By Zaffirini S.B. No. 116
75R1058 CLG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to investigations of alleged abuse, neglect, or
1-3 exploitation of individuals in certain facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 261.001(1) and (4), Family Code, are
1-6 amended to read as follows:
1-7 (1) "Abuse" as the term applies to a child who is not
1-8 located in a facility that is operated, licensed, certified, or
1-9 registered by a state agency includes the following acts or
1-10 omissions by a person:
1-11 (A) mental or emotional injury to a child that
1-12 results in an observable and material impairment in the child's
1-13 growth, development, or psychological functioning;
1-14 (B) causing or permitting the child to be in a
1-15 situation in which the child sustains a mental or emotional injury
1-16 that results in an observable and material impairment in the
1-17 child's growth, development, or psychological functioning;
1-18 (C) physical injury that results in substantial
1-19 harm to the child, or the genuine threat of substantial harm from
1-20 physical injury to the child, including an injury that is at
1-21 variance with the history or explanation given and excluding an
1-22 accident or reasonable discipline by a parent, guardian, or
1-23 managing or possessory conservator that does not expose the child
1-24 to a substantial risk of harm;
2-1 (D) failure to make a reasonable effort to
2-2 prevent an action by another person that results in physical injury
2-3 that results in substantial harm to the child;
2-4 (E) sexual conduct harmful to a child's mental,
2-5 emotional, or physical welfare;
2-6 (F) failure to make a reasonable effort to
2-7 prevent sexual conduct harmful to a child;
2-8 (G) compelling or encouraging the child to
2-9 engage in sexual conduct as defined by Section 43.01, Penal Code;
2-10 or
2-11 (H) causing, permitting, encouraging, engaging
2-12 in, or allowing the photographing, filming, or depicting of the
2-13 child if the person knew or should have known that the resulting
2-14 photograph, film, or depiction of the child is obscene as defined
2-15 by Section 43.21, Penal Code, or pornographic.
2-16 (4) "Neglect" as the term applies to a child who is
2-17 not located in a facility that is operated, licensed, certified, or
2-18 registered by a state agency includes:
2-19 (A) the leaving of a child in a situation where
2-20 the child would be exposed to a substantial risk of physical or
2-21 mental harm, without arranging for necessary care for the child,
2-22 and the demonstration of an intent not to return by a parent,
2-23 guardian, or managing or possessory conservator of the child;
2-24 (B) the following acts or omissions by a person:
2-25 (i) placing a child in or failing to
2-26 remove a child from a situation that a reasonable person would
2-27 realize requires judgment or actions beyond the child's level of
3-1 maturity, physical condition, or mental abilities and that results
3-2 in bodily injury or a substantial risk of immediate harm to the
3-3 child;
3-4 (ii) failing to seek, obtain, or follow
3-5 through with medical care for a child, with the failure resulting
3-6 in or presenting a substantial risk of death, disfigurement, or
3-7 bodily injury or with the failure resulting in an observable and
3-8 material impairment to the growth, development, or functioning of
3-9 the child;
3-10 (iii) the failure to provide a child with
3-11 food, clothing, or shelter necessary to sustain the life or health
3-12 of the child, excluding failure caused primarily by financial
3-13 inability unless relief services had been offered and refused; or
3-14 (iv) placing a child in or failing to
3-15 remove the child from a situation in which the child would be
3-16 exposed to a substantial risk of sexual conduct harmful to the
3-17 child; or
3-18 (C) the failure by the person responsible for a
3-19 child's care, custody, or welfare to permit the child to return to
3-20 the child's home without arranging for the necessary care for the
3-21 child after the child has been absent from the home for any reason,
3-22 including having been in residential placement or having run away.
3-23 SECTION 2. Section 261.401, Family Code, is amended to read
3-24 as follows:
3-25 Sec. 261.401. AGENCY INVESTIGATION. (a) A state agency
3-26 that operates, licenses, certifies, or registers a facility in
3-27 which children are located shall make a prompt, thorough
4-1 investigation of a report that a child has been or may be abused,
4-2 exploited, or neglected in the facility. The primary purpose of
4-3 the investigation shall be the protection of the child.
4-4 (b) A state agency shall adopt rules relating to the
4-5 investigation and resolution of reports received as provided by
4-6 this subchapter, including rules that describe conduct that
4-7 constitutes abuse, exploitation, or neglect for purposes of the
4-8 investigation and resolution of the reports. The rules adopted
4-9 under this subsection, to the extent the rules describe conduct
4-10 that constitutes abuse or neglect, must afford a child the same or
4-11 greater standard of protection as prescribed by the definitions of
4-12 those terms under Section 261.001.
4-13 (c) The Health and Human Services Commission shall review
4-14 and approve the rules to ensure that all agencies implement
4-15 appropriate standards for the conduct of investigations and that
4-16 uniformity exists among agencies in the investigation and
4-17 resolution of reports.
4-18 SECTION 3. Sections 261.402(b), (d), and (e), Family Code,
4-19 are amended to read as follows:
4-20 (b) A state agency shall immediately notify the appropriate
4-21 state or local law enforcement agency of any report the agency
4-22 receives, other than a report from a law enforcement agency, that
4-23 concerns the suspected abuse, exploitation, or neglect of a child
4-24 or the death of a child from abuse or neglect. If the state agency
4-25 finds evidence indicating that a child may have been abused,
4-26 exploited, or neglected, the agency shall report the evidence to
4-27 the appropriate law enforcement agency.
5-1 (d) A state agency that licenses, certifies, or registers a
5-2 facility in which children are located shall compile, maintain, and
5-3 make available statistics on the incidence of child abuse,
5-4 exploitation, and neglect in the facility.
5-5 (e) A state agency shall compile, maintain, and make
5-6 available statistics on the incidence of child abuse, exploitation,
5-7 and neglect in a facility operated by the state agency.
5-8 SECTION 4. Section 261.403(b), Family Code, is amended to
5-9 read as follows:
5-10 (b) The board of a state agency that operates a facility in
5-11 which children are located shall ensure that the procedure for
5-12 investigating abuse, exploitation, and neglect allegations and
5-13 inquiries in the agency's facility is periodically reviewed under
5-14 the agency's internal audit program required by Chapter 2102,
5-15 Government Code.
5-16 SECTION 5. Section 261.404, Family Code, is amended to read
5-17 as follows:
5-18 Sec. 261.404. INVESTIGATIONS IN FACILITIES UNDER DEPARTMENT
5-19 OF MENTAL HEALTH AND MENTAL RETARDATION. The department shall
5-20 investigate a report of abuse, exploitation, or neglect in a
5-21 facility operated by, regulated by, or providing services under a
5-22 contract with the Texas Department of Mental Health and Mental
5-23 Retardation under rules developed jointly between the department
5-24 and the Texas Department of Mental Health and Mental Retardation.
5-25 SECTION 6. Section 48.036(a), Human Resources Code, is
5-26 amended to read as follows:
5-27 (a) Except as prescribed by Section 48.082, a person having
6-1 reasonable cause to believe that an elderly or disabled person is
6-2 in the state of abuse, exploitation, or neglect shall immediately
6-3 report the information to the department.
6-4 SECTION 7. Section 48.082(a), Human Resources Code, is
6-5 amended to read as follows:
6-6 (a) If a person has reasonable cause to believe that an
6-7 elderly or disabled person has been abused, exploited, or neglected
6-8 in a facility operated, licensed, certified, or registered by a
6-9 state agency other than the Texas Department of Mental Health and
6-10 Mental Retardation, the person shall immediately report the
6-11 information to the state agency that operates, licenses, certifies,
6-12 or registers the facility for investigation by that agency.
6-13 SECTION 8. The change in law made by this Act applies only
6-14 to an investigation of an allegation of abuse, exploitation, or
6-15 neglect of an individual that is initiated on or after the
6-16 effective date of this Act. An investigation that is initiated
6-17 before the effective date of this Act is governed by the law in
6-18 effect on the date the investigation was initiated, and the former
6-19 law is continued in effect for that purpose.
6-20 SECTION 9. (a) The change in law made to Sections 48.036(a)
6-21 and 48.082(a), Human Resources Code, by Sections 6 and 7 of this
6-22 Act applies only to conduct constituting an offense that occurs on
6-23 or after the effective date of this Act. For purposes of this
6-24 section, conduct that constitutes an offense occurs before the
6-25 effective date of this Act if any element of the offense occurs
6-26 before the effective date.
6-27 (b) Conduct constituting an offense that occurs before the
7-1 effective date of this Act is covered by the law in effect when the
7-2 conduct occurred, and the former law is continued in effect for
7-3 that purpose.
7-4 SECTION 10. This Act takes effect September 1, 1997.
7-5 SECTION 11. The importance of this legislation and the
7-6 crowded condition of the calendars in both houses create an
7-7 emergency and an imperative public necessity that the
7-8 constitutional rule requiring bills to be read on three several
7-9 days in each house be suspended, and this rule is hereby suspended.