Texas Department of Criminal Justice Responses to 28 CFR Part 115 – National PREA Standards

State Responding: Texas Department of Criminal Justice Date: April 1, 2011
Question As Posed In The Notice
#2: Should the Department modify the full-time coordinator requirement to allow additional flexibility, such as by requiring only that PREA be the coordinator’s primary responsibility, or by allowing the coordinator also to work on other related issues, such as inmate safety more generally? #3: Should the final rule provide greater guidance as to how agencies should conduct such monitoring? If so, what guidance should be provided? #4: Should the standard require that facilities actually provide a certain level of staffing, whether determined qualitatively, such as by reference to “adequacy,’’ or quantitatively, by setting forth more concrete requirements? If so, how? #5: If a level such as ‘‘adequacy’’ were mandated, how would compliance be measured? #6: Various States have regulations that require correctional agencies to set or abide by minimum staffing requirements. To what extent, if any, should the standard take into account such State regulations? #9: Should the standard require the establishment of priority posts, and if so, how should such a requirement be structured and assessed? #10: To what extent can staffing deficiencies be addressed by redistributing existing staff assignments? Should the standard include additional language to encourage such redistribution?

Response to Question Posed
Question 2: In general, the standards should permit the states flexibility in implementation.

Question 3: In general, the standards should permit the states flexibility in implementation. Question 4: In general, the standards should permit the states flexibility in implementation. Question 5: Each agency should determine the adequacy of staffing. Question 6: In general, state regulations should control

Question 9: The standard may require establishing priority posts, but the states should determine the priority posts. Question 10: We have no objection, but encouraging the prioritization of staffing assignments in response to vacancies is not necessary.

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Texas Department of Criminal Justice Responses to 28 CFR Part 115 – National PREA Standards
#12: Should the Department mandate the use of technology to supplement sexual abuse prevention, detection, and response efforts? #13: Should the Department craft the standard so that compliance is measured by ensuring that the facility has developed a plan for securing technology as funds become available? #14: Are there other ways not mentioned above in which the Department can improve the proposed standard? #15: Should this standard mandate a minimum frequency for the conduct of such rounds, and if so, what should it be? #16: Should the final rule contain any additional measures regarding oversight and supervision to ensure that pat down searches, whether cross-gender or samegender, are conducted professionally? #17: Should the final rule include a requirement that inmates with disabilities and LEP inmates be able to communicate with staff throughout the entire investigation and response process? If such a requirement is included, how should agencies ensure communication throughout the process? #19: Should this standard expressly mandate that agencies attempt to enter into memoranda of understanding that provide specific assistance for LEP inmates? #22: Should the final rule provide greater guidance regarding the required scope of the intake screening, and if so, how? Question 12: Expanding the use of technology beyond current levels would impose a substantial additional cost. Question 13: This alternative would not impose additional costs.

Question 14: § 115.13 is written to accomplish PREA objectives and provide flexibility in implementation. Question 15: As facility types and offender custody levels and profiles differ, frequency of rounds should be left with the agency management. Question 16: In general, the standards should permit the states flexibility in implementation. Question 17: Any standard should permit the states flexibility in implementation.

Question 19: In general, the standards should permit the states flexibility in implementation. Question 22: The scope of screening requirement appears sufficient. In general, the standards should permit the states flexibility in implementation.

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Texas Department of Criminal Justice Responses to 28 CFR Part 115 – National PREA Standards
#23: Should the final rule mandate that agencies provide inmates with the option of making a similarly restricted report to an outside public entity? To what extent, if any, would such an option conflict with applicable State or local law? #24: The Dept.’s proposed standard addressing admin. remedies differs significantly from the Comm.’s draft. The Dept. encourages comments on all aspects of this proposed standard. #25: Does this standard provide sufficient guidance as to how compliance would be measured? If not, how should it be revised? #26: Should the standard be further refined to provide additional guidance regarding when continuing monitoring is warranted, or is the current language sufficient? #27: Does the standard that requires known inmate abusers to receive a mental health evaluation within 60 days of learning the abuse has occurred provide adequate guidance regarding the scope of treatment that subsequently must be offered to such abusers? If not, how should it be revised? #28: Should audits be conducted at set intervals, or should audits be conducted only for cause, based upon a reason to believe that a particular facility or agency is materially out of compliance with the standards? If the latter, how should such a for-cause determination be structured? #29: If audits are conducted for cause, what entity should be authorized to determine an audit is appropriate, then to call for an audit to be conducted? What would be the appropriate standard to trigger an audit requirement? #30: Should all facilities be audited or should random sampling be allowed for some or all categories of facilities in order to reduce burdens while ensuring that all facilities could be subject to an audit? Question 23: No, section § 115.51 already addresses reporting to the Office of Inspector General or ombudsman. Question 24: See our comments to the standards.

Question 25: Yes Question 26: No. The standard is sufficient. Question 27: Yes

Question 28: Audits could be conducted at set intervals and not exceed once every three years. However, audits for cause would limit costs and target resources on facilities with reported or substantiated allegations. Question 29: Agency management should determine when it is appropriate to call for an audit. The number of alleged and/or substantiated incidents could be reason for audits for cause. Question 30: All facilities could be audited; however random sampling or audits for cause would be less costly and target facilities with reported or substantiated allegations.

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Texas Department of Criminal Justice Responses to 28 CFR Part 115 – National PREA Standards
#31: Is there a better approach to audits other than the approaches discussed above? #32: To what extent, if any, should agencies be able to combine a PREA audit with an audit performed by an accrediting body or with other types of audits? #33: To what extent, if any, should the wording of any of the substantive standards be revised in order to facilitate a determination of whether a jurisdiction is in compliance with that standard? #34: How should ‘‘full compliance’’ be defined in keeping with the considerations set forth in the above discussion? #35: To what extent, if any, should audits bear on determining whether a State is in full compliance with PREA? #36: Should the final rule include a standard that governs the placement of juveniles in adult facilities? #37: If so, what should the standard require, and how should it interact with the current JJDPA requirements and penalties mentioned above? #57: Do agencies expect to incur costs associated with proposed §§ 115.13, 115.113, 115.213, and 115.313, notwithstanding the fact that it does not mandate any particular level of staffing or the use of video monitoring? Why or why not? If so, what are the potential cost implications of this standard under various alternative scenarios concerning staffing mandates or video monitoring mandates? What decisions do agencies anticipate making in light of the assessments called for by this standard, and what will it cost to implement those decisions? Question 31: Audits in conjunction with an ACA audit is another option. Question 32: See response to question #31. Question 33: Wording of the standard is sufficient.

Question 34: Substantial compliance based upon the agency complying with a set number of standards, such as 90%. Question 35: See response to question #34. Question 36: Should be determined by state law. Question 37: It should not conflict with existing state law. Question 57: § 115.13 is written to accomplish PREA objectives and give the state’s flexibility. The previous PREA standard/Commission recommendation (PP-7) requiring video monitoring systems at all facilities would have cost approximately $98 million for start-up and $5.5 million for annual maintenance costs.

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Texas Department of Criminal Justice Responses to 28 CFR Part 115 – National PREA Standards
#58: With respect to §§ 115.14, 115.114, 115.214, and 115.314, will the limitations on cross- gender viewing (and any associated retrofitting and construction of privacy panels) impose any costs on agencies? If so, please provide any data from which a cost estimate can be developed for such measures. #61: Is there any basis at this juncture to estimate the compliance costs associated with §§ 115.93, 115.193, 115.293, and 115.393, pertaining to audits? How much do agencies anticipate compliance with this standard is likely to cost on a per- facility basis, under various assumptions as to the type and frequency or breadth of audits? Question 58: There would be a significant additional cost if privacy panels were constructed, but such construction would be inadequate to address the operational and legal issues associated with limits on cross-gender viewing while staff perform their official duties. Question 61: The previous PREA standard/Commission recommendation (AU1) requiring comprehensive audits every three years at all facilities would have cost approximately $0.5 million annually. However, this estimate is substantially reduced if the independent audit function reporting to the governing body performs the audits on an ongoing basis. Note the prohibition on auditing entities receiving compensation from the agency in prior years may preclude utilizing the American Correctional Association audit process.

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