1. (a) Purpose. This rule provides for the administrative investigation of allegations of abuse, neglect or exploitation in programs and facilities under Texas Youth Commission (TYC) jurisdiction. This rule provides standards for investigations and for the compilation of investigation information. The purpose of all provisions in this rule is the protection of youth.

2. (b) Applicability.

   1. (1) This rule applies to all programs and facilities under TYC jurisdiction including institutions, halfway houses, contracted residential services, and parole services.
   2. (2) This rule applies only to administrative investigation of abuse, neglect, or exploitation conducted under Chapter 261 of the Family Code. Except as specifically noted herein, this rule does not apply to criminal investigations conducted by the TYC Office of Inspector General under Human Resources Code §61.0451.
   3. (3) See §93.31 of this title for procedures regarding the resolution of youth grievances.
   4. (4) See §93.53 of this title for procedures regarding appeals to the chief executive officer.

3. (c) Explanation of Terms Used.

   1. (1) Abuse--an intentional, knowing, or reckless act or omission that causes or may cause emotional harm or physical injury to, or death of, a youth.

   2. (2) Case Closure Disposition--the finding made upon official closure of a case of alleged abuse, neglect, or exploitation. The following dispositions shall be used for all allegations:

      1. (A) Administratively Closed--the circumstances, facts, and/or evidence show that there is no merit to the allegation, or that the likelihood of solving the case is so negligible that further investigation is not warranted. (However, if additional information is later received, the case may be re-opened for investigation).
      2. (B) Administratively Confirmed--the circumstances, facts, and/or evidence are sufficient that no additional investigation is needed to confirm that the allegation or violation did occur.
      3. (C) Confirmed--an investigation established that the allegation is supported by a preponderance of evidence that the allegation did occur.
      4. (D) Exonerated--an investigation established that the incident occurred but was lawful and proper or was justified under existing conditions.
      5. (E) Not Confirmed--an investigation resulted in insufficient evidence to prove or disprove the allegations.
      6. (F) Unfounded--an investigation established that the allegation is false, not factual.
   3. (3) Chief local administrator (CLA)--the person employed in a TYC facility or district office that is responsible for overseeing the operations of a facility, contract program or parole services.
   4. (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, whether or not evaluation or treatment is actually received. Sexual conduct in residential facilities is presumed to cause substantial emotional harm.
   5. (5) Exploitation--the illegal or improper use of a youth or the resources of a youth, for monetary or personal benefit, profit, or gain.
   6. (6) Neglect--a negligent act or omission, including failure to comply with an individual case plan, that causes or may cause substantial emotional harm or physical injury to, or death of a youth.
   7. (7) Office of Inspector General (OIG)--a section of the agency with statutory authority to investigate crimes committed at a TYC facility, a residential facility operated under contract with TYC, by TYC employees, or individuals working under contract with TYC.
   8. (8) Physical injury--an injury that normally requires examination or treatment by a trained health care professional, whether or not examination or treatment is actually received.
   9. (9) 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.
   10. (10) Report--a report that alleged or suspected abuse, neglect, or exploitation of a child has occurred or may occur.
   11. (11) Sexual conduct--a lewd exhibition or a sexual contact with another person, including orifice penetration, fondling or sexual stimulation, whether or not the conduct is consensual.

4. (d) Reporting Requirements.

   1. (1) Any person having cause to believe that a youth has been or may be adversely affected by abuse, neglect, or exploitation has an obligation under state law to report the matter to a law enforcement agency or to the Department of Family and Protective Services (DFPS). The OIG is an appropriate law enforcement agency for reports of suspected abuse, neglect or exploitation of youths subject to the jurisdiction of the agency. Any TYC employee, volunteer, or contractor in programs or facilities under TYC jurisdiction who has cause to believe a youth committed to the care and custody of TYC 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 agency's reporting policies and procedures.
   2. (2) The person making a report will provide as much detailed information as possible regarding the circumstances of the report, including the identity of persons involved, the location and time of relevant events, and the identity of others who may provide further information.
   3. (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. (4) Except for investigation purposes, the identity of a person making a report is confidential.

5. (e) Actions Taken upon Receipt of the Report. Upon receipt of a report of alleged abuse, neglect or exploitation, the chief local administrator will:

   1. (1) in coordination with TYC OIG and/or local law enforcement, immediately take any action necessary to protect the youth and to preserve evidence that may be pertinent to an investigation of the matter;
   2. (2) notify the youth's parents or guardian of the report and notify the youth if the report was made by a third party;
   3. (3) determine whether or not the person accused of wrongdoing must be suspended, temporarily reassigned, or temporarily barred from assignment to TYC facilities pending the outcome of the investigation; and
   4. (4) take 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 regarding the subject of the report.

6. (f) Assignment for Investigation.

   1. (1) The OIG will promptly review each report of alleged abuse, neglect, or exploitation. Each report will be entered into a centralized database and assigned for an official administrative and/or criminal investigation if the allegation meets the definition of abuse, neglect, or exploitation.
   2. (2) Whether to assign a report for criminal investigation by a peace officer from the OIG or appropriate outside law enforcement shall be determined on a case-by-case basis considering all relevant factors, including the severity and immediacy of potential harm.
   3. (3) If a report presents an immediate risk of physical or sexual abuse of a youth that could result in the death or serious harm to the youth, the initial response by an OIG investigator will take place not later than 24 hours after the OIG is notified of the report.
   4. (4) If deemed to be warranted by the chief inspector general or the administrative head of the agency, a report of abuse, neglect, or exploitation may be referred to appropriate outside law enforcement for investigation.
   5. (5) Regardless of whether the case is investigated administratively, criminally, or both, the OIG will provide a prompt and thorough administrative report in accordance with the provisions of this rule.

7. (g) Standards for Administrative Investigations.

   1. (1) Only a person with qualified experience and training will be assigned to conduct an administrative investigation of a report of abuse, neglect, or exploitation.
   2. (2) In the event the OIG or other law enforcement agency has assumed a criminal investigation of a report, a person who has been assigned to conduct an administrative investigation in this section will cooperate and assist with the law enforcement agency's criminal investigation and not take any action that might be detrimental to it.
   3. (3) All evidence that is relevant and reasonably available will be gathered and preserved, including documents, physical evidence, witness interviews and statements, photographs, and security videos.
   4. (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. In cases where no such evidence is found, the case will be administratively closed and/or referred to the appropriate TYC department for resolution.

   5. (5) The administrative investigation will be prompt, thorough, and directed at resolving all the relevant issues raised by the report.

      1. (A) With regard to a report of alleged abuse, the investigator will find whether the:

         1. (i) alleged act or failure to act occurred;
         2. (ii) act or failure to act caused emotional harm or physical injury to the youth; and
         3. (iii) person who took the action or who failed to act did so intentionally, knowingly, or recklessly.

      2. (B) With regard to a report of alleged neglect, the investigator will find:

         1. (i) whether there was substantial emotional harm or physical injury of the youth as alleged;
         2. (ii) the standard of care or duty expected under the circumstances that are alleged;
         3. (iii) whether the actions or failure to act under the circumstances violated the standard of care or duty; and
         4. (iv) whether the actions or failure to act caused the substantial emotional harm or physical injury of the youth.

      3. (C) With regard to a report of alleged exploitation, the investigator will find whether:

         1. (i) a youth or a youth's resources were used by the accused person in the manner alleged;
         2. (ii) the use was for monetary or personal benefit, profit, or gain; and
         3. (iii) the use was illegal or improper.
   6. (6) The investigator's findings will be based on a preponderance of the evidence.
   7. (7) The investigator will prepare a written report of the findings, including a summary and analysis of the evidence relied upon in reaching the findings. Copies of relevant documents and photographs will be attached to the report.
   8. (8) The investigator may make findings on misconduct other than abuse, neglect or exploitation that is established by the evidence. However, the absence of such findings should not be regarded as exoneration of the respondent or other employees as to policy violations or other misconduct indicated by the evidence.

8. (h) Administrative Investigation Report--Submission and Closure.

   1. (1) The investigator will submit a written investigation report to his/her supervisor upon completion of the investigation.
   2. (2) The investigator's supervisor will indicate approval of the investigation findings by officially closing the report and indicating the final case closure disposition. The supervisor will then notify the appropriate facility of the findings.
   3. (3) All officially closed investigation reports must contain the signature of the supervisor who was responsible for making the final closure determination and the signature of the investigator who gathered the evidence in the case.

   4. (4) In the event the investigator's supervisor disagrees with any part of the report submitted by the investigator upon completion of the investigation, the report must:

      1. (A) include a statement by the supervisor which describes the reasons for his/her disagreement;
      2. (B) be forwarded to the division director for resolution;
      3. (C) include the signature of the division director or designee for official closure of the report.

9. (i) Actions in Response to a Closed Administrative Investigation Report.

   1. (1) Upon receipt of a closed investigation report, the chief local administrator will review the report and:

      1. (A) notify the youth, the youth's parents or guardian, and the person accused of wrongdoing of the results of the investigation; and
      2. (B) notify the youth and the youth's parents of the right to appeal the investigation findings or file a complaint regarding the conduct of the investigation under §93.53 of this title; and
      3. (C) if the report is confirmed, take whatever actions are necessary and appropriate to rectify the wrong and prevent future harm under the same or similar circumstances.
   2. (2) If the allegation was reported by a health care professional who provides services to TYC youth through TYC's contract health care provider(s), the investigator's supervisor will notify the health care professional in writing of the results of the investigation and the right to appeal the findings of the investigation report under §93.53 of this title.
   3. (3) Periodic summary reports of complaints and appeals regarding investigations conducted under this rule, and the final decision regarding the complaints or appeals, will be provided to the TYC executive commissioner or governing Board for review.
   4. (4) The TYC executive commissioner or governing Board will take whatever action is determined to be appropriate with regard to the complaint to ensure the investigations are conducted properly.
   5. (5) Pursuant to Family Code §261.403(b), the TYC executive commissioner or governing Board will ensure there is a periodic internal audit of procedures related to administrative investigations of alleged abuse, neglect, and exploitation.

10. (j) Standards for Compiling Investigation Information and Confidentiality of Reports.

    1. (1) Accurate and timely investigation information will be compiled related to the number and nature of reports filed and case closure dispositions, the dates and locations of reported incidents, the average length of time required for investigations and the identification of significant trends. This information will be compiled at least twice each year and be available for public inspection.
    2. (2) Additional information including a summary of the findings and corrective actions taken with regard to all confirmed reports will be prepared for periodic review and analysis by the TYC executive staff and the TYC executive commissioner or governing Board.

    3. (3) To the extent required by state or federal law, TYC will release to the public upon request, a report of alleged or suspected abuse, neglect, or exploitation if:

       1. (A) the report relates to a report of abuse, neglect, or exploitation involving a child committed to TYC during the period that the child is committed to TYC; and
       2. (B) TYC is not prohibited by Chapter 552, Government Code, or other law from disclosing the report.

    4. (4) Any information concerning a report of alleged or suspected abuse, neglect, or exploitation that is disclosed will be edited to protect the identity of:

       1. (A) a child who is the subject of the report of alleged or suspected mistreatment;
       2. (B) any other youth committed to the care and custody of TYC who is named in the report;
       3. (C) the person who made the report; and
       4. (D) any other person whose life or safety may be endangered by the disclosure.
    5. (5) Notwithstanding any other provision permitting the release of information, TYC will not disclose any record or information which, if released to the requestor, would interfere with an ongoing criminal investigation or prosecution.
    6. (6) A report will be provided to a law enforcement agency or other criminal justice agency for purposes of investigation and prosecution upon request.
    7. (7) A report will be provided to a parent, managing conservator or other legal representative of a youth upon request. The information contained in the report will be redacted to protect the identity of the person making the report, other youth, and any other person who may be harmed by the disclosure.
    8. (8) A report will be provided, upon request, to the healthcare provider who reported an allegation. The information contained in the report will be redacted to protect the identity of the person making the report, other youth, and any other person who may be harmed by the disclosure.

Source Note:The provisions of this §380.9333 adopted to be effective August 1, 2009, 34 TexReg 4918; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639.