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Us v Tx Evins Juvenile Facility Court Monitoring Report 2008

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Case 7:08-cv-00038

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IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

UNITED STATES OF AMERICA,
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Plaintiff
vs.
STATE OF TEXAS
P.O. Box 12428
Austin, Texas 78711-2428
County of Residence:
Travis;
TEXAS YOUTH COMMISSION
4900 N. Lamar Blvd.
Austin, TX 78765
County of Residence:
Travis;

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Civil Action
No. 7:08 cv 00038

COMPLIANCE REPORT

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CHERIE TOWNSEND,
Executive Director
Texas Youth Commission
4900 N. Lamar Blvd.
Austin, TX 78765
County of Residence:
Travis;
EDUARDO MARTINEZ,
Superintendent
Evins Regional Juvenile Center
3801 East Monte Cristo Road
Edinburg, TX 78541
County of Residence:
Hidalgo,

Defendants.

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UNITED STATES’ FIRST COMPLIANCE REPORT
Pursuant to Paragraph 25 of the Agreed Order in the abovecaptioned matter, the United States submits to this Honorable Court
its first report assessing the State’s compliance with the Agreed
Order.

The report includes the factors considered by the DOJ in

monitoring the State’s compliance and includes:

(1) a verbatim

recitation of each paragraph of the Agreed Order; (2) the DOJ’s
assessment of the State’s compliance with each paragraph of the
Agreed Order, including a narrative of the information the DOJ
considered in reaching its assessment; (3) to the extent that the
State is not in compliance with any particular paragraph(s) of the
Agreed Order, the report includes the specific factual basis for
this assessment and technical assistance recommendations to assist
the State in achieve compliance with such paragraphs(s); and (4) the
report identifies any noncompliance with mere technicalities or
temporary failures to comply during a period of otherwise sustained
compliance.
As detailed below, DOJ’s assessment is that the State has
achieved compliance with Paragraphs 5, 12, and 21, and partial
compliance with Paragraphs 1-4, 6-11, 13-20, and 22-26.

The term

“partial compliance” is used to indicate that the State has made
notable progress in achieving compliance with the key components of
the paragraph, but that significant work remains.

DOJ is pleased to

report that no paragraphs were determined to be in non-compliance.
DOJ recognizes that achieving compliance with each paragraph
of the Agreed Order will require time and effort going forward.
Further, DOJ acknowledges the significant efforts that the State has

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made to date in working towards achieving compliance with the Agreed
Order.

COMPLIANCE RATINGS
(1)

Protection from Harm The State shall, at all times, provide
youth at Evins with reasonably safe living conditions, and
shall implement policies, procedures, and practices to
reasonably ensure that youth are protected from harm by
staff (e.g., improper restraint and excessive use of force)
and harm from other youth.

This Paragraph provides the overarching standard and a
compliance assessment is dependent upon the State’s compliance with
the remedial measures contained in Paragraphs 2-24, which are
discussed in detail below.

Compliance Rating:
(2)

Partial Compliance.

Protection from Undue Restraints Within 60 days of the
effective date of this Agreed Order, the State shall develop
and implement policies, procedures, and practices to
reasonably ensure that only safe methods of restraint are
used at Evins, and only in those circumstances necessary for
safety and security, and that restraints are never used to
punish youth.

The State included a working draft of General Administrative
Policy (GAP) 97.23 (Use of Force) in its 60-day Response.

GAP.97.23

is being revised to place greater emphasis on the use of deescalation and other non-physical intervention methods as a means to
alleviate the need for uses of physical restraints.

Since the

execution of the Agreed Order, TYC has updated DOJ regarding its
policy ratification process.

While the relevant policies are not

yet finalized, DOJ is encouraged by the positive steps TYC has
undertaken thus far.

DOJ is also encouraged by the videotapes TYC

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submitted regarding staff use of force training, which, along with
written documentation, show improvement in use of force practices.
The final approved policy will be forwarded to DOJ for review and
comment when completed.
Current TYC policy permits its employees to use the
appropriate degree of force when reasonably necessary to protect
persons and property, overcome unlawful resistance, and maintain
safety and order.

Crisis de-escalation and behavior management

techniques are expected to be used to the greatest extent possible
to ensure force is the last resort.

When physical restraint becomes

necessary, TYC’s current policy authorizes staff to use restraint
techniques that minimize the risk of harm to the youth and staff and
provides that force is to be used as a last resort and when other
less restrictive interventions have failed or are not practicable
under the circumstances existing at the time.

The degree of force

used is predicated by the circumstances of the situation including
the amount of resistance presented by the youth.

Under no

circumstances is force to be used that is greater than necessary to
achieve control of the youth and maintain safety and order.
Following policy finalization, TYC must ensure that all
existing staff and any new staff are trained on these measures.
present, DOJ has not received sufficient information to
comprehensively assess this Paragraph.

Compliance Rating:

Partial Compliance.

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(3)

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Reporting of Staff Misconduct and Other Serious Incidents
Within 60 days of the effective date of this Agreed Order,
the State shall develop and implement appropriate policies
and procedures which contain definitions approved by DOJ
after review and comment by the DOJ for the terms “use of
force,” “staff-on-youth assault,” “youth-on-youth assault,”
and “inappropriate staff relationships with youth,” and will
develop and implement such policies, procedures, and
practices so that:
(a)

appropriate Evins staff report all incidents of use of
force, staff-on-youth and youth-on-youth assault,
inappropriate staff relationships with youth, and
sexual misconduct between youth, to appropriate
individuals at the facility;

(b)

appropriate Evins staff notify appropriate supervising
officials and document in writing all incidents involving
mechanical restraints to control youth; incidents
resulting in bodily injury to youth and/or staff;
inappropriate staff relationships with youth; sexual
misconduct between youth;

(c)

reporting may be done without fear of retaliation; and

(d)

all such incidents are appropriately documented and
reported, including the facts of the incident, any injury
that occurred as a result of the incident, and
in a way that permits review.

The State included working drafts of GAP.07.03 (Incident
Reporting), GAP.93.33 (Alleged Abuse, Neglect, and Exploitation);
Personnel Policy Manual (PRS) 01.03 (Work and Personal Conduct);
Institutions Operations Manual (INS) 91.91 (Incident Reports); GAP
93.37 (Security Intake) with the its 60-day Response.

The final

approved policies will be forwarded to DOJ for review and comment
when completed.
The draft policies require that staff immediately report
incidents categorized as critical or serious and suspected abuse,
neglect, or exploitation to the Chief Local Administrator and/or the
Incident Reporting Center (IRC).

A toll-free hotline number was

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established for the reporting of incidents to the IRC.

This hotline

is to be available 24 hours a day.
PRS 01.03 requires employees to report suspected mistreatment of
youth, incidents of fraud, and other job-related illegal activities to
their chief local administrator, TYC Central Office, or anyone in
authority inside or outside of TYC to whom they feel comfortable
reporting without fear of retaliation.

Failure to report such

incidents could result in disciplinary action.
INS 91.91 requires that incidents involving youth-on-youth
assaults are documented on Use of Force Reports (CCF-225s).
GAP.93.37 is the current working TYC policy designed to comply
with state law requiring the development of policies mandating zero
tolerance for sexual abuse, GAP 93.37 is a zero-tolerance policy,
requiring all employees to report any suspicion of sexual abuse.

TYC has placed an emphasis upon eliminating inappropriate and
improper uses of force by staff, sexual misconduct by staff, and
other inappropriate activities.

The establishment of the Incident

Reporting Center (IRC) as a part of the Office of Inspector General
(OIG) is an important step in assuring the safety of the juveniles
committed to the care and custody of TYC.

In addition, TYC has

staffed a full time investigator from the OIG office at Evins.
While this investigator is also responsible for additional
facilities within the region, DOJ is encouraged that TYC has created
a permanent, on-site, presence from the OIG at Evins.
DOJ was encouraged to see that CCF-225s are collected, along
with restraint review forms.
documented.

The CCF-225 forms appear adequately

The restraint review forms that are attached to CCF-

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225s are designed to improve quality assurance measures at Evins.
Each review form requires staff to confirm whether the CCF-225 was
filled out correctly, interventions leading up to the restraint were
chronologically documented, and requires staff to discuss whether
options other than restraints were available.

The review form also

provides a comment area, where additional training may be
recommended for the staff involved in the incident.

The review

forms should then be signed by both staff and a supervisor.

While

we commend Evins’ current practices, we note that some of the review
forms are not completely filled out, and of the sample set we
received during our October 2008 tour, none of the forms were signed
by supervisors.
Additionally, the strengthening of the requirements for
employees to report abuse, misconduct, and serious incidents are an
added safeguard.

During our October 2008 tour, we found no evidence

that staff were discouraged or otherwise reluctant to report
misconduct.

Moreover, PRS.01.03 allows employees to report alleged

misconduct without fear of retaliation.
In addition, TYC’s participation in the Performance Based
Standards (PbS) project should assist the agency in standardized
data collection which will make assessment of trends and activities
more credible and useful.

This Paragraph will require careful

monitoring on an on-going basis.

Compliance Rating:

Partial Compliance.

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(4)

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Review of Incidents by Senior Management Within 60 days of
the effective date of this Agreed Order, the State shall
develop and implement policies, procedures, and practices so
that senior management review all incidents involving
mechanical restraints to control youth, incidents resulting
in bodily injury to youth and/or staff, inappropriate staff
relationships with youth, and sexual misconduct between
youth.
The State included drafts of GAP.07.03 (Incident Reporting)

and INS.91.91 (Incident Reports) in its 60-day Response.

GAP.07.03

requires senior management to review all serious incidents or
critical incidents and all allegations of abuse, neglect, and
exploitation.

Additionally, INS.91.91 requires the

Accident/Physical Restraint Review Board to review all incidents
involving manual and mechanical restraints and uses of OC spray.
The final approved policies will be forwarded to DOJ for review and
comment when completed.
Senior management now appear to review serious incidents at
Evins.

Policy requires that all incidents involving use of force or

inappropriate conduct of staff with youth are currently reviewed by
the Superintendent or his designee.

DOJ interviewed senior

management, including the Superintendent, regarding this Paragraph.
We are encouraged that management not only reviews incidents, but
also demonstrated familiarity with facts surrounding each of the
incidents we discussed.

We are also encouraged to see that Evins

utilizes a Restraint/Accident Review Board (RARB), and that the
minutes of those meetings are adequately recorded.

The RARB include

trainers, direct care staff, and senior Evins officials.
minutes include a summary of the incidents discussed, and

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recommendations designed to prevent reoccurrence of preventable
incidents, and are ratified by the Superintendent.
For serious incidents or incidents involving an allegation of
abuse, neglect, or exploitation, the on-site OIG investigator
prepares a report on the findings of the investigations for review
by TYC’s Executive Officer and legislative oversight committees.
The OIG also reviews all incidents in which force is used for a
possible referral for investigation.

During our October 2008 tour,

we reviewed OIG documents and interviewed the OIG investigator, and
conclude that an adequate process is currently beginning at Evins.
However, careful monitoring needs to occur in order to assure these
practices become a routine part of the operation.

Compliance Rating:
(5)

Partial Compliance.

Health Care Inquiries Regarding Injury If, in the course of
the youth’s infirmary visit, a health care provider suspects
staff-on-youth abuse, that health care provider shall:
(a)

report the suspected abuse to the appropriate
officials, the Office of Inspector General, law
enforcement and social service agencies;

(b)

adequately document the matter in the youth’s
medical record; and

(c)

complete an incident report.

DOJ interviewed the head nurse at Evins during our October
2008 tour, and observed the nursing operations.

We are pleased to

confirm that the requirements of this Paragraph are a part of the
standard operating procedure at Evins.

We are also encouraged by

TYC’s efforts to expand on-site clinical services at Evins to 24
hours per day, seven days per week coverage of the campus.

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this occur as planned, this will be an important step in assuring
that the requirements of this Paragraph continue to be in place.

Compliance Rating:
(6)

Compliance.

Uses of Force Within 60 days of the effective date of this
Agreed Order, the State shall develop and implement
comprehensive policies, procedures, and practices governing
uses of force, ensuring that the least amount of force
necessary for the safety of staff, youth residents, and
visitors is used on youth.

The State submitted drafts of GAP.97.23 (Use of Force) and
PRS.01.09 (Staff/Youth Relationships) in its 60-day Response.
GAP.97.23 only allows use of force, including restraints, as a last
resort.

Pursuant to this policy, under no circumstances is it

permissible to use force greater than necessary to achieve control.
Only trained techniques are permissible when using physical
restraint.

PRS.01.09 also prohibits staff from using any force that

is not permitted by GAP.97.23 and provides that a violation of this
requirement constitutes grounds for termination of employment.

The

final approved policies will be forwarded to DOJ for review and
comment when completed.
TYC permits its employees to use the appropriate degree of
force when reasonably necessary to protect persons and property,
overcome unlawful resistance and maintain safety and order.

Crisis

de-escalation and behavior management techniques are expected to be
used to the greatest extent possible to ensure force is the last
resort.

When physical restraint becomes necessary, it is the policy

of TYC to use restraint techniques that minimize the risk of harm to
the youth and staff.

Force is to be used as a last resort when

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other less restrictive interventions have failed or are not
practicable under the circumstances existing at the time.

The

degree of force used is predicated on the circumstances of the
incident including the amount of resistance presented by the youth.
Under no circumstances is the force used authorized to be greater
than necessary to achieve control of the youth and maintain safety
and order.
The use of force as punishment or for convenience of staff is
prohibited.
Any youth suffering an injury following a restraint is to be
seen by the medical staff for medical treatment and to determine the
extent of any injuries.

All injuries shall be documented in the

medical record along with an explanation from the youth describing
how the injuries occurred.

Photographs are to be taken of all

injuries.
TYC policies appear to be adequate and within generally
accepted national standards of practice for secure juvenile
correctional facilities.

It will be important to carefully monitor

the actual practice to assure that the practices at Evins are
reflective of and implement the policies which TYC has enacted.

DOJ

is encouraged with the positive steps TYC has undertaken.

Compliance Rating:
(7)

Partial Compliance.

Documentation and Tracking of Investigations Within 60 days
of the effective date of this Agreed Order, the State shall
develop policies, practices, and procedures for documenting
all incidents of use of force, staff-on-youth assault,
youth-on-youth assault, inappropriate staff relationships
with youth, sexual misconduct between youth, and for
documenting and tracking the status and outcome of all
investigations. Where there is evidence of staff

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misconduct, the State shall initiate appropriate personnel
actions and systemic remedies, where appropriate.

The State submitted drafts of GAP.07.03 (Incident Reporting)
and GAP.93.33 (Alleged Abuse, Neglect, and Exploitation) in its
60-day Response.

The final approved policies will be forwarded to

DOJ for review and comment when completed.
The OIG documents and tracks all investigations
(administrative and criminal) involving alleged abuse, neglect, and
exploitation, including the review of incidents of use of force
including allegations of improper uses of restraints, staff-on-youth
assault, youth-on-youth assault, inappropriate staff relationships
with youth, and sexual misconduct between youth.

As noted above,

DOJ is encouraged by TYC’s placement of an OIG investigator on site.
However, this compliance with this paragraph will require further
evaluation to assure that the system which has been put into place
functions in such a way as to assure that all allegations are
logged, tracked, and investigated appropriately.

Compliance Rating:
(8)

Partial Compliance.

Investigations Within 60 days of the effective date of this
Agreed Order, the State shall develop and implement
policies, procedures, and practices to reasonably ensure an
effective system for investigation of uses of force,
physical restraint, alleged child abuse, youth-on-youth
assault, and alleged sexual contacts.

The OIG is responsible for conducting administrative and
criminal investigations involving allegations of abuse, neglect, and
exploitation, incidents of use of force, staff-on-youth assault,

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youth-on-youth assault, inappropriate staff relationships with
youth, and sexual misconduct between youth.
TYC has taken important steps in developing policies and
procedures to assure the safety and well being of the youth at
Evins.

In addition, the presence of a full time investigative

officer on campus and the current effort to employ a second officer
should help assure the integrity of the process.
This Paragraph will require careful monitoring to assure that
the system which is being set in place is functioning and adequate
to assure the safety of the youth.

Compliance Rating:
(9)

Partial Compliance.

Reporting Possible Criminal Violations Within 60 days of
the effective date of this Agreed Order, the State shall
develop and implement policies, practices, and procedures
governing when possible criminal violations must be reported
to the appropriate law enforcement authorities.

Through Senate Bill 103 (SB 103), signed into law in June 2007
and codified at Human Resources Code § 61.0356, the Texas
Legislature established OIG as an independent law enforcement
division of TYC.

OIG is tasked with investigating allegations of

criminal misconduct occurring at Texas Youth Commission facilities,
and is an appropriate law enforcement entity to receive reports of
possible criminal violations.
As noted above, TYC now has an OIG investigator placed on the
Evins campus.

This individual appears to have free access to all

areas of the campus, all documents, and all staff and youth at
Evins.

It appears that the officer has been active at the campus

with criminal investigations involving staff.

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employment posting has been announced which, if a successful
candidate is identified, should bring a second officer to the campus
in late 2008 or in early 2009.
These are important steps in this process.

It will be

important to monitor the work load of the officer(s) assigned to
Evins over time to accurately assess compliance with this Paragraph.

Compliance Rating:
(10)

Partial Compliance.

Behavior Management Program Within 90 days of the effective
date of this Agreed Order, the State shall develop and
implement an evidence-based behavior management program.
The behavior management program shall be implemented
throughout the day, including during school time. The State
shall develop and implement policies, procedures, and
practices to reasonably ensure that mental health staff
provide regular consultation regarding behavior management
to custody and other staff involved in the behavior
management program, and shall develop and implement a
mechanism to assess the effectiveness of interventions
utilized.

The State is currently in the process of revising its policies
and procedures relating to its Behavior Management Program.
Currently, agency policy provides for the Behavior Management
Program (BMP), the Aggression Management Program (AMP), and the
Primary Intervention Program (PIP) as behavior management programs
for the agency.

However, neither the BMP, AMP, nor the PIP are used

for behavior management programs at Evins.

Evins uses a newly

developed program, “Re-direct” for addressing youth behavior.

The

Re-Direct program is an effort to de-emphasize the use of the
facility’s security unit and move the focus back to the general
living units.

The procedures for the Re-direct program require

mental health and treatment staff to consult daily to address

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All educational services are to be

provided while the youth are in the Re-direct program and program
expectations are to be met even when a youth is attending class.
Of significance is the State’s effort to provide positive reenforcements to youth on the campus as a whole.

This effort appears

to be lagging behind the effort to de-emphasize the use of the
security unit.

It is important that all youth have the opportunity

to participate in behavior management programs which emphasize
rewards for desired positive and constructive behaviors.

Rewards

need to be quick, tangible and of some practical value to the youth.
At this time, the Evins staff and administration do not have a wide
range of positive rewards for the youth nor a widespread ability to
quickly re-enforce desired pro-social behaviors when they are
demonstrated by the youth.
The Behavior Management Program at Evins is in a state of
change.

The changes outlined above are new, and not yet fully

implemented.

The staff and administration have taken important

first steps in constructing a daily living program at the facility.
This work will need to be expanded and re-enforced with both staff
and youth.

Behavior management programs are challenging to manage

and must be administratively supported until they become part of the
over-all culture at the facility.

Compliance Rating:
(11)

Partial Compliance.

Staffing Within 60 days of the effective date of this
Agreed Order, the State shall provide sufficient numbers of
adequately trained direct care and supervisory staff to
(a) supervise youth safely, (b) protect youth from harm,
(c) allow youth reasonable access to medical and mental

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health services, and (d) provide youth with adequate time
spent in out-of-cell activities. The State shall establish
mandatory minimum staffing requirements, including a
determination of all direct supervision posts that must be
filled on each shift. In establishing mandatory post
coverage, the State shall include provisions for coverage
for all required staff training as well as authorized leave
time.

SB 103 requires that TYC maintain a staff-to youth ratio of
not less than 1:12.

The staffing patterns for Evins were provided

in the State’s 60-day Response.

Policies detailing staffing

requirements and procedures will be provided as they are developed.
The current practice, as shown in the staffing reports, is that at
least a 1:12 ratio is being maintained.

Appropriately, only those

individuals providing direct youth care are counted for the staffing
ratio.

To ensure proper staffing, INS.15.01 requires direct care

staff to remain on duty until relieved.
The number of direct care staff needed to safely operate a
facility is impacted by several factors.

For example, the

population being served by the facility and their social and offense
histories, as well as the risk they represent to their home
communities and the persons who are around them.

The physical

layout of the building or buildings, and the skill level of and
training available to the staff also influence the staffing pattern
that is required to ensure adequate safety.
Staffing levels at Evins have improved significantly since the
DOJ conducted its first tour in 2006.

This has been accomplished by

filling direct care staff vacancies and by reducing the youth
population.

These are positive steps.

However, the continued

existence of the open bay dormitories which house most of the youth

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on campus continue to provide a difficult challenge for the staff
and administration.
Until the retrofitting is completed, adequate staffing to
ensure youths are reasonably protected from harm will continue to
pose a challenge at Evins.

We are encouraged that as of our October

2008 tour, the ratio of Junior Corrections Officers (JCOs), who are
the primary direct care staff tasked to supervise youth, has
dramatically improved.

Currently, the JCO to youth ratio at Evins

is between 1:8 and 1:11.

These ratios account for direct staff

working with youth; staff who “float” or “roam” Evins to assist in
maintaining security throughout the facility are not included in the
ratio.

This improved ratio is a remarkable improvement, and we

encourage Evins to seek to ways to further reduce staffing ratios.

Compliance Rating:
(12)

Partial Compliance.

Employment Practices Within 60 days of the effective date
of this Agreed Order, the State shall continue to conduct a
criminal record check for all current employees at Evins,
taking appropriate actions where new information is
obtained. At least as often as every year thereafter, the
State shall update such criminal record checks for all
employees who come into contact with youth. The Evins
administration shall develop and implement policies and
procedures to require that applicants and all current staff
immediately report to it any arrest other than a minor
traffic violation and also report the issuance of a
restraining order entered against the staff member due to
alleged abusive behavior.

SB 103, requires that TYC perform background and criminal
history checks annually on all employees at Evins.

Policies

governing this requirement are provided in PRS.01.08 (Criminal
Records of Current Employees), 05.11 (Selection and Hiring Process),
05.13 (Background Checks), and 05.14 (Texas and National Crime

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According to these policies, no

individual is permitted to be employed in a direct care position
without having successfully completed a background and criminal
history check.
During the FY 2007 legislative session, the Texas Legislature
mandated that TYC conduct annual criminal history checks on all
employees, contractors, and volunteers.

Personnel policies have

been revised to require fingerprinting and background checks of all
employees upon employment with the agency and then annually.
Additionally, policies are pending approval that will require
fingerprinting and background checks on contractors and volunteers
who work with TYC youth.
During our October 2008 tour, we reviewed logs at Evins which
indicated criminal background checks are being performed on staff
before working with youth, consistent with Texas law.

Compliance Rating:
(13)

Compliance.

Due Process Within 60 days of the effective date of this
Agreed Order, the State shall implement policies,
procedures, and practices to reasonably ensure that youths
confined to the Security Unit for disciplinary reasons for
more than 24 hours receive an appropriate due process
hearing by an impartial supervisory staff member to
determine whether cause exists for continued disciplinary
confinement.

The State submitted drafts of GAP.97.37 (Security Intake),
GAP.97.40 (Security Program), and GAP.97.43 (Institution Detention
Program) with its 60-day Response.

These policies establish the

required due process for placement in the security unit.

GAP.95.55

(Level II Hearings), GAP.95.57 (Level III Hearings), and GAP.95.59

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(Level IV Hearings) contain the procedures for the hearings that
must be held for placement in the security unit.

Pursuant to these

policies, a youth placed in the security unit must have at a minimum
a Level III hearing within 24 hours of placement.

The security

policies are in the process of revision and will be submitted to DOJ
once they are finalized.
During our October 2008 tour, staff confirmed that they do not
use segregation as a disciplinary sanction.

However, it is clear

the security unit has been used as a behavioral control device.

As

a practical matter, many of the youth who sleep in the security unit
participate in routine daily activities such as education,
recreation and other program activities.

We are encouraged that the

Superintendent has emphasized that youth housed in the security unit
are typically taken to and from school, and given reasonable
opportunities to reintegrate into the general population.

As a

result of such efforts, youth are generally not confined in their
rooms for extended periods of time such as for 22 or 23 hours per
day.
Still, it is important that due process safeguards are in
place for youth who are taken out of normal campus programming and
living arrangements.

Essentially, there should be a process which

prohibits a youth’s confinement beyond 24 hours without having an
opportunity to explain himself or otherwise contest his confinement.
Since the use of the security unit is changing, it will be
necessary to continue to monitor its use and the corresponding
provision of due process.

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Compliance Rating:
(14)

Filed in TXSD on 11/05/2008

Page 21 of 35

Partial Compliance.

Youth Grievances Within 60 days of the effective date of
this Agreed Order, the State shall develop and implement
policies, procedures, and practices to reasonably ensure
that there is a functional and responsive youth grievance
system.

The State submitted draft working policy GAP.93.31 (Youth
Grievance System) in its 60-day response.

GAP.93.31 provides the

policies and procedures for the youth complaint/grievance system.
Responses to youth grievances must be completed within 15 business
days.

The grievance policy is in the process of revision and will

be submitted to DOJ once it is finalized.
The grievance system at Evins appears to be generally
functional.

It would be helpful if the grievance system would

incorporate a function to assure that resolutions or accommodations
that are to occur as a result of a grievance having been filed are
actually implemented.

At present, this final component of the

grievance system does not seem to be in place.

To take this final

step would assure the administration that the necessary steps
necessary to resolve a grievance have been taken.

Compliance Rating:

Partial Compliance.

(15) Admissions Intake and Orientation Within 60 days of the
effective date of this Agreed Order, the State shall develop
and implement policies, procedures, and practices to
establish a consistent, orderly admissions intake system
conducive to gathering necessary information about youth,
disseminating information to staff providing services and
care for youth, and maintaining youth safety. Each youth
entering Evins shall receive an effective orientation that
shall include simple directions for reporting abuse, and
assure youth of their right to be protected from harm and
from retaliation for reporting allegations of abuse.
Orientation shall also clearly set forth the rules youth

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must follow at the facility, explain how to access medical
and mental health care and the grievance system, and provide
other information pertinent to the youth’s participation in
facility programs.

The States submitted GAP.91.15 (Youth Orientation), INS.11.01
(Admission), 11.05 (Youth Orientation), 11.06 (Local Orientation
Program) in its 60-day Response.

These draft policies require that

youth receive orientation information, including information
concerning their rights, the rules of conduct, and instructions on
how to report abuse.

Upon admission to TYC, youth receive a youth

handbook explaining the rules and their rights.

Final policies will

be submitted to DOJ for review and comment.
TYC representatives have indicated the agency is in the
process of revising its intake, assessment, and classification
systems.

A new classification system is being developed to ensure

the safe and secure placement of youth within agency facilities and
programs.

The current assessment system is being revised to

encompass performance based measures for providing rehabilitative
and treatment services to youth.
Our review of a sampling of juvenile records at Evins
indicates that the basic information which is collected through
community resources in the juveniles’ home communities and the
information obtained at TYC intake facility is consistent with
generally accepted professional practices.

However, as indicated in

Paragraph 16, below, there are concerns about the actual physical
placement of the youth once they reach the Evins campus.

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Interviews with youth confirm they generally have a basic
awareness of their rights, how to file a grievance, how to report
concerns about their treatment and so forth.

If there are

significant changes to the various aspects of the program,
including, youth rights and related matters, it will be incumbent
upon the administration to assure that all youth are made aware of
the changes.

Compliance Rating:
(16)

Partial Compliance.

Classification Within 90 days of the effective date of this
Agreed Order, the State shall develop and implement a
classification system that considers factors including youth
age, committing offense, gang affiliation, delinquent history
and treatment needs to reasonably ensure that youth are safely
placed within Evins, and provides for reclassification in
appropriate circumstances.

The current classification system stated is designed to
establish a youth’s minimum length of stay and treatment needs.

The

agency is developing a policy surrounding a classification system
for safe housing placement.

In the interim, Evins has developed

procedures for safe housing placement.

The safe housing placement

plan takes into consideration a youth’s age, size, gang affiliation,
delinquent history and treatment needs.

The Special Services

Committee (SSC) reviews these factors and makes a recommendation for
dorm placement.
The system used to assign youth to particular living units is
an important aspect of operating a juvenile correctional facility.
It is important to assure that the youth is placed in a unit where
he can best receive treatment or services and can be safely
maintained.

Many factors can impact housing assignment.

23

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include but are not limited to age, physical size, level of
sophistication, assaultiveness, committing offense, mental capacity,
state of mental health and so forth.

Obviously, it is desirable to

place youth where they can best function and have less chance of
being either a predator or a victim.
The information gathered through TYC’s intake and assessment
process conducted at another TYC campus appears to be generally
adequate and comparable to generally accepted national practices.
The design of the physical plant at Evins presents challenges
to arranging safe and adequate housing for the youth who come to the
campus.

The facility has two small living units which are used to

house specifically identified populations of youth.

One unit is the

Chemical Dependency Unit and the other serves younger youth.

All

other youth are assigned to the open bay general living units.
Evins has begun to designate certain open bay dormitories to
serve particular populations.

Still the design of the buildings

means that youth have easy access to one another in the day room,
the bathroom, and the shower areas.

This is especially troubling

due to the presence of sex offenders at the facility.
As a general practice, youth who have committed sexual
offenses are typically housed away from a facility’s general
population.

They are also usually housed in living units that allow

for assignment to single person sleeping rooms.

This is an effort

to reduce the opportunity for sexual assaults and sexual acting out.
At Evins, sexual offenders are assigned to the general
population.

At present there are not options for single sleeping

room assignments on campus without re-assigning those youth who are

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assigned to the aforementioned chemical dependency and young youth
units which is not suggested.

This represents a significant

challenge to the staff at Evins.
It is commendable that the administration of TYC and at Evins
has recognized the problems they face with making dormitory
assignments.

It is important that they have begun to work to assign

particular groups of compatible youths to particular units.
However, this is clearly a new effort on the staff’s part.

It is

important that the safe housing policy be developed and implemented
as quickly as possible.

Compliance Rating:
(17)

Partial Compliance.

Training Within 60 days of the effective date of this
Agreed Order, the State shall develop and implement
policies, procedures, and practices to provide staff,
volunteers and contractual employees of Evins with training
regarding their responsibilities. These policies,
practices, and procedures shall include:
(a)

a comprehensive training plan for all Evins employees,
reviewed and updated annually;

(b)

requirements by job category;

(c)

standards for qualification of trainers;

(d)

processes for approval of the training curriculum;

(e)

schedules for staff training;

(f)

criteria for determining whether Evins staff,
volunteers, and contractual employees have mastered the
instructional materials and methods being taught; and

(g)

specific requirements by professional discipline for
any continuing education credits established by
licensure, certification, or recognized professional
academies and organizations.

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The State submitted SB 103; PRS.01.07 (Compulsory Training
Requirements for Correctional Staff), 39.01 (Agency Training
Program), 39.09 (Trainer Qualifications), and 39.25 (Continuing
Education Unit Credits) in its 60-day Response.

SB 103 and these

draft policies require TYC to provide 300 hours of training to all
direct care staff prior to receiving a dorm assignment.

Final

versions of the policies will be submitted to DOJ for review and
comment.
TYC’s renewed commitment to staff development and training is
impressive and commendable.

The requirement for 300 hours of

training for newly hired direct care staff exceeds generally
accepted national standards.

During our October 2008 tour, we were

pleased to see standardized logs that tracked Evins’ staff training
completion dates for each of the trainings offered by TYC.
trainings include, but are not limited to:

Those

Verbal Intervention &

De-escalation, Behavior Management, Incident Report Writing,
Interpersonal Communication Skills for Staff, Use of Force,
Mechanical Restraints, and Youth Rights.

As of the date of our

tour, it appears from the training logs that Evins has a 100% staff
training rate for new hires.
In addition, TYC training efforts for existing staff are also
impressive.

TYC is endeavoring to become accredited by the American

Correctional Association (ACA).
In order to achieve its training goal TYC must commit a great
deal of resources to the effort.

This is an area which will require

on-going monitoring and assessment to assure that the agency’s goals
are achieved.

DOJ and TYC are currently working to schedule a tour

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of the agency’s primary training site in order to evaluate the
courses offered.

Compliance Rating:
(18)

Partial Compliance.

Physical Restraint Training Within 60 days of the effective
date of this Agreed Order, the State shall train direct care
staff on its approved method for physical restraint that
minimizes the risk of injury to youth. The State shall only
use instructors who are appropriately qualified to teach the
approved physical restraint method. All training shall
include each staff member demonstrating the approved
techniques and meeting the minimum standards for competency
established by the method. Direct care staff skills in
employing the method shall be periodically re-evaluated.
Staff who demonstrate deficiencies in technique or method
shall be removed from direct contact with youth until they
meet minimum standards for competency established by the
method. Juvenile Correctional Officer Supervisory staff
shall be trained to evaluate their subordinates’ use of the
approved restraint methods and must provide evaluation of
these methods in their reports addressing use of force
incidents.

See comments for Paragraph 17.

Physical restraint training

and recertification is an annual requirement for employees
designated as direct care staff.
The object of a passive restraint system is to maintain
physical control of a youth in the safest and least painful manner
possible.

Most passive restraint systems teach that staff are to

attempt to verbally de-escalate a situation and only use the least
amount of force necessary to control the youth.

Most reputable

passive restraint systems place as much or more emphasis on verbal
de-escalation than on actual physical control techniques.
TYC has determined that it will use a passive
restraint/personal protection system that is also used in a number
of juvenile facilities around the United States.

27

The certification

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of new employees and re-certification of existing employee is an ongoing process.

This Paragraph will require careful monitoring to

assure that staff are trained as required.

Compliance Rating:
(19)

Partial Compliance.

Staff Training in Behavior Management, De-Escalation and
Crisis Intervention Within 60 days of the effective date of
this Agreed Order, the State shall provide appropriate
competency-based training to staff in behavior management,
de-escalation techniques, appropriate communication with
youth, and crisis intervention before staff may work in
direct contact with youth.

See comments for Paragraph 17.

Behavior Management, De-

Escalation, and courses designed to provide valuable crisis
intervention skills are currently being offered by TYC.
TYC is currently working to re-emphasize with staff the
concepts of de-escalation and crises intervention as a part of its
overall programming on campus.

It is recognized this is closely

related to the development of the behavioral management program and
the de-emphasis on the use of the security unit.

At the time of the

October site visit, it was found that the new programming effort has
not been fully implemented.

This is not unexpected as these changes

represent a major philosophical shift for the campus which will take
time to successfully implement.

Compliance Rating:
(20)

Partial Compliance.

Staff Training in Incident Reporting Within 60 days of the
effective date of this Agreed Order, the State shall develop
and implement policies, procedures, and practices so that
staff are appropriately trained in incident reporting
consistent with the type of incident reporting required
under this Agreed Order.

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See comments for Paragraph 17.

Page 29 of 35

Staff Training and Incident

Report Writing courses are currently being offered by TYC.
All employees are required to receive training on incident
reporting, including the reporting incidents of abuse, neglect, and
exploitation, and other incidents affecting youth.

TYC is in the

process of adopting policies, procedures, and guidelines for
implementation of Prison Rape Elimination Act (PREA) guidelines.
Specific training will be provided to staff related to these
policies, procedures, and guidelines.

Compliance Rating:
(21)

Partial Compliance.

Throughout the term of
Document Development and Revision
this Agreed Order, the State shall maintain, revise and/or
develop as necessary other written documents including
assessment instruments, logs, handbooks, manuals, and forms,
to effectuate the provisions of this Agreed Order.

TYC has provided various policies and procedures to the DOJ
for review and comment.

After consultation with the DOJ’s expert,

comments were offered to TYC.

Many of the policies are currently

under revision, and are proceeding through the State’s process for
the approval of state agency policies and procedures.

DOJ is

encouraged by the State’s document development and revision efforts,
and its prompt submission of all documents and videos requested.

Compliance Rating:
(22)

Compliance.

Policy Review and Training
Within 45 days of the effective
date of this Agreed Order, the State shall submit all
policies and procedures regarding the following topics to
DOJ for review and comment: use of restraints and
confinement to the Security Unit, use of force, youth
grievance system, investigations of alleged staff

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misconduct, behavior management program, and reporting and
review of staff misconduct and other incidents. Within 120
days of the effective date of this Agreed Order, the State
shall commence initial and refresher training to all Evins
staff with respect to any newly-implemented or revised
policies and procedures. Such training shall be completed
within 180 days of the effective date of this Agreed Order.
The State shall document employee training.

See comments for Paragraph 21.
Given the current state of changes of many of TYC’s working
policies, we are unable to confirm whether staff have received all
refresher trainings.

TYC has indicated that it will provide all

finalized policies after they have become ratified; training on
those policies should follow immediately after ratification.

Compliance Rating:
(23)

Partial Compliance.

Performance-Based Accountability System
Within 90 days of
the effective date of this Agreed Order, the State shall
develop and implement a system designed to collect data
necessary to assess and reasonably ensure the effective
implementation and operation of all remedies instituted
pursuant to this Agreed Order.

TYC has determined to participate in the Performance Based
Standards project (PbS).

PbS was begun in 1995 by the US Department

of Justice, Office of Justice Programs, Office of Juvenile Justice
and Delinquency Prevention (OJJDP) to improve the conditions
reported by the 1994 Conditions of Confinement study of 1,000 secure
facilities.

Directed by the Council of Juvenile Correctional

Administrators (CJCA), PbS asks participants to collect and analyze
data to target specific areas for improvement.

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One of the greatest potential benefits of participating in the
PbS project is the formalization and standardization of data
gathering in critical areas of facility operations; many of which
are key requirements of this order.

For example, the gathering of

data on assaults, fights, allegations of abuse, staffing levels and
so forth.

Over time, this participation should result in TYC

administrators having an increased ability to incorporate actual
hard data into management decisions.

Compliance Rating:
(24)

Partial Compliance.

With regard to the protection from
Corrective Action Plans
harm and training remedial measures addressed in this Agreed
Order, throughout the term of this Agreed Order, the State
shall develop and implement policies and procedures to
address problems that are uncovered during the course of
performance-based accountability activities. The State
shall develop and implement corrective action plans to
address these problems in such a manner as to prevent them
from occurring again in the future.

Established pursuant to GAP.05.01, TYC’s internal audit
department is tasked with reviewing and improving performance-based
accountability activities at Evins.

Currently, the audit team is

reportedly taking actions to improve the services provided to youth
at Evins, however, a formal corrective action plan has not yet been
developed for each Paragraph of the Agreed Order.

We anticipate

that TYC will begin formalizing correction action plans in
accordance with the terms of this paragraph within the next
monitoring period (November 2008-May 2009).

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Compliance Rating:
(25)

Filed in TXSD on 11/05/2008

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Partial Compliance.

The DOJ shall monitor the State’s compliance with this
Agreed Order. The DOJ’s monitoring shall include, on-site
inspections of Evins, interviews with Evins youth, staff,
and administrators, and a review of relevant documents. The
DOJ shall retain a juvenile justice consultant with expertise
in protection of youth from harm within the context of the
operation of a secure juvenile justice facility to assist the
DOJ in its monitoring activities. DOJ shall routinely report
its assessment of the State’s compliance with the paragraphs
of this Agreed Order to the Court. The DOJ’s reports shall
include the factors considered by the DOJ in monitoring the
State’s compliance, and shall include: (1) a verbatim
recitation of each paragraph of the Agreed Order; (2) the
DOJ’s assessment of the State’s compliance with each paragraph
of the Agreed Order, including a narrative of the information
the DOJ considered in reaching its assessment; (3) to the
extent that the DOJ’s assessment is that the State is not in
compliance with any particular paragraph(s) of the Agreed
Order, the DOJ’s report shall include the specific factual
basis for this assessment and technical assistance
recommendations to assist the State in achieving compliance
with such paragraph(s); and (4) identify any noncompliance
with mere technicalities or temporary failures to comply
during a period of otherwise sustained compliance. The
DOJ’s first report shall be submitted within six months of
the effective date of this Agreed Order, and subsequent
reports shall be filed every six months thereafter. Until
this matter is dismissed, the DOJ shall have unrestricted
access to, and shall, upon request, receive copies of any
documents, records, and information relating to the
implementation of this Agreed Order. The State shall
provide any requested documents, records, and information to
the DOJ as soon as possible, but no later than 30 days from
the date of the request. The DOJ shall have reasonable
access to Evins, including any newly constructed, renovated
and/or designated buildings and facilities; staff and youth,
including private interviews with staff; and youth records,
documentation, and information relating to the issues
addressed in this Agreed Order. The State shall instruct
all employees to cooperate fully with the DOJ. The DOJ
agrees to provide the State with reasonable notice of any
visit or inspection, although the DOJ and the State agree
that no notice is required in an emergency situation where
the life, health, or immediate safety of youth is at issue.

The State has been very helpful and cooperative in the
monitoring of this agreement.

The DOJ and its expert have received

complete access to the facility, staff, and youth.

32

TYC has

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endeavored to provide all requested documents in a timely and
convenient manner.
Staff from the DOJ and the DOJ’s expert were on-site at
Evins July 1 and 2, September 9, and October 7 and 8, 2008.

DOJ and

the State are currently working to schedule an additional tour.

Compliance Rating:
(26)

Partial Compliance.

Information to Employees Within 90 days of the effective
date of this Agreed Order, the State shall reasonably ensure
that all current and future relevant State employees
understand the terms of this Agreed Order (to the extent
necessary to carry out their job duties and responsibilities)
and implement the terms of this Agreed Order.

TYC requires all new employees to attend an orientation
session during which they are provided a copy of the Agreed Order
and the terms of the Agreed Order are explained to them, including
the consequences for not complying with conditions and remedies of
the Agreed Order.

The superintendent at the Evins facility met with

all current employees on June 17, 2008, explained the terms and
conditions of the Agreed Order, and gave each employee a copy of the
Agreed Order.

In addition to information provided directly to

employees, the Agreed Order has been placed on the agency’s website.

Compliance Rating:

Compliance.

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FOR THE UNITED STATES:

DONALD J. DEGABRIELLE, JR.
United States Attorney
Southern District of Texas

GRACE CHUNG BECKER
Acting Assistant Attorney
General
Civil Rights Division

/s/ Shanetta Y. Cutlar___
SHANETTA Y. CUTLAR
Chief
Special Litigation Section

/s/ Sheridan L. England__
DANIEL H. WEISS
Deputy Chief
SHERIDAN L. ENGLAND
Attorney-in-charge
New York Bar: 4392205
Trial Attorney
U.S. Department of Justice
Civil Rights Division
Special Litigation Section
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

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CERTIFICATE OF SERVICE
I hereby certify that on November 5, 2008, a true and correct
copy of the foregoing COMPLIANCE REPORT was served on counsel for
Defendants as identified below via the ECF system.
James C. Todd
Office of the Attorney General
PO Box 12548
Capitol Station
Austin, TX 78711-2548
512-475-4055
512-320-0667 (fax)
jim.todd@oag.state.tx.us

/s/ Sheridan L. England___
SHERIDAN L. ENGLAND

35

 

 

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