(a) In accordance with Texas Family Code, §55.41 and §55.60, a minor in the juvenile justice system may be committed to a state MR facility only if:
  (1) the minor is found to be unfit to proceed or to lack responsibility for the minor's actions pursuant to juvenile charges;
  (2) the minor is determined to have mental retardation and the mental retardation is the reason that the minor is unfit to proceed or that the minor lacks responsibility for his actions;
  (3) because of mental retardation, the minor:
    (A) represents a substantial risk of physical impairment or injury to self or others; or
    (B) is unable to provide for and is not providing for the minor's most basic personal physical needs;
  (4) the minor cannot be adequately and appropriately habilitated in an available, less restrictive setting; and
  (5) the state MR facility provides habilitative services, care, training and treatment appropriate to the minor's needs.
(b) A minor represents a substantial risk of physical impairment or injury to self or others or is unable to provide for and is not providing for the minor's most basic personal physical needs, as referenced in subsection (a)(3) of this section, if:
  (1) the minor's IQ is four or more standard deviations below the mean, (i.e., in the severe or profound range of mental retardation);
  (2) the minor's ICAP service level equals:
    (A) 1, 2, 3, or 4; or
    (B) 5 or 6 and the minor:
      (i) has extraordinary medical needs that would require direct nursing treatment for at least 180 minutes per week if the minor's caregiver were not providing such treatment; or
      (ii) exhibits incidents of dangerous behavior that would require intensive staff intervention and resources to prevent serious physical injury to the minor or others if the minor's caregiver were not managing such incidents; or
  (3) the minor meets other objective measures as determined by the department.

Source Note: The provisions of this §904.33 adopted to be effective January 1, 2001, 25 TexReg 12746; amended to be effective March 31, 2002, 27 TexReg 2445; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; transferred effective September 1, 2023, as published in the August 11, 2023, issue of the Texas Register, 48 TexReg 4397