PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY
SUBCHAPTER I. SECURE ELECTRONIC MAIL, ELECTRONIC TRANSMISSIONS AND FACSIMILE TRANSMISSIONS
The Texas Department of Public Safety adopts new §27.111, concerning Secure Electronic Mail, Electronic Transmissions and Facsimile Transmissions, without changes to the proposed text as published in the November 7, 2008, issue of the Texas Register (33 TexReg 9068).
Adoption of new §27.111 is necessary in order to implement provisions of Texas Government Code, Chapter 411, directing the Texas Department of Public Safety in consultation with the Office of Court Administration of the Texas Judicial System to adopt rules regarding minimum standards for the security of secure electronic mail, electronic transmissions and facsimile transmissions.
No comments were received regarding adoption of the new section.
The new section is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; and Texas Government Code, §411.081(g-1a).
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 22, 2009.
TRD-200900275
Stanley E. Clark
Director
Texas Department of Public Safety
Effective date: February 11, 2009
Proposal publication date: November 7, 2008
For further information, please call: (512) 424-2135
The Texas Department of Public Safety adopts new §27.121, concerning Sexual Assault Reporting, with changes to the proposed text as published in the November 7, 2008, issue of the Texas Register (33 TexReg 9069).
Adoption of new §27.121 is necessary in order to implement provisions of Texas Government Code, §411.042, directing the Texas Department of Public Safety, in consultation with statewide, nonprofit sexual assault programs, to establish rules and procedures to ensure law enforcement agencies report sexual assault offenses in the proper form and manner and at regular intervals.
No comments were received regarding adoption of the new section.
The new section is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; and Texas Government Code, §411.042(i).
§27.121.Sexual Assault Reporting.
(a) Section 411.042, Texas Government Code, mandates that a law enforcement agency shall report offenses under §22.011 and §22.021, Penal Code, to the Texas Department of Public Safety. The Department shall create a statistical breakdown of these offenses.
(b) Information collected by the local law enforcement agency must include information indicating the specific offense committed and information regarding:
(1) the victim;
(2) the offender’s age, sex, race, and ethnic origin;
(3) the offender’s relationship to the victim;
(4) the number of victims and the number of offenders;
(5) any weapons used or exhibited in the commission of the offense;
(6) any injuries sustained by the victim;
(7) the location of the offense;
(8) the incident date and time.
(c) For purposes of this report, the following Texas Penal Code offense classifications will be collected:
(1) §21.02--Continuous sexual abuse of young child or children;
(2) §21.11(a)(1)--Indecency with a child by contact;
(3) §21.11(a)(2)--Indecency with a child by exposure;
(4) §22.011--Sexual Assault;
(5) §22.021--Aggravated sexual assault;
(6) §43.25--Sexual performance by a child.
(d) Reports should be forwarded to the Department on a monthly basis using the method and form approved by the Department Uniform Crime Reporting.
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 22, 2009.
TRD-200900276
Stanley E. Clark
Director
Texas Department of Public Safety
Effective date: February 11, 2009
Proposal publication date: November 7, 2008
For further information, please call: (512) 424-2135
CHAPTER 81. INTERACTION WITH THE PUBLIC
The Texas Youth Commission adopts new §81.81, concerning Background Checks, with changes to the proposed text as published in the July 25, 2008, issue of the Texas Register (33 TexReg 5895). Changes consist of a clarification in subsection (d)(2)(E), that a background check waiver may be granted for a government employee other than a TYC employee when the person is providing services in his/her official capacity.
The justification for the new rule is compliance with legislation enacted by the 80th Texas Legislature, as well as increased protection of TYC youth and youth records resulting from a more comprehensive system of background checks for any person having contact with youth or access to youth records.
The new rule will require initial and annual background checks for employees, volunteers, contractors, advocates, ombudsmen, and certain other persons who deliver services to TYC youth or have access to youth records.
The commission received a comment from Advocacy, Incorporated regarding the proposed rule.
Comment: Since Advocacy Inc. has signed into an access agreement with TYC that streamlines its access to TYC facilities, residents, staff, and records, the language in the access agreement should be added into the rule in order to reflect Advocacy Inc.'s unique federal authority.
Response: Nothing in this proposed rule denies or limits the rights, powers, and responsibilities of the protection and advocacy system established under 42 USCS §10803. Language specifically exempting or applying portions of the rule to a federally authorized protection and advocacy organization is not necessary. No changes were made to the proposed rule as a result of the comment.
The new rule is adopted under Human Resources Code §61.0357, which requires the commission to conduct national and state criminal history checks and review the employment history for certain persons who work in commission facilities or work with youth or youth records.
§81.81.Background Checks.
(a) Policy. The Texas Youth Commission (TYC) reviews criminal histories and employment references for certain persons as required under §61.0357, Texas Human Resources Code.
(b) Applicability. This rule does not apply to:
(1) youth access to a personal attorney, minister, pastor, or religious counselor under §93.11 or §93.17 of this title (relating to Access to Attorneys and Courts and Access to Personal Minister, Pastor, or Religious Counselor);
(2) youth access to visitors under §93.12 of this title (relating to Visitation); or
(3) special event visitors, as defined in this rule.
(c) Definitions. The following terms, as used in this rule, have the following meanings unless the context clearly indicates otherwise:
(1) Advocate--means a person who is employed by or otherwise officially associated with an organization registered with TYC as an advocacy or support group under §81.83 of this title (relating to Advocacy and Support Group Access).
(2) Background Check--consists, at a minimum, of the following:
(A) Criminal History Check--includes national and state criminal history information maintained by the Department of Public Safety; and
(B) Employment Reference Check--includes references from previous and current employers.
(3) Contractor--means a person who is under contract with TYC individually or is an employee or subcontractor of an organization under contract with TYC.
(4) Covered Person--means:
(A) an employee, volunteer, ombudsman, advocate, or contractor, as defined in this rule;
(B) any person not described in paragraph (4)(A) of this subsection who provides direct delivery of services to youth whose current assignment is to a residential placement operated by or under contract with TYC when those services are provided at the request of TYC;
(C)any person not described in paragraph (4)(A) of this subsection who is authorized to have unsupervised access to records of identifiable TYC youth; or
(D) any person who is an applicant for a position described in paragraphs (4)(A) - (C) of this subsection.
(5) Employee--means a person who is employed by TYC.
(6) Ombudsman--means a person who is employed by the Office of Independent Ombudsman of the Texas Youth Commission.
(7) Special Event Visitor--means a person who:
(A) is invited by TYC to participate in a special event for the benefit of youth;
(B) does not participate in more than four special events in any 12-month period;
(C) does not provide direct delivery of services to youth;
(D) does not have access to youth records; and
(E) does not meet the definition of advocate, contractor, employee, or ombudsman.
(8) Volunteer--means a person who is registered in a position that renders services for or on behalf of TYC that does not receive compensation in excess of reimbursement for expenses incurred. For purposes of this rule, "volunteer" does not include special event visitors.
(d) General Provisions.
(1) Except as described in paragraph (2) of this subsection, TYC's chief executive officer or his/her designee will:
(A) conduct a background check on each covered person prior to granting the person access to any residential facility operated by or under contract with TYC, youth, or youth records; and
(B) conduct a criminal history check on each covered person at least once per year thereafter.
(2) The TYC chief executive officer or designee may elect to waive the background check:
(A) for a contractor when physical or procedural barriers are in place to prevent the contractor from having contact with or access to TYC youth and the scope of services to be performed does not involve access to youth records;
(B) for a contractor who has an independent legal obligation to protect the confidentiality of youth records and the scope of services to be performed does not involve access to youth;
(C) for a covered person who provides direct delivery of off-site services to youth assigned to residential placements when the person is required to submit to a background check as a condition of professional licensure or employment (e.g., health care specialist referrals); or
(D) for a covered person providing necessary services in an emergency situation when no appropriately screened service providers offering the same or similar service are immediately available and a delay in providing the service would risk significant harm to a youth (e.g., emergency room visits or rape crisis counseling); or
(E) for a covered person, other than a TYC employee, providing services in his/her official capacity as an employee of a federal, state, or local governmental entity.
(3) TYC does not assess a fee in connection with the administrative costs incurred in conducting a background check as described in this rule.
(4) As part of the initial national criminal history background check, a covered person must electronically provide a complete set of fingerprints to TYC.
(5) A covered person must provide employment history information in a form and manner determined by TYC.
(6) All criminal history information obtained from the National Crime Information Center (NCIC) or any other state crime information database is confidential and not releasable.
(e) Standards for Evaluating Background Information.
(1) Background check results for covered persons will be evaluated according to standards established in TYC's policies addressing eligibility for employment or assignment in effect at the time the background check is conducted.
(2) When a background check reveals a criminal or employment history that is deemed unacceptable for the position or service to be performed by an employee or volunteer, TYC will deny or terminate employment or enrollment.
(3) When a background check reveals a criminal or employment history that is deemed unacceptable for the position or service to be performed by a contractor, advocate, or ombudsman, TYC will deny the person access to youth, youth information, TYC facilities, or any or all of the preceding. TYC will provide written notice to a contractor, advocate, or ombudsman whose access is denied.
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, 2009.
TRD-200900286
Cheryln K. Townsend
Executive Commissioner
Texas Youth Commission
Effective date: February 15, 2009
Proposal publication date: July 25, 2008
For further information, please call: (512) 424-6014
The Texas Youth Commission adopts new §81.83, concerning Advocacy and Support Group Access, without changes to the proposed text as published in the July 25, 2008, issue of the Texas Register (33 TexReg 5896).
The justification for the new rule is increasing youth access to beneficial services provided by community partners. The new rule will establish a system for registering advocacy and support group members and organizations who wish to provide on-site information, support, or other services to youth confined in commission facilities.
The commission received a comment from Advocacy, Incorporated regarding the proposed rule.
Comment: Since Advocacy Inc. has signed into an access agreement with TYC that streamlines its access to TYC facilities, residents, staff, and records, the language in the access agreement should be added into the rule in order to reflect Advocacy Inc.'s unique federal authority.
Response: Nothing in this proposed rule denies or limits the rights, powers, and responsibilities of the protection and advocacy system established under 42 USCS §10803. Language specifically exempting or applying portions of the rule to a federally authorized protection and advocacy organization is not necessary. No changes were made to the proposed rule as a result of the comment.
The new rule is adopted under Human Resources Code §61.0386, which provides the commission with the authority to adopt security and privacy procedures for groups that provide on-site information, support, and other services to youth confined in commission facilities.
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, 2009.
TRD-200900287
Cheryln K. Townsend
Executive Commissioner
Texas Youth Commission
Effective date: February 15, 2009
Proposal publication date: July 25, 2008
For further information, please call: (512) 424-6014