PART 3. TEXAS YOUTH COMMISSION
CHAPTER 85. ADMISSION, PLACEMENT, AND PROGRAM COMPLETION
SUBCHAPTER D. PROGRAM COMPLETION
The Texas Youth Commission (TYC) adopts new §85.57, concerning the Release Review Panel, with changes to the proposed text as published in the December 12, 2008, issue of the Texas Register (33 TexReg 10144). Changes to the proposed text are outlined below, as described in the commission's responses to public comments received.
The justification for the new rule is to prevent youth from remaining in a Texas Youth Commission facility beyond his/her minimum length of stay unless the youth is in need of additional rehabilitation in a residential facility. The new rule will establish a Central Office Release Review Panel with the responsibility to determine whether a youth who was committed to TYC under an indeterminate commitment order and who has completed his/her minimum length of stay should be discharged from the custody of the TYC, released under supervision, or given an extended length of stay. The new section will also establish a procedure for requesting reconsideration of a Release Review Panel decision.
Comments concerning the proposed rule were received from the Texas Civil Rights Project and Advocacy Incorporated. The comments are summarized below, along with the commission's responses.
Comment: The composition and credentials of the Review Panel members should be established by rule.
Response: All Panel members will be appointed in compliance with Human Resources Code §61.0815. The commission does not believe that the composition and credentials should be established by rule, as the individual circumstances of youth under review may call for flexibility in the composition of a Panel. No changes to the proposed text were made as a result of this comment.
Comment: The rule should specify the level of due process that is required in order for the review Panel to consider a rule violation as proven. The proposed text would allow for any level of due process hearing, including TYC's current Level III hearings, to be sufficient for review Panel consideration. As currently practiced, Level III hearings do not provide for constitutionally sufficient due process when a child's release from custody is being considered. Level I and Level II hearings do provide the necessary constitutional safeguards and should be the only types of hearings the Panel is allowed to consider.
Response: The commission agrees that additional clarification regarding the level of due process required under this rule should be added. The necessary due process protections have been added to subsection (d)(2)(E).
Comment: The rule allows the Panel to consider any information relevant to the youth's progress and rehabilitation. TYC maintains voluminous documentation on each youth, and in order for children or their parents to prepare a meaningful response, they must be notified as to what information and evidence the Panel will consider.
Response: The commission believes that a review of all relevant information is crucial to the Panel's ability to make informed decisions that strike the proper balance between the youth's rehabilitation needs and public safety. Youth and parents will have extensive and ongoing access to the information the Panel will use. Each youth will be given weekly and monthly feedback concerning progress by his or her treatment team. Additionally, each youth and family will be provided with monthly objectives via the youth's case plan. By means of this ongoing, dynamic process, youth and their families will be provided with extensive information regarding individual progress toward release. Potential evidence regarding progress and participation in treatment programs, rule violations, youth behavior, and other such factors will be discussed with the youth, and parent when possible, as part of normal case management practices well before the youth's case is brought before the Panel. No changes to the proposed text were made as a result of this comment.
Comment: The rule should require the youth to be provided with notice that will delineate the specific issues before the Panel.
Response: As noted above, specific issues regarding progress and participation in treatment programs, rule violations, youth behavior, and other such factors will be discussed with the youth, and parent when possible, as part of standard case management practices. As a result, the youth will be provided with information concerning the issues before the Panel through treatment team meetings and other case management practices. However, the commission agrees that the treatment team should discuss with the youth the reasons they are referring his/her case to the Panel. Additional language requiring such an explanation has been added in subsection (e)(1)(B).
Comment: Several items in the rule are not defined, such as "individual risk and protective factors", "offense cycle", and "major rule violation."
Response: Definitions for Major Rule Violation, as well as Individual Risk and Protective Factors have been added to the text of the rule. The term Offense Cycle was removed and replaced with "conduct similar to the youth's criminal conduct prior to TYC commitment."
Comment: The Panel should be required to make an individualized, specific description of the evidence relied upon and the factors considered when making a decision to extend a youth's length of stay. This information is necessary in order to formulate a meaningful request for reconsideration.
Response: The rule currently provides for a written report to be sent to the parent, guardian, or designated advocate as required by Human Resources Code §61.0815. The commission believes this report includes sufficient information to formulate a meaningful request for reconsideration. While the report may not itemize the specific evidence relied upon to make the determination, potential evidence regarding progress and participation in treatment programs, rule violations, youth behavior, and other such factors will be discussed with the youth, and parent when possible, as part of normal case management practices. No changes were made to the proposed text as a result this comment.
Comment: The practice of staffing a reconsideration Panel with different staff members than the Panel that issued the extension order should be included in the rule.
Response: The commission cannot guarantee that each member of a reconsideration Panel will be different than the members of the Panel that issued an extension order, and such a practice is not required under statute. No changes were made to the proposed text as a result of this comment.
Comment: To clarify TYC's grievance process, a statement should be added that a decision by a reconsideration Panel exhausts all administrative remedies regarding release after the minimum length of stay expires.
Response: The commission agrees that this statement would help to clarify a youth's available remedies in the event that the Panel issues an extension decision. The statement has been added in subsection (g)(7).
Comment: Rather than stating that "information and arguments must be submitted to the Panel on or before the expiration of the youth's minimum length of stay," the text of the rule should read "...information and arguments should be submitted..." to allow for extensions when needed.
Response: The commission agrees with the recommendation. The adopted text has been changed from "must" to "should" in subsection (d)(2)(B).
Comment: The rule allows only 15 days from the date of an extension decision to submit a request for reconsideration. This is not sufficient to prepare an adequate and meaningful request. For extensions of longer than 180 days, this deadline should be extended to 30 days.
Response: The commission agrees that there may be cases where more than 15 days is in the youth's best interest. The language in subsection (g)(2) has been amended to state that requests "should" be submitted within 15 days.
Comment: All timelines should be consistently calculated; either with business days or calendar days, but not both.
Response: Business days were inadvertently used in the rule when establishing deadlines. The adopted text will reflect calendar days in subsections (e)(2)(D) and (f)(2).
Comment: The rule should specify that the Panel may only speak with a child after receiving the written consent of any attorney who may represent the child.
Response: The Panel would not necessarily be aware of a youth's representation status. However, when notified that a youth has a representative assisting him/her with the review, the Panel will notify the representative of any scheduled interviews with the youth prior to conducting the interview. Language to this effect has been added to subsection (d)(2)(D).
Comment: Language should be added stating that a youth's refusal to participate in an interview with the Panel shall not be considered in making release or discharge decisions.
Response: The purpose of allowing the Panel full discretion to speak to youth is to provide the youth with an opportunity to speak directly with the Panel members to present information they may wish for the Panel members to be aware of prior to making a decision. The purpose is not to gather evidence against the youth. A statement clarifying that refusal to speak with the Panel will not be held against the youth has been added in subsection (d)(2)(D).
Comment: In order for the Panel to extend a youth's stay in TYC, the rule should require a finding that the treatment a child requires is available in TYC and unavailable in the free world.
Response: There are numerous factors that will contribute to a determination that the commission is the most suitable location for a rehabilitative need to be met. However, the commission does not agree that a "most suitable location" finding requires a finding that specific treatment services are unavailable anywhere outside of TYC. No changes to the proposed text were made as a result of this comment.
Comment: TYC should extend the Review Panel Process to children serving determinate sentences who have completed their minimum length of stay and are eligible for release on parole.
Response: Youth serving determinate sentences who have completed their statutorily required minimum period of confinement were not envisioned by the legislation and were not included in this rule for that reason. No changes to the proposed text were made as a result of this comment.
Comment: TYC should add language to the rule that will provide a better understanding of the rehabilitation expected of youth and that is required from TYC in order for a youth to be discharged or released.
Response: As noted above, progress and participation in treatment programs, youth behavior, and other expectations will be clearly communicated to youth, and parents when possible, as part of standard case management practices. Through meetings with the treatment team and case manager, youth will be provided with specific information concerning individual rehabilitation expectations, as well as release criteria, on an ongoing basis. No changes to the proposed text were made as a result of this comment.
Comment: The rule should provide the youth/parent the opportunity to have a hearing, to present and cross-examine witnesses, and to be appointed an advocate or attorney.
Response: The commission believes the proposed rule provides sufficient opportunities for the youth/parent to present or contest evidence or information considered by the Panel. Youth and parents have significant opportunities for involvement in the youth's rehabilitative goals prior to referral to the Panel. Youth also have the right, at the time when due process hearings are held for serious rule violations, to present and cross-examine witnesses and be represented by an appointed advocate. The commission believes the most appropriate time to challenge whether a rule violation occurred is during the due process hearing held for that purpose, and not when the youth's case is before the Panel for consideration. As stated in the rule, only violations proved through appropriate due process will be considered by the Panel. No changes were made to the rule as a result of this comment.
Comment: The rule should be very clear that the burden of showing the need to extend a child's stay is on TYC, not the youth/parent to show why the stay should not be extended.
Response: The commission believes that the rule sufficiently establishes that the burden of justifying a release/discharge/extension decision rests with the agency. As stated in the proposed text, the Panel may extend a youth's stay only on the basis of clear and convincing evidence that the youth is in need of additional rehabilitation, and that TYC is the most suitable environment for that rehabilitation. Absent clear and convincing evidence that the youth is need of additional rehabilitation, the Panel must release or discharge the youth. No changes to the proposed text were made as a result of this comment.
Comment: The Panel should be required to disclose the identity of any potential witnesses and the nature of the information they possess to the parent/youth/advocate and provide the opportunity to cross-examine or have similar access to these witnesses.
Response: As noted above, this will be addressed in the normal course of case management. Youth will be provided copies of incident reports at the time the incidents occur. Possible evidence concerning the youth's participation in treatment programs, rule violations, youth behavior, and other expectations will be discussed with the youth, and parent when possible, as part of normal case management practices well before the youth's case is brought before the Panel. The youth will know that facility staff members familiar with his progress and behavior are potential witnesses. No changes to the proposed text were made as a result of this comment.
Comment: The need for obtaining information from victims is questionable. The focus of the Panel should be on the youth and what he or she has done towards rehabilitation.
Response: The commission believes the need to obtain information from victims is both appropriate and necessary under relevant provisions of Texas Code of Criminal Procedure, Chapter 56, and Texas Family Code, Chapter 57.
Comment: The list of factors considered by the Panel should include the nature, scope, and quality of the educational, medical, specialized services, or other treatment programs provided by TYC and whether TYC effectively met the youth's needs. The list of factors considered by the Panel should also include an assessment of whether a youth with a disability is unable to progress through TYC's programs as a result of his or her disability or TYC's failure to provide reasonable accommodations.
Response: The commission does not believe that such a finding is required under relevant statutes. The required finding that TYC is the most suitable environment for the needed rehabilitation sufficiently addresses whether TYC is able to provide the necessary rehabilitation. No changes were made to the proposed text as a result of this comment.
Comment: The rule should require the Progress Review Team to reexamine, and if necessary, modify any treatment or re-entry plans for youth who receive extensions.
Response: Each youth's case plan is regularly reviewed and modified as part of the youth's ongoing case management. Goals, expectations, and transition planning are addressed at each review. This process is provided for all youth, regardless of whether they have received an extension to their length of stay. No changes to the proposed text were made as a result of this comment.
Comment: Use of the term "accepted" in subsection (g)(6) appears to imply some discretion on the part of the Panel to not consider all requests for reconsideration. The underlying statute requires the Panel to reconsider any extension order that is the subject of a request for reconsideration.
Response: The commission believes the comment misstates the underlying statute. The statute, and therefore the rule, requires the Panel to reconsider any extension order which extends the youth stay (either singularly or cumulatively) by six months. The term "accepted" was used because the commission has chosen to allow reconsiderations in addition to those required by the statute, at the discretion of the Panel if doing so would best serve the rehabilitative needs of the youth.
Comment: The rule allows for a facility administrator to request reconsideration of a release or discharge order if new information becomes available that the Panel was unaware of at the time of its review. The rule must ensure that the youth/parent is accorded an opportunity to be heard in a manner that comports with legal due process where a release or discharge date has been set.
Response: The commission agrees that this statement would help to clarify the notice process for these reviews. A statement to this effect has been added in subsection (h).
The new rule is adopted under Human Resources Code §61.0815, which requires the commission to establish a panel whose function is to review and determine whether a child who has completed the minimum length of stay should be discharged, released, or remain in the custody of the commission for an additional period of time. The section is also adopted under Human Resources Code §61.0816, which requires the commission to establish a process to request the reconsideration of an extension order issued by the panel.
§85.57.Release Review Panel.
(a) Purpose. This rule establishes a release review panel to determine whether a youth who has completed his/her minimum length of stay should be discharged from the custody of the Texas Youth Commission (TYC), released under supervision, or given an extended length of stay. This rule also establishes a process to request reconsideration of an order issued by the release review panel.
(b) Applicability. This rule applies to all youth committed to the TYC without a determinate sentence who have completed the minimum length of stay and have not been released to parole or discharged from TYC custody.
(c) Definitions. The following terms, as used in this rule, have the following meanings unless the context clearly indicates otherwise.
(1) Clear and Convincing Evidence--a standard of proof meaning that measure or degree which will produce in the mind of the trier of facts a firm belief or conviction as to the position sought to be established; more than a preponderance of the evidence, but less than beyond a reasonable doubt.
(2) Discharge--legal release from the legal jurisdiction of TYC.
(3) Extension Length of Stay--a period of time in addition to the minimum length of stay that a youth is required to remain in residential placements. An extension length of stay may only be assigned by the Release Review Panel in accordance with provisions of this rule.
(4) Individual Risk and Protective Factors--the dynamic characteristics of a youth's environment, behavior, and mental processes that contribute to the likelihood of further delinquent activity (risk factors) or that contribute to the prevention of delinquent activity (protective factors).
(5) Major Rule Violation--a violation in the most serious category of rule violations for residential facilities, as listed in §95.3 of this title.
(6) Minimum Length of Stay--the minimum period of time a youth is required to remain in residential placements. The minimum length of stay is assigned upon initial commitment, recommitment, or revocation of parole.
(7) Progress Review Team--the TYC residential placement staff or TYC contract placement monitoring staff who are designated by the facility to meet and assess a youth's progress in treatment programming.
(8) Release--movement to parole supervision.
(9) Release Review Panel (or Panel)--the TYC Central Office staff appointed to determine if a youth who has completed his/her minimum length of stay will be discharged, released, or given an extended length of stay.
(10) Residential Placement--a high or medium restriction facility, as defined in §85.27 of this title.
(d) General Provisions.
(1) Panel Members.
(A) The Panel will consist of an odd number of members appointed by the executive commissioner for terms of at least two years.
(B) Each member of the Panel must be a TYC employee who works at the TYC central office. Panel members may not be involved in any supervisory decisions concerning youth in the custody of TYC.
(2) Evidence used by the Panel.
(A) The Panel may review any information relevant to the youth's progress and rehabilitation.
(B) A youth, the parents/guardian of a youth, victims of a youth, or any advocate chosen by a youth may submit information for the Panel's consideration. Information and arguments should be submitted to the Panel in writing on or before the expiration of the youth's minimum length of stay, or if applicable, expiration of the extension length of stay. A youth may request assistance from any TYC staff member, volunteer, or advocate in communicating with the Panel.
(C) A parent/guardian, victim, or person representing a youth may make a written request for personal communication with a member of the Panel on or before the expiration of the youth's minimum length of stay, or if applicable, expiration of the extension length of stay. The time, place, and manner of communication will be established by the Panel.
(D) The Panel may, at its discretion, interview the youth or any other individual who may have information relevant to the youth's rehabilitation needs. When notified that a youth has a representative assisting him/her with the review, the panel will notify the representative of any scheduled interviews with the youth prior to conducting the interview. A youth's refusal to speak to the Panel will not be held against the youth when making the release decision.
(E) To be considered as a factor in a determination to extend a youth's stay, a violation of the rules of conduct must have been proven via due process which provides advance written notice of the alleged violation, a written statement by the fact finder of the evidence relied upon and the reason for the decision, an opportunity to call witnesses and present evidence, and a neutral decision maker.
(F) Evidence of factors other than rule violations may be considered by the Panel irrespective of its form.
(3) Deadline for Release or Discharge. If the Panel determines that a youth's length of stay should not be extended, TYC must release or discharge the youth within 15 calendar days after the date of the Panel decision.
(e) Completion of Minimum Length of Stay.
(1) Referral by the Progress Review Team. At least 30 calendar days prior to the expiration of a youth's minimum length of stay, the progress review team will determine whether or not the youth meets release criteria. If the progress review team determines the youth does not meet release criteria or recommends discharge of the youth, the following actions will occur:
(A) The progress review team will notify the youth, parent/guardian, and any identified victims that the case has been referred to the Panel for review.
(B) The progress review team will discuss with the youth the reasons for the decision to refer the youth's case to the Panel.
(C) On or before the date the minimum length of stay expires, the progress review team will submit to the Panel any information relevant to the decision on whether the youth is in need of additional rehabilitation in a residential placement.
(2) Panel Decision.
(A) The Panel will make a determination as to whether TYC will discharge the youth, release the youth, or extend the youth's stay in a residential placement.
(B) The Panel may extend the youth's stay only if the Panel determines by majority vote and on the basis of clear and convincing evidence that:
(i) the youth is in need of additional rehabilitation from TYC; and
(ii) a residential placement will provide the most suitable environment for that rehabilitation.
(C) The Panel's determination may include assessments of factors including, but not limited to, the following:
(i) the youth's efforts to reduce individual risk factors and increase individual protective factors;
(ii) length of time in a residential program relative to the youth's conduct;
(iii) degree and quality of the youth's participation in available treatment programs;
(iv) behavior during the youth's length of stay as evidenced by the number and frequency of rule violations confirmed through due process, with special consideration given to:
(I) serious rule violations, aggressive incidents, or criminal conduct; and
(II) incidents that demonstrate conduct similar to the youth's criminal conduct prior to TYC commitment.
(D) If the Panel extends the length of a youth's stay, the Panel must:
(i) specify the additional period of time that the youth must remain in residential placements; and
(ii) provide a written report explaining the reason for the extension to the youth, parent/guardian, and any designated advocate. The report must be provided within 10 calendar days after the date of the Panel decision.
(f) Completion of Extension Length of Stay.
(1) Notification. At least seven calendar days prior to the expiration of an extension length of stay, the Panel will notify the youth, the youth's parents/guardian, and victim(s) that the youth's case is pending review before the Panel.
(2) Panel Decision. The Panel will conduct a review and make a determination to discharge the youth, release the youth, or extend the length of stay in a residential placement. The Panel must mail notification to all parties of the decision within 10 calendar days from the date of the decision.
(g) Request for Reconsideration of an Extension Order.
(1) The youth, the youth's parent/guardian, the youth's designated advocate, the youth's victim(s), a TYC employee, an employee of a TYC contractor, or a person who provides volunteer services at a TYC facility may submit a request for reconsideration of an extension order.
(2) The request for reconsideration must be in writing and should be received by the Panel within 15 calendar days after the date of the written notice explaining the reason for the extension.
(3) The youth may request assistance from any TYC staff member, volunteer or advocate in completing a request for reconsideration.
(4) The person submitting the request for reconsideration must state in the request the reason for the request.
(5) Upon receipt of a request for reconsideration of an extension order, the Panel must reconsider an extension order that:
(A) extends the youth's stay in TYC custody by six months or more; or
(B) combined with previous extension orders, will result in an extension of the youth's stay in TYC custody by six months or more.
(6) The Panel may, at its discretion, accept requests for reconsideration other than those described in paragraph (5) of this subsection. For reconsideration requests accepted by the Panel, the Panel will provide a written reply to all parties with an explanation of the Panel's decision. The reply will include an indication that the Panel has considered the information submitted in the request.
(7) A reconsideration decision by the Panel exhausts all administrative remedies regarding release after expiration of the minimum length of stay.
(h) Request for Reconsideration of a Release or Discharge Order. The facility administrator or appropriate contract care monitoring staff may request reconsideration of a release or discharge order at any time prior to the youth's release or discharge if new information becomes available or the youth is alleged to have committed a major rule violation of which the panel was unaware at the time of its original decision. The facility must provide the youth a copy of the request for reconsideration. The youth may provide information to the panel concerning the reason(s) for the request.
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 April 2, 2009.
TRD-200901299
Cheryln K. Townsend
Executive Commissioner
Texas Youth Commission
Effective date: May 1, 2009
Proposal publication date: December 12, 2008
For further information, please call: (512) 424-6014