TN 26 (05-16)

PR 06805.048 Texas

A. PR 016-092 Texas Law – Whether Texas Civil Commitment Center is a Sexually Dangerous Person Facility

Date: March 8, 2016

1. Syllabus

This opinion provides information on Texas’ new special commitment center called, Texas Civil Commitment Center (TCCC) that was created in June 2015. It also acknowledges that TCCC is a facility that Texas opened specifically for persons who are sexually dangerous persons (SDP). Because this facility houses sexually dangerous persons, we needed to have a legal opinion on whether the Agency could or could not stop Title II monthly benefits if a beneficiary was placed in TCCC after he or she finished his confinement sentence in a correctional institution. This opinion concludes that Texas does have a law providing for court ordered confinement of an SDP, and the civil commitment statutory definition and procedure for finding a person a sexually violent predator meets the Agency’s statutory requirements of an SDP under the Act.

2. Opinion

QUESTION PRESENTED

This memorandum responds to your request for an opinion on whether the Social Security Administration (SSA) can suspend Title II benefits to an individual whom a Texas court commits to Texas Civil Commitment Center (TCCC) pursuant to a court order finding the individual is a sexually dangerous person or sexual predator (hereinafter combined referred to as “SDP”).[1] You asked broadly whether TCCC is a facility for SDPs (SDP facility) to determine whether SDP nonpayment provisions of Title II of the Social Security Act (Act) apply, but you also presented this issue for the specific purpose of determining whether SSA should continue to suspend D~’s (the number holder’s) benefits.

ANSWER

For Title II purposes, SSA must suspend benefits to an SDP when the SDP is indigent[2] and resides at an SDP facility because the SDP is confined at public expense. TCCC is an SDP facility. SSA must continue payments to an SDP who is not indigent and who resides in TCCC because a non-indigent SDP is responsible for the cost of his or her housing, treatment, and tracking service at TCCC, and as a result, is not confined “at public expense” as the Act’s SDP nonpayment provisions require. Accordingly, in determining whether SSA should continue to suspend the number holder’s Title II benefits, SSA must determine if he is indigent

BACKGROUND

In June 2015, the Texas Legislature amended the Texas Health and Safety Code, Chapter 841, regarding civil commitment of sexually violent predators.[3] See Tex. Health & Safety Code Ann. §§ 841.001-.151 The amendment created the Texas Civil Commitment Office (TCCO) and required TCCO to develop and implement a tiered treatment program for persons civilly committed as sexually violent predators. See id. at § 841.0831. The amendment also required TCCO to operate, or contract with a vendor to operate, one or more facilities to house the civilly committed sexually violent predators.[4] See id. at § 841.0832. As a result, TCCO established TCCC, a 382-bed facility for sexually violent predators, and contracted with Correct Care Recovery Solutions to operate the program.[5] TCCC’s treatment program provides its residents[6] with tiered inpatient and outpatient sex-offender treatment services.

For purposes of Title II benefits,[7] SSA suspends social security benefits to SDPs in states that have laws expressly providing for court ordered confinement of SDPs. Consequently, SSA requested an opinion on whether an individual whom a Texas court commits to TCCC meets the criteria for suspension of Title II benefits under the SDP nonpayment provisions of the Act.[8]

ANALYSIS

Federal Law: Title II Benefits and the Sexually Dangerous Person Nonpayment Provision

The Ticket to Work and Work Incentives Improvement Act of 1999 amended section 202(x) of the Social Security Act (Act) to prohibit the payment of Title II benefits to prisoners in specific situations and included a provision prohibiting payment of benefits to an SDP confined in an institution at public expense. See Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, § 402(d), 113 Stat. 1860, 1910 (1999) (effective April 1, 2000) (provision concerning “continued denial of benefits to sex offenders remaining confined to public institutions upon completion of prison term”). This provision was “intended to limit the drain on scarce Social Security resources by persons whose basic needs are already being provided for by the State.” Dawley v. Barnhart, 2006 WL 2085976, at *2 (D.Mass. July 26, 2006) citing Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987) (the nonpayment provision of section 202(x) “rationally promotes the legitimate underlying congressional policy goal of conserving scarce social security resources where a prisoner’s basic economic needs are provided from other public sources”); Artz v. Barnhart, 214 F.Supp.2d 459, 467-468 (D.N.J. 2002) (Congress’s intent in amending section 202(x) was to prevent a prisoner from being “doubly compensated,” and that “[w]hen an individual is not confined at public expense, he or she is entitled to receive monthly benefits; however, when an individual is confined at public expense, he or she is not entitled to monthly benefits,” which “clearly expresses the concern that Congress had in protecting against the draining of public funds”) aff’d 330 F.3d 170 (3rd Cir. 2003).

Specifically, under Title II of the Act, SSA does not pay monthly benefits to an individual who meets all of the following criteria:

(1) the individual had to have been confined in a jail, prison, or other penal or correctional facility pursuant to a conviction of a criminal offense;

(2) the criminal offense had to involve sexual activity; and

(3) upon completion of the prison conviction/sentence, pursuant to a court order, the individual was immediately transferred and confined in an institution[9] at public expense because the individual was determined to be a sexually dangerous person, a sexual predator, or a similar finding.

See 42 U.S.C. § 402(x)(1)(A)(i), (iii). The Program Operations Manual System (POMS) refers to these provisions of the Act as the sexually dangerous person nonpayment provisions.

Pursuant to the sexually dangerous person nonpayment provisions of the Act, the POMS instructs SSA to suspend Title II benefit payments to an individual when a court finds the individual to be an SDP based on state law, and the court issues an order confining the individual to an institution for more than thirty continuous days at public expense immediately following the individual’s completion of his criminal prison sentence. See POMS GN 02607.350(A)-(B). The POMS defines “sexually dangerous person” as “a person with a mental abnormality or personality disorder who is likely to engage in sexual offenses if released from confinement.” See id. at GN 02607.001(B)(9). State laws generally have the following requirements for considering a person to be an SDP: a conviction for a sexually violent crime, or conduct that would be a crime; a mental abnormality or personality disorder (pedophilia, rape, etc.); and the offender is likely to reoffend unless confined in a secure facility (mental institution or special commitment center). See id. at GN 02607.350(A). SSA will enforce the Act’s sexually dangerous person nonpayment provision only in those states that have laws expressly providing for court ordered confinement of SDPs. See id.

Texas Law Regarding the Commitment of Sexually Violent Predators

The Texas Legislature’s June 2105 amendment to the Texas Health and Safety Code, Chapter 841, required TCCO to develop a tiered program for transitioning a committed person from a total confinement facility to less restrictive housing and supervision and eventually release from civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001841.0831. Prior to civil commitment and as part of the civil commitment procedure, the Texas Department of Criminal Justice (TDCJ)[10] must give notice to a multidisciplinary team of the anticipated release of a person, who is serving a sentence at a TDCJ correctional facility for a sexually violent offense and who may be a repeat sexually violent offender. See id. at § 841.021(a). The multidisciplinary team must determine whether the person is a repeat sexually violent offender and is likely to commit a sexually violent crime and whether the person should undergo behavioral abnormality assessment. See id. at § 841.022(c). If the multidisciplinary team recommends behavioral abnormality assessment, TDCJ must have an expert conduct a clinical assessment to determine whether the person has a behavioral abnormality. See id. at § 841.023(a). If the person suffers from a behavioral abnormality, TDCJ must give notice to the attorney representing the state for the county (state attorney) in which the person was most recently convicted of a sexually violent crime. See id. at § 841.023(b). If the state attorney files a petition with the court alleging the person is a sexually violent predator,[11] a judge must conduct a trial and determine whether, beyond a reasonable doubt, the person is a sexually violent predator. See id. at §§ 841.041(a), 841.061(a), 841.062(a). If the judge or jury finds the person is a sexually violent predator, the judge must civilly commit the person for treatment and supervision. See id. at § 841.081(a). As part of the civil commitment, the judge must impose the requirement that the person reside as per TCCO’s instructions.[12] See id. at § 841.082(a)(1). The commitment order is effective immediately on entry of the order, except that the treatment and supervision begins on the person’s release from a secure correctional facility[13] and continues until the person’s behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence. See id. at § 841.081(a).

Texas law requires the state to pay the reasonable cost of indigent civilly committed sexually violent predator’s treatment and supervision. See id. at § 841.146(c). However, a civilly committed sexually violent predator, who is not indigent, is responsible for the cost of housing, treatment, and tracking service, and monthly must pay TCCO the amount that is necessary to defray the cost of providing the housing, treatment, and service at TCCC. See id. at. § 841.084(a). As addressed below, section 841.084(a) is important to our consideration of whether a non-indigent SDP confined to the TCCC is confined “at public expense.”

TCCC Program

TCCO is a state agency that provides oversight of the sex offender civil commitment program under the Texas Health and Safety Code, Chapter 841. See Tex. Gov’t Code Ann. §§ 420A.002(a), 420A.010; Tex. Health & Safety Code Ann. § 841.007. TCCO established TCCC, a 382-bed “total confinement facility,” to supervise and treat civilly committed sexually violent predators. See http://www.correctcarers.com/texas-civil-commitment-center/ (last searched March 4, 2016); see also Mitchell v. State, 473 S.W.3d 503, 509-510 n.10 (Tex. App. - El Paso 2015, no pet.) (noting that TCCO created a tiered program allowing a civilly committed sexually violent predator to be placed in a “total confinement facility”). TCCC’s treatment program provides its residents (the civilly committed sexually violent predators) with sex offender treatment services designed to prepare them for the safe return to the community. See TCCC Resident Handbook, p. 2. TCCC divides its treatment program into five tiers, implements the first four tiers within the confines of TCCC, and implements the last tier under community supervision, which is in less restrictive housing. See Tex. Health & Safety Code Ann. § 841.0831 (tiered program); TCCC Resident Handbook, p. 7.

Whether SSA must Suspend Title II Benefits to Individuals Who Reside in TCCC

As noted above, for purposes of Title II benefits, an individual is not eligible for monthly Title II benefits when, immediately upon completion of confinement in a jail, prison, or other penal or correctional facility pursuant to a conviction of a criminal offense involving sexual activity, a court orders the individual confined in an institution at public expense pursuant to a finding that he or she is a sexually dangerous person, a sexual predator, or a similar finding (SDP). See 42 U.S.C. § 402(x)(1)(A)(iii); POMS GN 02607.350(A)-(B). In Texas, for a court to civilly confine a person in an institution (TCCC) as a sexually violent predator, while the person is in a correctional facility, the court must find the person is a repeat sexually violent offender, has been convicted of one or more sexually violent offense, and has a behavioral abnormality that makes him or her likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. §§ 841.003(a), 841.061(a)(2), 841.062, 841.081. If the court finds the person is a sexually violent predator, effective immediately, the court civilly commits the person for treatment and supervision as per TCCO’s instructions. See id. at § 841.081. TCCO coordinates direct transfer from the correctional facility to TCCC immediately upon release from the secure correctional facility. See id. at § 841.081. Thus, Texas has a law expressly providing for court ordered confinement of an SDP, and the civil commitment statutory definition and procedure for finding a person a sexually violent predator meets SSA’s statutory requirements of an SDP under the Act. See 42 U.S.C. § 402(x)(1)(A)(iii); POMS GN 02607.350(A)-(B).

Our inquiry next goes to whether Texas civilly confines a sexually violent predator in TCCC at “public expense.” See 42 U.S.C.A. § 402(x)(1)(A)(iii) (“confined by court order in an institution at public expense”) (emphasis added); POMS GN 02607.350(B)(1)(b) (“Suspend benefits when a court: declares that the beneficiary is an SDP; and issues an order confining a beneficiary to an institution or [special commitment center] for more than 30 continuous days at public expense.”) (emphasis added).

As noted above, Texas law requires the State to pay the reasonable costs of a civilly committed sexually violent predator’s treatment and supervision at TCCC. See Tex. Health & Safety Code Ann. § 841.146(c). However, Texas law also provides that a civilly committed sexually violent predator, who is not indigent, is responsible for the cost of housing, treatment, and tracking service at TCCC.[14] See id. at § 841.084(a). Therefore, under Texas law, only an indigent civilly committed sexually violent predator resides in TCCC “at public expense.” Though the Act, Social Security regulations, and POMS do not elaborate on the “public expense” requirement, the plain language of the SDP nonpayment provision of the Act clearly states that it applies where the individual “is confined by court order in an institution at public expense.” See 42 U.S.C. § 402(x)(1)(A)(iii).[15] Section 841.084(a) clearly provides that a non-indigent SDP is responsible for the cost of housing, treatment, and tracking service at TCCC. See id. at § 841.084(a). Therefore, based on section 841.084(a) and in the absence of evidence to the contrary, we believe it is a reasonable interpretation of the law for the agency to assume that a non-indigent SDP residing at TCCC is not being confined “at public expense.” Thus, for Title II purposes, SSA must suspend Title II benefits for an indigent SDP residing at TCCC, but must continue Title II benefits for a non-indigent SDP residing at TCCC.

CONCLUSION

In our opinion, Texas has a law expressly providing for court ordered confinement of an SDP. A civilly committed sexually violent predator in Texas meets the definition of an SDP under the Act. In Texas, sexually violent predators reside in TCCC, a public institution. Thus, TCCC is an SDP facility. For Title II purposes, civilly committed sexually violent predators, who are indigent, are confined by court order in TCCC at public expense. However, civilly committed sexually violent predators, who are not indigent, are responsible for the cost of housing, treatment, and tracking service at TCCC and, therefore, are not confined at public expense. Thus, SSA must suspend Title II benefits to individuals who reside in TCCC and are indigent, but must continue payments to Title II individuals who reside in TCCC and are not indigent.

If you have questions, or if we may provide further assistance, please contact the undersigned attorney at (214) 767-4099.

Michael McGaughran

Regional Chief Counsel

By: Ruben Montemayor

Assistant Regional Counsel

B. PR 15-052 Texas Law – Whether Confinement in a Texas Substance Abuse Felony Punishment Facility Amounts to Confinement under Section 202(x)(1)(A)(i) of the Social Security Act (NH J~, SSN ~) - REPLY

DATE: December 12, 2014

1. SYLLABUS

This opinion provides authoritative information on a beneficiary’s confinement in a Texas Substance Abuse Felony Punishment (SAFP) facility when a court sentences a beneficiary to “supervised probation.” Normally, a beneficiary’s monthly benefits are not stopped or are reinstated if he or she is placed on probation or parole. However, a beneficiary confined in an SAFP facility in Texas for more than 30 continuous days after a court convicts the beneficiary of a criminal offense and sentences the beneficiary as a condition of his or her probation to supervised and controlled confinement for an indeterminate number of days, but not less than ninety days, is not entitled to receive benefits during his or her confinement.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for an opinion on whether, for purposes of continuation of Title II benefits, [16] a beneficiary confined in a Substance Abuse Felony Punishment (SAFP) facility in Texas amounts to confinement in a “jail, prison, or other penal institution or correctional facility pursuant to [a] conviction of a criminal offense” under Section 202(x)(1)(A)(i) of the Social Security Act (Act), 42 U.S.C. § 402(x)(1)(A)(i).

ANSWER

In our opinion, a beneficiary confined in an SAFP facility in Texas is confined in a correctional facility pursuant to a conviction of a criminal offense under 42 U.S.C. § 402(x)(1)(A)(i). Therefore, a beneficiary who is confined in an SAFP facility in Texas is not entitled to receive benefits during such confinement.

BACKGROUND

J~, (number holder), currently receives Title II benefits. On August XX, 2014, the 357th District Court (court) in Grayson County, Texas, convicted the number holder on one count of possession of a controlled substance, a third degree felony offense in Texas. [17] See Tex. Health & Safety Code Ann. § 481.115(c) (West 2014). The court ordered the number holder to be confined for ten years in the Texas Department of Criminal Justice (TDCJ), beginning August XX, 2014. The court probated [18] the number holder’s confinement to five years that required, as a condition of probation, the number holder’s confinement in an SAFP facility for an indeterminate number of days, but not less than ninety days. [19] The number holder is currently in an SAFP facility, Jester I, a TDCJ Correctional Institution in Fort Bend County, Texas.

ANALYSIS

Statutory and Regulatory Provisions

Under Title II of the Act, the agency does not pay monthly benefits to any individual [20] for any month ending with, during, beginning with, or during a period of more than thirty days throughout all of which such individual is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense. 42 U.S.C. § 402(x)(1)(A)(i) (nonpayment of benefits to prisoner or inmate provision). [21] The agency suspends benefits only for the period an individual is confined. See Milner v. Callahan, 980 F.Supp. 935, 936 (N.D. Ill 1997) (suspension of social security payments does not apply to any individuals who are not so confined in public institutions at public expense). The regulations explain that a jail, prison, or other penal institution or correctional facility is a facility that is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. 20 C.F.R. § 404.468(c). [22] In addition, confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. Id. The regulations define the term “confinement” broadly, stating that an “individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).” Id. Even so, the agency does not consider an individual to be confined in a jail, prison, or other penal institution or correctional facility if the individual is residing outside such institution at no expense (other than the cost of monitoring) to the institution or penal system, or any agency to which the penal system has transferred jurisdiction over the individual. 42 U.S.C. § 402(x)(1)(B). An exception to the nonpayment of benefits to the prisoner or inmate provision is that the agency will not suspend an individual’s (prisoner’s/inmate’s) benefits if the individual is actively and satisfactorily participating in a vocational rehabilitation program that is expected to result in the individual being able to work upon release and within a reasonable time. 20 C.F.R. § 404.468(d).

Agency’s Instructions and Policy in the Program Operations Manual System (POMS) Prisoner Provisions

The POMS instructs the agency to suspend Title II benefits when a beneficiary is charged and convicted of a criminal offense and is confined in a correctional institution for more than thirty continuous days. POMS GN 02607.160.A.1. A conviction of a criminal offense includes the court accepting a guilty plea or other plea equivalent to a guilty plea. Id. GN 02607.160.A.2. According to the POMs, confinement occurs when an individual resides in a correctional or mental health institution and includes those individuals who are: temporarily outside the correctional institution due to hospitalization, work, or school; escapees, or those who fail to report to begin their sentence; in a halfway house or a work release program because of a transfer from the correctional institution; or in the custody of an institution because of a court order. Id. GN 02607.200.C. The confinement date is the date the correctional institution admits the individual into custody. Id. GN 02607.160.A.3.

Texas Law and the SAFP Facility Program

TDCJ operates the Texas prison system. Tex. Gov’t Code Ann. § 493.002. Under its statutory authority, TDCJ develops sentencing programs for criminal defendants; provides alternatives to appropriately balance inmate population; confines, supervises, and rehabilitates felons; and investigates and supervises all released felons. Id. §§ 494.001, 499.022, 507.001, 508.112, 509.002. TDCJ manages and operates the SAFP facilities, which are substance abuse treatment facilities established to confine and treat felons required to participate in the SAFP program as a condition of community supervision (probation). [23] Id. § 493.009. Texas law provides that if a court places a defendant on community supervision, as an alternative to imprisonment, the judge may require that the defendant serve a term of confinement and treatment in an SAFP facility TDCJ operates under Section 493.009 of the Government Code. Tex. Code Crim. Proc. Ann. art. 42.12, § 14.

The Texas Code of Criminal Procedure, SAFP provision, states that a judge may place the defendant in an SAFP facility when the defendant is charged with or convicted of a felony; the judge makes an affirmative finding that drug or alcohol abuse significantly contributed to the commission of the crime or violation of community supervision; and the defendant is a suitable candidate for treatment in the SAFP program. Id. § 14(b). The term of confinement is an indeterminate term of not less than ninety days or more than a year, and a qualified professional (not the court) determines the release date of the SAFP participant. Tex. Gov’t Code Ann. § 493.009(c)-(d); Tex. Code Crim. Proc. Ann. art 42.12, § 14 (SAFP). In an unpublished opinion, the Fifth Circuit noted that an SAFP participant is not free to leave the SAFP facility during the term of SAFP facility confinement. U.S. v. Mendez, 560 F. App’x 262, 264-265, 2014 WL 1116710, 2 (5th Cir. Mar. 21, 2014).

TDCJ Rehabilitation Programs Division is the treatment coordinating entity for the SAFP facility program. See TDCJ Substance Abuse Treatment Operations Manual (SATOM), at p. i. (Electronic copy at http://www.tdcj.state.tx.us/documents/satom/SATOM_Intro_Mission.pdf (last searched on December 2, 2014)). The SAFP facility program provides substance abuse treatment services for offenders throughout the entire incarceration and supervision period. Id. The SAFP facility program is not a vocational rehabilitation program. See 28 Tex. Admin. Code § 130.101(8) (2014) (defining vocational rehabilitation program). [24]

Rather, it is an intensive, six-month [25] therapeutic community program sentenced by a judge as a condition of community supervision or as a modification of parole or community supervision. See TDCJ Substance Abuse Treatment Operations Manual (SATOM), at p. i. (Electronic copy at http://www.tdcj.state.tx.us/documents/satom/SATOM_Intro_Mission.pdf (last searched on December 2, 2014)). Below, in part, is a description of TDCJ’s SAFP facility program, as described in the Guadalupe County’s website:

An SAFP facility program is a highly structured residential program that is designed for offenders with a severe history of drug or alcohol abuse. The court orders an offender into an SAFP facility at the time of sentencing or after the offender violates the conditions of probation. The SAFP facilities are located on prison grounds, but the SAFP facility participants do not associate with the general prison population.

See Welcome to Guadalupe County, Frequently Asked Questions, viewable at http://www.co.guadalupe.tx.us/guadalupe2010/home.php?content=CSCD/faqs#c6 (last searched on December 2, 2014).

The Number Holder’s Confinement in an SAFP Facility Constitutes “Confinement” Under the Act for Purposes of Suspension of Benefits Under 42 U.S.C. § 402(x)(1)(A)(i)

The circumstances herein meet the agency’s statutory and regulatory requirements for confinement in a correctional facility pursuant to a conviction of a criminal offense under 42 U.S.C. § 402(x)(1)(A)(i). The court convicted the number holder of a criminal offense, one count of possession of a controlled substance, a third degree felony offense; ordered the number holder be confined for ten years in TDCJ (prison), beginning August XX, 2014; and probated the number holder’s prison sentence to five years, with a term that included confinement in an SAFP facility for an indeterminate number of days, but not less than ninety days. The number holder’s conviction for possession of a controlled substance satisfies the requirement of a conviction of a criminal offense. See 42 U.S.C. § 402(x)(1)(A)(i). The court order stating that the number holder’s prison sentence be probated to five years with a term of confinement in an SAFP facility satisfies the requirement of confinement pursuant to a court order. [26] Id. The SAFP facility program that consists of treatment programs of no less than ninety days or more than a year satisfies the requirement of confinement for more than thirty days. Id.; see also Tex. Gov’t Code Ann. § 493.009 (Program for SAFP participants must consist of treatment programs that may vary in time from ninety days to twelve months). The Corrections Community Justice Assistance Division statute classification of SAFP facilities as correction facilities satisfies the requirement that the confinement must be in a jail, prison, or other penal institution or correctional facility. See 20 C.F.R. § 404.468(c); Tex. Gov’t Code Ann. § 509.001(1)(c). TDCJ’s control of the Texas prison system, which includes SAFP facilities, satisfies the requirement that the confinement be in a jail, prison, or other penal institution or correctional facility under the control of the agency in charge of the penal system or in which convicted criminals can be incarcerated. See 20 C.F.R. § 404.468(c); Tex. Gov’t Code Ann. §§ 493.004, 493.009. The fact that an SAFP facility is on prison grounds, and the number holder is not free to leave the SAFP facility or reside outside the SAFP facility shows that the number holder resides inside the correctional facility, at the expense of the correctional facility or the penal system. See 42 U.S.C. § 402(x)(1)(B).

The SAFP program is not a vocational rehabilitation program and does not meet the exception to suspension of benefits to prisoners. See 20 C.F.R. § 404.468(d) (suspension of benefits to prisoners). As previously noted, TDCJ Rehabilitation Programs Division is the treatment coordinating entity for the SAFP facility program. See TDCJ Substance Abuse Treatment Operations Manual (SATOM), at p. i. (Electronic copy at http://www.tdcj.state.tx.us/documents/satom/SATOM_Intro_Mission.pdf (last searched on December 2, 2014)). TDCJ provides substance abuse treatment services for individual offenders throughout the entire incarceration and supervision period through its SAFP facility program. Id. TDCJ provides vocational training through “The Career and Technology Education (CTE)” program. See http://www.tdcj.state.tx.us/documents/General_Information_Guide_for_Families_of_Offenders.pdf (last searched on December 2, 2014). The SAFP facility program is a substance abuse treatment program and is not a vocational rehabilitation program. Therefore, the SAFP facility does not meet the exception to suspension of benefits to prisoners because it is not a vocational rehabilitation program. See 20 C.F.R. § 404.468(d).

CONCLUSION

In our opinion, the number holder’s confinement in an SAFP facility meets the agency’s statutory and regulatory requirements for confinement in a correctional facility pursuant to a conviction of a criminal offense. The number holder was convicted of a criminal offense and was sentenced to confinement for an indeterminate number of days, but more than thirty days, in an SAFP facility; the confinement is in a correctional facility under TDCJ’s control, which is the agency in charge of convicted criminal’s incarceration; the SAFP facility is on prison grounds; and the number holder is not free to leave the SAFP facility. Furthermore, the number holder does not meet the exception to the suspension of benefits to prisoners because the SAFP facility program is a substance abuse treatment program, not a vocational rehabilitation program. Therefore, for the reasons discussed above, we believe that an individual confined in an SAFP facility in Texas is confined in a correctional facility pursuant to a conviction of a criminal offense, and there is legal support to suspend the number holder’s Title II benefits while he is in confinement under the SAFP facility program.

Michael McGaughran

Regional Chief Counsel

Ruben Montemayor

Assistant Regional Counsel

C. PR 07-191 Request for Opinion on Regional Sexual Predator Laws - REPLY

DATE: August 8, 2007

1. SYLLABUS

A question was presented as to whether any of the States in Region VI, (Arkansas, Louisiana, New Mexico, Oklahoma and Texas) now require confinement of a sexual offender upon completion of a prison term. Based on the Regional Counsel's investigation, the laws in the states in Region VI have not changed since their last opinion completed in March 2000. Those laws do not require the confinement of a sexual offender after he or she completes a prison term. Therefore, the Social Security Administration (Agency) may not suspend benefits after authorities release a sexual offender from prison within any state in Region VI.

2. OPINION

This is in response to your request for information concerning whether the laws in the states in Region VI have changed since we released our March 2000 legal opinion reviewing state laws regarding sexually dangerous persons/sexual predators. In that opinion, we concluded that the laws in the states in Region VI did not require confinement of a sexual offender upon completion of a prison term. The laws in the states in Region VI have not changed since our last opinion. Those laws do not require the confinement of a sexual offender after he or she completes a prison term. Therefore, the Social Security Administration (Agency) may not suspend benefits after authorities release a sexual offender from prison within any state in Region VI.

As stated in our March 2000 opinion, Congress created a new category of inmates who are subject to the Agency's prisoner suspension provisions. 42 U.S.C. § 402(x)(iii). The Social Security Act provides for the continued denial of Title II benefits to individuals who:

immediately upon completion of confinement [in a jail, prison, or other penal institution or correctional facility] pursuant to conviction of a criminal offense an element of which is sexual activity, is confined by court order in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding.

42 U. S. C. § 402(x)(iii).

We set forth below our related analysis of each Region VI state's law.

Arkansas:

Arkansas sexual predator laws have not changed substantively since March 2000. Arkansas law does not provide for the confinement of sex offenders who have completed their prison terms. See Ark. Code Ann. §§ 12-12-901 - 12-12-923. Accordingly, the Agency may not suspend benefits after authorities release a sexual offender from prison.

Louisiana:

Louisiana law has not changed significantly since our March 2000 legal opinion. In 2006, Louisiana enacted laws providing for electronic monitoring and the supervised release of certain sexual predators, but Louisiana laws do not provide for the confinement in an institution of a sexual predator immediately after he or she completes his or her confinement in a jail, prison, or other penal institution or correctional facility. See La. Rev. Stat. Ann. §§ 15:560.1, 15:560.3, 15:560.4, 15:561.2.

New Mexico:

New Mexico law has not changed since we last examined this issue in March 2000. New Mexico's law does not provide for the confinement of an incarcerated sexual predator following completion of his or her prison sentence. A bill currently pending in the New Mexico Senate Judiciary Committee provides for continued confinement in a treatment facility for sexually violent predators that authorities release from prison. See S.B. 452. The committee has postponed action on the bill indefinitely, and the same bill died in committee in 2003 and 2005.

Oklahoma:

Oklahoma law has not changed since our March 2000 legal opinion. The Oklahoma Sex Offenders Registration Act requires sexual offenders to register with the Department of Corrections, but the Act does not provide for the confinement of sexual offenders after they have completed their prison terms. See Okla. Stat. Ann. tit. 57, §§ 581-590.1. Thus, under Oklahoma law, the Agency may not suspend benefits after authorities release a sexual offender from prison.

Texas:

Texas law has not changed substantively since our March 2000 legal opinion. Texas law does not provide for confinement of sexual offenders after they have completed their prison terms. See Tex. Health and Safety Code § 841.081. Thus, under Texas law, the Agency may not suspend benefits after authorities have released a sexual offender from prison.

In summary, the laws in the states in Region VI have not changed since we released our March 2000 legal opinion reviewing state laws regarding sexually dangerous persons/sexual predators. We conclude that none of the laws in the states in Region VI requires the confinement of a sexual offender after he or she completes a prison term. As such, the Agency may not suspend benefits after authorities release a sexual offender from prison within any state in Region VI.

Tina M. Waddell

Regional Chief Counsel
Julia Denegre
Assistant Regional Counsel

 


Footnotes:

[1]

. Texas refers to an SDP as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.003(a). Thus, we use the terms SDP and sexually violent predator interchangeably in this opinion.

[2]

. The Texas Civil Commitment of Sexually Violent Predator statute specifically states that the Office of State Counsel for Offenders, Civil Commitment Section (OSCO), represents indigent persons subject to civil commitment under the Sexually Violent Predator statute. See Tex. Health & Safety Code Ann. § 841.005. The Texas Rules of Civil Procedure lists the requirements to establish indigency in Texas courts, which includes the requirement of filing an “Affidavit on Indigency” with the clerk of the court, where the state filed the civil commitment petition, to avoid costs regarding the civil action. See Tex. R. Civ. P. 145(b); see also Tex. Gov’t Code Ann. § 51.941 (2016) (defining “indigent” as part of additional filing fee in appellate courts to fund legal services for indigents). Thus, SSA can obtain information on whether an SDP is indigent from either OSCO or from the clerk’s office where the state filed the civil commitment action. See Burgess v. Feghhi, 191 S.W.3d 411, 414 (Tex. App.-Tyler 2006, no pet.) (once affidavit of indigency filed, it became a public record).

[3]

. A sexually violent predator is a repeat sexual offender, who suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence. Tex. Health & Safety Code Ann. § 841.003(a). A repeat sexual offender is a person convicted of more than one sexually violent offense. Id. at. § 841.003(b). “‘Behavioral abnormality’ means congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.” Id. at § 841.002.

[4]

. See http://www.legis.state.tx.us/Search/DocViewer.aspx?ID=84RSB007464A&QueryText=%22SB+746%22&DocType=A (Bill Analysis, 2015 Tex. S.B. No. 746, Texas Eighty-Fourth Legislature) (last searched March 4, 2016).

[5]

. See Texas Civil Commitment Center, http://www.correctcarers.com/texas-civil-commitment-center/ (last searched March 4, 2016).

[6]

. TCCC refers to civilly committed sexually violent predators as residents. See Texas Civil Commitment Center Resident Handbook, September 2015 (TCCC Resident Handbook), p.3 (electronic copy available at http://www.correctcarers.com/wp-content/uploads/2015/11/TCCC-Resident-Handbook-8.28.15-Final.pdf) (last searched March 4, 2016).

[7]

. It is our understanding that some TCCC residents are eligible for both Title II and Title XVI benefits, but that also that SSA has already determined that residents are ineligible for Title XVI payments while they are confined to TCCC because it is a public institution. An individual is not eligible for Title XVI benefits during any month he or she is an inmate of a public institution, with some exceptions not applicable to inmates of public institutions, such as SDPs confined in TCCC. See 42 U.S.C. § 1382(e)(1)(a); 20 C.F.R. § 416.211(a)(1). An inmate of a public institution is the same thing as a resident of a public institution. See 20 C.F.R. § 416.201. For SSA to consider an individual a “resident of a public institution,” the individual must receive substantially all of his or her food and shelter while living in the public institution. See 20 C.F.R. § 416.201. The individual is a resident regardless of whether the resident or anyone else pays for all food, shelter, and other services in the institution. See id. Thus, the fact that a resident is indigent or non-indigent and may pay the costs of his confinement is not determinative for eligibility to Title XVI benefits. SSA defines public institutions as establishments “operated or controlled by the Federal government, state, or political subdivision of a state . . . [but] does not include a publicly operated community residence, which serves sixteen or fewer residents.” See id. TCCO is a state agency that controls the sex offender civil commitment program at TCCC, and TCCC is a 382-bed facility. See Tex. Gov’t Code Ann. §§ 420A.002(a), 420A.010; Tex. Health & Safety Code Ann. § 841.007; Texas Civil Commitment Center, http://www.correctcarers.com/texas-civil-commitment-center/ (last searched March 4, 2016). TCCO is responsible for providing sexually violent predators with necessary treatment and supervision during the long-term civil commitment, including food and shelter. See Tex. Health & Safety Code Ann. § 841.007; TCCC Resident Handbook. Civilly committed sexually dangerous predators reside in TCCC, a facility under the control of TCCO, which is a state agency. See TCCC Resident Handbook, p.3. TCCC meets SSA’s requirements of a public institution. Therefore, an individual is not eligible for Title XVI benefits during any month he or she resides at TCCC.

[8]

. This legal opinion updates our legal opinion dated August 8, 2007, to account for this 2015 change in Texas law. See POMS PR 06805.048(B), PR 07-191 Request for Opinion on Regional Sexual Predator Laws – REPLY, August 8, 2007.

[9]

. The Act does not define the term “institution” for purposes of Title II benefits. However, for purposes of Title XVI benefits, the regulations define “institution” as “an establishment that makes available some treatment or services in addition to food and shelter to four or more persons who are not related to the proprietor.” 20 C.F.R. § 416.201.

[10]

. TDCJ operates the Texas prison system. See Tex. Gov’t Code Ann. § 493.002.

[11]

. See footnote 3 (definition of sexual violent predator).

[12]

. TCCO instructs sexually violent predators reside in TCCC to undergo residential treatment program. See TCCC Resident Handbook, p. 2.

[13]

. “‘Secure correctional facility’ means a county jail or a confinement facility operated by or under contract with any division of the Texas Department of Criminal Justice” (TDCJ). Tex. Health & Safety Code Ann. § 841.002.

[14]

. The Texas Administrative Code has a specific provision under Office of Violent Sex Offender Management, Civil Commitment (TAC Civil Commitment Chapter), stating that a civilly committed person, who is not indigent, is responsible for the cost of the tracking services, and monthly must pay to TCCO the amount the office determines is necessary to defray the cost of operating the tracking service. See 37 Tex. Admin. Code § 810.273 (2016). However, TAC Civil Commitment Chapter has no specific provision stating that a civilly committed person, who is not indigent, is responsible for the cost of housing and treatment.

[15]

. As noted, the purpose of the nonpayment provision was to conserve scare Social Security resources and avoid payment of public benefits to individuals whose basic needs are already provided for by the State. See Dawley, 2006 WL 2085976, at *2, citing Davis, 825 F.2d at 801 (the nonpayment provision of section 202(x) “rationally promotes the legitimate underlying congressional policy goal of conserving scarce social security resources where a prisoner’s basic economic needs are provided from other public sources”); Artz, 214 F.Supp.2d at 467-468 (Congress’s intent in amending section 202(x) was to prevent a prisoner from being “doubly compensated,” and that “[w]hen an individual is not confined at public expense, he or she is entitled to receive monthly benefits; however, when an individual is confined at public expense, he or she is not entitled to monthly benefits,” which “clearly expresses the concern that Congress had in protecting against the draining of public funds”); Anderson v. Colvin, No. 13-cv-34-BBC, 2014 WL 348161, at *3 (W.D. Wis. Jan. 31, 2014) (the claimant argued that he was not being held “at public expense” because he was being charged, or billed, for each day of his civil commitment and could be forced to pay for his commitment in the future if he has the funds to do so; the court agreed with the Commissioner that he was being held “at public expense despite being billed because he [wa]s not in position to pay the large debt that he ha[d] incurred” and would not be able to pay off anything more than a “small fraction of the debt he was incurring;” the court found this to be “reasonable to characterize plaintiff as being housed a public expense”); POMS PR 06805.024A (PR 12-132) (Sept. 5, 2012) (interpreting “at public expense” under a similar nonpayment provision of section 202(x)(1)(A) of the Act under Massachusetts law and concluding that absent proof that the individual was paying the full cost of his care, it was reasonable for the agency to assume that the individual was being confined at public expense).

[16]

. We use the terms “Title II benefits” and “benefits” interchangeably for purposes of this legal opinion.

[17]

. The number holder’s felony conviction (Case No. 0XXXX) and TDCJ SAFP facility confinement (TDCJ Number XXXXX) are available at the following websites: See http://24.117.89.66:3007/CaseDetail; http://offender.tdcj.state.tx.us/OffenderSearch/offenderDetail; http://tdcj.texas.gov/unit_directory/ (last searched on December 2, 2014).

[18]

. The Texas Supreme Court defined the term “probation” as “[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison.” In re Smith, 333 S.W.3d 582, 589 n.2 (Tex.2011). The Texas Legislature changed the term “probation” to “community supervision” in 2003. See Acts 1993, 73rd Leg., R.S., ch. 900, § 4.01, General and Special Laws of Texas (an electronic copy available at http://www.lrl.state.tx.us/scanned/sessionLaws/73-0/SB_1067_CH_900.pdf) (last searched on December 2, 2014). The Code of Criminal Procedure defines “community supervision” as “the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which: (A) criminal proceedings are deferred without an adjudication of guilt; or (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.” Tex. Code Crim. Proc. Ann. art 42.12, § 2 (West 2014). The courts use the term “probation” interchangeably with the term “community supervision.”

[19]

. The term of an SAFP facility confinement is an indeterminate term of not less than ninety days or more than a year, and a qualified professional (not the court) determines the release date of the SAFP participant. Tex. Gov’t Code Ann. § 493.009(c)-(d) (West 2014); Tex. Code Crim. Proc. Ann. art 42.12, § 14 (West 2014) (SAFP).

[20]

. Statutory and regulatory provisions use the term “individual” to refer to a “beneficiary.” Thus, we use the terms “individual” and “beneficiary” interchangeably for purposes of this legal opinion.

[21]

. The Ticket to Work and Work Incentive Act of 1999 amended Section 202(x) of the Act to require that an individual must be convicted of a criminal offense and remain in the institution for more than 30 continuous days before the agency will suspend his benefits. See Ticket to Work and Work Incentives Act of 1999, Pub. L. No. 106-170, § 402(b), 113 Stat. 1860, 839 (1999) (codified as amended at 42 U.S.C. § 402(x)(1)(A)). The agency published 20 C.F.R. §§ 404.468 (felony offense and confinement), 404.1506 (felonious offenses and confinement) prior to the 1999 legislation and has not updated those regulations to reflect the statutory change that require conviction of a criminal offense (not a felony offense) and confinement for 30 days. See 49 Fed. Reg. 48181-2 (Dec. 11, 1984); 48 Fed. Reg. 5,714 (Feb. 8, 1983). Because the agency has not updated the language of 20 C.F.R. §§ 404.468, 404.1506 (regulation) to reflect the language of 42 U.S.C. § 402(x)(1)(A)(i) (federal statute), “we must look at the specific language of the federal statute, not to the language of the regulation.” Branham v. Gardner, 383 F.2d 614, 630 (8th Cir. 1967). We thus conduct our analysis under the specific language of the statute that requires an individual to be convicted of a “criminal offense” and remain in the institution for more than 30 continuous days.

[22]

. The Ticket to Work and Work Incentive Act of 1999 did not change the definition of confinement. See Ticket to Work and Work Incentives Act of 1999, Pub. L. No. 106-170, § 402(b), 113 Stat. 1860, 839 (1999). Thus, the definition of “confinement” in 20 C.F.R. § 404.468(c) (a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated) remains in effect.

[23]

. In 1991, in response to a federal court order following Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982), regarding jail overcrowding, Texas implemented legislation to address the state prison over-capacity problem. See House Research Organization, Bill Analysis, Tex. H.B. 93, 72nd Leg., 2nd C.S. (August 23, 1991), at 1 (electronic copy available at http://www.lrl.state.tx.us/scanned/hroBillAnalyses/72-2/HB93.pdf) (last searched on December 2, 2014). In addition to a number of implemented changes not relevant to this opinion, Texas established the SAFP facilities. Id. at pp. 6, 8-9. The House Research Organization Bill Analysis report specified that the SAFP facilities “would be locked-up facilities (emphasis added), not camps or hospitals,” and that the Texas courts would have the authority “to punish certain defendants convicted of a felony offense . . . by confinement and treatment (emphasis added) in a community substance abuse treatment facility operated by the community justice assistance division of TDCJ for six months to a year, plus two to [ten] years in prison and a fine of not more than $10,000.” Id. at pp. 9, 19.

[24]

. “Vocational rehabilitation program” is “[a]ny program, provided by the Texas Department of Assistive and Rehabilitative Services (DARS) . . . for the provision of vocational rehabilitation services designed to assist the injured employee to return to work that includes a vocational rehabilitation plan. A vocational rehabilitation plan, also known as an Individual Plan for Employment at DARS, includes, at a minimum, an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan.” 28 Tex. Admin. Code § 130.101(8).

[25]

. TDCJ has the authority to establish the SAFP facility program to confine and treat defendants required to participate in the SAFP program. Tex. Gov’t Code Ann. § 493.009(a). Texas law requires that an SAFP sentence be for an indeterminate term of not less than ninety days or more than a year, and a qualified professional (not the court) determines the release date of the SAFP participant. Tex. Gov’t Code Ann. § 493.009(c)-(d); Tex. Code Crim. Proc. Ann. art 42.12, § 14 (SAFP).” TDCJ established the SAFP program to be, at a minimum, a six-month drug treatment plan, which complies with the statutory requirement that defendants be confined in an SAFP facility for not less than ninety days and not more than a year.

[26]

. The Fifth Circuit previously addressed the issue of whether a defendant confined in an SAFP facility constituted imprisonment under U.S.S.G. § 4A1.1(a) (Federal Sentencing Guidelines). U.S. v. Mendez, 560 F. App’x 262, 264-265, 2014 WL 1116710, 2 (5th Cir. Mar. 21, 2014). In Mendez, the Fifth Circuit found: “Time served in a facility where a defendant is not free to leave qualifies as imprisonment under Section 4A1.1(a). United States v. Brooks, 166 F.3d 723, 727 (5th Cir. 1999). We have previously held in an unpublished decision that the SAFPF is such a facility. United States v. Chavez, 476 F. App’x 786, 790 (5th Cir. 2012). We agree with the analysis in Chavez that time in an SAFPF constitutes imprisonment. The district court did not err in finding that Mendez’s year in the SAFPF was a term of imprisonment under Section 4A1.1(a).” U.S. v. Mendez, 560 F. App’x at 264-265, 2014 WL 1116710, 2 (5th Cir. Mar. 21, 2014).


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PR 06805.048 - Texas - 05/24/2016
Batch run: 05/24/2016
Rev:05/24/2016