1-1        By:  Hilderbran (Senate Sponsor - Zaffirini)    H.B. No. 1662
    1-2        (In the Senate - Received from the House May 15, 1995;
    1-3  May 16, 1995, read first time and referred to Committee on Health
    1-4  and Human Services; May 22, 1995, reported adversely, with
    1-5  favorable Committee Substitute by the following vote:  Yeas 8, Nays
    1-6  0; May 22, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR H.B. No. 1662               By:  Zaffirini
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the powers and duties of the Department of Protective
   1-11  and Regulatory Services; providing penalties.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Subtitle D, Title 2, Human Resources Code, is
   1-14  amended by adding Chapter 40 to read as follows:
   1-15     CHAPTER 40.  DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
   1-16                   SUBCHAPTER A.  GENERAL PROVISIONS
   1-17        Sec. 40.001.  DEFINITIONS.  In this subtitle:
   1-18              (1)  "Board" means the Board of Protective and
   1-19  Regulatory Services.
   1-20              (2)  "Commission" means the Health and Human Services
   1-21  Commission.
   1-22              (3)  "Department" means the Department of Protective
   1-23  and Regulatory Services.
   1-24              (4)  "Executive director" means the executive director
   1-25  of the Department of Protective and Regulatory Services.
   1-26        Sec. 40.002.  DEPARTMENT OF PROTECTIVE AND REGULATORY
   1-27  SERVICES; RESPONSIBILITY.  (a)  The Department of Protective and
   1-28  Regulatory Services is composed of the board, the executive
   1-29  director, an administrative staff, and other officers and employees
   1-30  necessary to efficiently carry out the purposes of this chapter.
   1-31        (b)  The department is the state agency with primary
   1-32  responsibility for:
   1-33              (1)  providing protective services for children and
   1-34  elderly and disabled persons, including investigations of alleged
   1-35  abuse, neglect, or exploitation in facilities of the Texas
   1-36  Department of Mental Health and Mental Retardation;
   1-37              (2)  providing family support and family preservation
   1-38  services; and
   1-39              (3)  regulating child-care facilities and child-care
   1-40  administrators.
   1-41        (c)  The department is the state agency designated to
   1-42  cooperate with the federal government in the administration of
   1-43  programs under:
   1-44              (1)  Parts B and E, Title IV, federal Social Security
   1-45  Act (42 U.S.C. Sections 620 et seq. and 670 et seq.); and
   1-46              (2)  other federal law for which the department has
   1-47  administrative responsibility.
   1-48        (d)  The department shall cooperate with the United States
   1-49  Department of Health and Human Services and other federal and state
   1-50  agencies in a reasonable manner and in conformity with the
   1-51  provisions of federal law and this subtitle to the extent necessary
   1-52  to qualify for federal assistance in the delivery of services.
   1-53        (e)  If the department determines that a provision of state
   1-54  law governing the department conflicts with a provision of federal
   1-55  law, the department may adopt policies and rules necessary to allow
   1-56  the state to receive and spend federal matching funds to the
   1-57  fullest extent possible in accordance with the federal statutes,
   1-58  this subtitle, and the state constitution and within the limits of
   1-59  appropriated funds.
   1-60        Sec. 40.003.  SUNSET PROVISION.  The Department of Protective
   1-61  and Regulatory Services is subject to Chapter 325, Government Code
   1-62  (Texas Sunset Act).  Unless continued in existence as provided by
   1-63  that chapter, the department is abolished and this chapter expires
   1-64  September 1, 1999.
   1-65        Sec. 40.004.  PUBLIC INTEREST INFORMATION AND COMPLAINTS.
   1-66  (a)  The department shall develop and implement policies that
   1-67  provide the public with a reasonable opportunity to appear before
   1-68  the department and to speak on any issue under the jurisdiction of
    2-1  the department.
    2-2        (b)  The department shall prepare information of public
    2-3  interest describing the functions of the department and the
    2-4  department's procedures by which complaints are filed with and
    2-5  resolved by the department.  The department shall make the
    2-6  information available to the public and appropriate state agencies.
    2-7        (c)  The department by rule shall establish methods by which
    2-8  the public, consumers, and service recipients can be notified of
    2-9  the mailing addresses and telephone numbers of appropriate
   2-10  departmental personnel for the purpose of directing complaints to
   2-11  the department.  The department may provide for that notification:
   2-12              (1)  on each registration form, application, or written
   2-13  contract for services of a person regulated by the department;
   2-14              (2)  on a sign prominently displayed in the place of
   2-15  business of each person regulated by the department; or
   2-16              (3)  in a bill for a service provided by a person
   2-17  regulated by the department.
   2-18        (d)  The department shall keep an information file about each
   2-19  complaint filed with the department relating to:
   2-20              (1)  a license holder or entity regulated by the
   2-21  department; or
   2-22              (2)  a service delivered by the department.
   2-23        (e)  If a written complaint is filed with the department
   2-24  relating to a license holder or entity regulated by the department
   2-25  or a service delivered by the department, the department, at least
   2-26  quarterly and until final disposition of the complaint, shall
   2-27  notify the parties to the complaint of the status of the complaint
   2-28  unless notice would jeopardize an undercover investigation.
   2-29        Sec. 40.005.  CONFIDENTIALITY OF INFORMATION.  (a)  The
   2-30  department shall establish and enforce rules governing the custody,
   2-31  use, and preservation of the department's records, papers, files,
   2-32  and communications.
   2-33        (b)  The department shall prescribe safeguards to govern the
   2-34  use or disclosure of information relating to a recipient of a
   2-35  department service or to an investigation the department conducts
   2-36  in performing its duties and responsibilities.  The safeguards must
   2-37  be consistent with the purposes of the department's programs and
   2-38  must comply with applicable state and federal law and department
   2-39  rules.
   2-40        (c)  Notwithstanding any other provision of law, the
   2-41  department by rule may prescribe a process by which an
   2-42  administrative law judge may disclose requested confidential
   2-43  information that the department possesses.  The rules must provide
   2-44  that the information may be disclosed by the administrative law
   2-45  judge only if the administrative law judge:
   2-46              (1)  provides notice to the department and any
   2-47  interested party; and
   2-48              (2)  determines after an in camera review of the
   2-49  information that disclosure is essential to the administration of
   2-50  justice and will not endanger the life or safety of any individual.
   2-51        (d)  Except as otherwise provided, a person who is authorized
   2-52  to receive confidential information shall maintain its
   2-53  confidentiality and shall prevent disclosure of the information to
   2-54  a person who is not authorized to receive the information.
   2-55        (e)  A person commits an offense if the person discloses
   2-56  without authorization confidential information contained in the
   2-57  department's records, papers, files, or communications.  An offense
   2-58  under this subsection is a Class A misdemeanor.
   2-59        Sec. 40.006.  APPLICATION OF OTHER LAWS.  The department is
   2-60  subject to Chapters 551, 2001, and 2002, Government Code.
   2-61            (Sections 40.007-40.020 reserved for expansion
   2-62               SUBCHAPTER B.  ADMINISTRATIVE PROVISIONS
   2-63        Sec. 40.021.  BOARD OF PROTECTIVE AND REGULATORY SERVICES.
   2-64  (a)  The board is composed of six members appointed by the governor
   2-65  with the advice and consent of the senate.  The governor shall
   2-66  annually designate one member to be the presiding officer.
   2-67        (b)  Four members of the board must have a demonstrated
   2-68  interest in the services provided by the department, and two
   2-69  members must represent the public.
   2-70        (c)  The board shall be appointed without regard to race,
    3-1  color, disability, sex, religion, age, or national origin.
    3-2        Sec. 40.022.  RESTRICTIONS ON BOARD APPOINTMENT OR
    3-3  MEMBERSHIP.  (a)  A person is not eligible for appointment as a
    3-4  member of the board if the person or the person's spouse:
    3-5              (1)  is a person who is employed by or participates in
    3-6  the management of a business entity or other organization regulated
    3-7  by the department or receiving a substantial amount of money from
    3-8  the department;
    3-9              (2)  owns or controls, directly or indirectly, more
   3-10  than a 10 percent interest in a business entity or other
   3-11  organization that is regulated by the department or that receives
   3-12  money from the department;
   3-13              (3)  uses or receives a substantial amount of tangible
   3-14  goods, services, or money from the department, other than
   3-15  compensation or reimbursement authorized by law for expenses
   3-16  incurred as a board member, or as a client or a parent or guardian
   3-17  of a client receiving services from the department; or
   3-18              (4)  is an employee, officer, or paid consultant of a
   3-19  trade association in a field under the jurisdiction of the
   3-20  department.
   3-21        (b)  A person who is required to register as a lobbyist under
   3-22  Chapter 305, Government Code, because of the person's activities
   3-23  for compensation in or for a profession related to the operation of
   3-24  the department may not serve as a member of the board.
   3-25        Sec. 40.023.  REMOVAL FROM BOARD.  (a)  It is a ground for
   3-26  removal from the board if a member:
   3-27              (1)  does not have at the time of appointment a
   3-28  qualification for appointment required by Section 40.021 or 40.022;
   3-29              (2)  does not maintain during the member's term a
   3-30  qualification for appointment required by Section 40.021 or 40.022;
   3-31              (3)  violates a prohibition established by Section
   3-32  40.022;
   3-33              (4)  is unable to discharge the member's duties for a
   3-34  substantial part of the term for which the member was appointed
   3-35  because of illness or disability; or
   3-36              (5)  is absent from more than half of the regularly
   3-37  scheduled meetings of the board that the member is eligible to
   3-38  attend during each calendar year or is absent from more than two
   3-39  consecutive regularly scheduled meetings that the member is
   3-40  eligible to attend, except when the absence is excused by a
   3-41  majority vote of the board.
   3-42        (b)  The validity of an action of the board is not affected
   3-43  by the fact that it is taken when a ground for removal of a board
   3-44  member exists.
   3-45        (c)  If the presiding officer of the board has knowledge that
   3-46  a potential ground for removal of a board member exists, the
   3-47  presiding officer shall notify the governor and the executive
   3-48  director.  If the executive director has knowledge that a potential
   3-49  ground for removal of a board member exists, the executive director
   3-50  shall notify the presiding officer.
   3-51        Sec. 40.024.  BOARD TERMS.  Members of the board serve
   3-52  six-year terms, with the terms of two members expiring February 1
   3-53  of each odd-numbered year.
   3-54        Sec. 40.025.  BOARD PER DIEM.  While performing their duties,
   3-55  board members are entitled to a per diem as prescribed by the
   3-56  General Appropriations Act.
   3-57        Sec. 40.026.  BOARD MEETINGS; QUORUM.  (a)  The board shall
   3-58  meet at least quarterly and at the call of the presiding officer.
   3-59        (b)  Four members of the board constitute a quorum.
   3-60        Sec. 40.027.  EXECUTIVE DIRECTOR.  (a)  The board shall
   3-61  employ the executive director with the approval of the governor.
   3-62  The executive director serves at the pleasure of the board.
   3-63        (b)  The executive director is the executive head of the
   3-64  department.  The executive director shall perform the duties
   3-65  assigned by the board and state law.
   3-66        Sec. 40.028.  GENERAL DUTIES OF BOARD; DELEGATION.  (a)  The
   3-67  board shall govern the department.
   3-68        (b)  The board shall:
   3-69              (1)  supervise the executive director's administration
   3-70  and enforcement of the laws of this state that impose duties on the
    4-1  department or board; and
    4-2              (2)  develop and implement policies that clearly
    4-3  separate the respective responsibilities of the board and the staff
    4-4  of the department.
    4-5        (c)  The board may delegate to the executive director, or to
    4-6  the person acting as executive director in the executive director's
    4-7  absence, any power or duty imposed on the board or department by
    4-8  law, including the authority to make final orders or decisions,
    4-9  except that the board may not delegate the power or duty to adopt
   4-10  rules.  The delegation of a power or duty must be in writing.
   4-11        Sec. 40.029.  RULES.  The board shall propose and adopt rules
   4-12  to:
   4-13              (1)  ensure the department's compliance with state and
   4-14  federal law; and
   4-15              (2)  facilitate the implementation of departmental
   4-16  programs.
   4-17        Sec. 40.030.  ADVISORY COMMITTEES.  The board may appoint
   4-18  advisory committees in accordance with Article 6252-33, Revised
   4-19  Statutes.
   4-20        Sec. 40.031.  DIVISIONS OF DEPARTMENT.  (a)  The board may
   4-21  establish divisions within the department as necessary for
   4-22  efficient administration and for the discharge of the department's
   4-23  functions.
   4-24        (b)  The board may allocate and reallocate functions,
   4-25  programs, and activities among the department's divisions.
   4-26        Sec. 40.032.  PERSONNEL.  (a)  The executive director may
   4-27  employ personnel necessary to administer the department's duties.
   4-28        (b)  The executive director or the executive director's
   4-29  designated representative shall develop an intradepartmental career
   4-30  ladder program, one part of which shall require the
   4-31  intradepartmental posting of all non-entry-level positions
   4-32  concurrently with any public posting.
   4-33        (c)  The executive director or the executive director's
   4-34  designated representative shall develop a system of annual
   4-35  performance evaluations based on measurable job tasks.  All merit
   4-36  pay for department employees must be based on the system
   4-37  established under this subsection.
   4-38        (d)  The executive director shall provide to the department's
   4-39  employees as often as is necessary information regarding their
   4-40  qualifications under this chapter and their responsibilities under
   4-41  applicable laws relating to standards of conduct for state
   4-42  employees.
   4-43        (e)  The executive director or the executive director's
   4-44  designated representative shall prepare and maintain a written
   4-45  policy statement to ensure implementation of a program of equal
   4-46  employment opportunity under which all personnel transactions are
   4-47  made without regard to race, color, disability, sex, religion, age,
   4-48  or national origin.  The policy statement must include:
   4-49              (1)  personnel policies, including policies relating to
   4-50  recruitment, evaluation, selection, appointment, training, and
   4-51  promotion of personnel;
   4-52              (2)  a comprehensive analysis of the department's
   4-53  workforce that meets federal and state guidelines;
   4-54              (3)  procedures by which a determination can be made of
   4-55  significant underuse in the department's workforce of all persons
   4-56  for whom federal or state guidelines encourage a more equitable
   4-57  balance; and
   4-58              (4)  reasonable methods to appropriately address areas
   4-59  of significant underuse in the department's workforce of all
   4-60  persons for whom federal or state guidelines encourage a more
   4-61  equitable balance.
   4-62        (f)  The policy statement required under Subsection (e) shall
   4-63  be filed with the governor's office, cover an annual period, and be
   4-64  updated at least annually.  The governor's office shall develop a
   4-65  biennial report to the legislature based on the information
   4-66  submitted.  The report may be made separately or as a part of other
   4-67  biennial reports made to the legislature.
   4-68        Sec. 40.033.  MERIT SYSTEM.  (a)  The department may
   4-69  establish a merit system for its employees.
   4-70        (b)  The merit system may be maintained in conjunction with
    5-1  other state agencies that are required by federal law to operate
    5-2  under a merit system.
    5-3        Sec. 40.034.  PROHIBITED ACTIVITIES BY FORMER OFFICERS OR
    5-4  EMPLOYEES.  (a)  For one year after the date on which a former
    5-5  officer or employee of the department terminates service or
    5-6  employment with the department, the individual may not, directly or
    5-7  indirectly, attempt or aid in the attempt to procure a contract
    5-8  with the department that relates to a program or service in which
    5-9  the individual was directly concerned or for which the individual
   5-10  had administrative responsibility.
   5-11        (b)  This section does not apply to:
   5-12              (1)  a former employee who is compensated on the last
   5-13  date of service or employment below the amount prescribed by the
   5-14  General Appropriations Act for step 1, salary group 17, of the
   5-15  position classification salary schedule, including a state employee
   5-16  who is exempt from the state's position classification plan; or
   5-17              (2)  a former officer or employee who is employed by
   5-18  another state agency or a community center.
   5-19        (c)  A former officer or employee of the department commits
   5-20  an offense if the former officer or employee violates this section.
   5-21  An offense under this section is a Class A misdemeanor.
   5-22            (Sections 40.035-40.050 reserved for expansion
   5-23            SUBCHAPTER C.  GENERAL FUNCTIONS OF DEPARTMENT
   5-24        Sec. 40.051.  STRATEGIC PLAN FOR DEPARTMENT.  The department
   5-25  shall develop a departmental strategic plan based on the goals and
   5-26  priorities stated in the commission's coordinated strategic plan
   5-27  for health and human services.
   5-28        Sec. 40.052.  DUTIES RELATING TO DELIVERY OF SERVICES.  The
   5-29  department shall:
   5-30              (1)  propose and implement service delivery standards
   5-31  for departmental programs;
   5-32              (2)  provide training and technical assistance to
   5-33  regional and local service providers;
   5-34              (3)  develop and implement systems for monitoring
   5-35  departmental program performance and service delivery;
   5-36              (4)  promote innovative service delivery at the local
   5-37  level; and
   5-38              (5)  cooperate and coordinate as appropriate with other
   5-39  governmental entities in the delivery of services.
   5-40        Sec. 40.053.  DUTY TO PERFORM OTHER FUNCTIONS.  The
   5-41  department shall perform other functions as required by law.
   5-42        Sec. 40.054.  ACCESS TO CRIMINAL HISTORY.  Subject to the
   5-43  availability of funds appropriated by the legislature, the
   5-44  department is entitled to obtain any criminal history information
   5-45  from records maintained by:
   5-46              (1)  the Department of Public Safety, as prescribed by
   5-47  Section 411.114, Government Code;
   5-48              (2)  another law enforcement agency in this state,
   5-49  subject to the same procedures and limitations prescribed by
   5-50  Section 411.114, Government Code, as applicable; or
   5-51              (3)  federal agencies, as provided by federal law.
   5-52        Sec. 40.055.  LEGISLATIVE APPROPRIATION REQUEST.  The
   5-53  department shall submit any legislative appropriation request to
   5-54  the commission for comment and for incorporation into the
   5-55  commission's consolidated health and human services budget
   5-56  recommendation.  The legislative appropriation request must comply
   5-57  with state priorities and federal requirements.
   5-58        Sec. 40.056.  USE OF FUNDS.  (a)  Notwithstanding any other
   5-59  provision of law, the department may extend the scope of its
   5-60  programs to the extent necessary to ensure that federal matching
   5-61  funds are available, if the department determines that the
   5-62  extension of scope is feasible and within the limits of
   5-63  appropriated funds.
   5-64        (b)  The department may accept, spend, and transfer federal
   5-65  and state funds appropriated for programs authorized by federal
   5-66  law.  The department may accept, spend, and transfer funds received
   5-67  from any source, including a county, municipality, or public or
   5-68  private agency.
   5-69        Sec. 40.057.  GIFTS AND GRANTS.  The department may accept a
   5-70  gift or grant from a public or private source to perform any of the
    6-1  department's powers or duties.
    6-2        Sec. 40.058.  CONTRACTS AND AGREEMENTS.  (a)  The department
    6-3  may enter into contracts or agreements with any person, including a
    6-4  federal, state, or other public or private agency, as necessary to
    6-5  perform any of the department's powers or duties.
    6-6        (b)  An agreement made under this section is not subject to
    6-7  Chapter 771, Government Code.
    6-8        Sec. 40.059.  FEES.  The department may set and charge
    6-9  appropriate fees in the administration and delivery of services.
   6-10        Sec. 40.060.  INDEMNIFICATION FOR LEGAL EXPENSES.  If a
   6-11  present or former employee of the department who is or was involved
   6-12  in activities relating to the protection of children or elderly or
   6-13  disabled persons is criminally prosecuted for conduct involving the
   6-14  person's misfeasance or nonfeasance in the course and scope of the
   6-15  person's employment and is found not guilty after a trial or appeal
   6-16  or if the complaint or indictment is dismissed without a plea of
   6-17  guilty or nolo contendere being entered, the department may
   6-18  indemnify the person or the person's estate for the reasonable
   6-19  attorney's fees incurred in defense of the prosecution up to a
   6-20  maximum of $10,000.
   6-21        Sec. 40.061.  IMMUNITY.  (a)  A department employee or an
   6-22  authorized department volunteer who performs a departmental duty or
   6-23  responsibility is immune from civil or criminal liability for any
   6-24  act or omission that relates to the duty or responsibility if the
   6-25  person acted in good faith and within the scope of the person's
   6-26  authority.
   6-27        (b)  In this section, "volunteer" means a person who:
   6-28              (1)  renders services for or on behalf of the
   6-29  department under the supervision of a department employee; and
   6-30              (2)  does not receive compensation that exceeds the
   6-31  authorized expenses the person incurs in rendering those services.
   6-32        Sec. 40.062.  EXEMPTION FROM CERTAIN COSTS AND FEES.  The
   6-33  department is not required to pay any cost or fee otherwise imposed
   6-34  for court proceedings, including a:
   6-35              (1)  filing fee or fee for issuance or service of
   6-36  process imposed by Section 14.13, Family Code, or by Section
   6-37  51.317, 51.318(b)(2), or 51.319, Government Code;
   6-38              (2)  transfer fee imposed by Section 11.06(l) or 14.13,
   6-39  Family Code;
   6-40              (3)  court reporter fee imposed by Section 51.601,
   6-41  Government Code;
   6-42              (4)  judicial fund fee imposed by Sections 51.701 and
   6-43  51.702, Government Code;
   6-44              (5)  judge's fee imposed by Section 25.0008, 25.00263,
   6-45  or 25.0029, Government Code; or
   6-46              (6)  cost or security fee imposed by Section 12 or 622,
   6-47  Probate Code.
   6-48        Sec. 40.063.  EXCEPTIONS FROM CERTAIN PROVISIONS OF
   6-49  ADMINISTRATIVE PROCEDURE ACT.  Section 2001.038 and Subchapters C
   6-50  through H, Chapter 2001, Government Code, do not apply to the
   6-51  granting, payment, denial, or withdrawal of financial or medical
   6-52  assistance or benefits under a service program of the department.
   6-53        Sec. 40.064.  INTERAGENCY COOPERATION AND EXCHANGE OF
   6-54  INFORMATION.  (a)  The department may execute a memorandum of
   6-55  understanding with another state agency to facilitate the
   6-56  implementation of a program or the delivery of a service that the
   6-57  department is required by law to implement or deliver.
   6-58        (b)  The department may establish procedures to exchange with
   6-59  another state agency or governmental entity information that is
   6-60  necessary for the department or the agency or entity to properly
   6-61  execute its respective duties and responsibilities.  An exchange of
   6-62  information does not affect whether the information is subject to
   6-63  disclosure under Chapter 552, Government Code.
   6-64        Sec. 40.065.  COMMUNICATIONS OFFICER; PLAN.  (a)  The
   6-65  department shall designate one or more department employees to be
   6-66  primarily responsible for communicating with the public regarding
   6-67  the department's powers and duties.  Through the use of designated
   6-68  employees the department shall ensure:
   6-69              (1)  Effective communications between the department
   6-70  and persons seeking to report abuse or neglect or inquiring about
    7-1  the status of a case; and
    7-2              (2)  effective and timely response to questions from
    7-3  the public within the department's confidentiality guidelines.
    7-4        (b)  The department shall develop and implement a
    7-5  communication plan to ensure statewide public and government
    7-6  awareness of child abuse or neglect investigated by the department.
    7-7  The plan shall include information detailing the procedure followed
    7-8  by the department during the investigation and the responsibilities
    7-9  of the department in child abuse cases.  In implementing the plan,
   7-10  the department shall establish a process for expediting the
   7-11  reporting of child abuse or neglect to the department.  The
   7-12  department shall adopt rules to implement this subsection.
   7-13        SECTION 2.  The heading of Title 2, Human Resources Code, is
   7-14  amended to read as follows:
   7-15       TITLE 2.  DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF
   7-16                  PROTECTIVE AND REGULATORY SERVICES
   7-17        SECTION 3.  The heading of Subtitle B, Title 2, Human
   7-18  Resources Code, is amended to read as follows:
   7-19                 SUBTITLE B.  STRUCTURE AND FUNCTIONS
   7-20                    OF DEPARTMENT OF HUMAN SERVICES
   7-21        SECTION 4.  The headings of Chapters 21 and 22, Human
   7-22  Resources Code, are amended to read as follows:
   7-23         CHAPTER 21.  ADMINISTRATIVE PROVISIONS FOR DEPARTMENT
   7-24                           OF HUMAN SERVICES
   7-25             CHAPTER 22.  GENERAL FUNCTIONS OF DEPARTMENT
   7-26                           OF HUMAN SERVICES
   7-27        SECTION 5.  Section 21.002, Human Resources Code, is amended
   7-28  to read as follows:
   7-29        Sec. 21.002.  SUNSET PROVISION.  The Texas Department of
   7-30  Human Services is subject to  Chapter 325, Government Code (Texas
   7-31  Sunset Act).  Unless continued in existence as provided by that
   7-32  chapter, the department is abolished and this title expires
   7-33  September 1, 1999, except that Chapter 40 expires as provided by
   7-34  Section 40.003.
   7-35        SECTION 6.  Section 11.001, Human Resources Code, is amended
   7-36  to read as follows:
   7-37        Sec. 11.001.  DEFINITIONS.  Except as provided by Section
   7-38  34.002 or 40.001, in <In> this title:
   7-39              (1)  "Board" means the Texas Board of Human Services.
   7-40              (2)  "Department" means the Texas Department of Human
   7-41  Services.
   7-42              (3)  "Commissioner" means the Commissioner of Human
   7-43  Services.
   7-44              (4)  "Assistance" means all forms of assistance and
   7-45  services for needy persons authorized by Subtitle C <of this
   7-46  title>.
   7-47              (5)  "Financial assistance" means money payments for
   7-48  needy persons authorized by Chapter 31 <of this code>.
   7-49              (6)  "Medical assistance" means assistance for needy
   7-50  persons authorized by Chapter 32 <of this code>.
   7-51        SECTION 7.  Section 411.114, Government Code, is amended to
   7-52  read as follows:
   7-53        Sec. 411.114.  Access to Criminal History Record Information:
   7-54  Department of Protective and Regulatory Services.  (a)(1)  In this
   7-55  subsection the terms "child," "child-care facility," and "family
   7-56  home" have the meanings assigned by Section 42.002, Human Resources
   7-57  Code.
   7-58              (2)  The Department of Protective and Regulatory
   7-59  Services is entitled to obtain from the department criminal history
   7-60  record information maintained by the department that relates to a
   7-61  person who is:
   7-62                    (A)  an applicant for a license, registration, or
   7-63  certification under Chapter 42, Human Resources Code;
   7-64                    (B)  an owner or employee of or an applicant for
   7-65  employment by a child-care facility licensed, registered, or
   7-66  certified under that chapter;
   7-67                    (C)  a resident of a registered family home, but
   7-68  not a child in the home's care or a parent of the child;
   7-69                    (D)  an applicant for a position with the
   7-70  Department of Protective and Regulatory Services, the duties of
    8-1  which include direct delivery of protective services to children,
    8-2  elderly persons, or persons with a disability;
    8-3                    (E)  a volunteer or applicant volunteer with a
    8-4  local affiliate in this state of Big Brothers/Big Sisters of
    8-5  America;
    8-6                    (F)  a volunteer or applicant volunteer with the
    8-7  "I Have a Dream/Houston" program;
    8-8                    (G)  an employee of, an applicant for employment
    8-9  with, or a volunteer or an applicant volunteer with a business
   8-10  entity or person that contracts with the Department of Protective
   8-11  and Regulatory Services to provide direct delivery of protective
   8-12  services to children, elderly persons, or persons with a
   8-13  disability, if the person's duties or responsibilities include
   8-14  direct contact with children, elderly persons, or persons with a
   8-15  disability <an employee of a business entity that provides in-home
   8-16  respite care of children with temporary illnesses>;
   8-17                    (H)  a volunteer or applicant volunteer with the
   8-18  Department of Protective and Regulatory Services <an employee of a
   8-19  home health agency>;
   8-20                    (I)  a volunteer or applicant volunteer with an
   8-21  organization that provides court-appointed special advocates for
   8-22  abused or neglected children;
   8-23                    (J)  a person providing or applying to provide
   8-24  adoptive or foster care for children in the care of the Department
   8-25  of Protective and Regulatory Services and other adults living with
   8-26  that person in the residence in which the child will reside;
   8-27                    (K)  a Department of Protective and Regulatory
   8-28  Services employee who is engaged in the direct delivery of
   8-29  protective services to children, elderly persons, or persons with a
   8-30  disability <on the date the department implements this section>;
   8-31                    (L)  a person who is the subject of a report the
   8-32  department receives alleging that the person has abused or
   8-33  neglected a child, an elderly person, or a person with a
   8-34  disability, provided that report has proven to have merit <after
   8-35  investigation>; <or>
   8-36                    (M)  a relative providing or applying to provide
   8-37  in-home care for a child in the care of the Department of
   8-38  Protective and Regulatory Services and other adults living with
   8-39  that relative in the residence in which the child will reside;
   8-40                    (N)  a person providing child care for a child
   8-41  who is in the care of the Department of Protective and Regulatory
   8-42  Services and who is or will be receiving adoptive, foster, or
   8-43  in-home care;
   8-44                    (O)  a person providing, at the request of the
   8-45  child's parent,  in-home care for a child who is the subject of a
   8-46  report alleging the child has been abused or neglected; or
   8-47                    (P)  a volunteer or applicant volunteer with a
   8-48  Texas chapter of the Make-a-Wish Foundation of America.
   8-49              (3)  The Department of Protective and Regulatory
   8-50  Services may not use the authority granted under this section to
   8-51  harass an employee or volunteer.  The Board of Protective and
   8-52  Regulatory Services shall adopt rules to prevent the harassment of
   8-53  an employee or volunteer through the request and use of criminal
   8-54  records <is entitled, under this subsection, only to criminal
   8-55  history record information that relates to:>
   8-56                    <(A)  an offense classified as an offense against
   8-57  the person or the family;>
   8-58                    <(B)  an offense classified as public indecency;
   8-59  or>
   8-60                    <(C)  a felony violation of a statute intended to
   8-61  control the possession or distribution of a substance included in
   8-62  Chapter 481, Health and Safety Code>.
   8-63              (4)  Criminal history record information obtained by
   8-64  the Department of Protective and Regulatory Services under this
   8-65  subsection may not be released to any person except:
   8-66                    (A)  on court order;
   8-67                    (B)  <,> with the consent of the person who is
   8-68  the subject of the criminal history record information;
   8-69                    (C)  for purposes of an administrative hearing
   8-70  held by the Department of Protective and Regulatory Services
    9-1  concerning the person who is the subject of the criminal history
    9-2  record information; <,> or
    9-3                    (D)  as provided by Subdivision (5).
    9-4              (5)  The Department of Protective and Regulatory
    9-5  Services is not prohibited from releasing criminal history record
    9-6  information obtained under this subsection to:
    9-7                    (A)  the person who is the subject of the
    9-8  criminal history record information;
    9-9                    (B)  <or to> a child-care facility that employs
   9-10  or is considering employing the person who is the subject of the
   9-11  criminal history record information;
   9-12                    (C)  a person or business entity described by
   9-13  Subsection (a)(2)(G) who uses or intends to use the services of the
   9-14  volunteer or employs or is considering employing the person who is
   9-15  the subject of the criminal history record information; or
   9-16                    (D)  an adult residing with a child and the
   9-17  person who is the subject of the criminal history record
   9-18  information, if the Department of Protective and Regulatory
   9-19  Services determines that the release of information to the adult is
   9-20  necessary to ensure the safety or welfare of the child or adult.
   9-21        (b)  The Department of Protective and Regulatory Services may
   9-22  charge an organization that requests criminal history record
   9-23  information under Subsection (a)(2) a fee in an amount necessary to
   9-24  cover the costs of obtaining the information on the organization's
   9-25  behalf <(1)  In this subsection, "facility" has the meaning
   9-26  assigned by Section 106.001, Human Resources Code.>
   9-27              <(2)  The Department of Protective and Regulatory
   9-28  Services, on behalf of the Texas Department of Health, is entitled
   9-29  to obtain from the department criminal history record information
   9-30  maintained by the department that relates to a person who is:>
   9-31                    <(A)  an applicant for employment at a facility;
   9-32  or>
   9-33                    <(B)  an employee of a facility.>
   9-34              <(3)  The Department of Protective and Regulatory
   9-35  Services is entitled to obtain, under this subsection, only
   9-36  criminal history record information that relates to:>
   9-37                    <(A)  an offense classified as an offense against
   9-38  the person or the family;>
   9-39                    <(B)  an offense classified as public indecency;>
   9-40                    <(C)  a felony violation of a statute intended to
   9-41  control the possession or distribution of a substance included in
   9-42  Chapter 481, Health and Safety Code, or Section 485.033, Health and
   9-43  Safety Code;>
   9-44                    <(D)  a felony offense under Section 31.03, Penal
   9-45  Code; or>
   9-46                    <(E)  an offense under Section 29.02, 29.03, or
   9-47  30.02, Penal Code.>
   9-48              <(4)  Criminal history record information obtained by
   9-49  the Department of Protective and Regulatory Services under this
   9-50  subsection may not be released to any person except on court order,
   9-51  with the written consent of the person who is the subject of the
   9-52  criminal history record information, or as provided by Subdivision
   9-53  (5).>
   9-54              <(5)  The Department of Protective and Regulatory
   9-55  Services is not prohibited from disclosing criminal history record
   9-56  information obtained under this subsection to the Texas Department
   9-57  of Health or to the facility for which the Department of Protective
   9-58  and Regulatory Services requested the information>.
   9-59        SECTION 8.  Sections 22.006 and 22.0065, Human Resources
   9-60  Code, are repealed.
   9-61        SECTION 9.  The following are repealed:
   9-62              (1)  Section 21.017, Human Resources Code; and
   9-63              (2)  Article 4413(503), Revised Statutes.
   9-64        SECTION 10.  In addition to the new changes in law made by
   9-65  this Act relating to the powers and duties of the Department of
   9-66  Protective and Regulatory Services, this Act conforms certain
   9-67  provisions of the Human Resources Code relating to that subject to
   9-68  codify Article 4413(503), Revised Statutes, and Section 1.17(b),
   9-69  Chapter 15, Acts of the 72nd Legislature, 1st Called Session, 1991.
   9-70        SECTION 11.  This Act takes effect September 1, 1995.
   10-1        SECTION 12.  The importance of this legislation and the
   10-2  crowded condition of the calendars in both houses create an
   10-3  emergency and an imperative public necessity that the
   10-4  constitutional rule requiring bills to be read on three several
   10-5  days in each house be suspended, and this rule is hereby suspended.
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