Part 6.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Chapter 151.
GENERAL PROVISIONS
37 TAC §151.25
The Texas Department of Criminal Justice (TDCJ) adopts an
amendment to §151.25, concerning the Texas Department of Criminal Justice
Tobacco Policy without changes to the proposed text as published in the December
3, 1999, issue of the
Texas Register
(24 TexReg
10840). This policy is applicable to all employees of, persons in the custody
of, visitors to the Texas Department of Criminal Justice, and privately operated
secure correctional facilities under contract with the TDCJ. The TDCJ is committed
to providing a safe and healthy environment and working conditions for employees
and offenders. All offenders and persons visiting offenders are prohibited
from possessing or using any tobacco products. TDCJ employees and persons
on TDCJ property conducting official State business are authorized to possess
and use tobacco products in accordance with Agency policies and procedures.
The amendment will enable a safe and healthy environment and working conditions
for employees and offenders.
One comment was received from Mr. Ward Larkin on the proposed amendment.
Mr. Larkin commented on the tobacco policy as a whole. To summarize, he
points out that the Board's policy of prohibiting the possession or use of
tobacco is inconsistent with a recommendation made in an agency escape incident
report: the report discussed the problem of correctional officer in a picket
whose response was delayed because he was smoking an unauthorized cigarette
and took time to hide it before firing at the escapee; the report recommended
that tobacco be either 'legalized' (that the ban be rescinded) or criminalized.
Mr. Larkin also argues that the current policy - to be reenacted by the proposal
- treats employees differently than visitors; he believes that it therefore
violates Equal Protection and does not further a legitimate penological interest.
The Department adopts the rule as proposed for the following reasons.
The legislature has essentially dictated the disparate treatment in Government
Code, §494.010, which states:
A rule adopted by the board that regulates the possession and use of tobacco
products by department employees must provide that employees of the department
are permitted to use tobacco products during work hours at times and locations
designated by the board. In designating locations at which the use of tobacco
products is permitted, the board shall designate locations that: (1) are at
a sufficient distance from a place at which employees regularly perform duties
to ensure that no employee who abstains from the use of tobacco products is
physically affected by the use of tobacco products; and (2) do not negatively
affect the comfort or safety of any employee or inmate.
This law was adopted in 1997 and altered the Board's original policy, which
banned tobacco on TDCJ premises altogether, for offenders, employees, officials,
and visitors. This statute effectively recognizes the problem (the "legitimate
penological interest") of second-hand smoke in prisons and therefore validates
the Board's original impulse to address that problem. The Board responded
by continuing the ban as far as possible but established a procedure for designating
employee smoking areas outside of units and offices.
Classifications and distinctions among classes of people are common in
legislation and regulations, and by no means do they automatically implicate
an Equal Protection violation. An Equal Protection plaintiff must prove that
he was the victim of purposeful discrimination, either because of membership
in a protected class (such as racial minority) or due to an irrational or
arbitrary classification that is unrelated to a legitimate state objective.
Prison visitors are not a "suspect class" for purposes of the 14th Amendment,
and a distinction between the needs of people who are employed within prisons
and temporary visitors is obviously not an invidious, irrational, or arbitrary
one.
The tobacco ban achieves legitimate penological interests - including protecting
the health of offenders and the cleanliness of indoor surfaces. Given the
legitimate and constitutional constraints of §494.010, the ban has been
implemented in a sound and rational manner.
The amendment is adopted under Texas Government Code, §492.013,
which grants the Texas Board of Criminal Justice general rulemaking authority,
and Texas Government Code, §493.006(b) and §494.010.
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 24, 2000.
TRD-200000433
Carl Reynolds
General Counsel
Texas Department of Criminal Justice
Effective date: February 13, 2000
Proposal publication date: December 3, 1999
For further information, please call: (512) 463-9693
Chapter 343.
STANDARDS FOR JUVENILE PRE-ADJUDICATION SECURE DETENTION FACILITIES
37 TAC §343.20
The Texas Juvenile Probation Commission repeals the §343.20
in an effort to clarify agency policy relating to detention facility overcrowding.
The repeal is adopted without changes to the proposed text as published in
the August 6, 1999 issue of the
Texas Register
(24 TexReg 6010).
By the repeal of §343.20, the Texas Juvenile Probation Commission
deletes an obsolete and unused standard that is no longer necessary regarding
detention overcrowding policies.
No public comments were received.
This repeal is adopted under §141.042 of the Texas Human
Resource Code, which provides the Texas Juvenile Probation Commission with
the authority to adopt reasonable rules which provide minimum standards for
juvenile boards.
No other code or article is affected by the repeal of this standards as
adopted.
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 14, 2000.
TRD-200000309
Lisa Capers
Deputy Executive Director and General Counsel
Texas Juvenile Probation Commission
Effective date: February 3, 2000
Proposal publication date: August 6, 1999
For further information, please call: (512) 424-6710
The Texas Juvenile Probation Commission adopts the proposed new Chapter
352, Subchapter A, §§352.101 through 352.106 relating to data collection
and reporting using the CASEWORKER system and Subchapter B, §§352.201
through §352.206 relating to data collection and reporting using non-CASEWORKER
systems. The proposed new standards are adopted without changes to the proposed
text as published in the July 16, 1999 issue of the
Texas Register
(24 TexReg 5460) and (24 TexReg 5461) and will not be
republished.
TJPC adopts these rules in an effort to establish a uniform data collection
process between local and state juvenile probation entities.
The new standards will function primarily, but not exclusively, by defining
and tracking key data elements to measure the effectiveness of probation services
provided by local probation departments and define minimum expectation of
local data management operations by the Texas Juvenile Probation Commission.
No public comments were received.
Subchapter A. CASEWORKER SYSTEMS
Part 11.
TEXAS JUVENILE PROBATION COMMISSION
Chapter 352.
DATA COLLECTION AND REPORTING