75R13187 CLG-D
By Wise H.B. No. 2663
Substitute the following for H.B. No. 2663:
By McReynolds C.S.H.B. No. 2663
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to background and criminal history checks conducted on
1-3 certain employees, potential employees, and volunteers who directly
1-4 interact with or have the opportunity to associate with children.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 411.114, Government Code, is amended to
1-7 read as follows:
1-8 Sec. 411.114. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
1-9 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. (a)(1) In this
1-10 subsection the terms "child," "child-care facility," and "family
1-11 home" have the meanings assigned by Section 42.002, Human Resources
1-12 Code.
1-13 (2) The Department of Protective and Regulatory
1-14 Services shall [is entitled to] obtain from the department criminal
1-15 history record information maintained by the department that
1-16 relates to a person who is:
1-17 (A) an applicant for a license, registration, or
1-18 certification under Chapter 42, Human Resources Code;
1-19 (B) an owner or employee of or an applicant for
1-20 employment by a child-care facility or family home licensed,
1-21 registered, or certified under that chapter;
1-22 (C) a resident of a registered family home, but
1-23 not a child in the home's care or a parent of the child;
1-24 (D) an applicant for a position with the
2-1 Department of Protective and Regulatory Services, the duties of
2-2 which include direct delivery of protective services to children,
2-3 elderly persons, or persons with a disability;
2-4 (E) [a volunteer or applicant volunteer with a
2-5 local affiliate in this state of Big Brothers/Big Sisters of
2-6 America;]
2-7 [(F) a volunteer or applicant volunteer with the
2-8 "I Have a Dream/Houston" program;]
2-9 [(G)] an employee of, an applicant for
2-10 employment with, or a volunteer or an applicant volunteer with a
2-11 business entity or person that contracts with the Department of
2-12 Protective and Regulatory Services to provide direct delivery of
2-13 protective services to children, elderly persons, or persons with a
2-14 disability, if the person's duties or responsibilities include
2-15 direct contact with children, elderly persons, or persons with a
2-16 disability;
2-17 (F) [(H)] a volunteer or applicant volunteer
2-18 with the Department of Protective and Regulatory Services;
2-19 (G) [(I) a volunteer or applicant volunteer with
2-20 an organization that provides court-appointed special advocates for
2-21 abused or neglected children;]
2-22 [(J)] a person providing or applying to provide
2-23 adoptive or foster care for children in the care of the Department
2-24 of Protective and Regulatory Services and other adults living with
2-25 that person in the residence in which the child will reside;
2-26 (H) [(K)] a Department of Protective and
2-27 Regulatory Services employee who is engaged in the direct delivery
3-1 of protective services to children, elderly persons, or persons
3-2 with a disability;
3-3 (I) [(L)] a person who is the subject of a
3-4 report the department receives alleging that the person has abused
3-5 or neglected a child, an elderly person, or a person with a
3-6 disability, provided that report has proven to have merit;
3-7 (J) [(M)] a relative providing or applying to
3-8 provide in-home care for a child in the care of the Department of
3-9 Protective and Regulatory Services and other adults living with
3-10 that relative in the residence in which the child will reside; or
3-11 (K) [(N)] a person providing child care for a
3-12 child who is in the care of the Department of Protective and
3-13 Regulatory Services and who is or will be receiving adoptive,
3-14 foster, or in-home care[;]
3-15 [(O) a person providing, at the request of the
3-16 child's parent, in-home care for a child who is the subject of a
3-17 report alleging the child has been abused or neglected; or]
3-18 [(P) a volunteer or applicant volunteer with a
3-19 Texas chapter of the Make-a-Wish Foundation of America].
3-20 (3) The Department of Protective and Regulatory
3-21 Services is entitled to obtain from the department criminal history
3-22 record information maintained by the department that relates to a
3-23 person who is:
3-24 (A) a volunteer or applicant volunteer with a
3-25 local affiliate in this state of Big Brothers/Big Sisters of
3-26 America;
3-27 (B) a volunteer or applicant volunteer with the
4-1 "I Have a Dream/Houston" program;
4-2 (C) a volunteer or applicant volunteer with an
4-3 organization that provides court-appointed special advocates for
4-4 abused or neglected children;
4-5 (D) a person providing, at the request of the
4-6 child's parent, in-home care for a child who is the subject of a
4-7 report alleging the child has been abused or neglected;
4-8 (E) a volunteer or applicant volunteer with a
4-9 Texas chapter of the Make-a-Wish Foundation of America; or
4-10 (F) a person providing, at the request of the
4-11 child's parent, in-home care for a child only if the person gives
4-12 written consent to the release and disclosure of the information.
4-13 (4) Subject to Section 411.087, the department shall:
4-14 (A) obtain through the Federal Bureau of
4-15 Investigation criminal history record information maintained or
4-16 indexed by that bureau that pertains to a person described by
4-17 Subdivision (2); or
4-18 (B) obtain from any other criminal justice
4-19 agency in this state criminal history record information maintained
4-20 by that criminal justice agency that relates to a person described
4-21 by Subdivision (2).
4-22 (5) The Department of Protective and Regulatory
4-23 Services may not use the authority granted under this section to
4-24 harass an employee or volunteer. The Board of Protective and
4-25 Regulatory Services shall adopt rules to prevent the harassment of
4-26 an employee or volunteer through the request and use of criminal
4-27 records.
5-1 (6) [(4)] Criminal history record information obtained
5-2 by the Department of Protective and Regulatory Services under this
5-3 subsection may not be released to any person except:
5-4 (A) on court order;
5-5 (B) with the consent of the person who is the
5-6 subject of the criminal history record information;
5-7 (C) for purposes of an administrative hearing
5-8 held by the Department of Protective and Regulatory Services
5-9 concerning the person who is the subject of the criminal history
5-10 record information; or
5-11 (D) as provided by Subdivision (7) [(5)].
5-12 (7) [(5)] The Department of Protective and Regulatory
5-13 Services is not prohibited from releasing criminal history record
5-14 information obtained under this subsection to:
5-15 (A) the person who is the subject of the
5-16 criminal history record information;
5-17 (B) a child-care facility that employs or is
5-18 considering employing the person who is the subject of the criminal
5-19 history record information;
5-20 (C) a person or business entity described by
5-21 Subsection (a)(2)(E) [(a)(2)(G)] who uses or intends to use the
5-22 services of the volunteer or employs or is considering employing
5-23 the person who is the subject of the criminal history record
5-24 information; or
5-25 (D) an adult residing with a child and the
5-26 person who is the subject of the criminal history record
5-27 information, if the Department of Protective and Regulatory
6-1 Services determines that the release of information to the adult is
6-2 necessary to ensure the safety or welfare of the child or adult.
6-3 (b) The failure or refusal to provide a complete set of
6-4 fingerprints or a complete name on request constitutes good cause
6-5 for dismissal or refusal to hire, as applicable, with regard to a
6-6 volunteer of or an employee or applicant for permanent or temporary
6-7 employment with the department, or a facility, home, business, or
6-8 other entity, if the volunteer position, employment, or potential
6-9 employment involves direct interaction with or the opportunity to
6-10 interact and associate with children.
6-11 (c) The Department of Protective and Regulatory Services may
6-12 charge an organization or person that requests criminal history
6-13 record information under Subsection (a)(3) [(a)(2)] a fee in an
6-14 amount necessary to cover the costs of obtaining the information on
6-15 the organization's or person's behalf.
6-16 SECTION 2. Subchapter C, Chapter 40, Human Resources Code,
6-17 is amended by adding Section 40.066 to read as follows:
6-18 Sec. 40.066. REQUIRED AFFIDAVIT FOR APPLICANTS FOR
6-19 EMPLOYMENT. (a) An applicant for temporary or permanent
6-20 employment with the department whose employment or potential
6-21 employment with the department involves direct interactions with or
6-22 the opportunity to interact and associate with children must
6-23 execute and submit the following affidavit with the application for
6-24 employment:
6-25 STATE OF____________
6-26 COUNTY OF____________
6-27 I swear or affirm under penalty of perjury that I do not now
7-1 and I have not at any time, either as an adult or as a juvenile:
7-2 1. Been convicted of;
7-3 2. Pleaded guilty to (whether or not resulting in a
7-4 conviction);
7-5 3. Pleaded nolo contendere or no contest to;
7-6 4. Admitted;
7-7 5. Had any judgment or order rendered against me (whether by
7-8 default or otherwise);
7-9 6. Entered into any settlement of an action or claim of;
7-10 7. Had any license, certification, employment, or volunteer
7-11 position suspended, revoked, terminated, or adversely affected
7-12 because of;
7-13 8. Been diagnosed as having or have been treated for any
7-14 mental or emotional condition arising from; or,
7-15 9. Resigned under threat of termination of employment or
7-16 volunteerism for;
7-17 10. Had a report of child abuse or neglect made and
7-18 substantiated against me for;
7-19 11. Have any pending criminal charges against me in this or
7-20 any other jurisdiction for;
7-21 Any conduct, matter, or thing (irrespective of formal name
7-22 thereof) constituting or involving (whether under criminal or civil
7-23 law of any jurisdiction):
7-24 1. Any felony;
7-25 2. Rape or other sexual assault;
7-26 3. Physical, sexual, emotional abuse and/or neglect of a
7-27 minor;
8-1 4. Incest;
8-2 5. Exploitation, including sexual, of a minor;
8-3 6. Sexual misconduct with a minor;
8-4 7. Molestation of a child;
8-5 8. Lewdness or indecent exposure;
8-6 9. Lewd and lascivious behavior;
8-7 10. Obscene or pornographic literature, photographs, or
8-8 videos;
8-9 11. Assault, battery, or any violent offense involving a
8-10 minor;
8-11 12. Endangerment of a child;
8-12 13. Any misdemeanor or other offense classification
8-13 involving a minor or to which a minor was a witness;
8-14 14. Unfitness as a parent or custodian;
8-15 15. Removing children from a state or concealing children in
8-16 violation of a court order;
8-17 16. Restrictions or limitations on contact or visitation
8-18 with children or minors;
8-19 17. Any type of child abduction; or,
8-20 18. Similar or related conduct, matters, or things.
8-21 Except the following (list all incidents, location,
8-22 description, and date) (if none, write NONE):
8-23 Signed________________________ Date______________.
8-24 Subscribed and sworn to (or affirmed) before me this______day of
8-25 ________________,_________.
8-26 Signature of notarial officer_____________________________________.
8-27 (seal, if any, of notarial officer)
9-1 My commission expires:___________
9-2 (b) The failure or refusal of the applicant to sign or
9-3 provide the affidavit constitutes good cause for refusal to hire
9-4 the applicant.
9-5 SECTION 3. Subchapter C, Chapter 42, Human Resources Code,
9-6 is amended by adding Sections 42.057 and 42.058 to read as
9-7 follows:
9-8 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
9-9 CHECKS. (a) In accordance with rules adopted by the department,
9-10 the operator of a family home shall, when the operator applies for
9-11 registration and at least once during each 24 months after
9-12 registration, submit to the department for use in conducting
9-13 background and criminal history checks:
9-14 (1) the name of the owner and each person employed at
9-15 the family home; and
9-16 (2) the name of each resident of the home and any
9-17 other person who will regularly or frequently be staying or working
9-18 at the home while children are being provided care.
9-19 (b) The department shall conduct background and criminal
9-20 history checks using:
9-21 (1) the information provided under Subsection (a);
9-22 (2) the information made available by the Department
9-23 of Public Safety under Section 411.114, Government Code; and
9-24 (3) the department's records of reported abuse and
9-25 neglect.
9-26 (c) The department by rule shall require a family home to
9-27 pay to the department a fee in an amount not to exceed the
10-1 administrative costs the department incurs in conducting a
10-2 background and criminal history check under this section.
10-3 Sec. 42.058. REQUIRED AFFIDAVIT FOR APPLICANTS FOR
10-4 EMPLOYMENT WITH FACILITY OR REGISTERED FAMILY HOME. (a) An
10-5 applicant for temporary or permanent employment with a licensed
10-6 facility or registered family home whose employment or potential
10-7 employment with the facility or home involves direct interactions
10-8 with or the opportunity to interact and associate with children
10-9 must execute and submit the following affidavit with the
10-10 application for employment:
10-11 STATE OF____________
10-12 COUNTY OF____________
10-13 I swear or affirm under penalty of perjury that I do not now
10-14 and I have not at any time, either as an adult or as a juvenile:
10-15 1. Been convicted of;
10-16 2. Pleaded guilty to (whether or not resulting in a
10-17 conviction);
10-18 3. Pleaded nolo contendere or no contest to;
10-19 4. Admitted;
10-20 5. Had any judgment or order rendered against me (whether by
10-21 default or otherwise);
10-22 6. Entered into any settlement of an action or claim of;
10-23 7. Had any license, certification, employment, or volunteer
10-24 position suspended, revoked, terminated, or adversely affected
10-25 because of;
10-26 8. Been diagnosed as having or have been treated for any
10-27 mental or emotional condition arising from; or,
11-1 9. Resigned under threat of termination of employment or
11-2 volunteerism for;
11-3 10. Had a report of child abuse or neglect made and
11-4 substantiated against me for;
11-5 11. Have any pending criminal charges against me in this or
11-6 any other jurisdiction for;
11-7 Any conduct, matter, or thing (irrespective of formal name
11-8 thereof) constituting or involving (whether under criminal or civil
11-9 law of any jurisdiction):
11-10 1. Any felony;
11-11 2. Rape or other sexual assault;
11-12 3. Physical, sexual, emotional abuse and/or neglect of a
11-13 minor;
11-14 4. Incest;
11-15 5. Exploitation, including sexual, of a minor;
11-16 6. Sexual misconduct with a minor;
11-17 7. Molestation of a child;
11-18 8. Lewdness or indecent exposure;
11-19 9. Lewd and lascivious behavior;
11-20 10. Obscene or pornographic literature, photographs, or
11-21 videos;
11-22 11. Assault, battery, or any violent offense involving a
11-23 minor;
11-24 12. Endangerment of a child;
11-25 13. Any misdemeanor or other offense classification
11-26 involving a minor or to which a minor was a witness;
11-27 14. Unfitness as a parent or custodian;
12-1 15. Removing children from a state or concealing children in
12-2 violation of a court order;
12-3 16. Restrictions or limitations on contact or visitation
12-4 with children or minors;
12-5 17. Any type of child abduction; or,
12-6 18. Similar or related conduct, matters, or things.
12-7 Except the following (list all incidents, location,
12-8 description, and date) (if none, write NONE)
12-9 Signed________________________ Date______________.
12-10 Subscribed and sworn to (or affirmed) before me this_______day of
12-11 ________________,___________.
12-12 Signature of notarial officer____________________________________.
12-13 (seal, if any, of notarial officer)
12-14 My commission expires:____________
12-15 (b) The failure or refusal of the applicant to sign or
12-16 provide the affidavit constitutes good cause for refusal to hire
12-17 the applicant.
12-18 SECTION 4. Section 42.052, Human Resources Code, is amended
12-19 by adding Subsection (h) to read as follows:
12-20 (h) The department by rule may provide for denial of an
12-21 application or renewal for registration of a family home or may
12-22 revoke a family home's registration based on the results of a
12-23 background or criminal history check.
12-24 SECTION 5. Section 42.072(a), Human Resources Code, is
12-25 amended to read as follows:
12-26 (a) The division may deny or revoke the license or
12-27 certification of approval of a facility that does not comply with
13-1 the requirements of this chapter, the standards and rules of the
13-2 department, or the specific terms of the license or certification.
13-3 The department may deny or revoke the license or certification of a
13-4 facility based on the results of a background or criminal history
13-5 check.
13-6 SECTION 6. This Act takes effect September 1, 1997.
13-7 SECTION 7. The importance of this legislation and the
13-8 crowded condition of the calendars in both houses create an
13-9 emergency and an imperative public necessity that the
13-10 constitutional rule requiring bills to be read on three several
13-11 days in each house be suspended, and this rule is hereby suspended.