Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 3. TEXAS YOUTH COMMISSION

CHAPTER 85. ADMISSION, PLACEMENT, AND PROGRAM COMPLETION

The Texas Youth Commission (TYC) proposes the repeal of §85.1 (concerning legal requirements for admission), §85.21 (concerning program assignment system), §85.23 (concerning classification), §85.41 (concerning maximum length of stay), §85.45 (concerning movement without program completion), §85.55 (concerning program completion for other than sentenced offenders), §85.59 (concerning program completion for sentenced offenders under age 19), §85.61 (concerning program completion for sentenced offenders age 19 or older), §85.65 (concerning discharge of sentenced offenders upon transfer to TDCJ or expiration of sentence), §85.69 (concerning program completion for sentenced offenders adjudicated for capital murder), and §85.95 (concerning parole completion and discharge).

The repeal of §85.1 will allow for a new section to be published with this number. The new section will establish definitions used throughout Chapter 85, and is proposed in this issue of the Texas Register.

The repeal of §85.21 will allow for a significantly revised rule to be published in its place. The revised rule is proposed as a new rule in this issue of the Texas Register.

The repeal of §85.23 will allow for new rules to establish TYC's new processes for classifying youth. Currently, §85.23 classifies youth according to only one factor--the youth's most serious adjudicated offense. This rule will be replaced by §85.24 and §85.25, which are also proposed in this issue of the Texas Register. These rules will establish a classification system that takes into account many additional factors, such as a risk assessment instrument that addresses risk to re-offend, youth age, size, gang affiliation, treatment needs, and other factors when determining appropriate minimum lengths of stay and housing assignments.

The repeal of §85.41 will reflect reforms enacted by Senate Bill (SB) 103, 80th Texas Legislature. This legislation created a Release Review Panel as the only means by which a youth's length of stay may be extended. This panel serves to ensure that youth are not inappropriately extended beyond their initially assigned minimum length of stay. The need for §85.41 no longer exists, as the purpose for this rule is now served by the statutorily created Review Panel, and several components that serve as the basis for determinations made under §85.41 (such as Resocialization Program phase assignments, possible disciplinary extensions of the minimum length of stay, and completion of the general treatment program as a requirement to qualify for release) are no longer used within TYC.

The repeal of §§85.45, 85.55, 85.59, 85.61, 85.65, 85.69, and 85.95 will allow for significantly revised rules to be published in their place. The revised rules are proposed as new rules in this issue of the Texas Register.

Robin McKeever, Director of Administrative Services, has determined that for the first five-year period the repeals are in effect there are no anticipated significant fiscal implications for state or local government as a result of enforcing or administering the repeals.

Toysha Martin, General Counsel, has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be the availability of accurate and up-to-date information concerning TYC programming and operations.

There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. No private real property rights are affected by adoption of this repeal.

Comments on the proposal may be submitted within 30 days of the publication of this notice to Steve Roman, Policy Coordinator, Texas Youth Commission, P.O. Box 4260, Austin, Texas 78765, or email to steve.roman@tyc.state.tx.us.

SUBCHAPTER A. COMMITMENT AND RECEPTION

37 TAC §85.1

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Youth Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeal implements Human Resources Code §61.034.

§85.1.Legal Requirements for Admission.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901660

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. PLACEMENT PLANNING

37 TAC §85.21, §85.23

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Youth Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§85.21.Program Assignment System.

§85.23.Classification.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901661

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER C. MOVEMENT WITHOUT PROGRAM COMPLETION

37 TAC §85.41, §85.45

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§85.41.Maximum Length of Stay.

§85.45.Movement Without Program Completion.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901662

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER D. PROGRAM COMPLETION

37 TAC §§85.55, 85.59, 85.61, 85.65, 85.69

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§85.55.Program Completion for Other Than Sentenced Offenders.

§85.59.Program Completion for Sentenced Offenders Under Age 19.

§85.61.Program Completion for Sentenced Offenders Age 19 or Older.

§85.65.Discharge of Sentenced Offenders Upon Transfer to TDCJ or Expiration of Sentence.

§85.69.Program Completion for Sentenced Offenders Adjudicated for Capital Murder.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901663

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER E. PAROLE PLACEMENT AND DISCHARGE

37 TAC §85.95

The repeal is proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed rule implements Human Resources Code §61.034.

§85.95.Parole Completion and Discharge.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901664

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 85. ADMISSION, PLACEMENT, RELEASE, AND DISCHARGE

The Texas Youth Commission (TYC or commission) proposes amendments to §85.3 (concerning admission process), §85.5 (concerning assessment/evaluation), and §85.25 (concerning minimum length of stay/minimum period of confinement). TYC also proposes new §85.1 (concerning definitions), §85.2 (concerning legal requirements for admission), §85.21 (concerning placement assignment system), §85.24 (assessment for safe housing placement), §85.45 (concerning movement prior to program completion), §85.55 (concerning program completion for non-sentenced offenders), §85.59 (concerning program completion for sentenced offenders), §85.65 (concerning discharge of sentenced offenders upon transfer to TDCJ or expiration of sentence), §85.69 (concerning transfer of sentenced offenders adjudicated for capital murder), and §85.95 (concerning parole completion and discharge).

New §85.1 will establish definitions for terms commonly used throughout Chapter 85.

New §85.2 will republish the current text of §85.1 with a new section number.

The amended §85.3 will clarify that the requirement for youth to provide a blood sample for the Department of Public Safety DNA database as part of the routine admission process now applies to all youth committed to TYC. Texas Government Code §411.148 requires TYC to collect DNA from any youth committed for a felony level offense, and Senate Bill 103, enacted by the 80th Texas Legislature, allows only youth who have been adjudicated for felony-level offenses to be committed to TYC. References to locations where TYC no longer operates correctional facilities have also been removed from the text of the rule.

The amended §85.5 will refer to several additional assessments to be conducted during the admission process. Specifically, the amended rule will require that prior to assigning a youth to a room at the intake unit, staff must conduct a safe housing assessment, a suicide risk screening, and a screening for vulnerability to sexual victimization or aggression. The amended rule will also require, pursuant to Senate Bill 103, that TYC conduct a comprehensive psychological evaluation for all youth upon admission, and a comprehensive psychiatric evaluation for all youth assigned a minimum length of stay of 12 months or longer.

New §85.21 will establish TYC's process for determining the most appropriate residential facility for individual youth placements. The new rule describes in much greater detail than the existing rule how gender, treatment needs, risk assessment, and proximity to home, are used in making placement determinations. This new rule will replace §85.21 that is currently in effect and is proposed for repeal in this issue of the Texas Register.

New §85.24 will establish a system for ensuring that youth are assessed and assigned to the safest possible housing assignment within the youth's current placement. Evidence-based criminogenic factors, physical stature, likelihood of sexual vulnerability or aggression, medical needs, suicide risk, and other individual factors are assessed upon initial admission and periodically throughout a youth's stay in residential facilities. Housing assignments will be made and changed based on the results.

The amended §85.25 will no longer include a definitions section. The definitions will instead be included in new §85.1.

New §85.45 will establish the eligibility criteria for youth to transition to a facility of lesser restriction, eligibility criteria and placement factors for youth to be released due to an overpopulation condition, and addresses other types of release or transfer that may occur prior to completion of a youth's minimum length of stay. This new rule will replace §85.45 that is currently in effect and is proposed for repeal in this issue of the Texas Register.

New §85.55 will establish the eligibility criteria for non-sentenced offenders to qualify for release from a residential facility and placement on parole. Youth who do not qualify for this type of earned release may still be released to parole if the Release Review Panel determines that the youth is not in need of further rehabilitation in a TYC residential placement. This new rule will replace §85.55 that is currently in effect and is proposed for repeal in this issue of the Texas Register.

New §85.59 will establish the eligibility criteria for sentenced offenders to qualify for release from a residential facility and placement on parole. This new rule will replace §85.59 and §85.61 that are currently in effect and are proposed for repeal in this issue of the Texas Register.

New §85.65 will establish the criteria and process for requesting court approval to transfer sentenced offenders to adult prison, and for discharging sentenced offenders whose sentences have expired, or who have not qualified for release or transfer based on completing required programming. This new rule will replace §85.65 that is currently in effect and is proposed for repeal in this issue of the Texas Register.

New §85.69 will establish the criteria and process for transferring sentenced offenders adjudicated for capital murder to the Parole Division or Institutional Division of the Texas Department of Criminal Justice. This new rule will replace §85.69 that is currently in effect and is proposed for repeal in this issue of the Texas Register.

New §85.95 will establish the criteria for discharging non-sentenced offenders from the legal custody of TYC.

Robin McKeever, Director of Administrative Services, has determined that for the first five-year period the sections are in effect there are no anticipated significant fiscal implications for state or local government as a result of enforcing or administering the sections.

Toysha Martin, General Counsel, has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the operation of a more evidence-based system for assessing, placing, and releasing youth, compliance with recently enacted legislation, as well as the availability of accurate and up-to-date information concerning TYC programming and operations.

There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. No private real property rights are affected by adoption of these rules.

SUBCHAPTER A. DEFINITIONS; COMMITMENT AND RECEPTION

37 TAC §85.1

The new rule is proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed rule implements Human Resources Code §61.034.

§85.1.Definitions.

The following words and terms, as used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) Administrative Transfer--a lateral movement, i.e., a movement from one program to another program within the same restriction level for an administrative purpose. Purposes may include but are not limited to proximity to a youth's home, specific treatment needed becomes available, appropriateness of placement due to education needs, age, etc.

(2) Assessment Rating Level--a score derived from evidence-based criminogenic factors in a youth's history used to assess the danger a youth poses to the community.

(3) Committing Offense--the offense on which the initial minimum length of stay assessment is based. It is the most serious of the relevant offenses found at the youth's commitment proceeding and any probated offense(s) modified by the commitment order. If a committing offense is a violation of a federal statute, the offense will be treated as a violation of a state statute which prohibits the same conduct as the relevant federal offense.

(4) Community Re-Integration Plan--a workbook-style document which a youth revises over the course of his/her rehabilitation program based on feedback from the case manager, group, family members and multi-disciplinary team. The document demonstrates the youth's understanding of his/her risk and protective factors, development of skills, abilities, and knowledge to reduce risk factors and increase protective factors, identification of goals and a plan of action to achieve goals, and identification of obstacles that may hinder successful community re-entry and plans to deal with those obstacles.

(5) Consistent Demonstration of Learned Skills--a youth has achieved a weekly performance status rating of higher than neutral, as described in §95.2 of this title, for at least three of the four weeks prior to the youth's most recent multi-disciplinary team stage assessment.

(6) Consistent Participation in Skills Development Groups--that in the month prior to the youth's most recent multi-disciplinary team stage assessment, the youth:

(A) has no unexcused absences from scheduled groups sessions and actively and appropriately participates; and

(B) with few exceptions, completes required homework or assignments for the group lesson.

(7) Classification--an ongoing process of determining a youth's treatment and placement needs, taking into consideration the following factors: age, committing offense, gang affiliation, delinquent history, treatment needs, proximity to home, risk of violence, and vulnerability to assault.

(8) Discharge--a decision that ends Texas Youth Commission (TYC) jurisdiction over a youth.

(9) Exit Review/Interview--a process by which the Special Service Committee (SSC) for high restriction, the superintendent for medium restriction or the quality assurance supervisor for contract care programs, determines whether the youth meets program completion criteria and whether the transition/release individual case plan adequately addresses the youth's identified risk factors for re-offending. The SSC is required to conduct a face-to-face interview with sentenced offenders and youth with a committing offense of high severity, along with review and approval of the release packet.

(10) High Restriction and Medium Restriction--see definitions in §85.27 of this title.

(11) Home Placement--a placement in the home of the parent, other relative or individual acting in the role of parent, managing conservator, or guardian, or an independent living arrangement (excluding contract independent living programs), for youth who have earned parole status.

(12) Home Substitute Placement--a program placement in the community that is not high restriction for youth who have earned parole status.

(13) Indicator--tasks that clarify and show evidence of completing the stage objective. These tasks are completed by the youth and involve discussion with the youth's case manager, group, multi-disciplinary team, and/or family/adult mentor. In order to complete an objective, all indicators must be completed.

(14) Initial Placement--a placement to which youth are assigned following a period of assessment at a TYC intake unit upon being committed to TYC.

(15) Minimum Length of Stay--the predetermined minimum period of time established by TYC that a youth will be assigned to live in a high or medium restriction placement.

(16) Minimum Period of Confinement--the predetermined minimum period of time established by law that a youth committed to TYC on a determinate sentence must remain confined in a high restriction placement.

(17) Most Serious Relevant Offense--the offense that carries the most severe consequences which are, from most to least severe:

(A) an offense which carries a determinate sentence;

(B) the offense for which the designated minimum length of stay will produce the longest time in the physical custody of TYC;

(D) the offense which carries the most severe criminal penalty; and

(E) the most recently adjudicated offense.

(18) Multi-Disciplinary Team (MDT)--a group of staff in TYC-operated residential facilities who are responsible for partnering with the youth to facilitate his/her progress in the rehabilitation program. In high restriction facilities, the MDT consists of, at a minimum, the youth's assigned educator, the youth's case manager, and a juvenile correctional officer IV, V, or VI familiar with the youth. In medium restriction facilities, the MDT consists of, at a minimum, an administrator, the youth's case manager, and a juvenile correctional officer. The youth's family, along with other relevant staff members (psychologists, program specialists, principal, medical staff, etc.) involved in the youth's treatment and rehabilitation are encouraged to attend and participate in MDT meetings.

(19) Non-Sentenced Offender--a youth who is committed to TYC and is not a sentenced offender, as defined in this rule. Non-sentenced offenders are committed to TYC for an indeterminate period of time, not to exceed age 19 (or age 21 for youth committed prior to June 9, 2007).

(20) Objective--the most important concepts or skills necessary to earn a stage and progress in the rehabilitation program. Each objective has one or more indicators of completion.

(21) Offense Severity--a rating of high, moderate, or low based on the degree of the committing or revocation offense as defined by the Texas Penal Code or relevant federal statute and any of the following applicable aggravating factors:

(A) sex offense as identified in §62.001 of the Texas Code of Criminal Procedure;

(B) felony against a person;

(22) Parole status--a status assigned to a youth when program completion criteria have been met which qualifies the youth for placement in the home or home substitute and ensures that the youth shall not be moved to a high restriction placement without the highest level of due process afforded to TYC youth.

(23) Positive Behavior Change System--the system designed to reinforce positive behavior and provide tools for accountability for negative behavior to help youth accept personal responsibility for their choices. The system ensures that youth receive ongoing behavioral interventions from staff, when necessary, and rewards for positive participation in the daily program.

(24) Program Completion--occurs when a youth has met specific requirements established by rule in order to earn release from a residential program.

(25) Release Under Supervision--also referred to as "release", when the youth remains under the jurisdiction of TYC and is subject to the conditions of parole supervision.

(26) Revocation Offense--the offense on which a youth's minimum length of stay is based following a parole revocation hearing. It is the most serious of the relevant offenses found at a parole revocation hearing.

(27) Risk and Protective Factors--risk factors are aspects of a youth's environment, behavior, and mental processes which contribute to potential of further delinquent activity. Protective factors are positive aspects of individual youth situations which keep a youth away from delinquent activity. These factors are used as the foundation to design individual rehabilitation plans so that youth can learn to reduce their risk factors and increase their protective factors.

(28) Sentenced Offender--a youth committed to TYC pursuant to Family Code §54.04(d)(3) or §54.05(f) with a fixed sentence assigned by the committing court. Depending on the length of the sentence, a youth may be transferred to the Texas Department of Criminal Justice (TDCJ) to complete the sentence.

(29) Special Services Committee (SSC)--the SSC is a standing committee that reviews youth progress toward program completion requirements and readiness for release into the community. The SSC consists of at least five (5) members and must include, at a minimum:

(A) manager of institution clinical services, chairperson;

(B) program specialist (up to three); and

(30) Stage--measure of progress through TYC's rehabilitation program. The youth's stage assignment reflects the stage objectives he/she is currently working on.

(31) Transfer--a movement of a sentenced offender to the Texas Department of Criminal Justice-Institutional Division or Texas Department of Criminal Justice-Parole Division.

(32) Transition--a movement from one program site to another for purposes of facilitating the youth's adjustment to the community when youth have met the required transition criteria. Transition is always to placement of equal or less restriction than that of the current placement.

(33) Transition/Release Plan--consists of a transition/release individual case plan for youth who are moving from one program to another or from one facility to a different facility. The transition/release individual case plan identifies risk factors and protective factors that enable youth and staff to develop plans to minimize risk and take advantage of protective factors.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901665

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

37 TAC §§85.2, 85.3, 85.5

The new rule and amendments are proposed under: (1) Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions; (2) Texas Government Code §411.148, which requires a juvenile who is, after an adjudication for conduct constituting a felony, confined in a facility operated by or under contract with the Texas Youth Commission to provide one or more DNA samples for the purpose of creating a DNA record; and (3) Human Resources Code §61.071, which requires the commission to examine and make a study of each child committed to it as soon as possible after commitment.

The proposed new rule and amendments implement Human Resources Code §61.034.

§85.2.Legal Requirements for Admission.

(a) The purpose of this rule is to establish documentation required and requested by the Texas Youth Commission (TYC) from each juvenile court committing youth to TYC.

(b) Each youth committed to TYC must be accompanied by legal and supporting documents supplied by the committing court.

(1) certified copy of the Order of Commitment;

(2) immunization records;

(3) Common Application, including the computerized referral and case history for the youth documenting case disposition, contact information for the youth's parents or guardians, the name, address, and telephone number of the court administrator in the committing county, and Title IV-E eligibility screening information;

(4) detention order(s) (initial and subsequent) for offense(s) which resulted in commitment to TYC;

(5) for sentenced offenders, the amount of time spent in detention in connection with the offense for which the youth was sentenced. It is preferable for the detention information to be included in the Order of Commitment;

(6) petition, adjudication, and disposition orders for the youth, including the youth's thumbprint;

(7) if the commitment is the result of revocation of probation, a copy of the conditions of probation and the revocation order;

(8) any law enforcement incident reports concerning the offense for which the youth is committed;

(9) any sex offender registration documentation and information;

(10) birth certificate for all youth;

(11) social security number or social security card, if available;

(12) social history;

(13) education records, including any special education records;

(14) medical and dental records;

(15) any existing psychological and psychiatric reports;

(16) pretrial detention time creditable to the youth's sentence;

(17) progressive sanctions deviation worksheet if assigned progressive sanctions level does not equal the progressive sanctions guideline level; and

(18) when available, the Victim Impact Statement and/or Victim Information form.

(d) The TYC intake staff shall review the commitment order to determine if, on its face, it meets all requirements of a valid court order before TYC admits the youth. TYC will not look beyond the document itself for determining validity.

(e) No youth, under any circumstance, shall be admitted to TYC without a certified copy of the Order of Commitment, immunization records (except for undocumented aliens), and the Common Application. All other documents may be received subsequent to admission.

(f) No youth shall be accepted to custody of TYC until TYC staff issues a written receipt to the entity delivering the youth at the designated place of intake accompanied by the required legal documents.

§85.3.Admission Process.

(a) Purpose. The purpose of this rule is to establish the process through which [~~location and protocol whereby~~] youth committed to the Texas Youth Commission (TYC) are received into the custody of the agency.

(b) Intake activities, including receipt of the youth from the committing county, shall be performed by the TYC diagnostic intake units [~~unit, Marlin Orientation and Assessment Unit located at Marlin, Texas~~].

(c) The intake units receive [~~Marlin Orientation and Assessment Unit in Marlin, Texas, receives~~] youth committed to TYC between 8 a.m. and 8 p.m., Monday through Friday.

(d) Youth are not allowed to have personal possessions while at the intake [~~assessment~~] unit. Personal items are inventoried and returned to the county transporter. The transporter and youth are asked to sign an inventory/receipt for property items returned to the transporter's care. Items a youth may be allowed to keep are inventoried and a copy is given to the youth.

(e) Parents are notified:

(1) - (2) (No change.)

(3) that contraband money as defined in §91.7 of this title [~~(relating to Youth Personal Property)~~] found in possession of a TYC youth in a residential program will be deposited in the student benefit fund;

(4) - (6) (No change.)

(f) Orientation to the admissions process and the TYC system is provided and documented as required in §91.15 of this title [~~(relating to Youth Orientation)~~].

(g) Routine admission procedures include, but are not limited to the following:

(1) - (9) (No change.)

(10) Each [A] youth is required to provide a blood sample for the DPS DNA database. [~~if the youth:~~]

~~[(A) has a felony conviction or adjudication or any offense for which the youth must register as a sex offender; or]~~

~~[(B) is ordered by the juvenile court to provide a sample.]~~

(h) - (j) (No change.)

§85.5.Assessment and Evaluation [~~Assessment/Evaluation~~].

(a) Purpose. The purpose of this rule is to establish the assessment process of each youth initially admitted to the Texas Youth Commission (TYC). The assessment process includes summarizing admission information, conducting diagnostic evaluations, identifying treatment needs [~~classification~~], [~~and~~ ] developing an initial placement category recommendation, and long-term planning for the youth [~~by the classification unit~~].

(b) The assessment and evaluation [~~youth classification~~] process is designed to [~~will~~] be completed within 21 days [~~two weeks~~ ] of receipt of the youth at the intake unit [ ~~Marlin Orientation and Assessment Unit~~].

(1) conduct a medical and suicide screening;

(2) conduct a screening for risk to display sexually aggressive or assaultive behavior or to be sexually victimized; and

(3) conduct a safe housing assessment in accordance with §85.24 of this title.

(d) [~~(c)~~] Intake staff at the appropriate diagnostic unit conduct [~~conducts the following~~] routine evaluations, including but not limited to:

(1) completion of the Common Application [~~(CCF-002)~~];

(2) social summary;

(3) risk/needs assessment;

(4) religious preference assessment;

(5) recreation interest;

(6) comprehensive psychological evaluation, including review of prior treatment [~~(if one has not been completed within the last year). Residential treatment centers require an updated clinical interview for current status within six months prior to placement~~];

(7) [~~physical and~~] dental examination [ ~~examinations~~];

(8) medical examination, including review of history and prior treatment;

(9) [~~(8)~~] educational assessment;

(10) [~~(9)~~] substance abuse screening and assessment;

(11) [~~(10)~~] career interests and experience;

(12) [~~(11)~~] comprehensive psychiatric evaluation [~~interview~~] of youth, including review of prior treatment, when:

(A) a youth has been identified during admission as being currently prescribed psychotropic medication; [or]

(B) a youth's psychological evaluation shows the need for a psychiatric referral; or

~~[(B) a youth has been prescribed psychotropic medication within the past six (6) months; and]~~

(13) [~~(12)~~] assessment of behavior while at the facility.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901666

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. PLACEMENT PLANNING

37 TAC §§85.21, 85.24, 85.25

The new rules and amendment are proposed under: (1) Human Resources Code §61.061, which requires the commission to consider the proximity of the residence of a child's family in determining the appropriate commission facility in which to place a child; (2) Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public; (3) Human Resources Code §61.061, which requires the commission not to assign a child younger than 15 years of age to the same correctional facility dormitory as a person who is at least 17 years of age unless the commission determines that the placement is necessary to ensure the safety of children, and requires the commission to adopt scheduling, housing, and placement procedures for the purpose of protecting vulnerable children; and (4) Human Resources Code §61.062, which requires the commission to establish a minimum length of stay for each youth committed to the commission without a determinate sentence that considers the nature and seriousness of the conduct engaged in by the child, and the danger the child poses to the community.

The proposed new rules and amendment implement Human Resources Code §61.034.

§85.21.Placement Assignment System.

(a) Purpose. The purpose of this rule is to establish an objective system of assigning youth to the most appropriate placement considering the Texas Youth Commission's responsibilities to provide for public protection and promotion of rehabilitation.

(b) General Provisions.

(1) This rule applies to placement decisions made upon:

(A) release from an intake unit on initial commitment to TYC; and

(B) return to a residential facility from a parole placement.

(2) Youth may be assigned to subsequent residential placements based on changing treatment needs, progress in rehabilitation programming, safety issues, or overpopulation concerns. For more information on transfers between facilities and transitions to less restrictive placements, see §85.45 of this title.

(3) Placements described in this rule will be to a facility of high or medium restriction. For more information on facility restriction levels, see §85.27 of this title.

(c) Placement System Factors. Placement decisions will be based on factors including but not limited to those listed in paragraphs (1) - (4) of this subsection, with each factor given priority in the order listed.

(1) Gender--Facilities are authorized to house males only, females only, and in certain facilities which provide specialized treatment services, both genders. Absent a specialized treatment need which can only be met at a co-educational facility, youth will be assigned to male-only or female-only placements. Youth in coeducational facilities have equal access to agency programs and activities.

(2) Treatment Needs--Of the placements available for the youth's gender, youth will be assigned to the placement that is best suited to meet the youth's individual treatment needs. Youth with the highest need for any of the following specialized treatment services will be assigned to a placement that provides those services: mental health, mental retardation, sexual behavior, capital/violent offender, or chemical dependency. Whenever possible, youth with co-occurring specialized treatment needs will be assigned to placements providing each indicated type of treatment. See §87.51 of this title for more information on the assessment of specialized treatment needs. Age and medical restrictions will also be considered in determining an appropriate placement assignment.

(3) Risk Assessment--Of the placements available for the youth's gender and treatment needs, youth are assigned to a high or medium restriction facility based on a risk assessment. The youth's risk to re-offend is evaluated based on offense history, age at first referral to juvenile court, and other criminogenic factors. The assessment of risk to re-offend is combined with information about past facility escapes and behavior while at the intake unit or on parole and used to determine the required facility restriction level.

(A) Placement upon Initial Commitment to TYC.

(i) Non-sentenced offenders with a committing offense of high or moderate severity and all sentenced offenders will initially be assigned to a program of high restriction.

(ii) Non-sentenced offenders with a committing offense of low severity will initially be assigned to a program of either high or medium restriction, depending on the results of the risk assessment and other factors identified in this rule.

(B) Placement upon Disciplinary Transfer from Parole to a Residential Facility.

(i) Following a Level I due process hearing held in accordance with §95.51 of this title, non-sentenced offenders found to have engaged in felony-level conduct while on parole and all sentenced offenders will be assigned to a program of high restriction.

(ii) Following a Level I due process hearing, non-sentenced offenders found to have engaged in misdemeanor-level conduct or violated conditions of parole which are not law violations will be assigned to a program of either high or medium restriction, depending on the results of the risk assessment and other factors identified in this rule.

(4) Proximity to Home--Of the placements available for the youth's gender, treatment needs, and risk assessment score, youth will be assigned to the placement closest to the youth's approved home location. See §85.71 of this title for more information on the criteria and process for approving a youth's home. In cases where the closest placement is at or above established population capacity, the youth will be assigned to the next closest appropriate placement.

(d) Waivers. Except for non-sentenced offenders with a committing offense of high severity and sentenced offenders, the placement restriction level required under this rule may be waived by the executive commissioner or designee. A designated restriction level may be waived in order to provide specialized treatment or when it is determined that a youth has a disability or special medical condition that would prevent the youth from functioning in the designated restriction level.

(e) Parent Notification. Parents or guardians of youth under the age of 18 will be notified of all placement assignments. Youth 18 or older must give consent to disclose any placement information to a parent.

§85.24.Assessment for Safe Housing Placement.

(a) Policy. The Texas Youth Commission (TYC) uses an objective system to assess the threat of harm posed by a youth to others and a youth's potential vulnerabilities to make housing and supervision assignments.

(b) Applicability. This rule applies to high and medium restriction TYC facilities.

(c) Definitions. Safe Housing Assessment--an instrument designed to determine the appropriate housing assignment at a youth's assigned facility and level of supervision for an individual youth. The assessment considers factors including, but not limited to, the following:

(1) evidence-based criminogenic factors in a youth's history that indicate level of risk to others;

(2) age and physical stature of youth;

(3) potential vulnerability to sexual victimization or likelihood of sexually aggressive behavior; and

(4) special needs including medical needs, suicide risk, disabilities, mental health or other placement concerns.

(d) General Provisions.

(1) Each facility must establish a written housing plan that describes the housing levels allowed, staffing requirements, security level, and programming schedule of each housing unit.

(2) TYC will conduct a safe housing assessment for each youth upon arrival to the intake unit and prior to facility transfer. Safe housing assessments will be conducted at specified intervals thereafter, and may be conducted at any time as indicated by youth needs, serious incidents, or facility security needs.

(3) Youth will be assigned to housing units based on the results of the safe housing assessment. Placement within the housing unit may also be determined by the results of the safe housing assessment.

(4) Unless it is determined necessary to ensure youth safety, a youth 14 years of age or younger shall not be assigned to the same dormitory as a youth 17 years of age or older.

(5) Male and female youths shall not occupy the same sleeping room.

(6) Unless otherwise approved on a case-by-case basis by the division director over residential services or his/her designee, youth who have a reportable adjudication for a sex offense, as defined in Chapter 62, Code of Criminal Procedure, shall be assigned to an open bay dorm with direct line of sight supervision or a single-occupant room.

§85.25.Minimum Length of Stay/Minimum Period of Confinement.

(a) - (b) (No change.)

~~[(1) Assessment Rating Level--a score derived from evidence-based criminogenic factors in a youth's history used to assess the danger a youth poses to the community.]~~

[(2) Committing Offense--the offense on which the initial minimum length of stay assessment is based. It is the most serious of the relevant offenses found at the youth's commitment proceeding and any probated offense(s) modified by the commitment order.]

[(3) Federal Offenses--youth who have committed federal offenses and are sent to TYC by federal courts. If a committing offense is a violation of a federal statute, the offense will be treated as a violation of a state statute which prohibits the same conduct as the relevant federal offense.]

~~[(4) Minimum Length of Stay--the predetermined minimum period of time established by TYC that a youth will be assigned to live in a high or medium restriction placement.]~~

[(5) Minimum Period of Confinement--the predetermined minimum period of time established by law that a youth committed to TYC on a determinate sentence must remain confined in a high restriction placement.]

~~[(6) Most Serious Relevant Offense--the offense that carries the most severe consequences which are, from most to least severe:]~~

~~[(A) an offense which carries a determinate sentence;]~~

~~[(B) the offense for which the designated minimum length of stay will produce the longest time in the physical custody of TYC;]~~

~~[(C) the offense which requires the highest level of restriction in placement;]~~

~~[(D) the offense which carries the most severe criminal penalty; and]~~

~~[(E) the most recently adjudicated offense.]~~

[(7) Revocation Offense--the offense on which a youth's minimum length of stay is based following a parole revocation hearing. It is the most serious of the relevant offenses found at a parole revocation hearing.]

~~[(8) Sentenced Offender--a youth sent to TYC under the provisions of the Determinate Sentence Act, as codified by the Texas Family Code.]~~

~~[(9) Severity of Offense--the degree of an offense as defined by the Texas Penal Code or relevant federal statute and any of the following applicable aggravating factors:]~~

~~[(A) sex offense as identified in §62.001 of the Texas Code of Criminal Procedure;]~~

~~[(B) felony against a person;]~~

~~[(C) possession or use of a firearm during the commission of the committing offense.]~~

(d) - (i) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901667

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER C. MOVEMENT PRIOR TO PROGRAM COMPLETION

37 TAC §85.45

The new rule is proposed under Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public and permit the child liberty under supervision and on conditions it believes conducive to acceptable behavior. The rule is also proposed under §61.081, which provides the commission to release under supervision any child in its custody and place the child in his or her home or in any situation or family approved by the commission.

The proposed rule implements Human Resources Code §61.034.

§85.45.Movement Prior to Program Completion.

(a) Purpose. The purpose of this policy is to establish criteria and procedures for moving youth who have not met program completion requirements to placements of equal or lesser restriction.

(b) Definitions.

(1) Except as noted below, definitions pertaining to this rule are under §85.1 of this title.

(2) Operational Capacity--the identified general population level that a Texas Youth Commission (TYC) operated residential facility is appropriately capable of housing. Unless otherwise specified by the executive commissioner or designee, the operational capacity for a program is equivalent to the budgeted average daily population (ADP). Operational capacity may be set higher than the budgeted ADP when there is need and it has been determined that adequate program space and resources, including personnel, are available to support the higher capacity. Operational capacity may be set lower than the budgeted ADP when program space or resources, including personnel, indicate a reduced population is warranted.

(1) Prior to a transition, a youth may request and in doing so will be granted a Level II hearing.

(2) A plan to minimize risk factors for re-offending shall be developed for each youth prior to release, unless the youth is to be discharged.

(3) All residential programs releasing an undocumented foreign national youth must notify Immigration and Customs Enforcement (ICE) pursuant to §85.79 of this title.

(4) TYC shall comply with Chapter 57, Family Code and Article 56.02, Code of Criminal Procedure, regarding victim notification. Refer to §81.35 of this title regarding victim notification rights.

(5) TYC shall comply with the Sex Offender Registration Program, pursuant to Chapter 62, Code of Criminal Procedure, regarding youth who are subject to sex offender registration. Refer to §87.85 of this title regarding sex offender registration requirements.

(6) Parents or guardians of youth under the age of 18 will be notified of all movements. Youth 18 or older must give consent to disclose any movement information to a parent.

(d) Transition Movements.

(1) Eligibility. Youth classified as Type A violent offenders prior to February 1, 2009, and sentenced offenders are not eligible for transition movement. Youth of eligible classifications must meet transition criteria as set forth in paragraphs (2) and (3) of this subsection to qualify for a transition movement.

(2) Transition Movement Criteria. Youth in a high restriction placement may be eligible for transition to a medium restriction placement when the following criteria have been met:

(A) no major rule violations confirmed through a Level I or II due process hearing within 30 days prior to the exit review or during the approval process; and

(B) completion of minimum length of stay requirements:

(i) For youth committed to TYC prior to February 1, 2009:

(I) general offenders must complete all but three months of the minimum length of stay; and

(II) Type B violent offenders, chronic serious offenders, controlled substance dealer offenders and firearms offenders must complete all but six months of the minimum length of stay; or

(ii) For youth committed to TYC on or after February 1, 2009:

(I) youth with a committing offense of low severity must complete six months of the minimum length of stay in high restriction placements; or

(II) youth with a committing offense of moderate severity must complete nine months of the minimum length of stay in high restriction placements; or

(III) youth with a committing offense of high severity must complete all but 90 days of the minimum length of stay in high restriction placements; and

(iii) For youth placed in a high restriction facility following revocation of parole, regardless of date, the youth must complete at least 2/3 of the minimum length of stay.

(C) participation in or completion of assigned specialized treatment programs or curriculum as required under §87.51 of this title; and

(D) completion of rehabilitation program requirements:

(i) for TYC-operated facilities, assignment by the multi-disciplinary team to the second highest stage in the assigned rehabilitation program as described in §87.3 of this title, which reflects that the youth is currently:

(I) consistently participating in academic and/or workforce development programs commensurate with abilities as reflected in the youth's educational plan; and

(II) consistently participating in skills development groups, as reflected in the youth's individual case plan; and

(III) consistently demonstrating learned skills, as reflected in the individual youth log and daily ratings of performance expectations; or

(ii) for facilities operated under contract with TYC, completion of requirements for transition to a community residential placement as defined in the TYC-approved rehabilitation program; and

(E) completion of a draft community reintegration plan (or equivalent in a contract facility), to be finalized at the medium restriction facility, that demonstrates the youth's:

(i) understanding of his/her risk and protective factors; and

(ii) development of skills, abilities, and knowledge to reduce risk factors and increase protective factors; and

(iii) identification of goals and a plan of action to achieve goals in the medium restriction placement; and

(iv) identification of obstacles that may hinder successful community re-entry and plans to deal with those obstacles in the medium restriction placement.

(3) Decision Authority for Approval of Transition.

(A) The final decision authority will approve the youth's transition plan upon a determination that the youth meets all transition criteria and the transition/release ICP adequately addresses risk factors.

(B) The final decision authority is:

(i) the superintendent if the youth is assigned to a TYC-operated placement; or

(ii) the division director over residential services or designee if the youth is assigned to a facility operated under contract with TYC.

(e) Population Control Movements. When overpopulation occurs in any high restriction facility, certain remedial actions are taken. The director of residential services may cancel or revise any population control measure in effect or implement any other youth movement option when necessary to control population and/or manage available funds concerning youth in residential placement.

(1) Overpopulation Condition.

(A) When population reaches three percent (3%) above operational capacity for general population, the superintendent may invoke population control procedures, upon the approval of the appropriate director of residential services.

(B) When population reaches five percent (5%) above operational capacity for general population, the superintendent must:

(i) invoke population control procedures; and

(ii) notify the appropriate director of residential services.

(2) Release Criteria.

(A) The following youth are ineligible for population control movement:

(i) for youth committed to TYC prior to February 1, 2009: Type A violent offenders, and Type B violent offenders whose classification is for manslaughter, criminally negligent homicide, or intoxication manslaughter;

(ii) for youth committed to TYC on or after February 1, 2009: youth with committing offenses of high severity;

(iii) sentenced offenders;

(iv) youth with a high specialized treatment need who have not completed required specialized treatment programming;

(v) sex offenders with court orders deferring their sex offender registration requirements; and

(vi) any sex offender who will be released to a parole placement where the victim or a potential victim resides.

(B) Youth who are eligible for transition or release due to an overpopulation condition must meet the following criteria:

(i) completion of the minimum length of stay;

(ii) no major rule violations confirmed through a Level I or II due process hearing within 30 days of the release date; and

(iii) substantial completion of the youth's rehabilitation program as determined by the youth's treatment team and approved by the facility administrator or designee.

(3) Placement Options. Youth moved from high restriction under population management procedures will be placed in:

(A) TYC-operated medium restriction placements; or

(B) an approved parole placement (home or home substitute) if all appropriate medium restriction placements are currently at capacity.

(f) Administrative Transfers. Administrative transfers may be made for non-disciplinary, programmatic purposes among programs of equal restriction without a due process hearing. An administrative transfer may not be made in lieu of a disciplinary transfer for which a due process hearing is mandatory.

(g) Hardship Cases. In hardship cases, the executive commissioner or designee may approve placing a youth on parole status without meeting program completion criteria.

(h) Youth with Mental Illness or Mental Retardation. Pursuant to §87.79 of this title, certain youth shall be discharged following application for appropriate services to address their mental illness or mental retardation.

(i) Notification. TYC will notify the committing juvenile court, the prosecuting attorney, the parole officer, and the chief juvenile probation officer in the county to which the youth is being moved no later than ten calendar days prior to the transition or release.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901668

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER D. PROGRAM COMPLETION AND RELEASE

37 TAC §§85.55, 85.59, 85.65, 85.69

The new rules are proposed under: (1) Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public and permit the child liberty under supervision and on conditions it believes conducive to acceptable behavior; (2) Human Resources Code §61.081, which provides the commission to release under supervision any child in its custody and place the child in his or her home or in any situation or family approved by the commission; and (3) Human Resources Code §61.084, which requires the commission to transfer a person who has been sentenced under a determinate sentence to the custody of the Texas Department of Criminal Justice on the person's 19th birthday, if the person has not already been discharged or transferred, to serve the remainder of the person's sentence on parole, and which requires the commission to discharge without a court hearing a person committed to it for a determinate sentence who has not been transferred to the institutional division of the Texas Department of Criminal Justice under a court order on the date that the time spent by the person in detention in connection with the committing case plus the time spent at the Texas Youth Commission under the order of commitment equals the period of the sentence, and to transfer to the institutional division of the Texas Department of Criminal Justice a person who is the subject of an order under §54.11(i)(2), Family Code, transferring the person to the custody of the institutional division of the Texas Department of Criminal Justice for the completion of the person's sentence.

The proposed rules implement Human Resources Code §61.034.

§85.55.Program Completion for Non-Sentenced Offenders.

(a) Purpose. The purpose of this rule is to establish criteria and the approval process for release of youth upon program completion.

(b) Applicability.

(1) Definitions pertaining to this rule are under §85.1 of this title.

(2) This rule does not apply to sentenced offenders.

(3) This rule does not apply to youth who have received an extension of stay by the TYC Release Review Panel. See §85.57 of this title for more information on releases issued by the Release Review Panel.

(1) A detainer or bench warrant is not an automatic bar to earned release. The agency shall release a youth to authorities pursuant to a warrant.

(2) A plan to minimize risk factors for re-offending shall be developed for each youth prior to release, unless the youth is to be discharged.

(3) TYC shall comply with Chapter 57, Family Code, and Article 56.02, Code of Criminal Procedure, regarding victim notification. Refer to §81.35 of this title for victim notification procedures.

(4) Immigration and Customs Enforcement must be notified when releasing an undocumented foreign national youth. Refer to §85.79 of this title for notification procedures regarding undocumented foreign national youth.

(6) Parents or guardians of youth under the age of 18 will be notified of all movements. Youth 18 or older must give consent to disclose any movement information to a parent.

(d) Program Completion Criteria. Youth in high or medium restriction placements will be eligible for release to TYC parole (home or home substitute) when the following criteria have been met:

(1) no major rule violations confirmed through a Level I or II due process hearing within 30 days prior to the exit review or during the approval process; and

(2) completion of the minimum length of stay; and

(3) participation in or completion of assigned specialized treatment programs or curriculum as required under §87.51 of this title; and

(4) completion of rehabilitation program requirements:

(A) for TYC-operated facilities, assignment by the multi-disciplinary team to the highest stage in the assigned rehabilitation program as described in §87.3 of this title, which reflects that the youth is currently:

(i) consistently participating in academic and workforce development programs commensurate with abilities as reflected in the youth's educational plan;

(ii) consistently participating in skills development groups, as reflected in the youth's individual case plan;

(iii) consistently demonstrating learned skills, as reflected in the individual youth log and daily rating of performance expectations; or

(B) for facilities operated under contract with TYC, completion of requirements for release to parole as defined in the TYC-approved rehabilitation program; and

(5) completion of a community re-integration plan (or equivalent in a contract facility), approved by the youth's treatment team, that demonstrates the youth's:

(A) understanding of his/her risk and protective factors;

(B) development of skills, abilities, and knowledge to reduce risk factors and increase protective factors;

(D) identification of obstacles that may hinder successful re-entry and plans to deal with those obstacles.

(e) Review and Approval Process.

(1) Treatment Team Review.

(A) Prior to expiration of a youth's minimum length of stay, the youth's treatment team must review and determine whether the youth meets program completion criteria.

(B) The review and determination must occur at least:

(i) 30 days prior to the expiration of the minimum length of stay for youth with a committing offense of low or moderate severity; or

(ii) and at least 90 days in advance for youth classified as Type A violent offenders prior to February 1, 2009 or youth with a committing or revocation offense of high severity.

(C) If the treatment team determines the youth does not meet program completion criteria, the youth's case will be referred to the Release Review Panel for decision in accordance with §85.57 of this title.

(D) If the treatment team determines that the youth does meet program completion criteria, the youth's case will be referred to the final decision authority.

(2) Final Decision Authority for Approval of Release.

(A) The final decision authority for youth classified as Type A violent offenders prior to February 1, 2009 and youth with a committing or revocation offense of high severity is the division director over programming and treatment services.

(B) The final decision authority for all other non-sentenced offender youth is:

(i) the facility administrator for youth assigned to TYC-operated facilities; or

(ii) the division director over residential services or designee for youth assigned to facilities operated under contract with TYC.

(C) If the final decision authority approves the release, the youth must be placed on parole or parole status on the minimum length of stay date.

(D) If the final decision authority does not approve the release, or if the youth loses release eligibility prior to the minimum length of stay date and the treatment team confirms that the youth no longer meets program completion criteria, the youth's case must be referred to the Release Review Panel.

(f) Notification.

(1) Staff shall notify the youth, parent/guardian, any designated advocate for the youth, and any identified victim(s) of the pending release review by the treatment team at least 30 days prior to the date of the review.

(2) Staff shall notify the youth, parent/guardian, and any designated advocate for the youth of the review decision at least 30 days prior to the expiration of the minimum length of stay.

(3) TYC will notify the committing juvenile court, the prosecuting attorney, the parole officer, and the chief juvenile probation officer in the county to which the youth is being moved no later than ten calendar days prior to the release.

§85.59.Program Completion for Sentenced Offenders.

(a) Purpose. The purpose of this rule is to establish criteria and the approval process for sentenced offender youth to qualify for release or transfer to parole by completing required programming.

(b) Applicability.

(1) Definitions pertaining to this rule are under §85.1 of this title.

(2) This rule applies only to sentenced offenders.

(3) This rule does not apply to:

(A) sentenced offenders who are discharged due to expiration of the sentence or transferred to the Texas Department of Criminal Justice (TDCJ) by court order or by aging out of TYC; or

(B) sentenced offenders adjudicated for capital murder.

(1) A detainer or bench warrant is not an automatic bar to earned release. The agency shall release a youth to authorities pursuant to a warrant.

(2) In order to determine eligibility for release or transfer, the Special Services Committee (SSC) shall evaluate the youth:

(A) six (6) months after admission to TYC;

(B) when the minimum period of confinement (MPC) is complete;

(D) at 20 years of age and 20 years and six months of age for youth sentenced before June 9, 2007; and

(E) at other times as requested by the committee.

(3) Staff shall notify the youth, parent/guardian, any designated advocate for the youth, and any identified victim(s) of a pending SSC exit review/interview at least 30 days prior to the date of the review. The notification shall inform the recipients that they have the opportunity to submit written comments to the SSC. Victims may also submit a written request to participate in the exit review in accordance with §81.35 of this title. Any information received from a youth's family members, victims, local officials, or the general public will be considered by the SSC or designee and included in the release/transfer packet.

(4) A plan to minimize risk factors for re-offending shall be developed for each youth prior to release or transfer to TDCJ-Parole Department (TDCJ-PD), unless the youth is to be discharged.

(5) TYC shall comply with Chapter 57, Family Code and Article 56.02, Code of Criminal Procedure, regarding victim notification. Refer to §81.35 of this title for victim notification procedures.

(6) Immigration and Customs Enforcement must be notified when releasing an undocumented foreign national youth. Refer to §85.79 of this title for notification procedures for youth who are undocumented foreign nationals.

(7) TYC shall comply with the Sex Offender Registration Program, pursuant to Chapter 62, Code of Criminal Procedure, regarding youth who are subject to sex offender registration. Refer to §87.85 of this title for sex offender registration procedures.

(8) Parents or guardians of youth under the age of 18 will be notified of all movements. Youth 18 or older must give consent to notify parents or guardians of any movement.

(9) Sentenced offenders shall serve the entire MPC applicable to the youth's committing offense in high restriction facilities unless:

(A) the youth is transferred to TDCJ-Institutional Division in accordance with legal requirements or committing court approval. See §85.65 of this title; or

(B) the youth is approved by the committing court to attain parole status prior to completion of serving the MPC; or

(D) the executive commissioner waives such placement.

(d) Program Completion Criteria.

(1) A sentenced offender youth whose committing offense occurred before September 1, 2005 will be eligible for release/transfer from a high restriction facility as described in paragraph (3) of this subsection when the following criteria have been met:

(A) no major rule violations confirmed through a Level I or II due process hearing within 90 days prior to the SSC exit interview or during the approval process; and

(B) participation in or completion of assigned specialized treatment programs or curriculum as required under §87.51 of this title; and

(C) assignment by the multi-disciplinary team to the highest stage in the assigned rehabilitation program as described in §87.3 of this title, which reflects that the youth:

(i) is consistently participating in academic and workforce development programs commensurate with abilities as reflected in the youth's educational plan; and

(ii) is consistently participating in skills development groups, as reflected in the youth's individual case plan; and

(iii) is consistently demonstrating learned skills, as reflected in the individual youth log and daily rating of performance expectations; and

(iv) has completed a community re-integration plan, approved by the multi-disciplinary team, that demonstrates the youth's:

(I) understanding of his/her risk and protective factors;

(II) development of skills, abilities, and knowledge to reduce risk factors and increase protective factors;

(III) identification of goals and a plan of action to achieve those goals; and

(IV) identification of obstacles that may hinder successful re-entry and plans to deal with those obstacles; and

(D) completion of the MPC.

(2) A sentenced offender youth whose committing offense occurred on or after September 1, 2005, may be considered for release/transfer from a high restriction facility as described in paragraph (3) of this subsection when he/she:

(A) meets criteria listed in paragraph (1)(A) - (C) of this subsection; and

(B) meets the following:

(i) completes all but nine months of the sentence if the sentence expires before the MPC or simultaneously with the MPC; or

(ii) completion of the MPC if the sentence expires after the MPC.

(3) Release will be to TYC parole unless, at the time the youth meets program completion criteria, he/she is:

(A) within two months prior the 19th birthday if committed to TYC on or after June 9, 2007, in which case the youth will be transferred to TDCJ-PD; or

(B) at least 19 years of age if committed to TYC before June 9, 2007, in which case the youth will be transferred to TDCJ-PD.

(e) Release/Transfer Approval. The executive commissioner or designee shall approve the youth's release or transfer upon a determination that the youth meets program completion criteria as set forth in this rule.

(f) Loss of Release/Transfer Eligibility.

(1) Eligibility for release/transfer is lost when any of the following occurs after the exit interview:

(A) youth commits a major rule violation that is confirmed through a Level I or II due process hearing; or

(B) the youth's multi-disciplinary team determines that the youth no longer meets the required rehabilitation program criteria.

(2) Except as described in paragraph (3) of subsection, a youth who loses release or transfer eligibility will not be eligible for release/transfer until such time as the youth meets program completion criteria and a subsequent SSC exit interview confirms release/transfer eligibility.

(3) If a youth whose committing offense occurred on or after September 1, 2005, is being considered for release/transfer nine months prior to his/her sentence completion loses eligibility for release/transfer, he/she will remain in high restriction until his/her sentence has expired.

(g) Release/Transfer Date.

(1) The SSC must hold an exit interview within 14 calendar days from the date a youth meets program completion criteria as set forth in subsection (d) of this section.

(2) If the SSC confirms the youth meets program completion criteria, the youth shall be:

(A) released to TYC parole within 120 calendar days after the date the youth met program completion criteria, unless the youth loses release eligibility as described in subsection (f) of this section in which case the release process is re-initiated when the youth meets program completion criteria; or

(B) transferred to TDCJ parole within 120 calendar days after the date the youth met program completion criteria, unless:

(i) the youth loses transfer eligibility as set forth in subsection (f) of this section in which case the transfer process is re-initiated when the youth meets program completion criteria; or

(ii) the Department of Sentenced Offender Disposition has not received notification of parole conditions from TDCJ to confirm the transfer date, in which case the 120-day deadline will be extended to determine the status of the transfer request. The Department of Sentenced Offender Disposition will determine the duration of the extension.

(h) Notification. TYC will notify the committing juvenile court, the prosecuting attorney, the parole officer, and the chief juvenile probation officer in the county to which the youth is being moved no later than ten calendar days prior to the release.

§85.65.Discharge of Sentenced Offenders upon Transfer to TDCJ or Expiration of Sentence.

(a) Purpose. The purpose of this rule is to establish criteria and an approval process for requesting court approval to transfer sentenced offenders to adult prison, and for discharging sentenced offenders whose sentences have expired, or who have not qualified for release or transfer based on completing required programming.

(b) Applicability.

(1) Definitions pertaining to this rule are under §85.1 of this title.

(2) This rule only applies to the disposition of the original determinate sentence.

(3) This rule applies only to sentenced offenders. This rule does not apply to:

(A) sentenced offenders who qualify for release or transfer to parole due to completion of required programming; or

(B) sentenced offenders adjudicated for capital murder.

(1) Sentenced offenders shall by law, be transferred from TYC's custody no later than the youth's:

(A) 19th birthday for youth committed to TYC on or after June 9, 2007; or

(B) 21st birthday for youth committed to TYC prior to June 9, 2007.

(2) Sentenced offenders must serve the entire Minimum Period of Confinement (MPC) applicable to the youth's committing offense in high restriction facilities unless:

(A) the youth is transferred to Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) in accordance with legal requirements or committing court approval; or

(B) the youth is approved by the committing court to attain parole status prior to completion of serving the MPC; or

(D) The executive commissioner waives such placement.

(3) the Special Services Committee (SSC) or designee shall evaluate the youth:

(A) six (6) months after admission to TYC;

(B) when the minimum period of confinement (MPC) is complete;

(i) 18 years of age and 18 years and six months of age for youth sentenced on or after June 9, 2007; or

(ii) 20 years of age and 20 years and six months of age for youth sentenced before June 9, 2007; and

(D) at other times as requested by the committee.

(4) Staff shall notify the youth, parent/guardian, any designated advocate for the youth, and any identified victim(s) of a pending SSC exit review/interview at least 30 days prior to the date of the review. The notification shall inform the recipients that they have the opportunity to submit written comments to the SSC. Victims may also submit a written request to participate in the exit review in accordance with §81.35 of this title. Any information received from a youth's family members, victims, local officials, or the general public will be considered by the SSC or designee and included in the release/transfer packet.

(5) A plan to minimize risk factors for re-offending shall be developed for each youth prior to transfer to TDCJ-PD.

(6) TYC jurisdiction shall be terminated and a sentenced offender discharged when he/she is transferred to TDCJ or his/her sentence has expired, except when the youth is committed to TYC under concurrent determinate and indeterminate commitment orders as specified in §85.25 of this title.

(7) TYC shall comply with Chapter 57, Family Code, and Article 56.02, Code of Criminal Procedure, regarding victim notification. Refer to §81.35 of this title.

(8) All residential programs transferring an undocumented foreign national youth to TDCJ must notify Immigration and Customs Enforcement (ICE). Refer to §85.79 of this title for procedures.

(9) TYC shall comply with the Sex Offender Registration Program, pursuant to Chapter 62, Code of Criminal Procedure, regarding youth who are subject to sex offender registration. Refer to §87.85 of this title.

(10) Parents or guardians of youth under the age of 18 will be notified of all movements. Youth 18 or older must give consent to disclose any movement information to a parent.

(d) Transfer Criteria.

(1) Sentenced Offenders Whose Parole has been Revoked or Who have been Adjudicated or Convicted for a Felony Offense. TYC may request a juvenile court hearing for transfer to TDCJ-ID for a youth whose parole has been revoked or who has been adjudicated or convicted for a felony offense and the following criteria have been met:

(A) youth is at least age 16; and

(B) youth has not completed his/her sentence; and

(D) youth's conduct occurred while on parole status.

(2) Sentenced Offenders in High Restriction Transferring to TDCJ-ID. TYC may request a juvenile court hearing to transfer a sentenced offender in high restriction to TDCJ-ID if the following criteria have been met:

(A) youth is at least age 16; and

(B) youth has spent at least six (6) months in a high restriction facility; and

(D) youth has met at least one of the following behavior criteria:

(i) youth has committed a felony or Class A misdemeanor; or

(ii) youth has committed major rule violations as confirmed through a Level I or II due process hearing 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 rehabilitation program due to persistent non-compliance with objectives; and

(E) alternative interventions have been tried without success; and

(F) youth's conduct indicates that the welfare of the community requires the transfer.

(3) Sentenced Offenders in High Restriction Transferring to TDCJ-PD. A youth in a high restriction facility who has not completed transfer criteria as outlined in §85.59 of this title and who has not received court approval for transfer to TDCJ-ID, shall be transferred to TDCJ-PD to complete the sentence:

(A) no later than the youth's 19th birthday, for youth committed on or after June 9, 2007; or

(B) no later than the youth's 21st birthday, for youth committed before June 9, 2007.

(4) Sentenced Offenders on TYC Parole Transferring to TDCJ-PD. A youth on TYC parole who has not completed his/her sentence shall be transferred to TDCJ-PD (court approval not required) no later than the youth's:

(A) 19th birthday, for youth committed on or after June 9, 2007; or

(B) 21st birthday, for youth committed before June 9, 2007.

(5) Sentenced Offenders Committed on or after June 9, 2007 Who Will Not Complete the Minimum Period of Confinement Prior to Age 19. For youth sentenced on or after June 9, 2007 who will not have completed the minimum period of confinement upon reaching the 19th birthday, TYC shall request a court hearing to determine whether the youth will be transferred to TDCJ-ID or TDCJ-PD. TYC will consider the following in forming a recommendation for the committing court:

(A) length of stay in TYC;

(B) youth's progress in the rehabilitation program;

(D) youth's offense/delinquent history; and

(E) any other relevant factors, such as:

(i) risk factors and protective factors the youth possesses as identified in his/her psychological evaluation; and

(ii) the welfare of the community.

(e) Discharge Criteria. A sentenced offender shall be discharged from TYC jurisdiction when one of the following occurs:

(1) expiration of the sentence imposed by the juvenile court, unless the youth is under concurrent commitment orders as described in §85.25 of this title; or

(2) the youth has been transferred to TDCJ-ID under court order or transferred to TDCJ-PD.

(f) Decision Authority for Approval to Transfer.

(1) A youth shall not be transferred from high restriction to TDCJ-PD until the executive commissioner or designee has determined that the youth's plan adequately addresses risk factors to minimize re-offending.

(2) When a determination has been made that the youth meets transfer criteria to TDCJ, the executive commissioner or designee approves the request for a hearing by the committing juvenile court to transfer the youth to TDCJ-ID or approves the transfer process to TDCJ-PD.

(3) The final transfer approval authority for transfer to TDCJ-ID is the committing juvenile court.

(g) Notification. TYC will notify the committing juvenile court, the prosecuting attorney, parole officer, and the county chief juvenile probation officer in the county to which the youth is being moved no later than ten calendar days prior to the discharge.

§85.69.Transfer of Sentenced Offenders Adjudicated for Capital Murder.

(a) Purpose. The purpose of this rule is to establish criteria and the approval process for transferring sentenced offenders adjudicated for capital murder to the Texas Department of Criminal Justice-Parole Division (TDCJ-PD) or the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID).

(b) Applicability.

(1) Definitions pertaining to this rule are under §85.1 of this title.

(2) For specific information regarding the rehabilitation program and assessment, see §87.3 of this title.

(3) This rule does not apply to sentenced offender youth adjudicated for any offense other than capital murder.

(1) A detainer or bench warrant is not an automatic bar to earned release. The agency shall release a youth to authorities pursuant to a warrant.

(2) The Special Services Committee (SSC) shall evaluate the youth six (6) months after admission to TYC, when the minimum period of confinement (MPC) is complete, and at other times as requested by the committee.

(A) For youth committed before June 9, 2007, the SSC will also complete a review when the youth reaches 20 years of age and 20 years and six months of age to determine eligibility for transfer to TDCJ-ID or TDCJ-PD.

(B) For youth committed on or after June 9, 2007, the SSC will also complete reviews:

(i) on or about the youth's 18th birthday, and

(ii) on or about the date a youth reaches 18 years and six months of age to determine eligibility for transfer to TDCJ-ID or TDCJ-PD.

(4) A plan to minimize risk factors for re-offending shall be developed for each youth prior to transferring him/her to TDCJ-PD.

(5) TYC shall comply with Chapter 57, Family Code, and Article 56.02, Code of Criminal Procedure, regarding victim notification. Refer to §81.35 of this title for victim notification procedures.

(6) Immigration and Customs Enforcement must be notified when transferring an undocumented foreign national youth to TDCJ-PD. Refer to §85.79 of this title for notification procedures regarding undocumented foreign national youth.

(8) Parents or guardians of youth under the age of 18 will be notified of all movements. Youth 18 or older must give consent to disclose any movement information to a parent.

(9) Youth whose committing offense is capital murder shall serve the entire MPC applicable to the youth's committing offense in high restriction facilities unless:

(A) the youth is transferred to TDCJ-Institutional Division in accordance with legal requirements or committing court approval; or

(B) the youth is approved by the committing court to attain parole status prior to completion of serving the MPC; or

(10) A youth who has not received court approval to transfer to TDCJ-ID will be transferred to TDCJ-PD no later than the age at which TYC jurisdiction ends.

(11) TYC jurisdiction shall be terminated and a sentenced offender discharged when he/she is transferred to TDCJ or his/her sentence has expired, except when the youth is committed to TYC under concurrent determinate and indeterminate commitment orders as specified in §85.25 of this title.

(d) Program Completion Criteria. TYC will review youth for program completion and possible transfer to TDCJ-PD when the following criteria have been met:

(1) no major rule violations confirmed through a Level I or II due process hearing, within 90 days prior to the SSC exit interview or during the approval process; and

(2) completion of at least three (3) years toward the MPC; and

(3) participation in or completion of assigned specialized treatment programs or curriculum as required under §87.51 of this title; and

(4) assignment by the multi-disciplinary team to the highest stage in the assigned rehabilitation program as described in §87.3 of this title, which reflects that the youth:

(A) is consistently participating in academic and workforce development programs commensurate with abilities as reflected in the youth's educational plan;

(B) is consistently participating in skills development groups, as reflected in the youth's individual case plan;

(C) is consistently demonstrating learned skills, as reflected in the individual youth log and daily rating of performance expectations; and

(D) has completed a community re-integration plan, approved by the multi-disciplinary team, that demonstrates the youth's:

(i) understanding of his/her risk and protective factors; and

(ii) development of skills, abilities, and knowledge to reduce risk factors and increase protective factors; and

(iii) identification of goals and a plan of action to achieve those goals; and

(iv) identification of obstacles that may hinder successful re-entry and plans to deal with those obstacles.

(e) Youth Who do Not Meet Program Completion Criteria. If the youth does not meet the criteria in subsection (d) of this section, TYC will recommend transfer to TDCJ-PD or TDCJ-ID to the committing juvenile court and will consider the following in forming its recommendation:

(1) length of stay in TYC;

(2) youth's progress in the rehabilitation program;

(3) youth's behavior while in TYC;

(4) youth's offense/delinquent history; and

(5) any other relevant factors, such as:

(A) risk factors and protective factors the youth possesses as identified in his/her psychological evaluation; and

(B) the welfare of the community.

(f) Transfer to TDCJ-ID Prior to Termination of TYC's Jurisdiction. TYC may request a court hearing at any time in order to recommend transfer to TDCJ-ID if the following criteria have been met:

(1) youth is at least age 16; and

(2) youth has spent at least six (6) months in a high restriction facility; and

(3) youth has not completed his/her sentence; and

(4) youth has met at least one of the following behavior criteria:

(A) youth has committed a felony or Class A misdemeanor while assigned to residential placement; or

(B) youth has committed major rule violations on three or more occasions as proven though Level I or II due process hearings; or

(C) youth has engaged in chronic disruption of program (five security admissions or extensions in one month or ten in three months); or

(D) youth has demonstrated an inability to progress in his/her rehabilitation program due to persistent noncompliance with objectives; and

(5) alternative interventions have been tried without success; and

(6) youth's conduct indicates that the welfare of the community requires the transfer.

(g) Decision Authority.

(1) No later than five months before a youth reaches the age at which TYC's jurisdiction ends, the executive commissioner must:

(A) determine whether the youth meets criteria under this rule for transfer to TDCJ-PD, or transfer to TDCJ-ID; and

(B) approve the request for a hearing by the committing juvenile court to transfer to TDCJ-PD or TDCJ-ID.

(2) For a youth committed for capital murder, the committing juvenile court is the final decision authority for transfer to TDCJ-PD or TDCJ-ID.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901669

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER E. PAROLE PLACEMENT AND DISCHARGE

37 TAC §85.95

The new rule is proposed under Human Resources Code §61.075, which provides the commission with the authority to discharge a child from control when it is satisfied that discharge will best serve the child's welfare and the protection of the public, and §61.084, which requires the commission to discharge from its custody a person not already discharged on the person's 19th birthday.

The proposed rule implements Human Resources Code §61.034.

§85.95.Parole Completion and Discharge.

(a) Purpose. The purpose of this rule is to establish criteria for discharge from agency jurisdiction for any youth committed to the Texas Youth Commission (TYC).

(b) Applicability. This policy does not apply to sentenced offenders. Refer to §85.65 of this title for information relating to discharge of sentenced offenders.

(1) Discharge Due to Successful Completion of Parole.

(A) Youth who have never been classified as a Type A Violent Offender and whose committing offense(s) are of moderate or low severity may qualify for discharge upon completion of the following criteria:

(i) successful completion of the pre-discharge Level of surveillance and supervision;

(ii) compliance with the youth's conditions of parole, based on the individual needs assessment; and

(iii) no pending delinquency petitions or criminal charges;

(iv) completion of 60 hours of community service as specified in the youth's conditions of Parole (credit will be granted for community service performed while in a medium restriction facility, if applicable); and

(v) completion of 40 hours of constructive activities as defined on the conditions of parole each week for at least 30 days. This includes time spent working, attending school, attending treatment/counseling, completing community service, actively searching for employment, and time spent providing direct supervision to a child.

(B) The executive commissioner or designee may approve the discharge of a youth prior to completion of the requirements in paragraph (1)(A) of this subsection when consideration of a youth's committing offense, behavior, history, and progress towards completion of parole conditions justifies an earlier discharge.

(2) Direct Discharge from Residential Placement by Release Review Panel. Pursuant to §85.57 of this title, the Release Review Panel may discharge a youth directly from a residential placement upon a finding that the youth is no longer in need of rehabilitation or that TYC is no longer the most suitable location to provide the needed rehabilitation.

(3) Discharge Due to Age.

(A) Youth committed to TYC before February 1, 2009 who were ever classified as Type A Violent offenders or youth committed to TYC on or after February 1, 2009 with committing or revocation offenses of high severity will not be discharged prior to reaching age 19. These youth must be discharged on:

(i) the day before the 19th birthday, if the youth is assigned to a residential placement; or

(ii) the last working day prior to the 19th birthday, if the youth is assigned to a non-residential placement.

(B) Any youth who has not previously been discharged due to successful completion of parole or by the Release Review Panel shall be discharged on:

(i) the day before the 19th birthday, if the youth is assigned to a residential placement; or

(ii) the last working day prior to the 19th birthday, if the youth is assigned to a non-residential placement.

(C) A youth on parole status who is discharged due to age will be considered to have successfully completed parole if the youth:

(i) is not in jail or on abscond status

(ii) has no pending delinquency petitions or criminal charges; and

(iii) has substantially complied with all parole requirements.

(4) Special Circumstances.

(A) Youth who have never been classified as a Type A Violent Offender and do not have a committing offense of high severity may be discharged prior to completion of parole requirements to enlist in the military. The executive commissioner must approve such a discharge.

(B) Youth placed out of the state may be discharged when requested by the placement state for satisfactory adjustment or when court action is taken by the placement state in accordance with §85.85 of this title. The parole director must approve such a discharge.

(C) Youth who have completed length of stay requirements and who are unable to progress in the agency's rehabilitation program because of mental illness or mental retardation may be discharged as specified in §87.79 of this title.

(D) Youth who have never been classified as a Type A violent offender and do not have a committing offense of high severity who are age 18 or older may be discharged prior to completion of parole requirements in order to obtain appropriate services. The executive commissioner must approve such discharge.

(E) Youth may be discharged for special circumstances, other than those addressed in subparagraphs (A) - (D) of this paragraph, upon the executive commissioner's approval.

(5) Other Types of Discharges.

(A) Youth shall be discharged under the following circumstances:

(i) placement on actively supervised adult probation for conduct which occurred while on TYC parole status; or

(ii) the youth is sentenced for a minimum of six months in a state or county jail as part of the disposition of a criminal case.

(B) Youth shall be discharged:

(i) if the court orders the reversal of the commitment; or

(ii) upon closing of records following a youth's death or recommitment.

(C) Youth shall be discharged when sentenced or transferred to Texas Department of Criminal Justice-Institutional Division (TDCJ-ID).

(d) Notification.

(1) A youth's primary service worker shall immediately notify the youth of the discharge. The primary service worker shall provide the youth a written explanation on procedures for sealing records and a copy will be provided to the parent/guardian or custodian.

(2) TYC will notify the committing juvenile court, the prosecuting attorney, parole officer, and the county chief juvenile probation officer in the county to which the youth is being moved not later than ten calendar days prior to the discharge.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901670

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 87. TREATMENT

The Texas Youth Commission (TYC) proposes the repeal of §87.1 (concerning case planning), §87.2 (concerning Resocialization Program), §87.3 (concerning resocialization phase requirements and assessment), §87.4 (concerning resocialization earned privilege system), and §87.51 (concerning special needs offenders).

The repeal of §§87.1 - 87.3 and §87.51 will allow for significantly revised rules to be published in their place. The revised rules are proposed in this issue of the Texas Register.

The repeal of §87.4 will allow for a new rule concerning youth privileges to be published as new §95.2. The new section is proposed in this issue of the Texas Register.

Dianne Gadow, Director of Integrated Treatment and Support, has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be the availability of accurate and up-to-date information concerning TYC programming and operations.

SUBCHAPTER A. PROGRAM PLANNING

37 TAC §§87.1 - 87.4

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§87.1.Case Planning.

§87.2.Resocialization Program.

§87.3.Resocialization Phase Requirements and Assessment.

§87.4.Resocialization Earned Privilege System.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901671

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. SPECIAL NEEDS OFFENDER PROGRAMS

37 TAC §87.51

The repeal is proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeal implements Human Resources Code §61.034.

§87.51.Special Needs Offenders.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901672

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER A. PROGRAM PLANNING

37 TAC §§87.1 - 87.3

The Texas Youth Commission (TYC) proposes new §87.1 (concerning case planning), §87.2 (concerning rehabilitation program overview), and §87.3 (concerning rehabilitation stage requirements and assessment).

New §87.1 will make several changes from the current text of §87.1. Updates to individual case plan objectives will be provided every 30 days for all youth in residential facilities, regardless of the committing offense or facility restriction level. The new rule will also reflect that individual case plans will be developed with the goal of reducing individual risk factors and increasing individual protective factors, which is one of the foundational principles of TYC's rehabilitative strategy as described in new §87.2 and §87.3.

New §87.2 will provide an overview of TYC's approach to juvenile delinquency rehabilitation. The rehabilitative strategy will focus on helping each youth learn how to reduce the individual factors that make him/her more likely to engage in future delinquent conduct, and to increase the individual factors that help to keep him/her away from delinquent conduct.

New §87.3 will establish the system for assessing youth progress through the rehabilitation program. The new rule will also provide an outline of the basic areas in which a youth must demonstrate progress in order to successfully complete each stage of the rehabilitation program.

Dianne Gadow, Director of Integrated Treatment and Support, has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a reduction in recidivism through the establishment of a juvenile delinquency rehabilitation strategy that implements evidence-based techniques and therapies and is flexible enough to be individualized for each youth.

The new rules are proposed under Human Resources Code §61.076, which provides the commission with the authority to require children committed to its care to participate in academic, vocational, physical, and correctional training and activities.

The proposed rules implement Human Resources Code §61.034.

§87.1.Case Planning.

(a) Purpose. The purpose of this rule is to ensure the case management of each youth is individualized and flexible, and is based on the youth's risk and protective factors and need for services. Risk and protective factors are identified and correspond to long and short-term objectives that are developed to facilitate the youth's progress in the rehabilitation program. The resulting case plan is reviewed regularly and revised when necessary.

(b) Definitions. Definitions for terms used in this rule are under §85.1 of this title.

(1) An Individual Case Plan (ICP) will be developed with and for each youth by the case manager in consultation with the multi-disciplinary team. The ICP will be individualized for each youth and will identify objectives with specific strategies to address development of skills to reduce individual risk factors and increase individual protective factors.

(2) The ICP will be developed in accordance with the assessment of the youth's risk and protective factors and progress in the rehabilitation program.

(3) The ICP will specify measurable objectives, expected outcomes and a means to evaluate progress.

(4) ICP objectives will be updated every 30 days to reflect adjustments as the youth progresses or as new needs are identified.

(5) The ICP will be developed with individualized strategies to facilitate youth progress through the rehabilitation program.

(6) The ICP will be initiated during the assessment process.

(7) ICP development will include a review of youth progress and objectives and will be developed with the youth and family when possible.

§87.2.Rehabilitation Program Overview.

(a) Purpose. The purpose of this rule is to identify the agency's philosophy and approach to rehabilitation of juvenile delinquents in order to reduce future delinquent behavior and increase youth accountability.

(b) Definitions. See §85.1 of this title for definitions of terms used in this rule.

(1) Each Texas Youth Commission (TYC) operated residential facility will utilize an integrated, system-wide rehabilitative strategy that offers a menu of therapeutic techniques, tools, and program components to help individual TYC youth increase their ability to be productive citizens and avoid re-offending.

(2) To the extent possible, TYC's rehabilitative strategy will offer programs in an adequate manner so that youth receive appropriate rehabilitation services recommended by the committing court.

(3) All aspects of the TYC rehabilitation program will be individualized and performance-based with clearly defined expectations as set forth in §87.3 of this title.

(4) Individual progress will be measured monthly and be based on all identified risk and protective factors. Youth in residential placements will be assessed by a multi-disciplinary team. Youth on parole in the community will be assessed by the assigned parole officer.

(5) As youth progress in the rehabilitation program, there are increased expectations for demonstrating developed skills and social responsibility, a decreased need for direct staff supervision, and an increase in earned privileges as set forth in §95.2 of this title.

(6) TYC facilities shall maintain a structured, 16-hour day for all youth. During each day, the youth will work on components of the rehabilitation program.

(7) TYC facilities shall provide for and youth will participate in a structured, individually appropriate educational program or equivalent.

(8) TYC facilities shall provide and eligible youth may participate in work experiences.

(9) TYC facilities shall provide and youth will participate in regular physical training programs.

(10) TYC facilities shall provide and youth will participate in skills development groups.

(11) Staff will receive appropriate training and certification related to their role in the rehabilitation program and the type of services they provide.

§87.3.Rehabilitation Stage Requirements and Assessment.

(a) Purpose. Texas Youth Commission (TYC) youth earn release from high and medium restriction placements by progressing through a stage system that measures progress in the rehabilitation program. The purpose of this rule is to provide a general outline of the areas in which a youth must demonstrate progress and to describe the process for how progress is assessed.

(b) Applicability. This rule applies to all residential facilities operated by the TYC. This rule does not apply to youth in contract care programs that are not required to provide the TYC rehabilitation program.

(d) General Themes in the Rehabilitation Program. In each stage, there are objectives for the youth to complete which will:

(1) demonstrate an understanding of risk and protective factors and show a decrease in risk factors and an increase in protective factors over the course of the rehabilitation program;

(2) demonstrate a youth's increased understanding of how those personal risk factors relate to success/lack of success in the community and assist the youth in understanding how his/her committing offense was related to risk factors;

(3) move the youth toward developing a concrete community reintegration plan from the time of admission; and

(4) engage the youth's family in programming.

(e) General Process for Stage Assessment.

(1) For each stage, a youth completes objectives around the four general themes. Once those objectives are completed, the youth presents and discusses stage-related indicators with the multi-disciplinary team (MDT).

(2) The MDT assesses whether the youth has adequately completed the required indicators. The MDT is the primary decision authority regarding whether a youth earns stage promotion.

(3) If the MDT determines the stage objectives have been met, the MDT also evaluates whether the youth has consistently participated in the following other areas of programming:

(A) participation in development and completion of case plan objectives;

(B) participation in groups and individual counseling sessions;

(D) participation in academic and workforce development programs; and

(E) application of learned skills in daily behavior, as defined in the positive behavior change system.

(4) If the MDT determines that a youth meets the required indicators for the stage and has consistently participated in the other areas of programming, the youth will be promoted to the next stage.

(5) If the MDT determines the youth has not met the indicators required for the stage or has not consistently participated in the other areas of programming, the youth remains on his/her current stage until the next MDT review (28-35 days).

(6) Youth may not be demoted in stage.

(7) The MDT gives the youth specific feedback on his/her areas of positive progress and assists the youth in focusing on what needs to be improved for the next review period.

(f) Stage Requirements for Promotion.

(1) Stage 1--this stage is completed when the MDT determines that the youth has demonstrated basic knowledge of the stage objectives. The youth attends the foundational skills development groups and participates in individual sessions with his/her case manager to develop an assessment of risk and protective factors. In order to complete stage 1, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) understand the definition of risk and protective factors;

(ii) explore risk factors related to TYC commitment;

(iii) attempt to involve family member or adult mentor in coordination with family liaison and case manager; and

(iv) establish a personal goal and identify strategies to achieve that goal;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(2) Stage 2--this stage is completed when the MDT determines that the youth has identified and discussed his/her personal risk and protective factors, has identified patterns in his/her thoughts, feelings, attitudes, values and beliefs that relate to TYC commitment and ongoing behaviors, has created an initial community re-integration plan, and has participated with the MDT in targeting specific skills for development related to his/her risk and protective factors. In order to complete stage 2, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) explore personal risk and protective factors;

(ii) share identified risk and protective factors with family or adult mentor;

(iii) identify patterns in thoughts, feeling, attitudes, beliefs and values;

(iv) create an initial community re-integration plan;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(3) Stage 3--this stage is completed when the MDT determines that the youth has completed skill lessons assigned by the case manager and MDT necessary to reduce risks and enhance protective factors. The youth is expected to take responsibility for the committing offense, identify patterns in thinking, and be able to discuss the impact of the offense on direct and indirect victims. The youth is expected to incorporate the new skills learned while in the facility into daily living situations and into a community re-integration plan. In order to complete stage 3, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) show a reduction of risk factors and an increase in protective factors;

(ii) take responsibility for the committing offense;

(iii) share progress on reducing risk factors and increasing protective factors with family member or adult mentor;

(iv) complete the community re-integration plan;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(4) Stage 4--this stage is completed when the MDT determines that the youth demonstrates and practices skills learned in skills groups through daily application in situations that present increased risk for the youth. Youth are expected to engage in responsible behaviors that are consistent with identified protective factors on a regular basis. Additional skills are learned as assigned and the community re-integration plan is revised as needed and reviewed. The community re-integration plan is considered complete when the case manager, youth and the youth's parent/guardian/adult mentor approve the document. In order to complete stage 4, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) show a reduction of risk factors and an increase in protective factors;

(ii) identify new thoughts, feelings, attitudes, beliefs and values that might increase success in the community;

(iii) share the community re-integration plan with family or adult mentor;

(iv) finalize the community re-integration plan;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(5) Stage 5--youth who have completed stage 4 in a high or medium restriction facility and remain in a medium restriction facility are assigned to stage 5. The youth updates the community re-integration plan as they encounter real situations and influences in the community. The youth reviews risk and protective factors and completes thinking reports on specific situations, identifying patterns in thinking. In order to complete stage 5, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) review any changes to risk factors and protective factors in the halfway house environment;

(ii) review thoughts, feelings, attitudes, values, and beliefs related to community re-integration;

(iii) comply with, review, and revise the community re-integration plan;

(iv) share the revised community re-integration plan with family or adult mentor;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators;

(6) Youth Empowerment Status--youth who complete stage 4 and remain in a high restriction facility or who complete stage 5 and remain in a medium restriction facility are assigned to Youth Empowerment Status. This status ensures that youth continue to work in the program to maintain their gains, continue to reduce risk factors and increase protective factors, continue their skills development, update their community re-integration plan as circumstances change, and contribute positively to their living environment. If the MDT determines that the youth has met all objectives, the youth is placed on "active" status. If the MDT determines that the youth has not met all objectives, the youth is placed on "inactive" status. The objectives are:

(A) youth shows a reduction of risk factors and an increase in protective factors;

(B) youth reviews and revises the community re-integration plan;

(D) youth attends all scheduled groups;

(E) youth participates in specialized treatment program(s) or supplemental groups, if applicable;

(F) youth participates in academic and workforce development programs commensurate with abilities; and

(G) youth consistently applies learned skills in daily behavior.

(g) Roles and Responsibilities for Multi-Disciplinary Team Meetings.

(1) Members of the MDT make stage decisions collaboratively, providing input in their areas of expertise. The MDT facilitates and confirms stage progression by reviewing progress and interviewing the youth. The youth's case manager serves as the MDT facilitator.

(2) The multi-disciplinary team for each dormitory or living unit meets weekly to discuss each youth's weekly performance ratings and other living unit issues.

(A) Based on a each youth's weekly performance status rating (demonstration of skills relative to assigned stage), the MDT may adjust a youth's standard privileges for the week, and may reduce or remove consequences imposed for prior major or minor rule violations if the youth's improved behavior warrants it.

(B) On a weekly basis, the MDT makes decisions about youth participation in campus programs, participation in leisure skills building groups or extracurricular activities, approves various youth requests/suggestions, and makes recommendations to facility administration regarding youth movement due to specialized program need, program completion, or lack or progress in the assigned program.

(3) The MDT meets monthly for an integrated and comprehensive assessment of each youth's progress in the rehabilitation program.

(A) Prior to the meeting, assigned staff members are responsible for collecting specific information in their area of expertise and making it available for the meeting.

(B) The case manager is responsible for contacting the family to invite them to the meeting and ensuring their input into the process.

(C) The youth is responsible for being prepared to discuss information related to his/her program and preparing any information to present relative to stage progression.

(D) During the monthly assessment, the youth's general progress in the program and on specific case plan objectives is reviewed, risk and protective factors are reviewed, medical and mental health information is discussed (where applicable), feedback is provided to the youth on areas of strength and areas needing improvement, interventions to assist the youth's progress are discussed and developed, community re-entry planning is discussed and the youth's stage is assigned.

(E) An updated individual case plan is developed for youth following the meeting.

(F) Every 90 days the youth's assessment of risk and protective factors is reviewed and updated, and a progress report is provided to the parent following the MDT meeting.

(4) The MDT will address and make rehabilitation recommendations that also reflect:

(A) specialized treatment needs of the youth to include chemical dependency, mental health, cognitive, aggressive, sexual behavior and language proficiency;

(B) any other relevant specialized needs not identified specifically in this policy; and

(h) Documentation and Youth Interview. A stage assessment is conducted on the basis of documentation related to the youth's performance during the previous 30-day period. The MDT conducts a face-to-face interview with the youth:

(1) monthly at the stage assessment;

(2) weekly if the youth's behavior indicates that a loss of privilege or privilege adjustment may be necessary (see §95.2 of this title for more information on the youth privilege system); and

(3) prior to movement to a less restrictive placement;

(i) Opportunity to Demonstrate Completion of Requirements.

(1) Some objectives may be completed in a single month. Completion of all stage requirements for promotion are demonstrated primarily through consistent participation in scheduled activities and development of skills to address risk factors, which will generally take longer than one month to achieve. The stage requirements are generally sequential.

(2) During each monthly assessment period, the youth is provided an equal opportunity, as the youth's behavior warrants, to participate in the scheduled activities needed to progress. With reasonable effort by the youth, the requirements of stage 4 will be completed by the youth's minimum length of stay or minimum period of confinement. For youth whose minimum length of stay or minimum period of confinement exceeds 12 months, the schedule must provide an opportunity for completion of stage 4 requirements within one year.

(j) Documentation and Youth Notification of Results of Stage Assessment. The following activities are required of the primary service worker (PSW) after a stage assessment:

(1) within two workdays of the stage assessment, the PSW meets with the youth to review the results of the assessment. The PSW discusses with the youth the strengths and specific areas needing improvement;

(2) within three workdays, the PSW enters the stage assessment results into the automated data entry system; and

(3) within seven calendar days, the PSW attempts to contact the youth's family by telephone to share the outcome of the stage assessment.

(k) Development of the Individual Case Plan. The following case planning activities are required of the PSW after a stage assessment:

(1) within seven calendar days of the stage assessment, the PSW completes the monthly Individual Case Plan (ICP) with and for the youth, reviews its content and obtains the youth's signature; and

(2) youth who have completed stage 3 and who are within 90 days of their minimum length of stay or minimum period of confinement will have a transition ICP initiated. The plan will be developed based upon the youth's individualized risk factors, strengths, and needs.

(l) Stage Assessment Upon Return to a High Restriction Facility.

(1) Youth who are returned to high restriction from a medium restriction facility as a result of a due process hearing (other than parole revocation hearing) are placed on stage 3, or are retained on the current stage if currently assigned to stage 1 or 2.

(2) Youth who are returned to high restriction as a result of a parole revocation hearing or who are recommitted to TYC are placed on stage 1.

(m) Appeal of Assessment. The youth may appeal the results of a stage assessment, or of the lack of opportunity to demonstrate completion of requirements, by filing a grievance in accordance with §93.31 of this title. The person assigned to respond to the grievance must be a staff member who is not a member of the MDT or a person who has been involved in the youth's current assessment.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901674

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. SPECIAL NEEDS OFFENDER PROGRAMS

37 TAC §87.51

The Texas Youth Commission (TYC) proposes new §87.51, concerning special needs offenders. The new section will establish TYC's process for assessing youth for specialized treatment needs and providing youth with treatment programs and interventions that are best suited to address those needs.

Robin McKeever, Director of Administrative Services, has determined that for the first five-year period the section is effect there are no anticipated significant fiscal implications for state or local government as a result of enforcing or administering the section.

Dianne Gadow, Director of Integrated Treatment and Support, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the establishment of a system that provides specialized programming opportunities for more youth, and that more appropriately matches the level of specialized treatment intervention with each youth's assessed treatment need.

There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. No private real property rights are affected by adoption of this rule.

The new rule is proposed under Human Resources Code §61.0315, which requires the commission to offer or make available certain specialized treatment programs in an adequate manner so that a child in the custody of the commission receives appropriate rehabilitation services recommended for the child by the committing court, and §61.076, which provides the commission with the authority to require children committed to its care to participate in academic, vocational, physical, and correctional training and activities.

The proposed rule implements Human Resources Code §61.034.

§87.51.Special Needs Offenders.

(a) Purpose. The purpose of this rule is to identify the process by which youth committed to the Texas Youth Commission (TYC) are assessed for specialized treatment needs and determined eligible for specialized treatment programs. The purpose of all provisions in this rule is to promote successful youth re-entry and reduce risk to the community by addressing individual specialized treatment needs through programs that are shown to reduce risk to re-offend.

(b) Definitions. Except as indicated in this rule, definitions for terms used in this rule are found in §85.1 of this title.

(1) Psychoeducational Curriculum--a short term education program delivered by appropriately trained staff to address youth with a low need for specialized treatment. These programs are provided to youth who are participating in the general rehabilitation program. Youth are temporarily pulled out of general rehabilitation programming to participate in specialized groups, and return to general rehabilitation programming upon completion of the curriculum.

(2) Short-Term Treatment Program--a treatment program delivered by a licensed or appropriately trained staff that addresses youth with a medium need for specialized treatment. These programs are provided to youth who are participating in the general rehabilitation program. Youth are temporarily pulled out of general rehabilitation programming to participate in specialized groups and individual counseling, and return to general rehabilitation programming upon completion of the short-term program.

(3) Sex Offense--a reportable adjudication as defined in Article 62.001 of the Code of Criminal Procedure.

(4) Sexual Misbehavior--a documented report of conduct which meets the elements of a sex offense but did not result in an adjudication for a sex offense or any diagnosis of Paraphilia as defined in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.

(1) Upon admission to TYC, various assessments are conducted to determine whether youth have certain specialized treatment needs and to identify the type of specialized program that is best suited to address those needs. Specialized treatment needs may be re-assessed at any time during a youth's stay in TYC. Re-assessment may also be conducted following a youth's return to a high restriction facility upon request of a parole officer, case manager, psychologist, or placement unit staff.

(2) Each youth assessed as having a specialized treatment need will be provided specialized programming. If, due to program resources, a youth cannot be provided the type of specialized treatment program designated herein for his/her assessed need level in his/her highest priority treatment area, the youth will be provided with the most appropriate alternate form of specialized intervention for that treatment need.

(3) Youth with multiple specialized needs will have these needs addressed while under TYC jurisdiction. Some specialized treatments may be provided concurrently and others successively. Youth may have specialized needs addressed while in a high or medium restriction facility or on parole based on assessment results and treatment team recommendations.

(d) Specialized Treatment Needs. The areas of specialized treatment need are set forth in paragraphs (1) - (6) of this subsection, with each area given priority for placement and treatment in the order listed. These rankings are designed to reflect a hierarchy based on urgency of need, ability to meaningfully participate in the program, and duration of the treatment programs.

(1) Medical. Each youth is provided comprehensive medical and dental examinations. Based on the results of these examinations, each youth is assigned a need level for medical or dental services.

(A) High Need--includes youth who have an acute illness, an exacerbation of a chronic medical/dental condition, a serious injury, and/or a need for hospitalization. These youth generally have unstable or unpredictable conditions, and require 24-hour nursing care or supervision beyond the scope of normal infirmary services. Examples include the need for extensive surgery or a complex or invasive treatment necessary to stabilize an acute or chronic condition (e.g., chemotherapy, HIV treatment, late stage or complicated pregnancy, severe systemic infection, or complex bone fracture). The medical needs, until resolved, take precedence over other therapeutic interventions and may temporarily prevent active participation in the agency's delinquency rehabilitation program. High need youth will be assigned to a placement providing readily available intensive in-patient services and specialty medical resources.

(B) Medium Need--includes youth who have a diagnosed serious medical or dental condition that will likely require frequent access to off-site clinical services and potential access to hospital services for symptom exacerbation. Examples include uncontrolled diabetes, seizure disorder, hypertension, hernia repair, or a functional disability requiring ongoing evaluation or rehabilitation. Functional impairment may require adaptations to the agency's delinquency rehabilitation program on a short or long-term basis. Medium need youth will be assigned to a placement providing readily available specialty medical resources.

(C) Low Need--includes youth diagnosed with a condition that is mild - moderate in severity and does not require ongoing off-site treatment or monitoring. Low need youth are able to participate meaningfully in the agency's delinquency rehabilitation program but may be temporarily restricted from an activity due to an accident, injury, or illness of mild - moderate severity. Low need youth will be assigned to a placement with access to routine medical care.

(D) None--includes youth with no medical or dental diagnosis requiring ongoing attention.

(2) Mental Health. The mental health assessment is provided by psychology and psychiatry staff through comprehensive psychological and psychiatric evaluations, using the most current edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on this assessment, each youth is assigned a need level for mental health treatment services.

(A) High Need--includes any youth with a diagnosed mental disorder (other than a singly diagnosed behavioral or chemical use disorder) who, because of the signs or symptoms of the disorder, is suffering significant impairment in reality testing or communication or major impairment in two or more of the following areas: school, interpersonal relationships, staff relationships, judgment, thinking, or mood. High need youth will be assigned to a TYC-operated stabilization unit or a psychiatric hospital.

(B) Medium Need--includes youth who have a diagnosed mental disorder (other than a singly diagnosed behavioral or chemical use disorder) with moderate to serious signs or symptoms of that disorder, and who is having moderate to serious impairment in daily living expectations, interpersonal and staff relationships, judgment, thinking, or mood. Youth with a medium need for mental health treatment are assigned to a mental health treatment program.

(C) Low Need--includes youth who have a diagnosed mental disorder (other than a singly diagnosed behavioral or chemical use disorder) but who are able to adequately function in the areas of daily living, interpersonal and staff relationships, judgment, thinking, and mood with supportive psychiatric and psychological services. Low need youth will be assigned to any TYC placement offering appropriate psychological and psychiatric services.

(D) None--includes youth who have no diagnosed condition(s) that meet the criteria listed in subparagraphs (A) - (C) of this paragraph.

(3) Mental Retardation. The diagnosis of mental retardation is made by a psychologist based on the results of an assessment of cognitive functioning and adaptive behavior as defined in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on this diagnosis, each youth is assigned a need level for mental retardation services.

(A) High Need--includes youth who have a diagnosis of Moderate Mental Retardation on Axis II. High need youth will be assigned to a placement offering individualized mental retardation services.

(B) Medium Need--includes youth who have a diagnosis of Mild Mental Retardation on Axis II and a mental health treatment need rating of medium or low. Medium need youth will be assigned to a mental health treatment program for specialized services.

(C) Low Need--includes youth who have a diagnosis of Mild Mental Retardation on Axis II of the Diagnostic and Statistical Manual of Mental Disorders. Low need youth may be assigned to any placement.

(D) None--includes youth who have no diagnosis of Mental Retardation on Axis II of the Diagnostic and Statistical Manual of Mental Disorders.

(4) Sexual Behavior. The sexual behavior treatment assessment is provided by a psychologist, associate psychologist, or licensed sex offender treatment provider through a clinical interview and the agency-approved juvenile sexual offender assessment instrument. The assessment is provided for youth who have been adjudicated for a sex offense or have a credible, documented history of sexual misbehavior. Based on this assessment, each youth is assigned a need level for sexual behavior treatment services.

(A) High Need--includes youth who have an adjudicated sex offense and received an assessment rating of high need for sexual behavior treatment, based on the results of the clinical interview and the agency-approved juvenile sexual offender assessment instrument. High need youth will be assigned to participate in a residential sexual behavior treatment program.

(B) Medium Need--includes youth who have an adjudicated sex offense and received an assessment rating of medium need for sexual behavior treatment based on the results of the clinical interview and the agency-approved juvenile sexual offender assessment instrument. Medium need youth will be assigned to participate in a short-term sexual behavior treatment program.

(C) Low Need--includes youth who have a history of sexual misbehavior and receive an assessment rating of low need for sexual behavior treatment based on the results of the clinical interview and the agency-approved juvenile sexual offender assessment instrument. Low need youth will be assigned to participate in a psychosexual education curriculum.

(D) None--includes youth who have no history of sexual misbehavior or adjudicated sex offenses.

(5) Capital and Serious Violent Offender. A psychologist or associate psychologist makes a determination of need for capital and serious violent offender treatment for any youth who was found by a court or TYC administrative law judge to have engaged in conduct that resulted in the death of a person, resulted in serious bodily injury to a person, involved using or exhibiting a deadly weapon, and any youth referred by a psychologist based on a reasonable belief the youth is need of capital serious violent offender treatment. The determination is based on the youth's offense history and psychological assessment of the youth's need for specialized treatment intervention.

(A) High Need--will be assigned to participate in a residential capital and serious violent offender program.

(B) Medium Need--will be assigned to participate in a short-term program to address aggression and violent behavior issues.

(D) None--includes youth who are assessed as not having a need for capital and serious violent offender treatment.

(6) Alcohol or Other Drug Treatment. Youth identified through a screening process as needing further alcohol or other drug (AOD) assessment will be assessed and diagnosed by a psychologist or associate psychologist using the latest edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on a clinical interview and the results of an agency-approved comprehensive assessment instrument, each youth is assigned a need level for AOD programming.

(A) High Need--includes youth with diagnoses of substance abuse or dependency and who require a residential AOD treatment program based on the results of the agency-approved comprehensive assessment. High need youth will be assigned to participate in a residential AOD program.

(B) Medium Need--includes youth with diagnoses of substance abuse or dependency and who do not require residential treatment based on the results of the agency-approved comprehensive assessment. Medium need youth will be assigned to participate in a short-term AOD program.

(C) Low Need--includes youth without a formal diagnosis of chemical dependency or substance abuse disorders, but who have a risk of drug abuse or dependency based on a history of experimentation, family use, or history of abuse. Low need youth will be assigned to participate in a psychoeducational AOD curriculum.

(D) None--includes youth who have no history of substance abuse or risk of use.

(e) Requirement to Complete Specialized Treatment.

(1) This subsection applies only to youth assessed as having a high or medium treatment need in the following treatment areas: Sexual Behavior; Capital and Serious Violent Offender; or Alcohol or Other Drug Treatment. This subsection does not apply to youth assigned to complete psychoeducational supplemental curricula in these treatment areas.

(2) This subsection does not apply to decisions made by the Release Review Panel under §85.57 of this title.

(3) In order to qualify for transition to a medium restriction placement under §85.45 of this title or to earn release to parole under §85.55, §85.59, or §85.69 of this title, a youth who has been assessed as having a high or medium need must:

(A) complete the assigned specialized treatment program while in a high restriction facility; or

(B) as recommended by the youth's treatment team and determined by the final decision authority in consultation with the division director over treatment programming or designee, make sufficient progress in the assigned specialized treatment program with a corresponding reduction in risk in order to allow for the youth to continue the specialized treatment in a less restrictive setting. Risk reduction will be assessed by appropriate assessment instruments. Requirements to continue or complete treatment will be included in the youth's conditions of placement or conditions of parole, as appropriate.

(f) Individual Exceptions.

(1) The requirement to complete specialized treatment as described in subsection (e) of this section may be waived if the division director over treatment programming or designee determines that the youth is unable to participate in the assigned specialized treatment program or curriculum due to a medical, mental health, or mental retardation condition.

(2) Each youth's individual circumstances will be considered when determining the most appropriate type of specialized treatment intervention to assign. A youth may be assigned to a specialized program or curriculum designated herein for a higher or lower need level than the youth's assessed need level for any reason deemed appropriate by the division director over treatment programming or designee.

(g) Specialized Aftercare. Youth who successfully complete one of the following specialized treatment programs, or who otherwise need specialized aftercare as determined by the youth's treatment team, will receive specialized aftercare on an outpatient basis as needed, recommended by the treatment team, and available:

(1) mental health treatment program;

(2) residential or short-term sexual behavior treatment program; or

(3) residential or short-term alcohol or other drug treatment program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901673

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

37 TAC §87.67

The Texas Youth Commission (TYC) proposes an amendment to §87.67, concerning Corsicana Stabilization Unit. The amended rule will require that a due process hearing to extend a youth's stay in the unit a second time must be held within 90 days of the first extension hearing, rather than within 12 months of the first extension hearing. The amended rule will also specify that a Level II due process hearing (as described in §95.55 of this title) is the required level of due process in order to extend a parole-status youth in the unit.

Robin McKeever, Director of Administrative Services, has determined that for the first five-year period the section is in effect there are no anticipated significant fiscal implications for state or local government as a result of enforcing or administering the section.

Toysha Martin, General Counsel, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be increased legal protections for youth admitted to the Corsicana Stabilization unit as a result of more frequent hearings to prove admission criteria continue to exist.

There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. No private real property rights are affected by adoption of this rule.

The amendment is proposed under Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public, and §61.076, which provides the commission with the responsibility and authority to provide any medical or psychiatric treatment that is necessary.

The proposed rule implements Human Resources Code §61.034.

§87.67.Corsicana Stabilization Unit.

(a) (No change.)

(b) Applicability.

(1) The mental health status review due process procedures are found in §95.71 of this title [ ~~(relating to Mental Health Status Review Hearing Procedure)~~].

~~[(2) See §95.55 of this title (relating to Level II Hearing Procedure).]~~

~~[(3) See §95.51 of this title (relating to Level I Hearing Procedure).]~~

(2) [~~(4)~~] For emergency mental health placements, see §87.71 of this title [ ~~(relating to Emergency Mental Health Admission)~~].

(3) [~~(5)~~] Certain basic rights are recognized for each youth in TYC, see §93.1 of this title [~~(relating to Basic Youth Rights)~~].

(1) (No change.)

(2) Admission Process.

(A) Referrals. Complete current psychiatric and psychological evaluations by a licensed psychiatrist and a psychologist must be included in order to be considered. Referral information should be sent directly to the stabilization unit [~~admissions panel~~].

(B) Emergency Referrals. If an emergency exists, procedures in §87.71 of this title [~~(relating to Emergency Mental Health Admission)~~] must be followed. Consistent with emergency criteria, staff may request of the superintendent immediate placement of the youth in the CSU. On admission, requirements in this policy are effective for all emergency admissions.

(3) 96 Hour Admission Review Process. A mental health status review hearing shall be held for all youth within 96 hours of arrival at the unit. If the 96 hour period ends on a Saturday, Sunday or official holiday [~~Legal Holiday~~], the hearing must be held on the next regular working day. The hearing is held to determine whether criteria for unit admission have been met.

(A) - (B) (No change.)

(C) If the youth's treatment needs and appropriateness for admission cannot be determined during the 96 hour mental status review hearing, the youth may be temporarily admitted for diagnostic and assessment purposes up to 45 days from the date of arrival provided the hearing manager [~~panel~~] concludes:

(i) - (iv) (No change.)

(d) Program Requirements.

(1) - (4) (No change.)

(5) By the end of 90 days from the date of the admission due process hearing, a youth shall be returned to the referring source or referred to the centralized placement unit (CPU) [~~CPU~~] for appropriate placement unless an extension becomes effective at that time.

(e) Extension of Time Beyond 90 Days to Treat the Psychiatric Dysfunction.

(1) (No change.)

(2) Extension Due Process Requirements.

(A) The due process required to determine whether extension criteria have been met is[:]

~~[(i) a level I hearing for all youth on parole. Parole is not revoked; or]~~

[~~(ii)~~] a mental health status review hearing [ ~~for all non-parole youth~~]. A youth on parole status, as defined in §95.50 of this title, will remain on parole status.

(B) The due process hearing shall be conducted:

(i) two weeks immediately preceding the [~~youth's~~] 90th day from the admission hearing or two weeks preceding the 90th day from the previous extension hearing [ ~~anniversary date of the latest extension hearing~~ ] unless the youth is being considered for transition out of the unit before the end of the initial 90 day stay or latest extension hearing; or

(ii) (No change.)

(3) The Effect of an Extension.

(A) (No change.)

(B) An extension granted means that the period of time[ ~~, beyond the initial 90 day stay,~~] during which a youth may be treated for a psychiatric dysfunction under rules of this policy[, ] shall be extended for up to 90 days [ ~~12 months~~] from the date of the extension due process hearing. Successive extension hearings may be held.

(4) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901657

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 91. PROGRAM SERVICES

SUBCHAPTER D. HEALTH CARE SERVICES

37 TAC §91.98

The Texas Youth Commission proposes new §91.98, concerning Therapeutic Restraints. The new rule will contain provisions for administering restraints when clinically indicated for medical or mental health purposes. The provisions regarding medical restraints are new to the commission's rules, whereas the provisions regarding mental health restraints have been moved from §97.23 (relating to use of force), which is also published for proposal in this issue of the Texas Register.

Robin McKeever, Chief Financial Officer, has determined that for the first five-year period the new section is in effect there will be no significant fiscal implications for state or local government as a result of enforcing or administering the new section.

Rajendra Parikh, M.D., Medical Director has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the protection of youth from serious harm caused by self-injury or refusal of medical treatment. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the new section as proposed. No private real property rights are affected by adoption of this rule.

The new section is proposed under the Human Resources Code, §61.076, which provides the commission with the authority to provide any medical or psychiatric treatment that is necessary for a child committed to the commission.

The proposed rule implements the Human Resources Code, §61.034.

§91.98.Therapeutic Restraints.

(a) Purpose. This rule establishes the criteria, procedures, and limitations for use of therapeutic restraints when clinically indicated for medical or mental health purposes.

(b) Applicability. This rule applies to all Texas Youth Commission (TYC) residential facilities.

(1) For criteria and procedures relating to use of force, see §97.23 of this title.

(2) For criteria and procedures on administering a psychotropic drug in a psychiatric emergency when a youth will not give consent for the administration, see §91.92 of this title.

(d) Definitions.

(1) Mental Health Professional--has the meaning assigned by §91.87 of this title.

(2) Therapeutic Restraint--a restraint used solely for medical or mental health purposes.

(3) Medical Provider--a:

(A) physician; or

(B) mid-level practitioner, such as a nurse practitioner or physician's assistant, acting under the direction of a physician.

(4) Psychiatric Provider--a:

(A) psychiatrist, or

(B) psychiatric physician's assistant or psychiatric nurse practitioner acting under the direction of a psychiatrist.

(e) General Provisions.

(1) Therapeutic restraint equipment must be used only in a manner consistent with its intended design and purpose.

(2) Only therapeutic restraint equipment approved by the executive commissioner or designee may be used in TYC facilities.

(3) TYC staff who may be expected to participate in application of therapeutic restraints or monitoring, managing, or approving of the restraint must receive special training and will not participate in its implementation until the training has been received. The training will include proper use and application of restraint devices and applicable TYC policies and guidelines regarding the implementation, documentation, and possible continuation of the restraint.

(4) If facility resources are not sufficient to support the procedural requirements as specified in this rule, therapeutic restraint must not be employed.

(5) Prior to placing a youth in any therapeutic restraint device designed to secure a person in a face-upward position, a medical provider shall be consulted if the youth is pregnant or has a seizure disorder or any other medical condition that contraindicates such restraint.

(6) The facility administrator or designee will ensure that the parent/guardian of a youth placed in therapeutic restraint is notified within 24 hours after the restraint is initiated.

(f) Therapeutic Restraints for Medical Purposes.

(1) Authorized Facilities. Medical restraints are authorized only at high restriction facilities that operate an on-site infirmary.

(2) Criteria for Use. Medical restraints may be used only to administer medical treatment to a resistant youth when failure to administer the treatment could have serious health implications.

(3) Authorization for Use.

(A) Only a medical provider may authorize a medical restraint. The authorization must be based on a determination that all appropriate less restrictive interventions have proved unsuccessful in controlling the youth's behavior.

(B) An order for medical restraint must specify the type of restraint to be used, duration of the restraint, and justification for the restraint.

(4) Procedural Requirements.

(A) A medical provider or nurse must be present during the application of restraints.

(B) Health care staff must check the youth every 15 minutes and assess the youth's condition, including circulation, position, and open airway if wrist and/or ankle soft restraints are used.

(C) A nurse will perform range-of-motion exercises at least every 30 minutes for a period of at least five minutes if wrist and/or ankle soft restraints are used;

(D) regularly scheduled meals and drinks served on appropriate food ware for safety;

(E) As soon as possible, but no later than 12 hours after application of restraints, the medical provider will consult with the facility administrator or designee to develop and implement a less restrictive treatment plan.

(F) Staff will provide continuous visual supervision of the youth while in restraints.

(G) Staff will provide an opportunity for elimination of bodily waste at least every two hours.

(H) A medical restraint must be terminated upon the earlier of:

(i) a determination by the medical provider that the youth's behavior no longer justifies application of medical restraints; or

(ii) expiration of the provider's order.

(g) Therapeutic Restraints for Mental Health Purposes.

(1) Authorized Facilities. Mental health restraints are authorized only at facilities designated by the executive commissioner or designee.

(2) Criteria for Use. Therapeutic restraints for mental health purposes are authorized for use only when the restraint is necessary to prevent serious self-injury.

(3) Authorization for Use.

(A) Only a licensed doctoral psychologist or psychiatric provider may authorize a mental health restraint. The authorization must be based on a determination that all appropriate less restrictive interventions have proven unsuccessful in controlling the youth's self-injurious behavior.

(B) At least one staff trained specifically in mental health restraint techniques must be involved in any mental health restraint procedure. If at least one trained staff is not available to supervise, the restraint shall not be employed.

(C) Prior to the expiration of the first hour of restraint, the youth shall be evaluated face-to-face by a mental health professional who may recommend approval to continue the restraint.

(D) In order to recommend continuation of the restraint, the mental health assessment will verify that the current use of the restraint is not having a psychologically damaging effect and that the need for the restraint is not due to an immediate psychiatric crisis which requires alternative interventions.

(E) Approval from a psychiatric provider or a licensed doctoral psychologist must be obtained to continue the restraint beyond one hour. If a determination is made that the behavior is due to a mental health problem, the youth shall be provided appropriate mental health services, including referral to the Corsicana Stabilization Unit or state hospital if he/she meets the admission criteria under §87.67 or §87.69 of this title.

(F) Additional face-to-face assessment by a mental health professional is required to extend the restraint beyond four hours and at least every four hours thereafter if the restraint continues. Only a psychiatric provider or licensed doctoral psychologist may approve a recommended extension.

(G) The facility administrator or designee may direct additional mental health assessment at any time.

(H) The restraint shall be terminated as soon as the youth's behavior indicates the threat of imminent self-injury is absent, as determined by a psychiatric provider or licensed doctoral psychologist.

(I) No order or approval for mental health restraint may be in force for longer than 12 hours. If the restraint is still required for the youth's safety, a psychiatric provider must directly observe the youth and provide written orders, which may include psychotropic medication when clinically indicated.

(4) Procedural Requirements.

(A) The only approved mental health restraint method is full-body restraint, face-upward, on a bed equipped with cloth or leather mechanical restraint straps/devices.

(B) Staff shall ensure the youth's personal dignity by providing a protected environment and as much privacy as possible.

(i) regular checks, performed by a nurse, of the physical condition of the youth and the placement of the restraints within the first 30 minutes and every hour during the restraint;

(ii) an assessment of circulation, position, and open airway checks at least every 15 minutes by trained staff;

(iii) opportunity for range of motion exercises at least every 30 minutes for a period of at least five minutes;

(iv) regularly scheduled meals and drinks served on appropriate food ware for safety;

(v) opportunity for elimination of bodily waste at least every two hours; and

(vi) continuous visual supervision by staff.

(D) A psychiatric provider or licensed doctoral psychologist must develop a detailed plan for clinical follow-up.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 4, 2009.

TRD-200901684

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 93. YOUTH RIGHTS AND REMEDIES

37 TAC §93.31, §93.53

The Texas Youth Commission (TYC) proposes amendments to §93.31 (concerning youth grievance system) and §93.53 (concerning appeals to the executive commissioner).

The amended §93.31 will require that grievances involving healthcare issues must be assigned for resolution to an individual with the appropriate clinical expertise and credentials to properly resolve the grievance. The amended rule will also establish that appeals of responses to grievances involving healthcare issues will be routed to the executive commissioner's office for resolution. There will be no local-level appeal for such issues.

The amended §93.53 will contain a corresponding revision to reflect the change in §93.31 which requires direct appeal to the executive commissioner for appeals involving healthcare grievance resolutions. The amended rule will also contain corresponding revisions to reflect the proposed changes in Chapter 95 and Chapter 97, which are also published in this issue of the Texas Register.

Robin McKeever, Director of Administrative Services, has determined that for the first five-year period the amended sections are in effect there are no anticipated significant fiscal implications for state or local government as a result of enforcing or administering the sections.

Toysha Martin, General Counsel, has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the operation of a more effective and responsive youth grievance system and the availability of accurate and current policies concerning TYC operations and programming. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. No private real property rights are affected by adoption of this rule.

The amendments are proposed under the Human Resources Code §61.034, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its functions, and §61.0422, which requires the commission to keep information about each written complaint filed with the commission by a child receiving services from the commission or the child's parent or guardian.

The proposed rules implement the Human Resources Code, §61.034.

§93.31.Youth Grievance System.

(a) Policy.

(1) Youth, parents or guardians of youth, and youth advocates have a right to file grievances concerning the care, treatment, services, or conditions provided for youth under the jurisdiction of the Texas Youth Commission (TYC). TYC will resolve grievances in a prompt, fair, and thorough manner; however, grievances alleging criminal violations or abuse, neglect, and exploitation will be referred to law enforcement for investigation and disposition.

(2) (No change.)

(b) - (c) (No change.)

(d) Grievances.

(1) Methods for Filing a Grievance.

(A) - (B) (No change.)

(i) - (ii) (No change.)

(iii) In residential facilities, secure drop boxes will be provided in easily accessible locations for youth to submit completed grievance forms. Access to the drop boxes is restricted to staff members designated by the executive commissioner [ ~~director~~] or designee.

(iv) - (v) (No change.)

(2) Resolution of a Grievance.

(A) (No change.)

(B) Each grievance will be assigned to a staff member who is not directly involved in the grievance and has the authority to implement an appropriate corrective measure or has knowledge or access to provide clarifying information. Grievances involving healthcare issues must be assigned to a person with appropriate clinical expertise and credentials. The assigned staff member will provide a written response to the grievant within 15 workdays of submission of the grievance.

(3) Appeal of a Grievance Resolution.

(A) A grievant may file an appeal if dissatisfied with the response. Except for healthcare-related grievances, TYC will designate a staff member to provide a written response to the appeal. Appeals of responses to healthcare-related grievances will be submitted as direct appeals to the executive commissioner or designee in accordance with §93.53 of this title.

(B) For grievances that are not healthcare-related, [ ~~Pursuant to §93.53 of this title,~~] a grievant may submit an appeal to the executive commissioner [~~director~~] or designee if dissatisfied with the appeal response in accordance with §93.53 of this title.

(C) A grievant may submit a direct appeal to the executive commissioner [~~director~~] or designee if no written response is received within 15 workdays after submitting a grievance or an appeal of a grievance response.

(D) An appeal to the executive commissioner [ ~~director~~] or designee exhausts all administrative remedies on the issue(s) raised in the grievance.

§93.53.Appeals [~~Appeal~~] to the Executive Commissioner [~~Director~~].

(a) Purpose. The purpose of this rule is to permit Texas Youth Commission (TYC) youth and their parents or guardians to appeal decisions made by TYC or contract program employees to the TYC executive commissioner [~~director~~].

[(b) Appeal of Youth Complaint Resolutions to the Executive Director. Any disposition of any complaint made under §93.31 of this title (relating to Complaint Resolution System) may be appealed to the executive director, only after all levels of appeal have been exhausted locally.]

(b) [~~(c)~~] Direct Appeals to the Executive Commissioner [~~Director~~]. A direct appeal to the executive commissioner or designee [ ~~director~~] may be filed in matters limited to:

(1) results of a Level I or II hearing;

(2) assignment of minimum length of stay;

(3) response to a healthcare-related grievance;

(4) response to an appeal of a grievance not related to healthcare issues;

(5) lack of written response within 15 workdays after submission of a grievance;

(6) lack of written response within 15 workdays after submission of a grievance appeal;

~~[(1) parole revocation;]~~

~~[(2) reclassification;]~~

~~[(3) classification;]~~

~~[(4) a disciplinary transfer or assigned disciplinary length of stay under §95.11 of this title (relating to Disciplinary Consequences);]~~

~~[(5) Behavior Management Program length of stay under §95.17 of this title (relating to Behavior Management Program);]~~

~~[(6) Aggression Management Program length of stay under §95.21 of this title (relating to Aggression Management Program);]~~

(7) a disapproved home evaluation;

(8) an appeal of a Level IV hearing [~~when a youth is being detained in a location other than a TYC operated institution~~];

~~[(9) a result of the second and subsequent Level IV hearing pursuant to §95.59 of this title (relating to Level IV Hearing Procedure) when a youth is in an institution detention program;]~~

(9) [~~(10)~~] a decision to extend the youth's stay in the Security Program, if the youth has already been in the Security Program for 120 [~~240~~ ] continuous hours or longer;

(10) [~~(11)~~] a decision from a mental health status review hearing [~~pursuant to §95.71 of this title (relating to Mental Health Status Review Hearing Procedure)~~ ];

(11) [~~(12)~~] a decision from a Title IV-E hearing;

(12) [~~(13)~~] the findings of an alleged mistreatment investigation; and [~~pursuant to §93.33 of this title (relating to Alleged Abuse, Neglect, and Exploitation).~~]

(13) the decision of the administrator of chaplaincy services regarding a request for accommodation of religious practices.

(c) [~~(d)~~] Filing Deadline. All appeals [~~to the executive director~~] must be submitted in writing and clearly describe the grounds for the appeal and filed within six (6) months of the decision being appealed. Appeals filed after that time may be considered at the discretion of the executive commissioner or designee [~~director~~].

(d) [~~(e)~~] Action of the Executive Commissioner [~~Director~~].

(1) The executive commissioner or designee [~~director~~ ] responds in writing to each appeal. Failure to respond to an appeal within 30 working days will constitute an exhaustion of administrative remedies for purposes of appeal to the courts, but will not be construed as acceptance or rejection of any contention made in the appeal.

(2) The executive commissioner or designee [~~director~~ ] will consider the recommendations of the Office of General Counsel in reaching a decision on appeals of investigation findings, including any additional findings or information that resulted from further investigation.

(3) The executive commissioner or designee [~~director~~ ] may uphold, reverse or modify the grievance [~~complaint~~ ] resolution or return the grievance [~~complaint~~ ] to the chief local administrator [~~CLA~~] with directions. The executive commissioner or designee's [ ~~director's~~] disposition of a youth grievance [ ~~complaint~~] may also be in the form of a determination that the grievance [~~complaint~~] involves operational issues that have been adequately addressed and resolved at the facility level.

(4) The executive commissioner [~~director~~] or [ ~~his/her~~] designee may determine that an issue has not been sufficiently developed to render an informed appeal resolution. If so, the executive commissioner [~~director~~] or [ ~~his/her~~] designee may, prior to the issuance of a response:

(A) conduct further investigation;

(B) provide specific direction or instruction about information needed concerning the investigation and state a time frame in which to comply with the direction or instruction; or

(C) re-open the investigation, and if the investigation finding(s) are changed, the parties entitled to notification will be notified of their right to appeal the new finding(s).

(e) [~~(f)~~] Distribution of Appeal Decisions. Appeal decisions are distributed to the following:

(1) the complainant;

(2) the complainant's attorney or representative, if any;

(3) the chief local administrator [~~(CLA)~~] where the report is filed; and

(4) other persons as deemed appropriate.

(f) [~~(g)~~] Appropriate TYC staff must [ ~~shall~~] assist youth in interpreting appeal decisions from TYC's executive commissioner or designee [ ~~director~~].

(g) [~~(h)~~] The appeal decision of the executive commissioner or designee [~~director~~] is the final administrative resolution of an issue appealed and constitutes an exhaustion of administrative remedies for purposes of appeal to the courts.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 4, 2009.

TRD-200901681

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 93. YOUTH RIGHTS AND REMEDIES

The Texas Youth Commission (TYC) simultaneously proposes the repeal of §93.33, concerning Alleged Abuse, Neglect, and Exploitation, and new §93.33, concerning Alleged Abuse, Neglect, and Exploitation. The new section will reflect the creation of the Office of Inspector General (OIG) within the TYC. Because the OIG has authority to conduct criminal investigations, the amended rule will clarify that the standards for investigations described in the rule apply only to administrative investigations of abuse, neglect, or exploitation conducted under the Family Code, Chapter 261. The new rule will also establish that every allegation of abuse is screened by OIG staff to determine whether a criminal investigation is warranted.

In addition to changes reflecting the creation of the OIG, the new rule also revises the provisions regarding the release of reports of alleged abuse, neglect, or exploitation to the public. In compliance with recently enacted changes to Family Code §261.201, the rule will establish that TYC will release reports of alleged abuse or neglect when it is not prohibited from doing so by Government Code Chapter 552 or other law. The new rule also establishes standards for redaction of information when reports of abuse or neglect are publicly disclosed.

Cris Love, Chief Inspector General, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be compliance with recently enacted legislation, as well as the availability of current information concerning TYC's investigative operations.

Comments on the proposal may be submitted within 30 days of the publication of this notice to DeAnna Lloyd, Manager of Policy and Accreditation, Texas Youth Commission, P.O. Box 4260, Austin, Texas 78765, or email to deanna.lloyd@tyc.state.tx.us.

37 TAC §93.33

The repeal is proposed under Human Resources Code, §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeal implements the Human Resources Code, §61.034.

§93.33.Alleged Abuse, Neglect, and Exploitation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 4, 2009.

TRD-200901685

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

37 TAC §93.33

The new section is proposed under Family Code, §261.201, which requires the commission to release a report of alleged or suspected abuse or neglect if the commission is not prohibited by Chapter 552, Government Code, or other law from disclosing the report; and to edit the report to protect the identity of certain persons. The section is also proposed under the Human Resources Code, §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed rule implements the Human Resources Code, §61.034.

§93.33.Alleged Abuse, Neglect, and Exploitation.

(a) Purpose. This rule provides for the administrative investigation of allegations of abuse, neglect or exploitation in programs and facilities under Texas Youth Commission (TYC) jurisdiction. This rule provides standards for investigations and for the compilation of investigation information. The purpose of all provisions in this rule is the protection of youth.

(b) Applicability.

(1) This rule applies to all programs and facilities under TYC jurisdiction including institutions, halfway houses, contracted residential services, and parole services.

(2) This rule applies only to administrative investigation of abuse, neglect, or exploitation conducted under Chapter 261 of the Family Code. Except as specifically noted herein, this rule does not apply to criminal investigations conducted by the TYC Office of Inspector General under Human Resources Code §61.0451.

(3) See §93.31 of this title for procedures regarding the resolution of youth grievances.

(4) See §93.53 of this title for procedures regarding appeals to the chief executive officer.

(1) Abuse--an intentional, knowing, or reckless act or omission that causes or may cause emotional harm or physical injury to, or death of, a youth.

(2) Case Closure Disposition--the finding made upon official closure of a case of alleged abuse, neglect, or exploitation. The following dispositions shall be used for all allegations:

(A) Administratively Closed--the circumstances, facts, and/or evidence show that there is no merit to the allegation, or that the likelihood of solving the case is so negligible that further investigation is not warranted. (However, if additional information is later received, the case may be re-opened for investigation)

(B) Administratively Confirmed--the circumstances, facts, and/or evidence are sufficient that no additional investigation is needed to confirm that the allegation or violation did occur.

(C) Confirmed--an investigation established that the allegation is supported by a preponderance of evidence that the allegation did occur.

(D) Exonerated--an investigation established that the incident occurred but was lawful and proper or was justified under existing conditions.

(E) Not Confirmed--an investigation resulted in insufficient evidence to prove or disprove the allegations.

(F) Unfounded--an investigation established that the allegation is false, not factual.

(3) Chief local administrator (CLA)--the person employed in a TYC facility or district office that is responsible for overseeing the operations of a facility, contract program or parole services.

(4) Emotional harm--an impairment in the youth's growth, development, or psychological functioning that normally requires evaluation or treatment by a trained mental health or health care professional, whether or not evaluation or treatment is actually received. Sexual conduct in residential facilities is presumed to cause substantial emotional harm.

(5) Exploitation--the illegal or improper use of a youth or the resources of a youth, for monetary or personal benefit, profit, or gain.

(6) Neglect--a negligent act or omission, including failure to comply with an individual case plan, that causes or may cause substantial emotional harm or physical injury to, or death of a youth.

(7) Office of Inspector General (OIG)--a section of the agency with statutory authority to investigate crimes committed at a TYC facility, a residential facility operated under contract with TYC, by TYC employees, or individuals working under contract with TYC.

(8) Physical injury--an injury that normally requires examination or treatment by a trained health care professional, whether or not examination or treatment is actually received.

(9) Preponderance of the evidence--a standard of proof meaning the greater weight and degree of credible evidence; e.g., whether the credible evidence makes it more likely than not that abuse, neglect, or exploitation occurred.

(10) Report--a report that alleged or suspected abuse, neglect, or exploitation of a child has occurred or may occur.

(11) Sexual conduct--a lewd exhibition or a sexual contact with another person, including orifice penetration, fondling or sexual stimulation, whether or not the conduct is consensual.

(d) Reporting Requirements.

(1) Any person having cause to believe that a youth has been or may be adversely affected by abuse, neglect, or exploitation has an obligation under state law to report the matter to a law enforcement agency or to the Department of Family and Protective Services (DFPS). The OIG is an appropriate law enforcement agency for reports of suspected abuse, neglect or exploitation of youths subject to the jurisdiction of the agency. Any TYC employee, volunteer, or contractor in programs or facilities under TYC jurisdiction who has cause to believe a youth committed to the care and custody of TYC has been or may be adversely affected by abuse, neglect, or exploitation or receives such a report must immediately report the matter to law enforcement in accordance with the agency's reporting policies and procedures.

(2) The person making a report will provide as much detailed information as possible regarding the circumstances of the report, including the identity of persons involved, the location and time of relevant events, and the identity of others who may provide further information.

(3) The requirement to report under this section applies without exception to a person whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, or a mental health professional.

(4) Except for investigation purposes, the identity of a person making a report is confidential.

(e) Actions Taken upon Receipt of the Report. Upon receipt of a report of alleged abuse, neglect or exploitation, the chief local administrator will:

(1) in coordination with TYC OIG and/or local law enforcement, immediately take any action necessary to protect the youth and to preserve evidence that may be pertinent to an investigation of the matter;

(2) notify the youth's parents or guardian of the report and notify the youth if the report was made by a third party;

(3) determine whether or not the person accused of wrongdoing must be suspended, temporarily reassigned, or temporarily barred from assignment to TYC facilities pending the outcome of the investigation; and

(4) take any action necessary to ensure that the investigation or review is conducted with the full cooperation of staff and youth, that adequate resources are provided, and that the youth and witnesses are protected from retaliation or improper influence regarding the subject of the report.

(f) Assignment for Investigation.

(1) The OIG will promptly review each report of alleged abuse, neglect, or exploitation. Each report will be entered into a centralized database and assigned for an official administrative and/or criminal investigation if the allegation meets the definition of abuse, neglect, or exploitation.

(2) Whether to assign a report for criminal investigation by a peace officer from the OIG or appropriate outside law enforcement shall be determined on a case-by-case basis considering all relevant factors, including the severity and immediacy of potential harm.

(3) If a report presents an immediate risk of physical or sexual abuse of a youth that could result in the death or serious harm to the youth, the initial response by an OIG investigator will take place not later than 24 hours after the OIG is notified of the report.

(4) If deemed to be warranted by the chief inspector general or the administrative head of the agency, a report of abuse, neglect, or exploitation may be referred to appropriate outside law enforcement for investigation.

(5) Regardless of whether the case is investigated administratively, criminally, or both, the OIG will provide a prompt and thorough administrative report in accordance with the provisions of this rule.

(g) Standards for Administrative Investigations.

(1) Only a person with qualified experience and training will be assigned to conduct an administrative investigation of a report of abuse, neglect, or exploitation.

(2) In the event the OIG or other law enforcement agency has assumed a criminal investigation of a report, a person who has been assigned to conduct an administrative investigation in this section will cooperate and assist with the law enforcement agency's criminal investigation and not take any action that might be detrimental to it.

(3) All evidence that is relevant and reasonably available will be gathered and preserved, including documents, physical evidence, witness interviews and statements, photographs, and security videos.

(4) For any report of alleged abuse, neglect, or exploitation, a preliminary investigation may be conducted to determine whether there is any evidence to corroborate the report or to provide cause to believe that any abuse, neglect, or exploitation has occurred. In cases where no such evidence is found, the case will be administratively closed and/or referred to the appropriate TYC department for resolution.

(5) The administrative investigation will be prompt, thorough, and directed at resolving all the relevant issues raised by the report.

(A) With regard to a report of alleged abuse, the investigator will find whether the:

(i) alleged act or failure to act occurred;

(ii) act or failure to act caused emotional harm or physical injury to the youth; and

(iii) person who took the action or who failed to act did so intentionally, knowingly, or recklessly.

(B) With regard to a report of alleged neglect, the investigator will find:

(i) whether there was substantial emotional harm or physical injury of the youth as alleged;

(ii) the standard of care or duty expected under the circumstances that are alleged;

(iii) whether the actions or failure to act under the circumstances violated the standard of care or duty; and

(iv) whether the actions or failure to act caused the substantial emotional harm or physical injury of the youth.

(i) a youth or a youth's resources were used by the accused person in the manner alleged;

(ii) the use was for monetary or personal benefit, profit, or gain; and

(iii) the use was illegal or improper.

(6) The investigator's findings will be based on a preponderance of the evidence.

(7) The investigator will prepare a written report of the findings, including a summary and analysis of the evidence relied upon in reaching the findings. Copies of relevant documents and photographs will be attached to the report.

(8) The investigator may make findings on misconduct other than abuse, neglect or exploitation that is established by the evidence. However, the absence of such findings should not be regarded as exoneration of the respondent or other employees as to policy violations or other misconduct indicated by the evidence.

(h) Administrative Investigation Report--Submission and Closure.

(1) The investigator will submit a written investigation report to his/her supervisor upon completion of the investigation.

(2) The investigator's supervisor will indicate approval of the investigation findings by officially closing the report and indicating the final case closure disposition. The supervisor will then notify the appropriate facility of the findings.

(3) All officially closed investigation reports must contain the signature of the supervisor who was responsible for making the final closure determination and the signature of the investigator who gathered the evidence in the case.

(4) In the event the investigator's supervisor disagrees with any part of the report submitted by the investigator upon completion of the investigation, the report must:

(A) include a statement by the supervisor which describes the reasons for his/her disagreement;

(B) be forwarded to the division director for resolution;

(i) Actions in Response to a Closed Administrative Investigation Report.

(1) Upon receipt of a closed investigation report, the chief local administrator will review the report and:

(A) notify the youth, the youth's parents or guardian, and the person accused of wrongdoing of the results of the investigation; and

(B) notify the youth and the youth's parents of the right to appeal the investigation findings or file a complaint regarding the conduct of the investigation under §93.53 of this title; and

(C) if the report is confirmed, take whatever actions are necessary and appropriate to rectify the wrong and prevent future harm under the same or similar circumstances.

(2) If the allegation was reported by a health care professional who provides services to TYC youth through TYC's contract health care provider(s), the investigator's supervisor will notify the health care professional in writing of the results of the investigation and the right to appeal the findings of the investigation report under §93.53 of this title.

(3) Periodic summary reports of complaints and appeals regarding investigations conducted under this rule, and the final decision regarding the complaints or appeals, will be provided to the TYC executive commissioner or governing Board for review.

(4) The TYC executive commissioner or governing Board will take whatever action is determined to be appropriate with regard to the complaint to ensure the investigations are conducted properly.

(5) Pursuant to Family Code §261.403(b), the TYC executive commissioner or governing Board will ensure there is a periodic internal audit of procedures related to administrative investigations of alleged abuse, neglect, and exploitation.

(j) Standards for Compiling Investigation Information and Confidentiality of Reports.

(1) Accurate and timely investigation information will be compiled related to the number and nature of reports filed and case closure dispositions, the dates and locations of reported incidents, the average length of time required for investigations and the identification of significant trends. This information will be compiled at least twice each year and be available for public inspection.

(2) Additional information including a summary of the findings and corrective actions taken with regard to all confirmed reports will be prepared for periodic review and analysis by the TYC executive staff and the TYC executive commissioner or governing Board.

(3) To the extent required by state or federal law, TYC will release to the public upon request, a report of alleged or suspected abuse, neglect, or exploitation if:

(A) the report relates to a report of abuse, neglect, or exploitation involving a child committed to TYC during the period that the child is committed to TYC; and

(B) TYC is not prohibited by Chapter 552, Government Code, or other law from disclosing the report.

(4) Any information concerning a report of alleged or suspected abuse, neglect, or exploitation that is disclosed will be edited to protect the identity of:

(A) a child who is the subject of the report of alleged or suspected mistreatment;

(B) any other youth committed to the care and custody of TYC who is named in the report;

(D) any other person whose life or safety may be endangered by the disclosure.

(5) Notwithstanding any other provision permitting the release of information, TYC will not disclose any record or information which, if released to the requestor, would interfere with an ongoing criminal investigation or prosecution.

(6) A report will be provided to a law enforcement agency or other criminal justice agency for purposes of investigation and prosecution upon request.

(7) A report will be provided to a parent, managing conservator or other legal representative of a youth upon request. The information contained in the report will be redacted to protect the identity of the person making the report, other youth, and any other person who may be harmed by the disclosure.

(8) A report will be provided, upon request, to the healthcare provider who reported an allegation. The information contained in the report will be redacted to protect the identity of the person making the report, other youth, and any other person who may be harmed by the disclosure.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 4, 2009.

TRD-200901686

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 95. YOUTH DISCIPLINE

The Texas Youth Commission (TYC) proposes the repeal of §95.1 (concerning discipline system overview), §95.3 (concerning rules of conduct), §95.7 (concerning reclassification consequence), §95.9 (concerning parole revocation consequence), §95.11 (concerning disciplinary consequences), §95.13 (concerning on-site disciplinary consequences), §95.15 (concerning parole minor disciplinary consequences), §95.16 (concerning primary intervention program), §95.17 (concerning behavior management program), §95.21 (concerning aggression management program), §95.51 (concerning level I hearing procedure), §95.55 (concerning level II hearing procedure), §95.57 (concerning level III hearing procedure), §95.59 (concerning level IV hearing procedure), and §95.71 (concerning mental health status review hearing procedure).

The repeal of §95.1 and §95.3 will allow for significantly revised rules to be published in their place. The revised rules are proposed as new rules in this issue of the Texas Register.

The repeal of §95.7 will reflect that TYC no longer reclassifies youth as a disciplinary consequence. Youth may be reclassified as result of changes in any number of individual factors, but not directly as a consequence for violating facility rules.

The repeal of §95.9 and §95.15 will allow for content relating to disciplinary consequences for youth on parole to be moved to new §95.4, which is also proposed in this issue of the Texas Register.

The repeal of §95.11 and §95.13 will allow for content relating to disciplinary consequences for youth in residential facilities to be moved to new §95.3, which is also proposed in this issue of the Texas Register.

The repeal of §§95.16, 95.17, and 95.21 will reflect that TYC no longer operates these programs at its facilities.

The repeal of §§95.51, 95.55, 95.57, and 95.71 will allow for significantly revised rules to be published in their place. The revised rules are proposed as new rules in this issue of the Texas Register.

The repeal of §95.59 will allow for content relating to detention review hearings to be moved to new §95.59 and new §95.61, which are also proposed in this issue of the Texas Register.

James Smith, Director of Residential and Community Services, has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be the availability of accurate and up-to-date information concerning TYC programming and operations.

SUBCHAPTER A. DISCIPLINARY PRACTICES

37 TAC §§95.1, 95.3, 95.7, 95.9, 95.11, 95.13, 95.15 - 95.17, 95.21

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§95.1.Discipline System Overview.

§95.3.Rules of Conduct.

§95.7.Reclassification Consequence.

§95.9.Parole Revocation Consequence.

§95.11.Disciplinary Consequences.

§95.13.On-Site Disciplinary Consequences.

§95.15.Parole Minor Disciplinary Consequences.

§95.16.Primary Intervention Program.

§95.17.Behavior Management Program.

§95.21.Aggression Management Program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901654

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. DUE PROCESS HEARINGS PROCEDURES

37 TAC §§95.51, 95.55, 95.57, 95.59, 95.71

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§95.51.Level I Hearing Procedure.

§95.55.Level II Hearing Procedure.

§95.57.Level III Hearing Procedure.

§95.59.Level IV Hearing Procedure.

§95.71.Mental Health Status Review Hearing Procedure.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901655

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 95. BEHAVIOR MANAGEMENT AND YOUTH DISCIPLINE

The Texas Youth Commission (TYC) proposes new §95.1 (concerning behavior management system overview), §95.2 (concerning youth privilege system), §95.3 (concerning rules and consequences for residential facilities), §95.4 (concerning rules and consequences for youth on parole), §95.17 (concerning Redirect program), §95.20 (concerning cooling off period for youth out of control), §95.50 (concerning definitions for due process hearings), §95.51 (concerning level I hearing procedure), §95.55 (concerning level II hearing procedure), §95.57 (concerning level III hearing procedure), §95.59 (concerning detention for youth with pending charges), §95.61 (detention for youth pending level I or II hearing procedure), and §95.71 (concerning mental health status review hearings).

New §95.1 will establish the framework for TYC's new behavior management system. The system places increased emphasis on incentives for positive behavior and non-disciplinary interventions to manage youth misbehavior.

New §95.2 will establish a rating system for youth behavior and a privilege system that provides positive reinforcement for complying with behavioral objectives.

New §95.3 will define major and minor rule violations for youth in residential facilities, as well as the possible consequences for rule violations. The new rule will also establish the level of due process required to prove that a violation occurred and impose major or minor consequences.

New §95.4 will define rule violations for youth on parole, as well as the possible consequences for rule violations. The new rule will also establish the level of due process required to prove that a violation occurred.

New §95.17 will establish the Redirect Program as a means of delivering intensive interventions in a structured environment for youth who have engaged in certain serious rule violations. The rule will establish eligibility criteria, program requirements, release requirements and other elements of the program.

New §95.20 will republish the content of §97.35 under a new section number. Section 97.35 is proposed for repeal in this issue of the Texas Register.

New §95.50 will consolidate definitions used throughout the subchapter pertaining to due process hearings into one rule.

New §95.51 will establish the requirements of Level I due hearings, which are the highest level of due process available to TYC youth. As a result of changes to Chapter 85 of this title, which are also published in this issue of the Texas Register, the use of Level I hearings will be limited to determining whether to revoke a youth's parole. The new rule also establishes the required elements of a finding that a youth's parole will be revoked.

New §95.55 will establish the requirements of Level II due process hearings. The new rule will make several changes from the version of this rule currently in effect. Hearings for youth who are currently detained in a security unit will be held within five days from the alleged rule violation. The transfer of youth to a higher restriction facility for non-disciplinary reasons will require a Level II hearing, which may be waived by the youth. Individuals who wish to represent youth at Level II hearings will be required to receive training from TYC to serve in that capacity. The new rule will also contain corresponding revisions to reflect changes made to rules in Chapter 97 of this title, which are also proposed in this issue of the Texas Register.

New §95.57 will contain corresponding revisions to reflect changes made to rules in Chapter 97 of this title, which are proposed in this issue of the Texas Register.

New §95.59 will establish the requirements for detaining youth in TYC security units and holding review detention review hearings while criminal or delinquent charges are pending or the when awaiting a court hearing or trial.

New §95.61 will establish the requirements for detaining youth in TYC security units or community detention facilities and holding detention review hearings when a TYC Level I or II hearing is scheduled.

New §95.71 will establish the requirements for conducting a Level II hearing for the purpose of admission or extension in the Corsicana Stabilization Unit to treat youth with serious psychiatric dysfunction.

James Smith, Director of Residential and Community Services, has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a more effective system for managing youth behavior which relies more on incentives for positive behavior and less on punitive measures including confinement in locked security rooms, as well as the availability of accurate and up-to-date information concerning TYC programming and operations.

There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. No private real property rights are affected by adoption of these rules.

SUBCHAPTER A. BEHAVIOR MANAGEMENT

37 TAC §§95.1 - 95.4, 95.17, 95.20

The new rules are proposed under Human Resources Code §61.045, which assigns the commission with responsibility for the welfare, custody, and rehabilitation of the children in a school, facility, or program operated or funded by the commission, and §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The new rules are also proposed under Human Resources Code §61.076, which provides the commission with the authority to require a committed child to participate in moral, academic, vocational, physical, and correctional training and activities, and to require the modes of life and conduct that seem best adapted to fit the child for return to full liberty without danger to the public.

The proposed rules implement Human Resources Code §61.034.

§95.1.Behavior Management System Overview.

(a) Purpose. This rule establishes the basic principles on which the Texas Youth Commission (TYC) will operate its behavior management system.

(b) General Provisions. TYC shall have a program that addresses incentives for youth adhering to rules and negative consequences for breaking them. The program shall foster accountability for behavior and compliance with the residential community's rules and expectations. The program shall be designed to:

(1) maintain order and security;

(2) promote safety, respect for self and others, fairness, and protection of rights within the residential community;

(3) provide constructive discipline and a system of positive and negative consequences to encourage youth to meet expectations for behavior;

(4) provide opportunities for positive reinforcement and recognition for accomplishments and positive behaviors;

(5) promote alternative pro-social means for youth to meet their needs;

(6) promote constructive dialogue and peaceful conflict resolution;

(7) minimize separation of youth from the general population; and

(8) limit the need to use force when responding to youth behavior.

(1) Purposeful rules are less likely to be broken; therefore, behavioral expectations and rules of conduct will be developed in a manner that both youth and staff will clearly understand each expectation or rule and its intended purpose.

(2) Youth conduct will be evaluated daily on a basic set of expectations. Youth will earn or lose privileges based on following the basic expectations. See §95.2 of this title for more information on the youth privilege system.

(3) Youth who violate specific major or minor rules of conduct will be subject to disciplinary consequences. See §95.3 and §95.4 of this title for more information on rules and consequences.

(d) Intervention Strategies.

(1) Staff members will address misconduct by progressively applying the most appropriate behavioral intervention strategies. Behavioral interventions will address the youth's misconduct, encourage the youth to recognize negative thoughts and feelings, and promote thinking skills that reduce risk of misconduct and contribute to positive decisions.

(2) Staff members will determine which interventions are employed based on their knowledge of the current situation and the youth involved. Behavioral interventions include, but are not limited to, the following:

(A) verbal prompts;

(B) discussion away from the group;

(D) time-out;

(E) cooling off period, in accordance with §95.20 of this title;

(F) completion of Thinking Report;

(G) unscheduled or scheduled behavior group;

(H) security referral, in accordance with §97.40 of this title; and

(I) Redirect program, in accordance with §95.17 of this title.

(3) In cases where a youth is displaying an ongoing behavioral problem, an individualized plan with alternative interventions may be created by the caseworker in consultation with the program staff, psychology staff, and/or other professionals.

(e) Disciplinary Consequences.

(1) Discipline will be administered with the goal of imposing only the least restrictive consequences which are effective in correcting the misbehavior and ensuring safety and order. Where feasible and appropriate, the consequences will be directly related to the nature and seriousness of the violation. Extenuating circumstances of the violation will be considered. See §95.3 and §95.4 of this title for procedures relating to issuing disciplinary consequences.

(2) Youth are made aware of rules and disciplinary consequences through verbal instruction and written documents.

(3) No disciplinary consequences shall be imposed except in accordance with the provisions of this chapter.

(4) The following are prohibited as sanctions for rule violations:

(A) corporal or unusual punishment;

(B) subjecting youth to humiliation, harassment, or physical or mental abuse;

(D) subjecting youth to property damage or disease;

(E) punitive interference with the daily functions of living, such as eating or sleeping;

(F) purposeless or degrading work, including group exercise as a sanction.

(5) Youth shall not be permitted to impose disciplinary consequences against other youth. Youth or groups of youth are not given control or authority over other youth.

(6) Consequences shall be applied on an individual basis and only for a youth's own actions or failure to act when responsible for doing so. Group discipline is prohibited. Actions taken for the purpose of maintaining safety and security (e.g. temporary lockdown to locate a missing tool) are not considered group discipline.

(7) Disciplinary consequences shall not deny youth the following:

(A) regular meals (from the established menu) or snacks;

(B) sufficient sleep;

(D) mail;

(E) contact through visitation or telephone with parents, attorneys, or personal ministers, pastors, or religious counselors;

(F) legal assistance; or

(G) medical attention.

(8) More than one disciplinary consequence may be imposed for the same offense if:

(A) the criteria and conditions for the imposition of each disciplinary consequence are met;

(B) the appropriate level of due process is dictated by the most severe of the disciplinary consequences imposed.

(f) Use of Force. TYC's behavior management system is designed so that the least severe interventions are used when possible to manage youth behavior before it escalates to the point when force is necessary. While the development and modeling of pro-social and interpersonal skills is the basis of TYC policy, the agency permits its employees to use reasonable force as a last resort in accordance with §97.23 of this title.

§95.2.Youth Privilege System.

(a) Purpose. The purpose of this rule is to establish a system of rewards and positive reinforcement to bring out the best in youth, offering them strong incentives to behave in ways that contribute to a safe, therapeutic culture.

(b) Applicability. This rule applies to Texas Youth Commission (TYC) residential facilities.

(c) Explanation of Terms Used. The following terms, as used in this rule, shall have the following meanings unless the context clearly indicates otherwise.

(1) Privilege--an activity or possession that a youth earns by complying with behavioral expectations and progressing in the rehabilitation program.

(2) Privilege Grid--a document which establishes a series of privileges for youth. The privileges are organized by stage with increasing stages associated with greater privilege.

(3) Neutral--when a youth meets expectations of his/her assigned stage in the rehabilitation program.

(4) Stage--has the meaning assigned under §85.1 of this title.

(5) Multi-disciplinary team--has the meaning assigned under §85.1 of this title.

(d) General Provisions.

(1) Each facility will establish a privilege grid. The specific privileges offered may vary between facilities due to local opportunities or limitations. Privileges will be developmentally appropriate for the youth and gender specific.

(2) A multi disciplinary team will determine the privileges a youth receives based on the agency-approved rating system. The rating system will score youth performance in following the five basic performance expectations:

(A) show respect for others;

(B) follow directions;

(D) be in the right place at the right time; and

(E) accept consequences.

(3) Youth are assessed on a daily basis for performing in accordance with the expectations of his/her stage. The daily assessments will be averaged for a weekly performance rating. Youth who have a performance rating of "neutral" will receive the standard privileges assigned to their stage for the current week. Youth with a performance rating above neutral will receive additional privileges. Youth with a performance rating below neutral, or who engage in specific rule violations as defined in §95.3 of this title, are subject to a loss of privileges.

(4) In addition to the weekly privileges awarded to a youth based on his/her stage, youth may earn additional daily privileges based on positive conduct.

(5) Provisions in this policy may be restated or otherwise adapted to accommodate a particular program. All adapted or restated provisions shall remain consistent with the general provisions in this policy.

(e) Privilege Adjustments. Privileges are reviewed weekly by the multi-disciplinary team for any required adjustments. Privileges may also be suspended pursuant to §95.3 of this title for violations of rules of conduct.

§95.3.Rules and Consequences for Residential Facilities.

(a) Purpose. The purpose of this rule is to establish the actions that constitute violations of the rules of conduct youth will be expected to follow while in residential facilities. Violations of the rules may result in disciplinary consequences that are proportional to the severity and extent of the violation. Appropriate due process must be followed before imposing consequences.

(b) Applicability. This rule applies to youth assigned to a residential facility.

(1) Bodily Injury--physical pain, illness, or impairment of physical condition. Fleeting pain or minor discomfort does not constitute bodily injury.

(2) Multi-Disciplinary Team--has the meaning assigned by §85.1 of this title.

(3) Residential Facility--includes both high and medium restriction residential placements.

(4) Attempting to Commit--engaging in conduct that amounts to more than mere planning, but failing to commit the intended rule violation.

(d) General Provisions.

(1) Rules in this policy may be restated or otherwise adapted to accommodate a particular program to help clarify expected behavior in that program. All adapted or restated rules shall remain consistent with the general rules of conduct.

(2) The rules of conduct must be posted in a visible area accessible to youth in each facility and program.

(3) Repeated violations of any rule of conduct may result in more serious disciplinary consequences.

(4) Youth may be issued more than one disciplinary consequence for a rule violation proven in a Level II or III due process hearing held in accordance with §95.55 or §95.57 of this title, respectively.

(5) Major rule violations require the completion of a formal incident report. A copy of the incident report must be given to the youth within 24 hours after the alleged violation.

(6) A youth's disciplinary record shall consist only of rule violations that are proven through a Level I or II due process hearing in accordance with §95.51 or §95.55 of this title, respectively.

(7) Within 24 hours after a report of a major rule violation or a minor rule violation resulting in a security referral, a case worker, program specialist, or other appropriate non-involved staff member will review the incident and assess whether to request a Level II due process hearing in order to pursue major consequences and/or placement of the violation on the youth's disciplinary record. The facility administrator or designee will determine whether or not to hold a Level II due process hearing. When a youth is found to be in possession of prohibited money as defined in this rule, a Level II due process hearing is required to seize the money. Seized money will be placed in the student benefit fund in accordance with §95.55 of this title.

(8) Except as noted in paragraph (9) of this subsection, minor rule violations will be documented on the appropriate activity log. A formal incident report is not required.

(9) A minor rule violation that escalates to the point that the current program/activity cannot continue due to the disruption, or that poses a substantial risk to personal safety or facility security, must be documented on a formal incident report. In high restriction facilities, this type of minor rule violation will also include a referral to the security unit.

(10) Although certain rule violations may not result in immediate disciplinary consequences, a rule violation proven through a Level II due process hearing may be considered upon expiration of the youth's minimum length of stay in determining whether a youth is in need of additional rehabilitation.

(11) Each multi-disciplinary team will review all privilege suspensions for youth on its caseload at least once per week. The multi-disciplinary team may:

(A) lessen the duration of the suspension or allow the youth to accrue certain privileges for use after the period of suspension is complete as an incentive to display positive behavior; or

(B) extend (one time only) or modify an on-site privilege suspension issued by direct care staff if warranted by the youth's behavior.

(e) Consequences for High Restriction Facilities.

(1) Major Disciplinary Consequences.

(A) Major Suspension of Privileges--a youth has all privileges suspended for 30 calendar days from the date of the hearing. This consequence may be issued only for minor rule violations resulting in a referral to the security unit or major rule violations, and only if the rule violation is proven through a Level II due process hearing in accordance with §95.55 of this title.

(B) Loss of Transition Eligibility--a youth who has not completed the minimum length of stay will serve an additional month in high restriction facilities prior to becoming eligible for transition to a medium restriction facility under §85.45 of this title. This consequence may only be issued if it is proven through a Level II due process hearing that the youth committed:

(i) assault causing bodily injury to youth or staff, as defined in subsection (i)(3) - (4) of this section; or

(ii) sexual misconduct as defined in subsection (i)(21)(A) - (B) of this section.

(2) Minor Disciplinary Consequences.

(A) Suspension of Privileges by Multi-Disciplinary Team. A youth has one or more privileges removed for up to 14 calendar days from the date of the multi-disciplinary team meeting, or has his/her privileges adjusted to those associated with a lower stage until the next scheduled meeting. This consequence may be issued for major or minor rule violations. In order to issue this consequence, the multi-disciplinary team must:

(i) meet with the youth to discuss the youth's behavior and potential consequences;

(ii) consider any on-site suspension of privileges already imposed for the behavior; and

(iii) document the discussion of the youth's conduct and consequence imposed.

(B) On-Site Suspension of Privileges. A youth has one specific privilege removed for up to seven calendar days from the date of the violation or all privileges removed for up to three calendar days. This consequence may be issued by a staff member with direct supervisory responsibility for the youth after witnessing a major or minor rule violation. This consequence should be issued only after non-disciplinary interventions have been attempted. The staff member must document the conduct and consequence and discuss the consequence and the reasons for it with the youth.

(f) Consequences for Medium Restriction Facilities.

(1) Major Consequences.

(A) Disciplinary Transfer--a youth assigned to a medium restriction facility is transferred to a high restriction facility. Disciplinary transfer may be issued only for major rule violations that are proven through a Level II due process hearing in accordance with §95.55 of this title. This consequence does not apply to youth who are on parole status and who are currently assigned to a medium restriction facility.

(B) Major Suspension of Privileges--a youth has all privileges suspended for 30 calendar days from the date of the hearing. This consequence may be issued only for major rule violations that are proven through a Level II due process hearing.

(2) Minor Consequences. Minor disciplinary consequences include but are not limited to consequences described herein. Minor consequences may only be imposed following a Level III due process hearing held in accordance with §95.57 of this title.

(A) Privilege Suspension--a suspension of one or more privileges for no more than 14 calendar days.

(B) Community Service Hours--disciplinary assignment of up to 40 hours in an approved community service assignment.

(C) Trust Fund Restriction--youth is restricted from accessing his/her accrued personal funds for up to seven calendar days.

(D) Facility Restriction--youth is restricted for up to 48 hours from participating in any activity outside the assigned placement other than the approved constructive activities.

(g) Review and Appeal of Consequences.

(1) All minor disciplinary consequences issued by staff other than the youth's multi-disciplinary team will be reviewed for policy compliance by the youth's assigned case worker or dorm supervisor within one workday of issuance. All minor consequences issued by the youth's multi-disciplinary team will be reviewed for policy compliance and consistency by the facility administrator or designee.

(2) The facility administrator or designee:

(A) must review any minor consequence issued for longer than 24 hours within 24 hours after issuance of the consequence; and

(B) may overturn or modify any privilege suspension determined to be excessive or not validly related to the nature or seriousness of the conduct.

(3) Youth may appeal major disciplinary consequences by filing an appeal in accordance with §95.51 or §95.55 of this title.

(h) Placement Disposition Options. In accordance with §95.17 of this title, youth in high restriction facilities may be placed in the Redirect program when the youth is found to have engaged in certain major rule violations. Placement in the Redirect program is not a disciplinary consequence.

(i) Major Rule Violations. It is a violation to knowingly violate, attempt to violate, or help someone else violate any of the following:

(1) Assault--Unauthorized Physical Contact with another Youth (No Injury)--making unauthorized physical contact with another youth that does not result in bodily injury, such as, but not limited to, pushing, poking, and grabbing.

(2) Assault--Unauthorized Physical Contact with Staff (No Injury)--intentionally making unauthorized physical contact with a staff member, contract employee, or volunteer that does not result in bodily injury, such as, but not limited to, pushing, poking, and grabbing.

(3) Assault Causing Bodily Injury to Another Youth--intentionally and knowingly or recklessly engaging in conduct that causes another youth to suffer bodily injury.

(4) Assault Causing Bodily Injury to Staff--intentionally and knowingly or recklessly engaging in conduct that causes a staff member, contract employee, or volunteer to suffer bodily injury.

(5) Attempted Escape--committing an act that amounts to more than mere planning but that fails to effect an escape.

(6) Chunking Bodily Fluids--causing a person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, and/or feces of another with the intent to harass, alarm, or annoy another person.

(7) Distribution of Prohibited Substances--distributing or selling any prohibited substances or items.

(8) Escape--leaving a high or medium restriction residential placement without permission or failing to return from an authorized leave.

(9) Extortion or Blackmail--demanding or receiving favors, money, actions, or anything of value from another in return for protection against others, to avoid bodily harm, or in exchange for not reporting a violation.

(10) Fighting Not Resulting in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that does not result in bodily injury.

(11) Fighting that Results in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that results in bodily injury.

(12) Fleeing Apprehension--running from or refusing to come to staff when called and such act results in disruption of facility operations.

(13) Two or More Failures to Comply with Written Reasonable Request (for Youth in Medium Restriction Residential Placement)--failing on two or more occasions to comply with a written reasonable request of staff. If the expectation is daily or weekly, the two failures to comply must be within a 30-day period. If the expectation is monthly, the two failures to comply must be within a 90-day period.

(14) Misuse of Medication--using medication provided to the juvenile by authorized personnel in a manner inconsistent with specific instructions for use, including removing the medication from the dispensing area.

(15) Participating in a Major Disruption of Facility Operations--intentionally participating with two (2) or more persons in conduct that poses a threat to persons or property and substantially disrupts the performance of facility operations or programs.

(16) Possession of Prohibited Items--possessing the following prohibited items:

(A) cellular telephone;

(B) matches or lighters;

(D) money in excess of the amount or in a form not permitted by facility rules (see §95.55 of this title for procedures concerning seizure of such money);

(E) pornography;

(F) items which have been fashioned to produce tattoos or body piercing;

(G) cleaning products when the youth is not using them for a legitimate purpose; or

(H) other items that are being used inappropriately in a way that poses a danger to persons or property or threatens facility security.

(17) Possession of a Weapon--possessing a weapon or item(s) which has been made or adapted for use as a weapon.

(18) Possession or Use of Prohibited Substances and Paraphernalia--possessing or using any unauthorized substance, including controlled substances or intoxicants (including alcohol and tobacco), medications not prescribed for the juvenile by authorized medical or dental staff, tobacco products, similar intoxicants, or related paraphernalia such as that used to deliver or make any prohibited substance.

(19) Refusing a Drug Screen--refusing to take a drug screen when requested to do so by staff or tampering with or contaminating the urine sample provided for a drug screen. (Note: If the youth says he/she cannot provide a sample, the youth must be given water to drink and two hours to provide the sample.)

(20) Refusing a Search--refusing to submit to an authorized search of person or area.

(21) Sexual Misconduct--intentionally and knowingly engaging in any of the following:

(A) causing contact, including penetration (however slight), between the penis and the vagina or anus; between the mouth and penis, vagina or anus; or penetration (however slight) of the anal or genital opening of another person by hand, finger or other object;

(B) touching or fondling, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person;

(D) exposing the anus, buttocks, breasts, or genitals to another or exposing oneself knowing the act is likely to be observed by another person;

(E) masturbating in an open and obvious way, whether or not the genitals are exposed.

(22) Stealing--intentionally taking property from another without permission and the property has an estimated value of $100 or more.

(23) Tampering with Safety Equipment--intentionally tampering with, damaging, or blocking any device used for safety or security of the facility. This includes, but is not limited to, any locking device or item that provides security access or clearance, any fire alarm or fire suppression system or device, video camera, radio, telephone (when the tampering prevents it from being used as necessary for safety and/or security), handcuffs, or shackles.

(24) Tattooing/Body Piercing--engaging in tattooing or body piercing of self or others. Tattooing is defined as making a mark on the body by inserting pigment into the skin.

(25) Threatening another with a Weapon--intentionally and knowingly threatening another with a weapon. A weapon is something that is capable of inflicting bodily injury in the manner in which it is being used.

(26) Vandalism--intentionally causing $100 or more in damage to state or personal property of another.

(27) Violation of any Law--violating a Texas or federal law that is not already defined as a major or minor rule violation.

(j) Minor Rule Violations. It is a violation to knowingly violate, attempt to violate, or help someone else violate any of the following:

(1) Breaching Group Confidentiality--disclosing or discussing information provided in a group session to another person not present in that group session.

(2) Disruption of Program--engaging in behavior that requires intervention to the extent that the current program of the youth and/or others is disrupted. This includes, but is not limited to:

(A) disrupting a scheduled activity;

(B) being loud or disruptive without staff permission;

(D) refusing to participate in a scheduled activity or abide by program rules.

(3) Failure to Abide by Dress Code--failing to follow the rules of dress and appearance as provided by facility rules.

(4) Failure to do Proper Housekeeping--failing to complete the daily chores of cleaning the living environment to the expected standard.

(5) Gang Activity--participating in an activity or behavior that promotes the interests of a gang or possessing or exhibiting anything related to or signifying a gang, such as, but not limited to, gang-related literature, symbols, or signs.

(6) Gambling or Possession of Gambling Paraphernalia--engaging in a bet or wager with another person or possessing paraphernalia that may be used for gambling.

(7) Horseplay--engaging in wrestling, roughhousing, or playful interaction with another person or persons that does not rise to the level of an assault. Horseplay does not result in any party getting upset or causing injury to another.

(8) Improper Use of Telephone/Mail/Computer--using the mail, a computer, or the telephone system for communication that is prohibited by facility rules, at a time prohibited by facility rules, or to inappropriately access information.

(9) Lending/Borrowing/Trading Items--lending or giving to another youth, borrowing from another youth, or trading with another youth possessions, including food items, without permission from staff.

(10) Lying/Falsifying Documentation/Cheating--lying or withholding information from staff, falsifying a document, and/or cheating on an assignment or test.

(11) Possession of an Unauthorized Item--possessing an item the youth is not authorized to have (possession of which is not a major rule violation), including items not listed on the youth's personal property inventory. This does not include personal letters or photographs.

(12) Refusal to Follow Staff Verbal Instructions--deliberately failing to comply with a specific reasonable verbal instruction made by a staff member.

(13) Stealing--intentionally taking property from another without permission and the property has an estimated value of less than $100.

(14) Threatening Others--making verbal or physical threats toward another person or persons.

(15) Undesignated Area--being in any area without the appropriate permission to be in that area.

(16) Vandalism--intentionally causing less than $100 in damage to state or personal property.

§95.4.Rules and Consequences for Youth on Parole.

(a) Purpose. The purpose of this rule is to establish what actions constitute violations of the rules of conduct youth will be expected to follow while under parole supervision. Violations of the rules may result in disciplinary consequences, including revocation of parole, that are proportional to the severity and extent of the violation. Appropriate due process must be followed before imposing consequences.

(b) Applicability.

(1) This rule applies to youth on parole to a home placement.

(2) For parole revocation purposes, this rule applies to youth on parole status assigned to a residential placement as a home substitute.

(3) For daily rules of conduct for youth on parole status assigned to a residential placement as a home substitute, see §95.3 of this title.

(1) The rules of conduct are provided to the youth when they initially register with their parole officers and other times as necessary.

(2) Repeated violations of any rule of conduct may result in more serious disciplinary consequences.

(d) Parole Rule Violations. It is a violation to knowingly violate, attempt to violate, or help someone else violate any of the following:

(1) Abscond--leaving a home placement or failing to return from an authorized leave without permission of his/her primary service worker and the youth's whereabouts are unknown to his/her primary service worker.

(2) Escape--leaving a high or medium restriction residential placement without permission or failing to return from an authorized leave.

(3) Failure to Comply with Sex Offender Conditions of Parole--intentionally and knowingly failing to comply with one of the following conditions of parole present in his/her Sex Offender Conditions of Parole addendum:

(A) not having unsupervised contact with children under the age specified by the conditions of parole;

(B) not babysitting or participating in any activity where the youth is responsible for supervising or disciplining children under the age specified by the conditions of parole; or

(4) Possession of a Weapon--possessing a weapon or item(s) which has been made or adapted for use as a weapon.

(5) Use of Unauthorized Substances--using an unauthorized substance or intoxicant including controlled substances or intoxicants (including alcohol and tobacco if youth is underage), medications not prescribed for the juvenile by authorized medical or dental staff, or similar intoxicants.

(6) Refusing a Drug Screen--refusing to take a drug screen when requested to do so by staff or tampering with or contaminating the urine sample provided for a drug screen.

(7) Repeated Non-Compliance with a Written Reasonable Request of Staff--failing on two or more occasions to comply with a specific condition of release under supervision and/or a specific written reasonable request of staff. If the expectation is daily or weekly, the two failures to comply must be within a 30-day period. If the expectation is monthly, the two failures to comply must be within a 90-day period.

(8) Tampering with Monitoring Equipment--a youth intentionally and knowingly tampers with monitoring equipment assigned to any youth.

(9) Violation of any law--violating a federal or state law or municipal ordinance.

(e) Possible Consequences.

(1) A parole rule violation may result in a Level I Hearing or a Level III Hearing conducted in accordance with §95.51 or §95.57 of this title, respectively. Parole officers are encouraged to be creative in determining a consequence appropriate to address and correct the youth's behavior. All assigned consequences should be related to the misconduct when possible.

(2) Consequences through a Level III Hearing for a youth on parole include but are not limited to:

(A) Verbal Reprimand--conference with a youth including a verbal reprimand drawing attention to the misbehavior and serving as a warning that continued misbehavior could result in more severe consequences. A verbal reprimand may not be considered as a less severe disciplinary consequence for the purpose of parole revocation.

(B) Curfew Restriction--an immediate change in existing curfew requirements outlined in the youth's Conditions of Parole.

(C) Community Service Hours--disciplinary assignment of a specific number of hours the youth is to perform community service in addition to the hours assigned when the youth was placed on parole. In no event may more than 20 community service hours be assigned through a Level III Hearing.

(D) Increased Level of Surveillance--an assigned increase in the number of primary contacts between the youth and parole officer in order to increase the youth's accountability.

(E) Electronic Tracking--assignment to a system whereby a youth's movement and location can be tracked electronically.

(F) Intensive Surveillance Supervision--assignment to an intensive surveillance supervision program designed to restrict the youth's access to the community by establishing a stricter curfew and increased supervision by the parole officer.

(G) Writing Assignment--an assignment designed for the youth to address the misbehavior and identify appropriate behavior in similar situations.

(3) Consequences through a Level I Hearing for a youth on parole, including youth assigned to a residential placement as a home substitute, include:

(A) Parole revocation and placement in any high restriction program operated by or under contract with TYC; and

(B) Assignment of a length of stay consistent with §85.25 of this title.

§95.17.Redirect Program.

(a) Purpose. The Redirect program functions as a means for delivering intensive interventions in a structured environment for youth who have engaged in certain serious rule violations. This rule sets forth eligibility criteria, program completion requirements, and services to be provided to youth in the program.

(b) Applicability. This rule applies only to high restriction facilities operated by the Texas Youth Commission.

(1) Admission, Review, and Dismissal (ARD) Committee--a committee that makes decisions on educational matters relating to special education-eligible youth.

(2) Behavior Intervention Plan--a written plan developed as a result of a functional behavioral assessment to address specific behavioral concerns that are impeding a youth's learning or the learning of others. The plan is part of a youth's individualized education program and includes positive behavioral interventions and supports and other strategies to address the behavior.

(3) Functional Behavioral Assessment--a process for observing and collecting data on specific behaviors that are impeding a youth's progress and determining the function the behavior plays for a youth (e.g., seeking attention, peer acceptance, avoidance, etc.).

(4) Individualized Education Program (IEP)--the program of special education and related services developed by a youth's ARD committee.

(5) Manifestation Determination Review--a review conducted by a youth's ARD committee when a decision has been made to change a special education-eligible youth's school placement due to a violation of the code of conduct. The committee determines whether a youth's conduct is a manifestation of the youth's disability and whether the youth's IEP was fully implemented.

(6) Multi-Disciplinary Team--a team which assesses youth progress through the steps of the Redirect program. At a minimum, the team must include representatives from the following departments: psychology, case management, education, and dorm supervision.

(d) Program Eligibility. A youth who engages in one or more of the following rule violations as defined in §95.3 of this title meets criteria for placement in the Redirect program:

(1) assault or fighting resulting in bodily injury;

(2) assault--unauthorized physical contact with staff (no injury);

(3) escape or attempted escape;

(4) vandalism (major rule violation only);

(5) sexual misconduct (excluding kissing);

(6) possessing or threatening others with a weapon or item which could be used as a weapon;

(7) chunking bodily fluids; or

(8) tampering with safety equipment.

(e) Request to Pursue Placement in Redirect Program. The facility administrator or designee may approve a request to pursue placement of a youth in the Redirect program only when it is determined that:

(1) the youth poses a continuing risk for the admitting behavior(s);

(2) less restrictive methods of documented intervention have been attempted when appropriate;

(3) the mental status of the youth has been assessed by a psychologist and there are no therapeutic contraindications for admission to the Redirect program; and

(4) there are no additional considerations concerning special education services which would make the youth ineligible for placement in the Redirect program, as described in subsection (f) of this section.

(f) Additional Considerations for Youth Receiving Special Education Services.

(1) Except as noted in paragraph (2) of this subsection, if the youth is receiving special education services, a manifestation determination review must be held to determine if the youth's conduct was a direct result of the failure to implement the youth's IEP, and if the conduct was caused by or had a direct and substantial relationship to the youth's disability.

(A) If the determination is that there was a failure to implement the youth's IEP, the youth may not be placed in the Redirect program.

(B) If the determination is that the conduct was caused by or had a direct and substantial relationship to the youth's disability, the youth may not be placed in the Redirect program unless the youth's parent/guardian consents to such placement as part of the youth's behavior intervention plan.

(2) A manifestation determination review is not required if the rule violation includes possession of a weapon or the infliction of serious bodily injury upon another person. In such cases, the youth may be placed in the Redirect program if all other eligibility and due process requirements in this policy are met.

(A) For purposes of paragraph (2) of this subsection only, weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, not including a pocket knife with a blade of less than 2 1/2 inches in length.

(B) For purposes of paragraph (2) of this subsection only, serious bodily injury means bodily injury which involves:

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) protracted and obvious disfigurement; or

(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(g) Admission Process. A Level II due process hearing must be held in accordance with §95.55 of this title. If there is a finding of true with no extenuating circumstances that the youth committed a rule violation listed in subsection (d) of this section, the youth may be admitted to the Redirect program.

(h) Program Requirements.

(1) The Redirect program is administered in a special unit designated for such purpose. If the Redirect program is administered in a designated location within the security unit, the doors will remain unlocked except during sleeping hours or emergencies.

(2) A youth's placement in the Redirect program shall not exceed 42 calendar days.

(3) At least 5 1/2 hours of education services will be provided on scheduled academic days.

(4) If a youth is currently receiving special education services, staff must ensure that the youth continues to receive educational services that will enable the youth to meet the goals of the youth's IEP.

(5) An individual plan must be developed for each youth. The plan must be written in a language clearly understood by the youth. The plan must:

(A) address the specific target behavior or cluster of behaviors that led to admission to the Redirect program, taking into consideration the psychologist's recommendations to address the motivation for the behavior;

(B) involve strategies for intervention and prevention of the target behavior through skills development;

(D) provide clearly written objectives for release from the Redirect program.

(6) Staff must explain the individual plan to the youth. Youth will be provided an opportunity to sign the plan in acknowledgment.

(7) The individual plan and youth's progress with regard to target behaviors and skills development is reviewed and evaluated at least once every seven days by the multi-disciplinary team.

(8) Youth shall be gradually reintegrated into campus programming as soon as he/she demonstrates comprehension of the goals established in the treatment plan.

(9) Youth who are placed in the Redirect program are afforded living conditions and privileges approximating those available to the general campus population.

(10) Youth will receive a minimum of 30 minutes of counseling per day with the assigned case manager or designee.

(11) Youth will be provided with at least one hour of large muscle exercise seven days per week.

(i) Temporary Removal from the Redirect Program. Youth may be referred to the security program while currently assigned to the Redirect program if the youth meets criteria as set forth in §97.40 of this title. Any time spent in the security program is counted toward the 42-day maximum in the Redirect program.

(j) Criteria for Release from Redirect Program. A youth shall be released from the Redirect program and returned to his/her assigned dorm upon the earliest of the following events:

(1) a determination by the multi-disciplinary team that the youth has met goals set forth in his/her individual plan; or

(2) a determination by the superintendent or designee that the program has failed to be implemented as designed for reasons other than non-compliance of the youth; or

(3) a decision by the superintendent or designee to return the youth to his/her assigned dorm or transfer to an alternative placement based on:

(A) population concerns in the Redirect program; or

(B) a recommendation by a mental health professional due to the youth's mental health condition; or

(4) a decision by the receiving superintendent or designee not to continue the Redirect program after an administrative transfer of the youth to another high restriction facility while assigned to the Redirect program; or

(5) the youth has completed 42 calendar days in the program.

(k) Right to Appeal. The youth shall be notified in writing of his/her right to appeal placement in the Redirect program in accordance with §93.53 of this title. The pendency of an appeal shall not preclude implementation of the decision.

(l) Family Notification. In accordance with §87.5 of this title, a youth's parents or guardian shall be notified within 24 hours after the due process hearing of the youth's admission to the Redirect program.

§95.20.Cooling Off Period for Youth Out of Control.

(a) Purpose. The purpose of this rule is to provide for the temporary segregation of a youth as a "cooling off" time when he or she appears to have temporarily lost control of behavior. The segregation is intended to allow the youth time to regain self-control. Segregation addressed here is generally to a location near the activity in process.

(b) Applicability. This rule does not apply to disciplinary restrictions as consequences. For restrictions for a disciplinary purpose rather than a control purpose, see §95.3 of this title.

(1) Either staff or the youth but not the youth's group may request the youth's removal from an activity.

(2) The youth may be removed to any room in the same building away from regular activity. Doors are not locked.

(3) The reason for any segregation will be explained to the youth and he will be given the opportunity to explain his behavior.

(4) The youth will be joined by staff every 15 minutes for counseling during the first hour.

(5) The youth may assist in determining his readiness to resume regular activity.

(d) Institutions. Segregation shall be limited to 55 minutes. If youth are unable to regain control after 55 minutes, staff should take other measures.

(e) Halfway Houses.

(1) Segregation shall be limited to two hours. If youth are unable to regain control after two hours, staff should take other measures.

(2) Youth will not be segregated to their bedrooms.

(3) Rooms shall not be locked.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901653

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. DUE PROCESS HEARINGS PROCEDURES

37 TAC §§95.50, 95.51, 95.55, 95.57, 95.59, 95.61, 95.71

The new rules are proposed under Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The new rules are also proposed under §61.076, which provides the commission with the responsibility to provide any medical or psychiatric treatment that is necessary.

The proposed rules implement Human Resources Code §61.034.

§95.50.Definitions--Due Process Hearings.

The following words and terms, as used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) Administrative Law Judge--an attorney employed by Texas Youth Commission (TYC) who is responsible for determining if there is a preponderance of evidence presented at a Level I hearing to prove the youth committed an alleged rule violation and if the requested dispositions will be imposed.

(2) Advocate--a TYC employee, contract employee, or enrolled volunteer assigned to represent the youth at a Level II, III, or IV hearing who is trained by TYC to serve as an advocate.

(3) Community Detention--temporary placement of a youth in a community detention facility pending a Level I or II due process hearing.

(4) Community Detention Facilities--local detention facilities designed for either juveniles or adults, including jails.

(5) Detention Hearing--the court hearing required by the Texas Family Code to determine whether conditions exist to justify the detention of a juvenile.

(6) Extenuating Circumstances--facts that do not rise to the level of a legal defense but that do provide a reasonable explanation for the youth's behavior. Examples of such facts include, but are not limited to, acts in which:

(A) the only property involved in the offense was of minimal value and the youth returned it undamaged to its owner;

(B) the only bodily injury intended or inflicted by the youth consisted of brief of minor discomfort;

(C) the youth's conduct was an impulsive response to perceived provocation and posed no threat to persons or property; or

(D) the youth was persuaded to participate in the offense by a parent or other authority figure.

(7) Hearing Manager--an impartial person who will determine if there is a preponderance of evidence presented at a Level II hearing to prove the youth committed an alleged rule violation and if the requested dispositions will be imposed.

(8) High Restriction Facility--has the meaning assigned under §85.27 of this title.

(9) Institution Detention--temporary placement of youth in a high-restriction facility security unit as described in §85.59 and §95.61 of this title.

(10) Institutional Status--the status assigned to all youth who have not yet been released on parole or who have had their parole status revoked through a Level I due process hearing. Youth may be on institutional status while assigned to high or medium restriction placements.

(11) Level I Hearing--an administrative due process hearing used within TYC to determine if a youth's parole will be revoked.

(12) Level II Hearing--an administrative due process hearing used within TYC to determine if major disciplinary consequences will be imposed, contraband money will be deposited in the student benefit fund, whether a youth will be admitted to or extended in a psychiatric stabilization unit, and whether to move a youth to a higher restriction level for non-disciplinary reasons.

(13) Level III Hearing--an administrative due process hearing used within TYC to determine whether a youth will be admitted to or extended in the security unit, and whether minor disciplinary consequences will be issued to a youth in a medium restriction program or on parole.

(14) Level IV Hearing (Detention Review Hearing)--an administrative due process hearing used within TYC, held in lieu of a detention hearing for the same purpose.

(15) Non-Disciplinary Reasons--reasons not related to a violation of rules that transfer to a higher restriction assignment is necessary, including but not limited to:

(A) the youth has treatment, educational, medical, or other needs that cannot be met at the current placement; or

(B) there is no longer a home placement available for the youth.

(16) Parole Status--the status assigned to all youth who have been released on parole. Youth may be on parole status while assigned to a medium restriction placement or an approved home or home substitute.

(17) Preponderance of the evidence--a standard of proof meaning the greater weight and degree of credible evidence admitted at the hearing, e.g., whether the credible evidence makes it more likely than not that a particular proposition is true.

(18) Staff representative--the person assigned to assemble and present the allegation(s) and evidence at a hearing.

(19) Referring Staff--the TYC employee or contract employee who requests a youth's detention.

§95.51.Level I Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish a due process procedure to be followed when seeking to revoke the parole status of a youth as a disciplinary consequence for behavior that presents an unacceptable risk to the safety of persons and property. Parole revocation is considered a major consequence.

(b) Definitions. Definitions pertaining to this rule are under §95.50 of this title.

(1) A Level I hearing is required in order to revoke a youth's parole status. Parole may be revoked if it is found that a youth has committed a law violation or a parole rule violation as established in §95.4 of this title and:

(A) revocation is determined to be in the best interest of the youth or community; and/or

(B) the youth is in need of further rehabilitation at a Texas Youth Commission (TYC) or contract placement.

(2) The following information will be considered to determine if parole revocation is appropriate:

(A) the severity of the offense(s) found true at the hearing;

(B) any behavioral or adjustment issues while on parole and the steps taken by the staff representative to address those issues;

(D) reasons the youth is in need of services offered at a TYC or contract placement;

(E) whether appropriate community-based alternatives have been exhausted;

(F) any impact statement(s) written by the victim(s);

(G) any participation in constructive activity; and

(H) any extenuating circumstances.

(3) A Level I hearing on any allegation(s) shall be scheduled as soon as possible but no later than seven days from the date of the alleged offense, excluding weekends and holidays, except when:

(A) staff documents that it was impossible, impractical, or inappropriate to have scheduled the hearing sooner; or

(B) local authorities make a written request that TYC defer an allegation to their jurisdiction for prosecution; or

(C) unless the pending criminal charge(s) concern a first degree felony offense, TYC staff elects to defer a Level I hearing on all allegations of misconduct due to criminal allegation(s) pending or filed as adult charges.

(4) TYC may re-issue a directive and request a Level I hearing concerning new or previously deferred allegation(s) if later circumstances make such action appropriate.

(5) The hearing shall be conducted by an administrative law judge appointed by the TYC hearings section chief. The administrative law judge shall be impartial.

(6) The hearing shall be conducted in two parts: fact-finding and disposition.

(A) The purpose of the fact-finding shall be to establish whether there is a preponderance of evidence to prove the youth engaged in the alleged misconduct.

(B) The purpose of the disposition shall be to determine whether revocation of parole is appropriate under the circumstances.

(7) A youth whose parole is revoked will be assigned a minimum length of stay in accordance with §85.25 of this title.

(8) The person requesting a hearing shall appoint a staff representative to appear at the hearing and present the reasons for the proposed action. The staff representative shall also be responsible for making relevant information available to all parties to the hearing.

(9) The youth shall be assisted by legal counsel at the hearing. The agency will arrange counsel for indigent youth.

(10) If the youth's parole is not revoked, lesser disciplinary consequences may be imposed for any rule violation(s) proved at the hearing.

(11) If the youth is on parole from another state and is being supervised by TYC under agreement with the other state, a parole revocation hearing may be held by TYC and the youth may be returned to the sending state. Such a hearing is coordinated by the TYC interstate compact administrator and general counsel.

(12) If a TYC parolee commits an offense in another state, the return of such youth is coordinated by the TYC interstate compact administrator and the general counsel. A parole revocation hearing is coordinated by and held at the request of the assigned staff representative.

(13) The hearing shall be held in the community where the alleged rule violation occurred unless the administrative law judge directs that it be held in another locale.

(14) All necessary parties shall be present at the hearing site unless it is conducted pursuant to §95.53 of this title.

(15) The staff representative shall provide the youth with written notice of the date and time of the hearing not less than three (3) working days before the scheduled date. This notice shall include:

(A) the reason(s) for the hearing;

(B) the proposed action to be taken; and

(16) If the youth is under 18 years of age, the staff representative shall make reasonable efforts to inform the youth's parent(s) of the date, time, place of, and reasons for the hearing not less than three (3) working days prior to the scheduled hearing date. If the youth is 18 years of age or older, such notice shall be provided only with the youth's authorization to release information.

(17) The staff representative shall provide counsel for the youth with written notice of the date, time, place of, and reasons for the hearing not less than three (3) working days prior to the scheduled hearing date. The notice to counsel shall also include:

(A) the name, address, and telephone number of the staff representative and the administrative law judge;

(B) a list of all witnesses the staff representative intends to call;

(D) copies of any statements made by the youth;

(E) copies of any statements, affidavits, reports, or other documentation relied upon as grounds for the proposed action; and

(F) copies of any reports or summaries which will be relied upon at disposition.

(18) The staff representative shall provide counsel for the youth with reasonable access to all information held by TYC concerning the youth. Counsel for the youth will respect the confidential nature of such information and will comply with reasonable requests to withhold sensitive information from the youth or the youth's family.

(19) As soon as possible following receipt of the notice of hearing, and no later than the commencement of the hearing, counsel shall inform the staff representative of any witnesses he/she wishes to call on behalf of the youth. The staff representative will, if necessary and possible, assist counsel in contacting those witnesses and securing their attendance at the hearing.

(20) The staff representative will ensure that all witnesses are given written notice of the time, date, and location of the hearing at least three days in advance of the hearing.

(21) At the staff representative's request, the TYC chief administrative law judge may sign and issue a subpoena to compel the attendance of a necessary witness at the hearing or the production of books, records, papers, or other objects. A person who testifies falsely, fails to appear when subpoenaed, or fails or refuses to produce material under the subpoena is subject to the same orders and penalties to which a person taking those actions before a court is subject.

(22) The administrative law judge may, upon his/her own motion or the good cause motion of any party, recess or continue the hearing for such periods of time as may be necessary to ensure an informed fact finding.

(23) Prior to the hearing, the administrative law judge may review copies of any documentation previously provided to counsel except for those documents which relate solely to dispositional criteria. The administrative law judge shall review such information only if the hearing proceeds to disposition.

(24) A victim who appears as a witness should be provided a waiting area which eliminates or minimizes contact between the victim and the youth, the youth's family, or witnesses on behalf of the youth.

(25) To protect the confidential nature of the hearing, persons other than the youth, counsel for the youth, the staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the administrative law judge, however:

(A) observers may be permitted with the consent of the youth;

(B) any person except the youth's counsel or staff representative may be excluded from the hearing room if their presence causes undue disruption or delay of the hearing. The reason(s) for the youth's exclusion are stated on the record.

(26) The hearing shall be recorded and the administrative law judge shall retain copies of all documents admitted into evidence. Physical evidence may be retained at the discretion of the administrative law judge; if not retained, an adequate description of the item(s) shall be entered in the record by oral stipulation.

(27) Factual issues not in dispute may be stipulated to by the staff representative and counsel for the youth. Such stipulations shall be made on the record of the hearing.

(28) A youth accused of misconduct shall be given the opportunity to respond "true" or "not true" to each allegation of such conduct prior to any evidence being heard on such allegations.

(A) The youth shall have a right to respond "not true" to any such allegation and require that proof of the allegation be presented at the hearing.

(B) A response of "true" to any such allegation shall be sufficient to establish each and every element necessary to proof of that allegation without the presentation of any other evidence.

(29) The administrative law judge may administer an oath to all witnesses to testify truthfully.

(30) With the exception of the youth and the staff representative, any person designated as a witness may be excluded from the hearing room during the testimony of other witnesses and may be instructed to refrain from discussing his/her testimony with anyone until all the witnesses have been dismissed.

(31) The administrative law judge may question each witness at his/her discretion. Counsel for the youth and the staff representative shall be given an opportunity to question each witness.

(32) The administrative law judge may permit a witness to testify outside the presence of the youth if such appears reasonable and necessary to secure the testimony of the witness. If the youth is excluded from the hearing room during testimony, counsel for the youth shall be present during the testimony and shall have the opportunity to review the testimony with the youth before questioning the witness.

(33) The youth shall not be called as a witness unless, after consulting with counsel, the youth waives his/her right to remain silent on the record.

(A) The youth's failure to testify shall not create a presumption against him/her.

(B) A youth who waives his/her right to remain silent may only be questioned concerning those issues addressed by the youth's testimony.

(34) All factual issues shall be determined by a preponderance of the evidence.

(35) The administrative law judge shall determine the admissibility of evidence. Irrelevant, immaterial, or unduly repetitious evidence will be excluded.

(36) The rules of evidence will generally be applicable to the fact-finding portion of the hearing. Unless specifically precluded by statute, evidence not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Criminal exclusionary rules are not applicable in TYC hearings.

(37) A judgment from a court indicating a youth has pled guilty or true to an offense and has not received deferred adjudication is sufficient to prove the youth committed the offense.

(38) Copies of due process hearing documents need not be certified if such document(s) are part of the youth's record(s) or have been received through Interstate Compact. Such documents are considered reliable and admissible for all purposes.

(39) Accomplice testimony is sufficient to prove an allegation if it is corroborated by other evidence tending to connect the youth with the alleged violation. The corroboration is not sufficient if it merely shows the commission of the violation alleged. If two accomplices testify, the testimony of each can serve to corroborate the other.

(40) Legally recognized privileges of relationships will be given effect.

(41) Evidence otherwise admissible may be received in written form if so doing will expedite the hearing and will not significantly prejudice the rights or interests of the youth. This includes but is not limited to use of affidavits admitted to show the following:

(A) ownership and lack of consent;

(B) identity of signature on instrument and lack of consent of complaining witness in a forgery case;

(D) chain of custody;

(E) identity of substance found in a urine sample;

(F) identity of a controlled substance found in possession of a youth.

(42) A youth's written statement concerning his/her possible involvement in illegal activities is admissible if it is signed by the youth and accompanied by evidence indicating that the youth made the statement voluntarily after being advised of:

(A) the right to remain silent;

(B) the possible consequences of giving the statement;

(D) the right to have an attorney provided if the youth is indigent.

(43) A youth's non-recorded oral statement is admissible if it:

(A) relates facts which are found to be true and which tend to establish the youth's guilt; or

(B) was res gestae of the conduct that is the subject of the hearing or of the arrest; or

(C) even if it does not meet subparagraph (A) or (B) of this paragraph, the statement does not stem from law enforcement or agency staff questioning of youth; or

(D) even if the statement does stem from law enforcement or agency staff questioning, the statement is voluntary and bears on the youth's credibility as a witness.

(44) A youth's recorded oral statement (tape recorded, videotaped, or otherwise electronically recorded) concerning his/her possible involvement in illegal activities is admissible if it is accompanied by evidence on the recording that it was given after the youth was advised of the rights in paragraph (38) of this subsection. All voices on the recording must be identified and the recording must be accurate and unaltered. A transcript of the recordings is not sufficient.

(45) A youth's admissible out of hearing/court statement admitting he/she committed an offense is sufficient to prove the offense only if it is corroborated by other evidence that the offense was committed.

(46) The administrative law judge shall rule immediately on any motions or objections made in the course of the hearing. All such motions, objections, and rulings shall be included in the administrative law judge's written report.

(47) Following the presentation of all evidence pertaining to the factual issues raised at the hearing, the administrative law judge shall announce his/her findings as to those issues.

(A) The administrative law judge may find that the evidence suffices to prove conduct other than that originally alleged and enter the appropriate finding in the record if the original allegation gave sufficient notice of the conduct proved.

(B) Irrespective of the evidence, the administrative law judge may not find a criminal offense more serious than that originally alleged unless the original allegation has been amended on the record and after notice to counsel for the youth.

(C) If the administrative law judge finds any allegation to be true, the hearing shall proceed to disposition; if not, the hearing shall be adjourned with no change in the youth's status.

(48) The administrative law judge may receive additional evidence for purposes of disposition. The evidence received at disposition may be in the form of testimony from witnesses submitted during fact-finding or at disposition, as well as written reports offered by youth, staff, professionals, counselors, or consultants. Relevant documents contained in the youth's record may be admitted and considered. All written documents offered shall be provided to the parties three days prior to the hearing unless otherwise waived. Hearsay evidence is admissible in disposition.

(49) Parole will be revoked if the administrative law judge determines that revocation is in the youth's and/or the community's best interest and/or the youth is in need of further rehabilitation at a TYC facility.

(50) If parole is revoked, the youth will be assigned a minimum length of stay in accordance with §85.25 of this title, based on the most serious offense found true at the hearing. Such minimum length of stay may be reduced in accordance with §85.25 of this title.

(51) If, despite a finding of extenuating circumstances relevant to the proven offense, the administrative law judge finds revocation is appropriate under the circumstances, the youth's parole will be revoked but the assigned minimum length of stay will be reduced.

(52) Following announcement of the decision as to disposition, the administrative law judge shall inform the youth of the right to appeal any or all findings and decision made at the hearing.

(53) Immediately following the close of the hearing, the administrative law judge shall give the youth a copy of the hearing report form.

(54) A notice of appeal shall not suspend implementation of the administrative law judge's decision(s), which shall be effective when announced at the hearing.

(55) As soon as possible following the conclusion of the hearing, the administrative law judge shall prepare a written report which shall include:

(A) a summary of the evidence presented;

(B) findings of fact, including the reliability of the evidence and the credibility of the witnesses, and the reasons for those findings;

(D) an explanation of the dispositional decision; and

(E) rulings made on motions and objections and the reasons therefore.

(56) Copies of the administrative law judge's report shall be provided to counsel for the youth and the staff representative.

(57) An edited copy of the administrative law judge's report is given to the youth.

§95.55.Level II Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish a procedure to be followed when the second highest level of due process is afforded a youth. Rule violations proven through a Level II Hearing will be part of the youth's disciplinary record.

(b) Definitions. Definitions pertaining to this rule are under §95.50 of this title.

(1) imposing a major disciplinary consequence in accordance with §95.3 of this title;

(2) placing a youth in the Redirect program in accordance with §95.17 of this title;

(3) placement of a youth on parole assigned to a home or home substitute in a medium restriction facility for non-disciplinary reasons;

(4) placement of a youth whose initial assignment was to a medium restriction facility in a high restriction facility for non-disciplinary reasons;

(5) with a few exceptions in procedure as identified in §95.71 of this title:

(A) admission to the Corsicana Stabilization Unit; and

(B) extension of time to treat a psychiatric disorder in connection with a Corsicana Stabilization Unit placement (as appropriate); or

(6) deposit of contraband money into the student benefit fund found in possession of a youth while in a residential program.

(d) Criteria.

(1) To impose a major consequence, place a youth in the Redirect program, or place contraband money in the student benefit fund, the hearing manager must find:

(A) the youth committed an eligible rule violation; and

(B) there are no extenuating circumstances.

(2) To transfer a youth to a higher restriction level for non-disciplinary reasons; the hearing manager must find there are no less restrictive placements appropriate and available for the youth.

(3) For criteria for admission to or extension in the Corsicana Stabilization Unit, see §87.67 of this title.

(e) Procedure.

(1) When a youth in a residential facility is alleged to have committed a major rule violation or a minor rule violation requiring a security referral, an investigation into that violation must be started within 24 hours of the alleged offense and completed within 24 hours of the time started. A decision on whether or not to pursue a Level II Hearing must be made within 24 hours of the completion of the investigation. Any delay in these timelines must be justified with documentation of circumstances that made it impossible, impractical, or inappropriate to meet them. The investigation must be conducted by a staff member other than the one reporting the alleged violation.

(2) The appropriate staff person shall request permission to schedule a hearing from the facility administrator, parole supervisor, quality assurance administrator, or their designees.

(3) For hearings regarding rule violations or contraband money, the hearing shall be conducted as soon as practical but not later than seven days, excluding weekends and holidays, after the alleged violation was committed or the money was found. A delay of more than seven days in holding the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier.

(4) For hearings regarding a non-disciplinary transfer, the youth may waive the hearing in writing and agree to the transfer. If the youth does not waive the hearing, the hearing must be held prior to the transfer. If good cause compels a pre-hearing transfer, the hearing shall be held within three calendar days after the transfer.

(5) If the youth is admitted to a security unit pending a Level II hearing, the hearing shall be conducted within five calendar days from the date of admission to detention. A delay of more than five days in holding the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier.

(6) Failure to document circumstances making it impossible, impractical, or inappropriate to timely investigate and hold the hearing may result in a dismissal or reversal of the decision of the hearing manager.

(7) The appropriate facility administrator, parole supervisor, quality assurance administrator, or their designees will appoint a hearing manager and staff representative.

(8) The hearing manager shall be a Texas Youth Commission (TYC) staff member who is trained to function as a hearing manager.

(A) The hearing manager shall not be a person who:

(i) witnessed any part of the alleged violation of which the youth is accused; or

(ii) made a decision to place the youth in the security unit or in a detention program pending the hearing.

(B) If the youth is currently assigned to an institution, the hearing manager shall be someone not directly responsible for supervising the youth.

(C) If the youth is currently assigned to a halfway house, the hearing manager shall not be a member of the halfway house staff.

(D) If the youth is currently assigned to a contract program, the hearing manager shall not be the TYC quality assurance specialist assigned to that youth.

(E) If the youth is currently assigned to his/her home, the hearing manager shall not be the parole officer assigned to the youth's case or the quality assurance specialist who works directly with the youth's supervising officer.

(9) The staff representative shall be responsible for assembling all evidence and giving all notices required for the hearing as well as presenting all evidence at the hearing.

(10) The youth shall be given written notice of his/her rights not less than 24 hours prior to the hearing. The youth's rights are:

(A) the right to remain silent;

(B) the right to be assisted by an advocate at the hearing;

(D) the right to contest adverse evidence admitted at the hearing;

(E) the right to call readily available witnesses and present readily available evidence on his/her own behalf at the hearing; and

(F) the right to appeal the results of the hearing. The youth's right to appeal cannot be waived.

(11) The youth shall be assisted by a TYC employee, contract employee, or volunteer who has been trained to serve as an advocate. The youth shall be given the opportunity to choose an advocate from those trained. The youth's choice shall be honored unless there is a showing of unavailability for any reason. If the youth makes no choice, or the first choice is unavailable for any reason, the hearing manager shall appoint the advocate. In cases where the youth is not proficient in the English language, the appointed advocate shall be proficient in English as well as the primary language of the youth or an interpreter shall be used.

(12) The youth and the youth's advocate shall be given written notice of the reasons for calling the hearing, the proposed action to be taken, and the evidence to be relied upon not less than 24 hours prior to the hearing. After receipt of the written notice and consultation with the advocate, the youth may waive the 24-hour notice period by agreeing, in writing, to an earlier hearing time.

(13) All youth in TYC facilities and secure contract placements shall be given the hearing packet (all written materials relied upon and a list of witnesses) at least 24 hours in advance of the hearing. The paperwork may be taken away from the youth if the youth is misusing the papers in any way.

(14) If the youth is less than 18 years of age, reasonable efforts shall be made to inform the youth's parent(s) of the time and place of the hearing not less than 24 hours prior to the hearing. If the youth is 18 years of age or older, such notice shall be provided only with the youth's authorization to release information.

(15) Hearings to impose major consequences, to place a youth in the Redirect program, or to place contraband money in the student benefit fund shall consist of two parts: fact-finding and disposition, and shall be held where the youth resides unless the hearing manager determines that some other site is more appropriate. During the fact-finding portion of the hearing, only evidence concerning the alleged misconduct may be considered; the youth's prior behavior shall not be considered unless disposition is reached.

(16) Hearings regarding non-disciplinary transfers shall consist of fact finding to determine if the transfer is necessary because there are no less restrictive placement options appropriate and available for the youth.

(17) The hearing shall be recorded and the recording shall be the official record of the hearing. The recording and the hearing packet shall be preserved for six months following the hearing.

(18) The youth shall be present during the hearing unless the youth waives his/her presence or his/her behavior prevents the hearing from proceeding in an orderly and expeditious fashion.

(A) A voluntary waiver of the youth's presence shall be in writing and signed by the youth and his/her advocate. If the youth does not sign the waiver for any reason, his/her presence is not waived.

(B) If the youth waives his/her presence, the hearing may be conducted by teleconference.

(C) If a youth is excluded for behavioral reasons, or to secure the testimony of a witness, those reasons shall be documented in the hearing record. The advocate shall be present during the testimony and shall have the opportunity to question the witness.

(D) A true plea cannot be entered on behalf of a youth who has waived his/her presence at the hearing.

(19) A victim who appears as a witness should be provided a waiting area where he/she is not likely to come in contact with the youth except during the hearing.

(20) Witnesses will take an oath prior to testifying. Witnesses may testify by telephone or videoconference if in-person testimony is impractical or unfeasible. If testimony is provided by phone, persons required to be present at the hearing must be able to simultaneously hear the testimony.

(21) The hearing manager, staff representative, and advocate may question each witness in turn. The staff representative and advocate may offer summation statements.

(22) To protect the confidential nature of the hearing, persons other than the youth, the youth's advocate, staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the hearing manager; however, any person except the staff representative or the youth's advocate may be excluded from the hearing room if his/her presence causes undue disruption or delay of the hearing. The reason(s) for the exclusions are stated on the record.

(23) With the exception of the youth or staff representative, any person designated as a witness may be excluded from the hearing room during the testimony of other witnesses and may be instructed to refrain from discussing his/her testimony with anyone until all the witnesses have been dismissed.

(24) The hearing manager may permit a witness to testify outside the presence of the youth if such appears reasonable and necessary to secure the testimony of the witness. If the youth is excluded from the hearing room during testimony, the advocate for the youth shall be present during the testimony and shall have the opportunity to review the testimony with the youth before questioning the witness.

(25) The youth shall not be called as a witness unless, after consulting with the advocate, he/she waives his/her right to remain silent on the record. Neither the hearing manager nor the staff representative may question the youth unless he/she waives the right to remain silent.

(A) The youth's failure to testify shall not create a presumption against him/her.

(B) A youth who waives the right to remain silent may only be questioned concerning those issues addressed by his/her testimony.

(26) All credible evidence may be considered, irrespective of its form.

(27) The standard of proof for all disputed issues is a preponderance of the evidence.

(28) The hearing manager may recess or continue the hearing for such period(s) of time as may be necessary to insure an informed and accurate fact-finding or to secure evidence the hearing manger determines may be relevant.

(29) The hearing manager will announce his/her findings of fact.

(30) If there is a finding of true, the hearing manager shall proceed to disposition and provide the youth an opportunity to present extenuating circumstances, with the exception that extenuating circumstances are not applicable to admissions or extensions of stay in the Corsicana Stabilization Unit or to transfers for non-disciplinary reasons. If no extenuating circumstances are found, the hearing manager shall order the disposition recommended by the staff representative.

(A) A hearing manager's decision that a youth will be transferred is final subject to approval by the parole director or administrator of halfway houses, as appropriate.

(B) A hearing manager's decision that a youth will be issued a consequence to be served at the youth's current placement is final subject to an appeal by the youth.

(C) If extenuating circumstances are found incident to the rule violation(s) proved at a Level II hearing, the youth shall not be assigned the requested dispositions or any other major consequences. However, the true finding will remain in the youth's record and can be considered by the youth's treatment team or parole officer in determining appropriate actions to address the youth's behavior. If extenuating circumstances are found incident to a youth's possession of prohibited money, the hearing manager determines the appropriate way to dispose of the money.

(31) The hearing manager shall prepare a report of his/her findings, which includes grounds for the hearing, evidence relied upon, and the decision.

(32) The youth is informed of his/her right to appeal to the chief executive officer at the close of the hearing. The pendency of an appeal shall not preclude implementation of the hearing manager's dispositional decision.

(33) A copy of the hearing report is given to the youth immediately following the close of the hearing.

§95.57.Level III Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish a hearing procedure as the appropriate informal due process necessary in certain situations.

(b) Applicability. The Level III hearing procedure is appropriate due process in the following instances:

(1) to determine admission or extension to the security program in accordance with §97.40 of this title;

(2) to determine minor disciplinary consequences for youth in medium restriction facilities in accordance with §95.3 of this title; and

(3) to determine minor disciplinary consequences for youth on parole in accordance with §95.4 of this title.

(1) To initiate the Level III hearing, the youth will be notified orally of the time and date of the hearing, the alleged misconduct, and the recommended actions to be taken.

(2) The youth has the right and will be given the opportunity to speak on his/her behalf regarding alleged misconduct or the appropriateness of the recommended action.

(3) If the Level III hearing involves a decision for an extension in the security program beyond the initial 24 hours, the youth shall be appointed an advocate to assist the youth in presenting his/her position during the extension hearing.

(4) The hearing administrator may consider any reasonably reliable information in reaching a decision regarding the truth of the youth's alleged misconduct and the appropriateness of the requested action.

(5) If the hearing administrator has reasonable grounds to believe a violation occurred, the hearing administrator will indicate which rule violation was committed and the appropriate disciplinary consequence may be imposed.

(6) If there is a finding of extenuating circumstances, no disciplinary consequence shall be imposed, but the youth may be admitted to the security unit if criteria in §97.40 of this title are met.

(7) The youth may appeal the decision to the facility administrator or parole supervisor or their designees, as appropriate, on grounds that:

(A) he/she did not commit the violation as alleged; or

(B) the disciplinary measure imposed was inappropriate; or

(8) If the disciplinary decision is determined to be inappropriate, it will be removed from the youth's behavioral record and the appeal authority may determine some form of equitable relief for a youth who has already completed a disciplinary measure and/or has been adversely affected.

§95.59.Detention for Youth with Pending Charges.

(a) Purpose. The purpose of this rule is to establish criteria and procedures for detaining youth in a Texas Youth Commission (TYC) security unit when criminal or delinquent charges are pending or filed or when awaiting a court hearing or trial.

(b) Definitions. Definitions pertaining to this rule are under §95.50 of this title.

(1) This rule applies only to TYC youth on institutional status, regardless of assigned placement.

(2) This rule does not apply to TYC youth on parole status, regardless of assigned placement.

(d) General Provisions.

(1) A youth may be held in institution detention if a court hearing or trial has been requested in writing or has been scheduled or criminal or delinquent conduct charges are pending or have been filed and:

(A) suitable alternative placement within the facility is unavailable due to on-going behavior of the youth that creates disruption of the routine of the youth's current program; or

(B) the youth is likely to interfere with the judicial process, to include failing to appear; or

(D) the youth has escaped or attempted to escape, as defined in §95.3 of this title, or is likely to engage in any of the foregoing rule violations.

(2) Charges are considered to be pending if there is reliable information that the district attorney intends to request an indictment or to file with the court a petition or other charging instrument.

(3) Charges are considered to be filed when an indictment has been issued or when a petition or other charging instrument has been filed with the court.

(4) If the youth is awaiting a court hearing for early transfer to the Texas Department of Criminal Justice-Institutions Division, the court hearing is considered to be "requested in writing" when TYC makes a written request to the court for a hearing date.

(5) Youth shall not be placed in detention for the purpose of punishment.

(6) All standard security unit requirements and services as set forth in §97.40 of this title, unless otherwise noted herein, shall be observed while the youth is detained in the security unit.

(e) Procedure.

(1) Approval for Detention.

(A) The referring staff must obtain approval from the appropriate supervisor prior to placing a youth in institution detention.

(B) Arrangements are made for the immediate release of the youth and return to the appropriate placement if:

(i) approval for detention is not granted;

(ii) it is determined that charges will not be filed or will be dropped; or

(iii) it is determined that the court hearing or trial will be cancelled.

(C) If approval is granted for a youth not assigned to a high-restriction facility, the referring staff will obtain from the facility administrator or designee approval to place the youth in institution detention.

(2) Admission to Institution Detention.

(A) The referring staff is responsible for ensuring the following documentation or information is present at the time of admission to institution detention:

(i) documentation that charges are pending or filed or that a court hearing or trial is scheduled or has been requested in writing;

(ii) a written statement including the purpose of admission with supporting documentation (i.e., any incident reports or arrest reports and expected length of stay); and

(iii) the medical file, if available, or copies of pertinent medical records, as well as any medication the youth is taking (applies to youth not assigned to the high-restriction facility where detained).

(B) The designated admitting staff shall review the information presented to determine whether there are reasonable grounds to believe criteria for admission have been met as outlined in subsection (d)(1) of this section. As a result of this review, the youth may be admitted to institution detention for up to 72 hours.

(C) The director of security designee (who shall not serve as the referring or admitting staff) will review all admission decisions within one workday to determine if admission criteria have been met. If criteria are not met or policy or procedures are not followed, the youth will be released from the security unit.

(3) Timing of Hearing.

(A) If a youth is admitted to detention, a Level IV hearing (detention review hearing) must be held:

(i) no later than 72 hours after admission to institution detention or the next workday if the 72nd hour falls on a weekend or holiday; and

(ii) within ten workdays of the previous Level IV Hearing.

(B) If a Level IV Hearing is not timely held or is not properly waived, the youth shall be released to his/her assigned location.

(4) Decision Maker.

(A) The appropriate supervisor shall appoint a decision-maker.

(B) The decision-maker shall be impartial and shall not have been the person who requested or admitted the youth to institution detention or to community detention.

(5) Youth Representation and Waiver Rights.

(A) The youth has a right and shall be informed of his/her right to be represented by an advocate. An advocate is a TYC employee, contract employee, or volunteer trained to serve as an advocate.

(B) The youth may waive the Level IV hearing after being advised by his/her advocate. Such waiver must be in writing.

(C) When a subsequent Level IV Hearing is required by policy timelines, the youth must be given the opportunity to have that hearing or to waive it. If the youth chooses to waive the hearing after speaking to his/her advocate, a new waiver form must be completed.

(6) Hearing Process.

(A) The staff requesting detention must show cause to detain the youth pending the hearing. The advocate may present evidence as to why the youth should not be detained.

(B) The standard of proof for all disputed issues is reasonable grounds to believe.

(D) The hearing shall be recorded and the recording shall be the official record of the hearing. Recordings shall be preserved for six months following the hearing.

(E) The decision maker shall base his/her decision on criteria for detention. If criteria are not met, the youth must be released to his/her assigned location.

(7) Appeal.

(A) The youth is notified in writing of his/her right to appeal.

(i) The appeal of the first Level IV Hearing will be to the facility administrator.

(ii) The appeal of the second Level IV Hearing will be to the executive commissioner pursuant to §93.53 of this title.

(iii) An automatic appeal to the executive commissioner will be filed on the third and subsequent Level IV Hearing, even if the youth waives the hearing. The staff requesting the detention will initiate the automatic appeal.

(B) The pendency of an appeal shall not preclude implementation of the decision that a youth be detained.

§95.61.Detention for Youth Pending Level I or II Hearing.

(a) Purpose. The purpose of this rule is to establish:

(1) criteria and procedures for detaining certain youth in a community detention facility (juvenile or adult) or in a Texas Youth Commission (TYC) security unit prior to a Level I or Level II due process hearing; and

(2) the expectations for interaction between TYC staff and community detention staff.

(b) Definitions. Definitions pertaining to this rule are under §95.50 of this title.

(1) This rule applies to:

(A) youth on parole status; and

(B) youth on institutional status who are assigned to a facility of less than high restriction.

(2) This rule does not apply to youth assigned to high-restriction facilities.

(d) General Provisions.

(1) Youth who are age 17 and younger may be referred to a juvenile community detention facility with the consent of local authorities. Youth who are age 17 and older may be referred to detention in an adult jail facility.

(2) TYC will utilize community detention facilities in a manner consistent with local policies.

(3) Youth shall not be placed in detention for the purpose of punishment.

(4) A Level I or Level II due process hearing will be scheduled as soon as practical but no later than seven days, excluding weekends and holidays, from the date of the alleged violation unless it was impractical, impossible, or otherwise inappropriate to have held the hearing sooner.

(5) Even if TYC staff receives information that additional criminal or delinquent proceedings against the youth are planned, pending, or anticipated by local authorities, TYC may continue to hold the youth in detention and may schedule and hold a Level I or Level II due process hearing.

(6) For youth held in community detention, the referring staff will visit the youth daily when possible. No more than three days may pass without a contact by the staff responsible for the youth.

(7) For youth held in institution detention:

(A) the referring staff will visit detained youth when possible. No more than three days may pass without the referring staff making telephone contact with the youth and the institutional placement coordinator or designated staff; and

(B) all standard security unit requirements and services as set forth in §97.40 of this title, unless otherwise noted herein, shall be observed while the youth is detained in a TYC security unit.

(e) Criteria for Detention. A youth in TYC custody may be detained when:

(1) there are reasonable grounds to believe the youth engaged in:

(A) criminal behavior, delinquent conduct, or a violation of the conditions of release under supervision that meets criteria for revocation as defined in §95.4 of this title; or

(B) a rule violation that meets criteria for disciplinary transfer as defined in §95.3 of this title; and

(2) a Level I or Level II due process hearing has been requested; and

(3) one of the following criteria is present:

(A) the youth is likely to abscond and not appear at a disciplinary hearing;

(B) suitable supervision, care, or protection for the youth is not being provided by the parent or guardian to ensure protection of the public safety or prevention of youth self-injury and a less restrictive temporary shelter is not available or is inappropriate; or

(f) Procedure.

(1) Approval for Detention.

(A) If the referring staff determines there are reasonable grounds to believe a youth has committed an offense for which a Level I or Level II due process hearing will be requested, the staff will notify an appropriate supervisor to justify and obtain approval for holding the youth in detention.

(B) If approval for detention is not granted or it is determined that a Level I or Level II Hearing will not be sought, arrangements are made for the immediate release of the youth and return to the appropriate placement, unless the community is detaining the youth for reasons unrelated to TYC's detention of the youth.

(2) Admission Process for Youth Held in Institution Detention.

(A) The referring staff is responsible for ensuring the following documentation or information is present at the time of admission to institution detention:

(i) a copy of the written request for a Level I or Level II Hearing;

(ii) a written statement including purpose of admission with supporting documentation (i.e., any incident reports or arrest reports and expected length of stay); and

(iii) the medical file, if available, or copies of pertinent medical records, as well as any medication the youth is taking.

(B) The designated admitting staff shall review the information presented to determine whether there are reasonable grounds to believe criteria for admission have been met as outlined in subsection (e) of this section. As a result of this review, the youth may be admitted to institution detention for up to 72 hours.

(C) The director of security or designee (who shall not serve as the referring or admitting staff) will review all admission decisions within one workday to determine if admission criteria have been met. If criteria are not met or policy or procedures are not followed, the youth will be released and returned to the appropriate placement.

(D) Upon admission, the youth's case is assigned to the institution placement coordinator or designated staff, who is responsible for seeing the youth at least once each day.

(3) Timing of Hearing.

(A) Community Detention.

(i) If approval for detention is granted for a youth in community detention, a Level IV hearing (detention review hearing) must be held on or before the tenth workday of detention if:

(I) a detention hearing is not waived or conducted by the community detention staff;

(II) the Level I or II hearing cannot be held within ten workdays; and

(III) further detention is necessary and appropriate.

(ii) If a detention hearing is conducted or waived by community detention staff, pursuant to the Texas Family Code, TYC staff will participate as requested by the community and no other action is necessary.

(iii) If a Level IV Hearing is not timely held or is not properly waived, the youth shall be released to his/her assigned location or other appropriate non-secure placement.

(B) Institution Detention.

(i) If a youth is admitted to institution detention, a Level IV hearing (detention review hearing) must be held:

(I) on or before 72 hours from admission to institution detention or the next workday if the 72nd hour falls on a weekend or holiday; and

(II) within ten workdays of the previous Level IV Hearing.

(ii) If a Level IV Hearing is not timely held or is not properly waived, the youth shall be released to his/her assigned location or other appropriate non-secure placement.

(4) Decision Maker.

(A) The appropriate supervisor shall appoint a decision-maker.

(B) The decision-maker shall be impartial and shall not have been the person who requested or admitted the youth to institution detention or to community detention.

(5) Youth Representation and Waiver of Level IV Hearing.

(A) The youth has a right and shall be informed of his/her right to be represented:

(i) by counsel at the Level IV Hearing if the youth is awaiting a Level I Hearing. Counsel is an attorney obtained by the youth or appointed to represent the youth; or

(ii) by an advocate at the Level IV Hearing if the youth is awaiting a Level II Hearing.

(B) The youth may waive the Level IV hearing after being advised by an attorney (for a Level I Hearing) or advocate (for a Level II Hearing). Such waiver must be in writing.

(C) When a subsequent Level IV Hearing is required by policy timelines, the youth must be given the opportunity to have that hearing or to waive it. If the youth chooses to waive the hearing after speaking to his attorney or advocate, a new waiver form must be completed.

(6) Hearing Process.

(A) The referring staff must show cause to detain the youth pending the hearing. The attorney or advocate may present evidence as to why the youth should not be detained.

(B) The standard of proof for all disputed issues is reasonable grounds to believe.

(D) The hearing shall be recorded and the recording shall be the official record of the hearing. Recordings shall be preserved for six months following the hearing.

(E) The decision maker shall base his/her decision on criteria for detention. If criteria are not met, the youth must be released to his/her assigned location.

(F) When a Level IV Hearing is necessary due to the adjournment of a Level I Telephone Hearing under §95.53 of this title, the administrative law judge may conduct a Level IV Hearing following adjournment of the telephone hearing.

(7) Appeal.

(A) The youth is notified in writing of his/her right to appeal.

(i) For youth in institution detention:

(I) appeal of the first Level IV Hearing will be to the superintendent;

(II) appeal of the second Level IV Hearing will be to the executive commissioner under §93.53 of this title; and

(III) an automatic appeal to the executive commissioner will be filed on the third and subsequent Level IV Hearing, even if the youth waives the hearing. The referring staff will initiate the automatic appeal.

(ii) For youth in community detention, Level IV Hearing appeals will be to the executive commissioner under §93.53 of this title.

(B) The pendency of an appeal shall not preclude implementation of the decision that a youth be detained.

(g) Detention following Level I or II Hearing. A youth may be held in institution detention without a Level IV Hearing when the youth is waiting for transportation to a different placement following a Level I or Level II hearing. Transportation should be arranged immediately to take place within 72 hours. Any delay in transportation beyond 72 hours must be approved by the facility administrator.

§95.71.Mental Health Status Review Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish the rules and procedure to be followed when the mental health status of a youth must be evaluated by professionals in order to provide appropriate care. A mental health status review hearing is the appropriate due process to admit a youth into the Corsicana Stabilization Unit and also to extend the stay in order to treat the psychiatric disorder.

(b) Applicability.

(1) For criteria for admission to the Corsicana Stabilization Unit, see §87.67 of this title.

(2) A mental health status review hearing is a Level II due process hearing consistent with §95.55 of this title, with several procedural exceptions, as noted herein.

(1) Decision Makers.

(A) The facility administrator of the Corsicana Residential Treatment Center will appoint a mental health professional, as defined in §91.87 of this title, to conduct the review hearing and serve as the hearing manager.

(B) The hearing manager shall not have direct or primary responsibility in the youth's current treatment or diagnosis.

(C) The hearing manager has the same authority and responsibility as that assigned to a hearing manager as set forth in §95.55 of this title.

(D) The hearing manager must be trained to conduct the review hearing.

(2) Single Function Hearing. A mental health status review hearing shall consist of a single function, to consider the facts presented relative to the criteria established.

(3) Location. All mental health status review hearings will be conducted at the Corsicana Residential Treatment Center and are the responsibility of the Corsicana staff.

(4) Advocate. The youth's advocate is appointed by the facility administrator or designee and must be a mental health professional or a caseworker assigned to the Corsicana Stabilization Unit.

(5) Timing of Hearing. A mental health status review hearing shall be held for each youth within 96 hours of arrival at the Corsicana Stabilization Unit. If the 96-hour period ends on a Saturday, Sunday, or official holiday, the hearing must be held on the next regular work day. If the hearing manager determines an unavoidable absence would prevent a key witness or party from attending the hearing, the hearing may be rescheduled to the earliest possible time but not later than 96 hours from the original scheduled hearing.

(6) Teleconference. The hearing shall not be conducted by teleconference. However, testimony may be accepted via telephone if the hearing manager determines in-person testimony is impractical or unfeasible. If testimony is accepted via telephone, all persons required to be present at the hearing must be able to simultaneously hear the testimony.

(7) Exclusion from the Hearing. To protect the confidential nature of the hearing, persons other than the youth, the youth's advocate, staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the chairperson; however, any person except the youth's advocate or staff representative may be excluded from the hearing room if their presence causes undue disruption or delay of the hearing or when hearing matters being discussed are of a very sensitive nature. The reason(s) for the exclusions are stated on the record.

(8) Decision.

(A) Following the presentation of evidence, the hearing manager shall decide whether the appropriate criteria have been established for admission or extension and will announce his/her decision. See §87.67 of this title for admission criteria.

(B) A hearing manager's decision to admit or extend the youth in the Corsicana Stabilization Unit must be supported by expert testimony of a psychiatrist that the youth meets the requisite criteria. The testimony should be given in-person when feasible.

(C) The youth shall be informed of his/her right to appeal to the executive commissioner. The pendency of an appeal shall not preclude implementation of the decision.

(9) Hearing Reporting.

(A) A report that includes the hearing manager's findings and the basis for them must be completed within seven working days after the date of the hearing.

(B) The facility administrator or designee will review the report to ensure accurate and consistent application of this rule and criteria for admission to the Corsicana Stabilization Unit, except that the person who conducted the hearing may not be the person who conducts this review. If necessary, the facility administrator or designee may return the report to the hearing manager for clarification or to reopen the hearing for the purpose of obtaining further information.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901656

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

CHAPTER 97. SECURITY AND CONTROL

SUBCHAPTER A. SECURITY AND CONTROL

The Texas Youth Commission (TYC) simultaneously proposes the repeal of §97.23, concerning Use of Force, and new §97.23, concerning Use of Force. The new rule will make several key revisions to existing use of force policy.

Concerning the use of Oleoresin Capsicum (OC) or pepper spray, the new rule requires prior authorization on a case by case basis from the facility administrator or designee unless immediate use is believed necessary to prevent serious injury or loss of life. The rule also clarifies the previous rule by establishing that only one supervisory Juvenile Correctional Officer, the shift supervisor, may carry OC spray. OC spray will no longer be authorized for use in preventing "fleeing apprehension", which is defined as youth being in an unapproved area and resisting apprehension by staff.

The new rule also makes significant changes to other areas regarding the use of force. A medical assessment will be provided following every use of manual restraint, not just those resulting in suspected injuries. Force will no longer be authorized to remove youth from a "disruptive situation" unless the disruption causes danger to the youth or others. Use of riot shields during planned team restraints will be restricted to instances where the youth possesses a weapon or otherwise presents a significant risk of harm to staff. Additionally, requirements for use of restraints for medical or mental health purposes will be removed from this rule and published in a standalone rule, §91.98, which is also proposed in this issue of the Texas Register.

Robin McKeever, Director of Administrative Services, has determined that for the first five-year period the new section is in effect there are no anticipated significant fiscal implications for state or local government as a result of enforcing or administering the new section.

James Smith, Director of Residential and Community Services, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be increased safety for youth and staff through clearer direction on when force should be used, what type of force is authorized, as well as increased controls on uses of force. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the amendment as proposed. No private real property rights are affected by adoption of this rule.

37 TAC §97.23

The repeal is proposed under the Human Resources Code, §61.034, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its functions.

The proposed repeal implements the Human Resources Code, §61.034.

§97.23.Use of Force.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 4, 2009.

TRD-200901682

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

37 TAC §97.23

The new section is proposed under the Human Resources Code, §61.045, which provides the commission with the responsibility for providing for the welfare, custody, and rehabilitation of the children in a school, facility, or program operated or funded by the commission.

The proposed rule implements the Human Resources Code, §61.034.

§97.23.Use of Force.

(a) Purpose. This rule establishes the procedures for staff intervention when youth behavior threatens safety and order.

(b) General Provisions.

(1) Non-physical interventions are preferred, and must be used to the extent practical to manage youth behavior.

(2) Texas Youth Commission (TYC) authorizes its staff to use reasonable force as a last resort to maintain safety and order. Only staff who are trained in agency-approved techniques are authorized to use force.

(3) The use of force as punishment or for convenience of staff is strictly prohibited.

(4) Approved use of force techniques are those determined by TYC to minimize risk of harm to youth and staff.

(5) Staff shall release youth from manual or mechanical restraint as soon as the purpose for the restraint has been achieved.

(6) If a staff member observes a use of force in violation of policy, he/she shall take action, as practical, to protect the youth from harm.

(7) Staff shall report any violations of this policy as soon as possible, but no later than the end of the current shift.

(8) Violations of this policy may result in disciplinary action up to and including termination of employment.

(9) After any manual restraint or use of Oleoresin Capsicum (OC) spray, a youth shall be assessed by medical staff as soon as practical. Any injuries shall be documented in the medical record along with an explanation from the youth describing how the injuries occurred. Photographs shall be taken of all injuries.

(10) Only restraint equipment approved by the executive commissioner or his/her designee shall be used in TYC facilities. All restraint equipment shall be used in a manner consistent with its design and intended purpose.

(1) This rule applies to all facilities, offices, and programs operated by or under contract with TYC, unless specifically stated otherwise in the rule.

(2) This rule does not apply to peace officers employed by the TYC Office of Inspector General.

(d) References.

(1) For riot control procedures, see §97.27 of this title.

(2) For procedures and programs designed to allow youth time to regain self-control, see §§95.20, 97.39, and 97.40 of this title.

(3) For criteria and procedures on administering a psychotropic drug in a psychiatric emergency when a youth will not give consent for the administration, see §91.92 of this title.

(4) For procedures relating to youth searches, see §97.9 of this title.

(5) For procedures and restrictions on the use of therapeutic restraints for medical or mental health purposes, see §91.98 of this title.

(e) Definitions.

(1) Handle With Care--an agency-trained physical intervention system.

(2) Imminent Harm--a reasonable belief that harm to persons or property is about to occur, unless immediate action is taken.

(3) Mental Health Professional--an individual who is a Psychiatrist, doctoral level Psychologist, masters level Associate Psychologist, Licensed Professional Counselor, or a Licensed Social Worker with an Advanced Clinical Practitioner (LMSW-ACP) designation.

(4) Positional Asphyxia--the reduction in oxygen in the bloodstream and tissues due to an impairment of a person's respiratory system caused by body positioning or the application of external weight/pressure.

(5) Practical--a reasonable belief that something is capable of being done.

(6) Reasonable Belief--a belief that would be held by a similarly trained staff considering the totality of the circumstances.

(7) Reasonable Force--the least amount of force which a trained staff, in like circumstances, would reasonably believe to be necessary to maintain order and safety as authorized under this rule.

(8) Totality of the Circumstances--facts and circumstances known by the actor at the time of the incident.

(9) Use of Force--physical measures used to direct, compel, or restrain bodily movement of a non-compliant youth.

(f) Non-Physical Interventions. Alternatives to force must be used whenever practical to assist a youth in maintaining or regaining self-control. Staff are prohibited from using profanity or slang based on race, gender, sexual orientation, or ethnicity to manage youth behavior. Staff will be trained in the use of the following non-physical intervention techniques:

(1) Staff presence--this includes mere presence of staff to include non-verbal gestures made with eyes, hands, head or body utilizing proximity, standing, eye contact and/or facial expressions; and/or involving additional staff to intervene.

(2) Verbal de-escalation--this includes verbal prompting, directive statements, and redirecting youth attention and/or behavior.

(3) Use of problem-solving groups.

(g) Physical Interventions. When reasonable force is necessary, staff are authorized to use the following methods:

(1) Physical Escort--touching of the arm, elbow, shoulder or back for the purpose of directing the youth from one location to another.

(2) Mechanical Restraint--use of a mechanical device applied to a youth as a means of restricting a youth's freedom of action.

(3) Manual Restraint--use of hands-on techniques as a means of restricting a youth's freedom of action.

(4) Planned Team Restraint--restraint of a youth who is in a locked or barricaded room by a pre-assembled team.

(5) OC Spray--oleoresin capsicum spray, also known as pepper spray. Oleoresin capsicum is a mixture of essential oil and resin found in nature and derived from any plant of the genus capsicum, such as jalapeño, cayenne, or habanero.

(h) Criteria for Use of Force. Except as otherwise indicated in this rule, reasonable force is authorized under the following circumstances:

(1) Protection of youth from imminent self-harm;

(2) Protection of self from imminent harm;

(3) Protection of other youth or third parties from imminent harm;

(4) Protection of property from imminent, substantial damage;

(5) Prevention of escape or fleeing apprehension;

(6) Movement of a youth referred to the security unit, other temporary isolation room, or alternative classroom;

(7) Movement of a resistant youth within the security unit when the youth's behavior is substantially disruptive and the youth refuses to stop the behavior;

(8) Movement of a resistant youth from a dangerous situation;

(9) To conduct a search of a resistant youth reasonably believed to be in possession of a weapon, an item that can be adapted for use as a weapon, a controlled substance, or other item(s) that breech the security of the facility;

(10) To conduct a search of a resistant youth entering the security unit; or

(11) Administration of medical treatment to a resistant youth when, under the circumstances, failure to administer the treatment could have serious health implications as determined by a physician or mid-level practitioner (such as a nurse practitioner or physician's assistant).

(i) Determining the Intervention or the Reasonable Force to be Used. In determining the type of intervention or the reasonable force to be used, staff must consider whether action needs to be taken immediately or can be delayed until additional staff can organize a team response.

(j) Approved Use of Force Techniques. Use of force techniques that may be used are limited to:

(1) agency-trained:

(A) physical escort;

(B) Handle With Care methods of manual restraint;

(D) OC spray, under certain limited circumstances; and

(2) other non-prohibited methods of manual restraint that under the totality of circumstances existing at the time:

(A) are more practical than the agency-trained Handle With Care methods of restraint, taking into account the youth's and staff's particular vulnerability to harm;

(B) involve a use of force that is measured and progressive to a degree no greater than that reasonably believed necessary to achieve the objective; and

(k) Prohibited Restraint Techniques.

(1) Prohibited restraint techniques include the following:

(A) restricting respiration in any way, such as applying a chokehold or pressure to a youth's back or chest or placing a youth in a position that is capable of causing positional asphyxia;

(B) using any method that is capable of causing loss of consciousness or harm to the neck;

(D) slapping, punching, kicking, or hitting;

(E) using pressure point, pain compliance and joint manipulation techniques, other than an approved Handle With Care method for release of a chokehold, bite or hair pull;

(F) modifying restraint equipment or applying any cuffing technique that connects handcuffs behind the back to ankle restraints;

(G) dragging or lifting of the youth by the hair or ear or by any type of mechanical restraints;

(H) lifting a youth's arms behind the back, while in mechanical restraints, in a manner that is capable of causing injury to the shoulder;

(I) using other youth or untrained staff to assist with the restraint;

(J) securing a youth to another youth or to a fixed object, other than to an agency-approved full-body restraint device; or

(K) administering a drug for controlling acute episodic behavior as a means of physical restraint, except when the youth's behavior is attributable to mental illness and the drug is authorized by a licensed physician and administered by a licensed medical professional.

(2) A physical contact that would otherwise be prohibited, under the above paragraph, does not include one that is only accidental and momentary.

(l) Requirements for Planned Team Restraint Situations.

(1) Criteria for Use. Planned team restraint is authorized only to:

(A) stop the youth from engaging in self-harm;

(B) prevent significant property damage; or

(C) recover a weapon or item that has been adapted for use as a weapon and is capable of causing death or serious bodily injury.

(2) Requirements for Use.

(A) Prior to approval of planned team restraint, the facility administrator or administrative duty officer must personally observe the situation. Only the facility administrator or administrative duty officer may authorize a planned team restraint.

(B) All planned team restraints must be videotaped when practical, including a recording of a verbal description of the youth's conduct and all warnings provided the youth according to the agency approved script.

(D) The youth must be warned to discontinue the misconduct at least two times after the team is assembled and before the room entry. The team must provide continuous opportunities for compliance during the room entry.

(E) Use of the riot shield during a planned team restraint is limited to cases in which a youth has a weapon or a youth's behavior indicates there is a significant risk of harm to the staff members involved in the restraint.

(m) Requirements for Use of Mechanical Restraints.

(1) Guidelines for Use.

(A) Mechanical restraint equipment must not be secured so tightly as to interfere with circulation or so loosely as to permit chafing of the skin.

(B) When mechanical restraints are employed on a youth in a prone position, the youth is placed on his/her side as soon as practical in order to help ensure adequate respiration and circulation. The youth must be allowed to sit up as soon as his/her behavior is under control.

(C) A mechanical restraint, for other than transportation or riot control, shall be terminated as soon as the purpose for which the youth was restrained under subsection (h) of this section has been achieved, but in any event within 15 minutes, unless an extension is granted. Extensions may be granted by the facility administrator or designee for additional 30-minute intervals, until termination of restraint.

(D) When mechanical restraints are applied, staff shall ensure the youth's safety by checking the youth for adequate respiration and circulation every 15 minutes until termination of restraint. Staff will provide continuous visual supervision and appropriate assistance until the mechanical restraint is terminated.

(E) Mechanical ankle and wrist restraints attached to a waist belt by a lead chain may be used when transporting a youth to a security unit, within a security unit, and from a security unit in order to prevent harm to the youth or others. These restraints may not be attached in a manner that prevents the youth from being able to stand upright. Mechanical restraints may remain on the youth during the duration of the activity, if circumstances warrant such restraints.

(2) Mechanical Restraint Use by TYC Transportation Staff. Mechanical ankle and wrist restraints attached to a waist belt by a lead chain shall be used during secure transportation by designated TYC transportation staff. Exceptions may be made for youth being transported following release on parole from a residential program or when medically necessary.

(3) Mechanical Restraint Use by Other Transporters.

(A) Mechanical ankle and wrist restraints attached to a waist belt by a lead chain shall be used during transportation when a youth is being transported to a high restriction program.

(B) Mechanical ankle and wrist restraints attached to a waist belt by a lead chain may be used when transporting a youth off-campus.

(n) Requirements for Use of OC Spray.

(1) Persons Authorized to Use OC Spray.

(A) OC spray is permitted only in TYC-operated high restriction institutions.

(B) Unless reasonably believed necessary to prevent loss of life or serious bodily injury, authorization to use OC spray must be obtained from the facility administrator, assistant superintendent, or administrative duty officer prior to each use.

(C) The only staff authorized to routinely carry OC spray on-person are the facility administrator, assistant superintendent, administrative duty officer, juvenile correctional officer shift supervisor (one per shift), director of security, and security personnel whose primary responsibility is to patrol the campus and respond to security-related incidents. Any staff positions in addition to those listed must be authorized in writing by the executive commissioner or his/her designee.

(D) Only staff who have been trained by TYC in the use of OC spray are authorized to use it.

(2) Criteria for Use.

(A) Except as provided in subparagraph (B) of this paragraph, OC Spray is authorized for use only when non-physical interventions and other physical interventions have failed or are not practical, and it is reasonably believed necessary to:

(i) quell a riot or major campus disruption;

(ii) resolve a hostage situation;

(iii) remove youth from behind a barricade in a riot or self-harm situation;

(iv) secure an object that is being used as a weapon and that is capable of causing serious bodily injury;

(v) protect youth, staff, or others from imminent serious bodily injury; or

(vi) prevention of escape.

(B) Unless reasonably believed necessary to prevent loss of life or serious bodily injury, OC spray is not authorized for use on a youth when a medical provider has diagnosed the youth with a chronic, serious respiratory problem or other serious health condition identified by TYC. (e.g., significant eye problems, known history of severe allergic reaction to OC, or severe dermatological problems).

(3) Guidelines for Use.

(A) OC spray canisters must be carefully controlled at all times.

(B) Any youth affected by OC spray will be decontaminated with cool water as soon as the purpose of the restraint has been achieved.

(C) Immediately following de-contamination from OC spray, medical staff will be contacted to examine and, if necessary, treat and monitor all youth and staff affected by OC spray.

(D) Each individually assigned canister of OC must be weighed at the time it is assigned and after each use.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 4, 2009.

TRD-200901683

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

37 TAC §§97.35 - 97.37, 97.40, 97.41, 97.43

The Texas Youth Commission (TYC) proposes the repeal of §97.35 (concerning temporary segregation of youth out-of-control), §97.36 (concerning standard security unity program requirements), §97.37 (concerning security intake), §97.40 (concerning security program), §97.41 (concerning community detention), and §97.43 (concerning institution detention program).

The repeal of §97.35 will allow for the content of this rule to be republished under a new section number, §95.20. The new section is proposed in this issue of the Texas Register.

The repeal of §97.36 will allow for the content of this rule to republished under a new section number, §97.40. The new section is proposed in this issue of the Texas Register.

The repeal of §97.37 will reflect the proposal to discontinue the security intake program. This program currently operates as a temporary holding program for youth referred to a security unit. Youth are kept in this program up to 24 hours while a determination is made whether or not to admit the youth to the security unit. Proposed changes in policy, as reflected in new §97.40, will require that this determination be made within one hour (or two if an extension is granted) after a youth is referred to the security unit.

The repeal of §97.40 will allow for a significantly revised rule to be published in its place. The revised rule is proposed as a new rule in this issue of the Texas Register.

The repeal of §97.41 and §97.43 will allow for the content of these rules to be republished under new section numbers, §95.59 and §95.61. The new sections are proposed in this issue of the Texas Register.

The repeals are proposed under Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions.

The proposed repeals implement Human Resources Code §61.034.

§97.35.Temporary Segregation of Youth Out of Control.

§97.36.Standard Security Unit Program Requirements.

§97.37.Security Intake.

§97.40.Security Program.

§97.41.Community Detention.

§97.43.Institution Detention Program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901658

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014

37 TAC §97.40

The Texas Youth Commission (TYC) proposes new §97.40, concerning Security Program. The new rule will establish the criteria for admission to the Security Program, requirements for service delivery, maximum number of locally approved extensions, and release criteria.

This new policy, together with the repeal of §97.37 (concerning the security intake program), will require that the central office director of residential services approve any extension in resulting in confinement beyond five days. The current rule requires this level of approval only after 11 days in confinement. The new rule will also specify that required visits from the clinical, religious, medical, rehabilitation, and administrative departments must take place in the youth's room, or with the youth outside of the room, unless the youth's current behavior prohibits direct contact for safety reasons. The new rule also clarifies that large muscle exercise and physical education are not synonymous. The hour of large muscle exercise may not be counted toward the daily requirement to provide 5 and one-half hours of academic services in the security unit unless the youth is currently enrolled in physical education as part of his/her normal academic schedule.

James Smith, Director of Residential and Community Services, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the establishment of enhanced protections against undue extensions in confinement, provision of more direct service delivery to youth in confinement, as well as compliance with nationally recognized best practices and accreditation standards.

The proposed rule implements Human Resources Code §61.034.

§97.40.Security Program.

(a) Purpose. The Texas Youth Commission (TYC) operates security programs at its high restriction facilities in order to temporarily remove youth who engage in certain dangerous or disruptive behaviors from the general campus population. This rule establishes admission criteria, service delivery requirements, and security provisions, and requirements for due process and administrative review for youth admitted to the security program.

(b) Applicability. This rule applies to TYC-operated high restriction facilities that operate security units.

(c) Definitions. Security Unit--a secure building on the campus of a high restriction TYC facility which contains individual rooms and a central control station. Entry to and exit from the building are controlled exclusively by staff.

(d) General Provisions.

(1) Confinement in the security program shall not be used as punishment or as a convenience for staff.

(2) Youth shall be afforded all basic youth rights, as established in §93.1 of this title, while confined in the security program.

(3) Except as otherwise authorized by the division director over residential services or designee on a case-by-case basis, confinement in the security program shall not exceed five calendar days or a maximum of 120 hours.

(4) The security program shall be operated within the security unit.

(e) Admission Criteria. A youth may be admitted to the security program when there is a reasonable belief the youth has committed a major rule violation or a minor rule violation requiring referral to the security unit, and:

(1) the youth is a serious and continuing escape risk;

(2) the youth is a serious and immediate physical danger to others and staff cannot protect them except by admitting the youth to security program;

(3) confinement is necessary to prevent imminent and substantial damage to property;

(4) confinement is necessary to control behavior that disrupts programming to the extent that the current program cannot continue except by admitting the youth to the security program; or

(5) the youth is likely to interfere with a pending or ongoing investigation or a scheduled due process hearing.

(f) Admission Process.

(1) Within one hour after a youth's arrival at the security unit (or up two hours if an extension is approved by the facility administrator or designee), a staff member will hold a Level III hearing in accordance with §95.57 of this title to determine whether admission criteria have been met. The staff member appointed to conduct the review must not have been involved in the referral to the security program.

(2) If admission criteria are not met, the youth must be returned to the general population immediately.

(3) If admission criteria are met, the youth will be admitted to the security program for up to 24 hours.

(g) Extension Process.

(1) Extension Criteria.

(A) A 24-hour extension may be authorized if the following criteria are met, as established through a Level III hearing conducted in accordance with §95.57 of this title:

(i) one or more of the admission criteria listed in subsection (e)(1) - (5) of this section continue to be present; or

(ii) there is documented evidence that the youth is not complying with the security program rules of conduct.

(B) No more than four (4) extensions may be authorized by facility staff.

(2) Extensions Beyond Five Days.

(A) The division director over residential services or designee may approve extensions after the 5th day of confinement only when no less restrictive placement is suitable for managing the youth's behavior and:

(i) the youth continues to present an immediate physical danger to others; or

(ii) the youth continues to be likely to interfere with a pending or ongoing investigation or a scheduled hearing.

(B) Each extension is valid for up to 72 hours.

(h) Release to the General Population.

(1) A youth shall be released to the general population upon:

(A) the expiration of the most recently approved period in confinement; or

(B) prior to the expiration of the most recently period upon a determination that the youth's behavior no longer warrants confinement in the security unit.

(2) A youth may be released from the security program only by the director of security or a staff member authorized to conduct an admission hearing.

(i) Administrative Reviews and Appeals.

(1) The director of security or designee will review all admission and local extension decisions within one workday. The person reviewing the decision must not have been involved in the decision. If it is determined that admission or extension criteria were not met or appropriate due process was not provided:

(A) the youth will be returned to the general population immediately; and

(B) the youth's record will be corrected to reflect the overturned security admission or extension.

(2) The youth will be notified in writing of his/her right to appeal a security program admission or extension to the facility administrator or designee. Appeals of decisions made by the facility administrator will be decided by the division director over residential services or designee. The youth is notified in writing of the outcome of the appeal.

(j) Security Program Requirements.

(1) Staff shall visually check each youth at least once every 15 minutes and shall document youth activity and location during the check.

(2) Individual doors are locked.

(3) The security program will adhere to a standard schedule approximating that of the general population. The schedule must include at least four hours outside of the locked room for each youth if the youth's behavior permits.

(4) The standard schedule and security program rules of conduct will be posted and reviewed with youth.

(5) Staff from the administrative, clinical, and/or religious departments shall visit each youth at least once each day. A nurse and case manager shall visit each youth at least once each day. Actual entry into the room or removal of the youth from the room for the purpose of discussion or counseling constitutes a visit, unless a youth's behavior prohibits direct contact for safety reasons.

(6) Youth shall be provided:

(A) appropriate psychological and medical services;

(B) an intervention plan that addresses the behavior that resulted in the referral or extension;

(D) access to shower and hygiene routine at least once every 24 hours, as behavior permits;

(E) the same food, including snacks, prepared in the same manner as for other youth except for special diets that are prescribed on an individual basis by a physician, dentist, mental health professional, or approved by a chaplain;

(F) ability to earn privileges;

(G) access to at least five and one-half hours of academic services each scheduled instructional day; and

(H) one hour each day of large muscle exercise out of the room or in an enclosed outdoor recreation area, as the youth's behavior and weather permit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2009.

TRD-200901659

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Earliest possible date of adoption: June 14, 2009

For further information, please call: (512) 424-6014