PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT
CHAPTER 380. RULES FOR STATE-OPERATED PROGRAMS AND FACILITIES
SUBCHAPTER E. BEHAVIOR MANAGEMENT AND YOUTH DISCIPLINE
DIVISION 1. BEHAVIOR MANAGEMENT
37 TAC §380.9503
The Texas Juvenile Justice Department (TJJD) adopts amendments to §380.9503, concerning Rules and Consequences for Residential Facilities, with changes to the proposed text as published in the March 29, 2013, issue of the Texas Register (38 TexReg 2087). Changes are described below in the agency's responses to public comments.
The amended rule allows a youth's stage in the TJJD rehabilitation program to be demoted for any major rule violation proven through a Level II due process hearing. This consequence is no longer limited to serious sexual misconduct, assault causing serious bodily injury, and violations eligible for referral to the Phoenix program.
Pursuant to Government Code §2001.036, TJJD has determined that an expedited effective date is necessary due to the potential for imminent peril to the safety and welfare of the youth and staff in TJJD facilities. Specifically, the agency has documented a significant increase in youth assaultive behaviors in recent years. The changes in rule are intended to curb this trend by allowing youth to receive immediate consequences for aggressive behavior, which is anticipated to act as a deterrent to youth, thus protecting the safety and welfare of youth and staff in TJJD facilities. The rule shall take effect immediately upon filing the adoption notice with the Office of the Secretary of State.
TJJD held a public hearing on April 22, 2013, and received verbal and written comments from Disability Rights Texas. A summary of the comments and the agency's responses are provided below.
Comment: The proposed changes in subsection (d)(7) delete the language requiring a "non-involved" staff to determine whether to hold a Level II hearing. It appears the intent of the proposed changes is to transfer the responsibility for recommending whether to conduct a Level II hearing to the superintendent or his or her designee. To ensure the integrity of the investigation, we recommend clarifying that the designated person responsible for conducting the investigation and making the recommendation as to whether to proceed with a hearing cannot have been involved in the incident.
Response: In the existing rule and the proposed rule, the facility administrator or designee is responsible for deciding whether to hold a Level II hearing. TJJD is not proposing any changes to this responsibility. However, this rule is not intended to establish procedural requirements for requesting and approving Level II hearings. These procedural requirements are addressed in 37 TAC §380.9555. No changes were made to the proposed rule text as a result of this comment.
Comment: Students with disabilities should not have their stage demoted for behavior caused by their disability. For such students, TJJD should consider two options. The first option is to mirror provisions in the Individuals with Disabilities Education Act (IDEA) that require manifestation determinations so that Level II hearings will analyze whether the youth's behavior was caused by or had a direct and substantial relationship to their disability. If this connection exists, the rule should exclude stage demotion as a possible consequence. The second option is to define the term "extenuating circumstances" to include behavior that is caused by or directly and substantially related to the youth's disability.
Response: TJJD agrees that a youth's disability should be taken into consideration when determining consequences, as allowed by current rules and practices concerning extenuating circumstances. TJJD disagrees that behavior caused by or directly and substantially related to a disability should automatically preclude using stage demotion as a consequence for major violations of facility rules. No changes were made to the proposed rule text as a result of this comment.
Comment: The rule should contain an exception for the violation of "Possession of Prohibited Items" for youth who used or intended to use the item to engage in self-harming behavior. Because such behavior is clearly a manifestation of disability, the rule should disallow stage demotions as a possible consequence.
Response: TJJD believes self-harming behavior may or may not be a manifestation of a youth's disability. Current rules governing Level II due process hearings provide a means for determining whether a youth's disability should be considered an extenuating circumstance. No changes were made to the proposed rule text as a result of this comment.
Comment: The agency should re-examine whether "Assault - Unauthorized Physical Contact with Another Youth (No Injury)" should result in a stage demotion as it does not entail intentional conduct.
Response: TJJD inadvertently omitted the word "intentionally" from the definition of this rule violation. In practice, intent is a required element to prove an allegation of Assault - Unauthorized Physical Contact with Another Youth (No Injury). The adopted rule text includes the word "intentionally" in subsection (i)(1).
The amended section is adopted under Human Resources Code §242.003, which authorizes TJJD to make rules appropriate to the proper accomplishment of its functions and to govern the schools, facilities, and programs operated by TJJD.
§380.9503.Rules and Consequences for Residential Facilities.
(a) Purpose. The purpose of this rule is to establish the actions that constitute violations of the rules of conduct 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, must be followed before imposing consequences.
(b) Applicability. This rule applies to youth assigned to a residential facility.
(c) Definitions. The following terms, as used in this rule, have the following meanings.
(1) Bodily Injury--physical pain, illness, or impairment of physical condition. Fleeting pain or minor discomfort does not constitute bodily injury.
(2) Multi-Disciplinary Team--has the meaning assigned by §380.8501 of this title.
(3) Residential Facility--includes high and medium restriction residential placements.
(4) Attempting to Commit--engaging in conduct that amounts to more than mere planning, but failing to commit the intended rule violation.
(5) Serious Bodily Injury--bodily injury which involves:
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(d) General Provisions.
(1) Rules in this policy may be restated or otherwise adapted to accommodate a particular program to help clarify expected behavior in that program. All adapted or restated rules must remain consistent with the general rules of conduct.
(2) The rules of conduct must be posted in a visible area accessible to youth in each facility and program.
(3) Repeated violations of any rule of conduct may result in more serious disciplinary consequences.
(4) Youth may be issued more than one disciplinary consequence for a rule violation proven in a Level II or III due process hearing held in accordance with §380.9555 or §380.9557 of this title, respectively.
(5) Major rule violations require the completion of a formal incident report.
(6) A youth's disciplinary record consists only of rule violations that are proven through a Level I or II due process hearing in accordance with §380.9551 or §380.9555 of this title, respectively.
(7) An appropriate investigation must be started within 24 hours after a report of a major rule violation or a minor rule violation resulting in a referral to the security unit. Based on available evidence, the superintendent or designee must determine whether to hold a Level II due process hearing in order to pursue major consequences and/or placement of the violation on the youth's disciplinary record.
(8) When a youth is found to be in possession of prohibited money as defined in this rule, a Level II due process hearing is required to seize the money. Seized money must be placed in the student benefit fund in accordance with §380.9555 of this title.
(9) Except as noted in paragraph (9) of this subsection, minor rule violations must be documented on the appropriate activity log. A formal incident report is not required.
(10) A minor rule violation that escalates to the point that the current program/activity cannot continue due to the disruption or that poses a substantial risk to personal safety or facility security must be documented on a formal incident report. In high restriction facilities, this type of minor rule violation also includes a referral to the security unit.
(11) Any time a formal incident report is prepared for an alleged rule violation, a copy of the incident report must be given to the youth within 24 hours after the alleged violation.
(12) Although certain rule violations may not result in immediate disciplinary consequences, a rule violation proven through a Level II due process hearing may be considered upon expiration of the youth's minimum length of stay in determining whether a youth is in need of additional rehabilitation.
(13) Each multi-disciplinary team must review all privilege suspensions for youth on its caseload at least once per week. The multi-disciplinary team may:
(A) lessen the duration of the suspension or allow the youth to accrue certain privileges for use after the period of suspension is complete as an incentive to display positive behavior; or
(B) extend (one time only) or modify an on-site privilege suspension issued by direct care staff if warranted by the youth's behavior.
(e) Consequences for High Restriction Facilities.
(1) Major Disciplinary Consequences.
(A) Placement in the Phoenix Program--in accordance with §380.9535 of this title, a youth may be placed in the Phoenix program when it is found that the youth engaged in certain aggressive behavior.
(B) Major Suspension of Privileges--a youth has all privileges suspended for 30 calendar days from the date of the hearing. This consequence may be issued only for minor rule violations resulting in a referral to the security unit or major rule violations, and only if the rule violation is proven through a Level II due process hearing in accordance with §380.9555 of this title.
(C) Loss of Transition Eligibility--a youth who has not completed the minimum length of stay serves an additional month in high restriction facilities prior to becoming eligible for transition to a medium restriction facility under §380.8545 of this title. This consequence may only be issued if it is proven through a Level II due process hearing that the youth committed:
(i) assault causing bodily injury to youth or staff, as defined in subsection (i)(3) - (4) of this section; or
(ii) sexual misconduct as defined in subsection (i)(21)(A) - (B) of this section.
(D) Stage Demotion--a youth's assigned stage in the agency's rehabilitation program is lowered by one or more stages. This consequence may be issued only if it is proven through a Level II due process hearing that the youth committed a major rule violation.
(2) Minor Disciplinary Consequences.
(A) Suspension of Privileges by Multi-Disciplinary Team--a youth has one or more privileges removed for up to 14 calendar days from the date of the multi-disciplinary team meeting or has his/her privileges adjusted to those associated with a lower stage until the next scheduled meeting. This consequence may be issued for major or minor rule violations. In order to issue this consequence, the multi-disciplinary team must:
(i) meet with the youth to discuss the youth's behavior and potential consequences;
(ii) consider any on-site suspension of privileges already imposed for the behavior; and
(iii) document the discussion of the youth's conduct and consequence imposed.
(B) On-Site Suspension of Privileges--a youth has one specific privilege removed for up to seven calendar days from the date of the violation or all privileges removed for up to three calendar days. This consequence may be issued by a staff member with direct supervisory responsibility for the youth after witnessing a major or minor rule violation. This consequence should be issued only after non-disciplinary interventions have been attempted. The staff member must document the conduct and consequence and discuss the consequence and the reasons for it with the youth.
(f) Consequences for Medium Restriction Facilities.
(1) Major Consequences.
(A) Disciplinary Transfer--a youth assigned to a medium restriction facility is transferred to a high restriction facility. Disciplinary transfer may be issued only for major rule violations that are proven through a Level II due process hearing in accordance with §380.9555 of this title. This consequence does not apply to youth who are on parole status in a medium restriction facility.
(B) Placement in the Phoenix Program--in accordance with §380.9535 of this title, a youth on institutional status may be transferred to a high restriction facility and placed in the Phoenix program when the youth has been found to have engaged in certain aggressive behavior.
(C) Major Suspension of Privileges--a youth has all privileges suspended for 30 calendar days from the date of the hearing. This consequence may be issued only for major rule violations that are proven through a Level II due process hearing.
(D) Stage Demotion--a youth's assigned stage in the agency's rehabilitation program is lowered by one or more stages. This consequence may be issued only if it is proven through a Level II due process hearing that the youth committed a major rule violation.
(2) Minor Consequences. Minor disciplinary consequences include but are not limited to consequences described in this paragraph. Minor consequences may only be imposed following a Level III due process hearing held in accordance with §380.9557 of this title.
(A) Privilege Suspension--a suspension of one or more privileges for no more than 14 calendar days.
(B) Community Service Hours--disciplinary assignment of up to 40 hours in an approved community service assignment.
(C) Trust Fund Restriction--youth is restricted from accessing his/her accrued personal funds for up to seven calendar days.
(D) Facility Restriction--youth is restricted for up to 48 hours from participating in any activity outside the assigned placement other than approved constructive activities.
(g) Review and Appeal of Consequences.
(1) All minor disciplinary consequences issued by staff other than the youth's multi-disciplinary team must be reviewed for policy compliance by the youth's assigned case manager or dorm supervisor within one workday of issuance. All minor consequences issued by the youth's multi-disciplinary team must be reviewed for policy compliance and consistency by the facility administrator or designee.
(2) The facility administrator or designee:
(A) must review any minor consequence issued for longer than 24 hours within 24 hours after issuance of the consequence; and
(B) may overturn or modify any privilege suspension determined to be excessive or not validly related to the nature or seriousness of the conduct.
(3) Youth may appeal major disciplinary consequences by filing an appeal in accordance with §380.9551 or §380.9555 of this title.
(h) Placement Disposition Options. In accordance with §380.9517 of this title, youth in high restriction facilities may be placed in the Redirect program when the youth is found to have engaged in certain major rule violations. Placement in the Redirect program is not a disciplinary consequence.
(i) Major Rule Violations. It is a violation to knowingly commit, attempt to commit, or help someone else commit any of the following:
(1) Assault - Unauthorized Physical Contact with Another Youth (No Injury)--intentionally making unauthorized physical contact with another youth that does not result in bodily injury, such as, but not limited to, pushing, poking, and grabbing.
(2) Assault - Unauthorized Physical Contact with Staff (No Injury)--intentionally making unauthorized physical contact with a staff member, contract employee, or volunteer that does not result in bodily injury, such as, but not limited to, pushing, poking, and grabbing.
(3) Assault Causing Bodily Injury to Another Youth--intentionally and knowingly or recklessly engaging in conduct that causes another youth to suffer bodily injury.
(4) Assault Causing Bodily Injury to Staff--intentionally and knowingly or recklessly engaging in conduct that causes a staff member, contract employee, or volunteer to suffer bodily injury.
(5) Attempted Escape--committing an act that amounts to more than mere planning but that fails to effect an escape.
(6) Chunking Bodily Fluids--causing a person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, and/or feces of another with the intent to harass, alarm, or annoy another person.
(7) Distribution of Prohibited Substances--distributing or selling any prohibited substances or items.
(8) Escape--leaving a high or medium restriction residential placement without permission or failing to return from an authorized leave.
(9) Extortion or Blackmail--demanding or receiving favors, money, actions, or anything of value from another in return for protection against others, to avoid bodily harm, or in exchange for not reporting a violation.
(10) Fighting Not Resulting in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that does not result in bodily injury.
(11) Fighting that Results in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that results in bodily injury.
(12) Fleeing Apprehension--running from or refusing to come to staff when called and such act results in disruption of facility operations.
(13) Two or More Failures to Comply with Written, Reasonable Request (for Youth in Medium Restriction Residential Placement)--failing on two or more occasions to comply with a written, reasonable request of staff. If the expectation is daily or weekly, the two failures to comply must be within a 30-day period. If the expectation is monthly, the two failures to comply must be within a 90-day period.
(14) Misuse of Medication--using medication provided to the juvenile by authorized personnel in a manner inconsistent with specific instructions for use, including removing the medication from the dispensing area.
(15) Participating in a Major Disruption of Facility Operations--intentionally participating with two (2) or more persons in conduct that poses a threat to persons or property and substantially disrupts the performance of facility operations or programs.
(16) Possession of Prohibited Items--possessing the following prohibited items:
(A) cellular telephone;
(B) matches or lighters;
(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 title for procedures concerning seizure of such money);
(F) items which have been fashioned to produce tattoos or body piercing;
(G) cleaning products when the youth is not using them for a legitimate purpose; or
(H) other items that are being used inappropriately in a way that poses a danger to persons or property or threatens facility security.
(17) Possession of a Weapon--possessing a weapon or item(s) which has been made or adapted for use as a weapon.
(18) Possession or Use of Prohibited Substances and Paraphernalia--possessing or using any unauthorized substance, including controlled substances or intoxicants (including alcohol and tobacco), medications not prescribed for the juvenile by authorized medical or dental staff, tobacco products, similar intoxicants, or related paraphernalia such as that used to deliver or make any prohibited substance.
(19) Refusing a Drug Screen--refusing to take a drug screen when requested to do so by staff or tampering with or contaminating the urine sample provided for a drug screen. (Note: If the youth says he/she cannot provide a sample, the youth must be given water to drink and two hours to provide the sample.)
(20) Refusing a Search--refusing to submit to an authorized search of person or area.
(21) Sexual Misconduct--intentionally and knowingly engaging in any of the following:
(A) causing contact, including penetration (however slight), between the penis and the vagina or anus; between the mouth and penis, vagina or anus; or penetration (however slight) of the anal or genital opening of another person by hand, finger or other object;
(B) touching or fondling, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person;
(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.
(22) Stealing--intentionally taking property from another without permission and the property has an estimated value of $100 or more.
(23) Tampering with Safety Equipment--intentionally tampering with, damaging, or blocking any device used for safety or security of the facility. This includes, but is not limited to, any locking device or item that provides security access or clearance, any fire alarm or fire suppression system or device, video camera, radio, telephone (when the tampering prevents it from being used as necessary for safety and/or security), handcuffs, or shackles.
(24) Tattooing/Body Piercing--engaging in tattooing or body piercing of self or others. Tattooing is defined as making a mark on the body by inserting pigment into the skin.
(25) Threatening Another with a Weapon--intentionally and knowingly threatening another with a weapon. A weapon is something that is capable of inflicting bodily injury in the manner in which it is being used.
(26) Vandalism--intentionally causing $100 or more in damage to state property or personal property of another.
(27) Violation of any Law--violating a Texas or federal law that is not already defined as a major or minor rule violation.
(j) Minor Rule Violations. It is a violation to knowingly commit, attempt to commit, or help someone else commit 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 from another without permission and the property has an estimated value of less than $100.
(14) Threatening Others--making verbal or physical threats toward another person or persons.
(15) Undesignated Area--being in any area without the appropriate permission to be in that area.
(16) Vandalism--intentionally causing less than $100 in damage to state or personal property.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
Texas Juvenile Justice Department
Effective date: May 31, 2013
Proposal publication date: March 29, 2013
For further information, please call: (512) 490-7014