PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT
CHAPTER 341. GENERAL STANDARDS FOR JUVENILE PROBATION DEPARTMENTS
The Texas Juvenile Justice Department (TJJD) proposes to amend 37 TAC §341.100, Definitions. TJJD also proposes new 37 TAC §341.308, Notification to Office of Independent Ombudsman.
SUMMARY OF CHANGES
The amended §341.100 will add a definition for Non-Juvenile Justice Contract Facility.
The new §341.308 will explain that: 1) the chief administrative officer or designee must notify the Office of Independent Ombudsman via email when a juvenile is placed in a non-juvenile justice contract facility; and 2) the notification must be made no later than 10 days after the juvenile's placement.
The new §341.308 will also explain that: 1) the chief administrative officer or designee must notify the Office of Independent Ombudsman via email when a juvenile who was placed in a non-juvenile justice contract facility has been removed from the facility for any reason; and 2) the notification must be made no later than 10 days after the juvenile's removal.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the new and amended sections are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the sections.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the new and amended sections are in effect, the public benefit anticipated as a result of administering the sections will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the new and amended sections as proposed. No private real property rights are affected by adoption of the sections.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the new and amended sections are in effect, the sections will have the following impacts.
(1) The proposed sections do not create or eliminate a government program.
(2) The proposed sections do not require the creation or elimination of employee positions at TJJD.
(3) The proposed sections do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed sections do not impact fees paid to TJJD.
(5) The proposed sections do not create a new regulation.
(6) The proposed sections do not expand, limit, or repeal an existing regulation.
(7) The proposed sections do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed sections will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
SUBCHAPTER A. DEFINITIONS AND GENERAL PROVISIONS
STATUTORY AUTHORITY
The amended section is proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§341.100.Definitions.
The following words and terms have the following meanings when used in this chapter unless the context clearly indicates otherwise.
(1) Alternative Referral Plan--A procedure that deviates
from the requirements of Family Code [Texas Family
Code] §53.01(d) regarding referral of cases to the prosecutor.
(2) Approved Personal Restraint Technique ("personal restraint")--A professionally trained, curriculum-based, and competency-based restraint technique that uses a person's physical exertion to completely or partially constrain another person's body movement without the use of mechanical restraints.
(3) Approved Mechanical Restraint Devices ("mechanical restraint")--A professionally manufactured and commercially available mechanical device designed to aid in the restriction of a person's bodily movement. The only mechanical restraint devices approved for use are the following:
(A) Ankle Cuffs--Metal band designed to be fastened around the ankle to restrain free movement of the legs.
(B) Handcuffs--Metal devices designed to be fastened around the wrist to restrain free movement of the hands and arms.
(C) Plastic Cuffs--Plastic devices designed to be fastened around the wrists or legs to restrain free movement of hands, arms, or legs. Plastic cuffs must be designed specifically for use in human restraint.
(D) Soft Restraints--Non-metallic wristlets and anklets used as stand-alone restraint devices. These devices are designed to reduce the incidence of skin, nerve, and muscle damage to the subject's extremities.
(E) Waist Belt--A cloth, leather, or metal band designed to be fastened around the waist and used to secure the arms to the sides or front of the body.
(4) Case Management System--A computer-based tracking system that provides a systematic method to track and manage juvenile offender caseloads.
(5) Chief Administrative Officer--Regardless of title, the person hired by a juvenile board who is responsible for oversight of the day-to-day operations of a juvenile probation department, including the juvenile probation department of a multi-county judicial district.
(6) Comprehensive Folder Edit--A report generated in the Caseworker or Juvenile Case Management System (JCMS) application that performs an extensive edit of the case file information. This report identifies incorrectly entered data and questionable data that impact the accuracy of the reports and programs.
(7) Criminogenic Needs--Issues, risk factors, characteristics, and/or problems that relate to a person's risk of reoffending.
(8) Data Coordinator--A person employed by a juvenile probation department who is designated to serve and function as the primary contact with TJJD on all matters relating to data collection and reporting.
(9) Department--A juvenile probation department.
(10) Draw--To unholster a weapon in preparation for use against a perceived threat.
(11) EDI Specifications--A document developed by TJJD outlining the data fields and file structures that each juvenile probation department is required to follow in submitting the TJJD EDI extract.
(12) Empty-Hand Defense--Defensive tactics through the use of pressure points, releases from holds, and blocking and striking techniques using natural body weapons such as an open hand, fist, forearm, knee, or leg.
(13) Field Supervision--Supervision ordered by a juvenile
court in accordance with Family Code [Texas Family
Code] §54.04(d)(1)(A) where the child is placed on probation
in the child's home or in the custody of a relative or another fit person.
(14) Formal Referral--An event that occurs only when all three of the following conditions exist:
(A) a juvenile has allegedly committed delinquent conduct, conduct indicating a need for supervision, or a violation of probation;
(B) the juvenile probation department has jurisdiction and venue; and
(C) the office or official designated by the juvenile board has:
(i) made face-to-face contact with the juvenile and the alleged offense has been presented as the reason for this contact; or
(ii) given written or verbal authorization to detain the juvenile.
(15) Initial Disposition--The disposition of probation issued by a juvenile court after a child is:
(A) formally referred to a juvenile probation department for the first time; or
(B) formally referred to a juvenile probation department after any and all previous periods of supervision by the department have ended.
(16) Inter-County Transfer--As described in Family
Code [Texas Family Code] §51.072, a transfer
of supervision from one juvenile probation department in Texas to
another juvenile probation department in Texas for a juvenile who
moves or intends to move to another county and intends to remain in
that county for at least 60 days.
(17) Intermediate Weapons--Weapons designed to neutralize or temporarily incapacitate an assailant, such as electronic restraint devices, irritants, and impact weapons. This level of self-defense employs the use of tools to neutralize aggressive behavior when deadly force is not justified but when empty-hand defense is not sufficient.
(18) Intern--An individual who performs services for a juvenile justice program or facility through a formal internship program that is sponsored by a juvenile justice agency or is part of an approved course of study through an accredited college or university.
(19) Juvenile--A person who is under the jurisdiction of the juvenile court, confined in a juvenile justice facility, or participating in a juvenile justice program.
(20) Juvenile Board--A governing board created under
Chapter 152, [of the Texas] Human Resources Code.
(21) Juvenile Justice Program--A program or department that:
(A) serves juveniles under juvenile court or juvenile board jurisdiction; and
(B) is operated solely or partly by the governing board, juvenile board, or by a private vendor under a contract with the governing board or juvenile board. The term includes:
(i) juvenile justice alternative education programs;
(ii) non-residential programs that serve juvenile offenders under the jurisdiction of the juvenile court or the juvenile board; and
(iii) juvenile probation departments.
(22) Non-Juvenile Justice Contract Facility--A facility in which a juvenile is placed pursuant to a contract with a department, program, facility, or juvenile board, other than a facility registered with TJJD.
(23) [(22)] Professional--A [a] person who meets the definition of professional in §344.100
of this title.
(24) [(23)] Resident--A juvenile
or other individual who has been lawfully admitted into a pre-adjudication
secure juvenile detention facility, post-adjudication secure juvenile
correctional facility, or a non-secure juvenile correctional facility.
(25) [(24)] Residential Placement--Supervision
ordered by a juvenile court in which the child is placed on probation
outside the child's home in a foster home or a public or private institution
or agency.
(26) [(25)] Restraints--Personal
or mechanical restraint.
(27) [(26)] Responsivity Factors--Factors
that are not necessarily related to criminal activity but are relevant
to the way in which the juvenile reacts to different types of interventions
(e.g., learning styles and abilities, self-esteem, motivation for
treatment, resistance to change, etc.)
(28) [(27)] SRSXEdit--An audit
program developed by TJJD to assist juvenile probation departments
not using the Caseworker or JCMS application with verifying their
data prior to submission to TJJD.
(29) [(28)] Supervision--The
case management of a juvenile by the assigned juvenile probation officer
or designee through contacts (e.g., face-to-face, telephone, office,
home, or collateral contacts) with the juvenile, the juvenile's family,
and/or other persons or entities involved with the juvenile.
(30) [(29)] TCOLE--Texas Commission
on Law Enforcement.
(31) [(30)] Title IV-E Approved
Facility--A facility licensed and/or approved by the Texas Department
of Family and Protective Services for Title IV-E participation.
(32) [(31)] TJJD--Texas Juvenile
Justice Department.
(33) [(32)] TJJD Electronic Data
Interchange (EDI) Extract--An automated process to extract and submit
modified case records from the department's case management system
to TJJD. The extract must be completed in accordance with this chapter.
(34) [(33)] TJJD Mental Health
Screening Instrument--An instrument selected by TJJD to assist in
identifying juveniles who may have mental health needs.
(35) [(34)] Volunteer--An individual
who performs services for the juvenile probation department without
compensation from the department who has:
(A) any unsupervised contact with juveniles in a juvenile justice program or facility; or
(B) regular or periodic supervised contact with juveniles in a juvenile justice program or facility.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406317
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The new section is proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§341.308.Notification to Office of Independent Ombudsman.
(a) The chief administrative officer or designee must notify the Office of Independent Ombudsman when a juvenile is placed in a non-juvenile justice contract facility. The notification must be made no later than 10 days after the juvenile's placement and must be made via email to the Office of Independent Ombudsman.
(b) The chief administrative officer or designee must notify the Office of Independent Ombudsman when a juvenile who was placed in a non-juvenile justice contract facility has been removed from the facility for any reason. The notification must be made no later than 10 days after the juvenile's removal and must be made via email to the Office of Independent Ombudsman.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406318
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
SUBCHAPTER B. PRE-ADJUDICATION AND POST-ADJUDICATION SECURE FACILITY STANDARDS
The Texas Juvenile Justice Department (TJJD) proposes new 37 TAC §343.261, Resident Supervision.
SUMMARY OF CHANGES
New §343.261 will require juvenile probation departments to enact policies to prohibit the view through windows used to observe residents from being blocked and to instruct staff of what actions to take if the view through an observation window is blocked.
New §343.261 will also explain that refusing to remove an item obstructing the viewing window is considered a serious threat to safety and/or security.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the new section is in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the section.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the new section is in effect, the public benefit anticipated as a result of administering the section will be increased safety of youth in juvenile facilities.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. 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 section.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the new section is in effect, the section will have the following impacts.
(1) The proposed section does not create or eliminate a government program.
(2) The proposed section does not require the creation or elimination of employee positions at TJJD.
(3) The proposed section does not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed section does not impact fees paid to TJJD.
(5) The proposed section does not create a new regulation.
(6) The proposed section does not expand, limit, or repeal an existing regulation.
(7) The proposed section does not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed section will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The new section is proposed under §221.002, Human Resources Code, requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§343.261.Resident Supervision.
(a) Facility policy must prohibit the blocking of viewing windows that are used to observe residents. The policy must instruct staff of the actions to take if a viewing window is blocked.
(b) The refusal to remove an item obstructing the viewing window is considered a serious threat to facility safety and/or security.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406319
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes to amend 37 TAC §345.100, Definitions; §345.200, Policy and Procedure; §345.300, Adherence and Reporting Violations; and §345.310, Code of Ethics.
SUMMARY OF CHANGES
The amended §345.100 will: 1) clarify the definitions for juvenile, juvenile justice facility, and juvenile justice professional; and 2) add a definition for Non-Juvenile Justice Contract Facility.
The amended §345.200 will clarify that departments, programs, and facilities must adopt and implement policies and procedures to ensure that all code of ethics violations are reported to the administration of the department, program, or facility and to TJJD.
The amended §345.300 will clarify that juvenile justice professionals must report any unethical behavior or violations of the code of ethics to TJJD and to the administration of the department, program, facility, or non-juvenile justice contract facility where the juvenile justice professional is an employee, volunteer, or contractor.
The amended §345.310 will clarify that: 1) juvenile justice professionals must not engage in conduct constituting abuse, neglect, or exploitation as provided by Chapter 358, Administrative Code, and Chapter 261, Family Code; and 2) juvenile justice professionals must not interfere with or hinder any investigation (rather than any abuse, neglect, or exploitation investigation).
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the amended sections are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the sections.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the amended sections are in effect, the public benefit anticipated as a result of administering the sections will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the amended sections as proposed. No private real property rights are affected by adoption of the sections.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the amended sections are in effect, the sections will have the following impacts.
(1) The proposed sections do not create or eliminate a government program.
(2) The proposed sections do not require the creation or elimination of employee positions at TJJD.
(3) The proposed sections do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed sections do not impact fees paid to TJJD.
(5) The proposed sections do not create a new regulation.
(6) The proposed sections do not expand, limit, or repeal an existing regulation.
(7) The proposed sections do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed sections will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
SUBCHAPTER A. DEFINITIONS AND APPLICABILITY
STATUTORY AUTHORITY
The amended section is proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§345.100.Definitions.
The following terms, as used in this chapter, have the following meanings unless otherwise expressly defined within the chapter.
(1) Juvenile--A person who is under the jurisdiction of the juvenile court, confined in a juvenile justice facility, or participating in a juvenile justice program, including a prevention and intervention program, regardless of age.
(2) Juvenile Justice Facility ("facility")--a facility that is registered by TJJD pursuant to Sections 51.12, 51.125, or 51.126, Family Code.
[(A) A facility, including the facility's
premises and all affiliated sites whether contiguous or detached, that:]
[(i) serves juveniles under juvenile court jurisdiction; and]
[(ii) is operated:]
[(I) wholly or partly by or under the authority of the governing board or juvenile board; or]
[(II) by a private vendor under a contract with the governing board, juvenile board, or governmental unit.]
[(B) The term includes, but is not limited to:]
[(i) public or private juvenile pre-adjudication secure detention facilities, as defined in §344.100 of this title, including short-term detention facilities (i.e., holdovers) as defined in §351.1 of this title;]
[(ii) public or private juvenile post-adjudication secure correctional facilities as defined in §344.100 of this title; and]
[(iii) public or private non-secure correctional facilities as defined in §355.100 of this title.]
(3) Juvenile Justice Professional--A person who is:
(A) certified by TJJD as a juvenile probation officer, community activities officer [youth activities supervisor],
or juvenile supervision officer; or
(B) employed by, contracting with, or volunteering
with a department, program, or facility or a non-juvenile justice
contract facility [a juvenile probation department, juvenile
justice program, or a juvenile justice facility as a juvenile probation
officer, youth activities supervisor, or juvenile supervision officer].
(4) Juvenile Justice Program ("program")--Has the meaning assigned by §344.100 of this title.
(5) Juvenile Probation Department ("department")--Has the meaning assigned by §344.100 of this title.
(6) Non-Juvenile Justice Contract Facility--A facility in which a juvenile is placed pursuant to a contract with a department, program, facility, or juvenile board, other than a facility registered with TJJD.
(7) [(6)] TJJD--The Texas Juvenile
Justice Department.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406320
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The amended section is proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§345.200.Policy and Procedure.
Department, programs, and facilities [Juvenile
probation departments, juvenile justice programs, and juvenile justice
facilities] must adopt and implement written policies and procedures
to ensure that all code of ethics violations are reported to:
(1) the administration of the department, program,
or facility [juvenile probation department, juvenile justice
program, or juvenile justice facility]; and
(2) TJJD.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406321
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The amended sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§345.300.Adherence and Reporting Violations.
(a) To ensure the safety, protection, and welfare of the juveniles and families served by the juvenile justice system, juvenile justice professionals must adhere to the code of ethics set forth in this chapter.
(b) Juvenile justice professionals must report [to
the appropriate authorities and/or entities] any unethical behavior
or violations of the code of ethics to TJJD and the administration
of the department, program, facility, or non-juvenile justice contract
facility where the juvenile justice professional is an employee, volunteer,
or contractor.
§345.310.Code of Ethics.
(a) The people of Texas expect juvenile justice professionals to exhibit honesty and respect for the dignity and individuality of human beings and display a commitment to professional and compassionate service.
(b) In accordance with Chapter 349 of this title [As described by §344.810 and §349.307 of this title],
TJJD may take disciplinary action against a [the]
certification of or deny a certification to [of] a juvenile justice professional who is found by TJJD to
have violated the code of ethics.
(c) Juvenile justice professionals must adhere to the following code of ethics principles:
(1) Juvenile justice professionals must:
(A) abide by all federal laws, federal guidelines and rules, state laws, and TJJD administrative rules;
(B) respect the authority and follow the directives of the juvenile court and governing juvenile board;
(C) respect and protect the legal rights of all juveniles and their parents and/or guardians;
(D) serve each child with concern for the child's welfare and with no expectation of personal gain;
(E) respect the significance of all elements of the justice and human services systems and cultivate professional cooperation with each segment;
(F) respect and consider the right of the public to be safeguarded from the effects of juvenile delinquency;
(G) be diligent in their responsibility to record and make available for review any and all information that could contribute to sound decisions affecting a child or public safety;
(H) report without reservation any corrupt or unethical behavior that could affect a juvenile or the integrity of the juvenile justice system;
(I) maintain the integrity and confidentiality of juvenile information, not seek more information than needed to perform their duties, and not reveal information to any person who does not have authorized access to the information for a proper, professional use; and
(J) treat all juveniles and their families with courtesy, consideration, and dignity.
(2) Juvenile justice professionals must not:
(A) use their official position to secure privileges or advantages;
(B) permit personal interest to impair the impartial and objective exercise of professional responsibilities;
(C) accept gifts, favors, or other advantages that could give the appearance of impropriety or impair the impartial and objective exercise of professional responsibilities;
(D) maintain or give the appearance of maintaining an inappropriate relationship with a juvenile, including, but not limited to, bribery or solicitation or acceptance of gifts, favors, or services from juveniles or their families;
(E) discriminate against any employee, juvenile, parent, or guardian on the basis of race, ethnicity, gender, disability, national origin, religion, sexual orientation, political belief, or socioeconomic status;
(F) misuse government property or resources or use personal property or funds belonging to a juvenile;
(G) engage in conduct constituting abuse, neglect,
or exploitation as provided by Chapter 358 of this title and Chapter
261, Family Code [be designated as a perpetrator in an
abuse, exploitation, and neglect investigation conducted by TJJD under
Chapter 350 of this title and Texas Family Code Chapter 261];
(H) interfere with or hinder any [abuse, exploitation,
and neglect] investigation, including a criminal investigation
conducted by law enforcement or an investigation conducted under Chapter
350 and Chapter 358 of this title or [Texas Family Code]
Chapter 261, Family Code;
(I) deliver into or remove from the grounds of a juvenile facility, program, or department any item of contraband or possess or control any item of contraband beyond the time period required to immediately report and deliver the item to the proper authority within the facility, program, or department;
(J) use violence or unnecessary force and must use only the amount and type of force reasonably necessary and appropriate when justified to ensure the security of juveniles or of the facility, program, or department; or
(K) falsify or make material omissions to governmental records.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406322
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes to repeal 37 TAC §§349.100, 349.200, 349.300, 349.305, 349.307, 349.308, 349.310, 349.311, 349.315, 349.320, 349.325, 349.330, 349.335, 349.340, 349.345, 349.355, 349.360, 349.365, 349.370, 349.375, 349.380, 349.385, 349.400, 349.410, 349.500, 349.510, 349.520, 349.530, 349.540, 349.550, 349.560, 349.570, 349.600, 349.650, 349.700, relating to General Administrative Standards.
SUMMARY OF REPEAL
The repeal of §§349.100, Definitions; 349.200, Waiver or Variance; 349.300, Requests for Disciplinary Action; 349.305, Commission Initiated Disciplinary Action; 349.307, Disciplinary Sanctions; 349.308, Disciplinary Guidelines; 349.310, Effect of Request for Disciplinary Action; 349.311, Disciplinary Sanctions; 349.315, Computation of Time; 349.320, Notice and Service; 349.325, Representation; 349.330, Preliminary Notice to Certified Officer in Disciplinary Matters; 349.335, Commencement of Disciplinary Proceedings; 349.340, Certified Officer's Answer and Consequence of Failure to File an Answer to Formal Charges (Default); 349.345, Discovery; 349.355, Subpoenas; 349.360, Informal Proceedings; 349.365, Agreed Dispositions; 349.370, Formal Disciplinary Proceedings; 349.375, Decision of the Board; 349.380, Judicial Review; 349.385, Mandatory Suspension for Failure to Pay Child Support; 349.400, Complaint Process; 349.410, Administrative Review of Investigation Findings; 349.500, Purpose; 349.510, Definitions; 349.520, Access to Confidential Information; 349.530, Redaction of Records Prior to Release; 349.540, Procedures for Requesting Access to Confidential Information; 349.550, Public Information; 349.560, Videotapes, Audiotapes, and Photographs; 349.570, Charges for Copies of Records; 349.600, Purpose; 349.650, Removal of Members; and 349.700, Access to Data Collected, will allow the content to be revised and republished as new §§349.100, 349.110, 349.120, 349.200, 349.210, 349.220, 349.230, 349.240, 349.250, 349.260, 349.270, 349.300, 349.302, 349.304, 349.310, 349.320, 349.330, 349.340, 349.350, 349.360, 349.370, 349.380, 349.390, 349.400, 349.410, 349.420, 349.430, 349.440, 349.450, 349.460, 349.500, 349.550, and 349.600.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the repeals are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the repeals.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the repeals are in effect, the public benefit anticipated as a result of administering the repeals will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. 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 the repeals.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the repeals are in effect, the repeals will have the following impacts.
(1) The proposed repeals do not create or eliminate a government program.
(2) The proposed repeals do not require the creation or elimination of employee positions at TJJD.
(3) The proposed repeals do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed repeals do not impact fees paid to TJJD.
(5) The proposed repeals do not create a new regulation.
(6) The proposed repeals do not expand, limit, or repeal an existing regulation.
(7) The proposed repeals do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed repeals will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
SUBCHAPTER A. DEFINITIONS
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.100.Definitions.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406331
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.200.Waiver or Variance.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406332
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.300.Requests for Disciplinary Action.
§349.305.Commission Initiated Disciplinary Action.
§349.307.Disciplinary Sanctions.
§349.308.Disciplinary Guidelines.
§349.310.Effect of Request for Disciplinary Action.
§349.311.Disciplinary Sanctions.
§349.315.Computation of Time.
§349.320.Notice and Service.
§349.325.Representation.
§349.330.Preliminary Notice to Certified Officer in Disciplinary Matters.
§349.335.Commencement of Disciplinary Proceedings.
§349.340.Certified Officer's Answer and Consequence of Failure to File an Answer to Formal Charges (Default).
§349.345.Discovery.
§349.355.Subpoenas.
§349.360.Informal Proceedings.
§349.365.Agreed Dispositions.
§349.370.Formal Disciplinary Proceedings.
§349.375.Decision of the Board.
§349.380.Judicial Review.
§349.385.Mandatory Suspension for Failure to Pay Child Support.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406333
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.400.Complaint Process.
§349.410.Administrative Review of Investigation Findings.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406334
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
37 TAC §§349.500, 349.510, 349.520, 349.530, 349.540, 349.550, 349.560, 349.570
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.500.Purpose.
§349.510.Definitions.
§349.520.Access to Confidential Information.
§349.530.Redaction of Records Prior to Release.
§349.540.Procedures for Requesting Access to Confidential Information.
§349.550.Public Information.
§349.560.Videotapes, Audiotapes, and Photographs.
§349.570.Charges for Copies of Records.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406335
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.600.Purpose.
§349.650.Removal of Members.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406336
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.700.Access to Data Collected.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406337
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes new 37 TAC §§349.100, 349.110, 349.120, 349.200, 349.210, 349.220, 349.230, 349.240, 349.250, 349.260, 349.270, 349.300, 349.302, 349.304, 349.310, 349.320, 349.330, 349.340, 349.350, 349.360, 349.370, 349.380, 349.390, 349.400, 349.410, 349.420, 349.430, 349.440, 349.450, 349.460, 349.500, 349.550, and 349.600, relating to General Administrative Standards.
SUMMARY
New §349.100, Definitions, will provide definitions for terms used in the chapter. Key additions and/or revisions will include: 1) removing terms alleged perpetrator, designated perpetrator, and sustained perpetrator and replacing them with the term suspect; 2) defining abuse, neglect, and exploitation by reference to 37 TAC Chapter 358; 3) adding definitions of administrator and administrative designee that are consistent with definitions in Chapter 358; 4) expanding the definition of certification action to include ineligibility for certification; 5) expanding the definition of certified officer to include a person with a provisional certification; 6) adding a definition of non-juvenile justice contract facility; 7) adding a definition of de novo review; 8) adding a definition of juvenile and expanding it to include juveniles at a non-juvenile justice contract facility; 9) expanding the definition of juvenile facility to refer to statutes; 10) replacing terms juvenile probation officer and juvenile supervision officer with the term respondent; and 11) adding a definition of victim.
New §349.110, Interpretation, will provide general guidelines for interpreting the chapter. Key additions and/or revisions will include adding: 1) standard interpretation language regarding headings; 2) the term including; and 3) calculations of time.
New §349.120, Authorized Delegation, will explain that the executive director may designate in writing another TJJD employee to perform the executive director's duties under this chapter. Key additions and/or revisions will include specifying that the executive director may designate another TJJD employee to perform the executive director's duties under the chapter and that such designation must be in writing.
New §349.200, Waivers and Variances, will provide information on waivers and variances as they apply to the requirements of this chapter. Key additions and/or revisions will include: 1) defining the distinct purposes of waivers and variances; 2) specifying the applicability of waivers and variances and that they may be conditional; 3) specifying how waivers and variances are to be requested and what information must be provided; 4) providing that either a waiver or variance may be granted by the executive director for up to 180 days and that the TJJD Board must approve any time frame longer than 180 days; 5) providing that, if executive director denies a waiver or variance, the requestor may ask the TJJD Board to review the denial; 6) providing that the department or facility requesting the waiver or variance is responsible for appearing at the Board meeting to explain the request and answer questions from the Board; and 7) providing that, when appropriate, TJJD staff will make a recommendation to the Board on whether or not to grant a waiver or variance.
New §349.210, Code of Ethics Violations, will provide guidelines related to the reporting of, notifications related to, and timelines regarding code of ethics violations. Key additions and/or revisions will include: 1) providing that every person with a TJJD certification is obligated to report to TJJD when the person has reason to believe another certified officer has violated the Code of Ethics; 2) clarifying that a failure to report a code of ethics violation may result in disciplinary action; and 3) requiring that confirmed code of ethics violations must be reported to TJJD Office of General Counsel except when conduct is subject of TJJD investigation.
New §349.220, Complaints, will provide information about complaints regarding juvenile boards, certified officers, or employees of departments, facilities, or non-juvenile justice contract facilities. Key additions and/or revisions will include addressed how various complaints received by TJJD are processed.
New §349.230, Violation by Juvenile Board, will provide instruction for times when TJJD determines a juvenile board, including the department or facility under the juvenile board's jurisdiction, has violated rules, standards, or the terms of the State Financial Assistance Contract. Key additions and/or revisions will include adding the possibility of extending the deadline for compliance when there is a violation of standards or the state financial assistance contract.
New §349.240, Mandatory Suspension for Failure to Pay Child Support, will explain the process for suspending the certification of a certified officer when that officer fails to pay child support.
New §349.250, Administrative Review of Investigation Findings, will explain the process for an administrative review when a person is confirmed by TJJD to have engaged in conduct meeting the definition of abuse neglect, or exploitation in an investigation conducted under Chapter 358 of this title. Key additions and/or revisions will include: 1) updating language due to removal of designated perpetrator term; 2) changing the timeline to request an administrative review from 20 days to 10 days; 3) allowing administrators to request administrative review on behalf of staff; 4) specifying that the attorney who does the administrative review is not the same attorney who advised or otherwise worked on the investigation; 5) specifying that the administrative review is a de novo review; 6) providing that an attorney may interview witnesses and gather additional evidence at the attorney's discretion and may request the assistance of TJJD's Office of the Inspector General in doing so; 7) specifying that an attorney prepares a written report explaining the decision to confirm or revise the original findings; 8) providing a requirement to notify the suspect or administrative designee and provide estimated completion date if there is a need to extend 45-day completion date; and 9) specifying that administrative review does not apply to investigations conducted of TJJD employees.
New §349.260, Representation, will explain that the subject of an investigation may elect to appear with legal representation during the administrative review process.
New §349.270, Temporary Suspension Order, will explain that TJJD may temporarily suspend the certification of a certified office during the administrative review process.
New §349.300, Disciplinary Action, will explain that TJJD may impose disciplinary action on a certified officer who has committed a code of ethics violation or engaged in abuse, neglect, or exploitation involving a juvenile.
New §349.302, Ineligibility for Certification, will outline TJJD's authority to make a person ineligible for certification under certain circumstances. Key additions and/or revisions will include adding the statutory authority to make a person ineligible for certification.
New §349.304, Guidelines, will provide parameters for those seeking, proposing, or making a decision under the standards given in this chapter.
New §349.310, Mandatory Revocation, will explain the circumstances under which a person's certification will be revoked or denied. Key additions and/or revisions will include: 1) clarifying that TJJD staff shall seek revocation for certain conduct; 2) adding engaging in sexually-related or otherwise inappropriate relationship with a juvenile, whether or not sexual conduct occurred; and 3) adding the statutory provisions from Chapter 53 Occupations Code that mandate revocation.
New §349.320, Notice and Service, will explain the process by which a person is informed of a pending certification action against that person. Key additions and/or revisions will include: 1) adding a mechanism to provide service at an address other than the one on file with TJJD, in the event the person has moved; 2) adding a provision that allows for notice by publication or any other legal means if necessary; and 3) updating the language that must be included in the notice to provide general content instead of specific terminology.
New §349.330, Answer, will explain the process by which a person may respond to a certification action.
New §349.340, Default, will explain the consequences for a person failing to respond to a certification action.
New §349.350, Agreed Orders, will explain the circumstances surrounding the resolution of certification matters through voluntary settlement processes.
New §349.360, State Office of Administrative Hearings, will explain, that under certain conditions, the matter of a certification action will be schedule for hearing at the State Office of Administrative Hearings. Key additions and/or revisions will include: 1) deleting process requirements for SOAH; and 2) referring to statutes and administrative rules that control.
New §349.370, Decision of the Board, will provide information concerning the various statutes related to TJJD Board decisions and orders. Key additions and/or revisions will include: 1) deleting specific requirements for Board decisions; and 2) referring to statutes that control those decisions.
New §349.380, Representation, will explain that the respondent to a certification action may elect to appear with legal representation during the certification action process. Key additions and/or revisions will include clarifying that TJJD is represented by an attorney from the agency's Office of General Counsel.
New §349.390, Costs, will explain that a party who appeals a final decision in a contested case is responsible for the costs related to preparing a copy of the agency proceeding and for any requested transcription.
New §349.400, Purpose, will explain that the purpose of subchapter D of this chapter is to clarify to whom and under what circumstances TJJD may disclose confidential information related to investigations of abuse, neglect, and exploitation.
New §349.410, Definitions, will provide definitions for terms used in subchapter D.
New §349.420, Confidentiality of and Access to Information, will explain the extent to which records related to abuse, neglect, and exploitation investigations are confidential and accessible. Key additions and/or revisions will include adding the ability to share information regarding investigation pursuant to a memorandum of understanding adopted under §810.009, Human Resources Code, related to the multiagency search engine for reportable conduct.
New §349.430, Redaction of Records Prior to Release, will explain the extent which TJJD will redact investigation records before their release.
New §349.440, Procedures for Requesting Access to Confidential Information, will provide information pertaining to the extent to which confidential information may be requested and provided.
New §349.450, Public Information, will explain that TJJD will compile statewide statistics on the incidence of abuse, neglect, and exploitation and provide those statistics to the public upon written request.
New §349.460, Video, Audio Recordings, and Photographs, will explain who has access to video, audio recordings, and photographs that are part of the records of investigations.
New §349.500, Purpose, will explain the purpose of the Advisory Council on Juvenile Services and describe various aspects of the council.
New §349.550, Removal of Members, will explain the grounds for removing a member of the Advisory Council.
New §349.600, Access to Data Collected, will explain that, for the purposes of planning and research, all juvenile probation departments participating in the state's regionalization plan are authorized to access data that any other participating departments have submitted through the case management system.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the new sections are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the sections.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the new sections are in effect, the public benefit anticipated as a result of administering the sections will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the new sections as proposed. No private real property rights are affected by adoption of the sections.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the new sections are in effect, the sections will have the following impacts.
(1) The proposed sections do not create or eliminate a government program.
(2) The proposed sections do not require the creation or elimination of employee positions at TJJD.
(3) The proposed sections do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed sections do not impact fees paid to TJJD.
(5) The proposed sections do not create a new regulation.
(6) The proposed sections do not expand, limit, or repeal an existing regulation.
(7) The proposed sections do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed sections will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
SUBCHAPTER A. DEFINITIONS AND GENERAL REQUIREMENTS
37 TAC §§349.100, 349.110, 349.120
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.100.Definitions.
The words and terms used in this chapter shall have the following definitions unless the context clearly indicates otherwise.
(1) Abuse, Neglect, and Exploitation--These terms have the definitions provided in Chapter 358 of this title.
(2) Administrator--Regardless of title, the chief administrative officer of a juvenile probation department, juvenile justice program, juvenile justice facility, or non-juvenile justice contract facility.
(3) Administrative Designee--The role assigned to the administrator when a preponderance of evidence determines that the proximate cause of the abuse, neglect, or exploitation was based on policies and procedures under the direct control of the administrator.
(4) Attorney of Record--A person licensed to practice law in Texas who has provided TJJD with written notice of representation.
(5) Authorized Representative--An attorney authorized to practice law in the State of Texas or, if authorized by applicable law, a person designated by a party to represent the party.
(6) Board--The Texas Juvenile Justice Board, the governing board of TJJD.
(7) Certification Action--An action taken by TJJD with regard to a certification as a juvenile probation, supervision, or community activities officer, to include disciplinary action, designation of ineligibility, and temporary suspension.
(8) Certified Officer--An individual who holds a certification as a juvenile probation, supervision, or community activities officer from TJJD, including a provisional certification.
(9) Chief Administrative Officer--Regardless of title, the person hired by a juvenile board who is responsible for oversight of the day-to-day operations of a juvenile probation department, including a juvenile probation department with multi-county jurisdiction.
(10) Code of Ethics--The Certified Officer Code of Ethics contained in Chapter 345 of this title.
(11) De Novo Review--A review that decides an issue without deference to a conclusion or assumption made by a prior review, finding, or holding; a review that decides the issue as though the decision is being made for the first time.
(12) Department--A juvenile probation department.
(13) Executive Director--The executive director of TJJD.
(14) Facility Administrator--An individual designated by the chief administrative officer or governing board of a juvenile justice facility as the on-site program director or superintendent of a secure facility.
(15) Juvenile--A person who is under the jurisdiction of the juvenile court, confined in a juvenile justice facility, housed in a non-juvenile justice contract facility pursuant to an order of the juvenile court, or participating in a juvenile justice program, including a prevention and intervention program, regardless of age.
(16) Juvenile Justice Facility ("facility")--A facility that is registered by TJJD pursuant to Sections 51.12, 51.125, or 51.126, Family Code.
(17) Juvenile Justice Program ("program")--A program or department that:
(A) serves juveniles under juvenile court or juvenile board jurisdiction; or
(B) is operated wholly or partly by the juvenile board or by a private vendor under a contract with the juvenile board. The term includes:
(i) a juvenile justice alternative education program;
(ii) a non-residential program that serves juvenile offenders under the jurisdiction of the juvenile court or juvenile board; and
(iii) a juvenile probation department.
(18) Non-Juvenile Justice Contract Facility--A facility in which a juvenile is placed pursuant to a contract with a department, program, facility, or juvenile board, other than a facility registered with TJJD.
(19) Respondent--A person who is the subject of a certification action under this chapter.
(20) SOAH--State Office of Administrative Hearings.
(21) Subject--A person alleged or found to be responsible for the abuse, neglect, or exploitation of a juvenile through the person's actions or failure to act.
(22) TJJD--The Texas Juvenile Justice Department.
(23) Victim--A juvenile who is alleged or found to be a victim of abuse, neglect, or exploitation.
§349.110.Interpretation.
(a) Headings. The headings in this chapter are for convenience only and are not intended as a guide to the interpretation of the standards in this chapter.
(b) Including. Unless the context clearly indicates otherwise, the words "include," "includes," and "including," when following a general statement or term, are to be understood as introducing a non-exhaustive list.
(c) Time. Any period of days set forth in this chapter is computed as set forth in Section 311.014, Government Code. Unless otherwise specified, a period of "days" means "calendar days." When this chapter requires or allows an act by any party other than TJJD to be done at or within a specified time period, the executive director or Board may, for good cause shown, order the period extended or permit the act to be done after the expiration of the specified period.
§349.120.Authorized Delegation.
(a) The executive director may designate another TJJD employee to perform the executive director's duties under this chapter.
(b) The designation must be in writing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406338
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
37 TAC §§349.200, 349.210, 349.220, 349.230, 349.240, 349.250, 349.260, 349.270
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.200.Waivers and Variances.
(a) Purpose.
(1) The purpose of a waiver is to excuse a department or facility from the requirement to comply with a particular TJJD standard for a defined period of time when compliance with the standard is not possible due to an event outside of the department's or facility's control.
(2) The purpose of a variance is to provide a mechanism for a department or facility to comply with the intent of a TJJD standard in a different manner than is set out in the standard when compliance with the standard is not possible.
(b) Applicability.
(1) A waiver or variance may be granted for any standard, following this process, unless:
(A) another administrative rule prohibits or provides a different means for a waiver or variance; or
(B) the standard is required by state or federal law and the corresponding law does not expressly permit a waiver or variance.
(2) A waiver or variance may be conditioned on continued compliance with certain terms, as determined by TJJD or the Board, as applicable.
(c) Request.
(1) The juvenile board, chief administrative officer, or facility administrator may submit a request for waiver or variance to TJJD. If the chief administrator or facility administrator submits the request, approval from the juvenile board chair or designee must be included.
(2) A request for a waiver must be submitted on a form provided by TJJD, must state the length of time for which the waiver is requested, and must explain:
(A) why compliance with the standard(s) cannot be achieved;
(B) what undue hardship would be experienced by the department or facility if the waiver is not granted;
(C) what impact the waiver would have on compliance with other standards;
(D) how the health and safety of juveniles will be maintained during the duration of the waiver; and
(E) how issuing the waiver would not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.
(3) A request for a variance must be submitted on a form provided by TJJD, must state the length of time for which the variance is requested, and must explain:
(A) why compliance with the standard(s) cannot be achieved;
(B) what undue hardship would be experienced by the department or facility if the variance is not granted;
(C) what impact the variance would have on compliance with other standards;
(D) how substantial compliance with the intent and purpose of the standard for which a variance is requested would be achieved through alternative methods or means;
(E) how the health and safety of juveniles will be maintained if the variance is granted; and
(F) how issuing the variance would not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.
(d) Incomplete Requests.
(1) At the sole discretion of TJJD, any request for waiver or variance that does not include all required information will be deemed incomplete and returned to the requestor for completion.
(2) No timelines for response begin until the request is complete. An incomplete request will not be presented to the executive director or the Board.
(3) TJJD will inform the requestor regarding which parts of the request are incomplete and provide a minimum of 20 days for the requestor to complete the request. If the request is not completed by the date specified by TJJD, the request will be deemed withdrawn.
(4) TJJD will maintain records of incomplete and withdrawn requests.
(e) Executive Director Authority to Grant a Waiver or Variance.
(1) The executive director may grant a waiver for a period of up to 180 days, but only if the executive director makes the following affirmative findings:
(A) circumstances outside of the department's or facility's control make it impossible to comply with the standard without undue hardship on the requesting department or facility;
(B) the health and safety of juveniles will be maintained if the waiver is granted; and
(C) the waiver will not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.
(2) The executive director may grant a variance for a period of up to 180 days, but only if the executive director makes the following affirmative findings:
(A) the standard cannot be complied with without undue hardship on the requesting department or facility;
(B) the requesting department or facility will comply with the intent and purpose through alternative methods;
(C) the health and safety of juveniles will be maintained if the variance is granted; and
(D) the variance will not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.
(f) Process.
(1) The executive director will respond to a completed request for waiver or variance within 30 days. If unable to do so, TJJD will inform the requestor of the reasons for the delay.
(2) If the request for waiver or variance indicates that it is needed for more than 180 days and the executive director grants the request for any period up to 180 days, the requested waiver or variance will also be presented to the Board for review in accordance with subsection (g) of this section.
(3) If the request for waiver or variance, or extension thereof, is denied, the juvenile board, chief administrative officer, or facility administrator may request a review by the Board, in accordance with subsection (g) of this section.
(g) Board Review of Request for Waiver or Variance.
(1) Except as provided by paragraph (7) of this subsection, only the Board may grant a waiver or variance for a period in excess of 180 days. When appropriate, the Board may grant a permanent variance, with or without conditions. No permanent waivers will be granted.
(2) If the executive director has granted a waiver or variance for which the request indicated it was needed for more than 180 days, the request will be presented to the Board for review at the next Board meeting where waivers and variances will be considered, provided there is adequate time to place the item on the agenda.
(3) If the executive director denies a request for waiver or variance, the juvenile board, chief administrative officer, or facility administrator may request a review on a form provided by TJJD. If the chief administrative officer or facility administrator submits the request for review, approval from the juvenile board chair or designee must be included. If the approval is from the designee, that designation must be in writing and included with the request for review. The review will occur at the next Board meeting where waivers or variances will be considered, provided there is adequate time to place the item on the agenda.
(4) The department or facility requesting the waiver or variance is responsible for appearing at the Board meeting to explain the request and answer any questions from the Board.
(5) When appropriate, TJJD staff will make a recommendation to the Board regarding whether or not to grant the waiver or variance.
(6) The Board may grant a waiver or variance only if it makes an affirmative finding that the criteria in subsection (e) exist.
(7) If the executive director grants a waiver or variance that will expire prior to the Board meeting at which the waiver or variance will be considered, the executive director may extend the existing waiver or variance until the Board meeting.
§349.210.Code of Ethics Violations.
(a) Duty to Report. Every person with a certification from TJJD is obligated to report to TJJD when the person has reason to believe that another certified officer has engaged in a violation of the Code of Ethics. Failure to report may result in disciplinary action against the certification.
(b) Notification to TJJD. The chief administrative officer, facility administrator, or juvenile board shall notify TJJD's Office of General Counsel when a Code of Ethics violation has been committed by a certified officer, except when the conduct is the subject of a TJJD investigation into an allegation of abuse, neglect, or exploitation.
(c) Timelines. If the investigation is conducted pursuant to a request by TJJD, the investigation must be provided to TJJD in accordance with the timelines in Section 349.220 of this chapter. Otherwise, the chief administrative officer, facility administrator, or juvenile board shall provide TJJD with a copy of the internal investigation into the Code of Ethics violation no later than 10 days after the investigation is completed. The chief administrative officer or facility administrator must also provide a copy of the internal investigation to the juvenile board.
§349.220.Complaints.
(a) When TJJD receives a complaint about a juvenile board, certified officer, or employee of a department, facility, or non-juvenile justice contract facility, TJJD staff shall review the circumstances surrounding the complaint to determine the most appropriate course of action.
(b) If the complaint involves an allegation of abuse, neglect, or exploitation of a juvenile, the complaint will be addressed in accordance with Chapter 358 of this title.
(c) Except as provided by subsection (d) of this section, if the complaint involves an allegation of conduct that, if true, would constitute a violation of the Code of Ethics, the complaint will be referred to the chief administrative officer or facility administrator, as appropriate, who must ensure that an investigation is completed and a report of the investigation provided to TJJD within 90 days of the referral.
(d) If the complaint involves conduct of the chief administrative officer that, if true, would constitute a violation of the Code of Ethics, the complaint will be referred to the juvenile board chair, who must ensure that an investigation is completed and a report of the investigation provided to TJJD within 90 days of the referral.
(e) If the complaint is about juvenile services within the discretion of the juvenile board and not otherwise addressed by this section, TJJD will forward the complaint to the juvenile board chair and chief administrative officer or facility administrator, as appropriate. The complainant will be notified in writing of this referral.
(f) If the complaint involves an allegation that a juvenile board has violated TJJD rules or standards or the terms of a grant or contract with TJJD, TJJD staff shall investigate the matter and take appropriate action depending on the outcome of the investigation.
(g) If the complaint involves an individual with a license or certification from an entity other than TJJD, the complaint will be forwarded to the licensing entity. If TJJD conducts an investigation related to the complaint, the results of the investigation will be provided to the licensing entity.
§349.230.Violation by Juvenile Board.
(a) If TJJD determines the juvenile board, including the department or facility under the juvenile board's jurisdiction, has violated TJJD rules or standards or the terms of the State Financial Assistance Contract, TJJD shall notify the juvenile board in writing of the violation.
(b) Upon written notice of the violation, the juvenile board shall be given 90 days to achieve compliance or to propose a plan to achieve compliance that is acceptable to TJJD. TJJD may agree to extend this timeline.
(c) If TJJD and the juvenile board cannot reach an agreement, TJJD shall give the juvenile board written notice of its intent to refuse, reduce, or suspend state aid under §223.005, Human Resources Code. Upon receipt of the above notice, the juvenile board shall have 15 days to:
(1) provide written notice to the executive director of the juvenile board's compliance;
(2) propose in writing an alternate solution; or
(3) provide a written appeal of TJJD's action(s) to the executive director.
(d) The juvenile board's appeal must state specifically any difference of opinion with the TJJD staff concerning the facts in dispute and the solution necessary under the standards or rules of TJJD. The appeal shall state whether the juvenile board requests a hearing before the Board.
(e) TJJD will set the appeal on the agenda for its next regularly scheduled meeting, provided there is sufficient time to place the item on the agenda. The juvenile board and TJJD staff may appear and make oral presentations concerning the appeal.
(f) The complainant shall be notified in writing upon receipt of the complaint and upon resolution.
§349.240.Mandatory Suspension for Failure to Pay Child Support.
(a) Suspension. Upon receipt of an order suspending certification for failure to pay child support issued under §232.008 or §232.009, Family Code, TJJD shall suspend the certified officer's certification.
(b) Notice of Suspension.
(1) TJJD shall notify the individual subject to a suspension order received under subsection (a) of this section that the agency has formally suspended the individual's certification.
(2) The notice shall also instruct that the individual may not perform the duties of a certified officer while the suspension order is in effect.
(3) TJJD shall also notify the chief administrative officer or facility administrator and the juvenile board of the employing department, facility, or program of the suspension.
(c) Length of Suspension. A certification suspension under this section shall remain in effect until TJJD receives an order issued under §232.013, Family Code, that either vacates or stays the suspension.
(d) Employment. An individual subject to a suspension order issued under subsection (a) of this section may not be employed in a position requiring certification, granted certification, or have the certification renewed while the suspension order remains in effect.
(e) Appeal. An order under this section is not subject to appeal.
(f) Waiver or Variance. This provision is not subject to a waiver or variance.
§349.250.Administrative Review of Investigation Findings.
(a) Any person confirmed by TJJD to have engaged in conduct meeting the definition of abuse, neglect, or exploitation in an investigation conducted under Chapter 358 of this title, including a person named as an administrative designee as a result of an investigation, may request an administrative review of the investigation findings. An administrator may make the request on behalf of the individual.
(b) The request must be made in writing no later than the 10th day after receiving TJJD's written notice of the investigation findings.
(c) If civil or criminal proceedings related to an allegation that TJJD has investigated are pending when the administrative review is requested, or if such proceedings are initiated before TJJD begins the review, TJJD may postpone the review until the proceedings are completed.
(d) If, as part of the administrative review, TJJD chooses to interview a subject or administrative designee who does not speak English or is hearing impaired, TJJD will provide a certified translator or interpreter unless the subject or administrative designee chooses to provide one, in which case the subject or administrative designee is responsible for all translation or interpretation costs incurred in connection with the review.
(e) The administrative review is conducted by an attorney in the TJJD Office of General Counsel. The attorney may not have advised or otherwise worked on the investigation that is the subject of the administrative review.
(1) The administrative review is a de novo review. The purpose of the review is to determine if there is a preponderance of evidence to establish that the subject or administrative designee engaged in conduct meeting the definition of abuse, neglect, or exploitation, as set out in Chapter 358 of this title.
(2) The attorney may interview witnesses and gather additional evidence at the attorney's discretion. The attorney may request the assistance of the TJJD Office of Inspector General in doing so.
(3) The attorney confirms or revises TJJD's original investigation findings based on TJJD's administrative rules and policies and prepares a written report explaining the decision.
(4) Within 45 days after receiving the request for review, TJJD notifies the subject or administrative designee of the outcome of the review. If necessary, the time period may be extended. If there is an extension, TJJD will notify the subject or administrative designee and provide an estimated completion date.
(f) If the administrative review results in changes to the original findings, TJJD will:
(1) enter the revised findings into the investigation record; and
(2) notify each person who was notified of the original findings that the findings have been revised.
(g) This section does not apply to an investigation conducted under Section 380.9333 of this title.
§349.260.Representation.
(a) A subject or administrative designee may choose to appear with or without an attorney or other authorized representative throughout the administrative review process. The subject or administrative designee is responsible for the costs of representation.
(b) A party's attorney of record shall remain the attorney of record unless the attorney submits a formal request to withdraw to the TJJD attorney involved in the matter except that, if SOAH has acquired jurisdiction, the attorney must comply with SOAH's rules to withdraw.
§349.270.Temporary Suspension Order.
(a) TJJD may issue an order temporarily suspending the certification, including a provisional certification, of a certified officer or temporarily making a former TJJD employee ineligible for certification in accordance with Sections 222.053 and 222.054, Human Resources Code.
(b) Section 2001.054, Government Code, applies to a suspension under this provision.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406339
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.300.Disciplinary Action.
(a) TJJD may impose disciplinary action when a certified officer has committed a violation of the Code of Ethics or has engaged in conduct that meets the definition of abuse, neglect, or exploitation involving a juvenile in a department, program, facility, or non-juvenile justice contract facility.
(b) TJJD may impose any of the following disciplinary actions, including a combination of disciplinary actions:
(1) written reprimand;
(2) revocation of certification;
(3) suspension of certification; or
(4) probated suspension of certification.
(c) A certified officer is entitled to a hearing before SOAH if revocation, suspension, or probated suspension of the certification is the disciplinary action sought.
(d) A majority vote of the Board is required to impose revocation, suspension, or probated suspension as disciplinary action on the certification.
(e) Subject to Board approval, a certified officer may voluntarily surrender the certification in lieu of the imposition of disciplinary action. The acceptance may include a condition that the person is ineligible for future certification.
§349.302.Ineligibility for Certification.
(a) TJJD may make a person who is a former or current employee, volunteer, or contractor with TJJD ineligible for certification if the person engaged in conduct meeting the definition of abuse, neglect, or exploitation or that is a violation of the Code of Ethics in TJJD's personnel policy (PRS.02.03).
(b) TJJD may make a person who is a former or current employee, volunteer, or contractor with a department, program, facility, or non-juvenile justice contract facility ineligible for certification if the person engaged in conduct meeting the definition of abuse, neglect, or exploitation or that is a violation of the Code of the Ethics in Chapter 345 of this title.
(c) Except as provided by Section 349.270 of this chapter, an individual is entitled to a hearing before SOAH before the person may be deemed ineligible for certification.
(d) A majority vote of the Board is required to make a person ineligible for certification.
§349.304.Guidelines.
(a) The purpose of these guidelines is to:
(1) provide a framework for analysis by staff members, administrative law judges, and the Board in making decisions regarding certification and disciplinary matters;
(2) promote consistency in the exercise of sound discretion in certification and disciplinary matters; and
(3) provide guidance in the resolution of potentially contested matters.
(b) The following factors may be considered in seeking, proposing, or making a decision under this chapter:
(1) the seriousness of the violation, which may include:
(A) whether the conduct was in violation of a law;
(B) the nature and extent of the harm caused; and/or
(C) the frequency of and time period covered by the violation(s);
(2) the nature of the violation, which may include:
(A) the relationship between the respondent and the person harmed;
(B) the vulnerability of the person harmed;
(C) the degree to which the actions showed lack of good judgment; and/or
(D) the culpability of the respondent, such as whether the violation:
(i) was intentional or premeditated;
(ii) was due to blatant disregard or gross neglect;
(iii) resulted from simple error or negligence; and/or
(iv) evidences lack of integrity, trustworthiness, or honesty;
(3) the degree of personal accountability taken by the respondent, which may include:
(A) admission of wrongdoing and acceptance of responsibility;
(B) showing appropriate remorse or concern;
(C) making efforts to ameliorate the harm or make restitution;
(D) cooperation with an investigation or request for information; and
(E) attempts to deny or conceal the misconduct or falsify documents; and
(4) any other relevant factors, which may include:
(A) the respondent's record of training, length of service, position, job responsibilities, and performance history;
(B) the presence or absence of prior or subsequent violations;
(C) any other relevant circumstances, including aggravating or mitigating factors, such as environmental factors that may have contributed to the respondent's actions;
(D) disciplinary action taken in similar incidents; and
(E) disciplinary action taken by the employer and the employer's recommendation to TJJD regarding certification action.
§349.310.Mandatory Revocation.
(a) TJJD staff shall seek to revoke or to deny the certification of any person who:
(1) engaged in or solicited any sexual conduct with a juvenile;
(2) engaged in a sexually related or otherwise inappropriate relationship with a juvenile, whether or not sexual conduct occurred;
(3) possessed or distributed child pornography; or
(4) was convicted of or placed on deferred adjudication for any offense requiring revocation under Chapter 53, Occupations Code.
(b) Subsection (a) of this section does not limit the Board's authority to revoke or deny certification in accordance with this chapter.
§349.320.Notice and Service.
(a) Notice and service in a contested case must comply with §2001.052, Government Code, and any relevant administrative rules adopted by SOAH.
(b) Preliminary notice of a certification action must be in writing and personally delivered to the respondent or sent via certified mail, return receipt requested, and regular mail to the respondent at the most recent address on file with TJJD.
(c) A document sent by regular or certified mail is presumed received no later than three days after mailing. Service is presumed effected if the wrapper containing the document is not returned to TJJD.
(d) If notice is not effected at the address on record with TJJD, TJJD may use any reasonable resources to locate an accurate address and may effectuate service there, following this section.
(e) Service may be made by publication or any other alternate legal means, if necessary.
(f) If TJJD seeks to take any certification action, other than written reprimand for a certified officer, TJJD shall provide the respondent with written notice that includes:
(1) the name of the respondent;
(2) the certification number if the respondent is a certified officer;
(3) a short, plain statement of the facts or conduct alleged to warrant certification action;
(4) a statement of the legal authority and jurisdiction under which the action is to be taken;
(5) a reference to the particular sections of statute, administrative rule, or policy that the respondent officer is alleged to have violated;
(6) a description of the certification action TJJD is recommending be imposed; and
(7) an invitation for the respondent to show compliance with all requirements of the law for retention of the certification or eligibility for the certification.
(g) The notice shall also include language in 12-point, boldface type that provides the respondent with notice that:
(1) failure to file a written answer to this notification within 20 days may result in the Texas Juvenile Justice Board taking a default order;
(2) the written answer must include an admission or denial of each and every allegation included in the petition and must include any other matter, whether of law or fact, upon which respondent intends to rely for defense;
(3) a failure to admit or deny each allegation will result in the allegation being deemed true and may result in a default order;
(4) a default order means the Board will find the allegations in the attached petition to be true and will grant the action requested in the attached petition.
§349.330.Answer.
(a) The respondent in a certification action matter has until 20 days after the service of the notice in §349.320 of this chapter to file a written response to TJJD and send it to the address provided in the notice.
(b) The answer must admit or deny each of the allegations in the notice. If the respondent intends to deny only a part of an allegation, the certified officer must specify the portion that is not being challenged and deny only the remainder. Failure to deny an allegation will result in the allegation being deemed true.
(c) If the answer fails to admit or deny each of the allegations and instead only challenges the recommended action, the allegations will be deemed true and the action pursued. The answer must also include any other matter, whether of law or fact, upon which the respondent intends to rely for defense.
§349.340.Default.
(a) If the respondent fails to file a response to the notice or the response fails to comply with the requirements in §349.330, the matter will be considered as a default case.
(b) In a case of default, the respondent will be deemed to have:
(1) admitted the factual allegations in the notice that respondent did not deny;
(2) waived the opportunity to show compliance with the law;
(3) waived the opportunity for a hearing on the matter; and
(4) waived objection to the certification action recommended in the notice.
(c) The executive director may recommend that the Board enter a default order based upon the allegations set out in the notice provided in §349.320 of this chapter and impose the certification action recommended in that notice.
(d) Upon consideration of the case, the Board may:
(1) enter a default order and impose the recommended certification action;
(2) enter a default order and impose a certification action that is less than what was recommended;
(3) refuse to enter a default order and instruct staff to reissue the notice with different allegations and/or different recommended certification action;
(4) instruct staff to dismiss the matter and close the file with no certification action; or
(5) order the matter set for hearing before SOAH.
(e) A motion for rehearing that requests the Board vacate its default order under this section shall be granted if the respondent proves by a preponderance of the evidence that the failure to answer the formal charges was not intentional or the result of conscious indifference but instead was due to accident or mistake, provided that the respondent has a meritorious defense to the factual allegations contained in the formal charges and the granting thereof will not cause delay or otherwise create a hardship for the Board.
§349.350.Agreed Orders.
(a) The Board's policy is to encourage the resolution of certification matters through voluntary settlement processes. Any matter within the Board's jurisdiction may be resolved informally by agreed order after the respondent has provided a response in accordance with §349.330.
(b) Communication during the settlement process may be conducted in any manner, including in-person, electronic, telephonic, video, or written communication.
(c) Participation by the respondent and TJJD in any settlement process is voluntary and may be terminated by either party without prejudicing the right to proceed with a contested case.
(d) An agreed order may contain such terms as the executive director deems reasonable and necessary.
(e) An agreed order may be made at any time, even after formal proceedings have been initiated.
(f) An agreed order is not final until the Board approves it in a Board meeting in compliance with Texas Open Meeting laws.
(g) If the respondent fails to comply with the terms of an agreed order, formal disciplinary proceedings may be initiated or resumed.
§349.360.State Office of Administrative Hearings.
(a) If a respondent provides a written response as required in §349.330 of this chapter and no agreed order is entered as provided in for hearing at SOAH.
(b) Chapter 2001, Government Code, and SOAH administrative
rules and procedures, as relevant, apply to all parts of the proceeding.
§349.370.Deion of the Board.
(a) The Board issues orders in compliance with relevant statutes, including Sections 2001.058 and 2001Code.
(b) TJJD shall provide notice of the Board's decision in accordance with Section 2001.142, Government Code.
(c) Board orders become final in accordance with timelines established in Section 2001.144, Government Code.
(d) A summary of final board orders in which certification ac-tion is taken, including the name of the individual, certification number(s), if any, and action taken, are maintained by TJJD and are public.
(e) Motions for rehearing and appeals of final orders are gov-erned by Chapter 2001, Government Code.
§349.380.Representation.
(a) A respondent may choose to appear with or without an attorney or other authorized representative throughout the certification action process. Respondent is responsible for the costs of representation.
(b) A respondent's attorney of record shall remain the attor-ney of record unless the attorney submits a formal request to withdraw to the TJJD attorney involved in the matter except that, if SOAH has acquired jurisdiction, the attorney must comply with SOAH's rules to withdraw.
(c) TJJD is represented by an attorney from the Office of Gen-eral Counsel throughout the certification action process.
§349.390.Costs.
(a) A party who appeals a final decision in a contested case shall pay all of the cost of preparing an original or certified copy of the agency proceeding that is required to be sent to the reviewing court. A charge imposed under this provision is a court cost and may be assessed by the court in accordance with the Texas Rules of Civil Procedure.
(b) A party who requests that any part of the proceedings be transcribed is responsible for paying the cost of the transcription.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406340
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
37 TAC §§349.400, 349.410, 349.420, 349.430, 349.440, 349.450, 349.460
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.400.Purpose.
The purpose of this subchapter is to clarify to whom and under what circumstances TJJD may disclose information made confidential under §261.201, Family Code.
§349.410.Definitions.
The words and terms used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise:
(1) Investigation Records--That portion of the records described in §261.201, Family Code, which were generated by TJJD or submitted to TJJD during the course of an abuse, neglect, or exploitation investigation.
(2) Parent--Biological or adoptive parent, possessory conservator, temporary or permanent managing conservator, legal guardian, or other legal representative of the juvenile, provided that the requestor's parental or other legal relationship to the juvenile has not been terminated at the time the request for information is made.
(3) Report--Formal notification to TJJD of an alleged incident of abuse, neglect, or exploitation of a juvenile in a juvenile justice program and/or under the jurisdiction of the juvenile court.
(4) Reporter--An individual who makes a report to TJJD alleging the abuse, neglect, or exploitation of a juvenile. If more than one individual makes a report alleging abuse, neglect, or exploitation of the same juvenile, all such individuals shall have the designation of reporter.
§349.420.Confidentiality of and Access to Information.
(a) A report of subjected abuse, neglect, or exploitation and the files, reports, records, communications, audio recordings, videos, and working papers used or developed in an investigation or in providing services as a result of an investigation are confidential and may be disclosed only for purposes consistent with Chapter 261, Family Code, applicable federal or state law, and in accordance with this chapter.
(b) The identity of the person making the report of alleged abuse, neglect, or exploitation is confidential and may be disclosed only:
(1) if waived in writing by the person making the report;
(2) to a law enforcement officer for the purposes of conducting a criminal investigation of the report; or
(3) in accordance with Section 261.201, Family Code.
(c) The identity of all juveniles in the investigation report is confidential and will not be released except as authorized by law.
(d) A copy of the investigation report, appropriately redacted in accordance with law and Section 349.430 of this chapter, may be provided to the following upon request:
(1) juvenile board, chief administrative officer, and facility administrator;
(2) the subject in the report;
(3) the juvenile victim and/or the juvenile's parents;
(4) law enforcement officials for the purpose of investigating allegations of abuse, neglect, or exploitation or criminal activity;
(5) a physician who suspects a juvenile may be the victim of abuse, neglect, or exploitation and requires this information for diagnosis, prognosis, or treatment of the juvenile;
(6) a government official when specifically required by law;
(7) a grand jury;
(8) an attorney, attorney ad litem, guardian ad litem, or court-appointed special advocate of a victim;
(9) a court in a criminal or civil case arising in connection with an investigation of abuse, neglect, or exploitation;
(10) SOAH in a case seeking to impose discipline on a certification or make an individual ineligible for certification;
(11) the attorney general of the state, or a county or district attorney, when such attorney represents the state in a proceeding in connection with an investigation;
(12) a member of the state legislature when necessary to carry out that member's official duties;
(13) pursuant to a Memorandum of Understanding adopted under Section 810.009, Health and Safety Code; and
(14) any other person or entity, including other licensing agencies, other government agencies, and law enforcement and prosecutors, when, in the discretion of TJJD, such information is necessary to aid in the protection of juveniles.
(e) An individual not otherwise entitled to have access to records under this section, but who participated in, cooperated with, or otherwise contributed to an investigation, may have access only to that portion of the investigation records obtained directly from or pertaining directly to that individual.
(f) TJJD shall withhold the release of any investigation records obtained from another source if the release of those records to the requestor is specifically prohibited under state or federal law. Information that may be withheld under this section includes:
(1) all medical records subject to the Medical Practices Act, Chapter 159, Occupations Code, unless release to the requestor is authorized under that Act;
(2) HIV information unless release to the requestor is authorized under Chapter 81, Health and Safety Code;
(3) offense reports, criminal history information, and/or arrest records obtained from a law enforcement entity, unless their release to the requestor is specifically authorized under state or federal law; and
(4) adult or juvenile probation records, as well as records related to the taking into custody of a juvenile, unless release to the requestor is specifically authorized under state or federal law.
(g) Notwithstanding any other provision in this chapter, TJJD may withhold any information in the investigation records if TJJD determines the release of that information would endanger the life or safety of any individual, including the juvenile, the reporter, and any other person who participates in the investigation. TJJD will keep a record of any information so withheld and will document the specific factual basis for its belief that the release of the information would be likely to endanger the life or safety of an individual.
(h) Information withheld from a requestor under this subsection, as well as the documented basis for withholding information under subsection (g) of this section, may be released only upon a court order.
§349.430.Redaction of Records Prior to Release.
(a) Unless otherwise permitted by law, prior to the release of investigation records, TJJD shall redact the name, address, and any other information in the record that tends to reveal the identity of the reporter.
(b) In the event the reporter also provided a witness statement or other evidence, the reporter's identity as a witness and the information provided in the role of witness will be released. Any information that might identify the individual as the reporter shall be redacted from the record prior to its release.
(c) TJJD may, in its discretion, redact personally identifiable information about any person other than the reporter who is referenced in a report. Identifying information includes names, social security numbers, home and work addresses, telephone numbers, and driver's license numbers.
§349.440.Procedures for Requesting Access to Confidential Information.
(a) Subject to the exception in §349.460 of this chapter, upon written request for copies of records and a determination that the requestor is entitled to have access to those records pursuant to either these rules or a court order issued in accordance with the provisions in §261.201, Family Code, the TJJD will provide copies of the requested records.
(b) Notwithstanding any other provision in this chapter, TJJD may not disclose any information that, if released to the requestor, would interfere with a criminal investigation or prosecution.
(c) Records will not be released until the investigation of an allegation of abuse, neglect, and exploitation is complete unless TJJD determines that release prior to completion of the investigation is necessary to aid in the protection of juveniles.
(d) Notwithstanding any other provision in this chapter, if TJJD has been sued and determines that the release of the requested records might interfere with the defense of that litigation, TJJD may require that a requestor seek access to records under the appropriate rules of civil procedure rather than under this chapter.
§349.450.Public Information.
TJJD shall compile statewide statistics on the incidence of abuse, neglect, and exploitation as required by §261.402, Family Code.
(1) The following statistical data, which contains no case-specific identifiers, is available to the public upon written request:
(A) the number of reported allegations of abuse, neglect, and exploitation;
(B) the classifications assigned to reported allegations of abuse, neglect, and exploitation; and
(C) the dispositions assigned to investigations of reported allegations of abuse, neglect, and exploitation.
(2) Upon written request and when necessary to cross-reference statistical data with individual allegations of abuse, neglect, and exploitation reported from an individual county, or for purposes of compliance with §§51.12, 51.125, or 51.126, Family Code, the department, facility, or juvenile board may be entitled to specific case numbers assigned to allegations of abuse, neglect, and exploitation that were reported by the county requesting the data. A county may only request specific case numbers related to allegations of abuse, neglect, and exploitation pertaining to juvenile justice programs and facilities in its own county.
(3) No exceptions to disclosure under the Public Information Act, Chapter 552, Government Code, are waived by the exchange, disclosure, or dissemination of juvenile justice information under this rule.
§349.460.Video, Audio Recordings, and Photographs.
(a) Individuals authorized under §349.420 of this chapter to have access to investigation records may review, in accordance with this section, any video, audio recordings, or photographs that are a part of those records.
(1) Access will be permitted only in areas designated by TJJD and at a time mutually convenient to the requestor and TJJD.
(2) When viewing or listening to these records, the requestor may not be accompanied by any individual who would not otherwise be entitled to have access to these records, unless the participation of this individual is deemed by TJJD to be appropriate under the circumstances surrounding the request.
(b) Copies of video, audio recordings, and photographs may be provided to the individuals or entities identified in §349.420 of this chapter only if TJJD determines that the provision of a copy is essential to the investigation, prosecution, or resolution of a case.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406341
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.500.Purpose.
(a) The purpose of the Advisory Council on Juvenile Services is to advise the Texas Juvenile Justice Board and Texas Juvenile Justice Department on:
(1) the needs and problems of juvenile boards and juvenile probation departments;
(2) long-range strategic planning;
(3) reviews and proposed revisions to standards affecting juvenile probation programs, services, and facilities;
(4) the potential cost impact on juvenile probation departments of new standards proposed by the Texas Juvenile Justice Board;
(5) recommendations to improve information sharing between agencies that serve children, including agencies serving children involved in both the juvenile justice and child welfare systems; and
(6) any other matter at the request of the Texas Juvenile Justice Board.
(b) The goal of the advisory council is to provide actionable, direct, and inclusive feedback from the local perspective to the Texas Juvenile Justice Board and Texas Juvenile Justice Department so the unified juvenile justice system can collectively develop and improve the state's comprehensive continuum of care for youth; prioritize evidence-based rehabilitative services; and ensure safety for youth, staff, and the public.
(c) The advisory council is composed of 15 members, as specified in Chapter 203, Human Resources Code. Members, excluding ex officio members, serve staggered two-year terms. Texas Juvenile Justice Board-appointed members shall receive training on the advisory council's purpose, role, and procedures within 30 days of their appointment.
(d) If a vacancy occurs on the council during a member's term, the Texas Juvenile Justice Board must appoint a replacement who meets the qualifications of the vacant position to serve for the remainder of the term.
(e) A majority of advisory council members, excluding ex officio members as defined in Chapter 203, Human Resources Code, constitutes a quorum. A quorum must be present to vote on action items that will be submitted to the Texas Juvenile Justice Board for consideration.
(f) Ex officio members have the same rights and privileges as other members, including the right to vote. These members are not counted when determining the number of members who represent a quorum or in determining whether a quorum is present.
(g) An advisory council member shall avoid the appearance of a conflict of interest by not voting or participating in a decision by the council that solely benefits, solely penalizes, or otherwise solely impacts the county or juvenile probation department over which the member has authority.
(h) The advisory council's presiding officer or designee shall periodically update the board on the council's activities, progress on board directives, and issues impacting juvenile probation programs, services, and facilities.
(i) The advisory council is subject to Chapter 552, Government Code, as the act applies to bodies that are solely advisory in nature.
(j) The advisory council is not subject to Chapter 2110, Government Code. The department shall evaluate the continuing need for and recommendations to improve the council during the rule review process established under Chapter 2001, Government Code.
§349.550.Removal of Members.
It is a ground for removal from the council if a member is absent from more than half of the regularly scheduled meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the council.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406342
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§349.600.Access to Data Collected.
For planning and research purposes, all juvenile probation departments participating in the implementation of the state's regionalization plan developed under Chapter 203, Human Resources Code, are authorized to access data that any participating departments have submitted through the juvenile case management system.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406343
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes to repeal 37 TAC Chapter 350, Investigating Abuse, Neglect, Exploitation, Death and Serious Incidents, and all of its sections, including §§350.100, Definitions; 350.110, Interpretation; 350.120, Applicability; 350.200, Assessment; 350.210, Prioritization, Activation and Initiation; 350.300, Investigations; 350.400, Notification and Referral; 350.500, Requests for Disciplinary Action; 350.600, Retention, Release and Redaction of Commission Records; 350.610, Release of Confidential Information; 350.620, Redaction of Records; 350.700, Call Line; 350.800, Serious Incidents; 350.900, Training and Quality Assurance; 350.901, Pre-Service Training; 350.902, Competency Testing; 350.903, Continuing Education; and 350.904 Quality Assurance.
SUMMARY OF CHANGES
Chapter 350 and its sections are proposed for repeal so that their content can be revised and included in a revision of 37 TAC Chapter 358.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the repealed sections are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the repeals.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the repealed sections are in effect, the public benefit anticipated as a result of administering the repeals will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the repealed sections as proposed. No private real property rights are affected by the repeal of the sections.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the repeals are in effect, the repeals will have the following impacts.
(1) The proposed repeals do not create or eliminate a government program.
(2) The proposed repeals do not require the creation or elimination of employee positions at TJJD.
(3) The proposed repeals do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed repeals do not impact fees paid to TJJD.
(5) The proposed repeals do not create a new regulation.
(6) The proposed repeals do not expand, limit, or repeal an existing regulation.
(7) The proposed repeals do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed repeals will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§350.100.Definitions.
§350.110.Interpretation.
§350.120.Applicability.
§350.200.Assessment.
§350.210.Prioritization, Activation and Initiation.
§350.300.Investigations.
§350.400.Notification and Referral.
§350.500.Requests for Disciplinary Action.
§350.600.Retention, Release and Redaction of Commission Records.
§350.610.Release of Confidential Information.
§350.620.Redaction of Records.
§350.700.Call Line.
§350.800.Serious Incidents.
§350.900.Training and Quality Assurance.
§350.901.Pre-Service Training.
§350.902.Competency Testing.
§350.903.Continuing Education.
§350.904.Quality Assurance.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406325
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes to repeal 37 TAC §§358.100, 358.120, 358.140, 358.200, 358.220, 358.240, 358.300, 358.320, 358.340, 358.360, 358.400, 358.420, 358.440, 358.460, 358.500, 358.520, 358.540, 358.600, and 358.620, relating to Identifying, Reporting, and Investigating Abuse, Neglect, Exploitation, Death, and Serious Incidents.
SUMMARY OF REPEAL
The repeal of §§358.100, Definitions; 358.120, Interpretation; 358.140, Applicability; 358.200, Policy and Procedure; 358.220, Data Reconciliation; 358.240, Signage; 358.300, Identifying and Reporting Abuse, Neglect, Exploitation, and Death; 358.320, Parental Notification; 358.340, Reporting of Allegations by Juveniles; 358.360, Allegations Occurring Outside the Juvenile Justice System; 358.400, Internal Investigation; 358.420, Reassignment or Administrative Leave During the Internal Investigation; 358.440, Cooperation with TJJD Investigation; 358.460, Corrective Measures; 358.500, Internal Investigation Report; 358.520, Required Components of an Internal Investigation Report; 358.540, Submission of Internal Investigation Report; 358.600, Serious Incidents; and 358.620, Medical Documentation for Serious Incidents will allow the content to be revised and republished as new §§358.100, 358.110, 358.120, 358.130, 358.200, 358.210, 358.220, 358.230, 358.240, 358.250, 358.260, 358.270, 358.280, 358.290, 358.300, 358.310, 358.320, 358.330, 358.340, 358.400, 358.410, 358.420, 358.430, 358.440, 358.450, and 358.460, .
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the repeals are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the repeals.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the repeals are in effect, the public benefit anticipated as a result of administering the repeals will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. 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 the repeals.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the repeals are in effect, the repeals will have the following impacts.
(1) The proposed repeals do not create or eliminate a government program.
(2) The proposed repeals do not require the creation or elimination of employee positions at TJJD.
(3) The proposed repeals do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed repeals do not impact fees paid to TJJD.
(5) The proposed repeals do not create a new regulation.
(6) The proposed repeals do not expand, limit, or repeal an existing regulation.
(7) The proposed repeals do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed repeals will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The repeals are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§358.100.Definitions.
§358.120.Interpretation.
§358.140.Applicability.
§358.200.Policy and Procedure.
§358.220.Data Reconciliation.
§358.240.Signage.
§358.300.Identifying and Reporting Abuse, Neglect, Exploitation, and Death.
§358.320.Parental Notification.
§358.340.Reporting of Allegations by Juveniles.
§358.360.Allegations Occurring Outside the Juvenile Justice System.
§358.400.Internal Investigation.
§358.420.Reassignment or Administrative Leave During the Internal Investigation.
§358.440.Cooperation with TJJD Investigation.
§358.460.Corrective Measures.
§358.500.Internal Investigation Report.
§358.520.Required Components of an Internal Investigation Report.
§358.540.Submission of Internal Investigation Report.
§358.600.Serious Incidents.
§358.620.Medical Documentation for Serious Incidents.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406326
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes new 37 TAC §§358.100, 358.110, 358.120, 358.130, 358.200, 358.210, 358.220, 358.230, 358.240, 358.250, 358.260, 358.270, 358.280, 358.290, 358.300, 358.310, 358.320, 358.330, 358.340, 358.400, 358.410, 358.420, 358.430, 358.440, 358.450, 358.460, relating to Identifying, Reporting, and Investigating Abuse, Neglect, Exploitation, Death, and Serious Incidents.
SUMMARY
New §358.100, Definitions, will provide definitions for terms used in the chapter. Key additions and/or revisions will include: 1) removing terms alleged perpetrator, designated perpetrator, and sustained perpetrator and replacing them with the term suspect; 2) adding the term non-juvenile justice contract facility; 3) adding abscond from nonsecure facility to serious incident; 4) ensuring definitions related to sexual abuse are consistent with PREA, particularly related to juvenile contact with other juveniles; 5) adding definitions of reasonable cause to believe and preponderance of the evidence; 6) modifying definitions of abuse, neglect, and exploitation to remove reference to changed statute; and 7) adding definition of emotional harm and physical injury.
New §358.110, Interpretation, will provide general guidelines for interpreting the chapter. Key additions and/or revisions will include adding the calculation of time and a reference to applicable statute.
New §358.120, Applicability, will explain the circumstances to which this chapter will apply. Key additions and/or revisions will include expanding applicability to include abuse, neglect, exploitation, serious incidents, and death that involve juvenile at non-juvenile justice contract facilities.
New §358.130, Toll-Free Call Center, will explain that TJJD operates a call center for the specific purpose of reporting alleged abuse, neglect, exploitation, death, and serious incidents.
New §358.200, Policy and Procedure, will describe the types of policies and procedures required of departments, programs, and facilities. Key additions and/or revisions will include: 1) clarifying that all contracts with non-juvenile justice contract facilities will require the placement to report abuse, neglect, exploitation, death, or serious incident to the juvenile probation department, program, or facility and to TJJD; to conduct an internal investigation in accordance with this chapter or allow the department, program, or facility to do so; and to cooperate with all assessments and investigations; and 2) modifying the reporting requirement to be when there is reasonable cause to believe abuse, neglect, or exploitation has occurred.
New §358.210, Information on Reporting, will explain how and when youth and parents are made aware of the process for reporting alleged abuse, neglect, exploitation, death, and serious incidents. Key additions and/or revisions will include adding that facilities or programs provide a youth's parents with information on reporting suspected abuse, neglect, or exploitation to TJJD and the TJJD toll-free number as soon as practicable after child is taken into custody or placed in the facility.
New §358.220, Data Reconciliation, will explain the information TJJD requires for all allegations of abuse, neglect, exploitation, death, and serious incidents.
New §358.230, Reporting Abuse, Neglect, and Exploitation, will explain a person's duty to report abuse, neglect, and exploitation and will present timeframes and methods of reporting. Key additions and/or revisions will include: 1) expanding duty to report to include non-juvenile justice contract facility and changing duty to be when there is reasonable cause to believe; and 2) modifying reporting methods to remove fax as an option.
New §358.240, Reporting Serious Incidents, will explain a person's duty to report serious incidents and will present timeframes and methods of reporting. Key additions and/or revisions will include: 1) expanding duty to report to include non-juvenile justice contract facility; and 2) modifying reporting methods to remove fax as an option.
New §358.250, Reporting Deaths, will explain a person's duty to report a death and will present timeframes and methods of reporting. Key additions and/or revisions will include expanding duty to report to include non-juvenile justice contract facility.
New §358.260, Parental Notification, will explain the requirements regarding notifying parents or guardians when a youth has died or is the alleged victim of abuse, neglect, exploitation, or serious incident. Key additions and/or revisions will include adding a requirement to report to a parent that their child was involved in a serious incident using the same timeframes as the requirements to report abuse, neglect, and exploitation.
New §358.270, Reporting of Allegations by Juveniles, will specify a youth's right to report allegations of abuse, neglect, exploitation, and death. Key additions and/or revisions will include adding a requirement to report to a parent that their child was involved in a serious incident using the same timeframes as the requirements to report abuse, neglect, exploitation, and death.
New §358.280, Internal Investigation, will explain the specifics for the mandatory investigations that must be undertaken in every case when a youth has died or is the victim of alleged abuse, neglect, or exploitation. Key additions and/or revisions will include: 1) clarifying that a delay in starting an internal investigation in order to protect the integrity of potential evidence occurs only after consultation with local law enforcement or TJJD's Office of Inspector General; 2) clarifying that policies and procedures related to internal investigations must be provided to TJJD upon request; and 3) providing that the burden of proof in an internal investigation is a preponderance of the evidence and that the burden of proof cannot be lowered or raised.
New §358.290, Corrective Measures, will explain the scope of the corrective measures that may be taken at the conclusion of an internal investigation. Key additions and/or revisions will include clarifying that corrective measures that must be taken, if warranted, also apply to persons found to have engaged in misconduct not classified as abuse, neglect, or exploitation.
New §358.300, Internal Investigative Report, will explain that a report must be completed at the conclusion of every internal investigation and will provide the items that must be included in the report. Key additions and/or revisions will include adding a requirement to notify TJJD within five calendar days if disciplinary action is imposed after the submission of the internal investigation report.
New §358.310, Submission of Internal Investigative Report, will explain what TJJD requires to be submitted as part of the internal investigative report.
New §358.320, Reassignment or Administrative Leave during the Internal Investigation, will explain the options for addressing the work status of personnel alleged to have abuse, neglected, or exploited a youth
New §358.330, Cooperation with TJJD Investigation, will explain that all persons must cooperate fully with a TJJD investigation into allegations of abuse, neglect, exploitation, death, and serious incidents. Key additions and/or revisions will include adding serious incident to the types of investigations all persons are required to fully cooperate with.
New §358.340, Cooperation with Other Agencies, will explain that all persons must also cooperate with other agencies that have the authority to investigate allegations of abuse, neglect, exploitation, death, and serious incidents. Key additions and/or revisions will include adding a requirement to fully cooperate with other state agencies or licensing entities with authority to investigate, such as an agency that holds the occupational license of a person who is the subject of an investigation.
New §358.400, TJJD Assessment and Referral, will explain that TJJD will complete assessments on all reports of alleged abuse, neglect, exploitation, death, and serious incidents to determine the authority under which the alleged conduct falls. Key additions and/or revisions will include: 1) adding serious incidents to the things TJJD can assess to determine if an investigation is warranted or if a referral to another TJJD division, the juvenile probation department or facility, or another state agency is appropriate; 2) clarifying that TJJD may conduct an assessment when there is a reasonable cause to believe one is warranted; 3) clarifying that the purpose of an assessment is to determine if the conduct falls under TJJD's investigative or other regulatory authority and if action or investigation is warranted; and 4) providing that TJJD may request information as part of the assessment and the requested information must be provided.
New §358.410, TJJD Investigations, will provide the parameters for how investigations will be conducted. Key additions and/or revisions will include: 1) clarifying that an investigation may be conducted based on a report or may be initiated by TJJD when there is reasonable cause to believe that an incident may require investigation, regardless of how TJJD was made aware of the matter; 2) removing detailed procedures of how investigations are conducted from administrative rule as they are more appropriately addressed in policies and procedures; 3) adding that a person who obtains employment in another jurisdiction while an investigation is pending may not be in a position having contact with juveniles until the investigation is finalized by TJJD or TJJD approves.
New §358.420, Findings in Abuse, Neglect, and Exploitation Investigations, will explain the burden of proof required in findings of abuse, neglect, exploitation, death, and serious incidents and will provide specific definitions for certain behaviors. Key additions and/or revisions will include: 1) clarifying that a finding of abuse, neglect, or exploitation requires a preponderance of evidence to establish the person engaged in conduct meeting the definition, including having done so with the required mental state; 2) defining intentionally, knowingly, and recklessly according to definitions in the Penal Code; 3) defining negligence using the definition in civil law negligence cases; and 4) defining the required findings for abuse, neglect, and exploitation allegations.
New §358.430, Abuse, Neglect, and Exploitation Investigative Report, will explain that an investigative report must include certain elements and may include others. Key additions and/or revisions will include: 1) providing that the investigator in an abuse, neglect, and exploitation report will summarize and analyze the evidence and make a recommendation regarding whether the evidence is sufficient to establish ANE occurred; 2) providing that a TJJD attorney will review the investigation for legal sufficiency and make findings as to whether the evidence establishes that abuse, neglect, or exploitation occurred; and 3) adding that the attorney may request additional information or investigation by TJJD's Office of Inspector General if necessary.
New §358.440, Notification of Findings, will explain who is notified of the findings of an investigation. Key additions and/or revisions will include providing who will be notified of the findings and the notice for administrative review.
New §358.450, Other Actions by TJJD, will provide other courses of action that TJJD might take as a result of an investigation.
New §358.460, Maintenance of Records and Data, will explain the process for maintaining records and data related to investigations into abuse, neglect, exploitation, death, and serious incidents.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the new sections are in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the sections.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the new sections are in effect, the public benefit anticipated as a result of administering the sections will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the new sections as proposed. No private real property rights are affected by adoption of the sections.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the new sections are in effect, the sections will have the following impacts.
(1) The proposed sections do not create or eliminate a government program.
(2) The proposed sections do not require the creation or elimination of employee positions at TJJD.
(3) The proposed sections do not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed sections do not impact fees paid to TJJD.
(5) The proposed sections do not create a new regulation.
(6) The proposed sections do not expand, limit, or repeal an existing regulation.
(7) The proposed sections do not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed sections will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
SUBCHAPTER A. DEFINITIONS, APPLICABILITY, AND GENERAL REQUIREMENTS
37 TAC §§358.100, 358.110, 358.120, 358.130
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§358.100.Definitions.
Terms used in this chapter have the following meanings unless otherwise expressly defined within the chapter.
(1) Abuse--an intentional, knowing, or reckless act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause emotional harm or physical injury to, or the death of, a juvenile served by the juvenile justice facility or program. Abuse also includes the definition in Section 261.001, Family Code.
(2) Administrator--the chief administrative officer of a juvenile probation department, juvenile justice program, juvenile justice facility, or non-juvenile justice contract facility.
(3) Administrative Designee--the role assigned to the administrator when a preponderance of evidence determines that the proximate cause of the abuse, neglect, or exploitation was based on policies and procedures under the direct control of the administrator.
(4) Department--a juvenile probation department.
(5) Emotional harm--an impairment in the juvenile's growth, development, or psychological functioning that normally requires evaluation or treatment by a trained mental health or health care professional, regardless of whether evaluation or treatment is actually received. Sexual conduct between employees, volunteers, or contractors and juveniles is presumed to cause substantial emotional harm.
(6) Exploitation--the illegal or improper use of a juvenile or the resources of a juvenile for monetary or personal benefit, profit, or gain by an employee, volunteer, or other individual working under the auspices of a facility or program.
(7) Incident Report Form--the form used to report to TJJD allegations of abuse, neglect, or exploitation, the death of a juvenile, and serious incidents.
(8) Internal Investigation--a formalized and systematic inquiry conducted in response to an allegation of abuse, neglect, or exploitation or the death of a juvenile.
(9) Internal Investigative Report--the written report submitted to TJJD that summarizes the steps taken and the evidence collected during an internal investigation of alleged abuse, neglect, or exploitation or the death of a juvenile.
(10) Investigative Report--the written report prepared by TJJD detailing its investigation and findings.
(11) Juvenile--a person who is under the jurisdiction of the juvenile court, confined in a juvenile justice facility, housed in a non-juvenile justice contract facility pursuant to an order of the juvenile court, or participating in a juvenile justice program, including a prevention and intervention program, regardless of age.
(12) Juvenile Justice Facility ("facility")--a facility that is registered by TJJD pursuant to Sections 51.12, 51.125, or 51.126, Family Code.
(13) Juvenile Justice Program ("program")--a program or department that:
(A) serves juveniles under juvenile court or juvenile board jurisdiction; or
(B) is operated wholly or partly by the juvenile board or by a private vendor under a contract with the juvenile board. The term includes:
(i) a juvenile justice alternative education program;
(ii) a non-residential program that serves juvenile offenders under the jurisdiction of the juvenile court or juvenile board; and
(iii) a juvenile probation department.
(14) Medical Treatment--medical care, processes, and procedures that are performed by a physician, physician assistant, licensed nurse practitioner, emergency medical technician (EMT), paramedic, or dentist. Diagnostic procedures are excluded from this definition unless intervention beyond basic first aid is required.
(15) Neglect--a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a juvenile served by the facility or program. Neglect also includes the definition in Section 261.001, Family Code.
(16) Non-Juvenile Justice Contract Facility--a facility in which a juvenile is placed pursuant to a contract with a department, program, facility, or juvenile board, other than a facility registered with TJJD.
(17) Physical Injury--an injury that normally requires examination or treatment by a trained health care professional, regardless of whether examination or treatment is actually received.
(18) Preponderance of the Evidence--a standard of proof meaning the credible and reliable evidence establishes that it is more likely than not that conduct meeting the definition of abuse, neglect, or exploitation occurred.
(19) Reasonable Cause to Believe--a reasonable ground to suspect that a juvenile has been or may be abused, neglected, or exploited or that a juvenile's physical or mental health or welfare has been adversely affected by abuse or neglect.
(20) Report--formal notification to TJJD of alleged abuse, neglect, or exploitation, the death of a juvenile, or a serious incident.
(21) Serious Incident--an incident that meets one of the following definitions:
(A) escape--the unauthorized departure of a juvenile who is in custody or the failure of a juvenile to return to custody following an authorized temporary leave for a specific purpose or specific, limited time period;
(B) attempted escape--committing an act that amounts to more than mere planning but that fails to effect an escape;
(C) abscond from a nonsecure facility--the unauthorized departure of a juvenile who has been placed in a nonsecure facility by the juvenile court or the failure of a juvenile to return to a nonsecure facility following an authorized temporary leave for a specific purpose or specific, limited time period;
(D) attempted suicide--any voluntary and intentional action that could likely result in taking one's own life;
(E) reportable injury--any physical injury sustained by a juvenile accidentally, intentionally, recklessly, or otherwise that:
(i) does not result from a personal, mechanical, or chemical restraint and requires medical treatment; or
(ii) results from a personal, mechanical, or chemical restraint and is a substantial injury.
(F) juvenile sexual conduct--conduct between two or more juveniles, regardless of age, that is conduct described in paragraphs (25) and (28) of this section, regardless of whether the juveniles consented to the conduct; or
(G) juvenile-on-juvenile physical assault--a physical altercation involving two or more juveniles that results in any of the involved parties sustaining an injury that requires medical treatment.
(22) Serious Physical Abuse--bodily harm or a condition that:
(A) resulted directly or indirectly from the conduct that formed the basis of an allegation of abuse, neglect, or exploitation; and
(B) requires medical treatment.
(23) Sexual Abuse--includes sexual abuse (by contact or by non-contact) of a juvenile by an employee, contractor, or volunteer or by another juvenile.
(24) Sexual Abuse by Contact (employee, volunteer, or contractor)--any physical contact between an employee, contractor, or volunteer and a juvenile, with or without the consent of the juvenile that includes:
(A) contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
(B) contact between the mouth and the penis, vulva, or anus;
(C) contact between the mouth and any body part where the employee, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(D) penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where the employee, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(E) any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the actor has the intent to abuse, arouse, or gratify sexual desire; and
(F) any attempt by an employee, contractor, or volunteer to engage in the activities described in subparagraphs (a) - (e) of this paragraph.
(25) Sexual Abuse by Contact (by another juvenile)--any of the following acts between juveniles, if the victim does not consent, is coerced into the act by overt or implied threats of violence, or is unable to consent or refuse, either actually or legally:
(A) contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
(B) contact between the mouth and the penis, vulva, or anus;
(C) penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and
(D) any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.
(26) Sexual Abuse by Non-Contact (by employee, volunteer, or contractor)--any sexual behavior, conduct, harassment, or actions by an employee, contractor, or volunteer, which are exhibited, performed, or simulated in the presence of a juvenile or with reckless disregard for the presence of a juvenile but do not meet the definition of sexual abuse by contact, including but not limited to:
(A) any threat or request for a juvenile to engage in the activities described in paragraph (24) of this section;
(B) any display of uncovered genitalia, buttocks, or breasts in the presence of a juvenile;
(C) voyeurism, which means an invasion of privacy of a juvenile for reasons unrelated to official duties, such as peering at a juvenile who is using a toilet to perform bodily functions; requiring a juvenile to expose his or her buttocks, genitals, or breasts; or taking images of all or part of a juvenile's naked body or of a juvenile performing bodily functions; and
(D) sexual harassment.
(27) Sexual Harassment (by employee, contractor, or volunteer)--repeated verbal comments or gestures of a sexual nature to a juvenile, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.
(28) Sexual Harassment (by another juvenile)--any of the following directed by one juvenile to another juvenile: repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one juvenile directed toward another.
(29) Substantial Injury--an injury that is significant in size, degree, or severity.
(30) Subject--a person alleged or found to be responsible for the abuse, neglect, or exploitation of a juvenile through the person's actions or failure to act.
(31) TJJD OIG--TJJD Office of Inspector General.
(32) Victim--a juvenile who is alleged or found to be a victim of abuse, neglect, or exploitation.
§358.110.Interpretation.
(a) Headings. The headings in this chapter are for convenience only and are not intended as a guide to the interpretation of the standards in this chapter.
(b) Including. Unless the context clearly indicates otherwise, the words "include," "includes," and "including," when following a general statement or term, are to be understood as introducing a non-exhaustive list.
(c) Time. Any period of days set forth in this chapter is computed as set forth in Section 311.014, Government Code. Unless otherwise specified, a period of "days" means "calendar days." When this chapter requires or allows an act by any party other than TJJD to be done at or within a specified time period, the executive director or Board may, for good cause shown, order the period extended or permit the act to be done after the expiration of the specified period.
§358.120.Applicability.
(a) Unless otherwise expressly stated, this chapter applies to:
(1) allegations of abuse, neglect, or exploitation involving a juvenile and an employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility, regardless of the physical location of the alleged abuse, neglect, or exploitation;
(2) serious incidents involving a juvenile that:
(A) occur on the premises of a program, facility, or non-juvenile justice contract facility; or
(B) regardless of the physical location, occur while in the presence of an employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility; and
(3) a death of a juvenile that:
(A) occurs on the premises of a program, facility, or non-juvenile justice contract facility;
(B) results from an illness, incident, or injury that occurred, was discovered, or was reported on the premises of a program, facility, or non-juvenile justice contract facility; or
(C) regardless of the physical location, occurs while in the presence of an employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility.
(b) For purposes of this chapter, "working under the auspices of a facility, program, or non-juvenile justice contract facility" includes providing a service to juveniles when that service is authorized by the juvenile board or pursuant to a contract for placement.
§358.130.Toll-Free Call Center.
TJJD maintains a staffed incident reporting center with a toll-free number to facilitate the reporting of alleged abuse, neglect, exploitation, death, and serious incidents. Additionally, TJJD maintains alternative forms of contact for the continuity of operations, including email and secondary phone numbers.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406344
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§358.200.Policy and Procedure.
(a) Departments, programs, and facilities shall have written policies and procedures that require, in accordance with this chapter:
(1) reporting allegations of abuse, neglect, or exploitation of a juvenile to local law enforcement, TJJD, and other appropriate governmental units when there is reasonable cause to believe that abuse, neglect, or exploitation has occurred;
(2) reporting death of a juvenile to local law enforcement and TJJD; and
(3) reporting serious incidents to TJJD.
(b) Departments, programs, and facilities shall include the following in all contracts with non-juvenile justice contract facility:
(1) a requirement for the non-juvenile justice contract facility to report allegations of abuse, neglect, exploitation, the death of a juvenile, or a serious incident to the department, program, or facility and to TJJD in accordance with this chapter;
(2) a requirement for the non-juvenile justice contract facility to conduct an internal investigation or allow the department, program, or facility to do so and to cooperate with such investigation; and
(3) a requirement to cooperate with TJJD with any assessment or investigation.
§358.210.Information on Reporting.
(a) As soon as practicable after a child is taken into custody or placed in a facility or program, the facility or program shall provide the child's parents with:
(1) information regarding the reporting of suspected abuse, neglect, or exploitation of a juvenile in a facility or program to TJJD; and
(2) the TJJD toll-free number for this reporting.
(b) Departments, programs, and facilities must prominently display signage provided by TJJD regarding a zero-tolerance policy concerning abuse of juveniles. The signage must be in English and Spanish and be displayed in each of the following places:
(1) lobby or visitation areas of the department, program, or facility to which the public has access;
(2) juvenile housing and common areas;
(3) common medical treatment areas;
(4) common educational areas; and
(5) other common areas.
§358.220.Data Reconciliation.
(a) For all allegations of abuse, neglect, or exploitation, the death of a juvenile, and serious incidents occurring within the reporting period, the department or facility must provide the data listed in subsection (b) to TJJD in the electronic format requested or supplied by TJJD.
(b) The data must include:
(1) name and Personal Identification Number (PID) of each alleged victim;
(2) name and date of birth of each subject of investigation;
(3) date and time of alleged incident;
(4) date the alleged incident was reported to TJJD;
(5) type of alleged incident (i.e., abuse, neglect, exploitation, death, or serious incident);
(6) type of injury, if applicable;
(7) whether the alleged incident was restraint-related and, if so, what type of restraint was involved (i.e., personal, mechanical, or chemical);
(8) disposition of internal investigation (i.e., founded, unfounded, or inconclusive); and
(9) county-generated case identification number.
(c) The data must be supplied at least annually or more frequently if required by TJJD. The data must include any additional information not listed in this section if specifically requested by TJJD.
§358.230.Reporting Abuse, Neglect, and Exploitation.
(a) Duty to Report. An employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility must report an allegation of abuse, neglect, or exploitation to TJJD and local law enforcement if the person has reasonable cause to believe a juvenile has been or may be abused, neglected, or exploited or that a juvenile's physical or mental health or welfare has been adversely affected by abuse or neglect.
(b) Non-Delegation of Duty to Report. In accordance with Chapter 261, Family Code, the duty to report cannot be delegated to another person.
(c) Other than Sexual Abuse or Serious Physical Abuse.
(1) Time Frames for Reporting. A report of alleged abuse, neglect, or exploitation other than allegations involving sexual abuse or serious physical abuse must be made no later than 24 hours after the time the person gains knowledge of or has reasonable cause to believe that abuse, neglect, or exploitation has occurred.
(2) Methods for Reporting.
(A) The report to TJJD may be made by phone or by emailing a completed Incident Report Form.
(B) If the report to TJJD is made by phone, a completed Incident Report Form must be submitted by email within 24 hours after the phone report.
(C) The report to law enforcement must be made by phone.
(d) Sexual Abuse or Serious Physical Abuse.
(1) Time Frames for Reporting.
(A) A report of alleged sexual abuse or serious physical abuse must be made to local law enforcement immediately, but no later than one hour after the time a person gains knowledge of or has a reasonable belief that alleged sexual abuse or serious physical abuse has occurred.
(B) A report of alleged sexual abuse or serious physical abuse must be made to TJJD immediately, but no later than four hours, after the time a person gains knowledge of or has a reasonable belief that alleged sexual abuse or serious physical abuse has occurred.
(2) Methods for Reporting.
(A) The initial report to TJJD must be made by phone using the toll-free number as designated by TJJD.
(B) Within 24 hours after the initial phone report to TJJD, the completed Incident Report Form must be submitted to TJJD by email.
(C) The initial report to law enforcement must be made by phone.
§358.240.Reporting Serious Incidents.
(a) Duty to Report. An employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility must report a serious incident to TJJD if the person:
(1) witnesses, learns of, or receives an oral or written statement from a juvenile or other person with knowledge of a serious incident; or
(2) has reasonable cause to believe that a serious incident has occurred.
(b) Time Frame for Reporting. A report of a serious incident must be made within 24 hours from the time a person gains knowledge of or has reasonable cause to believe that a serious incident occurred.
(c) Methods for Reporting Serious Incidents.
(1) The report may be made by phone or by emailing a completed Incident Report Form to TJJD.
(2) If the report is made by phone, a completed Incident Report Form must be submitted to TJJD by email within 24 hours after the phone report.
(d) Medical Documentation. A treatment discharge form or other medical documentation that contains evidence of medical treatment pertinent to the reported incident must be submitted to TJJD within 24 hours after receipt by the department, program, facility, or non-juvenile justice contract facility.
§358.250.Reporting Deaths.
(a) Duty to Report. An employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility must report to local law enforcement and to TJJD OIG if the person has reasonable to cause to believe a juvenile has died and the death:
(1) occurred on the premises of a program, facility, or non-juvenile justice contract facility;
(2) resulted from an illness, incident, or injury that occurred, was discovered, or was reported on the premises of a program, facility, or non-juvenile justice contract facility; or
(3) occurred while in the presence of an employee, volunteer, or other individual working under the auspices of a facility, program, or non-juvenile justice contract facility, regardless of where the death occurred.
(b) Time Frames for Reporting.
(1) A report of a death must be made to local law enforcement immediately upon, and no later than one hour after, the discovery or notification of the death.
(2) A report of a death must be made to TJJD OIG immediately upon, and no later than four hours after, the discovery or notification of the death.
(3) A written report of the cause of death must be submitted to the Office of the Attorney General no later than 30 days after the juvenile's death if required by Article 49.18, Code of Criminal Procedure.
(4) A copy of the death investigative report must be submitted to TJJD no later than 10 days after completion.
(c) Methods for Reporting.
(1) The initial report to TJJD must be made by phone using the toll-free number as designated by TJJD.
(2) Within 24 hours after the phone report to TJJD, the completed Incident Report Form must be submitted to TJJD OIG by email.
(3) The initial report to law enforcement must be made by phone.
§358.260.Parental Notification.
(a) Requirement to Notify. Notification, or diligent efforts to notify, must be made to the parent(s), guardian(s), and custodian(s) of a juvenile who has died or who is the alleged victim of abuse, neglect, or exploitation or was involved in a serious incident.
(b) Time of Notification. The notice or efforts to notify required by subsection (a) of this section must be made as soon as possible, but no later than 24 hours, from the time a person gains knowledge of or has a reasonable belief that the allegation of abuse, neglect, or exploitation or the death of a juvenile occurred or that a serious incident has occurred.
(c) Method of Notification. The notice or efforts to notify required by subsection (a) of this section may be made by phone, in writing, or in person.
(d) Documentation of Notification. The notice or efforts to notify required by subsection (a) of this section must be documented on TJJD's Incident Report Form and in the internal investigative report.
§358.270.Reporting of Allegations by Juveniles.
(a) Right to Report. Juveniles have the right to report to TJJD allegations of abuse, neglect, or exploitation and the death of a juvenile. During orientation to a facility or program, juveniles must be advised in writing of:
(1) their right to report allegations under this subsection; and
(2) TJJD's toll-free number available for reporting allegations under this subsection.
(b) Policy and Procedure. Departments, programs, and facilities must have written policies and procedures that provide a juvenile with reasonable, free, and confidential access to telephones for reporting allegations to TJJD.
(c) Access to TJJD. Upon the request of a juvenile, staff must facilitate the juvenile's reasonable, free, and confidential access to a telephone for reporting allegations to TJJD.
§358.280.Internal Investigation.
(a) Investigation Requirement. In every case in which a report of the death of a juvenile or of an allegation of abuse, neglect, or exploitation has occurred, an internal investigation must be conducted. The investigation must be conducted by a person qualified by experience or training to conduct a comprehensive investigation.
(b) Initiation of Investigation. The internal investigation must be initiated immediately upon the chief administrative officer or the private facility administrator or their respective designees gaining knowledge of the death of a juvenile or the allegation of abuse, neglect, or exploitation. However, the initiation of the internal investigation will be postponed if:
(1) directed by local law enforcement;
(2) requested by TJJD OIG; or
(3) after consultation with local law enforcement or TJJD OIG, it is determined that the integrity of potential evidence could be compromised.
(c) Burden of Proof. The burden of proof in an internal investigation is preponderance of the evidence. A higher or lower burden of proof may not be implemented.
(d) Policy and Procedure. Departments, programs, and facilities must have written policies and procedures for conducting internal investigations under this chapter. The internal investigation must be conducted in accordance with the policies and procedures of the department, program, or facility. The policies and procedures must be provided to TJJD upon request.
(e) Juvenile Board Responsibilities. If the chief administrative officer or the private facility administrator is the person alleged to have abused, neglected, or exploited a juvenile, the juvenile board chair must:
(1) conduct the internal investigation; or
(2) appoint an individual to conduct the internal investigation who is not one of the following:
(A) the person alleged to have abused, neglected, or exploited the juvenile(s);
(B) a subordinate of the person alleged to have abused, neglected, or exploited the juvenile(s); or
(C) a law enforcement officer currently acting in the capacity as a criminal investigator for the alleged abuse, neglect, or exploitation of the juvenile(s).
(f) Time Frame for Internal Investigation. The internal investigation must be completed within 30 business days after the initial report to TJJD. TJJD may extend this time frame upon request. TJJD may require submission of all information compiled to date or a statement of the status of the investigation when determining whether or not to grant an extension or after granting an extension.
(g) Written and Electronically Recorded Statements. During the internal investigation, diligent efforts must be made to obtain written or electronically recorded oral statements from all persons with direct knowledge of the alleged incident.
§358.290.Corrective Measures.
Corrective measures must be taken at the conclusion of the internal investigation, if warranted, that may include:
(1) a review of the policies and procedures pertinent to the alleged incident;
(2) revision of any policies or procedures as needed;
(3) administrative disciplinary action or appropriate personnel actions against all persons found to have abused, neglected, or exploited a juvenile or to have otherwise engaged in misconduct; and
(4) the provision of additional training for all appropriate persons to ensure the safety of the juveniles, employees, and others.
§358.300.Internal Investigative Report.
(a) An internal investigative report must be completed at the conclusion of each internal investigation resulting from an allegation of abuse, neglect, or exploitation or the death of a juvenile.
(b) The internal investigative report must include:
(1) the date the internal investigation was initiated;
(2) the date the internal investigation was completed;
(3) the date the alleged victim's parent, guardian, or custodian was notified of the allegation, or documentation that diligent efforts to provide the notification were made;
(4) a summary of the original allegation;
(5) relevant policies and procedures related to the incident;
(6) a summary or listing of the steps taken during the internal investigation;
(7) a written summary of the content of all oral interviews conducted;
(8) a listing of all evidence collected during the internal investigation, including all audio and/or video recordings and polygraph examinations;
(9) relevant findings of the investigation that support the disposition;
(10) one of the following dispositions:
(A) founded, which means the evidence indicates that it is more likely than not that the conduct that formed the basis of an allegation of abuse, neglect, or exploitation occurred or that other conduct constituting abuse, neglect, or exploitation occurred;
(B) unfounded, which means the evidence indicates the conduct that formed the basis of an allegation of abuse, neglect, or exploitation did not occur and no other conduct constituting abuse, neglect, or exploitation occurred; or
(C) inconclusive, which means the evidence does not clearly indicate whether or not the conduct that formed the basis of an allegation of abuse, neglect, or exploitation occurred or other conduct constituting abuse, neglect, or exploitation occurred.
(11) the date the internal investigative report was completed;
(12) the names of all persons who participated in conducting the internal investigation;
(13) the name and signature of the person who submitted the internal investigative report; and
(14) the administrative action, disciplinary action, or corrective measures taken to date, if applicable (e.g., terminated, suspended, retrained, returned to duty, or none).
(c) If disciplinary action is imposed after the submission of the internal investigative report, the administrator or designee must notify TJJD of the disciplinary action no later than five calendar days after the disciplinary action is imposed.
§358.310.Submission of Internal Investigative Report.
(a) A copy of the internal investigative report must be submitted to TJJD no later than five calendar days following its completion.
(b) The following documentation collected during the internal investigation must be submitted to TJJD with the internal investigative report:
(1) written statements;
(2) relevant medical documentation;
(3) training records, if applicable; and
(4) any other documentation used to reach the disposition of the internal investigation.
§358.320.Reassignment or Administrative Leave during the Internal Investigation.
(a) Upon gaining knowledge of an allegation of abuse, neglect, or exploitation, and until the finding of the internal investigation is determined, the person alleged to have abused, neglected, or exploited a juvenile must be placed on administrative leave or reassigned to a position having no contact with the alleged victim, relatives of the alleged victim, or other juveniles.
(b) If the chief administrative officer or the private facility administrator is the person alleged to have abused, neglected, or exploited a juvenile, the juvenile board chair must immediately place the chief administrative officer or private facility administrator on administrative leave or reassign that person to a position having no contact with the alleged victim, relatives of the alleged victim, or other juveniles.
(c) If, during the internal investigation, the subject of the investigation resigns or is terminated from employment, the department or facility must notify TJJD no later than the second business day after the resignation or termination.
(d) If a subject of investigation obtains employment in another jurisdiction before the disposition of the internal investigation has been finalized, the person may not be placed in a position having any contact with any juveniles until the disposition of the internal investigation is finalized in the county of previous employment.
§358.330.Cooperation with TJJD Investigation.
(a) All persons must fully cooperate with any investigation of an allegation of abuse, neglect, or exploitation, the death of a juvenile, or a serious incident. A failure to do so may result in an action involving the person's certification or provisional certification pursuant to Chapter 349 of this title.
(b) A diligent effort must be made to identify and make available for questioning all persons with knowledge of an allegation of abuse, neglect, or exploitation, serious incident, or the death of a juvenile that is the subject of a TJJD investigation.
(c) Upon request by TJJD, all evidence must be provided to TJJD in the format requested.
§358.340.Cooperation with Other Agencies.
All persons must fully cooperate with any investigation of alleged abuse, neglect, or exploitation, serious incident, or death of a juvenile by another state agency or licensing entity with authority to investigate, such as an agency that holds the occupational license of a person who is the subject of the investigation.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406345
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
37 TAC §§358.400, 358.410, 358.420, 358.430, 358.440, 358.450, 358.460
STATUTORY AUTHORITY
The new sections are proposed under §221.002, Human Resources Code, which requires the board to adopt rules to govern juvenile boards, probation departments, probation officers, programs, and facilities.
No other statute, code, or article is affected by this proposal.
§358.400.TJJD Assessment and Referral.
(a) TJJD OIG will complete an assessment on all reports of alleged abuse, neglect, or exploitation of a juvenile, the death of a juvenile, or serious incidents. TJJD may conduct an assessment when there is reasonable cause to believe that one is warranted.
(b) The purpose of an assessment is to determine if conduct or alleged conduct falls under:
(1) TJJD's investigative authority and, if so, if an investigation is necessary; or
(2) TJJD's other regulatory authority and, if so, if other action is warranted.
(c) TJJD may request information from the juvenile probation department or facility making the report or where the alleged incident occurred, which may include requests for records, digital media, video, audio, and other related information or items. The entity to which the request is made must provide the requested information or, if it does not exist, an explanation that it does not exist, no later than two business days after the request is made unless a later time is agreed upon between TJJD and the entity.
(d) After assessment, TJJD OIG will conduct an investigation if it determines the matter is within TJJD OIG's jurisdiction to investigate or will refer the matter as appropriate to another TJJD division, the appropriate juvenile probation department or facility, or another governmental entity.
§358.410.TJJD Investigations.
(a) Investigations may be conducted based on a report to TJJD or may be initiated by TJJD when there is reasonable cause to believe that an incident may require investigation, regardless of how TJJD is made aware of the matter.
(b) Investigations will be conducted by TJJD in accordance with TJJD policies and procedures for investigations.
(c) Investigations must be prompt, thorough, and directed at resolving all relevant issues.
(d) The primary objective of each investigation under this chapter is to ensure the health, safety, and well-being of the alleged victim(s) and other juveniles.
(e) Only a person qualified by experience and training may be assigned to conduct an investigation.
(f) If a subject of a TJJD abuse, neglect, and exploitation investigation obtains employment in another jurisdiction before the disposition of the investigation has been finalized, the person may not be placed in a position having any contact with any juveniles until the disposition of the investigation is finalized by TJJD or TJJD otherwise approves.
§358.420.Findings in Abuse, Neglect, and Exploitation Investigations.
(a) In order to find that a person engaged in abuse, neglect, or exploitation, there must be a preponderance of evidence to establish the person engaged in conduct that meets the definition of abuse, neglect, or exploitation, including having done so with the required mental state.
(b) A person acts intentionally, or with intent, with respect to the nature of the person's conduct or the result of the conduct when it is the person's conscious objective or desire to engage in the conduct or to cause the result.
(c) A person acts knowingly, or with knowledge, with respect to the nature of the person's conduct or the result of the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
(d) A person acts recklessly, or is reckless, with respect to circumstances surrounding the person's conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
(e) A person acts with negligence when the person does something that an ordinarily prudent person exercising ordinary care would not have done under the same circumstances or fails to do something that an ordinarily prudent person in the exercise of ordinary care would have done.
(f) An investigation of potential abuse requires a finding of whether the subject intentionally, knowingly, or recklessly acted or failed to act and, if so, whether the act caused emotional harm or physical injury to the juvenile or posed a significant and foreseeable risk of emotional harm or physical injury.
(g) An investigation of potential neglect requires a finding of whether the subject engaged in a negligent act or omission and, if so, whether the action or failure to act was a substantial factor in bringing about a substantial emotional harm or physical injury to the juvenile or posed a significant and foreseeable risk of emotional harm or physical injury.
(h) An investigation of potential exploitation requires a finding of whether a juvenile or the resources of a juvenile were used for monetary or personal benefit, profit, or gain of the subject and, if so, whether the use was illegal or improper.
(i) In determining if a person's conduct is the cause of any emotional harm or physical injury, there must be a finding of whether the resulting emotional harm or physical injury would not have occurred but for the person's conduct, either alone or concurrently with another cause.
(j) Investigations may include findings of misconduct other than abuse, neglect, or exploitation if the misconduct is established by the evidence. However, the absence of such findings should not be regarded as exoneration of the subject or others as to violations of the code of ethics indicated by the evidence.
§358.430.Abuse, Neglect, and Exploitation Investigative Report.
(a) Each investigation requires a written investigative report with the investigator's recommendations regarding whether the evidence is sufficient to establish that abuse, neglect, or exploitation occurred. The report must include a summary and analysis of the evidence relied upon in reaching the recommendations. Anything considered in the investigation, including, but not limited to, copies of relevant documents and photographs, must be attached to the investigative report.
(b) Investigations may include recommendations that findings of a violation of the Code of Ethics other than abuse, neglect, or exploitation be made if the conduct is established by the evidence. However, the absence of such findings should not be regarded as exoneration of the subject or other individuals as to violations indicated by the evidence.
(c) An attorney in TJJD's Office of General Counsel shall review the recommendations of each investigative report for legal sufficiency and, based on the evidence, shall make findings as to whether or not abuse, neglect, or exploitation occurred. The attorney may request additional information or investigation by TJJD OIG if necessary to make a finding. The findings must be made before the results of the investigative report are finalized.
§358.440.Notification of Findings.
(a) The following persons are notified of the findings of an investigation:
(1) the juvenile victim and the juvenile's parents or guardian;
(2) the subject; and
(3) the administrator.
(b) If the investigation results in a finding that abuse, neglect, or exploitation occurred, the subject will be provided notice of the opportunity for an administrative review as provided in Chapter 349 of this title.
§358.450.Other Actions by TJJD.
(a) TJJD may provide notification of an investigation to the local prosecutor if warranted.
(b) TJJD may issue a non-compliance citation report (NCCR) for any violation of standards discovered as a result of an investigation.
(c) TJJD may issue a notice of technical assistance (NTA) for any violation of standards discovered as a result of an investigation.
§358.460.Maintenance of Records and Data.
(a) TJJD prepares and keeps on file a complete written report of each investigation conducted by the agency. The report is retained in accordance with the TJJD records retention schedule.
(b) TJJD compiles, maintains, and makes available statistics on the incidence of abuse, neglect, and exploitation investigated by the agency.
(c) TJJD maintains an electronic database containing information regarding all reports of alleged abuse, neglect, exploitation, death, and serious incidents.
(d) Investigation files are confidential and releasable only as provided in Chapter 349 of this title.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 28, 2024.
TRD-202406346
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
SUBCHAPTER B. TREATMENT
DIVISION 1. PROGRAM PLANNING
The Texas Juvenile Justice Department (TJJD) proposes amendments to §380.8701, Case Planning.
SUMMARY OF CHANGES
Amendments to the section will include: (1) adding a definition for integrated treatment plan; (2) adding that an integrated treatment plan may serve as the youth's case plan; (3) adding that references throughout TJJD's rules to case plans may be understood to mean integrated treatment plans for agency departments using integrated treatment plans; (4) removing statements specifying which staff members develop and update the case plan; (5) adding that case plan objectives are reviewed and progress is documented monthly, rather than at least once every 30 days; (6) adding that objectives in the case plan help the youth to develop skillful behaviors, rather than develop skills to reduce individual risk factors and increase individual protective factors; (7) replacing a reference to the orientation and assessment unit with an orientation and assessment program; and (8) consolidating some redundant statements.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the amended section is in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the section.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of administering the section will be the adoption of an integrated treatment plan that addresses a youth's individualized risk factors, treatment and rehabilitative needs, and plan for community reentry.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. 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 section.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the section is in effect, the section will have the following impacts.
(1) The proposed section does not create or eliminate a government program.
(2) The proposed section does not require the creation or elimination of employee positions at TJJD.
(3) The proposed section does not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed section does not impact fees paid to TJJD.
(5) The proposed section does not create a new regulation.
(6) The proposed section does not expand, limit, or repeal an existing regulation.
(7) The proposed section does not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed section will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The amended section is proposed under §242.003, Human Resources Code, which requires the board to adopt rules appropriate to the proper accomplishment of TJJD's functions and to adopt rules for governing TJJD schools, facilities, and programs. The amended section is also proposed under §244.001, Human Resources Code, which requires the board to establish rules for the periodic review and reevaluation of a child's written treatment plan.
No other statute, code, or article is affected by this proposal.
§380.8701.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, abilities, and need for services.
(b) Applicability. This rule applies to youth committed to the Texas Juvenile Justice Department.
(c) Definitions.
(1) Except as noted below, definitions [Definitions] for terms used in this rule are in §380.8501
of this chapter [title].
(2) Integrated Treatment Plan--a collaborative case plan addressing a youth's individualized risk factors, treatment and rehabilitative needs, and plan for community reentry.
(d) General Provisions.
(1) An individualized case plan is developed for
each youth. [An Individual Case Plan (ICP) is developed
with and for each youth by the case manager in consultation with the
multi-disciplinary team. The ICP is individualized for each youth
and identifies objectives with specific strategies to address development
of skills to reduce individual risk factors and increase individual
protective factors.]
(2) The case plan [ICP] is developed
in accordance with an [the] assessment of the
youth's risk and protective factors, abilities, and progress in the
rehabilitation program and includes objectives with specific
strategies to address development of skillful behaviors.
(3) The case plan [ICP] specifies
measurable objectives, expected outcomes, and a means to evaluate progress.
(4) Objectives in the case plan [ICP
objectives] are reviewed and progress is documented monthly [at least once every 30 days].
(5) At least once every 90 days, the youth's case
plan is updated [a multi-disciplinary team updates each
youth's ICP] following an integrated and comprehensive assessment
of the youth's progress in the rehabilitation program. This assessment includes:
(A) re-assessment of the youth's risk and protective factors;
(B) development of objectives and treatment recommendations that reflect the youth's specialized needs and individual abilities; and
(C) when appropriate, development of a plan for transitioning the youth to the community.
[(6) The ICP is developed with individualized
strategies to facilitate youth progress through the rehabilitation program.]
(6) [(7)] An assessment and treatment
summary, which forms the basis of the case plan [ICP],
is developed during the youth's time in an [while
the youth is at the] orientation and assessment program [unit].
(7) [(8)] The case plan [ICP development includes a review of youth progress and objectives
and] is developed with the youth and the youth's parent/guardian
when possible.
(8) An integrated treatment plan may serve as the case plan. For agency departments using an integrated treatment plan, references in this chapter to the case plan or individual case plan mean the integrated treatment plan.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406313
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes to repeal 37 TAC §380.9333, relating to Investigation of Alleged Abuse, Neglect, and Exploitation.
SUMMARY OF REPEAL
The repeal of §380.9333 will allow the content to be revised and republished as new §380.9333.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the repeal is in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the repeal.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of administering the repeal will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. No private real property rights are affected by adoption of the repeal.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the repeal is in effect, the repeal will have the following impacts.
(1) The proposed repeal does not create or eliminate a government program.
(2) The proposed repeal does not require the creation or elimination of employee positions at TJJD.
(3) The proposed repeal does not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed repeal does not impact fees paid to TJJD.
(5) The proposed repeal does not create a new regulation.
(6) The proposed repeal does not expand, limit, or repeal an existing regulation.
(7) The proposed repeal does not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed repeal will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The repeal is proposed under §242.003, Human Resources Code, which requires the board to adopt rules appropriate to the proper accomplishment of TJJD's functions and to adopt rules for governing TJJD schools, facilities, and programs.
No other statute, code, or article is affected by this proposal.
§380.9333.Investigation of Alleged Abuse, Neglect, and Exploitation.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406314
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
The Texas Juvenile Justice Department (TJJD) proposes new 37 TAC §380.9333, relating to Investigation of Alleged Abuse, Neglect, and Exploitation.
SUMMARY OF CHANGES
New §380.9333 modifies and republishes information currently contained in the former §380.9333, which is simultaneously proposed for repeal. Key additions and revisions will include: 1) clarifying that an investigation may be conducted based on a report or may be initiated by TJJD when there is reasonable cause to believe that an incident may require investigation, regardless of how TJJD was made aware of the matter; 2) removing detailed procedures of how investigations are conducted from administrative rule as they are more appropriately addressed in policies and procedures; 3) detailing that a finding of abuse, neglect, or exploitation requires a preponderance of evidence to establish the person engaged in conduct meeting the definition, including having done so with the required mental state; 4) defining intentionally, knowingly, and recklessly using the Penal Code definitions; 5) defining negligence using definition in civil law negligence cases; 6) defining the required findings for abuse, neglect, and exploitation allegations; 7) providing that the investigator in an abuse, neglect, or exploitation report will summarize and analyze the evidence and make a recommendation regarding whether the evidence is sufficient to establish abuse, neglect, or exploitation occurred; 8) providing that a TJJD attorney will review the investigation for legal sufficiency and make findings as to whether the evidence establishes that abuse, neglect, or exploitation occurred; and 9) clarifying that the attorney may request additional information or investigation by TJJD's Office of Inspector General if necessary.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the new section is in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the section.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the new section is in effect, the public benefit anticipated as a result of administering the section will be to bring TJJD into compliance with statutory requirements.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. 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 the section.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the new section is in effect, the section will have the following impacts.
(1) The proposed section does not create or eliminate a government program.
(2) The proposed section does not require the creation or elimination of employee positions at TJJD.
(3) The proposed section does not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed section does not impact fees paid to TJJD.
(5) The proposed section does not create a new regulation.
(6) The proposed section does not expand, limit, or repeal an existing regulation.
(7) The proposed section does not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed section will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The new section is proposed under §242.003, Human Resources Code, which requires the board to adopt rules appropriate to the proper accomplishment of TJJD's functions and to adopt rules for governing TJJD schools, facilities, and programs.
No other statute, code, or article is affected by this proposal.
§380.9333.Investigation of 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 operated by Texas Juvenile Justice Department (TJJD) or in which TJJD youth are placed. This rule also provides standards for investigations and for the compilation and sharing of investigation information. The purpose of all provisions in this rule is the protection of youth.
(b) Applicability.
(1) This rule applies to administrative investigations involving abuse, neglect, or exploitation allegedly committed by employees, volunteers, or other individuals working in TJJD programs or facilities, including institutions, halfway houses, and parole services, and in facilities and programs with which TJJD contracts for the provision of services to youth.
(2) Except as specifically noted, this rule does not apply to criminal investigations conducted by the TJJD Office of Inspector General under §242.102, Human Resources Code.
(c) Definitions. As used in this rule, the following terms have the following meanings, unless the context clearly indicates otherwise.
(1) Abuse--an intentional, knowing, or reckless act or omission that causes or may cause emotional harm or physical injury to, or the death of, a youth committed to TJJD. Abuse also includes the definition in §261.001, Family Code.
(2) Board--the Texas Juvenile Justice Board, the governing board of TJJD.
(3) Chief local administrator--the person employed in a TJJD facility or district office who 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, regardless of whether evaluation or treatment is actually received. Sexual conduct involving individuals included in subsection (b)(1) of this section and youth is presumed to cause substantial emotional harm.
(5) Exploitation--the illegal or improper use of a youth or the resources of a youth committed to TJJD for monetary or personal benefit, profit, or gain.
(6) Neglect--a negligent act or omission, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a youth committed to TJJD. Neglect also includes the definition in §261.001, Family Code.
(7) Physical injury--an injury that normally requires examination or treatment by a trained health care professional, regardless of whether examination or treatment is actually received.
(8) Preponderance of the evidence--a standard of proof meaning the credible and reliable evidence establishes that it is more likely than not that conduct meeting the definition of abuse, neglect, or exploitation occurred.
(9) Report--notification that alleged or suspected abuse, neglect, or exploitation of a child has occurred or may occur.
(10) Sexual conduct--includes sexual-related conduct that is harmful to a child's mental, emotional, or physical welfare, including, but not limited to, conduct that constitutes the offense of continuous sexual abuse of a child or children under §21.02, Penal Code; indecency with a child under §21.11, Penal Code; sexual assault under §22.011, Penal Code; aggravated sexual assault under §22.021, Penal Code; improper sexual activity with person in custody or under supervision under §39.04, Penal Code; indecent exposure under §21.08, Penal Code; sexual performance by a child under §43.25, Penal Code; and trafficking of persons under §20A.02, Penal Code.
(d) Reporting Requirements.
(1) Under state law, any person having cause to believe that a youth has been or may be adversely affected by abuse, neglect, or exploitation must report the matter to a law enforcement agency or to the Department of Family and Protective Services. The TJJD Office of Inspector General is an appropriate law enforcement agency for reports of suspected abuse, neglect, or exploitation of youth subject to the jurisdiction of TJJD. Any TJJD employee, volunteer, or contractor working in a program or facility operated by or under contract with TJJD who has reasonable cause to believe a youth committed to TJJD has been or may have been the victim of abuse, neglect, or exploitation or receives such a report must immediately report the matter to law enforcement in accordance with the TJJD's reporting policies and procedures.
(2) The person making a report must provide as much detailed information as possible, including the identity of the 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, TJJD:
(1) in coordination with the appropriate law enforcement entity, immediately takes any action necessary to protect the youth and to preserve evidence that may be pertinent to an investigation of the matter;
(2) notifies the following people of the report:
(A) the youth's parents or guardian;
(B) the youth, if the report was not made by the youth; and
(C) the chief juvenile probation officer for the committing court;
(3) determines whether the person accused of wrongdoing must be suspended, temporarily reassigned, or temporarily barred from assignment to TJJD facilities pending the outcome of the investigation; and
(4) takes 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.
(f) Assignment for Investigation.
(1) The TJJD Office of the Inspector General (OIG) promptly reviews each report of alleged abuse, neglect, or exploitation. Each report is entered into a centralized database and assigned for investigation if the report alleges conduct that, if true, appears to meet the definition of abuse, neglect, or exploitation. The report may also be assigned for criminal investigation.
(2) Whether to assign a report for criminal investigation by a peace officer from the Office of Inspector General or appropriate law enforcement is determined on a case-by-case basis considering all relevant factors, including the severity and immediacy of potential harm.
(3) An OIG investigator must provide an initial response within 24 hours after OIG receives the report if the report presents an immediate risk of physical or sexual abuse of a youth that could result in death or serious harm to the youth.
(4) If deemed to be warranted by the chief inspector general or the executive director, a report of abuse, neglect, or exploitation may be referred to appropriate outside law enforcement for investigation.
(g) Standards for Investigations.
(1) Investigations may be conducted based on a report to the OIG or may be initiated by the OIG when there is reasonable cause to believe that an incident may require investigation, regardless of how OIG is made aware of the matter.
(2) The investigation must be prompt, thorough, and directed at resolving all the relevant issues raised by the report. The primary objective of each investigation under this section is to ensure the health, safety, and well-being of the alleged victim(s) and other juveniles.
(3) Only a person qualified by experience and training may be assigned to conduct an investigation under this section.
(4) All evidence that is relevant and reasonably available must be gathered and preserved, including documents, physical evidence, witness interviews and statements, photographs, and security videos.
(5) 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.
(h) Abuse, Neglect, or Exploitation Findings.
(1) In order to find that a person engaged in abuse, neglect, or exploitation, there must be a preponderance of evidence to establish the person engaged in conduct that meets the definition of abuse, neglect, or exploitation, including having done so with the required mental state.
(2) A person acts intentionally, or with intent, with respect to the nature of the person's conduct or the result of the conduct when it is the person's conscious objective or desire to engage in the conduct or to cause the result.
(3) A person acts knowingly, or with knowledge, with respect to the nature of the person's conduct or the result of the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with the respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
(4) A person acts recklessly, or is reckless, with respect to circumstances surrounding the person's conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
(5) A person acts with negligence when the person does something that an ordinarily prudent person exercising ordinary care would not have done under the same circumstances or fails to do something that an ordinarily prudent person in the exercise of ordinary care would have done.
(6) An investigation of potential abuse requires a finding of whether the subject intentionally, knowingly, or recklessly acted or failed to act; and, if so, whether the act caused emotional harm or physical injury to the youth or posed a significant and foreseeable risk of emotional harm or physical injury.
(7) An investigation of potential neglect requires a finding of whether the subject engaged in a negligent act or omission and, if so, whether the action or failure to act was a substantial factor in bringing about substantial emotional harm or physical injury to the youth or posed a significant and foreseeable risk of emotional harm or physical injury.
(8) An investigation of potential exploitation requires a finding of whether a youth or the resources of a youth were used for monetary or personal benefit, profit, or gain of the suspect and, if so, whether the use was illegal or improper.
(i) Investigative Report.
(1) Each investigation requires a written investigative report with the investigator's recommendations regarding whether the evidence is sufficient to establish that abuse, neglect, or exploitation occurred. The report must include a summary and analysis of the evidence relied upon in reaching the recommendations. Anything considered in the investigation, including, but not limited to, copies of relevant documents and photographs, must be attached to the investigative report.
(2) Investigations may include recommendations that findings of misconduct other than abuse, neglect, or exploitation be made if the misconduct is established by the evidence. However, the absence of such findings should not be regarded as exoneration of the subject or other employees as to policy violations or other misconduct indicated by the evidence.
(3) An attorney in the Office of General Counsel shall review the recommendations of each investigative report for legal sufficiency and, based on the evidence, shall make findings as to whether or not abuse, neglect, or exploitation occurred. The Office of General Counsel may request additional information or investigation by OIG if necessary to make a finding. The findings must be made before the results of the investigative report are finalized.
(j) Actions in Response to a Closed Investigative Report.
(1) Upon receipt of a closed investigative report, the chief local administrator must review the investigative 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 to file a complaint regarding the conduct of the investigation under §380.9353 of this chapter.
(2) If the chief local administrator disagrees with the findings, the chief local administrator may appeal in accordance with PRS.35.11.
(3) If the investigative finding confirms abuse, neglect, exploitation, or other wrongdoing occurred, the chief local administrator must take whatever actions are necessary and appropriate to rectify the wrong and prevent future harm under the same or similar circumstances, which may include disciplinary action.
(4) If the investigative findings indicate wrongdoing by a person no longer employed by TJJD, the chief local administrator must contact HR to determine if the person's rehire eligibility status should be changed.
(k) Standards for Compiling Investigation Information.
(1) The Office of Inspector General compiles information related to the number and nature of reports filed, case closure dispositions, the dates and locations of reported incidents, the average length of time required for investigations, and any significant trends. This information must 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, is prepared for periodic review and analysis by the TJJD executive staff and the Board.
(3) Periodic summaries of complaints and appeals regarding investigations conducted under this rule and the final decisions regarding the complaints or appeals are provided to the Board for review. The TJJD executive director or Board will take whatever action is determined to be appropriate with regard to the complaint to ensure the investigations are conducted properly.
(l) Confidentiality of Reports and Investigation Information.
(1) A report of suspected abuse, neglect, or exploitation and the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation or in providing services as a result of an investigation are confidential and may be disclosed only for purposes consistent with Chapter 261, Family Code, applicable federal or state law, and in accordance with this section.
(2) To the extent required by state or federal law, TJJD 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 TJJD during the period that the child is committed to TJJD; and
(B) TJJD is not prohibited by Chapter 552, Government Code, or other law from disclosing the report.
(3) 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 TJJD who is named in the report;
(C) the person who made the report; and
(D) any other person whose life or safety may be endangered by the disclosure.
(4) Notwithstanding any other provision permitting the release of information, TJJD will not disclose any record or information that, if released to the requestor, would interfere with an ongoing criminal investigation or prosecution.
(5) An investigative report regarding an investigation of an allegation of abuse, neglect, or exploitation will be provided to:
(A) a law enforcement agency or other criminal justice agency for purposes of investigation and prosecution, upon request; and
(B) a parent, guardian, managing conservator, or attorney representing 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.
(6) An investigative report and evidence gathered in the course of an investigation may be provided to appropriate TJJD staff for the determination of corrective actions, to the State Office of Administrative Hearings for the purpose of a certification action pursuant to Chapter 349 of this title, and pursuant to a Memorandum of Understanding adopted under §810.009, Health and Safety Code.
(7) An investigative report and evidence gathered in the course of an investigation may be provided to or made available to the subject of the investigation for use in an appeal of the investigation findings or to defend against a disciplinary action or other action arising from the investigation findings, including a certification action under Chapter 349 of this title.
(A) Investigative reports are confidential under Chapter 261, Family Code, and may be used by the subject of the investigation only for the appeal of investigation findings or to defend against a disciplinary action or certification action arising from an investigation.
(B) Names of individuals contained in the investigative report or related evidence will be redacted if the names are not necessary for the fair resolution of contested facts. Any information that is confidential by law will be redacted prior to delivery to the subject of the investigation.
(8) Copies of videotapes, audiotapes, and photographs may be provided to individuals or entities identified in paragraphs (5)-(7) of this subsection only if TJJD determines that the provision of a copy is essential to the investigation, prosecution, or resolution of a case. Otherwise, the individual will be provided access to review videotapes, audiotapes, and photographs only in areas designated by TJJD and at a time mutually convenient to TJJD and the requestor. When viewing or listening to these records, the requestor may not be accompanied by any individual who would not otherwise be entitled to have access to these records unless the participation of this individual is deemed by TJJD to be appropriate under the circumstances surrounding the request.
(9) TJJD shall withhold the release of any investigation records obtained from another source if the release of those records to the requestor is specifically prohibited under state or federal law. Information that may be withheld under this section includes, but is not limited to:
(A) all medical records subject to the Medical Practices Act, Chapter 159, Occupations Code, unless release to the requestor is authorized under that Act;
(B) HIV information unless release to the requestor is authorized under Chapter 81, Health and Safety Code;
(C) offense reports, criminal history information, and/or arrest records obtained from a law enforcement entity, unless their release to the requestor is specifically authorized under state or federal law; and
(D) adult or juvenile probation records, as well as records related to the taking into custody of a juvenile, unless release to the requestor is specifically authorized under state or federal law.
(m) Complaints. All complaints relating to investigations under this section shall be referred to the Board, as required by §261.403, Family Code.
(n) Periodic Audit of Investigations. Pursuant to Family Code §261.403, the Board ensures there is a periodic internal audit of procedures related to administrative investigations of alleged abuse, neglect, and exploitation.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406315
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130
DIVISION 1. BEHAVIOR MANAGEMENT
The Texas Juvenile Justice Department (TJJD) proposes amendments to §380.9503, Rules and Consequences for Residential Facilities.
SUMMARY OF CHANGES
Amendments to the section will include revising the due process procedure that is required to prove an allegation in cases where a Level II hearing is not required. Specifically, the changes will include: (1) assigning the name rule-violation review to this level of due process; (2) adding that the standard of proof is a preponderance of evidence; (3) adding that a rule-violation review may be held even if no disciplinary consequence is sought; (4) adding that the youth will be notified, rather than told, about which rule was allegedly violated and which consequence staff is considering, if any; (5) removing the statement that required staff to describe the information staff has that establishes the youth committed the alleged violation; (6) adding that the youth must be given the opportunity to review relevant evidence considered by staff and to present the youth's own evidence; and (7) adding that the results of a rule-violation review are not grievable through the youth grievance system, but they may be appealed to the facility administrator or designee on various grounds.
Amendments in other areas of the rule will include: (1) removing the statement that allowed a rule violation to be proven only via a Level I or Level II due process hearing and that limited a youth's disciplinary record to consist only of allegations proven in these types of hearings; (2) clarifying that, in addition to an incident report, any other document that describes conduct is also something that cannot be appealed or grieved; (3) adding that the results of hearings or rule-violation reviews, and not just disciplinary consequences, can be appealed; and (4) clarifying that the statement requiring appropriate due process before imposing consequences applies to disciplinary consequences.
FISCAL NOTE
Emily Anderson, Deputy Executive Director: Support Operations and Finance, has determined that, for each year of the first five years the amended section is in effect, there will be no significant fiscal impact for state government or local governments as a result of enforcing or administering the section.
PUBLIC BENEFITS/COSTS
Cameron Taylor, Senior Manager, Policy Division, has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of administering the section will be updated and streamlined procedures for addressing youth behaviors that constitute violations of the rules of conduct for residential facilities.
Ms. Anderson has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. 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 section.
GOVERNMENT GROWTH IMPACT
TJJD has determined that, during the first five years the section is in effect, the section will have the following impacts.
(1) The proposed section does not create or eliminate a government program.
(2) The proposed section does not require the creation or elimination of employee positions at TJJD.
(3) The proposed section does not require an increase or decrease in future legislative appropriations to TJJD.
(4) The proposed section does not impact fees paid to TJJD.
(5) The proposed section does not create a new regulation.
(6) The proposed section does not expand, limit, or repeal an existing regulation.
(7) The proposed section does not increase or decrease the number of individuals subject to the section's applicability.
(8) The proposed section will not positively or adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposal may be submitted within 30 days after publication of this notice to Texas Juvenile Justice Department, Policy and Standards Section, P.O. Box 12757, Austin, Texas 78711, or via email to policy.proposals@tjjd.texas.gov.
STATUTORY AUTHORITY
The amended section is proposed under §242.003, Human Resources Code, which requires the board to adopt rules appropriate to the proper accomplishment of TJJD's functions and to adopt rules for governing TJJD schools, facilities, and programs.
No other statute, code, or article is affected by this proposal.
§380.9503.Rules and Consequences for Residential Facilities.
(a) Purpose. This rule establishes the actions that constitute violations of the rules of conduct for 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, including a consideration of extenuating circumstances, shall be followed before imposing disciplinary consequences.
(b) Applicability. This rule applies to youth assigned to residential facilities operated by the Texas Juvenile Justice Department (TJJD).
(c) Definitions. The following terms, as used in this rule, have the following meanings unless the context clearly indicates otherwise.
(1) Attempt to Commit--a youth, with specific intent to commit a rule violation, engages in conduct that amounts to more than mere planning that tends but fails to effect the commission of the intended rule violation.
(2) Bodily Injury--physical pain, illness, or impairment of physical condition. Fleeting pain or minor discomfort does not constitute bodily injury.
(3) Direct Someone to Commit--occurs when:
(A) a youth communicates with another youth;
(B) the communication is intended to cause the other youth to commit a rule violation; and
(C) the other youth commits or attempts to commit a rule violation.
(4) Possession--actual care, custody, control, or management. It does not require the item to be on or about the youth's person.
(d) General Provisions.
(1) Formal incident reports are completed for alleged rule violations as required by internal operational procedures.
(2) A formal incident report is not proof that a youth
committed an alleged rule violation. An [Only rule
violations that are proven through a Level I or Level II due process
hearing in accordance with §380.9551 or §380.9555 of this
chapter, respectively, are considered proven and are considered a
part of a youth's disciplinary record. A formal] incident report or other document describing conduct is not something that
can be appealed or grieved [appealable or grievable];
only the results of a hearing or rule-violation review [disciplinary
consequences] may be appealed [or grieved], as provided below.
(3) When a youth is found to be in possession of prohibited money as defined in this rule, a Level II hearing is required to seize the money. Seized money shall be placed in the student benefit fund in accordance with §380.9555 of this chapter.
(4) This paragraph applies only to youth not on parole status who are alleged to have engaged in conduct classified as a first- or second-degree felony while in a residential facility operated by or under contract with TJJD. A Level II hearing shall be requested on these youth unless it is determined that, given all circumstances, a Level II hearing is not appropriate. Such decision shall be documented. If a requested Level II hearing is held and the allegation is proved, the youth shall be reviewed for the most restrictive setting appropriate, including the intervention program described by §380.9510 of this chapter.
(e) Disciplinary Consequences.
(1) Disciplinary consequences shall be established in writing in TJJD's procedural manuals. Appropriate disciplinary consequences may be imposed only if the consequences are established in writing in TJJD's procedural manuals prior to the occurrence of the conduct for which the consequence is issued.
(2) Disciplinary consequences may include, but are not limited to, the following:
(A) suspension of privileges;
(B) restriction from planned activities;
(C) trust-fund restriction; and
(D) disciplinary transfer to a high-restriction facility (available only for youth on institutional status in a medium-restriction facility).
(3) The following are prohibited as disciplinary consequences:
(A) corporal or unusual punishment;
(B) subjecting a youth to humiliation, harassment, or physical or mental abuse;
(C) subjecting a youth to personal injury;
(D) subjecting a 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 consequence;
(G) placement in the intervention program under §380.9510 of this chapter;
(H) disciplinary isolation; and
(I) extending a youth's stay in a TJJD facility.
(4) A Level II hearing is required before imposing a disciplinary consequence that materially alters a youth's living conditions, including disciplinary transfer from a medium-restriction facility to a high-restriction facility. TJJD's procedural manuals will specify which disciplinary consequences require a Level II hearing. Disciplinary consequences requiring a Level II hearing are considered major consequences.
(5) This paragraph applies only to youth in high-restriction
facilities. To impose a disciplinary consequence that does not require
a Level II hearing, a rule-violation review is required. A rule-violation
review is a process by which staff review evidence to determine whether
a rule violation occurred. A rule-violation review results in a finding
that the alleged violation is proven, the alleged violation is not
proven, or a different rule was violated than the one alleged. A rule
violation is proven if a preponderance of the evidence proves behavior
meeting the definition of a rule violation occurred. The following
steps are to be taken for every rule-violation review, regardless
of whether a consequence is sought: [If a Level II hearing
is not required, the following must occur before imposing disciplinary
consequences for a youth in a high-restriction facility:]
(A) a written description of the incident must be prepared;
(B) staff must notify [tell]
the youth which rule violation the youth allegedly committed [and
describe the information staff has that establishes the youth committed it];
(C) staff must notify [tell]
the youth which [what] disciplinary consequence(s)
staff is considering imposing, if any; [and]
(D) the youth must be given the opportunity to review the relevant evidence considered by staff and to present the youth's own relevant evidence; and
(E) [(D)] the youth must be given
the opportunity to address the allegation, including providing any
extenuating circumstances and information on the appropriateness of
the intended consequence(s).
(6) If a Level II hearing is not required, a Level III hearing must occur before imposing disciplinary consequences for a youth in a medium-restriction facility, in accordance with §380.9557 of this chapter.
(f) Review and Appeal of Consequences.
(1) All disciplinary consequences shall be reviewed for policy compliance by the facility administrator or designee within three calendar days after issuance. The reviewing staff shall not be the staff who issued the discipline.
(2) The reviewing staff may remove or reduce any disciplinary consequence determined to be excessive or not validly related to the nature or seriousness of the conduct.
(3) Youth may appeal disciplinary consequences issued through a Level II hearing by filing an appeal in accordance with §380.9555 of this chapter.
(4) Youth in medium-restriction facilities may appeal disciplinary consequences issued through a Level III hearing by filing an appeal in accordance with §380.9557 of this chapter.
(5) The findings and disposition from a rule-violation review are not grievable, but they may be appealed to the facility administrator or designee on the grounds that the youth did not commit the rule violation found proven during the review, that the consequence is not appropriate, or that the youth was not provided with the requisite notice or opportunity to be heard. If the result of a rule-violation review is overturned, that fact shall be documented appropriately.
[(5) Youth in high-restriction facilities
may grieve disciplinary consequences issued without a Level II hearing
by filing a grievance in accordance with §380.9331 of this chapter.]
(g) Major Rule Violations. It is a violation to knowingly commit, attempt to commit, direct someone to commit, or aid someone else in committing any of the following:
(1) Assault of Another Youth (No Injury)--intentionally, knowingly, or recklessly engaging in conduct with the intent to cause bodily injury to another youth but the conduct does not result in bodily injury.
(2) Assault of Staff (No Injury)--intentionally, knowingly, or recklessly engaging in conduct with the intent to cause bodily injury to a staff member, contract employee, or volunteer with the intent to cause injury but the conduct does not result in bodily injury.
(3) Assault Causing Bodily Injury to Another Youth--intentionally, knowingly, or recklessly engaging in conduct that causes another youth to suffer bodily injury.
(4) Assault Causing Bodily Injury to Staff--intentionally, 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 with specific intent to escape that amounts to more than mere planning that tends but 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-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) Failure to Comply with Electronic Monitoring Program Conditions (for Youth in Medium-Restriction Residential Placement)--failing to comply with one of the following conditions required by the youth's electronic monitoring program conditions:
(A) remain at the address listed at all designated times;
(B) follow curfew restriction as stated in the youth's conditions of placement or conditions of parole;
(C) remain at the approved placement while on electronic monitoring, going only to school, approved activities, religious functions, and medical/psychological appointments and then return to the approved placement, in accordance with the schedule identified in the conditions of placement or conditions of parole;
(D) wear the electronic monitoring device 24 hours a day;
(E) allow a TJJD staff member to enter the youth's residence to install, maintain, and inspect the device if required;
(F) notify the electronic monitoring officer as soon as possible within 24 hours if the youth experiences any problems with the electronic monitoring system; and
(G) charge the device daily for a minimum of one hour continuously in the morning and one hour continuously in the evening.
(11) 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.
(12) Fighting That Results in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that results in bodily injury.
(13) Fleeing Apprehension--running from or refusing to come to staff when called and such act results in disruption of facility operations.
(14) Misuse of Medication--using medication provided to the youth 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 engaging in conduct that poses a threat to persons or property and substantially disrupts the performance of facility operations or programs.
(16) Possessing, Selling, or Attempting to Purchase Ammunition--possessing, selling, or attempting to purchase ammunition.
(17) Possession of Prohibited Items--possessing the following prohibited items:
(A) cellular telephone;
(B) matches or lighters;
(C) jewelry, unless allowed by facility rules;
(D) money in excess of the amount or in a form not permitted by facility rules (see §380.9555 of this chapter 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.
(18) Possessing, Selling, or Attempting to Purchase a Weapon--possessing, selling, or attempting to purchase a weapon or an item that has been made or adapted for use as a weapon.
(19) Possession or Use of Prohibited Substances and Paraphernalia--possessing or using any unauthorized substance, including controlled substances or intoxicants, medications not prescribed for the youth by authorized medical or dental staff, alcohol, tobacco products, or related paraphernalia such as that used to deliver or make any prohibited substance.
(20) 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 shall be given water to drink and two hours to provide the sample.)
(21) Refusing a Search--refusing to submit to an authorized search of person or area.
(22) Repeated Non-Compliance with a Written, Reasonable Request of Staff (for Youth in Medium-Restriction Residential Placement)--failing on two or more occasions to comply with a specific written, reasonable request of staff. If the request requires the youth to do something daily or weekly, the two failures to comply must be within a 30-day period. If the request requires the youth to do something monthly, the two failures to comply must be within a 60-day period.
(23) Sexual Misconduct--intentionally or 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;
(C) kissing for sexual stimulation;
(D) exposing the anus, buttocks, breasts, or genitals to another or exposing oneself knowing the act is likely to be observed by another person; or
(E) masturbating in an open and obvious way, whether or not the genitals are exposed.
(24) Stealing--intentionally taking property with an estimated value of $100 or more from another without permission.
(25) Tampering with Monitoring Equipment--a youth intentionally or knowingly tampers with monitoring equipment assigned to any youth.
(26) 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.
(27) 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.
(28) 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.
(29) Unauthorized Absence--leaving a medium-restriction residential placement without permission or failing to return from an authorized leave.
(30) Vandalism--intentionally causing $100 or more in damage to state property or personal property of another.
(31) Violation of Any Law--violating a Texas or federal law that is not already defined as a major or minor rule violation.
(h) Minor Rule Violations. It is a violation to knowingly commit, attempt to commit, direct someone to commit, or aid someone else in committing 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;
(C) using profanity or engaging in disrespectful behavior toward staff or peers; or
(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 with an estimated value under $100 from another without permission.
(14) Threatening Others--making verbal or physical threats toward another person or persons.
(15) Unauthorized Physical Contact with Another Youth (No Injury)--intentionally making unauthorized physical contact with another youth without the intent to cause injury and that does not cause injury, such as, but not limited to, pushing, poking, or grabbing.
(16) Unauthorized Physical Contact with Staff (No Injury)--intentionally making unauthorized physical contact with a staff member, contract employee, or volunteer without the intent to cause injury and that does not cause injury, such as, but not limited to, pushing, poking, and grabbing.
(17) Undesignated Area--being in any area without the appropriate permission to be in that area.
(18) Vandalism--intentionally causing less than $100 in damage to state or personal property.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 27, 2024.
TRD-202406316
Jana Jones
General Counsel
Texas Juvenile Justice Department
Earliest possible date of adoption: February 9, 2025
For further information, please call: (512) 490-7130