37 TAC §85.33
Texas Youth Commission (TYC) adopts on an emergency basis
an amendment to §85.33, concerning Program Completion and Movement of
Sentenced Offenders. Sentenced offenders have been grouped by offense for
the purpose of establishing certain internal review procedures. To the group
named "category 1 sentenced offenders", the offense aggravated sexual assault
is being added and the offense aggravated assault is being removed.
This amendment is adopted on an emergency basis to ensure that youth who
may pose greater risk to the public receive the highest level of internal
review prior to any decision concerning a sentenced offender's movement.
The amendment is adopted on an emergency basis under the Human
Resources Code, §61.081, concerning Release Under Supervision, which
provides the Texas Youth Commission authority to release a youth under supervision,
who is committed to the commission under a determinate sentence, and §61.084,
concerning Termination of Control, which provides TYC authority to discharge
sentenced offender youth from its custody.
The adopted rule implements the Human Resource Code, §61.034.
§85.33.Program Completion and Movement of Sentenced Offenders.
(a)
Purpose. The purpose of this rule is to provide criteria
and a process whereby staff may determine when a sentenced offender youth
has completed a program, is eligible to be moved to another program, released
home, placed on parole status, or may be transferred to the Texas Department
of Criminal Justice (TDCJ).
(b)
Applicability.
(1)
This rule does not address all types of disciplinary movements.
See (GAP) Chapter 95, Subchapter A of this title (relating to Disciplinary
Practices).
(2)
This rule does not apply to youth committed to TYC
on indeterminate commitments. See (GAP) §85.29 of this title (relating
to Program Completion and Movement of Other Than Sentenced Offenders).
(c)
Explanation of Terms Used.
(1)
Program completion criteria - See the term explanation
in (GAP) §85.29 of this title (relating to Program Completion and Movement
of Other Than Sentenced Offenders).
(2)
Administrative transfer-See the term explanation in
(GAP) §85.29 of this title (relating to Program Completion and Movement
of Other Than Sentenced Offenders).
(3)
Transition movement - See the term explanation in
(GAP) §85.29 of this title (relating to Program Completion and Movement
of Other Than Sentenced Offenders).
(4)
Parole status - See the term explanation in (GAP)
§85.29 of this title (relating to Program Completion and Movement of
Other Than Sentenced Offenders).
(5)
Category 1 offenses - The offenses, specifically the
commission, attempted commission, conspiracy to commit, solicitation, solicitation
of a minor to commit, or engaging in organized criminal activity to commit:
murder, capital murder, sexual assault, or aggravated
sexual
assault, the commission of which was on or after January 1, 1996, and for
which a youth has been given a determinate sentence.
(6)
Category 2 offenses - The offenses, except category
1 offenses, committed on or after January 1, 1996, for which a youth has been
given a determinate sentence.
(d)
General Restrictions. Due to the nature of determinate
sentences, some rules governing the classification, placement, release, transition,
parole status, and disciplinary movement of sentenced offenders must be applied
differently. Specifically:
(1)
Classification. A youth classified at commitment as a sentenced
offender shall retain a sentenced offender classification as long as the youth
remains under the jurisdiction of TYC as a result of that commitment. See
(GAP) §85.23 of this title (relating to Classification).
(2)
Initial Placement. On initial placement, all sentenced
offenders shall be assigned to high restriction facilities unless the deputy
executive director waives such placement for a particular youth.
(e)
Program Completion Processes.
(1)
Program staff will explain completion criteria to every
youth during orientation to each placement.
(2)
Prior to a transition movement, a youth may request
and in doing so will be granted a level II hearing.
(3)
TYC shall not accept the presence of a detainer as
an automatic bar to earned release. The agency shall release a youth to authorities
pursuant to a warrant.
(4)
Progress toward successful completion of criteria
shall be evaluated at specific regular intervals.
(A)
If, at the review, it is determined the youth has completed
criteria required for transition, movement is considered. A transition placement
is always to a placement of equal or less restriction than the youth's current
placement.
(B)
If, at the review, it is determined the youth has not completed
criteria required for a transition or release movement, the youth may be continued
in the placement or considered for transfer to TDCJ under legal requirements
and procedures herein.
(5)
TYC program staff where the youth is assigned
shall determine when program completion criteria have been met.
(f)
Youth sentenced to commitment in the Texas Youth Commission
(TYC) for offenses committed on or after January 1, 1996.
(1)
General Requirements.
(A)
Minimum Period of Confinement. The minimum period of confinement
is ten years for youth sentenced for capital murder; three years for youth
sentenced for an aggravated controlled substance felony or a felony of the
first degree; two years for a felony of the second degree; one year for a
felony of the third degree; or completion of the sentence, whichever occurs
first.
(B)
Placement. Sentenced offenders shall serve the entire minimum
period of confinement applicable to the youth's classifying offense in high
restriction facilities unless the youth is:
(i)
transferred to TDCJ earlier in accordance with legal requirements
or committing court approval; or
(ii)
transitioned or released earlier under provisions in this
section.
(C)
Parole. Sentenced offenders shall not attain parole status
at any time prior to completion of serving the minimum period of confinement
unless approved by the committing court.
(D)
Administrative Transfer. Administrative transfer movements
may be made among programs of equal restrictions without a due process hearing.
An administrative movement shall not be made in lieu of a movement for which
a due process hearing is mandatory.
(E)
Jurisdiction Termination. TYC jurisdiction shall be terminated
and a sentenced offender discharged when he/she is transferred to TDCJ (by
age 21) or his/her sentence is complete (except as specified in subparagraph
(F) of this paragraph). All sentenced offender youth in TYC custody at age
21 are transferred to TDCJ for completion of their sentence.
(F)
Concurrent Commitments. In the event that a youth is committed
to TYC under concurrent determinate sentence and indeterminate commitment
orders both commitment orders will be given effect, with the determinate sentence
order having precedence. Any movement and transfer options available under
the determinate sentence order and determined to be appropriate must occur
prior to completion of the determinate sentence. Other exceptions are as follows:
(i)
The youth will be classified and managed as a sentenced
offender until such time as the determinate sentence order is completed or
TYC jurisdiction expires, whichever occurs first. If a youth's determinate
sentence is complete prior to the expiration of TYC jurisdiction, the youth
will be newly classified in accordance with the classifying offense associated
with the indeterminate commitment.
(ii)
Both orders are given effect, i.e., the minimum period
of confinement under the determinate sentence and the Minimum Length of Stay
(MLS) associated with the indeterminate commitment will run concurrently.
If the applicable minimum period of confinement under the determinate sentence
is completed before the applicable MLS under the indeterminate commitment,
the youth will not be considered for release until the MLS has also been completed.
(iii)
The youth is discharged from the determinate sentence
order upon completion of the determinate sentence, but the indeterminate commitment
order will be given effect until normal discharge criteria are met. Under
this rule, the youth may remain under TYC supervision until age 21, regardless
of the expiration date of the determinate sentence.
(2)
Program Completion Criteria and Movement.
(A)
Youth Whose Classifying Offense is a Category 1 Offense.
(i)
Criteria. A category 1 sentenced offender youth will be
eligible for transition/release to a placement of less than high restriction
when the following criteria have been met:
(I)
no major rule violations within 90 days prior to the transition/release
review; and
(II)
completion of the minimum period of confinement, except
as provided in clause (A)(iii) of this subparagraph; and
(III)
completion of phase 4 resocialization goals; and
(IV)
completion of Individual Case Plan (ICP) objectives:
(-a-)
completion of required ICP objectives for transition
to medium restriction, except objectives which cannot be completed in the
current placement, but which may be completed in a medium restriction placement;
or
(-b-)
completion of all ICP objectives for release on
parole to home level restriction.
(ii)
Procedure. The release of a qualified youth from a high
restriction facility to either medium restriction or home level restriction
may occur as follows:
(I)
Staff must develop a release plan that identifies risk
factors and is adequate to ensure public safety and positive reintegration.
Staff must also develop a release packet of information.
(II)
The supervising program administrator must review and
approve the release packet for quality and make a recommendation regarding
the release.
(III)
The Special Services Committee must conduct an exit interview
with the youth to determine whether the youth meets criteria. The Committee
must review and approve the release packet and recommend the release.
(IV)
The superintendent/quality assurance administrator must
approve and recommend the release and forward the release packet to the juvenile
corrections department in central office.
(V)
The assistant deputy executive director for rehabilitation
services will review the release packet for quality assurance of information
presented and adequacy of the release plan.
(VI)
The assistant deputy executive director for juvenile corrections
(final release authority) will approve and confirm the release to the facility
administrator.
(iii)
Exceptions for Youth Whose Classifying Offense Is Capital
Murder. A youth sentenced for capital murder may be considered for transition/release
prior to completion of the minimum period of confinement when the following
criteria have been met.
(I)
Criteria. Criteria as listed in paragraph (2)(A)(i) of
this subsection, with one exception: the youth has completed at least three
(3) years of the minimum period of confinement.
(II)
Procedure. Procedures for transition/release from a high
restriction facility as listed in paragraph (2)(A)(ii) of this subsection,
with the following additional requirements:
(-a-)
The superintendent/quality assurance administrator must
approve release and submit to central office a release packet and recommendation
that an early release hearing be requested.
(-b-)
The executive director (final TYC approval authority)
must approve the release request and staff requests for a hearing by the committing
juvenile court for early release.
(-c-)
The facility administrator must request a hearing
by the court.
(-d-)
The court (final release authority) must approve
the early transition/release.
(B)
Youth Whose Classifying Offense is a Category 2 Offense.
(i)
Criteria. A category 2 sentenced offender youth will be
eligible for transition/release to a placement of less than high restriction
when the following criteria have been met.
(I)
no major rule violations within 90 days prior to the transition/release
review; and
(II)
completion of the minimum period of confinement; and
(III)
completion of phase requirements:
(-a-)
phase 3 resocialization goals for transition to medium
restriction; or
(-b-)
phase 4 resocialization goals for release to home
level restriction; and
(IV)
completion of ICP objective requirements:
(-a-)
completion of required ICP objectives for transition
to medium restriction, except objectives which cannot be completed in the
current placement, but which may be completed in a medium restriction placement;
or
(-b-)
completion of all ICP objectives for release to
home level restriction.
(ii)
Procedure. The release of a qualified youth from a high
restriction facility to either medium restriction or home level restriction
may occur as follows:
(I)
Staff must develop a release plan that identifies risk
factors and is adequate to ensure public safety and positive reintegration.
Staff must also develop a release packet of information.
(II)
The supervising program administrator must review and
approve the release packet for quality and make a recommendation regarding
the movement.
(III)
The Special Services Committee must conduct an exit interview
with the youth to determine whether the youth meets criteria and must review
and approve the release packet, and recommend the release.
(IV)
The superintendent/quality assurance administrator (final
release authority) must approve the release.
(C)
Youth Who Have Been Disciplinarily Returned to Residential
Placement.
(i)
Following the youth's completion of the minimum period
of confinement and release on parole to home level restriction, a sentenced
offender is subject to TDCJ transfer rules and TYC policies where specifically
addressed, but is otherwise governed by rules for the classification he would
have received if not a sentenced offender.
(ii)
Should a youth be returned to a high or medium restriction
placement via a level I or II disciplinary hearing, the youth's eligibility
criteria for transition to medium restriction or release on parole to home
level restriction from that placement, is the criteria stated in (GAP) §85.29
of this title (relating to Program Completion and Movement of Other Than Sentenced
Offenders).
(3)
Transfer From TYC High Restriction To TDCJ,
Institution Division. Transfer from a high restriction facility to the Texas
Department of Criminal Justice, Institutional Division may occur as described
in this paragraph.
(A)
Criteria For Certain Capital Murder Youth. A transfer shall
occur (court approval is not required) for a youth, at age 21, who:
(i)
was sentenced for capital murder; and
(ii)
has not completed the minimum period of confinement applicable
to the youth's classifying offense (10 years) or the sentence if less than
10 years.
(B)
Criteria For Youth Whose Parole Has Been Revoked. A transfer
shall occur if ordered by the juvenile court. TYC may request a juvenile court
hearing for a youth whose parole has been revoked and the following criteria
have been met:
(i)
youth is at least age 16; and
(ii)
youth's parole was revoked for:
(I)
felony, Class A misdemeanor, or a high risk offense; or
(II)
any other violation which resulted in placement in an
intermediate sanction program at which the youth has failed to progress; and
(iii)
youth has not completed his/her sentence; and
(iv)
youth's conduct indicates that the welfare of the community
require the transfer.
(C)
Criteria For Other Youth. A transfer shall occur if ordered
by the juvenile court. TYC may request a juvenile court hearing for any other
youth if the following criteria have been met:
(i)
youth is at least age 16; and
(ii)
youth has spent at least six months in a high restriction
facility; and
(iii)
youth has not completed his/her sentence; and
(iv)
youth has met at least one of the following behavior criteria:
(I)
youth has committed a felony or Class A misdemeanor while
assigned to residential placement; or
(II)
youth persistently has committed major rule violations
(on three or more occasions); or
(III)
youth has engaged in chronic disruption of program (five
security admissions or extensions in one month or ten in three months); or
(IV)
youth has demonstrated an inability to progress in his/her
resocialization program due to persistent non compliance with treatment objectives;
and
(v)
alternative interventions have been tried without success.
(For example: special treatment plans, disciplinary transfer, extended stay);
and
(vi)
youth's conduct indicates that the welfare of the community
requires the transfer.
(D)
Procedures. Procedures for effecting a transfer requiring
court approval in accordance with subparagraphs (B) and (C) of this paragraph
are as follows:
(i)
The staff must prepare an early transfer request packet
that identifies risk factors and a treatment summary and review of alternative
interventions tried.
(ii)
The supervising program administrator must review and
approve the transfer packet for quality and make a recommendation regarding
the transfer.
(iii)
The Special Services Committee must determine whether
the youth meets criteria, and must approve packet and recommend transfer.
(iv)
The superintendent/quality assurance administrator must
approve and recommend transfer and forward the packet to the juvenile corrections
department in central office.
(v)
The assistant deputy executive director for rehabilitation
services will review the packet for quality assurance of information presented
and the youth's eligibility for transfer, and will make a recommendation to
the deputy executive director.
(vi)
The assistant deputy executive director for juvenile corrections
will review the packet and make a recommendation to the deputy executive director.
(vii)
The deputy executive director (final TYC approval authority)
must approve all early transfers and staff requests for a hearing by the committing
juvenile court hearing.
(viii)
The juvenile corrections department will confirm final
transfer decision to the superintendent/quality assurance administrator who
may request a hearing.
(ix)
The court (final transfer authority) must approve the
early transfer.
(4)
Transfer From TYC High or Medium Restriction
To TDCJ, Pardons and Paroles Division. Transfer from a medium or high restriction
facility to the Texas Department of Criminal Justice, Pardons and Paroles,
shall occur (court approval is not required).
(A)
Age 19 Factor.
(i)
Criteria. A youth who reached age 19 while in a high restriction
facility will be transferred to TDCJ, Parole Division when he becomes eligible
for parole release.
(ii)
Procedure.
(I)
Staff must develop a release plan that identifies risk
factors and is adequate to ensure public safety and positive reintegration.
The plan should reflect communication with a TDCJ parole officer regarding
available resources. Staff must develop a release packet of information.
(II)
The supervising program administrator must review and
approve packet for quality and make a recommendation regarding the release.
(III)
Special Services Committee (or equivalent committee)
must conduct an exit interview with the youth to determine whether the youth
meets criteria, and must review and approve the packet, and recommend the
release.
(IV)
The superintendent/quality assurance administrator must
approve and recommend the release.
(-a-)
The superintendent/quality assurance administrator must
send required documentation to the TDCJ, Pardons and Paroles Division. Within
90 days of receipt TDCJ will process the information and set conditions for
release to TDCJ, Pardons and Paroles Division.
(-b-)
The superintendent/quality assurance administrator
will insert the conditions specified by TDCJ, Pardons and Paroles Division
into the release packet and forward the packet to the juvenile corrections
department in central office.
(V)
The assistant deputy executive director for rehabilitation
services will review the packet for quality assurance of information presented
and adequacy of the plan, while considering the availability of resources
within TDCJ.
(VI)
The assistant deputy executive director for juvenile corrections
will review the release packet and make a recommendation to the deputy executive
director.
(VII)
The deputy executive director (final TYC release authority)
must approve the release.
(VIII)
The final arrangements for the transfer are made by
either the high or medium restriction administrator depending on whether youth
went to a medium restriction facility or went directly to TDCJ, Parole. The
superintendent/quality assurance administrator will contact TDCJ - Pardons
and Paroles Division to confirm transfer date. TDCJ personnel will serve the
Order of Transfer in person on that day, at which time the sentenced offender
youth is discharged from the Texas Youth Commission and transferred to the
Texas Department of Criminal Justice, Pardons and Parole Division.
(B)
At Age 21.
(i)
Criteria.
(I)
At age 21, a youth who was sentenced for any offense other
than capital murder and who has not completed the sentence will be transferred
to TDCJ, Parole.
(II)
At age 21, a youth sentenced for capital murder, who has
not completed the sentence and who has not been transferred to TDCJ or released
under supervision (movement from high restriction) by juvenile court order
will be transferred to:
(-a-)
TDCJ-Institution Division, if he has not completed the
10-year minimum confinement period under paragraph (f)(3) of this subsection;
or
(-b-)
TDCJ-Pardons and Parole Division, if he has completed
the 10-year minimum confinement period.
(ii)
Procedure.
(I)
Prior to 90 days before the youth's 21st birthday, staff
must develop a transition plan. The plan should reflect communication with
a TDCJ parole officer regarding available resources. Staff must develop a
transfer packet of information.
(II)
At 90 days before the youth's 21st birthday, the superintendent/
quality assurance administrator must send required documentation to the TDCJ,
Pardons and Parole Division. Within 90 days of receipt, TDCJ will process
the information and set conditions for release to parole.
(III)
The superintendent/quality assurance administrator will
contact TDCJ, Pardons and Paroles Division to confirm the transfer date (youth's
21st birthday). TDCJ personnel will serve the Order of Transfer in person
on that day, at which time the sentenced offender youth is discharged from
TYC and Transferred to TDCJ, Pardons and Paroles.
(5)
Transfer From TYC Home Parole To TDCJ,
Pardons and Parole.
(A)
Criteria. Transfer from TYC parole at home level restriction
to TDCJ, Pardons and Paroles, shall occur (court approval not required) at
age 21 if the youth has not completed his/her sentence.
(B)
Procedure.
(i)
Prior to 90 days before the youth's 21st birthday, parole
supervision staff must develop a continuing parole plan. The plan should reflect
communication with a TDCJ parole officer regarding available resources. Staff
must develop a continuing parole packet of information.
(ii)
At 90 days before the youth's 21st birthday, the parole/quality
assurance supervisor must send required documentation to the TDCJ, Pardons
and Paroles Division. Within 90 days TDCJ will process the information and
set conditions for release to parole.
(iii)
The parole/quality assurance supervisor will contact
TDCJ, Pardons and Paroles Division to confirm transfer date (youth's 21st
birthday), at which time the youth will be discharged from TYC and transferred
to TDCJ, Pardons and Paroles Division.
(g)
Youth sentenced to commitment in TYC for offenses committed
before January 1, 1996.
(1)
Movement and Parole. Sentenced offenders who meet program
completion criteria for transition or parole shall not be released without
proper authorization:
(A)
When a juvenile court orders that a sentenced offender
be released under supervision, the youth shall be transitioned or paroled,
as appropriate to the youth's progress at the time of the court's order.
(B)
When the juvenile court orders that a sentenced offender
be recommitted to TYC without a determinate sentence, the youth's eligibility
for release on parole or transition or disciplinary movements shall be governed
by the release criteria and procedures for the classification the youth would
have received if not a sentenced offender.
(2)
Disciplinary Movement. A sentenced offender may
be assigned to any appropriate placement, including a high restriction facility,
following a level I or II disciplinary hearing.
(h)
Notification. Parents or guardians will be notified of
all movements.
Filed with the Office of the Secretary of State,on
June 22, 1999.
TRD-9903699
Steve Robinson
Executive Director
Texas Youth Commission
Effective date: June 22, 1999
Expiration date: October 20, 1999
For further information, please call: (512) 424-6244