Jail Commission, Counties Navigate New Mandates

By Julie Anderson

Editor

The Sandra Bland Act, passed by the 85^th Texas Legislature, calls for a multitude of changes that are affecting and will affect Texas county jail operations and Minimum Jail Standards including education requirements, installation of specific equipment, and inmate access to health and mental health professionals.

Throughout the last year, the Texas Commission on Jail Standards (Commission) and Texas counties have been working diligently to comply with the new mandates including the adoption of rules and procedures and completion of required training.

To view the statute and the bill analysis in full, go to http://www.capitol.state.tx.us/, click on (85)R, and key in SB1849.

Important elements of the Sandra Bland Act, required deadlines, and actions taken to date are as follows:

Identification and Notification of Defendant Suspected of Having Mental Illness or Intellectual Disability to Magistrate

The Code of Criminal Procedure was amended to require the sheriff, “not later than 12 hours, rather than 72 hours, after receiving credible information that may establish reasonable cause to believe that a defendant committed to the sheriff’s custody has a mental illness or is a person with an intellectual disability, including observation of the defendant’s behavior immediately before, during, and after the defendant’s arrest and the results of any previous assessment of the defendant, to provide written or electronic notice of the information to the magistrate.”

     Key Change: The notification requirement is now 12 hours rather than 72 hours; this change went into effect on Sept. 1, 2017.

Diversion of Those Suffering Mental Health Crisis or Substance Abuse

The Code of Criminal Procedure was amended to require each law enforcement agency to make a “good faith effort” to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the agency’s jurisdiction if:

1. there is an available and appropriate treatment center in the agency’s jurisdiction to which the agency is authorized to divert the person;
2. it is reasonable to divert the person;
3. the offense that the person is accused of is a misdemeanor, other than a misdemeanor involving violence; and
4. the mental health crisis or substance abuse issue is suspected to be the reason the person committed the alleged offense.

This new requirement went into effect on Sept. 1, 2017.

Grant Money for Community Collaboratives

The Sandra Bland Act amended the Government Code to require the Department of State Health Services to, depending on appropriated funds, make grants available to certain entities for the establishment or expansion of collaboratives to provide services to those experiencing homelessness, substance abuse issues, or mental illness. Language was also added to the statute requiring the development of plans for certain community collaboratives.

As of press time, these plans were still in development.

Release on Personal Bond of Certain Defendants with Mental Illness or Intellectual Disability

The Code of Criminal Procedure was amended to require a magistrate to “release a defendant on personal bond unless good cause is shown otherwise if the defendant is examined by the local mental health or intellectual and developmental disability authority or a certain other mental health expert, and an applicable expert, in a certain written assessment, concludes that the defendant has a mental illness or is a person with an intellectual disability and is nonetheless competent to stand trial, and recommends mental health treatment or intellectual disability treatment for the defendant, as applicable.”

This new requirement took effect on Sept. 1, 2017.

Safety of Prisoners

The Sandra Bland Act requires county jails to:

1. give prisoners the ability to access a mental health professional at the jail through a telemental health service 24 hours a day;
2. give prisoners the ability to access a health professional at the jail or through a telehealth service 24 hours a day, or if a health professional is unavailable at the jail or through a telehealth service, provide for a prisoner to be transported to access a health professional; and
3. install automated electronic sensors or cameras to ensure accurate and timely in-person checks of cells or groups of cells confining at-risk individuals. The Legislature created an account titled the Prisoner Safety Fund, and counties that operate a jail that is 96 beds or less may apply for grants to assist in paying for the capital improvement upgrades, such as electronic sensors and possibly cameras.

The Commission has “been provided direction from the authors” that any funds that are left over after fulfilling the installation of sensors or cameras may be used to assist counties (96 beds or less) with the equipment for the other two mandates, but not the ongoing operational cost, reported Brandon Wood, executive director of the Commission.

The deadline for the Commission to adopt rules and procedures regarding these new requirements was Sept. 1, 2018. The county must comply with these new requirements by Sept. 1, 2020.

     The Commission adopted rules §273.2(13) and (14) and §275.1, effective Aug. 26, 2018, which implement these components of the Sandra Bland Act as follows:

• (13) provide procedures that shall give prisoners the ability to access a mental health professional at the jail through a telemental health service 24 hours a day and approved by the Commission by Aug. 31, 2020;
• (14) provide procedures that shall give prisoners the ability to access a health professional at the jail or through a telehealth service 24 hours a day or, if a health professional is unavailable at the jail or through a telehealth service, provide for a prisoner to be transported to access a health professional and approved by the Commission by Aug. 31, 2020.

On Oct. 2, the Commission sent a Technical Assistance Memo to all County Judges discussing telemental health care. The memo included the following language: In the coming months, the Commission will hold workshops to develop policies that will define compliance with this new rule and will inform jails of the policies. Some of the policies to be determined will be:

1. What will inspectors look for to determine compliance?
2. What is a telemental health service, and where can this service be found?
3. Will a phone call to a mental health professional be compliant?
4. Must the telemental health care be delivered via computer?
5. Must the inmate be able to see a live video of the mental health professional?
6. Must the Commission approve the equipment?
7. Must jails comply if they currently have onsite mental/medical?

Prisoner Safety Fund

Approximately $1 million was appropriated to the Commission for the Prisoner Safety Fund; the grant fund became operational in September 2017 with the first disbursement going to Bosque County in June 2018. Counties are being reimbursed on a case-by-case basis upon review of itemized documentation indicating the cost of equipment and installation.

The Commission has contacted County Judges, jailers, and sheriffs in eligible counties regarding the grant application and reimbursement process, explained Bobby Ratra, grant coordinator for the Commission.

As of press time, there were 50 counties already in compliance without requesting funding, reported William Turner, research specialist with the Commission. Eight counties have received a total of $38,500 in funding. Over 50 counties have submitted or are in the process of submitting requests for funding, which will total approximately $155,000.

For more information on the Prisoner Safety Fund, please contact Ratra at bobby.ratra@tcjs.state.tx.us or Jason Ross at jason.ross@tcjs.state.tx.us.

Continuity of Medications

The Commission shall adopt reasonable rules and procedures establishing minimum standards regarding the continuity of prescription medications for the care and treatment of prisoners.

The Commission adopted rule §273.2(12), effective Jan. 1, 2018, which implemented this component of the Sandra Bland Act as follows: Provide procedures that shall require that a qualified medical professional shall review as soon as possible any prescription medication a prisoner is taking when the prisoner is taken into custody.

Serious Incident Report

On or before the fifth day of each month, the sheriff of each county must report to the Commission any of the following incidents that happened in the county jail during the prior month:

• suicide;
• attempted suicide;
• death;
• serious bodily injury, as that term is defined by Section 1.07, Penal Code;
• assault;
• escape;
• sexual assault; and
• any use of force resulting in bodily injury, as that term is defined by Section 1.07, Penal Code.

The new rule became effective Jan. 1, 2018, and the first reports were due on Feb. 5, 2018, covering the previous month, Wood said.

Death in Custody Investigation

On the death of a prisoner in a county jail, the Commission shall appoint a law enforcement agency, other than the local law enforcement agency that operates the county jail, to investigate the death as soon as possible.

While counties may have their own criminal investigators or internal affairs divisions investigate deaths in custody, the Commission is mandated to appoint an independent, outside agency to investigate the death.

The Commission adopted rules 269.5(A), (B), and (C) effective Jan. 1, 2018, as follows:

Deaths in Custody

(A) The Texas Commission on Jail Standards shall be notified of all deaths of inmates while in the custody of sheriff/operator within 24 hours of the death.

(B) The Commission shall appoint a law enforcement agency, other than the local law enforcement agency that operates the county jail, to investigate the death.

(C) Upon conclusion of the investigation by the designated law enforcement agency, the report shall be submitted to the Texas Commission on Jail Standards.

The Commission also approved and is implementing a list of independent investigators.

Jail Administrator Examination

The Government Code was amended to require the Texas Division on Law Enforcement (TCOLE) to develop and the Commission to approve an examination for county jail administrators.

The sheriff of a county must perform the duties of the jail administrator position at any time there is not a person available who satisfies the examination requirements of this new section of law.

Anyone serving as a jail administrator on or before March 1, 2018, will be grandfathered and not required to take the exam. However, if a jail administrator transfers to another county, or a new or incoming sheriff appoints the existing jail administrator to the same position, the exemption does not apply, and the administrator must take the exam.

The Commission adopted rule 275.8, effective March 1, 2018:

• Jail Administrator Examination. A person appointed to the position of Jail Administrator after March 1, 2018, is required to satisfy the requirements of the Jail Administrator Examination as required by Texas Government Code §511.00905. A person appointed as Jail Administrator must satisfy this requirement within 180 days of his/her appointment. If the person appointed as jail administrator is unable to satisfy the requirements of the examination, he/she shall be immediately removed and may not serve as the jail administrator until he/she satisfies the examination requirements of this section.

As of press time, 323 jailers had taken and passed the exam.

Jail Training – Mental Health Course

The Occupations Code was amended to require that county jailer training include at least eight hours of mental health training approved by TCOLE and the Commission. Current license holders have until Aug. 31, 2021, to take an approved eight-hour course.

The new law requires the Commission to employ three mental health trainers who will be responsible for teaching the mental course in their assigned regions.

The training will be at no cost to the county.

The Commission has hired three staff members to conduct the training. As of press time, 6,298 actively appointed jailers (temporary and permanent) had completed the TCJS Mental Health training. To put this in context, there are 23,058 licensed jailers in Texas and 2,621 with a Temporary Jailer License, Turner explained.

New Training Requirement for Law Enforcement Officers

The Occupations Code was amended to require TCOLE, as part of the minimum curriculum requirements, to require an officer to complete a 40-hour statewide education and training program on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments. The new language also requires TCOLE, as part of the minimum curriculum requirements, to require an officer to complete a statewide education and training program on de-escalation techniques to facilitate interaction with members of the public, including techniques for limiting the use of force resulting in bodily injury.

To read more about this requirement, please see the statute: http://www.capitol.state.tx.us/, click on (85)R, and key in SB1849.

Important Reminders

Wood has fielded a multitude of questions from officials across the state and has offered the following suggestions:

1. The law does not require electronic sensors or cameras for each and every cell, “so be mindful of that statement from vendors,” Wood emphasized. The agency will be conducting a survey to assist counties in determining if they already comply or what they will need in order to comply.
2. Regarding the eight-hour course for jailers: This course is free and will be conducted across the state over the next four years. “Make sure your jailers do not wait until the last moment to attend one of the classes,” Wood cautioned. Regarding jail administrators who are grandfathered in, “we encourage all of them to take the exam as it helps promote professionalism within their profession and demonstrates competency.”

To view the Minimum Jail Standards, go to https://www.tcjs.state.tx.us/ and click on TCJS Resources. *