(a) Purpose. This rule establishes criteria and procedures
for detaining youth in a Texas Juvenile Justice Department (TJJD)
security unit when criminal or delinquent charges are pending or filed
or when the youth is awaiting a court hearing or trial.
(b) Definitions. Definitions pertaining to this rule
are under §380.9550 of this title.
(c) Applicability.
(1) This rule applies only to TJJD youth on institutional
status, regardless of assigned placement.
(2) This rule does not apply to TJJD youth on parole
status, regardless of assigned placement.
(d) General Provisions.
(1) A youth may be held in institution detention if
a court hearing or trial has been requested in writing or has been
scheduled or criminal or delinquent conduct charges are pending or
have been filed and:
(A) suitable alternative placement within the facility
is unavailable due to ongoing behavior of the youth that creates disruption
to the point that other youth are not able to benefit from programming;
or
(B) the youth is likely to interfere with the judicial
process, to include failing to appear; or
(C) the youth represents a danger to others; or
(D) the youth has escaped or attempted to escape, as
defined in §380.9503 of this title, or is likely to attempt to
escape.
(2) Charges are considered to be pending if there is
reliable information that the prosecuting attorney intends to request
an indictment or to file a petition or other charging instrument with
the court.
(3) Charges are considered to be filed when an indictment
has been issued or when a petition or other charging instrument has
been filed with the court.
(4) If a youth with a determinate sentence is awaiting
a court hearing for transfer to the Texas Department of Criminal Justice-Institutions
Division, the court hearing is considered to be "requested in writing"
when TJJD makes a written request to the court for a hearing date.
(5) Youth may not be placed in detention for the purpose
of punishment.
(6) All standard requirements and services for the
security unit as set forth in §380.9740 of this title, unless
otherwise noted in this rule, must be observed while the youth is
detained in the security unit.
(e) Procedure.
(1) Approval for Detention.
(A) The referring staff must obtain approval from the
appropriate supervisor before placing a youth in institution detention.
(B) The youth must be immediately released from detention
and returned to the appropriate placement if:
(i) approval for detention is not granted;
(ii) it is determined that charges will not be filed
or will be dropped; or
(iii) it is determined that the court hearing or trial
will be cancelled.
(C) If approval is granted to detain a youth who is
not assigned to a high-restriction facility, the referring staff must
obtain approval to place the youth in institution detention from the
facility administrator or designee at the high-restriction facility.
(2) Admission to Institution Detention.
(A) The referring staff is responsible for ensuring
the following documentation or information is present at the time
of admission to institution detention:
(i) documentation that charges are pending or filed
or that a court hearing or trial is scheduled or has been requested
in writing;
(ii) a written statement including the purpose of admission
with supporting documentation (i.e., any incident reports or arrest
reports and expected length of stay); and
(iii) the medical file, if available, or copies of
pertinent medical records, as well as any medication the youth is
taking (applies to youth not assigned to the high-restriction facility
where he/she is detained).
(B) The designated admitting staff must review the
information presented to determine whether there are reasonable grounds
to believe criteria for admission have been met as outlined in subsection
(d)(1) of this section. As a result of this review, the youth may
be admitted to institution detention for up to 72 hours.
(C) The security dorm supervisor or designee (who may
not serve as the referring or admitting staff) must review all admission
decisions within one workday to determine if admission criteria have
been met. If criteria are not met or policy or procedures were not
followed, the youth must be released from the security unit.
(3) Timing of Hearing.
(A) If a youth is admitted to detention, a Level IV
hearing (detention review hearing) must be held:
(i) no later than 72 hours after admission to institution
detention or the next workday if the 72nd hour falls on a weekend
or holiday; and
(ii) within ten workdays of the previous Level IV hearing.
(B) If a Level IV hearing is not timely held or is
not properly waived, the youth must be released to his/her assigned
location.
(4) Decision Maker.
(A) The appropriate supervisor must appoint a decision
maker.
(B) The decision maker must be impartial and may not
be the person who referred or admitted the youth to institution detention
or to community detention.
(C) The decision maker must be knowledgeable of the
policies involved in the decision.
(5) Youth Representation and Waiver Rights.
(A) A TJJD employee, contract employee, or volunteer
trained to serve as an advocate must assist the youth.
(B) The youth may waive the Level IV hearing after
speaking with his/her advocate. The waiver must be in writing and
be signed by the youth and the advocate.
(C) When a subsequent Level IV hearing is required
by policy timelines, the youth must be given the opportunity to have
that hearing or to waive it. If the youth chooses to waive the hearing
after speaking to his/her advocate, a new waiver form must be completed.
(6) Hearing Process.
(A) The referring staff must show cause to detain the
youth pending the hearing. The advocate may present evidence as to
why the youth should not be detained.
(B) The standard of proof for all disputed issues is
reasonable grounds to believe. The burden of proof is on the referring
staff requesting detention.
(C) All credible evidence may be considered, irrespective
of its form.
(D) The hearing must be recorded. The recording is
the official record of the hearing. Recordings must be preserved for
six months following the hearing.
(E) The decision maker must base his/her decision on
criteria for detention. If criteria are not met, the youth must be
released to his/her assigned location.
(7) Appeal.
(A) The youth is notified in writing of his/her right
to appeal.
(i) The appeal of the first Level IV hearing is to
the facility administrator.
(ii) The appeal of the second Level IV hearing is to
the executive director pursuant to §380.9353 of this title.
(iii) An automatic appeal to the executive director
must be filed by the referring staff on the third and any subsequent
Level IV hearings, even if the youth waives the hearing(s).
(B) A decision to detain a youth will be implemented
even if an appeal has been filed and a response is pending.
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Source Note: The provisions of this §380.9559 adopted to be effective September 1, 2009, 34 TexReg 5554; amended to be effective November 1, 2011, 36 TexReg 7353; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639; amended to be effective October 1, 2015, 40 TexReg 6138 |