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.