TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT

CHAPTER 343. SECURE JUVENILE PRE-ADJUDICATION DETENTION AND POST-ADJUDICATION CORRECTIONAL FACILITIES

SUBCHAPTER B. PRE-ADJUDICATION AND POST-ADJUDICATION SECURE FACILITY STANDARDS

37 TAC §343.230, §343.266

The Texas Juvenile Justice Department (TJJD) proposes amendments to §343.230, concerning Specialized Housing, and §343.266, concerning Bedding.

The amendment to §343.230 will remove the subsection that addresses temporary removal of mattresses. The information in that subsection will be modified and moved to §343.266.

The amended §343.266 will: 1) clarify that a fitted sheet may be issued instead of a mattress cover; 2) clarify that the clean linens that must be issued at least once every seven days include a mattress cover (or fitted sheet), sheet, blanket, and pillowcase; 3) add that a mattress cover, pillow, and/or pillowcase (in addition to a sheet) may be removed and substituted with a blanket if the resident has misused the item(s) or if staff have reason to believe the resident will misuse the item(s); and 4) add a provision that allows any bedding items (i.e., mattress, pillow, and/or linens) to be removed during program hours from a room or cell that is currently being used for disciplinary seclusion, safety-based seclusion, or resident-initiated separation, regardless of whether there is a specific behavioral or safety-related reason to remove them.

Additionally, the amendment to §343.266 will modify the information currently found in §343.230 regarding temporary removal of mattresses from any type of specialized housing room/cell. The modified rule text will: 1) clarify that using the mattress in a manner that presents a threat to safety or security is grounds for removing the mattress (rather than using the mattress for an unintended purpose); 2) add that the reason for removing a resident's mattress must be documented; and 3) remove the following reason from the list of reasons a mattress may be removed--a resident has exhibited a documented pattern of disruptive behavior in an effort to be assigned to specialized housing to avoid educational instruction.

FISCAL NOTE

Mike Meyer, Chief Financial Officer, 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 or local government as a result of enforcing or administering the sections.

PUBLIC BENEFITS/COSTS

Terri Dollar, Director of Monitoring and Inspections, has determined that for the first five years the amended sections are in effect, the public benefit anticipated as a result of administering the sections will be the promotion of the rehabilitative goals of secure pre- and post-adjudication facilities and successful youth outcomes by encouraging youth to participate in programming. Another anticipated public benefit is the provision of clarifications to the rule text.

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

PUBLIC COMMENTS

Comments on the proposal may be submitted within 30 days after publication of this notice to Steve Roman, Policy Coordinator, Texas Juvenile Justice Department, P.O. Box 12757, Austin, Texas 78711, or email to policy.proposals@tjjd.texas.gov.

STATUTORY AUTHORITY

The amended sections are proposed under §221.004(a)(4), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of public and private juvenile pre-adjudication and post-adjudication secure facilities.

No other statute, code, or article is affected by this proposal.

§343.230.Specialized Housing.

(a) A resident in specialized housing must [shall] be placed in a room or cell equipped with:

(1) an operable toilet above floor level;

(2) a washbasin with hot and cold running water or a single control that produces warm water;

(3) a bed above floor level; and

(4) access to natural light as described in §343.226 of this title.

(b) Rooms or cells used for specialized housing must [shall] meet the spatial requirements in:

(1) §343.452 and §343.644 of this title if the room or cell is in a single-occupancy housing unit; or

(2) §343.474 and §343.656 of this title if the room or cell is in a multiple-occupancy housing unit.

[(c) The mattress may be temporarily removed from a specialized housing room or cell if the resident:]

[(1) is actively damaging or destroying the mattress;]

[(2) is using the mattress for an unintended purpose (e.g., obstructing a doorway or window, folding to use as a makeshift stepstool, etc.); or]

[(3) has exhibited a documented pattern of disruptive behavior in an effort to be assigned to specialized housing to avoid educational instruction.]

§343.266.Bedding.

(a) Required Items.

(1) [(a)] Each resident must [shall] be provided: [suitable, clean bedding, including one]

(A) a mattress;

(B) a mattress cover or fitted sheet;

(C) a sheet;[,]

(D) a blanket;

(E) a pillow; and[,]

(F) a pillowcase[, a mattress, a mattress cover, and a blanket].

(2) A mattress [Mattresses] with an integrated pillow may be substituted for a separate pillow and pillowcase.

(3) All bedding items listed in paragraph (1) of this subsection must be clean and in good condition.

(4) [(b)] A clean mattress cover (or fitted sheet), sheet, blanket, and pillowcase must [ Clean bed linens shall] be issued at least once every seven calendar days.

(b) [(c)] Modifications for Residents on Suicide Supervision. Modifications to a resident's bedding items may be made in accordance with §343.340 of this title. However, residents on suicide supervision may [shall ] not be denied appropriate bedding substitutions.

(c) Misuse of Bedding Items.

(1) [(d)] If a [the] resident has misused a sheet, fitted sheet, mattress cover, pillow, or pillowcase [bed linens] or if staff have reason to believe the resident will misuse these bedding items, such as [the bed linens, including] using a sheet [the sheet(s)] as a weapon, the items [sheet(s)] may be substituted with a blanket.

(2) If a substitution is authorized, the resident's misuse of the bedding item or the staff's reason to believe the resident will misuse the bedding item must be documented. [The actual misuse or reason to believe the resident will misuse the linens shall be documented.]

(d) Misuse of Mattress in Specialized Housing.

(1) A mattress may be temporarily removed from a specialized housing room or cell if evidence exists that the resident is:

(A) actively damaging the mattress; or

(B) using the mattress in a manner that presents a threat to safety or security, including, but not limited to, obstructing a doorway or window or folding the mattress to use as a makeshift stepstool.

(2) If a resident's mattress is removed under paragraph (1) of this subsection, the reason for the removal must be documented.

(e) Modifications for Residents in Disciplinary Seclusion, Safety-Based Seclusion, or Resident-Initiated Separation. Any or all of the bedding items listed in subsection (a)(1) of this section may be removed from a room or cell currently being used for disciplinary seclusion, safety-based seclusion, or resident-initiated separation whether or not the criteria in subsection (b), (c), or (d) of this section are present. However, unless the criteria in subsection (b), (c), or (d) of this section are present, all bedding items must be returned to the resident and be available for use during all non-program hours.

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 July 26, 2017.

TRD-201702801

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: September 10, 2017

For further information, please call: (512) 490-7014


CHAPTER 349. GENERAL ADMINISTRATIVE STANDARDS

SUBCHAPTER D. COMPLAINTS AGAINST JUVENILE BOARDS

37 TAC §349.410

The Texas Juvenile Justice Department (TJJD) proposes an amendment to §349.410, concerning Administrative Review and Appeal of Investigation Findings.

The amended rule will remove the provision that allows the designated perpetrator or administrative designee to submit an appeal to the State Office of Administrative Hearings to challenge the findings of TJJD's administrative review.

FISCAL NOTE

Mike Meyer, Chief Financial Officer, 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 or local government as a result of enforcing or administering the section.

PUBLIC BENEFITS/COSTS

Kaci Singer, Staff Attorney and Policy Supervisor, has determined that for the first five years the amended section is in effect, the public benefit anticipated as a result of administering the section will be the promotion of efficiency in state government by eliminating the possibility of holding two administrative hearings on the same subject matter.

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

PUBLIC COMMENTS

Comments on the proposal may be submitted within 30 days after publication of this notice to Steve Roman, Policy Coordinator, Texas Juvenile Justice Department, P.O. Box 12757, Austin, Texas, 78711, or e-mailed to policy.proposals@tjjd.texas.gov.

STATUTORY AUTHORITY

The amended section is proposed under §2001.004, Government Code, which requires TJJD to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. The amended section is also proposed under §261.401, Family Code, which requires TJJD to adopt rules relating to the investigation and resolution of reports that involve alleged abuse, neglect, or exploitation of a child.

No other statute, code, or article is affected by this proposal.

§349.410.Administrative Review [and Appeal] of Investigation Findings.

(a) Any person named by the Texas Juvenile Justice Department (TJJD) as a designated perpetrator or administrative designee as a result of an investigation conducted under Chapter 350 of this title may request an administrative review of the investigation findings.

(b) The designated perpetrator or administrative designee must [shall] request the review in writing within 20 calendar days 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 a designated perpetrator or administrative designee requests an administrative review, or if such proceedings are initiated before TJJD begins the review, TJJD may postpone the review until the proceedings are completed.

(d) The designated perpetrator or administrative designee has a right to:

(1) represent himself/herself or be represented by an authorized representative; and

(2) submit relevant evidence on his/her behalf.

(e) If TJJD chooses to interview a designated perpetrator or administrative designee who does not speak English or is hearing impaired, TJJD provides [shall provide] a certified translator or interpreter unless the designated perpetrator or administrative designee chooses to provide his/her own certified translator or interpreter. If the designated perpetrator or administrative designee chooses to provide his/her own certified translator or interpreter, the designated perpetrator or administrative designee is [he/she will be] responsible for all translation or interpretation costs incurred in connection with the review.

(f) The administrative review is [shall be] conducted by a staff attorney appointed by the TJJD general counsel. The staff attorney confirms or revises [shall confirm or revise] TJJD's original notice of the investigation findings based on the same policies applied by TJJD during the original investigation. Within 45 calendar days after receiving the request for review, TJJD notifies [shall notify] the designated perpetrator or administrative designee of the outcome of the review.

[(g) An administrative designee may appeal the findings of the administrative review to the State Office of Administrative Hearings (SOAH). To file such an appeal, the administrative designee must submit a written request to TJJD within 20 calendar days after the date TJJD mailed the findings of the administrative review to the administrative designee. A designated perpetrator may appeal the findings of the administrative review to SOAH only in conjunction with discipline issued by TJJD.]

(g) [(h)] If the administrative review [or SOAH hearing] results in changes to the original findings, TJJD [staff] must:

(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.

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 July 26, 2017.

TRD-201702802

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: September 10, 2017

For further information, please call: (512) 490-7014