1. (a) Purpose.

   1. (1) The purpose of a waiver is to excuse a department or facility from the requirement to comply with a particular TJJD standard for a defined period of time when compliance with the standard is not possible due to an event outside of the department's or facility's control.
   2. (2) The purpose of a variance is to provide a mechanism for a department or facility to comply with the intent of a TJJD standard in a different manner than is set out in the standard when compliance with the standard is not possible.

2. (b) Applicability.

   1. (1) A waiver or variance may be granted for any standard, following this process, unless:

      1. (A) another administrative rule prohibits or provides a different means for a waiver or variance; or
      2. (B) the standard is required by state or federal law and the corresponding law does not expressly permit a waiver or variance.
   2. (2) A waiver or variance may be conditioned on continued compliance with certain terms, as determined by TJJD or the Board, as applicable.

3. (c) Request.

   1. (1) The juvenile board, chief administrative officer, or facility administrator may submit a request for waiver or variance to TJJD. If the chief administrator or facility administrator submits the request, approval from the juvenile board chair or designee must be included.

   2. (2) A request for a waiver must be submitted on a form provided by TJJD, must state the length of time for which the waiver is requested, and must explain:

      1. (A) why compliance with the standard(s) cannot be achieved;
      2. (B) what undue hardship would be experienced by the department or facility if the waiver is not granted;
      3. (C) what impact the waiver would have on compliance with other standards;
      4. (D) how the health and safety of juveniles will be maintained during the duration of the waiver; and
      5. (E) how issuing the waiver would not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.

   3. (3) A request for a variance must be submitted on a form provided by TJJD, must state the length of time for which the variance is requested, and must explain:

      1. (A) why compliance with the standard(s) cannot be achieved;
      2. (B) what undue hardship would be experienced by the department or facility if the variance is not granted;
      3. (C) what impact the variance would have on compliance with other standards;
      4. (D) how substantial compliance with the intent and purpose of the standard for which a variance is requested would be achieved through alternative methods or means;
      5. (E) how the health and safety of juveniles will be maintained if the variance is granted; and
      6. (F) how issuing the variance would not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.

4. (d) Incomplete Requests.

   1. (1) At the sole discretion of TJJD, any request for waiver or variance that does not include all required information will be deemed incomplete and returned to the requestor for completion.
   2. (2) No timelines for response begin until the request is complete. An incomplete request will not be presented to the executive director or the Board.
   3. (3) TJJD will inform the requestor regarding which parts of the request are incomplete and provide a minimum of 20 days for the requestor to complete the request. If the request is not completed by the date specified by TJJD, the request will be deemed withdrawn.
   4. (4) TJJD will maintain records of incomplete and withdrawn requests.

5. (e) Executive Director Authority to Grant a Waiver or Variance.

   1. (1) The executive director may grant a waiver for a period of up to 180 days, but only if the executive director makes the following affirmative findings:

      1. (A) circumstances outside of the department's or facility's control make it impossible to comply with the standard without undue hardship on the requesting department or facility;
      2. (B) the health and safety of juveniles will be maintained if the waiver is granted; and
      3. (C) the waiver will not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.

   2. (2) The executive director may grant a variance for a period of up to 180 days, but only if the executive director makes the following affirmative findings:

      1. (A) the standard cannot be complied with without undue hardship on the requesting department or facility;
      2. (B) the requesting department or facility will comply with the intent and purpose through alternative methods;
      3. (C) the health and safety of juveniles will be maintained if the variance is granted; and
      4. (D) the variance will not put TJJD or the juvenile board, department, or facility in violation of any state or federal law.

6. (f) Process.

   1. (1) The executive director will respond to a completed request for waiver or variance within 30 days. If unable to do so, TJJD will inform the requestor of the reasons for the delay.
   2. (2) If the request for waiver or variance indicates that it is needed for more than 180 days and the executive director grants the request for any period up to 180 days, the requested waiver or variance will also be presented to the Board for review in accordance with subsection (g) of this section.
   3. (3) If the request for waiver or variance, or extension thereof, is denied, the juvenile board, chief administrative officer, or facility administrator may request a review by the Board, in accordance with subsection (g) of this section.

7. (g) Board Review of Request for Waiver or Variance.

   1. (1) Except as provided by paragraph (7) of this subsection, only the Board may grant a waiver or variance for a period in excess of 180 days. When appropriate, the Board may grant a permanent variance, with or without conditions. No permanent waivers will be granted.
   2. (2) If the executive director has granted a waiver or variance for which the request indicated it was needed for more than 180 days, the request will be presented to the Board for review at the next Board meeting where waivers and variances will be considered, provided there is adequate time to place the item on the agenda.
   3. (3) If the executive director denies a request for waiver or variance, the juvenile board, chief administrative officer, or facility administrator may request a review on a form provided by TJJD. If the chief administrative officer or facility administrator submits the request for review, approval from the juvenile board chair or designee must be included. If the approval is from the designee, that designation must be in writing and included with the request for review. The review will occur at the next Board meeting where waivers or variances will be considered, provided there is adequate time to place the item on the agenda.
   4. (4) The department or facility requesting the waiver or variance is responsible for appearing at the Board meeting to explain the request and answer any questions from the Board.
   5. (5) When appropriate, TJJD staff will make a recommendation to the Board regarding whether or not to grant the waiver or variance.
   6. (6) The Board may grant a waiver or variance only if it makes an affirmative finding that the criteria in subsection (e) exist.
   7. (7) If the executive director grants a waiver or variance that will expire prior to the Board meeting at which the waiver or variance will be considered, the executive director may extend the existing waiver or variance until the Board meeting.

Source Note:The provisions of this §349.200 adopted to be effective September 1, 2025, 50 TexReg 2616.