JKC C.S.H.B. 2663 75(R)BILL ANALYSIS HUMAN SERVICES H.B. 2663 By: Wise 4-28-97 Committee Report (Substituted) BACKGROUND Many child sexual assault victims are molested by those in a position of trust and authority over them. Although the majority of people who work with children are dedicated, sincere professionals who are deeply concerned about the welfare of children, a few people seek to harm or exploit children entrusted to their care and supervision. A critical step in preventing child sexual abuse, exploitation, and abduction is the screening of child care personnel. Such screening could deter inappropriate persons from seeking positions in child care or youth services. Through this legislation, these screening programs would be required to be directed towards all issues of child protection, including sexual abuse, exploitation, and abduction as well as child abuse. Federal and state laws requiring criminal history background checks have been enacted to protect children from criminal and sexual exploitation. In fact, all persons working with children in federal facilities are now required to have background checks completed as a result of provisions in the federal Victims of Child Abuse Act of 1990. While the requirement of criminal history checks is not a complete solution to the problem of child maltreatment in specific institutions and child activities, it is one important step that should be taken as part of the screening process and should be required for all personnel who provide services to children. A criminal history background check should be conducted both through the state law enforcement information system to find specific offenses committed by that individual in that state and through the FBI's National Crime Information Center Interstate Identification Index (III) to determine if other states have records of the criminal history of the individual. PURPOSE The purpose of this legislation is to strengthen the current law in the Government Code and the Human Resources Code by outlining a more comprehensive criminal background check of certain conduct by employees, volunteers, and prospective employees and volunteers who work closely with children in family home settings or other child care facilities licensed by the Texas Department of Protective and Regulatory Services (DPRS). Current law in Texas, like in most other states, includes such a provision, but some consider it vague and difficult to enforce. This legislation conducts the following: adds volunteers and prospective volunteers, as well as family home settings, to the list of people and facilities that must be screened and checked before receiving a license to take care of children; enhances the process of obtaining data from outside the state; and requires a signed affidavit or statement from the employee or volunteer indicating whether he or she has been convicted of a sex crime, and, if so, a disclosure of information about the conviction. RULEMAKING AUTHORITY Rulemaking authority is granted to the Department of Protective and Regulatory Services in Sections 3(a), 3(c), and 4(h). SECTION BY SECTION ANALYSIS SECTION 1.Amends Section 411.114 of the Government Code dealing with Access to Criminal History Record Information : Department of Protective and Regulatory Services by both adding new language and deleting old language to clarify the obtaining of or access to criminal history background information on certain employees, potential employees, and volunteers who directly interact with children. The section defines the terms "child," "child-care facility," and "family home" giving them the same meaning as found in Section 42.002 of the Human Resources Code. The section adds "family home" to the list of licensed applicants under the Department of Protective and Regulatory Services (DPRS) that the department shall obtain from regarding background criminal record information maintained by the department. It further states that criminal history background information may be obtained on a person who is: (A) an applicant for a license, registration, or certification under Chapter 42, Human Resources Code; (B) an owner or employee of or an applicant for employment by a child-care facility or family home licensed, registered, or certified under that chapter. The section deletes language which specifically addressed certain groups (e.g., "Big Brothers/Big Sisters of America," "I Have a Dream/Houston," and"Make a Wish Foundation.") and adds broader language to expand the definition to include all volunteers or applicant volunteers associated with DPRS. The section states that the Department of Protective and Regulatory Services is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is: (A) a volunteer or applicant volunteer with a local affiliate in this state of Big Brothers/Big Sisters of America; (B) a volunteer or applicant volunteer with the "I Have a Dream/Houston" program; (C) a volunteer or applicant volunteer with an organization that provides court-appointed special advocates for abused or neglected children; (D) a person providing, at the request of the child's parent, in-home care for a child who is the subject of a report alleging the child has been abused or neglected; (E) a volunteer or applicant volunteer with a Texas chapter of the Make-a-Wish Foundation of America; or (F) a person providing, at the request of the child's parent, in-home care for a child only if the person gives written consent to the release and disclosure of the information. Subject to Section 411.087, the department shall obtain through the Federal Bureau of Investigation criminal history record information maintained or indexed by that bureau that pertains to a person described by Subdivision (2) or obtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to a person described by Subdivision (2). The section states further that the failure or refusal to provide a complete set of fingerprints or a complete name on request constitutes good cause for dismissal or refusal to hire, as applicable, with regard to a volunteer of or an employee or applicant for permanent or temporary employment with the department, or a facility, home, business, or other entity, if the volunteer position, employment, or potential employment involves direct interaction with or the opportunity to interact and associate with children. SECTION 2.Adds a new section (40.066) to the Human Resources Code, Subchapter C, Chapter 4, entitled REQUIRED AFFIDAVIT FOR APPLICANTS FOR EMPLOYMENT by outlining specifically the affidavit that must be signed by the applicant for employment. The section states that an applicant for temporary or permanent employment with the department whose employment or potential employment with the department involves direct interactions with or the opportunity to interact and associate with children must execute and submit the affidavit with the application for employment, swearing or affirming under penalty of perjury that the applicant does not now or ever has any time, either as an adult or as a juvenile: 1. Been convicted of; 2. pleaded guilty to (whether or not resulting in a conviction); 3. Pleaded nolo contendere or no contest to; 4. Admitted; 5. Had any judgment or order rendered against me, whether by default or otherwise; 6. Entered into any settlement of an action or claim of; 7. Had any license, certification, employment, or volunteer position suspended, revoked, terminated, or adversely affected because of; 8. Been diagnosed as having or have been treated for any mental or emotional condition arising from; 9. Resigned under threat of termination of employment or volunteerism for; 10. Had a report of child abuse or neglect made and substantiated against the applicant for; 11. Had any pending criminal charges against the applicant in this or any other jurisdiction for; any conduct, matter, or thing under the law of any jurisdiction constituting or involving: 1. Any felony; 2. Rape or other sexual assault; 3. Physical, sexual, or emotional abuse or neglect of a minor; 4. Incest; 5. Exploitation, including sexual, of a minor; 6. Sexual misconduct with a minor; 7. Molestation of a child; 8. Lewdness or indecent exposure; 9. Lewd and lascivious behavior; 10. Obscene or pornographic literature, photographs, or videos; 11. Assault, battery, or any violent offense involving a minor; 12. Endangerment of a child; 13. Any misdemeanor or other offense involving a minor or to which a minor was a witness; 14. Unfitness as a parent or custodian; 15. Removing children from a state or concealing children in violation of a court order; 16. Restrictions or limitations on contact or visitation with children or minors; 17. Any type of child abduction; or 18. Similar or related conduct, matters, or things. In the closing statement of the affidavit, it states that except the following (list all incidents, location, description, and date) (if none, write NONE), the applicant swears that all the information given is subscribed and sworn to as signed and notarized. Furthermore, the section states that the failure or refusal of the applicant to sign or provide the affidavit constitutes good cause for refusal to hire the applicant. SECTION 3.of the bill adds two sections to Subchapter C, Chapter 42 of the Human Resources Code: Sections 42.057 and 42.058, entitled REQUIRED BACKGROUND AND CRIMINAL HISTORY and REQUIRED AFFIDAVIT FOR APPLICANTS FOR EMPLOYMENT WITH FACILITY OR REGISTERED FAMILY HOME. The section states that in accordance with rules adopted by the department, the operator of a family home shall, when the operator applies for registration and at least once during each 24 months after registration, submit to the department for use in conducting background and criminal history checks: (1) the name of the owner and each person employed at the family home; and (2) the name of each resident of the home and any other person who will regularly or frequently be staying or working at the home while children are being provided care. The section states that the department shall conduct background and criminal history checks using: (1) the information provided under Subsection (a); (2) the information made available by the Department Public Safety under Section 411.114, Government Code; and (3) the department's records of reported abuse and neglect. Additionally, it states that the department shall by rule shall require a family home to pay to the department a fee in an amount not to exceed the administrative costs the department incurs in conducting a background and criminal history check under this section. Regarding specifically the Required Affidavit for Applicants for Employment with Facility or Registered Family Home, the section states that an applicant for temporary or permanent employment with a licensed facility or registered family home whose employment or potential employment with the facility or home involves direct interactions with or the opportunity to interact and associate with children must execute and submit the an affidavit with the application for employment as outlined in the section. Basically, the affidavit states that the applicant swears under penalty of perjury that he does not now and have not at any time, either as an adult or as a juvenile: 1. Been convicted of; 2. Pleaded guilty to, regardless of whether it resulted in a conviction; 3. Pleaded nolo contendere or no contest to; 4. Admitted; 5. Had any judgment or order rendered against the applicant, whether by default or otherwise; 6. Entered into any settlement of an action or claim of; 7. Had any license, certification, employment, or volunteer position suspended, revoked, terminated, or adversely affected because of; 8. Been diagnosed as having or have been treated for any mental or emotional condition arising from; 9. Resigned under threat of termination of employment or volunteerism for; 10. Had a report of child abuse or neglect made and substantiated against the applicant for; or 11. Have any pending criminal charges against the applicant in this or any other jurisdiction for; any conduct, matter, or thing under the law of any jurisdiction constituting or involving: 1. Any felony; 2. Rape or other sexual assault; 3. Physical, sexual, or emotional abuse or neglect of a minor; 4. Incest; 5. Exploitation, including sexual, of a minor; 6. Sexual misconduct with a minor; 7. Molestation of a child 8. Lewdness or indecent exposure; 9. Lewd and lascivious behavior; 10. Obscene or pornographic literature, photographs, or videos; 11. Assault, battery, or any violent offense involving a minor; 12. Endangerment of a child; 13. Any misdemeanor or other offense involving a minor or to which a minor was a witness; 14. Unfitness as a parent or custodian; 15. Removing children from a state or concealing children in violation of a court order; 16. Restrictions or limitations on contact or visitation with children or minors; 17. Any type of child abduction; or 18. Similar or related conduct, matters, or things. In closing, the section states that the failure or refusal to provide the affidavit constitutes good cause for refusal to hire the applicant. SECTION 4.Amends Section 42.052, Human Resources Code, by adding subsection (h) stating that the department by rule may provide for denial of an application or renewal for registration of a family home or may revoke a family home's registration based on the results of a background or criminal history check. SECTION 5.Amends Section 42.072(a), Human Resource Code. States that the department may deny or revoke the license or certification of a facility based on the results of a background or criminal history check. SECTION 6. Effective Date: September 1, 1997. SECTION 7.Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE In order to clarify language in the bill relating to an affidavit which is part of the proposed legislation, the following suggested changes have been made to certain sections and pages of the original bill. Most of the general intent of the original bill remains intact. SECTION2.Sec. 40.066. Required Affidavit for Applicants for Employment. Page 7.The word "or" is moved from the end of #10 in the original to #8 in the substitute. Following #11, the substitute replaces the original language with "Any conduct. matter, or thing (irresponsible of formal name thereof) constituting or involving (whether under criminal or civil law of any jurisdiction)". Additionally, the substitute adds language "(whether under criminal or civil law of any jurisdiction)" after the words "constituting or involving" Following the above paragraph, the substitute replaces the language in #3, "Physical, sexual. or emotional abuse or neglect of a minor" with "Physical, sexual, emotional abuse and/or neglect of a minor". Page 8.In #13, the substitute inserts the word "classification" before "offense involving". Sec. 42.058.Required Affidavit for Applicants for Employment with Facility or Registered Family Home. Page 10.In #2, the substitute makes grammatical changes in the language. Page 11.In #10 at the top of the page, the substitute makes grammatical changes in the language. After #11 at the top of the page, the substitute replaces the original language with "for; Any conduct, matter, or thing (irrespective of formal name thereof) constituting or involving (whether under criminal or civil law of any jurisdiction):" In #3, grammatical changes are made to the substitute. In #13, the substitute adds the word "classification" between the words "offense" and "involving."