A compromise made Wednesday by the Texas Youth Commission with Texas Appleseed and Advocacy Inc. about the commission's use of pepper spray could be short-lived.
The youth commission agreed to not use pepper spray as a first response against the incarcerated youths it houses, but on Dec. 3, the commission will hold a public hearing on a new use policy.
The compromise followed a lawsuit the advocacy groups filed against the commission. After the commission issued a directive in August that allowed the use of pepper spray before physical restraint, the advocacy groups filed suit, alleging the directive was illegal because the change was not made in accordance with the Administrative Procedure Act, which determines the way government organizations establish their regulations.
The groups reached an agreement in September, but Texas Appleseed and Advocacy Inc. filed a motion to enforce on Nov. 19 after evidence showed the commission was not adhering to the settlement agreement, which was the existing use of force policy.
"The advocacy group court issue was taken over how we were using our old policy," said Jim Hurley, spokesman for the youth commission. "At the same time we were in court, we were working on a new policy that will define the entire use of force."
Hurley said the policy has been posted at the Texas Registry and is open for public comment, with a public hearing scheduled for Monday.
"There will be a number of changes across the continuum - pepper spray will still be authorized to be used, and the new policy will provide clarification on the circumstances that pepper spray will be allowed," he said.
The compromise has several elements. It states that youths who have respiratory or health problems will be put on a "no-spray" list. There will be no pepper spray used in the commission's facility in Corsicana for youths with mental and emotional problems, unless it is necessary to prevent loss of life or serious bodily injury.
Also, if a youth's mental condition would contraindicate the use of pepper spray, a mental health professional must have the opportunity to control the situation.
Pepper spray may not be used if the youth are in a confined area unless if the youth's behavior poses a risk of "imminent harm," defined as an immediate risk of someone being hurt.
The advocacy groups are not supportive of the youth commission's proposed new use policy.
"The new policy proposes the use of pepper spray before physical restraint, and also expands the situations when you can use pepper spray," said Richard LaVallo, lead attorney for Advocacy Inc. "We propose that they hold off adopting the new rule."
Deborah Fowler, legal director for Texas Appleseed, said they are very concerned about the commission's new rule proposal, and they intend to be at the public hearing.
"It will take us right back to where we were before the compromise," Fowler said. "It will expand the way spray is used at TYC. "
When asked if he thought the advocacy groups will have a problem with the new use policy, Hurley said the commission "will wait and see what their comments are."
According to LaVallo, the new policy could be implemented as soon as next Friday if the commission puts the rule on the "fast-track."
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