Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Naishtat H.B. No. 1850
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the protective services for the elderly.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 48.002(2), Human Resources Code, is
1-5 amended to read as follows:
1-6 (2) "Abuse" means:
1-7 (A) the negligent or willful infliction of
1-8 injury, unreasonable confinement, intimidation, or cruel punishment
1-9 with resulting physical or emotional harm or pain by a guardian,
1-10 caretaker, member of the elderly or disabled person's household as
1-11 defined by Chapter 71, Family Code, person with whom the elderly or
1-12 disabled person cohabits or other individual who has a regular
1-13 ongoing relationship with the elderly or disabled person; or
1-14 (B) sexual abuse, including any involuntary or
1-15 nonconsensual sexual conduct by a guardian, caretaker, member of
1-16 the elderly or disabled person's household as defined by Chapter
1-17 71, Family Code, person with whom the elderly or disabled person
1-18 cohabits or other individual who has a regular ongoing relationship
1-19 with the elderly or disabled person that would constitute an
1-20 offense under:
1-21 (i) Section 21.08, Penal Code (indecent
1-22 exposure); or
1-23 (ii) Chapter 22, Penal Code (assaultive
1-24 offenses).
2-1 SECTION 2. Amend Subsections 48.0215(a) and (b), Human
2-2 Resources Code, and add a new Subsection (e) to read as follows:
2-3 (a) The department shall file an application under Section
2-4 682 or 875 of the Texas Probate Code to be appointed guardian of
2-5 the person or [and] estate or both of an individual who is a minor,
2-6 is a conservatee of the department, and, because of a physical or
2-7 mental condition, will be substantially unable to provide food,
2-8 clothing, or shelter for himself or herself, to care for the
2-9 individual's own physical health, or to manage the individual's own
2-10 financial affairs when the individual becomes an adult. If a less
2-11 restrictive alternative to full guardianship is available for such
2-12 persons who are placed in state schools, the department may utilize
2-13 such alternative in lieu of seeking appointment as full guardian.
2-14 (b) As a last resort, the department may apply to be
2-15 appointed guardian of the person or estate of an elderly or
2-16 disabled person who the department finds to be in a state of abuse,
2-17 neglect or exploitation, and[,] because of a physical or mental
2-18 condition, will be substantially unable to provide food, clothing,
2-19 or shelter for himself or herself, to care for the individual's own
2-20 physical health, or to manage the individual's own financial
2-21 affairs. A representative of the department shall take the oath
2-22 required by the Texas Probate Code on behalf of the department if
2-23 the department is appointed guardian. If the department knows that
2-24 an individual is willing and able to serve as the guardian, the
2-25 department may inform the court of that individual's willingness
2-26 and ability.
2-27 (e) The department shall not be liable to pay fees relating
2-28 to the determination of appointing, or the appointment of, an
2-29 attorney or guardian ad litem, without regard to whether the
2-30 department is appointed guardian.
3-1 SECTION 3. Amend Section 48.036, Human Resources Code, by
3-2 amending Subsection (a) and adding a new Subsection (c) to read as
3-3 follows:
3-4 (a) Except as prescribed by Section 48.082, a person having
3-5 [reasonable] cause to believe that an elderly or disabled person's
3-6 physical or mental health or welfare has been or may be adversely
3-7 affected by [person is in the state of] abuse, exploitation, or
3-8 neglect by any person shall immediately make a report [the
3-9 information] to the department as provided by this subchapter.
3-10 (c) The requirement to report under this section applies
3-11 without exception to an individual whose personal communications
3-12 may otherwise be privileged, including an attorney, a member of the
3-13 clergy, a medical practitioner, a social worker, and a mental
3-14 health professional.
3-15 SECTION 4. Amend Section 48.037, Human Resources Code, by
3-16 adding a new Subsection (c) to read as follows:
3-17 (c) The department may by rule assign priorities and
3-18 prescribe investigative procedures for investigations.
3-19 SECTION 5. Amend Section 48.038, Human Resources Code, to
3-20 read as follows:
3-21 Sec. 48.038. Implementation of Investigation. (a) In an
3-22 investigation the department [or state agency, as appropriate,]
3-23 shall determine:
3-24 (1) whether the person needs protective services from
3-25 the department;
3-26 (2) what services are needed;
3-27 (3) whether services are available from the
3-28 department[, state agency] or in the community and how they can be
3-29 provided;
3-30 (4) whether the person would be capable of obtaining
4-1 services for himself and could bear the cost or would be eligible
4-2 for service from the department [or state agency];
4-3 (5) whether a caretaker would be willing to provide
4-4 services or would agree to their provisions;
4-5 (6) whether the elderly or disabled person desires the
4-6 services; and
4-7 (7) other pertinent data.
4-8 (b) An investigation by the department [or a state agency]
4-9 shall include an interview with the elderly or disabled person, if
4-10 appropriate, and with persons thought to have knowledge of the
4-11 circumstances. The investigation may include an interview with an
4-12 alleged juvenile perpetrator of the alleged abuse, neglect, or
4-13 exploitation. The department [or state agency] may conduct an
4-14 interview under this subsection in private or may include any
4-15 person the department or agency determines is necessary.
4-16 SECTION 6. Add a new Section 48.0395, Human Resources Code,
4-17 to read as follows:
4-18 Sec. 48.0395. FALSE REPORT; PENALTY. A person commits an
4-19 offense if the person knowingly or intentionally makes a report as
4-20 provided in this chapter and the person knows the report is false
4-21 or lacks factual foundation. An offense under this section is a
4-22 class B misdemeanor.
4-23 SECTION 7. Amend Subsection 48.103(a), Human Resources Code,
4-24 to read as follows:
4-25 (a) A person, including a legal guardian, may not interfere
4-26 with:
4-27 (1) an investigation by the department or by a
4-28 protective services agency of alleged abuse, neglect, or
4-29 exploitation of an elderly or disabled person; or
4-30 (2) the provision of protective services to an elderly
5-1 or disabled person.
5-2 SECTION 8. Amend Section 700, Probate Code, by delineating
5-3 the Section as Subsection (a) and adding a new Subsection (b) to
5-4 read as follows:
5-5 (a) The guardian shall take an oath to discharge faithfully
5-6 the duties of guardian for the person or estate, or both, of the
5-7 ward.
5-8 (b) A representative of the department shall take the oath
5-9 required by the Texas Probate Code on behalf of the department if
5-10 the department is appointed guardian.
5-11 SECTION 9. This Act takes effect September 1, 1997.
5-12 SECTION 10. The importance of this legislation and the
5-13 crowded condition of the calendars in both houses create an
5-14 emergency and an imperative public necessity that the
5-15 constitutional rule requiring bills to be read on three several
5-16 days in each house be suspended, and this rule is hereby suspended.