TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 6. TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CHAPTER 151. GENERAL PROVISIONS

37 TAC §151.51

The Texas Board of Criminal Justice proposes amendments to §151.51, concerning Custodial Officer Certification and Hazardous Duty Pay Eligibility Guidelines. The amendments are proposed in conjunction with a proposed rule review of §151.51 as published in other sections of the Texas Register. The proposed amendments are necessary to clarify the intent of the rule and update formatting.

Jerry McGinty, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.

Mr. McGinty has also determined that for each year of the first five year period, there will not be an economic impact on persons required to comply with the rule. There will not be an adverse economic impact on small or micro businesses. Therefore, no regulatory flexibility analysis is required. The anticipated public benefit, as a result of enforcing the rule, will be to update the existing rule.

Comments should be directed to Sharon Felfe Howell, General Counsel, Texas Department of Criminal Justice, P.O. Box 4004, Huntsville, Texas 77342, Sharon.Howell@tdcj.texas.gov. Written comments from the general public must be received within 30 days of the publication of this rule in the Texas Register.

The amendments are proposed under Texas Government Code §§492.013, 508.001, 615.006, 811.001, 813.506, 815.505, Subchapter L of Chapter 659; and the General Appropriations Act, Acts 2015, 84th Leg., R.S., ch. 1281, art. V, Department of Criminal Justice, Rider 15.

Cross Reference to Statutes: None.

§151.51.Custodial Officer Certification and Hazardous Duty Pay Eligibility Guidelines.

(a) Purpose. The purpose of this rule [section ] is to establish eligibility criteria for authorizing custodial officer certification and hazardous duty pay to employees of the Texas Department of Criminal Justice (TDCJ)[,] under the authority of Texas Government Code §§508.001, 615.006, 811.001, 813.506, and 815.505; and the General Appropriations Act.

(b) Definitions. The following words and terms, when used in this rule [section], shall have the following meanings unless the context clearly indicates otherwise:

(1) Custodial Officer Certification is service certification to the Employees Retirement System of Texas (ERS) for employees the TDCJ has determined are eligible for custodial officer service credit, which provides an additional retirement incentive when such employees have 20 or more years of [such] service credit.

(2) Custodial Officer Service Credit is credit in the ERS for service performed by employees [an employee who is] in a position that has been classified as a Hazardous Duty Code 1, 2, 3, 4, 6, 7, or 9 in accordance with [the provisions of] this rule [section].

(3) Direct Offender Contact is interacting with, and in the close proximity to, offenders without the protection of bars, doors, security screens, or similar devices while performing job duties. Such contact normally involves supervision or the potential for supervision of offenders in offender housing areas, educational or recreational facilities, industrial shops, kitchens, laundries, medical areas, maintenance departments, agricultural shops or fields, or in any other areas on or away from TDCJ property.

(4) Move is a change in position that may consist of a lateral transfer, promotion, voluntary demotion, or involuntary demotion.

(5) Offender, for the purpose of custodial officer certification and hazardous duty pay, is an individual confined in a TDCJ facility [institution].

(6) Releasee is an individual who has been released on parole or to mandatory supervision.

(7) Routine Direct Offender Contact is [direct offender contact that is] regularly planned or scheduled direct offender contact while conducting TDCJ business. Routine direct offender contact does not include travel time, unless the employees are [employee is] responsible for the transportation and custody of offenders.

(c) Procedures.

(1) Custodial Officer Certification. Employees in one of the following positions are eligible for custodial officer certification:

(A) Hazardous Duty Code 1 [Positions]. These positions are classified as correctional officer I through warden II.

(B) Hazardous Duty Code 2 [Positions]. These positions include all positions assigned to a unit, other than Hazardous Duty Code 1 positions, with job duties that require routine direct offender contact. Examples [of such positions] include[, but are not limited to]: agriculture specialists, maintenance supervisors, food service managers, laundry managers, classification case managers, and commissary managers.

(C) Hazardous Duty Code 3 [Positions]. These positions are assigned to administrative employees whose job duties require routine direct offender contact at least 50% of the time. Examples [of such positions] include[, but are not limited to]: investigators, compliance monitors, and accountants routinely required to audit unit operations.

(i) A request to include a position in this category shall be submitted to the deputy executive director for approval.

(ii) Employees in such positions and supervisors of such employees shall complete and submit a Hazardous Duty Log in accordance with TDCJ procedures [in order] to justify custodial officer certification.

(D) Hazardous Duty Code 4 [Positions]. These positions include administrative employees who [positions that] routinely respond to emergency situations involving offenders. Examples include[, but are not limited to]: the executive director, deputy executive director, Correctional Institutions Division [(CID)] director[, other division directors,] and any other positions approved [as deemed necessary and prudent] by the deputy executive director. [A request to include a position in this category shall be submitted to the deputy executive director for approval.]

(E) Hazardous Duty Code 6. [Positions. Employees in such positions and supervisors of such employees shall complete and submit a Hazardous Duty Log in accordance with TDCJ procedures in order to justify custodial officer certification.] These positions are filled by employees whose custodial officer certifications are grandfathered. When employees move from Hazardous Duty Code 6 positions, the positions will be automatically converted to longevity pay. Grandfathered custodial officer certifications are based on the following criteria [in accordance with Senate Bill 1231, 74th Legislature]:

(i) On August 31, 1995, the employees were assigned to [a] Hazardous Duty Code 3 positions [position]; and

(ii) The employees continue to have some routine direct offender contact although it is less than 50% routine direct offender contact.

(iii) Employees in such positions and supervisors of such employees shall complete and submit a Hazardous Duty Log in accordance with TDCJ procedures to justify custodial officer certification.

(F) Hazardous Duty Code 7 [Positions]. These positions include:

(i) Parole officers; and

(ii) Other positions within the Parole Division or assigned to the Board of Pardons and Paroles which have a majority of assigned duties that include assessment of risks and needs, investigation, case management, and supervision of releasees to ensure that releasees comply [are complying] with the conditions of parole or mandatory supervision. Positions [It] also include [includes] those who directly supervise or are in a direct line of supervision over these employees.

(G) Hazardous Duty Code 9. [Positions. Employees in such positions and the supervisors of such employees shall complete and submit an Emergency Response Log in accordance with TDCJ procedures in order to justify custodial officer certification. ] These positions are filled by employees whose custodial officer certifications are grandfathered. Custodial [Employees' custodial] officer certifications shall remain grandfathered as long as the employees remain in Hazardous Duty Code 9 positions. When the employees move from Hazardous Duty Code 9 positions, the positions shall be automatically converted to longevity pay. Grandfathered [Employees' grandfathered] custodial officer certifications are based on the following criteria:

(i) On August 31, 1995, the employees were assigned to positions [a position] authorized for custodial officer certification and hazardous duty pay; and

(ii) The employees have been designated as members of an Emergency Response Team that may respond to emergency situations involving offenders.

(iii) Employees in such positions and the supervisors of such employees shall complete and submit an Emergency Response Log in accordance with TDCJ procedures to justify custodial officer certification.

(2) Hazardous Duty Pay Authorized Positions. In addition to the employees described in subsection (c)(1) of this rule [section], employees in the following positions may receive hazardous duty pay:

(A) Employees in positions authorized for custodial officer certification;

(B) Employees in Hazardous Duty Code 8 [Positions]. These positions are assigned to the Parole Division or the Board of Pardons and Paroles and do not meet the criteria for Hazardous Duty Code 7. Employees in these positions have routine direct contact with offenders in [of] a penal or correctional facility [institution] or with administratively released offenders subject to the jurisdiction or supervision of the Parole Division. Examples [of such positions] include[, but are not limited to]: clerks and[,] administrative assistants[, and laboratory technicians] assigned to parole [Parole] field offices.

(3) Each month, the TDCJ shall certify to the ERS the names of the employees and any other information determined and prescribed by the ERS as necessary for the crediting of custodial officer service and financing of benefits [under Texas Government Code §813.506].

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 February 13, 2017.

TRD-201700588

Sharon Howell

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: March 26, 2017

For further information, please call: (936) 437-6700