emergency situations;
(ii) Administration of first aid and cardiopulmonary resuscitation (CPR);
(iii) Methods of obtaining assistance;
(iv) Signs and symptoms of mental illness, retardation and chemical dependency; and
(v) Procedures for patient transfers to appropriate medical facilities or health-care providers.
(C) First aid kits shall be available in designated areas of the facility. Contents and locations shall be approved by the health authority.
(3) Health Screening and Medical Examinations. Medical, dental and mental health screening shall be performed by health-trained or qualified health-care personnel on all offenders within ten (10) days prior to or after admission to the facility. The purpose of the screening is to determine if the offender has any disease, illness or condition that precludes admission. The health screening shall include the following:
(A) Questionnaires for health screening shall be established to document inquiries into and observations of the following:
(i) Current illness and health problems, including venereal diseases and other infectious diseases;
(ii) Dental problems;
(iii) Mental health problems, including suicide attempts or ideation;
(iv) Use of alcohol and other drugs, which includes types of drugs used, mode of use, amounts used, frequency of use, date or time of last use and a history of problems that may have occurred after ceasing use (for example, convulsions);
(v) Other health problems designated by the responsible health authority;
(vi) Tuberculosis (TB) screening of residents shall be completed within seven (7) calendar days of admission into the residential facility and repeated annually thereafter. If a resident was confined in a jail or other correctional facility immediately prior to admission to a CCF, a TB screening test that was completed no more than 30 days prior to transfer to a CCF may be accepted, provided that a TB questionnaire is completed and filed with the TB screening test results.
(B) Observation by qualified healthcare personnel of:
(i) Behavior, which includes state of consciousness, mental status, appearance, conduct, tremor and sweating;
(ii) Body deformities, ease of movement and so forth; and
(iii) Conditions of skin, including trauma markings, bruises, lesions, jaundice, rashes and infestations and needle marks or other indications of drug abuse.
(C) Medical Examinations.
(i) A new resident admitted to the facility who was not transferred from a jail or other correctional facility shall have a medical history and physical examination completed within ten (10) days prior to or after admission to the facility.
(ii) TB screening of residents shall be completed within seven (7) calendar days of admission into the residential facility and repeated annually thereafter. If a resident was confined in a jail or other correctional facility immediately prior to admission to a CCF, a TB screening test that was completed no more than 30 days prior to transfer to a residential facility may be accepted, provided that a TB questionnaire is completed and filed with the TB screening test results.
(iii) Medical examinations shall be conducted for any employee or resident suspected of having a communicable disease.
(4) Serious and Infectious Diseases.
(A) The facility shall provide for the management of serious and infectious diseases.
(B) The CCFs shall have policies and procedures to direct actions to be taken by employees concerning residents who have been diagnosed with human immunodeficiency virus (HIV), including, at a minimum, the following:
(i) When and where residents shall be tested;
(ii) Appropriate safeguards for staff and residents;
(iii) Staff and resident training;
(iv) Issues of confidentiality; and
(v) Counseling and support services.
(5) Dental Care. Access to dental care shall be made available to each resident.
(6) Medications--General Guidelines.
(A) Staff who dispense medication shall be properly credentialed and trained. Staff that supervise self-administration of medication shall be appropriately trained to perform the task.
(B) Policy and procedure shall direct the possession and use of controlled substances, prescribed medications, supplies and over-the-counter (OTC) drugs. Prescribed medications shall be dispensed according to the directions of the prescribing physician, advanced practice nurse or physician assistant.
(C) Each residential facility shall have a written policy in place that sets forth required procedural guidelines for the administration, documentation, storage, management, accountability of all resident medication, inventory, disposal of medications, handling medication errors and adverse reactions.
(D) If medications are distributed by facility staff, records shall be maintained and audited monthly and shall include, but not be limited to the date, time, name of the resident receiving the medication and the name of the staff distributing the medication.
(E) Each facility shall ensure that the phone number of a pharmacy and a comprehensive drug reference source is readily available to the staff.
(7) Medication Storage.
(A) Prescription and OTC medications shall be kept in locked storage and accessible only to staff who are authorized to provide medication. Syringes, needles and other medical supplies shall also be kept in locked storage.
(B) All controlled/scheduled drugs shall be stored under double lock and key.
(C) Each facility shall ensure that all medications, syringes and needles are stored in the original container.
(D) Medications labeled as internal and external only shall not be stored together in the same medication box or medication drawer.
(E) Sample prescription medications provided by physicians shall be stored with proper labeling information that includes the name of the medication; name of the prescribing physician, advanced practice nurse or physician assistant; date prescribed; and dosage instructions.
(F) Medications that require refrigeration shall be stored in a refrigerator designated for medications only. A thermometer shall be maintained inside the refrigerator with the temperature checked and recorded daily on a temperature log.
(G) Medications that are discontinued, have expired dates or are no longer in use shall be stored in a separate locked container or drawer until destroyed.
(H) Facilities that allow residents to keep medications in the resident's possession shall have written guidelines specific for keep-on-person (KOP) medications. Staff shall ensure that authorized residents keep medication on their person or safely stored and inaccessible to other residents.
(8) Medication Inventory and Disposal.
(A) Facility staff shall conduct an inventory count of all controlled/scheduled prescription medications daily (at a minimum, once per 24 hour period). The count shall be conducted and witnessed by one (1) other staff member. Documentation of inventory counts shall be maintained for a minimum period of three (3) years.
(B) The facility shall conduct a monthly inventory of all prescription and OTC drugs provided to or purchased by the resident. The monthly audit shall be conducted by a staff person who is not responsible for conducting the daily inventory counts.
(C) A monthly audit shall be conducted of all medication administration records to verify the accuracy of recorded information. The monthly audit of medication administration records shall be conducted by a staff person who is not responsible for the documentation of medication administration records.
(D) When a discrepancy is noted between the medication administration record and the monthly inventory count, documentation explaining the reason for the discrepancy and action taken to correct it shall be recorded. In the event an inventory count reveals unaccounted for controlled/scheduled medication, an investigation shall be conducted and a summary report written detailing the steps taken to resolve the matter. Until the discrepancy is resolved, an inventory count shall be conducted three (3) times daily (after each shift). The summary report shall be maintained for a minimum period of three (3) years. If misapplication, misuse or misappropriation of controlled/scheduled medication leads to an investigation by law enforcement, such information shall be reported pursuant to subsection (i) of this rule.
(E) Discontinued and outdated medications shall be removed from the current medication storage, stored in a separate locked container and disposed of within 30 days. The drugs designated for disposal shall be recorded on a drug disposal form.
(F) Methods used for drug disposal shall prevent medication from being retrieved, salvaged or used in any way. The disposal of drugs shall be conducted, documented and the process witnessed by one (1) other staff member. The documentation shall include:
(i) Name of the resident and date of disposal;
(ii) Name and strength of the medication;
(iii) Prescription number, sample or OTC lot numbers;
(iv) Amount disposed, reason for disposal and the method of disposal; and
(v) Signatures of the two (2) staff members that witnessed the disposal.
(9) Administration of Medication for Non-Medical Model Facilities.
(A) Prescription medications shall be dispensed only by licensed nurses or other staff who are trained and have the appropriate documented medication certification to dispense medications while under the supervision of a physician or registered nurse. Facilities that do not have licensed nurses or other credentialed staff to dispense medications (non-medical model facilities) shall implement the practice of self-administration of medications.
(B) If medications are dispensed through the practice of self-administration in a non-medical model program, staff trained by a qualified health professional to supervise residents in the self-administration of medications shall monitor the residents during the self-administration process.
(C) Each dose of prescription medication received by the resident shall be documented on the prescription medication administration record and maintained in the resident's medical file. The prescription medication record shall include:
(i) Name of the resident receiving the medication;
(ii) Drug allergies or the absence of known drug allergies;
(iii) Name, strength of medication and route of administration;
(iv) Instructions for taking the medication, the amount taken and the route of administration;
(v) Date and time the medication was provided;
(vi) Prescription number (or lot number for sample drugs) and the initial amount of medication received;
(vii) Prescribing physician, advanced practice nurse or physician assistant and the name of the pharmacy;
(viii) Signature of the resident receiving the medication and the staff person supervising the self-administration of medication;
(ix) The remaining amount of medication after each dose dispensed; and
(x) Comment section for recording a variance, discrepancy or change.
(D) Each dose of OTC medication received by the resident shall be documented on the OTC medication administration record and maintained in the resident's medical file. The OTC drugs purchased by the resident or supplied for the resident in quantities larger than single dose packages shall be recorded on the OTC drug record. The OTC drug record shall include:
(i) The resident's name;
(ii) The name and strength of the medication dispensed;
(iii) Drug allergies or the absence of known drug allergies;
(iv) The dosage instructions and route of administration;
(v) The initial amount received, OTC lot number and the expiration date;
(vi) The date and time the medication was dispensed;
(vii) The amount dispensed and the ending count after each dose;
(viii) Comment section for recording reason for OTC drug or other notations; and
(ix) The signature of the resident and the employee who supervised each dose dispensed.
(E) Facility Stock OTC Drugs. Multiple OTC stock drugs supplied in single dose packaging may be recorded on the same form. The medication drug record for facility stock OTC drugs shall include:
(i) The resident's name;
(ii) The name, strength and route of administration;
(iii) Drug allergies or the absence of known drug allergies;
(iv) The date, time, amount dispensed and the lot number on the container;
(v) Comment section to record the reason the OTC drug was requested; and
(vi) The signature of the resident and the employee who supervised each dose dispensed.
(10) Training for Monitoring Self-Administration of Medications. All residential employees responsible for supervising residents in self-administration of medication, who are not credentialed to dispense medication, shall complete required training before performing this task.
(A) The initial training for new employees shall be four (4) hours in length.
(B) Employees shall complete a minimum of two (2) hours of review training annually thereafter.
(C) The training shall be provided by a physician, pharmacist, physician assistant or registered nurse before supervising self-administration of medications. A licensed vocational nurse (LVN) or paramedic (under supervision) may teach the course from an established curriculum. Topics to be covered shall include:
(i) Prescription labels;
(ii) Medical abbreviations;
(iii) Routes of administration;
(iv) Use of drug reference materials;
(v) Monitoring/observing insulin preparation and administration;
(vi) Storage, maintenance, handling and destruction of medication;
(vii) Transferring information from prescription labels to the medication administration record and documentation requirements, including sample medications; and
(viii) Procedures for medication errors, adverse reactions and side effects.
(11) Female Residents. If female residents are housed, access to pregnancy management services shall be available.
(12) Mental Health. Access to mental health services shall be available to residents.
(13) Suicide Prevention. Each facility shall have a written suicide prevention and intervention program reviewed and approved by a qualified medical or mental health professional. All staff with resident supervision responsibilities shall be trained in the implementation of the suicide prevention program.
(14) Personnel.
(A) If treatment is provided to residents by health-care personnel other than a physician, psychiatrist, dentist, psychologist, optometrist, podiatrist or other independent provider, such treatment shall be performed pursuant to written standing or direct orders by personnel authorized by law to give such orders.
(B) If the facility provides medical treatment, personnel who provide health-care services to residents shall be qualified and appropriately licensed. Verification of current credentials and job descriptions shall be on file in the facility. Appropriate state and federal licensure, certification or registration requirements and restrictions apply.
(15) Informed Consent. If the facility provides medical treatment, the facility shall ensure residents are provided information to make medical decisions with informed consent. All informed consent standards in the jurisdiction shall be observed and documented for resident care.
(16) Participation in Research. Residents shall not participate in medical, pharmaceutical or cosmetic experiments. This does not preclude individual treatment of a resident based on resident's need for a specific medical procedure that is not generally available.
(17) Notification. Individuals designated by the resident shall be notified in case of serious illness or injury.
(18) Health Records.
(A) If medical treatment is provided by the facility, accurate health records for residents shall be maintained separately and confidentially.
(B) If medical treatment is provided by the facility, the method of recording entries in the records, the form and format of the records, and the procedures for maintenance and safekeeping shall be approved by the health authority.
(C) If medical treatment is provided by the facility, for the residents being transferred to other facilities, summaries or copies of the medical history record shall be forwarded to the receiving facility prior to or at arrival.
(o) Discharge From Residential Facilities.
(1) Victim Notification. The CSCD director and facility director shall ensure there are procedures, policies and practices that comply with Texas Government Code §76.016, TCCP art. 42.21(a) and other applicable laws as to the notifications made to certain crime victims of offenders who are residents in its facilities or subject to its programs.
(2) Discharge. Discharge from residential facilities shall be based on the following criteria:
(A) The resident has made sufficient progress towards meeting the objectives of the supervision plan and program requirements;
(B) The resident has satisfied a sentence of confinement;
(C) The resident has satisfied a period of placement as a condition of community supervision or satisfied the conditions of a pre-trial agreement signed by a judge presiding over an established drug court;
(D) The resident has demonstrated non-compliance with program criteria or court order;
(E) The resident manifests a non-emergency medical problem that prohibits participation and/or completion of the residential program requirements;
(F) The resident displays symptoms of a psychological disorder that prohibits participation and/or completion of the residential program requirements; or
(G) The resident is identified as inappropriate or ineligible for participation in the residential program as defined by facility eligibility criteria, statute or standard.
(3) Discharge Report. The CSCD director and facility director shall ensure a report is prepared at the termination of program participation that reviews the resident's performance. A copy of the report shall be provided to the receiving CSCD community supervision officer (CSO).
(p) Basic Services and Programs.
(1) Each facility shall, at a minimum, provide programs in the following areas which shall include, but not be limited to:
(A) Education programs;
(B) Rehabilitation programs based on the mission of the facility;
(C) Community service restitution/work detail;
(D) Recreational programs; and
(E) Cognitive based programs.
(2) Facilities serving other jurisdictions shall have a procedure in place designed to assist the resident in obtaining employment in the jurisdiction to which the resident will be released. At a minimum, an aftercare/supervision plan shall be provided to the original jurisdiction and shall outline aftercare/supervision strategies best designed to sustain progress.
(3) Each facility shall have a family support program designed to educate family members in the goals of the facility and resident, as well as to incorporate family assistance during and after residency.
(4) Each facility incorporating an employment component shall provide an initial programming phase of not less than 30 days prior to work release. A longer period of programming shall be provided depending upon documented risk/needs assessment and/or program progress.
(q) Mail, Telephone and Visitation. The CSCD director and facility director shall have written policies which govern the facility's mail, telephone and visitation privileges for residents, including mail inspection, public phone use and routine and special visits. The policies shall address compelling circumstances in which a resident's mail both incoming and outgoing may be opened, but not read, to inspect for contraband.
(r) Religious Programs.
(1) The CSCD director and facility director shall have written policies that govern religious programs for residents. The policies shall provide that residents have the opportunity to voluntarily practice the requirements of a resident's religious faith, have access to worship/religious services and the use or contact with community religious resources, when appropriate.
(2) Under Texas Civil Practice & Remedies Code, Chapter 110, a CSCD or CCF may not substantially burden a resident's free exercise of religion except with the least restrictive measures in furtherance of a compelling interest. Pursuant to Texas Government Code §76.018, there is a presumption that a policy or practice that applies to a resident in the custody of a CCF is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. The presumption may be rebutted with evidence provided by the resident.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2008.
TRD-200800320
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Effective date: February 12, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 463-0422
Chapter 421. STANDARDS FOR CERTIFICATION
The Texas Commission on Fire Protection (the Commission) adopts amendments to §421.5, Definitions. The amendments to §421.5 are adopted with changes to the proposed text published in the November 23, 2007, issue of the Texas Register (32 TexReg 8430) and will be republished.
The adopted amendment allows the Commission to accept college courses from an institution that has been accredited by a nationally recognized accrediting agency as approved by the U. S. Secretary of Education. It also includes already existing text for Definitions (paragraphs (12) - (43)) that was inadvertently left out of the proposed rule in November.
No comments were received from the public regarding the proposed amendments.
This amendment is adopted under §419.028 of the Texas Government Code.
§421.5.Definitions.
The following words and terms, when used in this standards manual, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Admission to employment--An entry level full-time employee of a local government entity in one of the categories of fire protection personnel.
(2) Appointment--The designation or assignment of a person to a discipline regulated by the Commission. The types of appointments are:
(A) permanent appointment--The designation or assignment of certified fire protection personnel or certified part time fire protection employees to a particular discipline (See Texas Government Code, §419.032); and
(B) probationary or temporary appointment--The designation or assignment of an individual to a particular discipline, except for head of a fire department, for which the individual has passed the Commission's certification and has met the medical requirement of §423.1(b) of this title, if applicable, but has not yet been certified. (See Texas Government Code, §419.032.)
(3) Approved training--Any training used for a higher level of certification must be approved by the Commission and assigned to either the A-List or the B-List. The training submission must be in a manner specified by the Commission and contain all information requested by the Commission. The Commission will not grant credit twice for the same subject content or course. Inclusion on the A-List or B-List does not preclude the course approval process as stated elsewhere in the Standards Manual.
(4) Assigned/work--A fire protection personnel or a part-time fire protection employee shall be considered "assigned/working" in a position, any time the individual is receiving compensation and performing the duties that are regulated by the Texas Commission on Fire Protection certification and has been permanently appointed, as defined in this section, to the particular discipline.
(5) Assistant fire chief--The officer occupying the first position subordinate to the head of a fire department.
(6) Auxiliary fire fighter--A volunteer fire fighter.
(7) Benefits--Benefits shall include, but are not limited to, inclusion in group insurance plans (such as health, life, and disability) or pension plans, stipends, free water usage, and reimbursed travel expenses (such as meals, mileage, and lodging).
(8) Chief Training Officer--The individual, by whatever title he or she may be called, who coordinates the activities of a certified training facility.
(9) Class hour--Defined as not less than 50 minutes of instruction, also defined as a contact hour; a standard for certification of fire protection personnel.
(10) Code--The official legislation creating the Commission.
(11) College credits--Credits earned for studies satisfactorily completed at an institution of higher education accredited by an agency recognized by the U.S. Secretary of Education and including National Fire Academy (NFA) open learning program colleges, or courses recommended for college credit by the American Council on Education (ACE) or delivered through the National Emergency Training Center (both EMI and NFA) programs. A course of study satisfactorily completed and identified on an official transcript from a college or in the ACE National Guide that is primarily related to Fire Service, Emergency Medicine, Emergency Management, or Public Administration is defined as applicable for Fire Science college credit, and is acceptable for higher levels of certification.
(12) Commission--Texas Commission on Fire Protection.
(13) Commission-recognized training--A curriculum or training program which carries written approval from the Commission, or credit hours that appear on an official transcript from an accredited college or university, or any fire service training received from a nationally recognized source, i.e., the National Fire Academy.
(14) Compensation--Compensation is to include wages, salaries, and "per call" payments (for attending drills, meetings or answering emergencies).
(15) Expired--Any certification that has not been renewed on or before the end of the certification period.
(16) Federal fire fighter--A person as defined in the Texas Government Code, §419.084(h).
(17) Fire chief--The head of a fire department.
(18) Fire department--A department of a local government that is staffed by one or more fire protection personnel or part-time fire protection employees.
(19) Fire protection personnel--Any person who is a permanent full-time employee of a fire department or governmental entity and who is appointed duties in one of the following categories/disciplines: fire suppression, fire inspection, fire and arson investigation, marine fire fighting, aircraft rescue fire fighting, fire training, fire education, fire administration and others employed in related positions necessarily or customarily appertaining thereto.
(20) Fire suppression duties--Engaging in the controlling or extinguishment of a fire of any type or performing activities which are required for and directly related to the control and extinguishment of fires or standing by on the employer's premises or apparatus or nearby in a state of readiness to perform these duties.
(21) Full-time--An officer or employee is considered full-time if the employee works an average of 40 hours a week or averages 40 hours per week or more during a work cycle in a calendar year. For the purposes of this definition paid leave will be considered time worked.
(22) Government entity--The local authority having jurisdiction as employer of full-time fire protection personnel in a state agency, incorporated city, village, town or county, education institution or political subdivision.
(23) High school--A school accredited as a high school by the Texas Education Agency or equivalent accreditation agency from another jurisdiction.
(24) Immediately dangerous to life or health (IDLH)--An atmosphere that poses an immediate threat to life, would cause irreversible adverse health effects, or would impair an individual's ability to escape from a dangerous atmosphere.
(25) Incipient stage fire--a fire which is in the initial or beginning stage and which can be controlled or extinguished by portable fire extinguishers, Class II standpipe or small hose systems without the need for protective clothing or breathing apparatus.
(26) Interior structural fire fighting--the physical activity of fire suppression, rescue or both, inside of buildings or enclosed structures which are involved in a fire situation beyond the incipient stage. (See 29 CFR §1910.155)
(27) Lead instructor--An individual qualified as an instructor to deliver fire protection training.
(28) Municipality--Any incorporated city, village, or town of this state and any county or political subdivision or district in this state. Municipal pertains to a municipality as herein defined.
(29) National Fire Academy semester credit hours--The number of hours credited for attendance of National Fire Academy courses is determined as recommended in the most recent edition of the "National Guide to Educational Credit for Training Programs," American Council on Education (ACE).
(30) Non-self-serving affidavit--A sworn document executed by someone other than the individual seeking certification.
(31) Participating volunteer fire fighter--An individual who voluntarily seeks certification and regulation by the Commission under the Government Code, Chapter 419, Subchapter D.
(32) Participating volunteer fire service organization--A fire department that voluntarily seeks regulation by the Commission under the Government Code, Chapter 419, Subchapter D.
(33) Part-time fire protection employee--An individual who is appointed as a part-time fire protection employee and who receives compensation, including benefits and reimbursement for expenses. A part-time fire protection employee is not full-time as defined in this section.
(34) Personal alert safety system (PASS)--Devices that are certified as being compliant with NFPA 1982, and that automatically activates an alarm signal (which can also be manually activated) to alert and assist others in locating a fire fighter or emergency services person who is in danger.
(35) Political subdivision--A political subdivision of the State of Texas that includes, but is not limited to the following:
(A) city;
(B) county;
(C) school district;
(D) junior college district;
(E) levee improvement district;
(F) drainage district;
(G) irrigation district;
(H) water improvement district;
(I) water control and improvement district;
(J) water control and preservation district;
(K) freshwater supply district;
(L) navigation district;
(M) conservation and reclamation district;
(N) soil conservation district;
(O) communication district;
(P) public health district;
(Q) river authority;
(R) municipal utility district;
(S) transit authority;
(T) hospital district;
(U) emergency services district;
(V) rural fire prevention district; and
(W) any other governmental entity that:
(i) embraces a geographical area with a defined boundary;
(ii) exists for the purpose of discharging functions of the government; and
(iii) possesses authority for subordinate self-government through officers selected by it.
(36) Reciprocity for IFSAC seals--Valid documentation of accreditation from the International Fire Service Accreditation Congress used for TCFP certification which must be issued from another jurisdiction and which may only be used for obtaining initial certification.
(37) Recognition of training--A document issued by the Commission stating that an individual has completed the training requirements of a specific phase level of the Basic Fire Suppression Curriculum.
(38) School--Any school, college, university, academy, or local training program which offers fire service training and included within its meaning the combination of course curriculum, instructors, and facilities.
(39) Structural fire protection personnel--Any person who is a permanent full-time employee of a government entity who engages in fire fighting activities involving structures and may perform other emergency activities typically associated with fire fighting activities such as rescue, emergency medical response, confined space rescue, hazardous materials response, and wildland fire fighting.
(40) Trainee--An individual who is participating in a Commission approved training program.
(41) Volunteer fire protection personnel--Any person who has met the requirements for membership in a volunteer fire service organization, who is assigned duties in one of the following categories: fire suppression, fire inspection, fire and arson investigation, marine fire fighting, aircraft rescue fire fighting, fire training, fire education, fire administration and others in related positions necessarily or customarily appertaining thereto.
(42) Volunteer fire service organization--A volunteer fire department or organization not under mandatory regulation by the Texas Commission on Fire Protection.
(43) Years of experience--For purposes of higher levels of certification or fire service instructor certification:
(A) Except as provided in subparagraph (B) of this paragraph, years of experience is defined as full years of full-time, part-time or volunteer fire service while holding:
(i) a Texas Commission on Fire Protection certification as a full-time, or part-time employee of a government entity, a member in a volunteer fire service organization, and/or an employee of a regulated non-governmental fire department; or
(ii) a State Firemen's and Fire Marshals' Association advanced fire fighter certification and have successfully completed, as a minimum, the requirements for an Emergency Care Attendant (ECA) as specified by the Department of State Health Services (DSHS), or its successor agency, or its equivalent; or
(iii) an equivalent certification as a full-time fire protection personnel of a governmental entity from another jurisdiction, including the military, or while a member in a volunteer fire service organization from another jurisdiction, and have, as a minimum, the requirements for an Emergency Care Attendant (ECA) as specified by the Department of State Health Services (DSHS), or its successor agency, or its equivalent; or
(iv) for fire service instructor eligibility only, a State Firemen's and Fire Marshals' Association Level II Instructor Certification, or an equivalent instructor certification from the Texas Department of State Health Services (DSHS) or the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). Documentation of at least three years of experience as a volunteer in the fire service shall be in the form of a non self-serving sworn affidavit.
(B) For fire service personnel certified as required in subparagraph (A) of this paragraph on or before October 31, 1998, years of experience includes the time from the date of employment or membership to date of certification not to exceed one year.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800451
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: February 17, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 936-3813
Subchapter A. MINIMUM STANDARDS FOR STRUCTURE FIRE PROTECTION PERSONNEL CERTIFICATION
The Texas Commission on Fire Protection (the Commission) adopts amendments to §423.13, International Fire Service Accreditation Congress (IFSAC) Seal. The amendments to §423.13 are adopted without changes to the proposed text published in the November 30, 2007, issue of the Texas Register (32 TexReg 8714) and will not be republished.
The adopted amendments remove redundant information.
No comments were received from the public regarding the proposed amendments.
This amendment is adopted under §419.008 of the Texas Government Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800452
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: February 17, 2008
Proposal publication date: November 30, 2007
For further information, please call: (512) 936-3813
Subchapter A. ON-SITE CERTIFIED TRAINING PROVIDER
The Texas Commission on Fire Protection (the Commission) adopts amendments to §427.1, Minimum Standards for Certified Training Facilities for Fire Protection Personnel. The amendment to §427.1 is adopted without changes to the proposed text published in the November 23, 2007, issue of the Texas Register (32 TexReg 8431) and will not be republished.
The adopted amendment requires all certified training providers to submit in writing all requests to provide certification training and all requests for course deviations.
No comments were received from the public regarding the proposed amendments.
This amendment is adopted under §419.0341 of the Texas Government Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800453
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: February 17, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 936-3813
Subchapter A. MINIMUM STANDARDS FOR ARSON INVESTIGATOR CERTIFICATION
The Texas Commission on Fire Protection (the Commission) adopts amendments to §431.3, Minimum Standards for Basic Arson Investigator Certification. The amendments are adopted with changes to the proposed text published in the November 23, 2007, issue of the Texas Register (32 TexReg 8431) and will be republished.
The amendments to §431.3 is adopted to clarify that successful completion of a National Fire Academy program for fire investigation must include the basic course, Fire Arson Investigation and two of the four additional courses listed under subsection (a)(4)(B).
These adopted amendments clarify the Commission's minimum standards for certification as a basic arson investigator.
No comments were received from the public regarding the proposed amendments.
The amendments are adopted under §419.008 of the Texas Government Code.
§431.3.Minimum Standards for Basic Arson Investigator Certification.
(a) In order to be certified by the commission as a Basic Arson Investigator an individual must:
(1) possess a current basic peace officer's license from the Texas Commission on Law Enforcement Officer Standards and Education or documentation that the individual is a federal law enforcement officer;
(2) hold a current commission as a peace officer with the employing entity for which the arson investigations will be done; and
(3) possess valid documentation of accreditation from the International Fire Service Accreditation Congress as a Fire Investigator; or
(4) complete a commission approved basic fire investigation training program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved fire investigation training program shall consist of one of the following:
(A) completion of the commission approved Fire Investigator Curriculum, as specified in Chapter 5 of the commission's Certification Curriculum Manual;
(B) successful completion of a National Fire Academy program for fire investigation. The program must include the basic course, Fire Arson Investigation, and two of the following courses or their predecessor:
(i) Arson Detection;
(ii) Fire Cause Determination for Company Officers;
(iii) Initial Fire Investigation; or
(iv) Management of Arson Prevention and Control.
(C) successful completion of an out-of-state or military training program which has been submitted to the commission for evaluation and found to meet the minimum requirements as listed in the commission approved Fire Investigator Curriculum as specified in Chapter 5 of the commission's Certification Curriculum Manual; or
(D) successful completion of the following college courses: Arson Investigator, 3 semester hours; Hazardous Materials, 3 semester hours; Building Construction, 3 semester hours; Fire Protection Systems, 3 semester hours. Total semester hours, 12. The three semester hour course "Building Codes and Construction" may be substituted for Building Construction. Arson Investigator I or II may be used to satisfy the requirements of Arson Investigation. Hazardous Materials I or II may be used to satisfy the requirements of Hazardous Materials.
(b) A person who holds or is eligible to hold a certificate upon employment as a part-time arson investigator may be certified as an arson investigator, of the same level of certification, without meeting the applicable examination requirements.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800454
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: February 17, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 936-3813
The Texas Commission on Fire Protection (the Commission) adopts an amendment to §437.15, International Fire Service Accreditation Congress (IFSAC) Seal Fees. The amendment to §437.15 is adopted without changes to the proposed text published in the November 23, 2007, issue of the Texas Register (32 TexReg 8432) and will not be republished.
The adopted amendment is to increase the fee to cover the cost of processing the application.
No comments were received from the public regarding the proposed amendments.
This amendment is adopted under §419.026 of the Texas Government Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800455
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: February 17, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 936-3813