(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...