1-1 By: Goodman, Naishtat, et al. H.B. No. 1826
1-2 (Senate Sponsor - Harris)
1-3 (In the Senate - Received from the House April 17, 1997;
1-4 April 18, 1997, read first time and referred to Committee on
1-5 Jurisprudence; April 30, 1997, reported favorably, as amended, by
1-6 the following vote: Yeas 6, Nays 0; April 30, 1997, sent to
1-7 printer.)
1-8 COMMITTEE AMENDMENT NO. 1 By: Harris
1-9 Amend HB 1826 as follows:
1-10 (1) One page 3, line 64, insert the following new section and
1-11 renumber the subsequent sections appropriately:
1-12 SECTION 6. Section 105.001, Family Code, is amended by
1-13 amending Subsection (b) and adding Subsection (h) to read as
1-14 follows:
1-15 (b) Except as provided by Subsection (c), temporary
1-16 restraining orders and temporary injunctions under this section
1-17 shall be granted without the necessity of an affidavit or verified
1-18 pleading stating specific facts showing that immediate and
1-19 irreparable injury, loss, or damage will result before notice can
1-20 be served and a hearing can be held. Except as provided by
1-21 Subsection (h), an [An] order may not be rendered under Subsection
1-22 (a)(1), (2), or (5) except after notice and a hearing. A temporary
1-23 restraining order granted under this section need not:
1-24 (1) define the injury or state why it is irreparable;
1-25 or
1-26 (2) state why the order was granted without notice.
1-27 (h) An order under Subsection (a)(1) may be rendered without
1-28 notice and an adversary hearing if the order is an emergency order
1-29 sought by a governmental entity under Chapter 262.
1-30 (2) On page 4, lines 54-56, strike current language and substitute
1-31 the following:
1-32 "(F) failed to support the child in accordance with the
1-33 parent's [his] ability during a period of one year ending within
1-34 six months of the date of the filing of the petition;"
1-35 (3) On page 5, strike lines 58-60 and substitute the following:
1-36 "(P) used a controlled substance, as defined by
1-37 Chapter 481, Health and Safety Code:
1-38 (i) in a manner that endangered the health or safety of the
1-39 child, and failed to complete a court-ordered substance abuse
1-40 treatment program; or
1-41 (ii) repeatedly, after completion of a court-ordered
1-42 substance treatment program, in a manner that endangered the health
1-43 or safety of the child.
1-44 (5) On page 8, line 1, strike Subsection (e) and substitute the
1-45 following new Subsection (e) to read as follows:
1-46 (e) An interview with a child, alleged to be a victim of
1-47 physical abuse or sexual abuse shall be audiotaped or videotaped
1-48 unless the investigating agency determines that good cause exists
1-49 for not audiotaping or videotaping the interview in accordance with
1-50 rules of the agency. Good cause may include, but is not limited
1-51 to, such considerations as the age of the child and the nature and
1-52 seriousness of the allegations under investigation. Nothing in
1-53 this subsection shall be construed as prohibiting the investigating
1-54 agency from audiotaping or videotaping an interview of a child on
1-55 any case for which such audiotaping or videotaping is not required
1-56 under this subsection.
1-57 (6) On page 10, line 25, strike Subsection (e) and substitute the
1-58 following new Subsection (e) to read as follows:
1-59 (e) When citation by publication is needed for a parent or
1-60 alleged or probable father in an action brought under this chapter
1-61 because the location of the parent, alleged father or probable
1-62 father is unknown, the court may render a temporary order without
1-63 delay at any time after the filing of the action without regard to
1-64 whether notice of the citation by publication has been published.
2-1 (7) On page 11, lines 53-54, strike "[initiated a suit and has]"
2-2 and substitute "initiated a suit and has"
2-3 COMMITTEE AMENDMENT NO. 2 By: Harris
2-4 Amend HB 1826 as follows:
2-5 (1) On page 3, lines 24-47, strike Section 4.
2-6 (2) On page 9, lines 7-22 strike Section 19
2-7 (3) On page 10, lines 29-60 strike Section 23
2-8 COMMITTEE AMENDMENT NO. 3 By: Ogden
2-9 Amend HB 1826 as follows:
2-10 SECTION 2. Section 261.107, Family Code, is amended to read
2-11 as follows:
2-12 Sec. 261.107. FALSE REPORT; PENALTY. (a) A person commits
2-13 an offense if the person knowingly or intentionally makes a report
2-14 as provided in this chapter that the person knows is false or lacks
2-15 factual foundation. [An offense under this section is a Class A
2-16 misdemeanor.] The first offense under this section is a Class A
2-17 misdemeanor; a subsequent offense under this section is a state
2-18 jail felony.
2-19 (b) A report under this section, which was made prior to or
2-20 during a suit affecting the parent-child relationship and in which
2-21 is contained accusations that the court determines the accuser knew
2-22 to be false or lacking factual foundation, may be grounds for the
2-23 court to modify the parent-child relationship to restrict further
2-24 access to the child by the accuser.
2-25 (c) The respective prosecuting attorney shall be responsible
2-26 for the prosecution of offenses under this section.
2-27 A BILL TO BE ENTITLED
2-28 AN ACT
2-29 relating to the Department of Protective and Regulatory Services,
2-30 the protection of children from abuse and neglect, and the
2-31 conservatorship of children.
2-32 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
2-33 SECTION 1. Section 32.005(b), Family Code, is amended to
2-34 read as follows:
2-35 (b) An examination under this section may include X-rays,
2-36 blood tests, photographs, and penetration of tissue necessary to
2-37 accomplish those tests.
2-38 SECTION 2. Section 261.107, Family Code, is amended to read
2-39 as follows:
2-40 Sec. 261.107. FALSE REPORT; PENALTY. A person commits an
2-41 offense if the person knowingly or intentionally makes a report as
2-42 provided in this chapter that the person knows is false or lacks
2-43 factual foundation. An offense under this section [subsection] is
2-44 a Class A [B] misdemeanor.
2-45 SECTION 3. Section 102.003, Family Code, is amended to read
2-46 as follows:
2-47 Sec. 102.003. GENERAL STANDING TO FILE SUIT. An original
2-48 suit may be filed at any time by:
2-49 (1) a parent of the child;
2-50 (2) the child through a representative authorized by
2-51 the court;
2-52 (3) a custodian or person having the right of
2-53 visitation with or access to the child appointed by an order of a
2-54 court of another state or country;
2-55 (4) a guardian of the person or of the estate of the
2-56 child;
2-57 (5) a governmental entity;
2-58 (6) an authorized agency;
2-59 (7) a licensed child placing agency;
2-60 (8) a man alleging himself to be the biological father
2-61 of a child filing in accordance with Chapter 160, subject to the
2-62 limitations of Section 160.101, but not otherwise;
2-63 (9) a person who has had actual care, control, and
2-64 possession of the child for not less than six months preceding the
2-65 filing of the petition;
2-66 (10) a person designated as the managing conservator
2-67 in a revoked or unrevoked affidavit of relinquishment under Chapter
2-68 161 or to whom consent to adoption has been given in writing under
2-69 Chapter 162; [or]
3-1 (11) a person with whom the child and the child's
3-2 guardian, managing conservator, or parent have resided for not less
3-3 than six months preceding the filing of the petition if the child's
3-4 guardian, managing conservator, or parent is deceased at the time
3-5 of the filing of the petition; or
3-6 (12) a person who is the foster parent of a child
3-7 placed by the Department of Protective and Regulatory Services in
3-8 the person's home for a period of not less than 18 months preceding
3-9 the date of the filing of the petition.
3-10 SECTION 4. Section 104.002, Family Code, is amended to read
3-11 as follows:
3-12 Sec. 104.002. PRERECORDED STATEMENT OF CHILD. If a child 12
3-13 years of age or younger is alleged in a suit under this title to
3-14 have been abused or to have observed another child 12 years of age
3-15 or younger being abused, the recording of an oral statement of the
3-16 child recorded prior to the proceeding is admissible into evidence
3-17 if:
3-18 (1) no attorney for a party was present when the
3-19 statement was made;
3-20 (2) the recording is both visual and aural and is
3-21 recorded on film or videotape or by other electronic means;
3-22 (3) the recording equipment was capable of making an
3-23 accurate recording, the operator was competent, and the recording
3-24 is accurate and has not been altered;
3-25 (4) the statement was not made in response to
3-26 questioning calculated to lead the child to make a particular
3-27 statement;
3-28 (5) each voice on the recording is identified;
3-29 (6) the person conducting the interview of the child
3-30 in the recording is present at the proceeding and available to
3-31 testify or be cross-examined by either party; and
3-32 (7) each party is afforded an opportunity to view the
3-33 recording before it is offered into evidence.
3-34 SECTION 5. Chapter 104, Family Code, is amended by adding
3-35 Section 104.006 to read as follows:
3-36 Sec. 104.006. HEARSAY STATEMENT OF CHILD ABUSE VICTIM. In a
3-37 suit affecting the parent-child relationship, a statement made by a
3-38 child 12 years of age or younger that describes alleged abuse
3-39 against the child, without regard to whether the statement is
3-40 otherwise inadmissible as hearsay, is admissible as evidence if, in
3-41 a hearing conducted outside the presence of the jury, the court
3-42 finds that the time, content, and circumstances of the statement
3-43 provide sufficient indications of the statement's reliability and:
3-44 (1) the child testifies or is available to testify at
3-45 the proceeding in court or in any other manner provided for by law;
3-46 or
3-47 (2) the court determines that the use of the statement
3-48 in lieu of the child's testimony is necessary to protect the
3-49 welfare of the child.
3-50 SECTION 6. Section 107.016, Family Code, is amended to read
3-51 as follows:
3-52 Sec. 107.016. CONTINUED REPRESENTATION. In a suit brought
3-53 by a governmental entity seeking termination of the parent-child
3-54 relationship or appointment of the entity as conservator of the
3-55 child, an order appointing the Department of Protective and
3-56 Regulatory Services as the child's managing conservator may provide
3-57 for the continuation of the attorney ad litem appointment for the
3-58 child for any period set by the court.
3-59 SECTION 7. Section 152.003(e), Family Code, is amended to
3-60 read as follows:
3-61 (e) A court that has jurisdiction of a suit under Subsection
3-62 (a)(3) for which a court in another state may exercise jurisdiction
3-63 under prerequisites substantially in accordance with Subsection
3-64 (a)(1) or (2) may enter only a temporary order to protect the
3-65 child. The suit shall be dismissed in this state on the date a
3-66 court of competent jurisdiction in another state signs an order in
3-67 the suit or on the 91st day after the date the court in this state
3-68 exercised its jurisdiction, whichever date occurs first. This
3-69 subsection does not apply to a suit brought under Chapter 262.
4-1 SECTION 8. Section 155.004(a), Family Code, is amended to
4-2 read as follows:
4-3 (a) A court of this state loses its continuing, exclusive
4-4 jurisdiction to modify its order if:
4-5 (1) an order of adoption is rendered after the court
4-6 acquires continuing, exclusive jurisdiction of the suit;
4-7 (2) the parents of the child have remarried each other
4-8 after the dissolution of a previous marriage between them and file
4-9 a suit for the dissolution of their subsequent marriage combined
4-10 with a suit affecting the parent-child relationship as if there had
4-11 not been a prior court with continuing, exclusive jurisdiction over
4-12 the child; or
4-13 (3) another court assumed jurisdiction over a suit and
4-14 rendered a final order based on incorrect information received from
4-15 the bureau of vital statistics [Department of Protective and
4-16 Regulatory Services] that there was no court of continuing,
4-17 exclusive jurisdiction.
4-18 SECTION 9. Section 161.001, Family Code, is amended to read
4-19 as follows:
4-20 Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
4-21 RELATIONSHIP. The court may order termination of the parent-child
4-22 relationship if the court finds by clear and convincing evidence:
4-23 (1) that the parent has:
4-24 (A) voluntarily left the child alone or in the
4-25 possession of another not the parent and expressed an intent not to
4-26 return;
4-27 (B) voluntarily left the child alone or in the
4-28 possession of another not the parent without expressing an intent
4-29 to return, without providing for the adequate support of the child,
4-30 and remained away for a period of at least three months;
4-31 (C) voluntarily left the child alone or in the
4-32 possession of another without providing adequate support of the
4-33 child and remained away for a period of at least six months;
4-34 (D) knowingly placed or knowingly allowed the
4-35 child to remain in conditions or surroundings which endanger the
4-36 physical or emotional well-being of the child;
4-37 (E) engaged in conduct or knowingly placed the
4-38 child with persons who engaged in conduct which endangers the
4-39 physical or emotional well-being of the child;
4-40 (F) failed to support the child in accordance
4-41 with his ability during a period of one year ending within six
4-42 months of the date of the filing of the petition;
4-43 (G) abandoned the child without identifying the
4-44 child or furnishing means of identification, and the child's
4-45 identity cannot be ascertained by the exercise of reasonable
4-46 diligence;
4-47 (H) voluntarily, and with knowledge of the
4-48 pregnancy, abandoned the mother of the child beginning at a time
4-49 during her pregnancy with the child and continuing through the
4-50 birth, failed to provide adequate support or medical care for the
4-51 mother during the period of abandonment before the birth of the
4-52 child, and remained apart from the child or failed to support the
4-53 child since the birth;
4-54 (I) contumaciously refused to submit to a
4-55 reasonable and lawful order of a court under Chapter 264;
4-56 (J) been the major cause of:
4-57 (i) the failure of the child to be
4-58 enrolled in school as required by the Education Code; or
4-59 (ii) the child's absence from the child's
4-60 home without the consent of the parents or guardian for a
4-61 substantial length of time or without the intent to return;
4-62 (K) executed before or after the suit is filed
4-63 an unrevoked or irrevocable affidavit of relinquishment of parental
4-64 rights as provided by this chapter;
4-65 (L) been convicted or has been placed on
4-66 community supervision, including deferred adjudication community
4-67 supervision, for being [adjudicated to be] criminally responsible
4-68 for the death or serious injury of a child under the following
4-69 sections of the Penal Code or adjudicated under Title 3 for conduct
5-1 that caused the death or serious injury of a child and that would
5-2 constitute a violation of one of the following Penal Code sections:
5-3 (i) Section 19.02 (murder);
5-4 (ii) Section 19.03 (capital murder);
5-5 (iii) Section 21.11 (indecency with a
5-6 child);
5-7 (iv) Section 22.01 (assault);
5-8 (v) Section 22.011 (sexual assault);
5-9 (vi) Section 22.02 (aggravated assault);
5-10 (vii) Section 22.021 (aggravated sexual
5-11 assault);
5-12 (viii) Section 22.04 (injury to a child,
5-13 elderly individual, or disabled individual);
5-14 (ix) Section 22.041 (abandoning or
5-15 endangering child);
5-16 (x) Section 25.02 (prohibited sexual
5-17 conduct);
5-18 (xi) Section 43.25 (sexual performance by
5-19 a child); and
5-20 (xii) Section 43.26 (possession or
5-21 promotion of child pornography);
5-22 (M) had his or her parent-child relationship
5-23 terminated with respect to another child based on a finding that
5-24 the parent's conduct was in violation of Paragraph (D) or (E) or
5-25 substantially equivalent provisions of the law of another state;
5-26 [or]
5-27 (N) constructively abandoned the child who has
5-28 been in the permanent or temporary managing conservatorship of the
5-29 Department of Protective and Regulatory Services or an authorized
5-30 agency for not less than six months [one year], and:
5-31 (i) the department or authorized agency
5-32 has made reasonable efforts to return the child to the parent;
5-33 (ii) the parent has not regularly visited
5-34 or maintained significant contact with the child; and
5-35 (iii) the parent has demonstrated an
5-36 inability to provide the child with a safe environment;
5-37 (O) failed to comply with the provisions of a
5-38 court order that specifically established the actions necessary for
5-39 the parent to obtain the return of the child who has been in the
5-40 permanent or temporary managing conservatorship of the Department
5-41 of Protective and Regulatory Services for not less than nine months
5-42 as a result of the child's removal from the parent under Chapter
5-43 262 for the abuse or neglect of the child;
5-44 (P) used a controlled substance, as defined by
5-45 Chapter 481, Health and Safety Code, in a manner or to an extent
5-46 that endangered the health or safety of the child, and:
5-47 (i) failed to complete a court-ordered
5-48 substance abuse treatment program; or
5-49 (ii) repeatedly used a controlled
5-50 substance after completion of a court-ordered substance abuse
5-51 treatment program;
5-52 (Q) knowingly engaged in criminal conduct that
5-53 results in the parent's imprisonment and inability to care for the
5-54 child for not less than two years from the date of filing the
5-55 petition; or
5-56 (R) been the cause of the child being born
5-57 addicted to alcohol or a controlled substance, other than a
5-58 controlled substance legally obtained by prescription, as defined
5-59 by Section 261.001(7); and
5-60 (2) that termination is in the best interest of the
5-61 child.
5-62 SECTION 10. Section 261.001, Family Code, is amended by
5-63 amending Subdivision (1) and adding Subdivision (7) to read as
5-64 follows:
5-65 (1) "Abuse" includes the following acts or omissions
5-66 by a person:
5-67 (A) mental or emotional injury to a child that
5-68 results in an observable and material impairment in the child's
5-69 growth, development, or psychological functioning;
6-1 (B) causing or permitting the child to be in a
6-2 situation in which the child sustains a mental or emotional injury
6-3 that results in an observable and material impairment in the
6-4 child's growth, development, or psychological functioning;
6-5 (C) physical injury that results in substantial
6-6 harm to the child, or the genuine threat of substantial harm from
6-7 physical injury to the child, including an injury that is at
6-8 variance with the history or explanation given and excluding an
6-9 accident or reasonable discipline by a parent, guardian, or
6-10 managing or possessory conservator that does not expose the child
6-11 to a substantial risk of harm;
6-12 (D) failure to make a reasonable effort to
6-13 prevent an action by another person that results in physical injury
6-14 that results in substantial harm to the child;
6-15 (E) sexual conduct harmful to a child's mental,
6-16 emotional, or physical welfare;
6-17 (F) failure to make a reasonable effort to
6-18 prevent sexual conduct harmful to a child;
6-19 (G) compelling or encouraging the child to
6-20 engage in sexual conduct as defined by Section 43.01, Penal Code;
6-21 [or]
6-22 (H) causing, permitting, encouraging, engaging
6-23 in, or allowing the photographing, filming, or depicting of the
6-24 child if the person knew or should have known that the resulting
6-25 photograph, film, or depiction of the child is obscene as defined
6-26 by Section 43.21, Penal Code, or pornographic;
6-27 (I) the current use by a person of a controlled
6-28 substance as defined by Chapter 481, Health and Safety Code, in a
6-29 manner or to the extent that the use results in physical, mental,
6-30 or emotional injury to a child; or
6-31 (J) causing, expressly permitting, or
6-32 encouraging a child to use a controlled substance as defined by
6-33 Chapter 481, Health and Safety Code.
6-34 (7) "Born addicted to alcohol or a controlled
6-35 substance" means a child:
6-36 (A) who is born to a mother who during the
6-37 pregnancy used a controlled substance, as defined by Chapter 481,
6-38 Health and Safety Code, other than a controlled substance legally
6-39 obtained by prescription, or alcohol; and
6-40 (B) who, after birth as a result of the mother's
6-41 use of the controlled substance or alcohol:
6-42 (i) experiences observable withdrawal from
6-43 the alcohol or controlled substance;
6-44 (ii) exhibits observable or harmful
6-45 effects in the child's physical appearance or functioning; or
6-46 (iii) exhibits the demonstrable presence
6-47 of alcohol or a controlled substance in the child's bodily fluids.
6-48 SECTION 11. Section 261.101(d), Family Code, is amended to
6-49 read as follows:
6-50 (d) The identity of an individual making a report under this
6-51 chapter is confidential and may be disclosed only on the order of a
6-52 court rendered under Section 261.201 or to a law enforcement
6-53 officer for the purposes of conducting a criminal investigation of
6-54 the report.
6-55 SECTION 12. Section 261.201, Family Code, is amended by
6-56 amending Subsections (a), (c), (d), (e), and (f) and by adding
6-57 Subsection (g) to read as follows:
6-58 (a) The following information is confidential, is not
6-59 subject to public release under Chapter 552, Government Code, and
6-60 may be disclosed only for purposes consistent with this code and
6-61 applicable federal or state law or under rules adopted by an
6-62 investigating agency:
6-63 (1) a report of alleged or suspected abuse or neglect
6-64 made under this chapter and the identity of the person making the
6-65 report; and
6-66 (2) except as otherwise provided in this section, the
6-67 files, reports, records, communications, audiotapes, videotapes,
6-68 and working papers used or developed in an investigation under this
6-69 chapter or in providing services as a result of an investigation.
7-1 (c) In addition to Subsection (b), a court, on its own
7-2 motion, may order disclosure of information that is confidential
7-3 under this section if:
7-4 (1) the order is rendered at a hearing for which all
7-5 parties have been given notice;
7-6 (2) the court finds that disclosure of the information
7-7 is:
7-8 (A) essential to the administration of justice;
7-9 and
7-10 (B) not likely to endanger the life or safety
7-11 of:
7-12 (i) a child who is the subject of the
7-13 report of alleged or suspected abuse or neglect;
7-14 (ii) a person who makes a report of
7-15 alleged or suspected abuse or neglect; or
7-16 (iii) any other person who participates in
7-17 an investigation of reported abuse or neglect; and
7-18 (3) the order is reduced to writing or made on the
7-19 record in open court.
7-20 (d) The adoptive parents of a child who was the subject of
7-21 an investigation and an adult who was the subject of an
7-22 investigation as a child are entitled to examine and make copies of
7-23 any report, record, working paper, or other information in the
7-24 possession, custody, or control of the state that pertains to the
7-25 history of the child. The department may edit the documents to
7-26 protect the identity of the biological parents and any other person
7-27 whose identity is confidential.
7-28 (e) [(d)] Before placing a child who was the subject of an
7-29 investigation, the department shall notify the prospective adoptive
7-30 parents of their right to examine any report, record, working
7-31 paper, or other information in the possession, custody, or control
7-32 of the state that pertains to the history of the child.
7-33 (f) [(e)] The department shall provide prospective adoptive
7-34 parents an opportunity to examine information under this section as
7-35 early as practicable before placing a child.
7-36 (g) [(f)] Notwithstanding Subsection (b), the department, on
7-37 request and subject to department rule, shall provide to the
7-38 parent, managing conservator, or other legal representative of a
7-39 child who is the subject of reported abuse or neglect information
7-40 concerning the reported abuse or neglect that would otherwise be
7-41 confidential under this section if the department has edited the
7-42 information to protect the confidentiality of the identity of the
7-43 person who made the report and any other person whose life or
7-44 safety may be endangered by the disclosure.
7-45 SECTION 13. Section 261.302(b), Family Code, is amended to
7-46 read as follows:
7-47 (b) The interview with and examination of the child may:
7-48 (1) be conducted at any reasonable time and place,
7-49 including the child's home or the child's school; [and]
7-50 (2) include the presence of persons the department or
7-51 designated agency determines are necessary; and
7-52 (3) include transporting the child for purposes
7-53 relating to the interview or investigation.
7-54 SECTION 14. Section 261.302, Family Code, is amended by
7-55 adding Subsection (e) to read as follows:
7-56 (e) An interview with a child under this section shall be
7-57 audiotaped and videotaped unless the investigating agency
7-58 determines that good cause exists for not audiotaping or
7-59 videotaping the interview.
7-60 SECTION 15. Sections 261.305(a)-(d), Family Code, are
7-61 amended to read as follows:
7-62 (a) An investigation may include an inquiry into the
7-63 possibility that the child, a parent, or a person responsible for
7-64 the care of the child has a history of medical or mental illness.
7-65 (b) If the parent or person responsible for the care of the
7-66 child does not allow the department or designated agency to have
7-67 access to medical or mental health records requested by the
7-68 department or agency, the court having family law jurisdiction, for
7-69 good cause shown, shall order that the department or agency be
8-1 permitted to have access to the records under terms and conditions
8-2 prescribed by the court.
8-3 (c) If the court determines that the parent or person
8-4 responsible for the care of the child is indigent, the court shall
8-5 appoint an attorney to represent the parent or person responsible
8-6 for the child at the hearing to obtain medical or mental health
8-7 records. The fees for the appointed attorney shall be paid by the
8-8 department or designated agency.
8-9 (d) A parent or person responsible for the child's care is
8-10 entitled to notice and a hearing when the department or designated
8-11 agency seeks a court order to allow a medical, psychological, or
8-12 psychiatric examination or access to medical or mental health
8-13 records.
8-14 SECTION 16. Section 261.312(c), Family Code, is amended to
8-15 read as follows:
8-16 (c) A review team conducting a review of an investigation
8-17 may conduct the review by examining the facts of the case as
8-18 outlined by the department caseworker and law enforcement
8-19 personnel. A review team member acting in the member's official
8-20 capacity may receive information made confidential under Section
8-21 40.005, Human Resources Code, or Section 261.201. [In providing
8-22 information to a review team, the department may not disclose the
8-23 identity of a person who reports abuse or neglect or of another
8-24 individual involved in the investigation. Information regarding
8-25 the identity of a person who reports abuse or neglect and of any
8-26 other individual involved in the investigation of a report is
8-27 confidential.]
8-28 SECTION 17. Subchapter D, Chapter 261, Family Code, is
8-29 amended by adding Section 261.315 to read as follows:
8-30 Sec. 261.315. EXEMPTION FROM FEES FOR MEDICAL RECORDS. The
8-31 department is exempt from the payment of a fee otherwise required
8-32 or authorized by law to obtain a medical record from a hospital or
8-33 health care provider if the request for a record is made in the
8-34 course of an investigation by the department.
8-35 SECTION 18. Section 261.406, Family Code, is amended by
8-36 amending Subsections (a) and (b) and adding Subsection (d) to read
8-37 as follows:
8-38 (a) On receipt of a report of alleged or suspected abuse or
8-39 neglect of a child in a public or private school under the
8-40 jurisdiction of the Texas [Central] Education Agency, the
8-41 department shall perform an investigation as provided by this
8-42 chapter.
8-43 (b) The department shall send a written report of the
8-44 department's investigation to the Texas [Central] Education Agency,
8-45 the agency responsible for teacher certification, [and] the local
8-46 school board or local governing body, and the school principal,
8-47 unless the principal is alleged to have committed the abuse or
8-48 neglect, for appropriate action. On request, the department shall
8-49 provide a copy of the report of investigation to the parent,
8-50 managing conservator, or legal guardian of a child who is the
8-51 subject of the investigation and to the person alleged to have
8-52 committed the abuse or neglect [report]. The report of
8-53 investigation shall be edited to protect the identity of the
8-54 persons who made [prepared] the report of abuse or neglect or
8-55 provided information for the report of abuse or neglect. Section
8-56 261.201(b) applies to the release of confidential information
8-57 relating to the investigation of a report of abuse or neglect under
8-58 this section and to the identity of the person who made the report
8-59 of abuse or neglect.
8-60 (d) The Board of Protective and Regulatory Services shall
8-61 adopt rules necessary to implement this section.
8-62 SECTION 19. Subchapter A, Chapter 262, Family Code, is
8-63 amended by adding Section 262.0005 to read as follows:
8-64 Sec. 262.0005. DEFINITION. In this chapter, "extreme
8-65 conduct" means violent or dangerous child abuse that includes:
8-66 (1) an offense under Section 22.04, Penal Code,
8-67 involving injury to a child (injury to a child, elderly individual,
8-68 or disabled individual);
8-69 (2) an offense under Section 22.041, Penal Code
9-1 (abandoning or endangering child);
9-2 (3) an offense under Section 22.011, Penal Code
9-3 (sexual assault);
9-4 (4) an offense under Section 22.021, Penal Code
9-5 (aggravated sexual assault); and
9-6 (5) abuse or neglect resulting in serious bodily
9-7 injury, serious mental deficiency, impairment, or injury to a
9-8 child.
9-9 SECTION 20. Section 262.1015, Family Code, is amended by
9-10 amending Subsections (c), (d), (f), and (g) and by adding
9-11 Subsection (h) to read as follows:
9-12 (c) [The notice requirements under Section 262.109 apply to
9-13 a proceeding under this section.] The order shall be served on the
9-14 alleged perpetrator and on the parent or other adult with whom the
9-15 child will continue to reside.
9-16 (d) A temporary restraining order under this section expires
9-17 not later than the 14th [10th] day after the date the order was
9-18 rendered. [The requirements of an adversary hearing for the
9-19 removal of a child from the child's home under Subchapter C apply
9-20 to the removal of an alleged perpetrator under this section.]
9-21 (f) The court shall order the removal of an alleged
9-22 perpetrator if the court finds that the child is not in danger of
9-23 abuse from a parent or other adult with whom the child will
9-24 continue to reside in the child's residence and that:
9-25 (1) the presence of the alleged perpetrator in the
9-26 child's residence constitutes a continuing danger to the physical
9-27 health or safety of the child; or
9-28 (2) the child has been the victim of sexual abuse and
9-29 there is a substantial risk that the child will be the victim of
9-30 sexual abuse in the future if the alleged perpetrator remains in
9-31 the residence.
9-32 (g) A person commits an offense if the person is a parent or
9-33 other person with whom a child resides, the person is served with
9-34 an order containing the requirement specified by Subsection (e),
9-35 and the person fails to make a reasonable effort to monitor the
9-36 residence of the child or to report to the department and the
9-37 appropriate law enforcement agency an attempt by the alleged
9-38 perpetrator to return to the residence. An offense under this
9-39 section is a Class A misdemeanor.
9-40 (h) [(g)] A person commits an offense if, in violation of a
9-41 court order under this section, the person returns to the residence
9-42 of the child the person is alleged to have abused. An offense
9-43 under this subsection is a Class A misdemeanor, except that the
9-44 offense is a felony of the third degree if the person has
9-45 previously been convicted under this subsection.
9-46 SECTION 21. Section 262.104, Family Code, is amended to read
9-47 as follows:
9-48 Sec. 262.104. TAKING POSSESSION OF A CHILD IN EMERGENCY
9-49 WITHOUT A COURT ORDER. If there is no time to obtain a temporary
9-50 restraining order or attachment before taking possession of a child
9-51 consistent with the health and safety of that child, an authorized
9-52 representative of the Department of Protective and Regulatory
9-53 Services, a law enforcement officer, or a juvenile probation
9-54 officer may take possession of a child without a court order under
9-55 the following conditions, only:
9-56 (1) on personal knowledge of facts that would lead a
9-57 person of ordinary prudence and caution to believe that there is an
9-58 immediate danger to the physical health or safety of the child;
9-59 (2) on information furnished by another that has been
9-60 corroborated by personal knowledge of facts and all of which taken
9-61 together would lead a person of ordinary prudence and caution to
9-62 believe that there is an immediate danger to the physical health or
9-63 safety of the child;
9-64 (3) on personal knowledge of facts that would lead a
9-65 person of ordinary prudence and caution to believe that the child
9-66 has been the victim of sexual abuse; [or]
9-67 (4) on information furnished by another that has been
9-68 corroborated by personal knowledge of facts and all of which taken
9-69 together would lead a person of ordinary prudence and caution to
10-1 believe that the child has been the victim of sexual abuse; or
10-2 (5) on information furnished by another that has been
10-3 corroborated by personal knowledge of facts and all of which taken
10-4 together would lead a person of ordinary prudence and caution to
10-5 believe that the parent or person who has possession of the child
10-6 is currently using a controlled substance as defined by Chapter
10-7 481, Health and Safety Code, and the use constitutes an immediate
10-8 danger to the physical health or safety of the child.
10-9 SECTION 22. Section 262.201, Family Code, is amended by
10-10 adding Subsection (e) to read as follows:
10-11 (e) When citation has been made by publication for a parent
10-12 because the location of the parent is unknown, the court may render
10-13 a temporary order without delay at any time after the date of the
10-14 publication of citation.
10-15 SECTION 23. Section 262.201, Family Code, is amended by
10-16 adding Subsections (f), (g), and (h) to read as follows:
10-17 (f) If a child is alleged to be the victim of extreme
10-18 conduct, the court shall make findings and enter orders as
10-19 necessary, concerning:
10-20 (1) whether there are reasonable grounds to believe
10-21 that the child is a victim of extreme conduct;
10-22 (2) the principal legal issues and requirements
10-23 relating to necessary parties, service of citation, and appointment
10-24 of attorneys and guardians ad litem;
10-25 (3) whether grounds exist to file suit for termination
10-26 of the parent-child relationship; and
10-27 (4) the deadline to determine whether to proceed with
10-28 a suit for termination or other suit affecting the parent-child
10-29 relationship.
10-30 (g) If a suit for termination of the parent-child
10-31 relationship is filed and a child is alleged to be the victim of
10-32 extreme conduct and the court determines that reasonable grounds
10-33 exist to believe that the child is a victim of extreme conduct, the
10-34 court:
10-35 (1) shall set deadlines for the completion of
10-36 requirements of Chapter 263;
10-37 (2) shall set deadlines for filing pleadings and
10-38 discovery; and
10-39 (3) shall set the trial date not later than the 180th
10-40 day after the date of the filing of the suit and may permit only
10-41 one continuance of the trial, but may not continue the trial date
10-42 later than the 270th day after the date of the filing of the suit.
10-43 (h) If a child is alleged to be the victim of extreme
10-44 conduct, the court may not continue a trial under this chapter for
10-45 noncompliance with any placement agreement, service plan, or other
10-46 agreement for services.
10-47 SECTION 24. Section 262.203, Family Code, is amended to read
10-48 as follows:
10-49 Sec. 262.203. TRANSFER OF SUIT. (a) On the motion of a
10-50 party or the court's own motion, if applicable, the court that
10-51 rendered the temporary order shall transfer the suit in accordance
10-52 with procedures provided by Chapter 155:
10-53 (1) to the court of continuing, exclusive
10-54 jurisdiction, if any; or
10-55 (2) if there is no court of continuing jurisdiction,
10-56 to the court having venue of the suit affecting the parent-child
10-57 relationship under Chapter 103.
10-58 (b) Notwithstanding Section 155.204, a motion to transfer
10-59 under this section is timely if made at any time after the date a
10-60 suit was filed under this chapter.
10-61 SECTION 25. Section 264.004, Family Code, is amended by
10-62 adding Subsection (c) to read as follows:
10-63 (c) The department may use state and federal funds to
10-64 provide benefits or services to children and families who are
10-65 otherwise eligible for the benefits or services, including foster
10-66 care, adoption assistance, medical assistance, family reunification
10-67 services, and other child protective services and related benefits
10-68 without regard to the immigration status of the child or the
10-69 child's family.
11-1 SECTION 26. Section 264.005, Family Code, is amended by
11-2 adding Subsections (f) and (g) to read as follows:
11-3 (f) A county child protective services board member may
11-4 receive information that is confidential under Section 40.005,
11-5 Human Resources Code, or Section 261.201 when the board member is
11-6 acting in the member's official capacity.
11-7 (g) A child welfare board may conduct a closed meeting under
11-8 Section 551.101, Government Code, to discuss, consider, or act on a
11-9 matter that is confidential under Section 40.005, Human Resources
11-10 Code, or Section 261.201.
11-11 SECTION 27. Section 264.006, Family Code, is amended to read
11-12 as follows:
11-13 Sec. 264.006. COUNTY FUNDS. The commissioners court of a
11-14 county may appropriate funds from its general fund or any other
11-15 fund for the administration of its county child welfare board. The
11-16 court may provide for services to and support of children in need
11-17 of protection and care without regard to the immigration status of
11-18 the child or the child's family.
11-19 SECTION 28. Subchapter A, Chapter 264, Family Code, is
11-20 amended by adding Sections 264.011 and 264.012 to read as follows:
11-21 Sec. 264.011. LOCAL ACCOUNTS. (a) The department may
11-22 establish and maintain local bank or savings accounts for a child
11-23 who is under the managing conservatorship of the department as
11-24 necessary to administer funds received in trust for or on behalf of
11-25 the child.
11-26 (b) Funds maintained in an account under this section may be
11-27 used by the department to support the child, including for the
11-28 payment of foster care expenses, or may be paid to a person
11-29 providing care for the child.
11-30 Sec. 264.012. FUNERAL EXPENSES FOR CHILD IN FOSTER CARE.
11-31 The department may spend funds appropriated for the child
11-32 protective services program to pay reasonable and necessary funeral
11-33 expenses for a child for whom the department has been appointed
11-34 managing conservator and who dies in foster care.
11-35 SECTION 29. Section 264.101, Family Code, is amended to read
11-36 as follows:
11-37 Sec. 264.101. FOSTER CARE PAYMENTS. (a) The department may
11-38 pay the cost of [protective] foster care for a child:
11-39 (1) for whom the department has [initiated a suit and
11-40 has] been named managing conservator under an order rendered under
11-41 this title,[; and]
11-42 [(2)] who is a resident of the state, and who has been
11-43 placed by the department in a foster home or child-care
11-44 institution, as defined by Chapter 42, Human Resources Code; or
11-45 (2) who is under the placement and care of a state
11-46 agency or political subdivision with which the department has
11-47 entered into an agreement to reimburse the cost of care and
11-48 supervision of the child [ineligible for foster care payments under
11-49 the aid to families with dependent children program of the Texas
11-50 Department of Human Services].
11-51 (b) The department may not pay the cost of protective foster
11-52 care for a child for whom the department has been named managing
11-53 conservator under an order rendered solely under Section
11-54 161.001(1)(J) [161.001].
11-55 (c) The payment [total amount] of [payments for protective]
11-56 foster care, including medical care, for a child as authorized
11-57 under this subchapter shall be made without regard to the child's
11-58 eligibility for federally funded care [must be equal to the total
11-59 amount of payments made for similar care for a child eligible for
11-60 the aid to families with dependent children program of the Texas
11-61 Department of Human Services].
11-62 (d) The Board of Protective and Regulatory Services may
11-63 adopt rules that establish criteria and guidelines for the payment
11-64 of foster care, including medical care, for a child and for
11-65 providing care for a child after the child becomes 18 years of age
11-66 if the child is regularly attending high school, an institution of
11-67 higher education, or a vocational or technical program.
11-68 (e) The department may accept and spend funds available from
11-69 any source to pay for foster care, including medical care, for a
12-1 child in the department's care.
12-2 (f) In this section, "child" means a person who:
12-3 (1) is under 22 years of age and for whom the
12-4 department has been appointed managing conservator of the child
12-5 before the date the child became 18 years of age; or
12-6 (2) is the responsibility of an agency with which the
12-7 department has entered into an agreement to provide care and
12-8 supervision of the child.
12-9 SECTION 30. Subchapter B, Chapter 264, Family Code, is
12-10 amended by adding Section 264.1015 to read as follows:
12-11 Sec. 264.1015. LIABILITY OF CHILD'S ESTATE FOR FOSTER CARE.
12-12 (a) The cost of foster care provided for a child, including
12-13 medical care, is an obligation of the estate of the child and the
12-14 estate is liable to the department for the cost of the care.
12-15 (b) The department may take action to recover from the
12-16 estate of the child the cost of foster care for the child.
12-17 SECTION 31. Section 264.104, Family Code, is amended by
12-18 amending Subsection (b) and adding Subsection (c) to read as
12-19 follows:
12-20 (b) The cost of foster care for a child, including medical
12-21 care, is a legal obligation of the child's parents, and the estate
12-22 of a parent of the child is liable to the department for payment of
12-23 the costs.
12-24 (c) The funds collected by the state under this section
12-25 shall be used by the department for child welfare services.
12-26 SECTION 32. Section 264.105, Family Code, is amended to read
12-27 as follows:
12-28 Sec. 264.105. MEDICAL SERVICES PAYMENTS [LIMITATION]. The
12-29 department shall attempt to maximize the use of federal funding to
12-30 [may not] provide [the] medical care payments authorized by Section
12-31 264.101(c) [if:]
12-32 [(1) a federal law or regulation prohibits those
12-33 medical payments unless medical payments are also provided for
12-34 medically needy children who are not eligible for the aid to
12-35 families with dependent children program of the Texas Department of
12-36 Human Services and] for children for whom the department has been
12-37 [is not] named managing conservator[; or]
12-38 [(2) the federal government does not fund at least 50
12-39 percent of the cost of the medical payments authorized by this
12-40 subchapter].
12-41 SECTION 33. Section 264.302(c), Family Code, is amended to
12-42 read as follows:
12-43 (c) The department may not provide services under this
12-44 section to a child who has:
12-45 (1) at any time been referred to juvenile court for
12-46 engaging in conduct that violates a penal law of this state of the
12-47 grade of felony other than a state jail felony; or
12-48 (2) been found to have engaged in delinquent conduct
12-49 under Title 3.
12-50 SECTION 34. Section 264.406, Family Code, is amended by
12-51 adding Subsection (f) to read as follows:
12-52 (f) When acting in the member's official capacity, a
12-53 multidisciplinary team member is authorized to receive information
12-54 made confidential by Section 40.005, Human Resources Code, or
12-55 Section 261.201 or 264.408.
12-56 SECTION 35. Subchapter E, Chapter 264, Family Code, is
12-57 amended by adding Sections 264.408-264.411 to read as follows:
12-58 Sec. 264.408. USE OF INFORMATION AND RECORDS;
12-59 CONFIDENTIALITY AND OWNERSHIP. (a) The files, reports, records,
12-60 communications, and working papers used or developed in providing
12-61 services under this chapter are confidential and not subject to
12-62 public release under Chapter 552, Government Code, and may only be
12-63 disclosed for purposes consistent with this chapter. Disclosure
12-64 may be to:
12-65 (1) the department, department employees, law
12-66 enforcement agencies, prosecuting attorneys, medical professionals,
12-67 and other state agencies that provide services to children and
12-68 families; and
12-69 (2) the attorney for the child who is the subject of
13-1 the records and a court-appointed volunteer advocate appointed for
13-2 the child under Section 107.031.
13-3 (b) Information related to the investigation of a report of
13-4 abuse or neglect under Chapter 261 and services provided as a
13-5 result of the investigation is confidential as provided by Section
13-6 261.201.
13-7 (c) The department, a law enforcement agency, and a
13-8 prosecuting attorney may share with a center information that is
13-9 confidential under Section 261.201 as needed to provide services
13-10 under this chapter. Confidential information shared with or
13-11 provided to a center remains the property of the agency that shared
13-12 or provided the information to the center.
13-13 (d) A videotaped interview of a child made at a center is
13-14 the property of the prosecuting attorney involved in the criminal
13-15 prosecution of the case involving the child. If no criminal
13-16 prosecution occurs, the videotaped interview is the property of the
13-17 attorney involved in representing the department in a civil action
13-18 alleging child abuse or neglect. If the matter involving the child
13-19 is not prosecuted, the videotape is the property of the department
13-20 if the matter is an investigation by the department of abuse or
13-21 neglect. If the department is not investigating or has not
13-22 investigated the matter, the videotape is the property of the
13-23 agency that referred the matter to the center. If the center
13-24 employs a custodian of records for videotaped interviews of
13-25 children, the center is responsible for the custody of the
13-26 videotape. A videotaped interview may be shared with other
13-27 agencies under a written agreement.
13-28 (e) The department shall be allowed access to a center's
13-29 videotaped interviews of children.
13-30 Sec. 264.409. ADMINISTRATIVE CONTRACTS. The department may
13-31 contract with a statewide organization of individuals or groups of
13-32 individuals who have expertise in the establishment and operation
13-33 of children's advocacy center programs. The statewide organization
13-34 shall provide training, technical assistance, and evaluation
13-35 services for local children's advocacy center programs.
13-36 Sec. 264.410. CONTRACTS WITH CHILDREN'S ADVOCACY CENTERS.
13-37 (a) The statewide organization with which the department contracts
13-38 under Section 264.409 shall contract for services with eligible
13-39 centers to enhance the existing services of the programs.
13-40 (b) The contract under this section may not result in
13-41 reducing the financial support a local center receives from another
13-42 source.
13-43 Sec. 264.411. ELIGIBILITY FOR CONTRACTS. (a) A public
13-44 entity or nonprofit entity is eligible for a contract under Section
13-45 264.410 if the entity:
13-46 (1) has a signed memorandum of understanding as
13-47 provided by Section 264.403;
13-48 (2) operates under the authority of a governing board
13-49 as provided by Section 264.404;
13-50 (3) has a multidisciplinary team of persons involved
13-51 in the investigation or prosecution of child abuse cases or the
13-52 delivery of services as provided by Section 264.406;
13-53 (4) holds regularly scheduled case reviews as provided
13-54 by Section 264.406;
13-55 (5) operates in a neutral and physically separate
13-56 space from the day-to-day operations of any public agency partner;
13-57 (6) has developed a method of statistical information
13-58 gathering on children receiving services through the center and
13-59 shares such statistical information with the statewide organization
13-60 and the department when requested;
13-61 (7) has an in-house volunteer program;
13-62 (8) employs an executive director who is answerable to
13-63 the board of directors of the entity and who is not the exclusive
13-64 salaried employee of any public agency partner; and
13-65 (9) operates under a working protocol that includes a
13-66 statement of:
13-67 (A) the center's mission;
13-68 (B) each agency's role and commitment to the
13-69 center;
14-1 (C) the type of cases to be handled by the
14-2 center; and
14-3 (D) procedure for case reviews.
14-4 (b) The statewide organization may waive the requirements
14-5 specified in Subsection (a) if it determines that the waiver will
14-6 not adversely affect the center's ability to carry out its duties
14-7 under Section 264.405. Any waiver that is granted must be
14-8 identified in the written contract with the center. If a request
14-9 for a waiver is denied, an appeal of the decision may be made to
14-10 the department's executive director, who may reverse the decision.
14-11 If the executive director approves a request for a waiver on
14-12 appeal, the statewide organization shall contract with the center
14-13 and shall include the waiver in the contract.
14-14 SECTION 36. Section 25.002(f), Education Code, is amended to
14-15 read as follows:
14-16 (f) Except as otherwise provided by this subsection, for a
14-17 child to be enrolled in a public school, the child must be enrolled
14-18 by the child's parent or by the child's guardian or other person
14-19 with legal control of the child under a court order. [If a person
14-20 with legal authority to enroll the child in school cannot be
14-21 identified and located, the school district that receives the
14-22 child's application for enrollment shall notify the Department of
14-23 Protective and Regulatory Services and shall admit the child as
14-24 provided by Section 25.001. The district shall direct any
14-25 communication that is required with a parent to the Department of
14-26 Protective and Regulatory Services unless that department specifies
14-27 otherwise. In this subsection, "child" has the meaning assigned by
14-28 Section 101.003, Family Code.]
14-29 SECTION 37. (a) Subchapter C, Chapter 42, Human Resources
14-30 Code, is amended by adding Section 42.0535 to read as follows:
14-31 Sec. 42.0535. REQUIRED INFORMATION FOR VERIFICATION. (a) A
14-32 child-placing agency that seeks to verify an agency home or an
14-33 agency group home shall request background information about the
14-34 agency home or group home from a child-placing agency that has
14-35 previously verified that agency home or agency group home.
14-36 (b) Notwithstanding Section 261.201, Family Code, a
14-37 child-placing agency that has verified an agency home or an agency
14-38 group home is required to release to another child-placing agency
14-39 background information requested under Subsection (a).
14-40 (c) A child-placing agency that releases background
14-41 information under this section is immune from civil and criminal
14-42 liability for the release of the information.
14-43 (d) For purposes of this section, background information
14-44 means the home study under which the agency home or agency group
14-45 home was verified by the previous child-placing agency and any
14-46 record of noncompliance with state minimum standards received and
14-47 the resolution of any such noncompliance by the previous
14-48 child-placing agency.
14-49 (b) This section takes effect September 1, 1997, and applies
14-50 only to the release by a child-placing agency of background
14-51 information about an agency home or agency group home on or after
14-52 that date. The release of background information before that date
14-53 is governed by the law as it existed immediately before the
14-54 effective date of this section, and that law is continued in effect
14-55 for that purpose.
14-56 SECTION 38. (a) The change in law made by Section 2 of this
14-57 Act applies only to an offense committed on or after the effective
14-58 date of this Act. For the purpose of this section, an offense is
14-59 committed before the effective date of this Act if any element of
14-60 the offense occurs before that date.
14-61 (b) An offense committed before the effective date of this
14-62 Act is covered by the law in effect when the offense was committed,
14-63 and the former law is continued in effect for that purpose.
14-64 SECTION 39. Sections 19 and 23 of this Act apply only to an
14-65 adversary hearing held under Section 262.201, Family Code, or a
14-66 suit for termination of the parent-child relationship filed on or
14-67 after the effective date of this Act.
14-68 SECTION 40. This Act takes effect September 1, 1997, and
14-69 applies to a suit affecting the parent-child relationship filed on
15-1 or after that date. A suit filed before the effective date of this
15-2 Act is governed by the law in effect on the date the suit was
15-3 filed, and the former law is continued in effect for that purpose.
15-4 SECTION 41. The importance of this legislation and the
15-5 crowded condition of the calendars in both houses create an
15-6 emergency and an imperative public necessity that the
15-7 constitutional rule requiring bills to be read on three several
15-8 days in each house be suspended, and this rule is hereby suspended.
15-9 * * * * *