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.
10-6 * * * * *