74R11547 ESH-D
By Black H.B. No. 2391
Substitute the following for H.B. No. 2391:
By Hilderbran C.S.H.B. No. 2391
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the impact of certain residential care facilities on
1-3 school districts and communities, to the liability of certain
1-4 residential care facilities for conduct of children residing in the
1-5 facilities, and to the duties of certain state agencies concerning
1-6 children placed in certain residential care facilities.
1-7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-8 SECTION 1. Subchapter B, Chapter 21, Education Code, is
1-9 amended by adding Section 21.0314 to read as follows:
1-10 Sec. 21.0314. NOTICE CONCERNING CHILD IN RESIDENTIAL CARE
1-11 FACILITY. (a) Not later than 24 hours after accepting a child
1-12 younger than 22 years of age for admission to or placement in a
1-13 residential care facility, the person operating the facility shall
1-14 send written notice of the admission or placement of the child to
1-15 the school district in which the facility is located.
1-16 (b) In this section, "residential care facility" means:
1-17 (1) a facility, including a group home, operated under
1-18 a contract with the Texas Department of Mental Health and Mental
1-19 Retardation or with a community center organized under Subchapter
1-20 A, Chapter 534, Health and Safety Code, that provides 24-hour
1-21 services for children with mental retardation, mental illness, or
1-22 emotional disturbances;
1-23 (2) a home and community support services agency as
1-24 defined by Section 142.001, Health and Safety Code, that provides
2-1 24-hour services for children;
2-2 (3) an institution as defined by Section 242.002,
2-3 Health and Safety Code;
2-4 (4) a child-care institution, foster group home, or
2-5 agency group home, as defined by Section 42.002, Human Resources
2-6 Code; or
2-7 (5) a community home for children that is subject to
2-8 Chapter 123, Human Resources Code.
2-9 SECTION 2. Subchapter A, Chapter 142, Health and Safety
2-10 Code, is amended by adding Section 142.005 to read as follows:
2-11 Sec. 142.005. NOTICE CONCERNING PROPOSED RESIDENTIAL
2-12 FACILITY. (a) This section applies only to a person who files an
2-13 application for a license to establish a home and community support
2-14 services agency that will provide living quarters to six or more
2-15 persons.
2-16 (b) Not later than the seventh day after the date the person
2-17 files the application, the person must publish a notice of the
2-18 application in a newspaper of general circulation in the community
2-19 in which the facility is proposed to be located. The notice must
2-20 be published on two separate occasions at least two weeks apart.
2-21 The notice must include the name and address of the person filing
2-22 the application and the name and address of each agency that issues
2-23 any applicable license.
2-24 (c) Not later than the seventh day after the date the person
2-25 files the application, the person must send written notice of the
2-26 application to:
2-27 (1) each municipal or county law enforcement agency,
3-1 including each juvenile probation department, within whose
3-2 jurisdiction the facility is proposed to be located;
3-3 (2) the governing body of the municipality in which
3-4 the facility is proposed to be located;
3-5 (3) the commissioners court of the county in which the
3-6 facility is proposed to be located; and
3-7 (4) the board of trustees of the school district in
3-8 which the facility is proposed to be located.
3-9 SECTION 3. Section 142.006, Health and Safety Code, is
3-10 amended by adding Subsection (f) to read as follows:
3-11 (f) If the home and community support services agency is to
3-12 provide or provides living quarters for six or more children,
3-13 before issuing or renewing the license, the department shall
3-14 consider the impact that the facility will have or has on the
3-15 school district in which the facility is located.
3-16 SECTION 4. Subchapter A, Chapter 142, Health and Safety
3-17 Code, is amended by adding Section 142.017 to read as follows:
3-18 Sec. 142.017. LIABILITY OF CERTAIN HOME AND COMMUNITY
3-19 SUPPORT SERVICES AGENCIES FOR CONDUCT OF CHILD. (a) The person
3-20 operating a home and community support services agency that
3-21 provides living quarters to six or more children is liable for any
3-22 property damage caused by:
3-23 (1) the negligent conduct of a child who is placed in
3-24 the facility by a state agency, if the conduct is reasonably
3-25 attributable to the negligent failure of the person to control the
3-26 child; or
3-27 (2) the intentional and malicious conduct of a child
4-1 who is placed in the facility by a state agency and who is at least
4-2 12 years of age.
4-3 (b) Recovery for damage caused by intentional and malicious
4-4 conduct is limited to actual damages not to exceed $15,000, plus
4-5 court costs and reasonable attorney's fees.
4-6 (c) In this section, "child" means a person younger than 18
4-7 years of age.
4-8 SECTION 5. Subchapter A, Chapter 242, Health and Safety
4-9 Code, is amended by adding Section 242.015 to read as follows:
4-10 Sec. 242.015. LIABILITY OF CERTAIN INSTITUTIONS FOR CONDUCT
4-11 OF CHILD. (a) The person operating an institution that provides
4-12 living quarters to six or more children is liable for any property
4-13 damage caused by:
4-14 (1) the negligent conduct of a child who is placed in
4-15 the institution by a state agency, if the conduct is reasonably
4-16 attributable to the negligent failure of the person to control the
4-17 child; or
4-18 (2) the intentional and malicious conduct of a child
4-19 who is placed in the institution by a state agency and who is at
4-20 least 12 years of age.
4-21 (b) Recovery for damage caused by intentional and malicious
4-22 conduct is limited to actual damages not to exceed $15,000, plus
4-23 court costs and reasonable attorney's fees.
4-24 (c) In this section, "child" means a person younger than 18
4-25 years of age.
4-26 SECTION 6. Subchapter B, Chapter 242, Health and Safety
4-27 Code, is amended by adding Section 242.0321 to read as follows:
5-1 Sec. 242.0321. NOTICE CONCERNING PROPOSED INSTITUTION. (a)
5-2 Not later than the seventh day after the date a person files an
5-3 application for a license to establish an institution, the person
5-4 must publish a notice of the application in a newspaper of general
5-5 circulation in the community in which the institution is proposed
5-6 to be located. The notice must be published on two separate
5-7 occasions at least two weeks apart. The notice must include the
5-8 name and address of the person filing the application and the name
5-9 and address of each agency that issues any applicable license.
5-10 (b) Not later than the seventh day after the date a person
5-11 files an application for a license to establish an institution, the
5-12 person must send written notice of the application to:
5-13 (1) each municipal or county law enforcement agency,
5-14 including each juvenile probation department, within whose
5-15 jurisdiction the institution is proposed to be located;
5-16 (2) the governing body of the municipality in which
5-17 the institution is proposed to be located;
5-18 (3) the commissioners court of the county in which the
5-19 institution is proposed to be located; and
5-20 (4) the board of trustees of the school district in
5-21 which the institution is proposed to be located.
5-22 SECTION 7. Section 242.033, Health and Safety Code, is
5-23 amended by adding Subsection (f) to read as follows:
5-24 (f) If the institution is to provide or provides living
5-25 quarters for six or more children, before issuing or renewing the
5-26 license, the department shall consider the impact that the
5-27 institution will have or has on the school district in which the
6-1 institution is located.
6-2 SECTION 8. Subchapter A, Chapter 42, Human Resources Code,
6-3 is amended by adding Section 42.003 to read as follows:
6-4 Sec. 42.003. LIABILITY OF CERTAIN FACILITIES FOR CONDUCT OF
6-5 CHILD. (a) The person operating a facility that provides care 24
6-6 hours a day is liable for any property damage caused by:
6-7 (1) the negligent conduct of a child who is placed in
6-8 the facility by a state agency, if the conduct is reasonably
6-9 attributable to the negligent failure of the person to control the
6-10 child; or
6-11 (2) the intentional and malicious conduct of a child
6-12 who is placed in the facility by a state agency and who is at least
6-13 12 years of age.
6-14 (b) Recovery for damage caused by intentional and malicious
6-15 conduct is limited to actual damages not to exceed $15,000, plus
6-16 court costs and reasonable attorney's fees.
6-17 SECTION 9. Subchapter C, Chapter 42, Human Resources Code,
6-18 is amended by adding Section 42.0455 to read as follows:
6-19 Sec. 42.0455. NOTICE CONCERNING PROPOSED CHILD-CARE
6-20 FACILITY. (a) This section applies only to a person who files an
6-21 application for a license to establish a facility that will provide
6-22 care 24 hours a day.
6-23 (b) Not later than the seventh day after the date the person
6-24 files the application, the person must publish a notice of the
6-25 application in a newspaper of general circulation in the community
6-26 in which the facility is proposed to be located. The notice must
6-27 be published on two separate occasions at least two weeks apart.
7-1 The notice must include the name and address of the person filing
7-2 the application and the name and address of each agency that issues
7-3 any applicable license.
7-4 (c) Not later than the seventh day after the date the person
7-5 files the application, the person must send written notice of the
7-6 application to:
7-7 (1) each municipal or county law enforcement agency,
7-8 including each juvenile probation department, within whose
7-9 jurisdiction the facility is proposed to be located;
7-10 (2) the governing body of the municipality in which
7-11 the facility is proposed to be located;
7-12 (3) the commissioners court of the county in which the
7-13 facility is proposed to be located; and
7-14 (4) the board of trustees of the school district in
7-15 which the facility is proposed to be located.
7-16 SECTION 10. Section 42.049(b), Human Resources Code, is
7-17 amended to read as follows:
7-18 (b) When issuing a license, the division:
7-19 (1) shall consider the impact that the facility will
7-20 have on the school district in which the facility is located; and
7-21 (2) may impose restrictions on a facility, including
7-22 restrictions concerning <but not limited to> the number of children
7-23 to be served and the type of children to be served.
7-24 SECTION 11. Chapter 123, Human Resources Code, is amended by
7-25 adding Sections 123.0081 and 123.011 to read as follows:
7-26 Sec. 123.0081. NOTICE CONCERNING PROPOSED COMMUNITY HOME.
7-27 (a) Before a person may establish a community home, the person
8-1 must publish a notice of the proposal to establish a community home
8-2 in a newspaper of general circulation in the community in which the
8-3 home is proposed to be located. The notice must be published on
8-4 two separate occasions at least two weeks apart. The notice must
8-5 include the name and address of the person proposing to establish
8-6 the community home and the name and address of each agency that
8-7 issues any applicable license.
8-8 (b) Before a person may establish a community home, the
8-9 person must send written notice of the proposal to establish a
8-10 community home to:
8-11 (1) each municipal or county law enforcement agency,
8-12 including each juvenile probation department, within whose
8-13 jurisdiction the community home is proposed to be located;
8-14 (2) the governing body of the municipality in which
8-15 the community home is proposed to be located;
8-16 (3) the commissioners court of the county in which the
8-17 community home is proposed to be located; and
8-18 (4) the board of trustees of the school district in
8-19 which the community home is proposed to be located.
8-20 Sec. 123.011. LIABILITY OF CERTAIN COMMUNITY HOMES FOR
8-21 CONDUCT OF CHILD. (a) The person operating a community home for
8-22 children is liable for any property damage caused by:
8-23 (1) the negligent conduct of a child who is placed in
8-24 the community home by a state agency, if the conduct is reasonably
8-25 attributable to the negligent failure of the person to control the
8-26 child; or
8-27 (2) the intentional and malicious conduct of a child
9-1 who is placed in the community home by a state agency and who is at
9-2 least 12 years of age.
9-3 (b) Recovery for damage caused by intentional and malicious
9-4 conduct is limited to actual damages not to exceed $15,000, plus
9-5 court costs and reasonable attorney's fees.
9-6 (c) In this section, "child" means a person younger than 18
9-7 years of age.
9-8 SECTION 12. Section 1, Article 4413(502), Revised Statutes,
9-9 is amended by adding Subdivision (3) to read as follows:
9-10 (3) "Residential care facility" has the meaning
9-11 assigned by Section 21.0314, Education Code.
9-12 SECTION 13. Article 4413(502), Revised Statutes, is amended
9-13 by adding Sections 22 and 23 to read as follows:
9-14 Sec. 22. MEMORANDUM OF UNDERSTANDING CONCERNING CHILDREN
9-15 WITH DISABILITIES IN RESIDENTIAL CARE FACILITIES. (a) The
9-16 commission, the Central Education Agency, the Texas Youth
9-17 Commission, and each health and human services agency shall
9-18 develop, agree to, and by rule adopt a memorandum of understanding
9-19 that:
9-20 (1) establishes the respective responsibility of each
9-21 agency for addressing the needs of children with disabilities who
9-22 are younger than 22 years of age and who are placed in residential
9-23 care facilities;
9-24 (2) contains specific procedures for coordinating the
9-25 responsibilities of each agency concerning:
9-26 (A) the referral and placement of children with
9-27 disabilities in residential care facilities;
10-1 (B) the evaluation and enrollment of children
10-2 with disabilities in school;
10-3 (C) the sharing of confidential records and
10-4 reports concerning children with disabilities;
10-5 (D) the planning and delivery of care,
10-6 treatment, and educational services to children with disabilities
10-7 who are placed in residential care facilities;
10-8 (E) the investigation and review of complaints
10-9 concerning the provision of services to children with disabilities
10-10 who are placed in residential care facilities; and
10-11 (F) the use of space in a residential care
10-12 facility by an agency, other than the agency placing the child in
10-13 the facility, that is responsible for serving the children in the
10-14 facility; and
10-15 (3) defines each agency's legal enforcement procedures
10-16 regarding a specific aspect of placement of children with
10-17 disabilities in residential care facilities for which the agency is
10-18 responsible.
10-19 (b) The commission shall coordinate the development of the
10-20 memorandum of understanding.
10-21 Sec. 23. PREVENTION OF DISPROPORTIONATE IMPACT OF
10-22 RESIDENTIAL CARE FACILITIES ON SCHOOL DISTRICTS AND COMMUNITIES.
10-23 The commission and each health and human services agency, in
10-24 cooperation with the Central Education Agency and the Texas Youth
10-25 Commission, shall establish procedures and adopt rules necessary to
10-26 assure that the approval of new or expanded licensing or
10-27 certification of a residential care facility for children younger
11-1 than 22 years of age is based on a comprehensive assessment of the
11-2 impact that the facility will have on the school district and the
11-3 community in which the facility is or is proposed to be located.
11-4 The assessment must include an assessment of the effects of denial
11-5 of the license or certificate.
11-6 SECTION 14. Section 42.050, Human Resources Code, as amended
11-7 by Chapter 1052, Acts of the 70th Legislature, Regular Session,
11-8 1987, and as repealed by Chapter 1081, Acts of the 70th
11-9 Legislature, Regular Session, 1987, is repealed.
11-10 SECTION 15. Notwithstanding Section 311.025, Government
11-11 Code, the amendment by this Act of Subchapter B, Chapter 21,
11-12 Education Code, by adding Section 21.0314 prevails over any
11-13 revision, recodification, or reenactment of Titles 1 and 2 of the
11-14 Education Code by the 74th Legislature, Regular Session, 1995,
11-15 including S.B. No. 1.
11-16 SECTION 16. This Act takes effect September 1, 1995.
11-17 SECTION 17. The importance of this legislation and the
11-18 crowded condition of the calendars in both houses create an
11-19 emergency and an imperative public necessity that the
11-20 constitutional rule requiring bills to be read on three several
11-21 days in each house be suspended, and this rule is hereby suspended.