By Greenberg H.B. No. 155
75R11751 CLG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the listing and registration of family homes; providing
1-3 penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 42.002, Human Resources Code, is amended
1-6 by amending Subdivision (9) and adding Subdivision (16) to read as
1-7 follows:
1-8 (9) "Family home" means a home that regularly provides
1-9 care in the caretaker's own residence for not more than six
1-10 children under 14 years of age, excluding [the caretaker's own]
1-11 children who are related to the caretaker, and that provides care
1-12 after school hours for not more than six additional elementary
1-13 school children, but the total number of children, including
1-14 children who are related to the caretaker [the caretaker's own],
1-15 does not exceed 12 at any given time. The term does not include a
1-16 home that provides care exclusively for any number of children who
1-17 are related to the caretaker.
1-18 (16) "Children who are related to the caretaker" means
1-19 children who are the children, grandchildren, great-grandchildren,
1-20 first cousins, nieces, or nephews of the caretaker, whether by
1-21 affinity or consanguinity or as the result of a relationship
1-22 created by court decree.
1-23 SECTION 2. Section 42.041(b), Human Resources Code, is
1-24 amended to read as follows:
2-1 (b) This section does not apply to:
2-2 (1) a state-operated facility;
2-3 (2) an agency home;
2-4 (3) a facility that is operated in connection with a
2-5 shopping center, business, religious organization, or establishment
2-6 where children are cared for during short periods while parents or
2-7 persons responsible for the children are attending religious
2-8 services, shopping, or engaging in other activities on or near the
2-9 premises, including but not limited to retreats or classes for
2-10 religious instruction;
2-11 (4) a school or class for religious instruction that
2-12 does not last longer than two weeks and is conducted by a religious
2-13 organization during the summer months;
2-14 (5) a youth camp licensed by the Texas Department of
2-15 Health;
2-16 (6) a hospital licensed by the Texas Department of
2-17 Mental Health and Mental Retardation or the Texas Department of
2-18 Health;
2-19 (7) an educational facility accredited by the Texas
2-20 [Central] Education Agency or the Southern Association of Colleges
2-21 and Schools that operates primarily for educational purposes in
2-22 grades kindergarten and above;
2-23 (8) an educational facility that operates solely for
2-24 educational purposes in grades kindergarten through at least grade
2-25 two, that does not provide custodial care for more than one hour
2-26 during the hours before or after the customary school day, and that
2-27 is a member of an organization that promulgates, publishes, and
3-1 requires compliance with health, safety, fire, and sanitation
3-2 standards equal to standards required by state, municipal, and
3-3 county codes;
3-4 (9) a kindergarten or preschool educational program
3-5 that is operated as part of a public school or a private school
3-6 accredited by the Texas [Central] Education Agency, that offers
3-7 educational programs through grade six, and that does not provide
3-8 custodial care during the hours before or after the customary
3-9 school day;
3-10 (10) a family home, whether registered or listed
3-11 [not];
3-12 (11) an educational facility that is integral to and
3-13 inseparable from its sponsoring religious organization or an
3-14 educational facility both of which do not provide custodial care
3-15 for more than two hours maximum per day, and that offers
3-16 educational programs for children age five and above in one or more
3-17 of the following: kindergarten through at least grade three,
3-18 elementary, or secondary grades;
3-19 (12) an agency group home;
3-20 (13) an emergency shelter facility providing shelter
3-21 to minor mothers who are the sole support of their natural children
3-22 under Section 32.201 [35.05], Family Code, unless the facility
3-23 would otherwise require a license as a child-care facility under
3-24 this section; [or]
3-25 (14) a juvenile detention facility certified under
3-26 Section 51.12, Family Code, or Section 141.042(d) or a juvenile
3-27 facility providing services solely for the Texas Youth
4-1 Commission;[.]
4-2 (15) [(14)] an elementary-age (ages 5-13) recreation
4-3 program operated by a municipality provided the governing body of
4-4 the municipality annually adopts standards of care by ordinance
4-5 after a public hearing for such programs, that such standards are
4-6 provided to the parents of each program participant, and that the
4-7 ordinances shall include, at a minimum, staffing ratios, minimum
4-8 staff qualifications, minimum facility, health, and safety
4-9 standards, and mechanisms for monitoring and enforcing the adopted
4-10 local standards; and further provided that parents be informed that
4-11 the program is not licensed by the state and the program may not be
4-12 advertised as a child-care facility; or
4-13 (16) [(15)] an annual youth camp held in a
4-14 municipality with a population of more than 1.5 million that
4-15 operates for not more than three months and that has been operated
4-16 for at least 10 years by a nonprofit organization that provides
4-17 care for the homeless.
4-18 SECTION 3. Sections 42.042(e), (f), (g), and (l), Human
4-19 Resources Code, are amended to read as follows:
4-20 (e) The department shall promulgate minimum standards that
4-21 apply to licensed child-care facilities and to registered family
4-22 homes covered by this chapter and that will:
4-23 (1) promote the health, safety, and welfare of
4-24 children attending a facility or registered family home;
4-25 (2) promote safe, comfortable, and healthy physical
4-26 facilities and registered family homes for children;
4-27 (3) ensure adequate supervision of children by
5-1 capable, qualified, and healthy personnel;
5-2 (4) ensure adequate and healthy food service where
5-3 food service is offered;
5-4 (5) prohibit racial discrimination by child-care
5-5 facilities and registered family homes; and
5-6 (6) require procedures for parental and guardian
5-7 consultation in the formulation of children's educational and
5-8 therapeutic programs.
5-9 (f) In promulgating minimum standards for the provision of
5-10 child-care services [facilities], the department shall recognize
5-11 the various categories of services [facilities], including services
5-12 for [facilities offering] specialized care, and the various
5-13 categories of children and their particular needs. Standards for
5-14 child-care institutions must require an intake study before a child
5-15 is placed in an institution. The intake study may be conducted at
5-16 a community mental health and mental retardation center.
5-17 (g) In promulgating minimum standards the department may
5-18 recognize and treat differently the following [child-care
5-19 facilities]:
5-20 (1) child-care [child-caring] institutions;[,]
5-21 (2) foster group homes;
5-22 (3) foster homes;[,]
5-23 (4) day-care centers;[,]
5-24 (5) group day-care homes;[,]
5-25 (6) family day homes;[,]
5-26 (7) registered family homes;[,] and
5-27 (8) agency homes.
6-1 (l) In promulgating [The department shall adopt] minimum
6-2 standards for the regulation of [regulating] family homes that
6-3 register with the division, the department[. The rules] must
6-4 address the minimum qualifications, education, and training
6-5 required of a person who operates a family home registered with the
6-6 division.
6-7 SECTION 4. Section 42.044(b), Human Resources Code, is
6-8 amended to read as follows:
6-9 (b) The division shall inspect all licensed or certified
6-10 facilities at least once a year and may inspect other facilities
6-11 and registered family homes as necessary. The department shall
6-12 investigate a listed family home when the department receives a
6-13 complaint of abuse or neglect of a child, as defined by Section
6-14 261.001, Family Code. At least one of the annual visits must be
6-15 unannounced and all may be unannounced.
6-16 SECTION 5. Section 42.046, Human Resources Code, is amended
6-17 to read as follows:
6-18 Sec. 42.046. [LICENSE] APPLICATION FOR LICENSE,
6-19 REGISTRATION, OR LISTING. (a) An applicant for a license to
6-20 operate a child-care facility or child-placing agency or for a
6-21 listing or registration to operate a family home shall submit to
6-22 the division the appropriate fee prescribed by Section 42.054 of
6-23 this code and a completed application on a form provided by the
6-24 division.
6-25 (b) The division shall supply the applicant the application
6-26 form and a copy of the appropriate minimum standards, if
6-27 applicable.
7-1 (c) After receiving an application, the division shall
7-2 investigate the applicant and the plan of care for children, if
7-3 applicable.
7-4 (d) The division shall complete the investigation and decide
7-5 on an application within two months after the date the division
7-6 receives an application.
7-7 SECTION 6. Section 42.047(a), Human Resources Code, is
7-8 amended to read as follows:
7-9 (a) The department shall offer consultation to potential
7-10 applicants, applicants, and license, listing, registration, and
7-11 certification holders about meeting and maintaining standards for
7-12 licensing, listing, registration, and certification and achieving
7-13 programs of excellence in child care.
7-14 SECTION 7. Section 42.0491(e), Human Resources Code, is
7-15 amended to read as follows:
7-16 (e) This section does not apply to a group [or registered]
7-17 day care home or a listed or registered family home.
7-18 SECTION 8. Section 42.052, Human Resources Code, is amended
7-19 to read as follows:
7-20 Sec. 42.052. CERTIFICATION, LISTING, AND REGISTRATION.
7-21 (a) A state-operated child-care facility or child-placing agency
7-22 must receive certification of approval from the division. The
7-23 certification of approval remains valid until revoked or
7-24 surrendered.
7-25 (b) To be certified, a facility must comply with the
7-26 department's rules and standards and any provisions of this chapter
7-27 that apply to a licensed facility of the same category. The
8-1 operator of a certified facility must display the certification in
8-2 a prominent place at the facility.
8-3 (c) A family home that provides care for compensation for
8-4 three or fewer children, excluding [the caretaker's own] children
8-5 who are related to the caretaker, shall list with the division if
8-6 the home provides child care at least four hours a day, three or
8-7 more days a week, for more than nine consecutive weeks in the
8-8 caretaker's own residence. The home may register with the
8-9 division.
8-10 (d) A family home that provides care for four or more
8-11 children, excluding [the caretaker's own] children who are related
8-12 to the caretaker, shall[, must] register with the division. A
8-13 family home that provides care exclusively for any number of
8-14 children who are related to the caretaker is not required to be
8-15 listed or registered with the division.
8-16 (e) A registration or listing remains valid until revoked or
8-17 surrendered. The operator of a registered home must display the
8-18 registration in a prominent place at the home.
8-19 (f) [(d)] To remain listed or registered with the division,
8-20 a family home must comply with the department's rules and
8-21 standards, if applicable, and any provision of this chapter that
8-22 applies to a listed or registered family home.
8-23 (g) [(e)] The certification requirements of this section do
8-24 not apply to a Texas Youth Council facility or a facility providing
8-25 services solely for the Texas Youth Council.
8-26 [(f) A family home may not place a public advertisement that
8-27 uses the title "registered family home" or any variation of the
9-1 phrase unless the home is registered with the division under this
9-2 chapter. Any public advertisement for a registered family home
9-3 which uses the title "registered family home" must contain a
9-4 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
9-5 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
9-6 LICENSED OR INSPECTED."]
9-7 (h) [(g)] The certification requirements of this section do
9-8 not apply to a juvenile detention facility certified under Section
9-9 51.12, Family Code, or Section 141.042(d).
9-10 (i) The division shall provide to a listed family home a
9-11 copy of the listing. A listing must contain a provision that
9-12 states: "THIS HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR
9-13 REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY
9-14 SERVICES. IT HAS NOT BEEN INSPECTED AND WILL NOT BE INSPECTED."
9-15 The operator of a listed home is not required to display the
9-16 listing in a prominent place at the home but shall make the listing
9-17 available for examination. The department by rule shall provide
9-18 for a sufficient period to allow operators of family homes to
9-19 comply with the listing requirement of this section.
9-20 (j) The operator of a listed family home shall undergo
9-21 initial and subsequent background and criminal history checks
9-22 required under Section 42.057.
9-23 (k) The department shall issue a listing or registration to
9-24 a family home, as appropriate, in both English and Spanish when the
9-25 most recent federal census shows that more than one-half of the
9-26 population in a municipality or in a commissioners precinct in a
9-27 county in which the family home is located is of Hispanic origin or
10-1 Spanish-speaking.
10-2 SECTION 9. Subchapter C, Chapter 42, Human Resources Code,
10-3 is amended by adding Section 42.0522 to read as follows:
10-4 Sec. 42.0522. PUBLIC ADVERTISING OF FAMILY HOMES. (a) A
10-5 family home may not place a public advertisement that uses the
10-6 title "registered family home" or any variation of the phrase
10-7 unless the home is registered with the division under this chapter.
10-8 Any public advertisement for a registered family home that uses the
10-9 title "registered family home" must contain a provision in bold
10-10 type stating: "THIS HOME IS REGISTERED WITH THE DEPARTMENT OF
10-11 PROTECTIVE AND REGULATORY SERVICES BUT IS NOT LICENSED OR REGULARLY
10-12 INSPECTED."
10-13 (b) A family home may not place a public advertisement that
10-14 uses the title "listed family home" or any variation of the phrase
10-15 unless the home is listed as provided by this chapter. Any public
10-16 advertisement for a listed family home that uses the title "listed
10-17 family home" must contain a provision in bold type stating: "THIS
10-18 HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED
10-19 WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS
10-20 NOT BEEN INSPECTED AND WILL NOT BE INSPECTED."
10-21 SECTION 10. Section 42.054(e), Human Resources Code, as
10-22 added by Chapter 239, Acts of the 69th Legislature, Regular
10-23 Session, 1985, is amended to read as follows:
10-24 (e) The division shall charge each family home that is
10-25 listed or registered with the division an annual [registration] fee
10-26 [of $35] to cover a part of the department's cost in regulating
10-27 family homes. The amount of the fee is $20 for a listed home or
11-1 $35 for a registered home. The fee is due on the date on which the
11-2 division initially lists or registers the home and on the
11-3 anniversary of that date.
11-4 SECTION 11. Section 42.054(f), Human Resources Code, is
11-5 amended to read as follows:
11-6 (f) If a facility, agency, or home fails to pay the annual
11-7 [license or registration] fee when due, the license, listing, or
11-8 registration, as appropriate, is suspended until the fee is paid.
11-9 SECTION 12. Subchapter C, Chapter 42, Human Resources Code,
11-10 is amended by adding Section 42.057 to read as follows:
11-11 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
11-12 CHECKS. (a) In accordance with rules adopted by the department,
11-13 the operator of a family home shall, when listing or registering a
11-14 family home and at least once during each 24 months after receiving
11-15 a listing or registration, submit to the department for use in
11-16 conducting background and criminal history checks:
11-17 (1) the name and date of birth of the owner and each
11-18 person employed at the home; and
11-19 (2) the name and date of birth of each resident of the
11-20 home and any other person who will regularly or frequently be
11-21 staying or working at the home while children are being provided
11-22 care.
11-23 (b) The department shall conduct background and criminal
11-24 history checks using:
11-25 (1) the information provided under Subsection (a);
11-26 (2) the information made available by the Department
11-27 of Public Safety under Section 411.114, Government Code; and
12-1 (3) the department's records of reported abuse and
12-2 neglect.
12-3 SECTION 13. Section 42.072, Human Resources Code, is amended
12-4 to read as follows:
12-5 Sec. 42.072. [LICENSE] DENIAL OR REVOCATION OF LICENSE,
12-6 LISTING, OR REGISTRATION. (a) The division may deny or revoke the
12-7 license or certification of approval of a facility or the listing
12-8 or registration of a family home that does not comply with the
12-9 requirements of this chapter, the standards and rules of the
12-10 department, or the specific terms of the license, [or]
12-11 certification, listing, or registration.
12-12 (b) The division shall notify the person operating or
12-13 proposing to operate a facility or family home of the reasons for
12-14 the denial or revocation and of the person's right to appeal the
12-15 decision within 30 days after receiving the notice.
12-16 (c) A person who wishes to appeal a [license] denial or
12-17 revocation of a license, listing, or registration shall notify the
12-18 director by certified mail within 30 days after receiving the
12-19 notice required in Subsection (b) of this section. The person
12-20 shall send a copy of the notice of appeal to the assigned division
12-21 representative.
12-22 (d) The denial or revocation of a license, listing,
12-23 registration, or certification and the appeal from that action are
12-24 governed by the procedure for a contested case hearing under
12-25 Chapter 2001, Government Code.
12-26 (e) A person whose license, listing, or registration has
12-27 been denied or revoked may challenge the decision by filing a suit
13-1 in a district court of Travis County or the county in which the
13-2 person's facility or family home is located within 30 days after
13-3 receiving the decision. The trial shall be de novo.
13-4 (f) Records of the hearing shall be kept for two years after
13-5 a decision is rendered. On request, and at the person's own
13-6 expense, the division shall supply a copy of the verbatim
13-7 transcript of the hearing to a person appealing a [license] denial
13-8 or revocation of a license, listing, or registration in district
13-9 court.
13-10 (g) A person may continue to operate a facility or family
13-11 home during an appeal of a [license] denial or revocation of a
13-12 license, listing, or registration unless the division has obtained
13-13 injunctive relief under Section 42.074 or civil penalties under
13-14 Section 42.075 or the facility or family home has been closed under
13-15 Section 42.073.
13-16 (h) A person whose license, listing, registration, or
13-17 certification is revoked may not apply for any license, listing,
13-18 registration, or certification under this chapter before the second
13-19 anniversary of the date on which the revocation takes effect by
13-20 department or court order.
13-21 SECTION 14. Subchapter D, Chapter 42, Human Resources Code,
13-22 is amended by adding Section 42.0725 to read as follows:
13-23 Sec. 42.0725. DENIAL OR REVOCATION OF LISTING OR
13-24 REGISTRATION OF FAMILY HOME BASED ON BACKGROUND OR CRIMINAL HISTORY
13-25 CHECK. (a) The department shall deny an application or renewal
13-26 for listing or registering a family home or shall revoke a family
13-27 home's listing or registration if the results of a background or
14-1 criminal history check conducted by the department under Section
14-2 42.057 show that a person has been convicted of an offense under
14-3 Title 5 or 6, Penal Code, or Chapter 43, Penal Code.
14-4 (b) The department by rule may provide for denial of an
14-5 application or renewal for listing or registering a family home
14-6 based on the results of a background or criminal history check.
14-7 SECTION 15. Section 42.073, Human Resources Code, is amended
14-8 to read as follows:
14-9 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
14-10 OR FAMILY HOME. (a) The division shall suspend a facility's
14-11 license or the listing or registration of a family home, order the
14-12 immediate closing of the facility or home, and place the children
14-13 attending or residing in the facility or home elsewhere if:
14-14 (1) the division finds the facility or home is
14-15 operating in violation of the applicable standards prescribed by
14-16 this chapter; and
14-17 (2) the violation creates an immediate threat to the
14-18 health and safety of the children attending or residing in the
14-19 facility or home.
14-20 (b) An order suspending a license, listing, or registration
14-21 and an order closing a facility or family home under this section
14-22 are [is] immediately effective on the date on which the [license]
14-23 holder of the license, listing, or registration receives written
14-24 notice or on a later date specified in the order.
14-25 (c) An order is valid for 10 days after the effective date
14-26 of the order.
14-27 (d) The suspension of a license, listing, or registration
15-1 and the closure of a [the] facility or family home and the appeal
15-2 from that action are governed by the procedures for a contested
15-3 case hearing under Chapter 2001, Government Code.
15-4 SECTION 16. Sections 42.074(a) and (c), Human Resources
15-5 Code, are amended to read as follows:
15-6 (a) When it appears that a person has violated, is
15-7 violating, or is threatening to violate the licensing,
15-8 certification, listing, or registration requirements of this
15-9 chapter or the department's licensing, certification, listing, or
15-10 registration rules and standards, the division may file a suit in a
15-11 district court in Travis County or in the county where the facility
15-12 or family home is located for assessment and recovery of civil
15-13 penalties under Section 42.075 of this code, for injunctive relief,
15-14 including a temporary restraining order, or for both injunctive
15-15 relief and civil penalties.
15-16 (c) At the division's request, the attorney general or the
15-17 county or district attorney of the county in which the facility or
15-18 family home is located shall conduct a suit in the name of the
15-19 State of Texas for injunctive relief, to recover the civil
15-20 penalty, or for both injunctive relief and civil penalties as
15-21 authorized by Subsection (a) of this section.
15-22 SECTION 17. Section 42.075(a), Human Resources Code, is
15-23 amended to read as follows:
15-24 (a) A person is subject to a civil penalty of not less than
15-25 $50 nor more than $100 for each day of violation and for each act
15-26 of violation if the person:
15-27 (1) threatens serious harm to a child in a facility or
16-1 family home by violating a provision of this chapter or a
16-2 department rule or standard;
16-3 (2) violates a provision of this chapter or a
16-4 department rule or standard three or more times within a 12-month
16-5 period; or
16-6 (3) places a public advertisement for an unlicensed
16-7 facility or an unlisted or unregistered family home.
16-8 SECTION 18. Section 42.076, Human Resources Code, is amended
16-9 to read as follows:
16-10 Sec. 42.076. CRIMINAL PENALTIES. (a) A person who operates
16-11 a child-care facility or child-placing agency without a license
16-12 commits a Class B misdemeanor.
16-13 (b) A person who operates a family home without a required
16-14 listing or registration commits a Class B misdemeanor.
16-15 (c) A person who places a public advertisement for an
16-16 unlicensed facility or an unlisted or unregistered family home
16-17 commits a Class C misdemeanor.
16-18 [(c) A person who places an advertisement for a registered
16-19 family home in violation of Section 42.052(f) of this code commits
16-20 a Class C misdemeanor.]
16-21 (d) It is not an offense under this section if a
16-22 professional provides legal or medical services to:
16-23 (1) a parent who identifies the prospective adoptive
16-24 parent and places the child for adoption without the assistance of
16-25 the professional; or
16-26 (2) a prospective adoptive parent who identifies a
16-27 parent and receives placement of a child for adoption without
17-1 assistance of the professional.
17-2 SECTION 19. Section 42.077, Human Resources Code, is amended
17-3 to read as follows:
17-4 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY
17-5 HOME. (a) If the department revokes or suspends a facility's
17-6 license or a family home's listing or registration, the department
17-7 shall publish notice of this action in a newspaper of general
17-8 circulation in the county in which the facility or home is located.
17-9 The newspaper shall place the notice in the section in which
17-10 advertisements for day-care services are normally published.
17-11 (b) If a person who operates a facility or family home that
17-12 has had its license, listing, or registration revoked or suspended
17-13 later applies for a new license, listing, or registration to
17-14 operate the same facility or family home, the department shall
17-15 charge the person an application fee in an amount necessary to
17-16 reimburse the department for the cost of the notice relating to
17-17 that facility or family home.
17-18 (c) The department shall pay for publication of the notice
17-19 from funds appropriated to the department for licensing and
17-20 regulating child-care facilities and from appeal and application
17-21 fees collected under Subsection (b) of this section and
17-22 appropriated to the department.
17-23 (d) A facility or family home that has its license, listing,
17-24 or registration revoked or suspended shall mail notification of
17-25 this action by certified mail to the parents or guardian of the
17-26 child served by the facility or family home. The facility shall
17-27 mail the notification within five days of the effective date of the
18-1 [license] revocation or suspension of the license, listing, or
18-2 registration.
18-3 (e) When the most recent federal census shows that more than
18-4 one-half of the population in a municipality or in a commissioners
18-5 precinct in a county in which a family home whose listing or
18-6 registration has been revoked or suspended is located is of
18-7 Hispanic origin or Spanish-speaking, the department shall publish
18-8 the notice under Subsection (a) in both English and Spanish.
18-9 SECTION 20. This Act takes effect September 1, 1997.
18-10 SECTION 21. The importance of this legislation and the
18-11 crowded condition of the calendars in both houses create an
18-12 emergency and an imperative public necessity that the
18-13 constitutional rule requiring bills to be read on three several
18-14 days in each house be suspended, and this rule is hereby suspended.