Bill not drafted by TLC or Senate E&E.

      Line and page numbers may not match official copy.

      By Greenberg                                           H.B. No. 155

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the listing and registration of certain child-care

 1-3     services; providing 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     to read as follows:

 1-7           Sec. 42.002.  DEFINITIONS.  In this chapter:

 1-8                 (9)  "Registered family [Family] home" means a home

 1-9     that regularly provides care in the caretaker's own residence for

1-10     not more than six children under 14 years of age, excluding

1-11     children related to the caretaker [the caretaker's own children],

1-12     and that provides care after school hours for not more  than six

1-13     additional elementary school children, but the total number of

1-14     children, including children related to the caretaker [the

1-15     caretaker's own], does not exceed 12 at any given time.  The term

1-16     does not include a home that provides care exclusively for any

1-17     number of children related to the caretaker.

1-18                 (10)  "Listed family home" means a home that provides

1-19     child-care at least four hours a day, three or more days a week,

1-20     for more than  nine consecutive weeks in the caretaker's own

1-21     residence for not more than three children under 14 years of age,

1-22     excluding children related to the caretaker.  The term does not

1-23     include a home that provides care exclusively for any number of

1-24     children related to the caretaker.

 2-1                 (11) [10]  "Agency group home" means a facility that

 2-2     provides care for seven to 12 children for 24 hours a day and is

 2-3     used only by a licensed child-placing agency.

 2-4                 (12) [11]  "Agency home" means a private home that

 2-5     provides care for not more than six children, that is used only by

 2-6     a licensed child-placing agency, and that meets division standards.

 2-7                 (13) [12]  "Child-placing agency" means a person other

 2-8     than the natural parents or guardian of a child who plans for the

 2-9     placement of or places a child in an institution, agency home, or

2-10     adoptive home.

2-11                 (14) [13]  "Facilities" includes child-care facilities

2-12     and child-placing agencies.

2-13                 (15) [14]  "State of Texas" or "state" does not include

2-14     political subdivisions of the state.

2-15                 (16) [15]  "Religious organization" means a church,

2-16     synagogue, or other religious institution whose purpose is to

2-17     support and serve the propagation of truly held religious beliefs.

2-18                 (17)  "Children related to the caretaker" means

2-19     children who are the children, grandchildren, nieces, or nephews of

2-20     the caretaker, whether by affinity or consanguinity or as the

2-21     result of a relationship created by court decree.

2-22                 (18)  "Department" means the Department of Protective

2-23     and Regulatory Services.

2-24           SECTION 2.  Section 42.041(b)(10), Human Resources Code, is

2-25     amended to read as follows:

2-26           Sec. 42.041.  REQUIRED LICENSE.

2-27           (b)  This section does not apply to:

2-28                 (10)  a family home, whether registered or listed

2-29     [not];

2-30           SECTION 3.  Section 42.042(e), Human Resources Code, is

 3-1     amended to read as follows:

 3-2           Sec. 42.042.  RULES AND STANDARDS.

 3-3           (e)  The department shall promulgate minimum standards that

 3-4     apply to licensed child-care facilities and registered family homes

 3-5     covered by  this chapter that will:

 3-6                 (1)  promote the health, safety, and welfare of

 3-7     children attending a facility;

 3-8                 (2)  promote safe, comfortable, and healthy physical

 3-9     facilities for children;

3-10                 (3)  ensure adequate supervision of children by

3-11     capable, qualified, and healthy personnel;

3-12                 (4)  ensure adequate and healthy food service where

3-13     food service is offered;

3-14                 (5)  prohibit racial discrimination by child-care

3-15     facilities; and

3-16                 (6)  require procedures for parental and guardian

3-17     consultation in the formulation of children's educational and

3-18     therapeutic programs.

3-19           SECTION 4.  Section 42.044(b), Human Resources Code, is

3-20     amended and a new subsection (d) is added and the remaining

3-21     subsection renumbered to read as follows:

3-22           (b)  The division shall inspect all licensed or certified

3-23     facilities at least once a year and may inspect other facilities or

3-24     registered family homes as necessary.  At least one of the annual

3-25     visits must be unannounced and all may be unannounced.

3-26           (d)  The department must investigate a listed family home

3-27     when an abuse or neglect complaint as defined by Chapter 261, Texas

3-28     Family Code, is  received.

3-29           (e)  The division may call on political subdivisions and

3-30     governmental agencies for assistance within their authorized

 4-1     fields.

 4-2           SECTION 5.  Section 42.046, Human Resources Code, is amended

 4-3     to read as follows:

 4-4           Sec. 42.046.  [LICENSE] APPLICATION.  (a)  An applicant for

 4-5     listing or registration to operate a family home or a license to

 4-6     operate a child-care facility or child-placing agency shall submit

 4-7     to the division the appropriate fee prescribed by Section 42.054 of

 4-8     this code and a completed application on a form provided by the

 4-9     division.

4-10           (b)  The division shall supply the applicant the application

4-11     form and a copy of the appropriate minimum standards, if

4-12     applicable.

4-13           (c)  After receiving an application, the division shall

4-14     investigate the applicant and the plan of care for children, if

4-15     applicable.

4-16           (d)  the division shall complete the investigation and decide

4-17     on an application within two months after the date the division

4-18     receives an application.

4-19           SECTION 6.  Section 42.0491(e), Human Resources Code, is

4-20     amended to read as follows:

4-21           Sec. 42.0491.  LIABILITY INSURANCE REQUIRED.

4-22           (e)  This section does not apply to a group [or registered]

4-23     day-care home, a listed or registered family home.

4-24           SECTION 7.  Section 42.052, Human Resources Code, is amended

4-25     to read as follows:

4-26           Sec. 42.052.  CERTIFICATION, LISTING AND REGISTRATION.

4-27     (a)  A state-operated child-care facility or child-placing agency

4-28     must receive certification of approval from the division.  The

4-29     certification of approval remains valid until revoked or

4-30     surrendered.

 5-1           (b)  To be certified, a facility must comply with the

 5-2     department's rules and standards and any provisions of this chapter

 5-3     that apply to a licensed facility of the same category.  The

 5-4     operator of a certified facility must display the certification in

 5-5     a prominent place at the facility.

 5-6           (c)  A family home that provides care for three or fewer

 5-7     children, excluding children related to the caretaker [the

 5-8     caretaker's own children], shall list or may register with the

 5-9     division.  A family home that provides care for four or more

5-10     children, excluding children related to the caretaker [the

5-11     caretaker's own children], shall [must] register with the division.

5-12     A registration or listing remains valid until revoked or

5-13     surrendered.  The operator of a registered home must display the

5-14     registration in a prominent place at the home.  A person who

5-15     provides care exclusively for any number of children related to the

5-16     caretaker is not required to list or register with the department.

5-17           (d)  To remain listed or registered with the division, a

5-18     family home must comply with the department's rules and standards,

5-19     if applicable, and any provision of this chapter that applies to a

5-20     listed or registered family home.

5-21           (e)  The certification requirements of this section do not

5-22     apply to a Texas Youth Council facility or a facility providing

5-23     services solely for the Texas Youth Council.

5-24           (f)  A family home may not place a public advertisement that

5-25     uses the title "registered family home" or any variation of the

5-26     phrase unless the home is registered with the division under this

5-27     chapter.  Any public advertisement for a registered family home

5-28     which uses the title "registered family home" must contain a

5-29     provision in bold type stating: "THIS HOME IS REGISTERED WITH THE

5-30     DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT

 6-1     LICENSED OR REGULARLY INSPECTED."

 6-2           (g)  The certification requirements of this section do not

 6-3     apply to a juvenile detention facility certified under Section

 6-4     51.12, Family Code, or Section 141.042(d).

 6-5           (h)  The division shall provide to a listed family home a

 6-6     copy of the listing which contains a provision that states: "THIS

 6-7     HOME IS A LISTED FAMILY HOME.  IT IS NOT LICENSED OR REGISTERED

 6-8     WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES.  IT HAS

 6-9     NOT BEEN INSPECTED AND WILL NOT BE REGULARLY INSPECTED."  The

6-10     operator of a listed home is not required to display the listing in

6-11     a prominent place at the home but shall make the listing available

6-12     for examination.  The department by rule shall provide for a

6-13     sufficient period to allow operators of family homes to comply with

6-14     the listing requirement of this section.

6-15           (i)  The operator of a listed family home shall undergo

6-16     initial and subsequent background and criminal history checks

6-17     required under Section  42.057.

6-18           (j)  A family home may not place a public advertisement that

6-19     uses the title "listed family home" or any variation of the phrase

6-20     unless the home is listed as provided by this chapter.  Any public

6-21     advertisement for a listed family home that uses the title "listed

6-22     family home" must contain a provision in bold type stating: "THIS

6-23     HOME IS A LISTED FAMILY HOME.  IT IS NOT LICENSED OR REGISTERED

6-24     WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES.  IT HAS

6-25     NOT BEEN INSPECTED AND WILL NOT BE REGULARLY INSPECTED."

6-26           (k)  The department by rule may provide for denial of an

6-27     application or renewal for listing or registering of a family home

6-28     or may revoke a family home's listing or registration based on the

6-29     results of a background or criminal history check.

6-30           SECTION 8.  Section 42.054(e) and (f), Human Resources Code,

 7-1     is amended to read as follows:

 7-2           (e)  The division shall charge each family home that is

 7-3     listed or registered with the division an annual [registration] fee

 7-4     [of $35] to cover a portion of the department's cost in regulating

 7-5     family homes.  The fee is $30 for a listed home or $35 for a

 7-6     registered home.  The fee is due on the date on which the division

 7-7     lists or registers the home and on the anniversary of that date.

 7-8           (f)  If a facility, agency, or home fails to pay the annual

 7-9     [license or registration] fee when due, the license, listing or

7-10     registration is suspended until the fee is paid.

7-11           SECTION 9.  A new Section 42.057, Human Resources Code, is

7-12     added to read as follows:

7-13           Sec. 42.057.  REQUIRED BACKGROUND AND CRIMINAL HISTORY

7-14     CHECKS.   (a)  In accordance with rules adopted by the department,

7-15     the operator of a listed or registered family home shall, when the

7-16     operator applies for listing or registration and at least once

7-17     during each 24 months after listing or registration, submit to the

7-18     department for use in conducting background and criminal history

7-19     checks:

7-20                 (1)  the name of the owner and each person employed at

7-21     the family home; and

7-22                 (2)  the name of each resident of the home and any

7-23     other person who will regularly or frequently be staying or working

7-24     at the home while children are being provided care.

7-25           (b)  The department shall conduct background and criminal

7-26     history checks using:

7-27                 (1)  the information provided under Subsection (a);

7-28                 (2)  the information made available by the Department

7-29     of Public Safety under section 411.114, Government Code; and

7-30                 (3)  the department's records of reported abuse and

 8-1     neglect.

 8-2           (c)  The department by rule shall require a listed or

 8-3     registered family home to pay to the department a fee in an amount

 8-4     not to exceed the  administrative costs the department incurs in

 8-5     conducting a background and criminal history check under this

 8-6     section.

 8-7           SECTION 10.  Sections 42.072 through 42.077, Human Resources

 8-8     Code, are amended to read as follows:

 8-9           Sec. 42.072.  LICENSE, LISTING OR REGISTRATION DENIAL OR

8-10     REVOCATION.  (a)  The division may deny or revoke the license,

8-11     listing, registration or certification of approval of a facility or

8-12     home that does not comply with the requirements of this chapter,

8-13     the standards and rules of the department, or the specific terms of

8-14     the license, listing, registration or certification.

8-15           (b)  The division shall notify the person operating or

8-16     proposing to operate a facility or home of the reasons for the

8-17     denial or revocation and of the person's right to appeal the

8-18     decision within 30 days after receiving the notice.

8-19           (c)  A person who wishes to appeal a license, listing or

8-20     registration denial or revocation shall notify the director by

8-21     certified mail  within 30 days after receiving the notice required

8-22     in Subsection (b) of this section.  The person shall send a copy of

8-23     the notice of appeal to the assigned division representative.

8-24           (d)  The denial or revocation of a license, listing,

8-25     registration or certification and the appeal from that action are

8-26     governed by the procedure for a contested case hearing under

8-27     Chapter 2001, Government Code.

8-28           (e)  A person whose license, listing or registration has been

8-29     denied or revoked may challenge the decision by filing a suit in a

8-30     district court of Travis County or the county in which the person's

 9-1     facility or home is located within 30 days after receiving the

 9-2     decision.  The trial shall be de novo.

 9-3           (f)  Records of the hearing shall be kept for two years after

 9-4     a decision is rendered.  On request, and at the person's own

 9-5     expense, the division shall supply a copy of the verbatim

 9-6     transcript of the hearing to a person appealing a license, listing

 9-7     or registration denial or revocation in district court.

 9-8           (g)  A person may continue to operate a facility or home

 9-9     during an appeal of a license, listing or registration denial or

9-10     revocation unless the division has obtained injunctive relief under

9-11     Section 42.074 or civil penalties under Section 42.075 or the

9-12     facility or home has been closed under Section 42.073.

9-13           (h)  A person whose license, listing, registration or

9-14     certification is revoked may not apply for any license, listing,

9-15     registration or certification under this chapter before the second

9-16     anniversary of the date on which the revocation takes effect by

9-17     department or court order.

9-18           Sec. 42.073.  EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY

9-19     OR HOME.  (a)  The division shall suspend a facility's license,

9-20     listing or registration, order the immediate closing of the

9-21     facility or home, and place the children attending or residing in

9-22     the  facility or home elsewhere if:

9-23                 (1)  the division finds the facility or home is

9-24     operating in violation of the standards prescribed by this chapter;

9-25     and

9-26                 (2)  the violation creates an immediate threat to the

9-27     health and safety of the children attending or residing in the

9-28     facility or home.

9-29           (b)  An order suspending a license, listing or registration

9-30     and closing a facility or home under this section is immediately

 10-1    effective on the date on which the license, listing or registration

 10-2    holder receives written notice or on a later date specified in the

 10-3    order.

 10-4          (c)  An order is valid for 10 days after the effective date

 10-5    of the order.

 10-6          (d)  The suspension of a license, listing or registration and

 10-7    the closure of the facility or home and the appeal from that action

 10-8    are governed by the procedures for a contested case hearing under

 10-9    Chapter 2001, Government Code.

10-10          Sec. 42.074.  INJUNCTIVE RELIEF.  (a)  When it appears that a

10-11    person has violated, is violating, or is threatening to violate the

10-12    licensing, certification, listing or registration requirements of

10-13    this chapter or the department's licensing, certification, listing

10-14    or registration rules and standards, the division may file a suit

10-15    in a district court in Travis County or in the county where the

10-16    facility or home is located for assessment and recovery of civil

10-17    penalties under Section 42.075 of this code, for injunctive relief,

10-18    including a temporary restraining order, or for both injunctive

10-19    relief and civil penalties.

10-20          (b)  the district court shall grant the injunctive relief the

10-21    facts may warrant.

10-22          (c)  At the division's request, the attorney general or the

10-23    county or district attorney of the county in which the facility or

10-24    home is located shall conduct a suit in the name of the State of

10-25    Texas for injunctive relief, to recover the civil penalty, or for

10-26    both injunctive relief and civil penalties as authorized by

10-27    Subsection (a) of this section.

10-28          Sec. 42.075.  CIVIL PENALTY.  (a)  A person is subject to a

10-29    civil penalty of not less than $50 nor more than $100 for each day

10-30    of violation and for each act of violation if the person:

 11-1                (1)  threatens serious harm to a child in a facility or

 11-2    home by violating a provision of this chapter or a department rule

 11-3    or standard;

 11-4                (2)  violates a provision of this chapter or a

 11-5    department rule or standard three or more times within a 12-month

 11-6    period; or

 11-7                (3)  places a public advertisement for an unlicensed

 11-8    facility, an unlisted or unregistered family home.

 11-9          (b)  The civil penalty authorized by this section is

11-10    cumulative and in addition to the criminal penalties and injunctive

11-11    relief provided by this chapter.

11-12          Sec. 42.076.  CRIMINAL PENALTIES.  (a)  A person who operates

11-13    a child-care facility, home or child-placing agency without a

11-14    license, listing or registration commits a Class B misdemeanor.

11-15          (b)  A person who places a public advertisement for an

11-16    unlicensed facility, an unlisted or unregistered family home

11-17    commits a Class C misdemeanor.

11-18          (c)  [A person who places an advertisement for a registered

11-19    family home in violation of Section 42.052(f) of this code commits

11-20    a Class C misdemeanor.]

11-21          [(d)]  It is not an offense under this section if a

11-22    professional provides legal or medical services to:

11-23                (1)  a parent who identifies the prospective adoptive

11-24    parent and places the child for adoption without the assistance of

11-25    the professional; or

11-26                (2)  a prospective adoptive parent who identifies a

11-27    parent and receives placement of a child for adoption without

11-28    assistance of the professional.

11-29          Sec. 42.077.  NOTICE OF ACTION AGAINST FACILITY.  (a)  If the

11-30    department revokes or suspends a facility's license, listing, or

 12-1    registration the department shall publish notice of this action in

 12-2    a newspaper of general circulation in the county in which the

 12-3    facility or home is located.  The newspaper shall place the notice

 12-4    in the section in which advertisements for day-care services are

 12-5    normally published.

 12-6          (b)  If a person who operates a facility or home that has had

 12-7    its license, listing, or registration revoked or suspended later

 12-8    applies for a new license, listing, or registration to operate the

 12-9    same facility or home, the department shall charge the person an

12-10    application fee in an amount necessary to reimburse the department

12-11    for the cost of the notice relating to that facility or home.

12-12          (c)  The department shall pay for publication of the notice

12-13    from funds appropriated to the department for licensing and

12-14    regulation child-care facilities and from appeal and application

12-15    fees collected under Subsection (b) of this section and

12-16    appropriated to the department.

12-17          (d)  A facility or home that has its license, listing, or

12-18    registration revoked or suspended shall mail notification of this

12-19    action by certified mail to the parents or guardian of the child

12-20    served by the facility or home.  The facility or home shall mail

12-21    the notification within five days of the effective date of the

12-22    license, listing, or registration revocation or suspension.

12-23          SECTION 11.  (a)  This Act takes effect September 1, 1997.

12-24          (b)  The change in law made by this Act applies only to an

12-25    offense committed on or after the effective date of this Act.  For

12-26    purposes of this subsection, an offense is committed before the

12-27    effective date of this Act if any element of the offense occurs

12-28    before that date.  An offense committed before the effective date

12-29    of this Act is covered by the law in effect when the offense was

12-30    committed, and the former law is continued in effect for that

 13-1    purpose.

 13-2          (c)  The change in law made by this Act applies only to a

 13-3    license, listing or registration fee to be paid on or after the

 13-4    effective date of this Act.  A license fee due to be paid before

 13-5    the effective date of this Act is governed by the law in effect

 13-6    immediately before the effective date of this Act, and that law is

 13-7    continued in effect for that purpose.

 13-8          SECTION 12.  The importance of this legislation and the

 13-9    crowded condition of the calendars in both houses create an

13-10    emergency and an imperative public necessity that the

13-11    constitutional rule requiring bills to be read on three several

13-12    days in each house be suspended, and this rule is hereby suspended.