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.