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Case 7:08-cv-00038

Document 14

Filed in TXSD on 04/29/2009

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IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS
MC ALLEN 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;
CHERIE TOWNSEND,
Executive Director
Texas Youth Commission
4900 N. Lamar Blvd.
Austin, TX 78765
County of Residence:
Travis;
EDUARDO MARTINEZ,
Superintendent
3801 East Monte Cristo Road
Edinburg, TX 78541
County of Residence:
Hidalgo,

Defendants.

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Civil Action
No. 7:08 cv 00038

COMPLIANCE REPORT

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

The report includes the factors considered by the

Department of Justice (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 achieving
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.
In reaching the conclusions detailed below, DOJ reviewed
Texas Youth Commission (TYC) and Evins policies, investigation
documents, reports, committee minutes, videos, staffing rosters,
background checks, and other administrative documents from TYC
and Evins.

We also toured Evins and observed training at the

Corsicana Residential Treatment Center on March 9-12, 2009.

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While on-site, we interviewed numerous TYC officials, Evins
management, direct care staff, medical care staff, and youth.
also reviewed additional documents on-site.

We

At the conclusion of

our tour, we requested and reviewed supplemental documents.
As detailed below, DOJ’s assessment is that the State has
achieved compliance with Paragraphs 5, 12, 21, 25 and 26 and
partial compliance with Paragraphs 1-4, 6-11, 13-20, and 22-24.
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 there are no paragraphs with which
the State was determined to be in non-compliance.
DOJ recognizes that achieving compliance with each paragraph
of the Agreed Order will require TYC’s continued time and effort
to effectuate the necessary reform.

We are pleased to find that

TYC continues to make progress in achieving compliance with the
Agreed Order as a whole.

Further, DOJ wishes to acknowledge

Evins’ former Superintendent for his cooperation during our tour.
We look forward to continued cooperation from the incoming
Superintendent.

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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.
As noted in our first Compliance Report, this Paragraph

provides the overarching standard and a compliance assessment is
dependent upon the State’s compliance with the remedial measures
contained in all other Paragraphs, which are discussed in detail
below.
We note, however, that we are particularly concerned that
extortion and youth possession of contraband may be increasing at
Evins.

During our interviews with staff and youth, we were

routinely told that extortion and contraband were on the increase
on the campus.
Extortion tends to involve residents taking food,
toiletries, clothing, telephone collect call credit or other
items from younger, smaller or vulnerable residents.

The

residents refer to this as being “on Bo” or “being Bo’d.”
term is derived from a popular movie.

The

One youth described “being

on Bo” as being essentially at the mercy of another youth or
other youths.

During our tour, Juvenile Corrections Officers

(JCO’s) and administrators confirmed that this has been become
more of a problem in recent months.

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Almost every officer and resident we interviewed also
mentioned that there has been a significant increase in the
presence of contraband at Evins.

Evins’ February 2009 Internal

Audit Report (Audit Report) suggests that:

1) contraband is

over-reported, 2) contraband does not typically include weapons
or drugs, and 3) individual instances may be reported as multiple
incidents.

While we appreciate the findings of the report, and

the audit team’s efforts, we remain concerned that contraband is
a growing issue at Evins, due to the significant number of staff
and youth who reported to us their personal observations and
experiences with the increase of contraband at the facility.
Contraband typically includes money, drugs, and food.

Many

of those we interviewed, both staff and residents, believed
contraband is being brought to the facility by visitors.
one officer stated that “There is a lot of weed here.”

Indeed,
Another

staff person indicated he believed the facility’s visitation
procedures needed to be reviewed to help stop the flow of
contraband.

One youth reported that drugs are brought into the

facility as frequently as every few days.
Staff must be constantly vigilant to prevent such
occurrences.

Proper staffing levels can help reduce the flow of

contraband or the occurrence of extortion.

Specifically,

staffing levels should be elevated at certain time periods when

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the potential for extortion or the entrance of contraband is
highest.

These periods include meal times and school hours, when

large numbers of youth are gathered together in one place.

We

note that the Audit Report indicates that Incident Reports do not
routinely document the items recovered.

We recommend Evins

strengthen its contraband documentation processes to ensure that
contraband detection, frequency, and type are accurately
reported.
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 continues to operate under General Administrative

Policy (GAP) 97.23 (Use of Force).

GAP.97.23 is pending final

approval, and is intended to place greater emphasis on the use of
de-escalation and other non-physical intervention methods as a
means to alleviate the need for uses of physical restraints, as
noted in our first Compliance Report.

TYC continues to update

DOJ regarding its policy ratification process.

While GAP.97.23

is not yet finalized, DOJ is encouraged by TYC’s continued
demonstration of improvement in its use of force practices at
Evins.

DOJ is also encouraged by the videodisks TYC submitted

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regarding staff use of force training, which, along with written
documentation, show improvement in use of force practices.

TYC

has confirmed that it will submit the final approved policy when
appropriate.
Following policy finalization, we recommend that TYC ensure
that it maintains the demonstrated improvement we have observed
under this paragraph, and ensure that all existing staff and any
new staff are trained on the finalized policy.
Compliance Rating:
(3)

Partial Compliance.

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

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injury that occurred as a result of the incident, and
in a way that permits review.
TYC continues to operate under 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);
and GAP.93.37 (Security Intake).

We are pleased that each of

these policies, except INS 91.91, are finalized, and we look
forward to reviewing INS 91.91 upon its final approval.

During

our tour, we found that staff routinely follow the above
referenced policies.
For example, 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.

While we were on-site, staff immediately

reported to DOJ, Evins management, and TYC officials, an incident
involving a JCO and youth being placed in security.

The video of

that incident and all available documents regarding the incident
were immediately provided to DOJ for our review, and the incident
was properly referred within the TYC framework.

In addition, in

one Office of Inspector General (OIG) report, a staff member
reported the suspected misconduct of another staff member

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regarding the possession of a cigarette lighter.

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The

investigation into these allegations was appropriate, and TYC
addressed the matter.
The toll-free hotline number TYC established for the
reporting of incidents to the IRC continues to be utilized, and
remains available 24 hours a day.

We reviewed documents that

indicated that from November 2008 through February 2009, over 200
calls to the hotline were made from Evins.

We were pleased to

see that IRC calls are followed up on, and that the requirements
for employees to report abuse, misconduct, and serious incidents
are being followed.

For example, in one report we reviewed, an

Evins staff member reported an allegation of neglect of a youth
by another staff member by calling the IRC.

An investigation

commenced as a result of the call, and TYC took appropriate
action.

In addition, in another report from the OIG, the OIG

investigated an allegation that a staff member prevented a youth
from using the hotline.

The documents we reviewed indicate that

the OIG commenced its investigation in less than two working days
after receiving the initial complaint.
We are pleased to see that Evins continues to document
serious incidents on Use of Force Reports (CCF-225s) pursuant to
INS 91.91.

We have reviewed the CCF-225s submitted to us by

Evins, and are encouraged to see that CCF-225s are being

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supplemented by Continuation Sheets (CCF-500s) where multiple
staff members are involved in a use of force incident.

However,

we encourage senior management and staff to continue to review
each report for completeness and accuracy.

Some reports we

reviewed contained inaccuracies and omissions.
For example, on one CCF-225, two JCOs attached their
summaries of a use of force incident in which a youth was
physically restrained, sent to nursing, and then to security.
The referring JCO checked “no” on the CCF-225 field, “Youth was
injured or claimed to be injured in the incident.”

The second

JCO, however, wrote a supplemental summary on a CCF-500 that
noted, “youth had redness to right shoulder and redness over
right eyebrow due to carpet.”

In addition, the field, “Staff

implemented physical restraint during this incident” was not
checked, and the appropriate Physical Restraint Report (CCF-260)
was not attached.

Notwithstanding these deficiencies, we are

pleased to see that the youth was seen by the nursing staff
within fifteen minutes of the incident, and that the CCF-225 and
CCF-500 forms were submitted within 20 minutes of the incident.
GAP.93.37 is the TYC policy designed to comply with state
law requiring the development of policies mandating zero
tolerance for sexual abuse.

During our tour, we did not uncover

information that suggested sexual abuse was occurring at Evins.

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In our review of the record of calls made to the IRC, TYC
documents indicate that there were zero complaints of either
sexual misconduct or inappropriate relationships between staff
and youth between October 2008 and February 2009; however, we
reviewed one investigation regarding an allegation of staff-onyouth inappropriate touching, and found that the matter was
appropriately investigated.
In addition, we were pleased to find that Evins has begun
implementing some of the technical assistance DOJ provided during
our last tour regarding intake screening and housing placements
for youth who may be at risk for sexual victimization.

TYC

documents confirm that there were two calls made to the IRC
regarding youth-on-youth sexual misconduct.

We reviewed one

investigation of such a case and found that the matter was
appropriately investigated, and that the youth alleged to have
been the victim of the misconduct was properly and promptly sent
for medical evaluation.

The allegation was determined to not be

sustained.
Evins continues to investigate inappropriate conduct through
the OIG.

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

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allegations of criminal misconduct occurring at Texas Youth
Commission facilities, and is an appropriate law enforcement
entity to receive reports of possible criminal violations.
During our October 2008 tour, we were informed that TYC was
in the process of hiring a second investigator to be stationed at
Evins.

However, when we visited Evins in March 2009 we learned

that although a second investigator had been hired, the first
investigator had been discharged.

We were pleased to learn,

following our March 2009 tour, that TYC has filled the second
investigator position, and that the second investigator should
begin working at Evins in May.
In addition, at the time of our tour, we learned that there
was a “backlog” of approximately 85 administrative investigations
that had been pending for more than 30 days.
investigations were much greater than 30 days.

The delays in some
For example, an

investigation was opened on November 14, 2007, after a youth
reported that two staff members were bringing drugs into the
facility.

The investigation was not closed until January 2,

2009, over a year after it was opened, and only then in part
because the youth who made the allegation, as well as one of the
staff members alleged to be involved, was no longer at the
facility or indeed at any TYC facility.

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TYC administrators informed us that they were dispatching a
team of four investigators to Evins to conduct the backlogged
investigations.

The team arrived, and began its work, the week

following our tour.

Per DOJ’s request, TYC submitted a sample

set of those investigations.

We reviewed each of those

investigations and find them to have been completed adequately.
We commend TYC for devoting the necessary resources to
eliminating this backlog.
In addition, while at Evins we received Evins’ first draft
of its Performance Based Standards (PbS) report.

We commend

Evins for undertaking this project, and look forward to future
assessments of trends and activities on campus.

As discussed in

Paragaph 23 below, we were informed that some of the data
collection practices were not yet formalized.
Compliance Rating:
(4)

Partial Compliance.

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.
Evins continues to implement INS.91.91, which requires the

Accident/Physical Restraint Review Board (RARB) to review all
incidents involving manual and mechanical restraints and uses of
OC spray, and requires the minutes of the meetings to be ratified

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Currently, the RARB is comprised of staff

from training, security, administration, direct care, human
resources, and other areas.

The RARB continues to be a positive

development at Evins; however, we encourage it to document in its
minutes the recommendations it makes regarding the use of OC
spray.

The minutes include only the JCO’s summary of the

incident that led to the use of OC spray, but not the RARB’s
conclusions regarding the appropriateness of the JCO’s actions.
We confirmed that the Superintendent continues to review all
serious incidents at Evins.

During our tour, when asked about

numerous incidents we learned about from our interviews with the
youth or staff and from documents we received on-site, the
Superintendent demonstrated clear familiarity with the facts of
each incident, and the actions that were taken by Evins to
address the incidents.

In addition, youth frequently approached

and thanked the Superintendent for looking into, and following up
on, their individual complaints about their allegations of
incidents, whether serious or otherwise.
As noted above, 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.

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process has been somewhat impeded by personnel problems; however,
as noted in Paragraph 3, TYC has made a good faith effort to
resolve this issue.
We recommend that TYC finalize INS.91.91.

Policy

finalization, coupled with the sustained improvements we observed
under this provision, will likely lead to a finding of
compliance.
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 tour, and
observed the nursing operations.

We are pleased to confirm that

the requirements of this Paragraph continue to be the standard
operating procedure at Evins.

We are also encouraged that Evins

has increased its on-site clinical staff to ensure increased
coverage efforts to expand on-site clinical services at Evins,
though Evins is currently seeking a replacement for its
psychologist.

We have been informed that until this position is

filled, another TYC psychologist will temporarily serve the youth

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at Evins, but will not be on-site full time.

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The planned 24/7

availability of medical services at Evins has not yet been
implemented.
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.
Evins continues to operate under GAP.97.23 (Use of Force)

and PRS.01.09 (Staff/Youth Relationships).

GAP.97.23 allows use

of force, including restraints, only 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.
As noted in our first report, TYC policies are within
generally accepted national standards of practice for secure
juvenile correctional facilities.

DOJ will continue to carefully

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

DOJ is encouraged by Evins’ progress under this

provision.

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We recommend that TYC finalize GAP.97.23.

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Policy

finalization, coupled with continued effective implementation
under this provision, will likely lead to a finding of
compliance.
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
misconduct, the State shall initiate appropriate personnel
actions and systemic remedies, where appropriate.
Evins continues to operate under GAP.07.03 (Incident

Reporting) and GAP.93.33 (Alleged Abuse, Neglect, and
Exploitation).
We were pleased to find that the OIG is routinely
documenting and tracking criminal and administrative
investigations involving alleged abuse, neglect, and
exploitation.

We are also encouraged to find that the OIG’s

review continues to encompass incidents such as:

use of force,

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 in Paragraph 3, and recognizing the previously noted
personnel problems TYC encountered that led to the resulting

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backlog of investigations, DOJ is encouraged by TYC’s recent replacement of an OIG investigator on site.
Compliance with this paragraph will require further
evaluation to assure that the system will function with its new
team, as well as a continued commitment to assure that all
allegations are timely 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.
As noted in Paragraph 3, 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, youth-on-youth assault,
inappropriate staff relationships with youth, and sexual
misconduct between youth.
TYC has taken important steps in implementing policies and
procedures to assure the safety and well-being of the youth at
Evins.

For example, the OIG tracks the number of calls from

Evins to the IRC, and classifies them by type of allegation.

Our

review of OIG investigations indicates that OIG is moving towards
more timely resolution of its investigations, notwithstanding the

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backlog noted in Paragraph 3.

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Investigations appear to be

comprehensive, and resources, such as review of videos, are used
effectively to supplement investigations.

The continued presence

of two full time investigative officers on campus should help
assure the integrity of the process.
DOJ will continue to carefully monitor the investigation
practices at Evins to assure that the system that 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.
As noted above, TYC has encountered unexpected problems in

staffing the OIG function on the campus.

It appears the agency

has made a good faith effort to resolve these issues.

At the

time of the DOJ site visit in March 2009, there was one OIG
investigator on-site.
by May 2009.

A second investigator should be at Evins

During our tour, we confirmed that OIG staff have

free access to all areas of the campus, all documents, and all
staff and youth at Evins.
DOJ will continue to monitor the workload of the officers
assigned to Evins over time to accurately assess compliance with

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this Paragraph.

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We encourage TYC to continue to commit as many

recourses as necessary to ensure the adequate staffing of the
investigation unit at Evins.
Compliance Rating:

Partial Compliance.

(10) 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.
TYC is currently in the process of revising its policies and
procedures relating to its behavioral programs for youth.

Evins

uses a newly developed program for addressing youth behavior.
The new 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 new program requires mental health and

treatment staff to consult daily to address programming and
behavior.

All educational services are to be provided while the

youth are in the program, and program expectations are to be met
even when a youth is attending class.
We are concerned with TYC’s effort to provide positive
reinforcements to youth on the campus as a whole.

This effort

appears to be lagging behind the effort to de-emphasize the use

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It is important that all youth have the

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

Rewards need to be quick, tangible, and of some

practical value to the youth.

For example, youth routinely told

us that one reward they may receive for compliant behavior is
deodorant.

The youth indicated that this was not an adequate

reward, however, as deodorant is provided to all youth regardless
of compliant behavior.

Our review of Evins’ privilege grid

confirms that basic toiletries are being offered as rewards for
compliant behavior.

While we found no evidence that Evins denies

youth hygiene products due to non-compliant behavior, we find
that the overall positive reinforcement practices are not yet
fully adequate.
The staff and administration have taken important first
steps in constructing a daily living program at the facility.
However, this work will need to be expanded and reinforced with
both staff and youth.

In our interviews with direct care staff

during our tour, we found a significant amount of ambivalence
among staff regarding the overall changes in behavioral
programming.

Some officers were supportive of the changes while

others believed the new program did not hold youths accountable.
In addition, during our interviews with staff and youth, we

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routinely heard that many of the positive reinforcements offered
under the new program are not effective in increasing positive
youth behavior.

Several staff, for example, mentioned that if

they could offer youth pizza and other snacks, or a movie
night—incentives that would feel like true rewards, they would
better be able to truly increase positive youth behavior.
At the conclusion of our tour, we raised these issues with
TYC senior staff.

We were informed that TYC was aware of the

issue, that it is being carefully considered, and that
improvements will be made.

We look forward to seeing future

developments under this provision.
Compliance Rating:

Partial Compliance.

(11) 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 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.

Evins maintains a staffing ratio better than

1:12.
As noted in our previous Compliance Report, the existence of
open bay dormitories continues to provide challenges for adequate

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staffing.

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We were pleased to find that the retrofitting of Dorms

Three A and B have been completed, and that Dorms Three C and D
are scheduled for completion by May.
completion by Fall 2009.

Dorm Four is scheduled for

During our interviews with staff and

youth, we found that, overall, the individual room dorms were
generally well received.

We note, however, that some staff

expressed concern that monitoring individual room dorms requires
a commitment to “walk the dorm” and perform routine and regularly
scheduled room checks to observe youth actions inside the rooms
as opposed to “passively scanning” an open bay dorm.

We

encourage Evins to appropriately train staff to monitor
individual room dorms and to develop procedures to adequately
document its monitoring practices.
We also note that TYC has continued to increase the number
of security cameras at Evins, which will soon have more than 900
such cameras.

While cameras cannot replace direct care staff,

they are an excellent tool for helping prevent undesired
activities, and for providing a record of what has occurred on
campus.

We were pleased to see this increase, and commend TYC

for supplying Evins with these additional resources.
Compliance Rating:

Partial Compliance.

(12) 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

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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 Information Center System).

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 thereafter.
Evins has sustained its compliance under this provision.
reviewed Evins’ new hire log and reviewed new hires’ HR-028b
forms.

The HR-028b’s confirmed that TYC continues to perform

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criminal background, warrant, driving, and sexual offender checks
on all staff before they are allowed to work with youth.

We are

pleased to find 100% compliance with this provision.
Compliance Rating:

Compliance.

(13) 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.

During our October 2008 tour, we found that previously, the
security unit had been used as a behavioral control device.

As

noted in our last Compliance Report, youth confined beyond 24
hours receive adequate due process and the opportunity to be
heard or otherwise contest their confinement.
During the DOJ site visit of March 2009, we learned that
there were eight residents being held in the security unit who
were refusing to leave that unit and return to the general
population.

The reasons given by the residents for not wanting

to leave varied.

One youth was expecting to be released from the

facility and did not “want to have anything happen” during his
last few days.

Others spoke of being frightened or victims of

extortion or simply preferring the relative quiet of the security
unit.

While we are concerned that these youth remain in

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security, we were pleased to find that each youth receives
adequate opportunity to explain himself, that none of the youth
felt unfairly confined to security, and that each is counseled
every day by a case worker who attempts to re-integrate the youth
into general population.
We are encouraged that the Superintendent has continued to
emphasize 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 generally are not confined in their rooms for
extended periods of time.
Notwithstanding these efforts, Evins must continue to seek
ways to re-integrate youth who simply refuse to leave security
and return to general population.

This kind of behavior is not

unprecedented in juvenile facilities.

We appreciate that this is

a significant challenge for staff, and are pleased to see the
good faith efforts by Evins staff to address this issue.

We

recommend that staff continue working to identify potential
problems on the general units and resolve issues that cause some
youth to want to remain in the security unit.
Notably, Evins also uses an inter-disciplinary board to
review security referrals and due process.

During our tour, we

observed that the review meeting was well-attended and

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productive.

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During the meeting, staff expressed some concern

over the adequate processing of security referrals.

Some staff

indicated that paperwork was being misplaced, and that JCO
referrals of youth to security were not being adequately
considered by security staff.
similar concerns from JCO’s.

While on the dorms, we also heard
The Internal Audit indicates that

some security unit referrals are not adequately submitted.

We

are pleased that staff are engaged in the appropriate dialogue
with each other to find workable solutions for these problems.
It appears that Evins is on an upward trajectory in remediating
these issues.

As the use of the security unit, referral writing,

and the handling of documentation, is changing, it will be
necessary to continue to monitor its use and the corresponding
provision of due process.
Compliance Rating:

Partial Compliance.

(14) 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.
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 system at Evins appears to be generally
functional.

The Audit Report indicates that while grievances are

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responsive, they are not always timely under GAP.93.31.

The

grievance system still does not contain 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.
We recommend that Evins implement a procedure to track the
timely resolutions of its grievances.

This, along with continued

improvement under this provision, will likely lead to a finding
of compliance.
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
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.
TYC has revised its intake, assessment, and classification
systems.

The new classification system better ensures the safe

and secure placement of youth within agency facilities and
programs.

For example, TYC is implementing a policy designed to

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be closely modeled after the Prison Rape Elimination Act’s (PREA)
essential requirements.

The policy mandates that a screening is

completed for every youth on all dorms.

Revisions to the current

assessment system are ongoing.
Our review of a sampling of juvenile records at Evins
indicates that the basic information that is collected through
community resources in the juveniles’ home communities and the
information obtained at TYC intake facilities is consistent with
generally accepted professional practices.
Interviews with youth confirm they generally have a basic
awareness of their rights, how to file a grievance, and how to
report concerns about their treatment.

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:

Partial Compliance.

(16) 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.
Evins has begun to designate certain open bay dormitories to
serve particular populations.

Still, the design of the buildings

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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.

During our

tour, we were informed that Evins currently houses many sexual
offenders in single room dorms; however, a few remain in the open
bay dorms.

When asked how Evins monitors these youth, we were

informed these youth are bunked in beds closest to JCO offices so
that the youth can be more closely monitored than on the far side
of the dorm.
We encourage Evins to continue to seek adequate housing
assignments for sexual offenders.

As a general practice, youth

who have committed sexual offenses should be 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 meant to reduce the opportunity for

sexual assaults and sexual acting out.
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 Evins has begun to work to

assign particular groups of compatible youths to particular
units.
part.

However, this is clearly a new effort on the staff’s
During the DOJ’s site visit of March 2009, we noted the

TYC has begun to better use the information gathered at intake in

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making housing assignments at Evins.

Page 31 of 43

However, the limitations of

the current physical plant make this a difficult task and
demonstrate the need for the staff to be particularly diligent at
all times in the supervision of the residents.

We recommend that

TYC continue the retrofitting of the single room dorms to address
this issue.
Compliance Rating:

Partial Compliance.

(17) 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.

TYC’s continued 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

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We were pleased to see standardized

logs that tracked Evins’ staff training completion dates for each
of the trainings offered by TYC.
are not limited to:

Those trainings include, but

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.
As a part of the DOJ’s March 2009 site visit, DOJ staff and
its expert attended an afternoon portion of a training session
held for new JCO staff at the TYC’s training facility in
Corsicana, Texas.

The afternoon session focused upon verbal de-

escalation techniques staff can use to address and control
residents who are experiencing problems.

The training was

appropriate and consistent with generally accepted professional
standards.
In order to achieve its training goal, TYC must continue to
commit a great deal of resources to the effort.

This is an area

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

DOJ and TYC are currently

working to schedule an additional tour of the agency’s primary
training site in order to evaluate the courses offered.

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Partial Compliance.

(18) 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

should 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

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number of juvenile facilities around the United States.

The

certification of new employees and re-certification of existing
employees is an on-going process.

The training observed by DOJ

staff and its expert in March 2009 at Corsicana was a part of
this training effort.

This Paragraph will require careful

monitoring to assure that staff are trained as required.
Compliance Rating:

Partial Compliance.

(19) 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 crisis 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 2008 site visit, it was found that the
new programming effort had not been fully implemented.

This was

not unexpected, as these changes represent a major philosophical
shift for the campus, which will take time to successfully

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implement.

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While on campus during March 2009, the DOJ and its

expert found progress had been made.

During interviews with

residents it appeared most understood the new program.

Some

staff were enthusiastic while others lamented the change,
generally citing a sense that the new program did not hold
residents as “accountable” for their actions.

Some staff felt

that the new program also does not allow for the imposition of
needed discipline on residents.

We recommend that efforts are

put in place to ensure that youth see the consequences of their
actions.
Compliance Rating:

Partial Compliance.

(20) 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.
See comments for Paragraph 17.

Staff Training and Incident

Report Writing courses are currently being offered by TYC.
All employees are required to receive training on incident
reporting, including 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.

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procedures and guidelines are in place and training is completed,
a finding of compliance will be possible.
Compliance Rating:

Partial Compliance.

(21) Document Development and Revision Throughout the term of
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.

Some policies are

currently still 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:

Compliance.

(22) 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
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.

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TYC has indicated that it will provide all finalized
policies after they have become ratified; training on those
policies should follow immediately after ratification.

We are

pleased to find that staff have received all refresher training
courses on finalized policies, and recommend TYC finalize all
outstanding policies.

Once this step is accomplished, a finding

of compliance will likely follow.
Compliance Rating:

Partial Compliance.

(23) 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.
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

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are key requirements of this order.

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Examples include:

the

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

Over time, this participation should result in

TYC administrators having an increased ability to incorporate
actual hard data into management decisions.
While on site in March 2009, the DOJ staff and its expert
were given the first report of the PbS project at Evins.

The

first report is the result of Evins’ participation in Pbs’
October data gathering cycle.

In general, a facility’s first

reporting cycle typically reveals data gathering and other
process problems which are not known until the data is analyzed.
Such was the case with Evins’ data.

This is not unexpected and

many of the problems encountered should be resolved in the
facility’s second cycle, which is scheduled for April 2009.

The

DOJ and its expert continue to encourage TYC’s participation in
the PbS project, and look forward to seeing the initial problems
resolved.
Compliance Rating:

Partial Compliance.

(24) Corrective Action Plans With regard to the protection from
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.

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Established pursuant to GAP.05.01, TYC’s internal audit
department is tasked with reviewing and improving performancebased 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.
The Audit Report constitutes an internal quality assurance
report on the operations at Evins.

The report appears to be

well-crafted and represents a positive step in self-monitoring
for the TYC.

The report makes a variety of findings and

recommendations that require a response from the management at
Evins.

The presence of a strong quality assurance effort

indicates an openness to self-examination and potential
improvement within an agency.

Once a formal corrective action

plan is developed for each Paragraph of the Agreed Order, a
finding of compliance will likely follow.
Compliance Rating:

Partial Compliance.

(25) 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

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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 helpful and cooperative in the monitoring
of this agreement.
staff, and youth.

DOJ has complete access to the facility,
TYC has endeavored to provide all requested

documents in a timely and convenient manner.

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DOJ staff and its expert were on-site at Evins from March
10-12, 2009, and at the Corsicana training facility on March 9,
2009.

Additional tours will be conducted pursuant to this

agreement.
Compliance Rating:

Compliance.

(26) 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.

We find that information is

adequately disseminated to employees.

The Compliance Officer has

copies of the Agreed Order on display in plain view in the
administration office, and displays laminated posters that
highlight each provision of the Agreed Order.
Compliance Rating:

Compliance.

41

Case 7:08-cv-00038

Document 14

Filed in TXSD on 04/29/2009

Page 42 of 43

Respectfully Submitted,

FOR THE UNITED STATES:

TIM JOHNSON
Acting United States Attorney
Southern District of Texas

LORETTA KING
Acting Assistant Attorney
General
Civil Rights Division

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

/s/ Daniel H. Weiss
DANIEL H. WEISS
Deputy Chief
SHERIDAN L. ENGLAND
Attorney-in-charge
New York Bar: 4392205
AARON FLEISHER
Trial Attorney
New York Bar: 4431052
U.S. Department of Justice
Civil Rights Division
Special Litigation Section
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

42

Case 7:08-cv-00038

Document 14

Filed in TXSD on 04/29/2009

Page 43 of 43

CERTIFICATE OF SERVICE
I hereby certify that on April 28, 2009, 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
jim.todd@oag.state.tx.us

/s/ Sheridan L. England
SHERIDAN L. ENGLAND

43

 

 

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