| (a) Purpose. This rule provides for the administrative
investigation of allegations of abuse, neglect, or exploitation in
programs and facilities under Texas Juvenile Justice Department (TJJD)
jurisdiction. This rule also provides standards for investigations
and for the compilation 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, contracted residential services,
parole services, and contract programs.
(2) Except as specifically noted, this rule does not
apply to criminal investigations conducted by the TJJD Office of Inspector
General under Human Resources Code §242.102.
(c) Additional References.
(1) See §380.9337 of this title for additional
requirements regarding investigations of alleged sexual abuse.
(2) See §380.9353 of this title for information
on appeals to the executive director.
(d) 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 the care and custody of
TJJD.
(2) Case Closure Disposition--the finding made upon
official closure of a case of alleged abuse, neglect, or exploitation.
The following dispositions are used for all allegations:
(A) Confirmed--an investigation established that the
allegation did occur.
(B) Exonerated--an investigation established that the
alleged incident occurred but was lawful and proper or was justified
under existing conditions.
(C) Unable to Determine--an investigation resulted
in insufficient evidence to prove or disprove the allegation(s).
(D) Unfounded--an investigation established that the
allegation is false, not factual.
(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 in residential facilities 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 the care and custody
of 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 the care and custody of TJJD.
(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 greater weight and degree of credible evidence; e.g.,
whether the credible evidence makes it more likely than not that 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--conduct that constitutes the offense
of continuous sexual abuse of a child or children under Penal Code §21.02,
indecency with a child under Penal Code §21.11, sexual assault
under Penal Code §22.011, or aggravated sexual assault under
Penal Code §22.021.
(e) 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 (DFPS). The
TJJD Office of Inspector General is an appropriate law enforcement
agency for reports of suspected abuse, neglect, or exploitation of
youths 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 cause to believe a youth committed to the
care and custody of TJJD has been or may be adversely affected by
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 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.
(f) 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 youth's parents or guardian of the
report and notifies the youth if the report was made by a third party;
(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.
(g) Assignment for Investigation.
(1) TJJD promptly reviews each report of alleged abuse,
neglect, or exploitation. Each report is entered into a centralized
database and assigned for an administrative investigation if the allegation
meets 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) A TJJD investigator must provide an initial response
within 24 hours after TJJD 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.
(h) Standards for Administrative Investigations.
(1) The administrative investigation must be prompt,
thorough, and directed at resolving all the relevant issues raised
by the report.
(2) Only a person with qualified experience and training
may be assigned to conduct an administrative investigation of a report
of abuse, neglect, or exploitation.
(3) 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.
(4) 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.
(5) For a report of alleged abuse, the investigator
must find whether the:
(A) alleged act or failure to act occurred;
(B) act or failure to act caused emotional harm or
physical injury to the youth; and
Cont'd... |
