75R11713 KKA-F
By Naishtat H.B. No. 1850
Substitute the following for H.B. No. 1850:
By Naishtat C.S.H.B. No. 1850
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protective services for elderly and disabled persons;
1-3 providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 48.002(2), Human Resources Code, is
1-6 amended to read as follows:
1-7 (2) "Abuse" means:
1-8 (A) the negligent or wilful infliction of
1-9 injury, unreasonable confinement, intimidation, or cruel punishment
1-10 with resulting physical or emotional harm or pain to an elderly or
1-11 disabled person by the person's caretaker, family member, or other
1-12 individual who has an ongoing relationship with the person; or
1-13 (B) sexual abuse of an elderly or disabled
1-14 person, including any involuntary or nonconsensual sexual conduct
1-15 that would constitute an offense under[:]
1-16 [(i)] Section 21.08, Penal Code (indecent
1-17 exposure)[;] or
1-18 [(ii)] Chapter 22, Penal Code (assaultive
1-19 offenses), committed by the person's caretaker, family member, or
1-20 other individual who has an ongoing relationship with the person.
1-21 SECTION 2. Section 48.0215(a), Human Resources Code, as
1-22 amended by Chapters 76, 303, and 1039, Acts of the 74th
1-23 Legislature, Regular Session, 1995, is amended to read as follows:
1-24 (a) The department shall file an application under Section
2-1 682 or 875 [Chapter XIII], [of the] Texas Probate Code, to be
2-2 appointed guardian of the person or [and] estate or both of an
2-3 individual who is a minor, is a conservatee of the department, and,
2-4 because of a physical or mental condition, will be substantially
2-5 unable to provide food, clothing, or shelter for himself or
2-6 herself, to care for the individual's own physical health, or to
2-7 manage the individual's own financial affairs when the individual
2-8 becomes an adult. If a less restrictive alternative to
2-9 guardianship is available for an individual, the department shall
2-10 pursue the alternative instead of applying for appointment as a
2-11 guardian.
2-12 SECTION 3. Section 48.0215, Human Resources Code, is amended
2-13 by amending Subsection (b) and adding Subsection (e) to read as
2-14 follows:
2-15 (b) As a last resort, the department may apply to be
2-16 appointed guardian of the person or estate of an elderly or
2-17 disabled person found by the department to be in a state of abuse,
2-18 neglect, or exploitation, and who, because of a physical or mental
2-19 condition, will be substantially unable to provide food, clothing,
2-20 or shelter for himself or herself, to care for the individual's own
2-21 physical health, or to manage the individual's own financial
2-22 affairs. A representative of the department shall take the oath
2-23 required by the Texas Probate Code on behalf of the department if
2-24 the department is appointed guardian. If the department knows that
2-25 an individual is willing and able to serve as the guardian, the
2-26 department may inform the court of that individual's willingness
2-27 and ability.
3-1 (e) The department may not be required to pay fees
3-2 associated with the appointment of a guardian ad litem or attorney
3-3 ad litem.
3-4 SECTION 4. Section 48.036, Human Resources Code, is amended
3-5 by amending Subsection (a) and adding Subsection (c) to read as
3-6 follows:
3-7 (a) Except as prescribed by Section 48.082, a person having
3-8 [reasonable] cause to believe that an elderly or disabled person is
3-9 in the state of abuse, exploitation, or neglect shall report the
3-10 information required by Subsection (b) immediately to the
3-11 department.
3-12 (c) The duty imposed by Subsection (a) applies without
3-13 exception to a person whose professional communications are
3-14 generally confidential, including an attorney, clergy member,
3-15 medical practitioner, social worker, and mental health
3-16 professional.
3-17 SECTION 5. Subchapter C, Chapter 48, Human Resources Code,
3-18 is amended by adding Section 48.0362 to read as follows:
3-19 Sec. 48.0362. FALSE REPORT; PENALTY. A person commits an
3-20 offense if the person knowingly or intentionally reports
3-21 information as provided in this chapter that the person knows is
3-22 false or lacks factual foundation. An offense under this section
3-23 is a Class B misdemeanor.
3-24 SECTION 6. Section 48.037, Human Resources Code, is amended
3-25 by adding Subsection (c) to read as follows:
3-26 (c) The department by rule may assign priorities and
3-27 prescribe investigative procedures for conducting investigations
4-1 according to the degree of severity and immediacy of the alleged
4-2 harm to the individual. Notwithstanding Subsection (a), the
4-3 department's priorities and procedures may provide that an
4-4 investigation is not required to be initiated within 24 hours in
4-5 all cases. This subsection does not apply to investigations
4-6 conducted under Subchapter E.
4-7 SECTION 7. Section 48.101, Human Resources Code, is amended
4-8 to read as follows:
4-9 Sec. 48.101. Confidentiality and Disclosure of Information;
4-10 Agency Exchange of Information. (a) The following information is
4-11 confidential and not subject to disclosure under Chapter 552,
4-12 Government Code:
4-13 (1) a report of abuse, neglect, or exploitation made
4-14 under this chapter;
4-15 (2) the identity of the person making the report; and
4-16 (3) except as provided by this section, all files,
4-17 reports, records, communications, and working papers used or
4-18 developed in an investigation made under this chapter or in
4-19 providing services as a result of an investigation.
4-20 (b) Confidential information may be disclosed only for a
4-21 purpose consistent with this chapter and as provided by department
4-22 or investigating state agency rule and applicable federal law.
4-23 (c) A court may order disclosure of confidential information
4-24 only if:
4-25 (1) a motion is filed with the court requesting
4-26 release of the information and a hearing on that request;
4-27 (2) notice of that hearing is served on the department
5-1 or investigating state agency and each interested party; and
5-2 (3) the court determines after the hearing and an in
5-3 camera review of the information that disclosure is essential to
5-4 the administration of justice and will not endanger the life or
5-5 safety of any individual who:
5-6 (A) is the subject of a report of abuse,
5-7 neglect, or exploitation;
5-8 (B) makes a report of abuse, neglect, or
5-9 exploitation; or
5-10 (C) participates in an investigation of reported
5-11 abuse, neglect, or exploitation.
5-12 (d) The department or investigating state agency by rule
5-13 shall provide for the release on request to a person who is the
5-14 subject of a report of abuse, neglect, or exploitation or to that
5-15 person's legal representative of otherwise confidential information
5-16 relating to that report. The department or investigating state
5-17 agency shall edit the information before release to protect the
5-18 confidentiality of information relating to the reporter's identity
5-19 and to protect any other individual whose safety or welfare may be
5-20 endangered by disclosure.
5-21 (e) The department or investigating state agency may adopt
5-22 rules relating to the release of information contained in the
5-23 record of a deceased individual who was the subject of an
5-24 investigation conducted by [to whom] the department or
5-25 investigating state agency [has provided protective services]. The
5-26 rules must be consistent with the purposes of this chapter and any
5-27 applicable state or federal law.
6-1 (f) The department or investigating state agency may
6-2 establish procedures to exchange with another state agency or
6-3 governmental entity information that is necessary for the
6-4 department, state [or the] agency, or entity to properly execute
6-5 its respective duties and responsibilities to provide services to
6-6 elderly or disabled persons under this chapter or other law. An
6-7 exchange of information under this subsection does not affect
6-8 whether the information is subject to disclosure under Chapter 552,
6-9 Government Code.
6-10 SECTION 8. Section 48.103(a), Human Resources Code, is
6-11 amended to read as follows:
6-12 (a) A person, including a guardian and notwithstanding
6-13 Section 675, Texas Probate Code, may not interfere with:
6-14 (1) an investigation by the department or by a
6-15 protective services agency of alleged abuse, neglect, or
6-16 exploitation of an elderly or disabled person; or
6-17 (2) the provision of protective services to an elderly
6-18 or disabled person.
6-19 SECTION 9. Section 700, Texas Probate Code, is amended to
6-20 read as follows:
6-21 Sec. 700. Oath of Guardian. (a) The guardian shall take an
6-22 oath to discharge faithfully the duties of guardian for the person
6-23 or estate, or both, of a ward.
6-24 (b) A representative of the Department of Protective and
6-25 Regulatory Services shall take the oath required by Subsection (a)
6-26 of this section if the department is appointed guardian.
6-27 SECTION 10. This Act takes effect September 1, 1997.
7-1 SECTION 11. The importance of this legislation and the
7-2 crowded condition of the calendars in both houses create an
7-3 emergency and an imperative public necessity that the
7-4 constitutional rule requiring bills to be read on three several
7-5 days in each house be suspended, and this rule is hereby suspended.