By Wise, Greenberg, Madden, Howard H.B. No. 2250
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to child protective services provided by the Department of
1-3 Protective and Regulatory Services.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 261.105(a), Family Code, is amended to
1-6 read as follows:
1-7 (a) All reports received by a local or state law enforcement
1-8 agency that allege abuse or neglect by a person responsible for a
1-9 child's care, custody, or welfare shall be referred immediately to
1-10 the department or the designated agency.
1-11 SECTION 2. Section 261.301(a), Family Code, is amended to
1-12 read as follows:
1-13 (a) With assistance from the appropriate state or local law
1-14 enforcement agency, the [The] department or designated agency shall
1-15 make a prompt and thorough investigation of a report of child
1-16 abuse or neglect allegedly committed by a person responsible for a
1-17 child's care, custody, or welfare. The department shall inform any
1-18 local or state law enforcement agency, including the office of the
1-19 district attorney in the county in which the child resides, is
1-20 located, or was located at the time of the reported incident, of
1-21 all reports concerning the abuse or neglect of a child.
1-22 SECTION 3. Section 411.114, Government Code, is amended to
1-23 read as follows:
1-24 Sec. 411.114. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
2-1 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. (a)(1) In this
2-2 subsection the terms "child," "child-care facility," and "family
2-3 home" have the meanings assigned by Section 42.002, Human Resources
2-4 Code.
2-5 (2) The Department of Protective and Regulatory
2-6 Services shall [is entitled to] obtain from the department criminal
2-7 history record information maintained by the department that
2-8 relates to a person who is:
2-9 (A) an applicant for a license, registration, or
2-10 certification under Chapter 42, Human Resources Code;
2-11 (B) an owner or employee of or an applicant for
2-12 employment by a child-care facility or family home licensed,
2-13 registered, or certified under that chapter;
2-14 (C) a resident of a registered family home, but
2-15 not a child in the home's care or a parent of the child;
2-16 (D) an applicant for a position with the
2-17 Department of Protective and Regulatory Services, the duties of
2-18 which include direct delivery of protective services to children,
2-19 elderly persons, or persons with a disability;
2-20 (E) [a volunteer or applicant volunteer with a
2-21 local affiliate in this state of Big Brothers/Big Sisters of
2-22 America;]
2-23 [(F) a volunteer or applicant volunteer with the
2-24 "I Have a Dream/Houston" program;]
2-25 [(G)] an employee of, an applicant for
2-26 employment with, or a volunteer or an applicant volunteer with a
2-27 business entity or person that contracts with the Department of
3-1 Protective and Regulatory Services to provide direct delivery of
3-2 protective services to children, elderly persons, or persons with a
3-3 disability, if the person's duties or responsibilities include
3-4 direct contact with children, elderly persons, or persons with a
3-5 disability;
3-6 (F) [(H)] a volunteer or applicant volunteer
3-7 with the Department of Protective and Regulatory Services;
3-8 (G) [(I) a volunteer or applicant volunteer with
3-9 an organization that provides court-appointed special advocates for
3-10 abused or neglected children;]
3-11 [(J)] a person providing or applying to provide
3-12 adoptive or foster care for children in the care of the Department
3-13 of Protective and Regulatory Services and other adults living with
3-14 that person in the residence in which the child will reside;
3-15 (H) [(K)] a Department of Protective and
3-16 Regulatory Services employee who is engaged in the direct delivery
3-17 of protective services to children, elderly persons, or persons
3-18 with a disability;
3-19 (I) [(L)] a person who is the subject of a
3-20 report the department receives alleging that the person has abused
3-21 or neglected a child, an elderly person, or a person with a
3-22 disability, provided that report has proven to have merit;
3-23 (J) [(M)] a relative providing or applying to
3-24 provide in-home care for a child in the care of the Department of
3-25 Protective and Regulatory Services and other adults living with
3-26 that relative in the residence in which the child will reside; or
3-27 (K) [(N)] a person providing child care for a
4-1 child who is in the care of the Department of Protective and
4-2 Regulatory Services and who is or will be receiving adoptive,
4-3 foster, or in-home care[;]
4-4 [(O) a person providing, at the request of the
4-5 child's parent, in-home care for a child who is the subject of a
4-6 report alleging the child has been abused or neglected; or]
4-7 [(P) a volunteer or applicant volunteer with a
4-8 Texas chapter of the Make-a-Wish Foundation of America].
4-9 (3) The Department of Protective and Regulatory
4-10 Services is entitled to obtain from the department criminal history
4-11 record information maintained by the department that relates to a
4-12 person who is:
4-13 (A) a volunteer or applicant volunteer with a
4-14 local affiliate in this state of Big Brothers/Big Sisters of
4-15 America;
4-16 (B) a volunteer or applicant volunteer with the
4-17 "I Have a Dream/Houston" program;
4-18 (C) a volunteer or applicant volunteer with an
4-19 organization that provides court-appointed special advocates for
4-20 abused or neglected children;
4-21 (D) a person providing, at the request of the
4-22 child's parent, in-home care for a child who is the subject of a
4-23 report alleging the child has been abused or neglected;
4-24 (E) a volunteer or applicant volunteer with a
4-25 Texas chapter of the Make-a-Wish Foundation of America; or
4-26 (F) a person providing, at the request of the
4-27 child's parent, in-home care for a child only if the person gives
5-1 written consent to the release and disclosure of the information.
5-2 (4) Subject to Section 411.087, the department shall:
5-3 (A) obtain through the Federal Bureau of
5-4 Investigation criminal history record information maintained or
5-5 indexed by that bureau that pertains to a person described by
5-6 Subdivision (2); or
5-7 (B) obtain from any other criminal justice
5-8 agency in this state criminal history record information maintained
5-9 by that criminal justice agency that relates to a person described
5-10 by Subdivision (2).
5-11 (5) The Department of Protective and Regulatory
5-12 Services may not use the authority granted under this section to
5-13 harass an employee or volunteer. The Board of Protective and
5-14 Regulatory Services shall adopt rules to prevent the harassment of
5-15 an employee or volunteer through the request and use of criminal
5-16 records.
5-17 (6) [(4)] Criminal history record information obtained
5-18 by the Department of Protective and Regulatory Services under this
5-19 subsection may not be released to any person except:
5-20 (A) on court order;
5-21 (B) with the consent of the person who is the
5-22 subject of the criminal history record information;
5-23 (C) for purposes of an administrative hearing
5-24 held by the Department of Protective and Regulatory Services
5-25 concerning the person who is the subject of the criminal history
5-26 record information; or
5-27 (D) as provided by Subdivision (7) [(5)].
6-1 (7) [(5)] The Department of Protective and Regulatory
6-2 Services is not prohibited from releasing criminal history record
6-3 information obtained under this subsection to:
6-4 (A) the person who is the subject of the
6-5 criminal history record information;
6-6 (B) a child-care facility that employs or is
6-7 considering employing the person who is the subject of the criminal
6-8 history record information;
6-9 (C) a person or business entity described by
6-10 Subsection (a)(2)(E) [(a)(2)(G)] who uses or intends to use the
6-11 services of the volunteer or employs or is considering employing
6-12 the person who is the subject of the criminal history record
6-13 information; or
6-14 (D) an adult residing with a child and the
6-15 person who is the subject of the criminal history record
6-16 information, if the Department of Protective and Regulatory
6-17 Services determines that the release of information to the adult is
6-18 necessary to ensure the safety or welfare of the child or adult.
6-19 (b) The failure or refusal to provide a complete set of
6-20 fingerprints or a complete name on request constitutes good cause
6-21 for dismissal or refusal to hire, as applicable, with regard to a
6-22 volunteer of or an employee or applicant for permanent or temporary
6-23 employment with the department, or a facility, home, business, or
6-24 other entity, if the volunteer position, employment, or potential
6-25 employment involves direct interaction with or the opportunity to
6-26 interact and associate with children.
6-27 (c) The Department of Protective and Regulatory Services may
7-1 charge an organization or person that requests criminal history
7-2 record information under Subsection (a)(3) [(a)(2)] a fee in an
7-3 amount necessary to cover the costs of obtaining the information on
7-4 the organization's or person's behalf.
7-5 SECTION 4. Section 40.052, Human Resources Code, is amended
7-6 to read as follows:
7-7 Sec. 40.052. DUTIES RELATING TO DELIVERY OF SERVICES. The
7-8 department shall:
7-9 (1) propose and implement service delivery standards
7-10 for departmental programs;
7-11 (2) provide training and technical assistance to
7-12 regional and local service providers;
7-13 (3) provide joint training on the investigation of
7-14 reports of child abuse or neglect to department personnel and law
7-15 enforcement personnel in appropriate state and local law
7-16 enforcement agencies;
7-17 (4) develop and implement systems for monitoring
7-18 departmental program performance and service delivery;
7-19 (5) [(4)] promote innovative service delivery at the
7-20 local level; and
7-21 (6) [(5)] cooperate and coordinate as appropriate with
7-22 other governmental entities in the delivery of services.
7-23 SECTION 5. Subchapter C, Chapter 40, Human Resources Code,
7-24 is amended by adding Sections 40.0522 and 40.0523 to read as
7-25 follows:
7-26 Sec. 40.0522. COMMUNITY EDUCATION AND TRAINING RELATING TO
7-27 CHILD ABUSE OR NEGLECT. (a) The department shall assure the
8-1 availability of community education programs designed to improve
8-2 participation of the general public in preventing, identifying, and
8-3 treating cases of child abuse or neglect, including parent
8-4 education programs.
8-5 (b) The department shall assure that training concerning
8-6 child abuse or neglect is available to professionals who are
8-7 required by law to report, investigate, or litigate those cases.
8-8 Sec. 40.0523. MULTIDISCIPLINARY TEAMS. (a) To the extent
8-9 possible, the department shall establish multidisciplinary teams to
8-10 provide services relating to a report of child abuse or neglect. A
8-11 multidisciplinary team shall include professionals in parent
8-12 education and in each professional discipline necessary to provide
8-13 comprehensive medical and psychological services to a child who is
8-14 the subject of a report and to members of the child's household.
8-15 (b) Members of a multidisciplinary team may exchange
8-16 information relating to a report of child abuse or neglect as
8-17 necessary to facilitate a thorough investigation of the report.
8-18 The department may adopt rules governing the exchange of
8-19 information between team members.
8-20 (c) A multidisciplinary team established under this section
8-21 shall coordinate services provided by the department to a child and
8-22 to members of the child's household with services available from
8-23 other sources, including public and private agencies in the
8-24 community. The goal of the multidisciplinary team is to provide
8-25 the greatest range of services possible without duplication of
8-26 effort.
8-27 (d) The department shall establish a process by which
9-1 members of a multidisciplinary team are involved in the
9-2 department's development and implementation of procedures relating
9-3 to coordination of the department's child abuse or neglect services
9-4 with services provided by other public and private agencies.
9-5 SECTION 6. Section 40.061(a), Human Resources Code, is
9-6 amended to read as follows:
9-7 (a) A department employee, a member of a multidisciplinary
9-8 team established under Section 40.0523, or an authorized department
9-9 volunteer who performs a departmental duty or responsibility is
9-10 immune from civil or criminal liability for any act or omission
9-11 that relates to the duty or responsibility if the person acted in
9-12 good faith and within the scope of the person's authority.
9-13 SECTION 7. Subchapter C, Chapter 40, Human Resources Code,
9-14 is amended by adding Section 40.066 to read as follows:
9-15 Sec. 40.066. REQUIRED AFFIDAVIT FOR APPLICANTS FOR
9-16 EMPLOYMENT. (a) An applicant for temporary or permanent
9-17 employment with the department whose employment or potential
9-18 employment with the department involves direct interactions with or
9-19 the opportunity to interact and associate with children must
9-20 execute and submit the following affidavit with the application for
9-21 employment:
9-22 STATE OF____________
9-23 COUNTY OF____________
9-24 I swear or affirm under penalty of perjury that I do not now
9-25 and I have not at any time, either as an adult or as a juvenile:
9-26 1. Been convicted of;
9-27 2. Pleaded guilty to (whether or not resulting in a
10-1 conviction);
10-2 3. Pleaded nolo contendere or no contest to;
10-3 4. Admitted;
10-4 5. Had any judgment or order rendered against me (whether by
10-5 default or otherwise);
10-6 6. Entered into any settlement of an action or claim of;
10-7 7. Had any license, certification, employment, or volunteer
10-8 position suspended, revoked, terminated, or adversely affected
10-9 because of;
10-10 8. Been diagnosed as having or have been treated for any
10-11 mental or emotional condition arising from; or,
10-12 9. Resigned under threat of termination of employment or
10-13 volunteerism for;
10-14 10. Had a report of child abuse or neglect made and
10-15 substantiated against me for;
10-16 11. Have any pending criminal charges against me in this or
10-17 any other jurisdiction for;
10-18 Any conduct, matter, or thing (irrespective of formal name
10-19 thereof) constituting or involving (whether under criminal or civil
10-20 law of any jurisdiction):
10-21 1. Any felony;
10-22 2. Rape or other sexual assault;
10-23 3. Physical, sexual, emotional abuse and/or neglect of a
10-24 minor;
10-25 4. Incest;
10-26 5. Exploitation, including sexual, of a minor;
10-27 6. Sexual misconduct with a minor;
11-1 7. Molestation of a child;
11-2 8. Lewdness or indecent exposure;
11-3 9. Lewd and lascivious behavior;
11-4 10. Obscene or pornographic literature, photographs, or
11-5 videos;
11-6 11. Assault, battery, or any violent offense involving a
11-7 minor;
11-8 12. Endangerment of a child;
11-9 13. Any misdemeanor or other offense classification
11-10 involving a minor or to which a minor was a witness;
11-11 14. Unfitness as a parent or custodian;
11-12 15. Removing children from a state or concealing children in
11-13 violation of a court order;
11-14 16. Restrictions or limitations on contact or visitation
11-15 with children or minors;
11-16 17. Any type of child abduction; or,
11-17 18. Similar or related conduct, matters, or things.
11-18 Except the following (list all incidents, location,
11-19 description, and date) (if none, write NONE):
11-20 Signed________________________ Date______________.
11-21 Subscribed and sworn to (or affirmed) before me this______day of
11-22 ________________,_________.
11-23 Signature of notarial officer_____________________________________.
11-24 (seal, if any, of notarial officer)
11-25 My commission expires:___________
11-26 (b) The failure or refusal of the applicant to sign or
11-27 provide the affidavit constitutes good cause for refusal to hire
12-1 the applicant.
12-2 SECTION 8. Subchapter C, Chapter 42, Human Resources Code,
12-3 is amended by adding Sections 42.0425 and 42.0426 to read as
12-4 follows:
12-5 Sec. 42.0425. TRAINING OF PERSONNEL. A licensed facility or
12-6 registered family home shall provide training for staff members in:
12-7 (1) the recognition of symptoms of child abuse,
12-8 neglect, and sexual molestation and the responsibility and
12-9 procedure of reporting suspected occurrences of child abuse,
12-10 neglect, and sexual molestation to the department or other
12-11 appropriate entity;
12-12 (2) the application of first aid; and
12-13 (3) the prevention and spread of communicable
12-14 diseases.
12-15 Sec. 42.0426. PARENTAL VISITATION. All areas of a licensed
12-16 facility must be accessible to a parent of a child who is receiving
12-17 care at the facility if the parent visits the child during the
12-18 facility's hours of operation.
12-19 SECTION 9. Sections 42.044(a), (b), and (c), Human Resources
12-20 Code, are amended to read as follows:
12-21 (a) An authorized representative of the division may visit a
12-22 facility or registered family home during operating hours to
12-23 investigate, inspect, and evaluate.
12-24 (b) The division shall inspect all licensed or certified
12-25 facilities at least once a year and may inspect other facilities or
12-26 registered family homes as necessary. At least one of the annual
12-27 visits must be unannounced and all may be unannounced.
13-1 (c) The division must investigate a facility when a
13-2 complaint is received. The department shall investigate a
13-3 registered family home when the department receives a complaint of
13-4 abuse or neglect, as defined by Section 261.001, Family Code, of a
13-5 child at the home. The division representative must notify the
13-6 facility's director or authorized representative when a complaint
13-7 is being investigated and report in writing the results of the
13-8 investigation to the director or the director's authorized
13-9 representative.
13-10 SECTION 10. Subchapter C, Chapter 42, Human Resources Code,
13-11 is amended by adding Section 42.0445 to read as follows:
13-12 Sec. 42.0445. REQUIRED BACKGROUND SEARCH. (a) Before the
13-13 division issues or renews a license, registration, or certification
13-14 under this subchapter, the division shall search the central
13-15 registry of reported cases of child abuse or neglect established
13-16 under Section 261.002, Family Code, to determine whether the
13-17 applicant or the owner or an employee of the facility or family
13-18 home is listed in the registry as a person who abused or neglected
13-19 a child.
13-20 (b) The department may adopt rules to implement this
13-21 section.
13-22 SECTION 11. Section 42.052, Human Resources Code, is amended
13-23 by amending Subsection (f) and adding Subsection (h) to read as
13-24 follows:
13-25 (f) A family home may not place a public advertisement that
13-26 uses the title "registered family home" or any variation of the
13-27 phrase unless the home is registered with the division under this
14-1 chapter. Any public advertisement for a registered family home
14-2 which uses the title "registered family home" must contain a
14-3 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
14-4 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
14-5 LICENSED OR REGULARLY INSPECTED."
14-6 (h) The department by rule may provide for denial of an
14-7 application or renewal for registration of a family home or may
14-8 revoke a family home's registration based on the results of a
14-9 background or criminal history check.
14-10 SECTION 12. Subchapter C, Chapter 42, Human Resources Code,
14-11 is amended by adding Sections 42.057 and 42.058 to read as
14-12 follows:
14-13 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
14-14 CHECKS. (a) In accordance with rules adopted by the department,
14-15 the operator of a family home shall, when the operator applies for
14-16 registration and at least once during each 24 months after
14-17 registration, submit to the department for use in conducting
14-18 background and criminal history checks:
14-19 (1) the name of the owner and each person employed at
14-20 the family home; and
14-21 (2) the name of each resident of the home and any
14-22 other person who will regularly or frequently be staying or working
14-23 at the home while children are being provided care.
14-24 (b) The department shall conduct background and criminal
14-25 history checks using:
14-26 (1) the information provided under Subsection (a);
14-27 (2) the information made available by the Department
15-1 of Public Safety under Section 411.114, Government Code; and
15-2 (3) the department's records of reported abuse and
15-3 neglect.
15-4 (c) The department by rule shall require a family home to
15-5 pay to the department a fee in an amount not to exceed the
15-6 administrative costs the department incurs in conducting a
15-7 background and criminal history check under this section.
15-8 Sec. 42.058. REQUIRED AFFIDAVIT FOR APPLICANTS FOR
15-9 EMPLOYMENT WITH FACILITY OR REGISTERED FAMILY HOME. (a) An
15-10 applicant for temporary or permanent employment with a licensed
15-11 facility or registered family home whose employment or potential
15-12 employment with the facility or home involves direct interactions
15-13 with or the opportunity to interact and associate with children
15-14 must execute and submit the following affidavit with the
15-15 application for employment:
15-16 STATE OF____________
15-17 COUNTY OF____________
15-18 I swear or affirm under penalty of perjury that I do not now
15-19 and I have not at any time, either as an adult or as a juvenile:
15-20 1. Been convicted of;
15-21 2. Pleaded guilty to (whether or not resulting in a
15-22 conviction);
15-23 3. Pleaded nolo contendere or no contest to;
15-24 4. Admitted;
15-25 5. Had any judgment or order rendered against me (whether by
15-26 default or otherwise);
15-27 6. Entered into any settlement of an action or claim of;
16-1 7. Had any license, certification, employment, or volunteer
16-2 position suspended, revoked, terminated, or adversely affected
16-3 because of;
16-4 8. Been diagnosed as having or have been treated for any
16-5 mental or emotional condition arising from; or,
16-6 9. Resigned under threat of termination of employment or
16-7 volunteerism for;
16-8 10. Had a report of child abuse or neglect made and
16-9 substantiated against me for;
16-10 11. Have any pending criminal charges against me in this or
16-11 any other jurisdiction for;
16-12 Any conduct, matter, or thing (irrespective of formal name
16-13 thereof) constituting or involving (whether under criminal or civil
16-14 law of any jurisdiction):
16-15 1. Any felony;
16-16 2. Rape or other sexual assault;
16-17 3. Physical, sexual, emotional abuse and/or neglect of a
16-18 minor;
16-19 4. Incest;
16-20 5. Exploitation, including sexual, of a minor;
16-21 6. Sexual misconduct with a minor;
16-22 7. Molestation of a child;
16-23 8. Lewdness or indecent exposure;
16-24 9. Lewd and lascivious behavior;
16-25 10. Obscene or pornographic literature, photographs, or
16-26 videos;
16-27 11. Assault, battery, or any violent offense involving a
17-1 minor;
17-2 12. Endangerment of a child;
17-3 13. Any misdemeanor or other offense classification
17-4 involving a minor or to which a minor was a witness;
17-5 14. Unfitness as a parent or custodian;
17-6 15. Removing children from a state or concealing children in
17-7 violation of a court order;
17-8 16. Restrictions or limitations on contact or visitation
17-9 with children or minors;
17-10 17. Any type of child abduction; or,
17-11 18. Similar or related conduct, matters, or things.
17-12 Except the following (list all incidents, location,
17-13 description, and date) (if none, write NONE)
17-14 Signed________________________ Date______________.
17-15 Subscribed and sworn to (or affirmed) before me this_______day of
17-16 ________________,___________.
17-17 Signature of notarial officer____________________________________.
17-18 (seal, if any, of notarial officer)
17-19 My commission expires:____________
17-20 (b) The failure or refusal of the applicant to sign or
17-21 provide the affidavit constitutes good cause for refusal to hire
17-22 the applicant.
17-23 SECTION 13. Section 42.072(a), Human Resources Code, is
17-24 amended to read as follows:
17-25 (a) The division may deny or revoke the license or
17-26 certification of approval of a facility that does not comply with
17-27 the requirements of this chapter, the standards and rules of the
18-1 department, or the specific terms of the license or certification.
18-2 The department may deny or revoke the license or certification of a
18-3 facility based on the results of a background or criminal history
18-4 check.
18-5 SECTION 14. This Act takes effect immediately, except that
18-6 Sections 3 and 7-13 of this Act take effect September 1, 1997.
18-7 SECTION 15. The importance of this legislation and the
18-8 crowded condition of the calendars in both houses create an
18-9 emergency and an imperative public necessity that the
18-10 constitutional rule requiring bills to be read on three several
18-11 days in each house be suspended, and this rule is hereby suspended,
18-12 and that this Act take effect and be in force according to its
18-13 terms, and it is so enacted.