75R13575 KKA/JMM-D
By Brown S.B. No. 359
Substitute the following for S.B. No. 359:
By McReynolds C.S.S.B. No. 359
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation and operation of the Department of
1-3 Protective and Regulatory Services, the provision of services to
1-4 children and families, and suits affecting the parent-child
1-5 relationship; providing penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 40.003, Human Resources Code, is amended
1-8 to read as follows:
1-9 Sec. 40.003. SUNSET PROVISION. The Department of Protective
1-10 and Regulatory Services is subject to Chapter 325, Government Code
1-11 (Texas Sunset Act). Unless continued in existence as provided by
1-12 that chapter, the department is abolished and this chapter expires
1-13 September 1, 2009 [1997].
1-14 SECTION 2. Subchapter A, Chapter 40, Human Resources Code,
1-15 is amended by amending Section 40.004 and adding Section 40.0041 to
1-16 read as follows:
1-17 Sec. 40.004. PUBLIC INTEREST INFORMATION [AND COMPLAINTS].
1-18 (a) The board [department] shall develop and implement policies
1-19 that provide the public with a reasonable opportunity to appear
1-20 before the board [department] and to speak on any issue under the
1-21 jurisdiction of the department.
1-22 (b) The department shall prepare information of public
1-23 interest describing the functions of the department [and the
1-24 department's procedures by which complaints are filed with and
2-1 resolved by the department]. The department shall make the
2-2 information available to the public and appropriate state agencies.
2-3 [(c) The department by rule shall establish methods by which
2-4 the public, consumers, and service recipients can be notified of
2-5 the mailing addresses and telephone numbers of appropriate
2-6 departmental personnel for the purpose of directing complaints to
2-7 the department. The department may provide for that notification:]
2-8 [(1) on each registration form, application, or
2-9 written contract for services of a person regulated by the
2-10 department;]
2-11 [(2) on a sign prominently displayed in the place of
2-12 business of each person regulated by the department; or]
2-13 [(3) in a bill for a service provided by a person
2-14 regulated by the department.]
2-15 [(d) The department shall keep an information file about
2-16 each complaint filed with the department relating to:]
2-17 [(1) a license holder or entity regulated by the
2-18 department; or]
2-19 [(2) a service delivered by the department.]
2-20 [(e) If a written complaint is filed with the department
2-21 relating to a license holder or entity regulated by the department
2-22 or a service delivered by the department, the department, at least
2-23 quarterly and until final disposition of the complaint, shall
2-24 notify the parties to the complaint of the status of the complaint
2-25 unless notice would jeopardize an undercover investigation.]
2-26 Sec. 40.0041. COMPLAINT PROCESS. (a) The department shall
2-27 develop and implement a uniform process for receiving and resolving
3-1 complaints against the department throughout the state. The
3-2 process shall include:
3-3 (1) statewide procedures through which the public,
3-4 consumers, and service recipients are informed:
3-5 (A) of the right to make a complaint against the
3-6 department, including the mailing addresses and telephone numbers
3-7 of appropriate department personnel responsible for receiving
3-8 complaints and providing related assistance; and
3-9 (B) of the department's procedures for resolving
3-10 a complaint, including the right to appeal a decision made at the
3-11 local level;
3-12 (2) development and statewide distribution of a form
3-13 or telephone system that may be used to make a complaint;
3-14 (3) a requirement that the department provide
3-15 information by mail or telephone regarding the department's
3-16 procedures for investigating and resolving a complaint to each
3-17 person who makes a complaint; and
3-18 (4) a requirement that the department provide status
3-19 information at least quarterly to a person with a pending complaint
3-20 against the department, unless the information would jeopardize an
3-21 undercover investigation.
3-22 (b) In addition to other appropriate methods, the department
3-23 may provide the information specified by Subsection (a)(1):
3-24 (1) on each registration form, application, or written
3-25 contract for services of a person regulated by the department;
3-26 (2) on a sign prominently displayed in the place of
3-27 business of each person regulated by the department; or
4-1 (3) in a bill for service provided by a person
4-2 regulated by the department.
4-3 (c) The department shall keep an information file about each
4-4 complaint made against the department that the department has
4-5 authority to resolve.
4-6 (d) The executive director shall develop a consistent,
4-7 statewide process for addressing an appeal by a person dissatisfied
4-8 with the resolution of a complaint at the regional level. The
4-9 process shall include an opportunity for appeal of a complaint
4-10 without the participation of the department's ombudsman office.
4-11 (e) The department shall develop and maintain a centralized
4-12 tracking system to gather information concerning all complaints
4-13 made against the department throughout the state. The department
4-14 shall require its personnel to provide information regarding each
4-15 complaint for inclusion in records maintained under the tracking
4-16 system at the department's state headquarters, regardless of the
4-17 location or level at which the complaint is initiated or resolved.
4-18 The department shall require at least the following information to
4-19 be maintained for each complaint:
4-20 (1) the date the complaint is received;
4-21 (2) the name of the person making the complaint;
4-22 (3) the subject matter of the complaint;
4-23 (4) a record of all persons contacted by the
4-24 department in relation to the complaint;
4-25 (5) a summary of the results of the review or
4-26 investigation of the complaint; and
4-27 (6) for each complaint determined by the department to
5-1 require no corrective action, an explanation of the reason that the
5-2 complaint was closed without action.
5-3 (f) The department shall periodically prepare and deliver
5-4 reports to the board and the executive director regarding the
5-5 number, type, and resolution of complaints made in the state
5-6 against the department.
5-7 SECTION 3. Subchapter A, Chapter 40, Human Resources Code,
5-8 is amended by adding Section 40.008 to read as follows:
5-9 Sec. 40.008. PROGRAM ACCESSIBILITY. The department shall
5-10 comply with federal and state laws related to program and facility
5-11 accessibility. The department shall also prepare and maintain a
5-12 written plan that describes how a person who does not speak English
5-13 can be provided reasonable access to the department's programs and
5-14 services.
5-15 SECTION 4. Subsection (a), Section 40.021, Human Resources
5-16 Code, is amended to read as follows:
5-17 (a) The board is composed of six members appointed by the
5-18 governor with the advice and consent of the senate. The governor
5-19 shall [annually] designate one member to be the presiding officer
5-20 of the board to serve in that capacity at the pleasure of the
5-21 governor.
5-22 SECTION 5. Section 40.022, Human Resources Code, is amended
5-23 to read as follows:
5-24 Sec. 40.022. Restrictions on Board Appointment or
5-25 Membership. (a) A person is not eligible for appointment as a
5-26 member of the board if the person or the person's spouse:
5-27 (1) is a person who is employed by or participates in
6-1 the management of a business entity or other organization regulated
6-2 by the department or receiving funds [a substantial amount of
6-3 money] from the department;
6-4 (2) owns or controls, directly or indirectly, more
6-5 than a 10 percent interest in a business entity or other
6-6 organization that is regulated by the department or that receives
6-7 funds [money] from the department;
6-8 (3) uses or receives a substantial amount of tangible
6-9 goods, services, or money from the department, other than
6-10 compensation or reimbursement authorized by law for board
6-11 membership, attendance, or expenses [incurred as a board member],
6-12 or as a client or a parent or guardian of a client receiving
6-13 services from the department; or
6-14 (4) is an employee, officer, or paid consultant of a
6-15 trade association in a field under the jurisdiction of the
6-16 department.
6-17 (b) In addition to the requirements of Subsection (a), a
6-18 person is not eligible for appointment as a public member of the
6-19 board if the person or the person's spouse is registered,
6-20 certified, or licensed by an occupational regulatory agency in a
6-21 field under the jurisdiction of the department. [A person who is
6-22 required to register as a lobbyist under Chapter 305, Government
6-23 Code, because of the person's activities for compensation in or for
6-24 a profession related to the operation of the department may not
6-25 serve as a member of the board.]
6-26 SECTION 6. Subchapter B, Chapter 40, Human Resources Code,
6-27 is amended by adding Section 40.0225 to read as follows:
7-1 Sec. 40.0225. RESTRICTIONS ON BOARD MEMBERS AND EMPLOYEES.
7-2 (a) An officer, employee, or paid consultant of a Texas trade
7-3 association in a field under the jurisdiction of the department may
7-4 not be a member of the board or an employee of the department who
7-5 is exempt from the state's position classification plan or is
7-6 compensated at or above the amount prescribed by the General
7-7 Appropriations Act for step 1, salary group 17, of the position
7-8 classification salary schedule.
7-9 (b) A person who is the spouse of an officer, manager, or
7-10 paid consultant of a Texas trade association in a field under the
7-11 jurisdiction of the department may not be a member of the board and
7-12 may not be an employee of the department who is exempt from the
7-13 state's position classification plan or is compensated at or above
7-14 the amount prescribed by the General Appropriations Act for step 1,
7-15 salary group 17, of the position classification salary schedule.
7-16 (c) A person may not serve as a member of the board or act
7-17 as the general counsel to the board or the department if the person
7-18 is required to register as a lobbyist under Chapter 305, Government
7-19 Code, because of the person's activities for compensation on behalf
7-20 of a profession related to the operation of the department.
7-21 (d) For the purposes of this section, a Texas trade
7-22 association is a nonprofit, cooperative, and voluntarily joined
7-23 association of business or professional competitors in this state
7-24 designed to assist its members and its industry or profession in
7-25 dealing with mutual business or professional problems and in
7-26 promoting their common interest.
7-27 SECTION 7. Subchapter B, Chapter 40, Human Resources Code,
8-1 is amended by adding Section 40.0226 to read as follows:
8-2 Sec. 40.0226. BOARD MEMBER TRAINING. (a) Before a member
8-3 of the board may assume the member's duties and before the member
8-4 may be confirmed by the senate, the member must complete at least
8-5 one course of the training program established under this section.
8-6 (b) A training program established under this section shall
8-7 provide information to the member regarding:
8-8 (1) the enabling legislation that created the
8-9 department and the board;
8-10 (2) the programs operated by the department;
8-11 (3) the role and functions of the department;
8-12 (4) the rules of the department, with an emphasis on
8-13 the rules that relate to disciplinary and investigatory authority;
8-14 (5) the current budget for the department;
8-15 (6) the results of the most recent formal audit of the
8-16 department;
8-17 (7) the requirements of the:
8-18 (A) open meetings law, Chapter 551, Government
8-19 Code;
8-20 (B) open records law, Chapter 552, Government
8-21 Code; and
8-22 (C) administrative procedure law, Chapter 2001,
8-23 Government Code;
8-24 (8) the requirements of the conflict-of-interest laws
8-25 and other laws relating to public officials; and
8-26 (9) any applicable ethics policies adopted by the
8-27 board or the Texas Ethics Commission.
9-1 SECTION 8. Subsection (b), Section 40.028, Human Resources
9-2 Code, is amended to read as follows:
9-3 (b) The board shall:
9-4 (1) supervise the executive director's administration
9-5 and enforcement of the laws of this state that impose duties on the
9-6 department or board; and
9-7 (2) develop and implement policies that clearly
9-8 separate the policymaking [respective] responsibilities of the
9-9 board and the management responsibilities of the executive director
9-10 and the staff of the department.
9-11 SECTION 9. Subchapter B, Chapter 40, Human Resources Code,
9-12 is amended by adding Section 40.0305 to read as follows:
9-13 Sec. 40.0305. STRATEGIC TECHNOLOGY STEERING COMMITTEE.
9-14 (a) The department shall establish a strategic technology steering
9-15 committee within the department to evaluate major information
9-16 technology project proposals.
9-17 (b) The steering committee shall consist of the department's
9-18 information resources manager and other department employees
9-19 designated by the executive director from senior management,
9-20 information technology staff, and employees who are primary users
9-21 of information resources. The information resources manager shall
9-22 serve as presiding officer of the committee.
9-23 (c) The steering committee shall prioritize the department's
9-24 major information technology project proposals and provide
9-25 oversight and coordination of the projects.
9-26 (d) In evaluating major information technology project
9-27 proposals, the steering committee shall:
10-1 (1) assess the major information needs of the
10-2 department;
10-3 (2) define standard criteria for setting priorities
10-4 for the department's information needs;
10-5 (3) forecast the returns to the department on project
10-6 investments;
10-7 (4) evaluate the department's available information
10-8 resources; and
10-9 (5) review, approve, and evaluate the status of
10-10 projected costs and benefits related to project proposals.
10-11 (e) The steering committee shall make recommendations to the
10-12 executive director based on the committee's performance of its
10-13 duties.
10-14 SECTION 10. Section 40.032, Human Resources Code, is
10-15 amended to read as follows:
10-16 Sec. 40.032. PERSONNEL. (a) The executive director may
10-17 employ personnel necessary to administer the department's duties.
10-18 (b) The executive director or the executive director's
10-19 designated representative shall develop an intradepartmental career
10-20 ladder program that addresses opportunities for mobility and
10-21 advancement for employees within the department. The program[, one
10-22 part of which] shall require the intradepartmental posting of all
10-23 [non-entry-level] positions concurrently with any public posting.
10-24 (c) The executive director or the executive director's
10-25 designated representative shall develop a system of annual
10-26 performance evaluations based on measurable job tasks. All merit
10-27 pay for department employees must be based on the system
11-1 established under this subsection.
11-2 (d) The executive director or the executive director's
11-3 designated representative shall provide to members of the board and
11-4 to the department's employees, as often as is necessary,
11-5 information regarding their qualifications for office or employment
11-6 under this chapter and their responsibilities under applicable laws
11-7 relating to standards of conduct for state officers or employees.
11-8 (e) The executive director or the executive director's
11-9 designated representative shall prepare and maintain a written
11-10 policy statement to ensure implementation of a program of equal
11-11 employment opportunity under which all personnel transactions are
11-12 made without regard to race, color, disability, sex, religion, age,
11-13 or national origin. The policy statement must include:
11-14 (1) personnel policies, including policies relating to
11-15 recruitment, evaluation, selection, appointment, training, and
11-16 promotion of personnel, that comply with Chapter 21, Labor Code;
11-17 (2) a comprehensive analysis of the department's
11-18 workforce that meets federal and state laws, rules, regulations,
11-19 and instructions adopted under those laws, rules, and regulations
11-20 [guidelines];
11-21 (3) procedures by which a determination can be made
11-22 about the extent of [significant] underuse in the department's
11-23 workforce of all persons for whom federal or state laws, rules,
11-24 regulations, and instructions adopted under those laws, rules, and
11-25 regulations [guidelines] encourage a more equitable balance; and
11-26 (4) reasonable methods to appropriately address those
11-27 areas of [significant] underuse [in the department's workforce of
12-1 all persons for whom federal or state guidelines encourage a more
12-2 equitable balance].
12-3 (f) The policy statement required under Subsection (e)
12-4 shall:
12-5 (1) be filed with the governor's office;
12-6 (2) [,] cover an annual period;
12-7 (3) [, and] be updated at least annually; and
12-8 (4) be reviewed by the Commission on Human Rights for
12-9 compliance with Subsection (e)(1).
12-10 (g) The governor's office shall develop and deliver a
12-11 biennial report to the legislature based on the information
12-12 submitted under Subsection (f). The report may be made separately
12-13 or as a part of other biennial reports made to the legislature.
12-14 SECTION 11. Subchapter C, Chapter 40, Human Resources Code,
12-15 is amended by adding Section 40.0525 to read as follows:
12-16 Sec. 40.0525. SEPARATION OF INVESTIGATORY AND SERVICE
12-17 DELIVERY FUNCTIONS. (a) To the extent feasible, the department
12-18 shall separate the performance of investigations by department
12-19 employees from the delivery of services to clients and their
12-20 families. The department may take into consideration the needs and
12-21 caseloads in the different programs and regions of the state in
12-22 developing policies for the separation of the department's
12-23 investigatory and service delivery functions.
12-24 (b) The department shall develop policies and procedures for
12-25 the exchange of information between employees who are responsible
12-26 for performing investigations and employees who are responsible for
12-27 the delivery of services to clients and families.
13-1 (c) This section does not require the department to
13-2 establish separate departments for investigations and service
13-3 delivery.
13-4 SECTION 12. Subchapter C, Chapter 40, Human Resources Code,
13-5 is amended by adding Sections 40.0563, 40.0564, and 40.0565 to read
13-6 as follows:
13-7 Sec. 40.0563. COUNTY OUTREACH PROGRAM. (a) The department
13-8 shall develop and implement a standard statewide outreach program
13-9 under which the department:
13-10 (1) informs each county of the availability of federal
13-11 funds to pay costs of providing child protective services within
13-12 the county; and
13-13 (2) provides technical assistance on request to a
13-14 county seeking federal funds.
13-15 (b) In implementing the program, the department shall:
13-16 (1) designate local department personnel responsible
13-17 for performing the functions specified in Subsection (a);
13-18 (2) designate a statewide coordinator responsible for
13-19 coordinating the activities of local department personnel and
13-20 developing methods of providing information to counties; and
13-21 (3) develop a database that:
13-22 (A) identifies department and county personnel
13-23 involved with the outreach program; and
13-24 (B) contains information regarding the date and
13-25 type of assistance provided by the department to each county.
13-26 (c) The department, in consultation with the Legislative
13-27 Budget Board, shall ensure that a record is maintained of the
14-1 amount of funding for child protective services that each county
14-2 receives directly from the federal government.
14-3 Sec. 40.0564. DEPARTMENT FUNDS. All money paid to the
14-4 department under this chapter is subject to Subchapter F, Chapter
14-5 404, Government Code.
14-6 Sec. 40.0565. REPORT. The department shall file with the
14-7 governor and the presiding officer of each house of the legislature
14-8 a complete and detailed written report accounting for all funds
14-9 received and disbursed by the department during the preceding
14-10 fiscal year. The annual report must meet the reporting
14-11 requirements, including reporting deadlines, applicable to
14-12 financial reporting in the General Appropriations Act.
14-13 SECTION 13. Section 40.058, Human Resources Code, is
14-14 amended to read as follows:
14-15 Sec. 40.058. Contracts and Agreements. (a) The department
14-16 may enter into contracts or agreements with any person, including a
14-17 federal, state, or other public or private agency, as necessary to
14-18 perform any of the department's powers or duties.
14-19 (b) A contract for the purchase of program-related client
14-20 services must include:
14-21 (1) clearly defined goals and outcomes that can be
14-22 measured to determine whether the objectives of the program are
14-23 being achieved;
14-24 (2) clearly defined sanctions or penalties for
14-25 noncompliance with contract terms; and
14-26 (3) clearly specified accounting, reporting, and
14-27 auditing requirements applicable to money received under the
15-1 contract.
15-2 (c) The department shall monitor a contractor's performance
15-3 under a contract for the purchase of program-related client
15-4 services. In monitoring performance, the department shall:
15-5 (1) use a risk-assessment methodology to ensure
15-6 compliance with financial and performance requirements under the
15-7 contract; and
15-8 (2) obtain and evaluate program cost information to
15-9 ensure that all costs, including administrative costs, are
15-10 reasonable and necessary to achieve program objectives.
15-11 (d) An agreement made under this section is not subject to
15-12 Chapter 771 or 791, Government Code.
15-13 (e) This section does not prohibit the department from
15-14 entering into a contract or agreement subject to Chapter 771 or
15-15 791, Government Code, for a purpose authorized in the applicable
15-16 chapter.
15-17 SECTION 14. Section 40.061, Human Resources Code, is
15-18 amended by adding Subsection (c) to read as follows:
15-19 (c) This section does not provide immunity to a department
15-20 employee who, in a suit affecting the parent-child relationship in
15-21 which child abuse is alleged or that arises out of a child abuse
15-22 investigation or in a criminal prosecution for an offense in which
15-23 child abuse is an element, commits or attempts to commit perjury,
15-24 fabricates or attempts to fabricate evidence, or knowingly conceals
15-25 information that would establish that a person alleged to have
15-26 committed an act of child abuse did not commit child abuse.
15-27 SECTION 15. Section 40.062, Human Resources Code, is amended
16-1 to read as follows:
16-2 Sec. 40.062. EXEMPTION FROM CERTAIN COSTS AND FEES. The
16-3 department is not required to pay any cost or fee otherwise imposed
16-4 for court proceedings, including a:
16-5 (1) filing fee or fee for issuance or service of
16-6 process imposed by Section 110.002 [14.13], Family Code, or by
16-7 Section 51.317, 51.318(b)(2), or 51.319, Government Code;
16-8 (2) transfer fee imposed by Section 110.002 [11.06(l)]
16-9 or 110.005 [14.13], Family Code;
16-10 (3) court reporter fee imposed by Section 51.601,
16-11 Government Code;
16-12 (4) judicial fund fee imposed by Sections 51.701 and
16-13 51.702, Government Code;
16-14 (5) judge's fee imposed by Section 25.0008, 25.00263,
16-15 or 25.0029, Government Code; or
16-16 (6) cost or security fee imposed by Section 12 or 622,
16-17 Probate Code.
16-18 SECTION 16. Subchapter C, Chapter 40, Human Resources Code,
16-19 is amended by adding Sections 40.066, 40.067, and 40.068 to read as
16-20 follows:
16-21 Sec. 40.066. COOPERATION WITH STATE OFFICE OF ADMINISTRATIVE
16-22 HEARINGS. (a) Except as provided by Subsection (e), the
16-23 department and the chief administrative law judge of the State
16-24 Office of Administrative Hearings shall adopt a memorandum of
16-25 understanding under which the State Office of Administrative
16-26 Hearings, on behalf of the department, conducts all contested case
16-27 hearings authorized or required by law to be conducted by the
17-1 department under the administrative procedure law, Chapter 2001,
17-2 Government Code.
17-3 (b) The memorandum of understanding shall require the chief
17-4 administrative law judge, the department, and the executive
17-5 director to cooperate in connection with a contested case hearing
17-6 and may authorize the State Office of Administrative Hearings to
17-7 perform any administrative act, including giving of notice, that is
17-8 required to be performed by the department or executive director.
17-9 (c) The administrative law judge who conducts a contested
17-10 case hearing for the State Office of Administrative Hearings on
17-11 behalf of the department shall enter the final decision in the case
17-12 after completion of the hearing.
17-13 (d) The department by interagency contract shall reimburse
17-14 the State Office of Administrative Hearings for the costs incurred
17-15 in conducting contested case hearings for the department. The
17-16 department may pay an hourly fee for the costs of conducting those
17-17 hearings or a fixed annual fee negotiated biennially by the
17-18 department and the State Office of Administrative Hearings to
17-19 coincide with the department's legislative appropriations request.
17-20 (e) This section does not apply to a personnel grievance
17-21 hearing involving a department employee.
17-22 Sec. 40.067. DELIVERY OF SERVICES IN AREAS BORDERING UNITED
17-23 MEXICAN STATES. The department shall:
17-24 (1) study issues related to providing child and adult
17-25 protective services in areas bordering the United Mexican States;
17-26 (2) develop a plan for providing those services in the
17-27 most efficient manner; and
18-1 (3) pursue and enter into agreements for coordinated
18-2 services, to the extent permissible under federal law, with the
18-3 United Mexican States or any of its political subdivisions.
18-4 Sec. 40.068. LOCAL ACCOUNTS. (a) The department may
18-5 establish and maintain local bank or savings accounts for a client
18-6 of the department as necessary to administer funds belonging to the
18-7 client or received in trust for or on behalf of the client.
18-8 (b) Funds maintained in an account for the benefit of a
18-9 child who is under the managing conservatorship of the department
18-10 may be used by the department for the support of the child,
18-11 including the payment of foster care expenses, or may be paid to a
18-12 person providing care for the child.
18-13 (c) The department shall spend funds in a guardianship of a
18-14 child's estate in compliance with Chapter XIII, Texas Probate Code.
18-15 (d) Except as provided by Subsection (c), funds maintained
18-16 in an account for the benefit of a client of the department may be
18-17 used to provide care, including medical care, for the client.
18-18 SECTION 17. Section 42.002, Human Resources Code, is
18-19 amended by amending Subdivisions (3) and (9) and adding
18-20 Subdivisions (16) and (17) to read as follows:
18-21 (3) "Child-care facility" means a facility licensed or
18-22 certified by the department to provide assessment, [that provides]
18-23 care, training, education, custody, treatment, or supervision for a
18-24 child who is not related by blood, marriage, or adoption to the
18-25 owner or operator of the facility, for all or part of the 24-hour
18-26 day, whether or not the facility is operated for profit or charges
18-27 for the services it offers.
19-1 (9) "Family home" means a home that [regularly]
19-2 provides regular care in the caretaker's own residence for not more
19-3 than six children under 14 years of age, excluding [the caretaker's
19-4 own] children who are related to the caretaker, and that provides
19-5 care after school hours for not more than six additional elementary
19-6 school children, but the total number of children, including
19-7 children who are related to the caretaker [the caretaker's own],
19-8 does not exceed 12 at any given time. The term does not include a
19-9 home that provides care exclusively for any number of children who
19-10 are related to the caretaker.
19-11 (16) "Children who are related to the caretaker" means
19-12 children who are the children, grandchildren, siblings,
19-13 great-grandchildren, nieces, or nephews of the caretaker, whether
19-14 by affinity or consanguinity or as the result of a relationship
19-15 created by court decree.
19-16 (17) "Regular care" means care that is provided at
19-17 least four hours a day, three or more days a week, for more than
19-18 nine consecutive weeks.
19-19 SECTION 18. Subsections (e) and (l), Section 42.042, Human
19-20 Resources Code, are amended to read as follows:
19-21 (e) The department shall promulgate minimum standards that
19-22 apply to licensed child-care facilities and to registered family
19-23 homes covered by this chapter and that will:
19-24 (1) promote the health, safety, and welfare of
19-25 children attending a facility or registered family home;
19-26 (2) promote safe, comfortable, and healthy physical
19-27 facilities and registered family homes for children;
20-1 (3) ensure adequate supervision of children by
20-2 capable, qualified, and healthy personnel;
20-3 (4) ensure adequate and healthy food service where
20-4 food service is offered;
20-5 (5) prohibit racial discrimination by child-care
20-6 facilities and registered family homes; and
20-7 (6) require procedures for parental and guardian
20-8 consultation in the formulation of children's educational and
20-9 therapeutic programs.
20-10 (l) In promulgating [The department shall adopt] minimum
20-11 standards for the regulation of [regulating] family homes that
20-12 register with the department, the department [division. The rules]
20-13 must address the minimum qualifications, education, and training
20-14 required of a person who operates a registered family home
20-15 [registered with the division].
20-16 SECTION 19. Subchapter C, Chapter 42, Human Resources Code,
20-17 is amended by adding Section 42.0425 to read as follows:
20-18 Sec. 42.0425. ASSESSMENT SERVICES. (a) The department by
20-19 rule shall regulate assessment services provided by child-care
20-20 facilities or child-placing agencies. A child-care facility or
20-21 child-placing agency may not provide assessment services unless
20-22 specifically authorized by the department.
20-23 (b) The department by rule shall establish minimum standards
20-24 for assessment services. The standards must provide that
20-25 consideration is given to the individual needs of a child, the
20-26 appropriate place for provision of services, and the factors listed
20-27 in Section 42.042(e).
21-1 (c) In this section, "assessment services" means the
21-2 determination of the placement needs of a child who requires
21-3 substitute care.
21-4 SECTION 20. Subchapter C, Chapter 42, Human Resources Code,
21-5 is amended by adding Section 42.0505 to read as follows:
21-6 Sec. 42.0505. RENEWAL OF LICENSE. (a) A person who is
21-7 otherwise eligible to renew a license may renew an unexpired
21-8 license by paying the required annual fee to the department before
21-9 the expiration date of the license. A person whose license has
21-10 expired may not engage in activities that require a license until
21-11 the license has been renewed under the provisions of this section.
21-12 (b) If the person's license has been expired for 90 days or
21-13 less, the person may renew the license by paying to the department
21-14 1-1/2 times the required annual fee.
21-15 (c) If the person's license has been expired for longer than
21-16 90 days but less than one year, the person may renew the license by
21-17 paying to the department two times the required annual fee.
21-18 (d) If the person's license has been expired for one year or
21-19 longer, the person may not renew the license. The person may
21-20 obtain a new license by complying with the requirements and
21-21 procedures for obtaining an original license.
21-22 (e) At least 30 days before the expiration of a person's
21-23 license, the department shall send written notice of the impending
21-24 license expiration to the person at the license holder's last known
21-25 address according to the records of the department.
21-26 SECTION 21. Subsection (b), Section 42.044, Human Resources
21-27 Code, is amended to read as follows:
22-1 (b) The department [division] shall inspect all licensed or
22-2 certified facilities at least once a year and may inspect other
22-3 facilities or registered family homes as necessary. At least one
22-4 of the annual visits must be unannounced and all may be
22-5 unannounced.
22-6 SECTION 22. Subchapter C, Chapter 42, Human Resources Code,
22-7 is amended by adding Sections 42.0441-42.0443 to read as follows:
22-8 Sec. 42.0441. INSPECTION RESULTS. Immediately after
22-9 completing a monitoring inspection under Section 42.044 of a
22-10 licensed day-care center, licensed group day-care home, or
22-11 registered family home, the authorized representative of the
22-12 department shall review the results of the monitoring inspection
22-13 with a representative of the facility and give the facility an
22-14 opportunity to respond to the inspection results.
22-15 Sec. 42.0442. COORDINATION OF INSPECTIONS; ELIMINATION OF
22-16 DUPLICATIVE INSPECTIONS. (a) The department shall coordinate
22-17 monitoring inspections of licensed day-care centers, licensed group
22-18 day-care homes, and registered family homes performed by another
22-19 state agency to eliminate redundant inspections.
22-20 (b) The department shall form an interagency task force with
22-21 the Texas Department of Health, the Texas Department of Human
22-22 Services, and the Texas Workforce Commission to develop an
22-23 inspection protocol that will coordinate inspections by those
22-24 agencies. The protocol must assign the required items for
22-25 inspection by each agency and facilitate the sharing of inspection
22-26 data and compliance history.
22-27 Sec. 42.0443. INSPECTION INFORMATION DATABASE. (a) If
23-1 feasible using available information systems, the department shall
23-2 establish a computerized database containing relevant inspection
23-3 information on licensed day-care centers, licensed group day-care
23-4 homes, and registered family homes from other state agencies and
23-5 political subdivisions of the state.
23-6 (b) The department shall make the data collected by the
23-7 department available to another state agency or political
23-8 subdivision of the state for the purpose of administering programs
23-9 or enforcing laws within the jurisdiction of that agency or
23-10 subdivision. If feasible using available information systems, the
23-11 department shall make the data directly available to the Texas
23-12 Department of Health, the Texas Department of Human Services, and
23-13 the Texas Workforce Commission through electronic information
23-14 systems. The department, the Texas Department of Health, the Texas
23-15 Department of Human Services, and the Texas Workforce Commission
23-16 shall jointly plan the development of child-care inspection
23-17 databases that, to the extent feasible, are similar in their design
23-18 and architecture to promote the sharing of data.
23-19 (c) The department may provide inspection data on licensed
23-20 day-care centers, licensed group day-care homes, or registered
23-21 family homes to the public if the department determines that
23-22 providing inspection data enhances consumer choice with respect to
23-23 those facilities.
23-24 SECTION 23. Section 42.046, Human Resources Code, is
23-25 amended by amending Subsection (a) and the section heading to read
23-26 as follows:
23-27 Sec. 42.046. [LICENSE] APPLICATION FOR LICENSE OR
24-1 REGISTRATION. (a) An applicant for a license to operate a
24-2 child-care facility or child-placing agency or for a registration
24-3 to operate a family home shall submit to the department [division]
24-4 the appropriate fee prescribed by Section 42.054 [of this code] and
24-5 a completed application on a form provided by the department
24-6 [division].
24-7 SECTION 24. Subchapter C, Chapter 42, Human Resources Code,
24-8 is amended by adding Section 42.0461 to read as follows:
24-9 Sec. 42.0461. PUBLIC NOTICE AND HEARING IN CERTAIN COUNTIES:
24-10 RESIDENTIAL CHILD CARE. (a) Before the department may issue a
24-11 license, other than a renewal license, for the operation or the
24-12 expansion of the capacity of a foster group home or foster family
24-13 home that is located in a county with a population of less than
24-14 250,000 and that provides child care for 24 hours a day at a
24-15 location other than the actual residence of a child's primary
24-16 caretaker or of a child care institution, the applicant for the
24-17 license or expansion shall, at the applicant's expense:
24-18 (1) conduct a public hearing on the application in
24-19 accordance with department rules after notifying the department of
24-20 the date, time, and location of the hearing; and
24-21 (2) publish notice of the application in a newspaper
24-22 of general circulation in the community in which the child-care
24-23 services are proposed to be provided.
24-24 (b) The notice required by Subsection (a)(2) must be
24-25 published at least 10 days before the date of the public hearing
24-26 required by Subsection (a)(1) and must include:
24-27 (1) the name and address of the applicant;
25-1 (2) the address at which the child-care services are
25-2 proposed to be provided;
25-3 (3) the date, time, and location of the public
25-4 hearing;
25-5 (4) the name, address, and telephone number of the
25-6 department as the licensing authority; and
25-7 (5) a statement informing the public that a person may
25-8 submit written comments to the department concerning the
25-9 application instead of or in addition to appearing at the public
25-10 hearing.
25-11 (c) The department shall require a representative of the
25-12 department to attend the public hearing in an official capacity for
25-13 the purpose of receiving public comments on the application.
25-14 (d) Before issuing a license described by Subsection (a),
25-15 the department shall consider:
25-16 (1) the degree of community support for the
25-17 application;
25-18 (2) the amount of local resources available to support
25-19 children proposed to be served by the applicant;
25-20 (3) the impact of the proposed child-care services on
25-21 the ratio in the local school district of students enrolled in a
25-22 special education program to students enrolled in a regular
25-23 education program and the affect, if any, on the children proposed
25-24 to be served by the applicant; and
25-25 (4) the impact of the proposed child-care services on
25-26 the community and the affect on opportunities for social
25-27 interaction for the children proposed to be served by the
26-1 applicant.
26-2 (e) The department may deny the application if the
26-3 department determines that:
26-4 (1) the application lacks a reasonable degree of
26-5 community support;
26-6 (2) the community has insufficient resources to
26-7 support children proposed to be served by the applicant;
26-8 (3) granting the application would significantly
26-9 increase the ratio in the local school district of students
26-10 enrolled in a special education program to students enrolled in a
26-11 regular education program and the increase would adversely affect
26-12 the children proposed to be served by the applicant; or
26-13 (4) granting the application would have a significant
26-14 adverse impact on the community and would limit opportunities for
26-15 social interaction for the children proposed to be served by the
26-16 applicant.
26-17 (f) A child-placing agency that is located in a county with
26-18 a population of less than 250,000 and that proposes to verify an
26-19 agency home or agency group home that provides child care for 24
26-20 hours a day at a location other than the actual residence of a
26-21 child's primary caretaker shall:
26-22 (1) comply with the notice and hearing requirements
26-23 imposed by Subsections (a) and (b); and
26-24 (2) after conducting the required public hearing,
26-25 provide the department with information relating to the
26-26 considerations specified in Subsection (d).
26-27 (g) The department may prohibit the child-placing agency
27-1 from verifying the proposed agency home or agency group home on the
27-2 same grounds that the department may deny an application under
27-3 Subsection (e).
27-4 SECTION 25. Subsection (c), Section 42.052, Human Resources
27-5 Code, is amended to read as follows:
27-6 (c) A family home that provides care for three or fewer
27-7 children, excluding [the caretaker's own] children who are related
27-8 to the caretaker, may register with the department [division]. A
27-9 family home that provides care for four or more children, excluding
27-10 [the caretaker's own] children who are related to the caretaker,
27-11 shall [must] register with the department [division]. A
27-12 registration remains valid until revoked or surrendered. The
27-13 operator of a registered home must display the registration in a
27-14 prominent place at the home.
27-15 SECTION 26. Subchapter C, Chapter 42, Human Resources Code,
27-16 is amended by adding Sections 42.057 and 42.058 to read as follows:
27-17 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
27-18 CHECKS. (a) In accordance with rules adopted by the department,
27-19 the director, owner, or operator of a child-care facility or family
27-20 home shall:
27-21 (1) when applying to operate a child-care facility or
27-22 when registering a family home, submit to the department for use in
27-23 conducting background and criminal history checks:
27-24 (A) the name of the director, owner, and
27-25 operator of the facility or home and the name of each person
27-26 employed at the facility or home; and
27-27 (B) the name of each person 14 years of age or
28-1 older who will regularly or frequently be staying or working at the
28-2 facility or home while children are being provided care; and
28-3 (2) after receiving a license, registration, or
28-4 certification of approval, submit to the department for use in
28-5 conducting background and criminal history checks the name of any
28-6 person not submitted to the department under Subdivision (1) who:
28-7 (A) becomes a director, owner, or operator of
28-8 the facility or home;
28-9 (B) is employed at the facility or home; or
28-10 (C) is 14 years of age or older and regularly or
28-11 frequently stays or works at the facility or home while children
28-12 are being provided care.
28-13 (b) The department shall conduct background and criminal
28-14 history checks using:
28-15 (1) the information provided under Subsection (a);
28-16 (2) the information made available by the Department
28-17 of Public Safety under Section 411.114, Government Code, or by the
28-18 Federal Bureau of Investigation or other criminal justice agency
28-19 under Section 411.087, Government Code; and
28-20 (3) the department's records of reported abuse and
28-21 neglect.
28-22 (c) The department by rule shall require a child-care
28-23 facility or family home to pay to the department a fee in an amount
28-24 not to exceed the administrative costs the department incurs in
28-25 conducting a background and criminal history check under this
28-26 section.
28-27 Sec. 42.058. COMPETITIVE BIDDING OR ADVERTISING RULES.
29-1 (a) The board may not adopt rules restricting competitive bidding
29-2 or advertising by a license holder or registration holder except to
29-3 prohibit false, misleading, or deceptive practices or to prevent a
29-4 violation of this chapter.
29-5 (b) In its rules to prohibit false, misleading, or deceptive
29-6 practices, the board may not include a rule that:
29-7 (1) restricts the use of any medium for advertising;
29-8 (2) restricts the use of a license holder's or
29-9 registration holder's personal appearance or voice in an
29-10 advertisement;
29-11 (3) relates to the size or duration of an
29-12 advertisement by the license holder or registration holder; or
29-13 (4) restricts the license holder's or registration
29-14 holder's advertisement under a trade name.
29-15 SECTION 27. Subchapter D, Chapter 42, Human Resources Code,
29-16 is amended by adding Section 42.0705 to read as follows:
29-17 Sec. 42.0705. RANGE OF PENALTIES. The department shall
29-18 revoke, suspend, or refuse to renew a license or registration,
29-19 place on probation a person whose license or registration has been
29-20 suspended, or reprimand a license holder or registration holder for
29-21 a violation of this chapter or a rule of the board. If a license
29-22 or registration suspension is probated, the department may require
29-23 the license holder or registration holder to:
29-24 (1) report regularly to the department on matters that
29-25 are the basis of the probation;
29-26 (2) limit services to the areas prescribed by the
29-27 department;
30-1 (3) continue or review professional education until
30-2 the license holder or registration holder attains a degree of skill
30-3 satisfactory to the department in those areas that are the basis of
30-4 the probation; or
30-5 (4) take corrective action relating to the violation
30-6 on which the probation is based.
30-7 SECTION 28. Section 42.071, Human Resources Code, is
30-8 amended to read as follows:
30-9 Sec. 42.071. [LICENSE] SUSPENSION, EVALUATION, OR PROBATION
30-10 OF LICENSE OR REGISTRATION. (a) The department [division] may
30-11 suspend the license of a facility or the registration of a family
30-12 home that has temporarily ceased operation but has definite plans
30-13 for starting operations again within the time limits of the issued
30-14 license or registration.
30-15 (b) The department [division] may suspend a facility's
30-16 license or a family home's registration for a definite period
30-17 rather than deny or revoke the license or registration if the
30-18 department [division] finds repeated noncompliance with standards
30-19 that do not endanger the health and safety of children. To qualify
30-20 for license or registration suspension under this subsection, a
30-21 facility or family home must suspend its operations and show that
30-22 standards can be met within the suspension period.
30-23 (c) If the department [division] finds a facility or family
30-24 home is in repeated noncompliance with standards that do not
30-25 endanger the health and safety of children, the department
30-26 [division] may schedule the facility or family home for evaluation
30-27 or probation rather than suspend or revoke the facility's license
31-1 or the family home's registration. The department [division] shall
31-2 provide notice to the facility or family home of the evaluation or
31-3 probation and of the items of noncompliance not later than the 10th
31-4 day before the evaluation or probation period begins. The
31-5 department [division] shall designate a period of not less than 30
31-6 days during which the facility or family home will remain under
31-7 evaluation. During the evaluation or probation period, the
31-8 facility or family home must correct the items that were in
31-9 noncompliance and report the corrections to the department
31-10 [division] for approval.
31-11 (d) The department [division] shall revoke the license of a
31-12 facility or the registration of a family home that does not comply
31-13 with standards at the end of a license or registration suspension.
31-14 (e) The department [division] may suspend or revoke the
31-15 license of a facility or the registration of a family home that
31-16 does not correct items that were in noncompliance or that does not
31-17 comply with required standards within the applicable evaluation or
31-18 probation period.
31-19 SECTION 29. Subchapter D, Chapter 42, Human Resources Code,
31-20 is amended by adding Section 42.0715 to read as follows:
31-21 Sec. 42.0715. COSTS CHARGED TO FACILITY OR FAMILY HOME. The
31-22 department shall charge a facility or family home for reimbursement
31-23 of the reasonable cost of services provided by the department in
31-24 formulating, monitoring, and implementing a corrective action plan
31-25 for the facility or family home.
31-26 SECTION 30. Section 42.072, Human Resources Code, is
31-27 amended to read as follows:
32-1 Sec. 42.072. LICENSE OR REGISTRATION DENIAL, SUSPENSION, OR
32-2 REVOCATION. (a) The department [division] may suspend, deny, [or]
32-3 revoke, or refuse to renew the license, registration, or
32-4 certification of approval of a facility or family home that does
32-5 not comply with the requirements of this chapter, the standards and
32-6 rules of the department, or the specific terms of the license,
32-7 registration, or certification. The department may revoke the
32-8 probation of a person whose license or registration is suspended if
32-9 the person violates a term of the conditions of probation.
32-10 (b) If the department proposes to take an action under
32-11 Subsection (a), the person is entitled to a hearing conducted by
32-12 the State Office of Administrative Hearings. Proceedings for a
32-13 disciplinary action are governed by the administrative procedure
32-14 law, Chapter 2001, Government Code. Rules of practice adopted by
32-15 the board under Section 2001.004, Government Code, applicable to
32-16 the proceedings for a disciplinary action may not conflict with
32-17 rules adopted by the State Office of Administrative Hearings. [The
32-18 division shall notify the person operating or proposing to operate
32-19 a facility of the reasons for the denial or revocation and of the
32-20 person's right to appeal the decision within 30 days after
32-21 receiving the notice.]
32-22 (c) [A person who wishes to appeal a license denial or
32-23 revocation shall notify the director by certified mail within 30
32-24 days after receiving the notice required in Subsection (b) of this
32-25 section. The person shall send a copy of the notice of appeal to
32-26 the assigned division representative.]
32-27 [(d) The denial or revocation of a license or certification
33-1 and the appeal from that action are governed by the procedure for a
33-2 contested case hearing under Chapter 2001, Government Code.]
33-3 [(e) A person whose license has been denied or revoked may
33-4 challenge the decision by filing a suit in a district court of
33-5 Travis County or the county in which the person's facility is
33-6 located within 30 days after receiving the decision. The trial
33-7 shall be de novo.]
33-8 [(f) Records of the hearing shall be kept for two years
33-9 after a decision is rendered. On request, and at the person's own
33-10 expense, the division shall supply a copy of the verbatim
33-11 transcript of the hearing to a person appealing a license denial or
33-12 revocation in district court.]
33-13 [(g) A person may continue to operate a facility during an
33-14 appeal of a license denial or revocation unless the division has
33-15 obtained injunctive relief under Section 42.074 or civil penalties
33-16 under Section 42.075 or the facility has been closed under Section
33-17 42.073.]
33-18 [(h)] A person whose license, registration, or certification
33-19 is revoked may not apply for any license, registration, or
33-20 certification under this chapter before the second anniversary of
33-21 the date on which the revocation takes effect by department or
33-22 court order.
33-23 (d) The department by rule may provide for denial of an
33-24 application or renewal for a licensed facility or for registering a
33-25 family home or may revoke a facility's license or a family home's
33-26 registration based on findings of criminal history as a result of a
33-27 background or criminal history check.
34-1 SECTION 31. Section 42.073, Human Resources Code, is
34-2 amended to read as follows:
34-3 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
34-4 OR FAMILY HOME. (a) The department [division] shall suspend a
34-5 facility's license or a family home's registration and[,] order the
34-6 immediate closing of the facility or family home[, and place the
34-7 children attending or residing in the facility elsewhere] if:
34-8 (1) the department [division] finds the facility or
34-9 family home is operating in violation of the applicable standards
34-10 prescribed by this chapter; and
34-11 (2) the violation creates an immediate threat to the
34-12 health and safety of the children attending or residing in the
34-13 facility or family home.
34-14 (b) An order suspending a license or registration and an
34-15 order closing a facility or family home under this section is
34-16 immediately effective on the date on which the [license] holder of
34-17 the license or registration receives written notice or on a later
34-18 date specified in the order.
34-19 (c) An order is valid for 10 days after the effective date
34-20 of the order.
34-21 (d) The suspension of a license or registration and the
34-22 closure of a [the] facility or family home and the appeal from that
34-23 action are governed by the procedures for a contested case hearing
34-24 under Chapter 2001, Government Code.
34-25 SECTION 32. Subsections (a) and (c), Section 42.074, Human
34-26 Resources Code, are amended to read as follows:
34-27 (a) When it appears that a person has violated, is
35-1 violating, or is threatening to violate the licensing,
35-2 certification, or registration requirements of this chapter or the
35-3 department's licensing, certification, or registration rules and
35-4 standards, the department [division] may file a suit in a district
35-5 court in Travis County or in the county where the facility or
35-6 family home is located for assessment and recovery of civil
35-7 penalties under Section 42.075 [of this code], for injunctive
35-8 relief, including a temporary restraining order, or for both
35-9 injunctive relief and civil penalties.
35-10 (c) At the department's [division's] request, the attorney
35-11 general or the county or district attorney of the county in which
35-12 the facility or family home is located shall conduct a suit in the
35-13 name of the State of Texas for injunctive relief, to recover the
35-14 civil penalty, or for both injunctive relief and civil penalties as
35-15 authorized by Subsection (a) [of this section].
35-16 SECTION 33. Subsection (a), Section 42.075, Human Resources
35-17 Code, is amended to read as follows:
35-18 (a) A person is subject to a civil penalty of not less than
35-19 $50 nor more than $100 for each day of violation and for each act
35-20 of violation if the person:
35-21 (1) threatens serious harm to a child in a facility or
35-22 family home by violating a provision of this chapter or a
35-23 department rule or standard;
35-24 (2) violates a provision of this chapter or a
35-25 department rule or standard three or more times within a 12-month
35-26 period; or
35-27 (3) places a public advertisement for an unlicensed
36-1 facility or unregistered family home.
36-2 SECTION 34. Section 42.076, Human Resources Code, is
36-3 amended to read as follows:
36-4 Sec. 42.076. CRIMINAL PENALTIES. (a) A person who operates
36-5 a child-care facility or child-placing agency without a license
36-6 commits a Class B misdemeanor.
36-7 (b) A person who operates a family home without a
36-8 registration commits a Class B misdemeanor.
36-9 (c) A person who places a public advertisement for an
36-10 unlicensed facility or an unregistered family home commits a Class
36-11 C misdemeanor.
36-12 [(c) A person who places an advertisement for a registered
36-13 family home in violation of Section 42.052(f) of this code commits
36-14 a Class C misdemeanor.]
36-15 (d) It is not an offense under this section if a
36-16 professional provides legal or medical services to:
36-17 (1) a parent who identifies the prospective adoptive
36-18 parent and places the child for adoption without the assistance of
36-19 the professional; or
36-20 (2) a prospective adoptive parent who identifies a
36-21 parent and receives placement of a child for adoption without
36-22 assistance of the professional.
36-23 SECTION 35. Section 42.077, Human Resources Code, is
36-24 amended to read as follows:
36-25 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY
36-26 HOME. (a) If the department revokes or suspends a facility's
36-27 license or a family home's registration, the department shall
37-1 publish notice of this action in a newspaper of general circulation
37-2 in the county in which the facility or family home is located. The
37-3 newspaper shall place the notice in the section in which
37-4 advertisements for day-care services are normally published.
37-5 (b) If a person who operates a facility or family home that
37-6 has had its license or registration revoked or suspended later
37-7 applies for a new license or registration to operate the same
37-8 facility or family home, the department shall charge the person an
37-9 application fee in an amount necessary to reimburse the department
37-10 for the cost of the notice relating to that facility or family
37-11 home.
37-12 (c) The department shall pay for publication of the notice
37-13 from funds appropriated to the department for licensing and
37-14 regulating child-care facilities and for registering and regulating
37-15 family homes and from appeal and application fees collected under
37-16 Subsection (b) [of this section] and appropriated to the
37-17 department.
37-18 (d) A facility or family home that has its license or
37-19 registration revoked or suspended shall mail notification of this
37-20 action by certified mail to the parents or guardian of the child
37-21 served by the facility or family home. The facility or family home
37-22 shall mail the notification within five days of the effective date
37-23 of the [license] revocation or suspension of the license or
37-24 registration.
37-25 SECTION 36. Subchapter D, Chapter 42, Human Resources Code,
37-26 is amended by adding Section 42.078 to read as follows:
37-27 Sec. 42.078. ADMINISTRATIVE PENALTY. (a) The department
38-1 may impose an administrative penalty against a facility or family
38-2 home licensed or registered under this chapter that violates this
38-3 chapter or a rule or order adopted under this chapter.
38-4 (b) The penalty for a violation may be in an amount not to
38-5 exceed $100. Each day a violation continues or occurs is a
38-6 separate violation for purposes of imposing a penalty.
38-7 (c) The amount of the penalty shall be based on:
38-8 (1) the seriousness of the violation, including the
38-9 nature, circumstances, extent, and gravity of any prohibited acts,
38-10 and the hazard or potential hazard created to the health, safety,
38-11 or economic welfare of the public;
38-12 (2) the economic harm to property or the environment
38-13 caused by the violation;
38-14 (3) the history of previous violations;
38-15 (4) the amount necessary to deter future violations;
38-16 (5) efforts to correct the violation; and
38-17 (6) any other matter that justice may require.
38-18 (d) If the executive director determines that a violation
38-19 has occurred, the director may issue a recommendation on the
38-20 imposition of a penalty, including a recommendation on the amount
38-21 of the penalty.
38-22 (e) Within 14 days after the date the recommendation is
38-23 issued, the executive director shall give written notice of the
38-24 recommendation to the person owning or operating the facility. The
38-25 notice may be given by certified mail. The notice must include a
38-26 brief summary of the alleged violation and a statement of the
38-27 amount of the recommended penalty and must inform the person that
39-1 the person has a right to a hearing on the occurrence of the
39-2 violation, the amount of the penalty, or both the occurrence of the
39-3 violation and the amount of the penalty.
39-4 (f) Within 20 days after the date the person receives the
39-5 notice, the person in writing may accept the determination and
39-6 recommended penalty of the executive director or may make a written
39-7 request for a hearing on the occurrence of the violation, the
39-8 amount of the penalty, or both the occurrence of the violation and
39-9 the amount of the penalty.
39-10 (g) If the person accepts the determination and recommended
39-11 penalty of the executive director or fails to respond to the notice
39-12 in a timely manner, the executive director shall issue an order and
39-13 impose the recommended penalty.
39-14 (h) If the person requests a hearing, the executive director
39-15 shall set a hearing and give notice of the hearing to the person.
39-16 The hearing shall be held by an administrative law judge of the
39-17 State Office of Administrative Hearings. The administrative law
39-18 judge shall make findings of fact and conclusions of law and issue
39-19 a final decision finding that a violation has occurred and imposing
39-20 a penalty or finding that no violation occurred.
39-21 (i) The notice of the administrative law judge's order given
39-22 to the person under Chapter 2001, Government Code, must include a
39-23 statement of the right of the person to judicial review of the
39-24 order.
39-25 (j) Within 30 days after the date the administrative law
39-26 judge's order becomes final as provided by Section 2001.144,
39-27 Government Code, the person shall:
40-1 (1) pay the amount of the penalty;
40-2 (2) pay the amount of the penalty and file a petition
40-3 for judicial review contesting the occurrence of the violation, the
40-4 amount of the penalty, or both the occurrence of the violation and
40-5 the amount of the penalty; or
40-6 (3) without paying the amount of the penalty, file a
40-7 petition for judicial review contesting the occurrence of the
40-8 violation, the amount of the penalty, or both the occurrence of the
40-9 violation and the amount of the penalty.
40-10 (k) Within the 30-day period, a person who acts under
40-11 Subsection (j)(3) may:
40-12 (1) stay enforcement of the penalty by:
40-13 (A) paying the amount of the penalty to the
40-14 court for placement in an escrow account; or
40-15 (B) giving to the court a supersedeas bond that
40-16 is approved by the court for the amount of the penalty and that is
40-17 effective until all judicial review of the order is final; or
40-18 (2) request the court to stay enforcement of the
40-19 penalty by:
40-20 (A) filing with the court a sworn affidavit of
40-21 the person stating that the person is financially unable to pay the
40-22 amount of the penalty and is financially unable to give the
40-23 supersedeas bond; and
40-24 (B) giving a copy of the affidavit to the
40-25 executive director by certified mail.
40-26 (l) On receipt of a copy of an affidavit under Subsection
40-27 (k)(2), the executive director may file with the court, within five
41-1 days after the date the copy is received, a contest to the
41-2 affidavit. The court shall hold a hearing on the facts alleged in
41-3 the affidavit as soon as practicable and shall stay the enforcement
41-4 of the penalty on finding that the alleged facts are true. The
41-5 person who files an affidavit has the burden of proving that the
41-6 person is financially unable to pay the amount of the penalty and
41-7 to give a supersedeas bond.
41-8 (m) If the person does not pay the amount of the penalty and
41-9 the enforcement of the penalty is not stayed, the executive
41-10 director may refer the matter to the attorney general for
41-11 collection of the amount of the penalty.
41-12 (n) Judicial review of the order:
41-13 (1) is instituted by filing a petition as provided by
41-14 Subchapter G, Chapter 2001, Government Code; and
41-15 (2) is under the substantial evidence rule.
41-16 (o) If the court sustains the occurrence of the violation,
41-17 the court may uphold or reduce the amount of the penalty and order
41-18 the person to pay the full or reduced amount of the penalty. If
41-19 the court does not sustain the occurrence of the violation, the
41-20 court shall order that no penalty is owed.
41-21 (p) When the judgment of the court becomes final, the court
41-22 shall proceed under this subsection. If the person paid the amount
41-23 of the penalty and if that amount is reduced or is not upheld by
41-24 the court, the court shall order that the appropriate amount plus
41-25 accrued interest be remitted to the person. The rate of the
41-26 interest is the rate charged on loans to depository institutions by
41-27 the New York Federal Reserve Bank, and the interest shall be paid
42-1 for the period beginning on the date the penalty was paid and
42-2 ending on the date the penalty is remitted. If the person gave a
42-3 supersedeas bond and if the amount of the penalty is not upheld by
42-4 the court, the court shall order the release of the bond. If the
42-5 person gave a supersedeas bond and if the amount of the penalty is
42-6 reduced, the court shall order the release of the bond after the
42-7 person pays the amount.
42-8 (q) A penalty collected under this section shall be sent to
42-9 the comptroller for deposit in the general revenue fund.
42-10 (r) All proceedings under this section are subject to
42-11 Chapter 2001, Government Code.
42-12 SECTION 37. Chapter 43, Human Resources Code, is amended by
42-13 adding Section 43.0042 to read as follows:
42-14 Sec. 43.0042. RECOGNITION OF LICENSE ISSUED BY ANOTHER
42-15 STATE. (a) The department may waive any prerequisite to obtaining
42-16 a license for an applicant:
42-17 (1) after reviewing the applicant's credentials and
42-18 determining that the applicant holds a valid license from another
42-19 state that has license requirements substantially equivalent to
42-20 those of this state; or
42-21 (2) after determining the applicant has a valid
42-22 license from another state with which this state has a reciprocity
42-23 agreement.
42-24 (b) The department may enter into an agreement with another
42-25 state to permit licensing by reciprocity.
42-26 SECTION 38. Chapter 43, Human Resources Code, is amended by
42-27 adding Section 43.0055 to read as follows:
43-1 Sec. 43.0055. COMPETITIVE BIDDING OR ADVERTISING RULES.
43-2 (a) The department may not adopt rules restricting competitive
43-3 bidding or advertising by a license holder except to prohibit
43-4 false, misleading, or deceptive practices.
43-5 (b) In its rules to prohibit false, misleading, or deceptive
43-6 practices, the department may not include a rule that:
43-7 (1) restricts the use of any medium for advertising;
43-8 (2) restricts the use of a license holder's personal
43-9 appearance or voice in an advertisement;
43-10 (3) relates to the size or duration of an
43-11 advertisement by the license holder; or
43-12 (4) restricts the license holder's advertisement under
43-13 a trade name.
43-14 SECTION 39. Section 43.006, Human Resources Code, is
43-15 amended to read as follows:
43-16 Sec. 43.006. Fees. The board may set and charge fees for
43-17 administering an examination and issuing an initial license, [or]
43-18 renewal license, or provisional license in amounts necessary to
43-19 cover the costs of administering this chapter.
43-20 SECTION 40. Chapter 43, Human Resources Code, is amended by
43-21 adding Section 43.0081 to read as follows:
43-22 Sec. 43.0081. PROVISIONAL LICENSE. (a) The department may
43-23 issue a provisional license to an applicant licensed in another
43-24 state who applies for a license in this state. An applicant for a
43-25 provisional license under this section must:
43-26 (1) be licensed in good standing as a child-care
43-27 administrator for at least two years in another state, the District
44-1 of Columbia, a foreign country, or a territory of the United States
44-2 that has licensing requirements that are substantially equivalent
44-3 to the requirements of this chapter;
44-4 (2) have passed a national or other examination
44-5 recognized by the department that demonstrates competence in the
44-6 field of child-care administration; and
44-7 (3) be sponsored by a person licensed by the
44-8 department under this chapter with whom the provisional license
44-9 holder may practice under this section.
44-10 (b) The department may waive the requirement of Subsection
44-11 (a)(3) for an applicant if the department determines that
44-12 compliance with that subsection constitutes a hardship to the
44-13 applicant.
44-14 (c) A provisional license is valid until the date the
44-15 department approves or denies the provisional license holder's
44-16 application for a license. The department shall issue a license
44-17 under this chapter to the provisional license holder if:
44-18 (1) the provisional license holder passes the
44-19 examination required by Section 43.004;
44-20 (2) the department verifies that the provisional
44-21 license holder has the academic and experience requirements for a
44-22 license under this chapter; and
44-23 (3) the provisional license holder satisfies any other
44-24 license requirements under this chapter.
44-25 (d) The department must complete the processing of a
44-26 provisional license holder's application for a license not later
44-27 than the 180th day after the date the provisional license is
45-1 issued. The department may extend the 180-day limit if the results
45-2 of the license holder's examination have not been received by the
45-3 department.
45-4 SECTION 41. Subsections (b) through (f), Section 43.009,
45-5 Human Resources Code, are amended to read as follows:
45-6 (b) The board shall recognize, prepare, or administer
45-7 continuing education programs for license holders. The continuing
45-8 education requirement may be fulfilled by studies in the areas of
45-9 legal aspects of child care, concepts related to the field of
45-10 social work, or other subjects approved by the department.
45-11 (c) A person who is otherwise eligible to renew a license
45-12 may renew an unexpired license by paying to the department before
45-13 the expiration date of the license the required renewal fee. A
45-14 person whose license has expired may not engage in the activities
45-15 that require a license until the license has been renewed under the
45-16 provisions of this section.
45-17 (d) If a person's license has been expired for 90 days or
45-18 less, the person may renew the license by paying to the department
45-19 one and [the required renewal fee and a fee that is] one-half times
45-20 the required renewal [of the examination] fee [for the license].
45-21 (e) If a person's license has been expired for longer than
45-22 90 days but less than one year [two years], the person may renew
45-23 the license by paying to the department two times the required [all
45-24 unpaid] renewal [fees and a] fee [that is equal to the examination
45-25 fee for the license].
45-26 (f) If a person's license has been expired for one year [two
45-27 years] or longer, the person may not renew the license. The person
46-1 may obtain a new license by submitting to reexamination and
46-2 complying with the requirements and procedures for obtaining an
46-3 original license. If the [However, the department may renew
46-4 without reexamination an expired license of a] person [who] was
46-5 licensed in this state, moved to another state, and is currently
46-6 licensed and has been in practice in the other state for the two
46-7 years preceding application, the person may renew an expired
46-8 license without reexamination. The person must pay to the
46-9 department a fee that is equal to two times the required renewal
46-10 [the examination] fee for the license.
46-11 SECTION 42. Section 43.010, Human Resources Code, is
46-12 amended to read as follows:
46-13 Sec. 43.010. LICENSE REVOCATION, [OR] SUSPENSION, OR
46-14 REFUSAL; REPRIMAND OR PROBATION. (a) The department shall revoke,
46-15 suspend, or refuse to renew a license, place on probation a person
46-16 whose license has been suspended, or reprimand a license holder for
46-17 a violation by the license holder of this chapter or a rule of the
46-18 board.
46-19 (b) The department may revoke a license if the license
46-20 holder is:
46-21 (1) convicted of a felony;
46-22 (2) convicted of a misdemeanor involving fraud or
46-23 deceit;
46-24 (3) addicted to a dangerous drug or intemperate in the
46-25 use of alcohol; or
46-26 (4) grossly negligent in performing duties as a
46-27 child-care administrator.
47-1 (c) [(b)] The department shall suspend a license, place on
47-2 probation a person whose license has been suspended, or reprimand a
47-3 license holder for a violation of this chapter or a rule of the
47-4 board.
47-5 (d) If a license suspension is probated, the department may
47-6 require the license holder:
47-7 (1) to report regularly to the department on the
47-8 conditions [matters that are the basis] of the probation;
47-9 (2) to limit practice to the areas prescribed by the
47-10 department; or
47-11 (3) to continue or renew professional education until
47-12 the practitioner attains a degree of skill satisfactory to the
47-13 department in those areas in which improvement is a condition [that
47-14 are the basis] of the probation.
47-15 SECTION 43. Chapter 43, Human Resources Code, is amended by
47-16 adding Sections 43.0105 and 43.0106 to read as follows:
47-17 Sec. 43.0105. REVOCATION OF PROBATION. The department may
47-18 revoke the probation of a license holder whose license is suspended
47-19 if the license holder violates a term of the conditions of
47-20 probation.
47-21 Sec. 43.0106. DISCIPLINARY HEARING. If the department
47-22 proposes to suspend, revoke, or refuse to renew a person's license,
47-23 the person is entitled to a hearing conducted by the State Office
47-24 of Administrative Hearings. Proceedings for a disciplinary action
47-25 are governed by the administrative procedure law, Chapter 2001,
47-26 Government Code. Rules of practice adopted by the board under
47-27 Section 2001.004, Government Code, applicable to the proceedings
48-1 for a disciplinary action may not conflict with rules adopted by
48-2 the State Office of Administrative Hearings.
48-3 SECTION 44. Subdivision (2), Section 48.002, Human Resources
48-4 Code, is amended to read as follows:
48-5 (2) "Abuse" means:
48-6 (A) the negligent or wilful infliction of
48-7 injury, unreasonable confinement, intimidation, or cruel punishment
48-8 with resulting physical or emotional harm or pain to an elderly or
48-9 disabled person by the person's caretaker, family member, or other
48-10 individual who has an ongoing relationship with the person; or
48-11 (B) sexual abuse of an elderly or disabled
48-12 person, including any involuntary or nonconsensual sexual conduct
48-13 that would constitute an offense under[:]
48-14 [(i)] Section 21.08, Penal Code (indecent
48-15 exposure)[;] or
48-16 [(ii)] Chapter 22, Penal Code (assaultive
48-17 offenses), committed by the person's caretaker, family member, or
48-18 other individual who has an ongoing relationship with the person.
48-19 SECTION 45. Subsection (a), Section 48.0215, Human Resources
48-20 Code, as amended by Chapters 76, 303, and 1039, Acts of the 74th
48-21 Legislature, Regular Session, 1995, is amended to read as follows:
48-22 (a) The department shall file an application under Section
48-23 682 or 875 [Chapter XIII], [of the] Texas Probate Code, to be
48-24 appointed guardian of the person or [and] estate or both of an
48-25 individual who is a minor, is a conservatee of the department, and,
48-26 because of a physical or mental condition, will be substantially
48-27 unable to provide food, clothing, or shelter for himself or
49-1 herself, to care for the individual's own physical health, or to
49-2 manage the individual's own financial affairs when the individual
49-3 becomes an adult. If a less restrictive alternative to
49-4 guardianship is available for an individual, the department shall
49-5 pursue the alternative instead of applying for appointment as a
49-6 guardian.
49-7 SECTION 46. Section 48.0215, Human Resources Code, is
49-8 amended by amending Subsection (b) and adding Subsection (e) to
49-9 read as follows:
49-10 (b) As a last resort, the department may apply to be
49-11 appointed guardian of the person or estate of an elderly or
49-12 disabled person who is found by the department to be in a state of
49-13 abuse, neglect, or exploitation, and who, because of a physical or
49-14 mental condition, will be substantially unable to provide food,
49-15 clothing, or shelter for himself or herself, to care for the
49-16 individual's own physical health, or to manage the individual's own
49-17 financial affairs. A representative of the department shall take
49-18 the oath required by the Texas Probate Code on behalf of the
49-19 department if the department is appointed guardian. If the
49-20 department knows that an individual is willing and able to serve as
49-21 the guardian, the department may inform the court of that
49-22 individual's willingness and ability.
49-23 (e) The department may not be required to pay fees
49-24 associated with the appointment of a guardian ad litem or attorney
49-25 ad litem.
49-26 SECTION 47. Section 48.036, Human Resources Code, is amended
49-27 by amending Subsection (a) and adding Subsection (c) to read as
50-1 follows:
50-2 (a) Except as prescribed by Section 48.082, a person having
50-3 [reasonable] cause to believe that an elderly or disabled person is
50-4 in the state of abuse, exploitation, or neglect shall report the
50-5 information required by Subsection (b) immediately to the
50-6 department.
50-7 (c) The duty imposed by Subsection (a) applies without
50-8 exception to a person whose professional communications are
50-9 generally confidential, including an attorney, clergy member,
50-10 medical practitioner, social worker, and mental health
50-11 professional.
50-12 SECTION 48. Subchapter C, Chapter 48, Human Resources Code,
50-13 is amended by adding Section 48.0362 to read as follows:
50-14 Sec. 48.0362. FALSE REPORT; PENALTY. A person commits an
50-15 offense if the person knowingly or intentionally reports
50-16 information as provided in this chapter that the person knows is
50-17 false or lacks factual foundation. An offense under this section
50-18 is a Class B misdemeanor.
50-19 SECTION 49. Section 48.037, Human Resources Code, is amended
50-20 by adding Subsection (c) to read as follows:
50-21 (c) The department by rule may assign priorities and
50-22 prescribe investigative procedures for conducting investigations
50-23 according to the degree of severity and immediacy of the alleged
50-24 harm to the individual. Notwithstanding Subsection (a), the
50-25 department's priorities and procedures may provide that an
50-26 investigation is not required to be initiated within 24 hours in
50-27 all cases. This subsection does not apply to investigations
51-1 conducted under Subchapter E.
51-2 SECTION 50. Section 48.081, Human Resources Code, is
51-3 amended to read as follows:
51-4 Sec. 48.081. INVESTIGATION OF REPORTS IN MHMR FACILITIES AND
51-5 IN COMMUNITY CENTERS. (a) The department shall receive and
51-6 investigate reports of the abuse, neglect, or exploitation of an
51-7 individual:
51-8 (1) receiving services in a facility operated by the
51-9 Texas Department of Mental Health and Mental Retardation; or
51-10 (2) being provided services through a program under
51-11 contract with a facility operated by the Texas Department of Mental
51-12 Health and Mental Retardation.
51-13 (b) The department and the Texas Department of Mental Health
51-14 and Mental Retardation shall develop joint rules to facilitate
51-15 investigations in state mental health and mental retardation
51-16 facilities.
51-17 (c) The department shall receive and investigate a report of
51-18 the alleged abuse, neglect, or exploitation of an individual
51-19 receiving services in a community center or from a program
51-20 providing services under contract with a community center.
51-21 (d) The department shall forward to a state mental health or
51-22 mental retardation facility, a community center, or a program
51-23 providing mental health or mental retardation services under
51-24 contract with such a facility or community center:
51-25 (1) a copy of any report the department receives
51-26 relating to alleged or suspected abuse, neglect, or exploitation of
51-27 an individual receiving services from that facility, community
52-1 center, or program; and
52-2 (2) a copy of the department's investigation findings
52-3 and report.
52-4 (e) The department and the Texas Department of Mental Health
52-5 and Mental Retardation by joint rules shall establish procedures
52-6 for resolving disagreements between the department and the Texas
52-7 Department of Mental Health and Mental Retardation concerning the
52-8 department's investigation findings. A confirmed investigation
52-9 finding by the department may not be changed by a superintendent of
52-10 a state mental health or mental retardation facility or a director
52-11 of a community center.
52-12 (f) After completion of the appeals process, the department
52-13 shall refer a complaint relating to an investigation conducted by
52-14 the department under this section to the department's ombudsman
52-15 office for appropriate action.
52-16 (g) [(f)] If the department's investigation under this
52-17 section reveals that an elderly or disabled person has been abused
52-18 by another person in a manner that constitutes a criminal offense
52-19 under any law, including Section 22.04, Penal Code, a copy of the
52-20 investigation shall be submitted to the appropriate law enforcement
52-21 agency.
52-22 (h) The department by rule may assign priorities to an
52-23 investigation conducted by the department under this section. The
52-24 primary criterion used by the department in assigning a priority
52-25 must be the risk that a delay in the investigation will impede the
52-26 collection of evidence.
52-27 (i) The department and the Texas Department of Mental Health
53-1 and Mental Retardation shall jointly develop and implement a single
53-2 system to track reports and investigations under this section. To
53-3 facilitate implementation of the system, the department and the
53-4 Texas Department of Mental Health and Mental Retardation shall use
53-5 appropriate methods of measuring the number and outcome of reports
53-6 and investigations under this section.
53-7 (j) [(g)] In this section, "community center" has the
53-8 meaning assigned by Section 531.002, Health and Safety Code.
53-9 SECTION 51. Subsections (b) through (f), Section 48.101,
53-10 Human Resources Code, are amended to read as follows:
53-11 (b) Confidential information may be disclosed only for a
53-12 purpose consistent with this chapter and as provided by department
53-13 or investigating state agency rule and applicable federal law.
53-14 (c) A court may order disclosure of confidential information
53-15 only if:
53-16 (1) a motion is filed with the court requesting
53-17 release of the information and a hearing on that request;
53-18 (2) notice of that hearing is served on the department
53-19 or investigating state agency and each interested party; and
53-20 (3) the court determines after the hearing and an in
53-21 camera review of the information that disclosure is essential to
53-22 the administration of justice and will not endanger the life or
53-23 safety of any individual who:
53-24 (A) is the subject of a report of abuse,
53-25 neglect, or exploitation;
53-26 (B) makes a report of abuse, neglect, or
53-27 exploitation; or
54-1 (C) participates in an investigation of reported
54-2 abuse, neglect, or exploitation.
54-3 (d) The department or investigating state agency by rule
54-4 shall provide for the release on request to a person who is the
54-5 subject of a report of abuse, neglect, or exploitation or to that
54-6 person's legal representative of otherwise confidential information
54-7 relating to that report. The department or investigating state
54-8 agency shall edit the information before release to protect the
54-9 confidentiality of information relating to the reporter's identity
54-10 and to protect any other individual whose safety or welfare may be
54-11 endangered by disclosure.
54-12 (e) The department or investigating state agency may adopt
54-13 rules relating to the release of information contained in the
54-14 record of a deceased individual who was the subject of an
54-15 investigation conducted by [to whom] the department or
54-16 investigating state agency [has provided protective services]. The
54-17 rules must be consistent with the purposes of this chapter and any
54-18 applicable state or federal law.
54-19 (f) The department or investigating state agency may
54-20 establish procedures to exchange with another state agency or
54-21 governmental entity information that is necessary for the
54-22 department, state [or the] agency, or entity to properly execute
54-23 its respective duties and responsibilities to provide services to
54-24 elderly or disabled persons under this chapter or other law. An
54-25 exchange of information under this subsection does not affect
54-26 whether the information is subject to disclosure under Chapter 552,
54-27 Government Code.
55-1 SECTION 52. Subsection (a), Section 48.103, Human Resources
55-2 Code, is amended to read as follows:
55-3 (a) A person, including a guardian and notwithstanding
55-4 Section 675, Texas Probate Code, may not interfere with:
55-5 (1) an investigation by the department or by a
55-6 protective services agency of alleged abuse, neglect, or
55-7 exploitation of an elderly or disabled person; or
55-8 (2) the provision of protective services to an elderly
55-9 or disabled person.
55-10 SECTION 53. Section 161.001, Family Code, is amended to
55-11 read as follows:
55-12 Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
55-13 RELATIONSHIP. The court may order termination of the parent-child
55-14 relationship if the court finds by clear and convincing evidence:
55-15 (1) that the parent has:
55-16 (A) voluntarily left the child alone or in the
55-17 possession of another not the parent and expressed an intent not to
55-18 return;
55-19 (B) voluntarily left the child alone or in the
55-20 possession of another not the parent without expressing an intent
55-21 to return, without providing for the adequate support of the child,
55-22 and remained away for a period of at least three months;
55-23 (C) voluntarily left the child alone or in the
55-24 possession of another without providing adequate support of the
55-25 child and remained away for a period of at least six months;
55-26 (D) knowingly placed or knowingly allowed the
55-27 child to remain in conditions or surroundings which endanger the
56-1 physical or emotional well-being of the child;
56-2 (E) engaged in conduct or knowingly placed the
56-3 child with persons who engaged in conduct which endangers the
56-4 physical or emotional well-being of the child;
56-5 (F) failed to support the child in accordance
56-6 with his ability during a period of one year ending within six
56-7 months of the date of the filing of the petition;
56-8 (G) abandoned the child without identifying the
56-9 child or furnishing means of identification, and the child's
56-10 identity cannot be ascertained by the exercise of reasonable
56-11 diligence;
56-12 (H) voluntarily, and with knowledge of the
56-13 pregnancy, abandoned the mother of the child beginning at a time
56-14 during her pregnancy with the child and continuing through the
56-15 birth, failed to provide adequate support or medical care for the
56-16 mother during the period of abandonment before the birth of the
56-17 child, and remained apart from the child or failed to support the
56-18 child since the birth;
56-19 (I) contumaciously refused to submit to a
56-20 reasonable and lawful order of a court under Chapter 264;
56-21 (J) been the major cause of:
56-22 (i) the failure of the child to be
56-23 enrolled in school as required by the Education Code; or
56-24 (ii) the child's absence from the child's
56-25 home without the consent of the parents or guardian for a
56-26 substantial length of time or without the intent to return;
56-27 (K) executed before or after the suit is filed
57-1 an unrevoked or irrevocable affidavit of relinquishment of parental
57-2 rights as provided by this chapter;
57-3 (L) been adjudicated to be criminally
57-4 responsible for the death or serious injury of a child;
57-5 (M) had his or her parent-child relationship
57-6 terminated with respect to another child based on a finding that
57-7 the parent's conduct was in violation of Paragraph (D) or (E) or
57-8 substantially equivalent provisions of the law of another state;
57-9 [or]
57-10 (N) constructively abandoned the child who has
57-11 been in the permanent or temporary managing conservatorship of the
57-12 Department of Protective and Regulatory Services or an authorized
57-13 agency for not less than six months [one year], and:
57-14 (i) the department or authorized agency
57-15 has made reasonable efforts to return the child to the parent;
57-16 (ii) the parent has not regularly visited
57-17 or maintained significant contact with the child; and
57-18 (iii) the parent has demonstrated an
57-19 inability to provide the child with a safe environment; or
57-20 (O) failed to comply with the provisions of a
57-21 court order that specifically established the actions necessary for
57-22 the parent to obtain the return of the child who has been in the
57-23 permanent or temporary managing conservatorship of the Department
57-24 of Protective and Regulatory Services for not less than nine months
57-25 as a result of the child's removal from the parent under Chapter
57-26 262 for the abuse or neglect of the child; and
57-27 (2) that termination is in the best interest of the
58-1 child.
58-2 SECTION 54. Subchapter B, Chapter 201, Family Code, is
58-3 amended by adding Section 201.1085 to read as follows:
58-4 Sec. 201.1085. DISCRETIONARY APPOINTMENT OF MASTER FOR CHILD
58-5 PROTECTION CASES. The presiding judge of an administrative
58-6 judicial region may appoint a master for a court handling child
58-7 protection cases if the court needs assistance in order to process
58-8 the cases in a reasonable time.
58-9 SECTION 55. Section 261.001, Family Code, is amended by
58-10 adding Subdivision (7) to read as follows:
58-11 (7) "Board" means the Board of Protective and
58-12 Regulatory Services.
58-13 SECTION 56. Section 261.107, Family Code, is amended to
58-14 read as follows:
58-15 Sec. 261.107. False Report; Penalty. A person commits an
58-16 offense if the person knowingly or intentionally makes a report as
58-17 provided in this chapter that the person knows is false or lacks
58-18 factual foundation. An offense under this section [subsection] is
58-19 a Class A [B] misdemeanor.
58-20 SECTION 57. Subchapter D, Chapter 261, Family Code, is
58-21 amended by adding Section 261.3015 to read as follows:
58-22 Sec. 261.3015. FLEXIBLE RESPONSE SYSTEM. (a) In assigning
58-23 priorities and prescribing investigative procedures based on the
58-24 severity and immediacy of the alleged harm to a child under Section
58-25 261.301(d), the board by rule shall establish a flexible response
58-26 system to allow the department to allocate resources by
58-27 investigating serious cases of abuse and neglect and providing
59-1 assessment and family preservation services in less serious cases.
59-2 (b) The classification under the flexible response system of
59-3 a case may be changed as warranted by the circumstances.
59-4 (c) The department may implement the flexible response
59-5 system by establishing a pilot program in a single department
59-6 service region. The department shall study the results of the
59-7 system in the region in determining the method by which to
59-8 implement the system statewide.
59-9 SECTION 58. Subchapter D, Chapter 261, Family Code, is
59-10 amended by adding Section 261.3016 to read as follows:
59-11 Sec. 261.3016. INVESTIGATION BY LAW ENFORCEMENT PILOT
59-12 PROGRAM. (a) Not later than March 1, 1998, the department may
59-13 enter into an agreement with the sheriff of a county having a
59-14 population of not more than 25,000 under which the sheriff shall
59-15 have the duty to conduct investigations of reports of abuse or
59-16 neglect under this chapter.
59-17 (b) An agreement under this section must:
59-18 (1) specify the respective responsibilities of the
59-19 sheriff and of the department in the investigative process;
59-20 (2) provide that the department shall assist in the
59-21 removal of a child under Chapter 262 if necessary for the
59-22 protection of the child;
59-23 (3) provide for the use of any available children's
59-24 advocacy center or multidisciplinary team under Subchapter E,
59-25 Chapter 264;
59-26 (4) include provisions for the reimbursement by the
59-27 department from available state and federal funds of the costs
60-1 incurred by the sheriff in conducting an investigation of a report
60-2 of abuse or neglect; and
60-3 (5) contain other provisions that the sheriff and
60-4 department determine to be necessary and appropriate.
60-5 (c) This section may not be interpreted as preventing the
60-6 department from assisting a sheriff in an investigation under this
60-7 section.
60-8 (d) An agreement under this section is not required to
60-9 include the investigation by a sheriff of a report of abuse or
60-10 neglect that is alleged to have occurred in a facility or home
60-11 regulated by the department under Chapter 42, Human Resources Code,
60-12 or an investigation conducted by the department under Section
60-13 48.081, Human Resources Code, or Section 261.404.
60-14 (e) If an agreement is made under this section, the
60-15 department and the sheriff who is a party to the agreement shall
60-16 report, not later than December 1, 1998, to the governor, the
60-17 lieutenant governor, the speaker of the house of representatives,
60-18 and the legislature regarding the performance of investigations
60-19 under the agreement.
60-20 SECTION 59. Section 261.311, Family Code, is amended to
60-21 read as follows:
60-22 Sec. 261.311. NOTICE OF REPORT [INTERVIEW OR EXAMINATION].
60-23 (a) When [If,] during an investigation of a report of suspected
60-24 child abuse or neglect[,] a representative of the department or the
60-25 designated agency conducts an interview with or an examination of a
60-26 child, the department or designated agency shall make a reasonable
60-27 effort before 24 hours after the time of the interview or
61-1 examination to notify each parent of the child and the child's
61-2 legal guardian, if one has been appointed, of the nature of the
61-3 allegation and of the fact that the interview or examination was
61-4 conducted.
61-5 (b) If a report of suspected child abuse or neglect is
61-6 administratively closed by the department or designated agency as a
61-7 result of a preliminary investigation that did not include an
61-8 interview or examination of the child, the department or designated
61-9 agency shall make a reasonable effort before the expiration of 24
61-10 hours after the time the investigation is closed to notify each
61-11 parent and legal guardian of the child of the disposition of the
61-12 investigation.
61-13 (c) The notice required by Subsection (a) or (b) is not
61-14 required if the department or agency determines that the notice is
61-15 likely to endanger the safety of the child who is the subject of
61-16 the report, the person who made the report, or any other person who
61-17 participates in the investigation of the report.
61-18 (d) The notice required by Subsection (a) or (b) may be
61-19 delayed at the request of a law enforcement agency if notification
61-20 during the required time would interfere with an ongoing criminal
61-21 investigation.
61-22 SECTION 60. Subchapter D, Chapter 261, Family Code, is
61-23 amended by adding Section 261.315 to read as follows:
61-24 Sec. 261.315. REMOVAL OF CERTAIN INVESTIGATION INFORMATION
61-25 FROM RECORDS. (a) At the conclusion of an investigation in which
61-26 the department determines that the person alleged to have abused or
61-27 neglected a child did not commit abuse or neglect, the department
62-1 shall notify the person of the person's right to request the
62-2 department to remove information about the person's alleged role in
62-3 the abuse or neglect report from the department's records.
62-4 (b) On request under Subsection (a) by a person whom the
62-5 department has determined did not commit abuse or neglect, the
62-6 department shall remove information from the department's records
62-7 concerning the person's alleged role in the abuse or neglect
62-8 report.
62-9 (c) The board shall adopt rules necessary to administer this
62-10 section.
62-11 SECTION 61. Subsection (a), Section 262.109, Family Code,
62-12 is amended to read as follows:
62-13 (a) The department or other agency must give written notice
62-14 as prescribed by this section to each parent of the child or to the
62-15 child's [parent,] conservator[,] or legal guardian when a
62-16 representative of the Department of Protective and Regulatory
62-17 Services or other agency takes possession of a child under this
62-18 chapter.
62-19 SECTION 62. Subsection (c), Section 262.201, Family Code,
62-20 is amended to read as follows:
62-21 (c) If the court finds sufficient evidence to satisfy a
62-22 person of ordinary prudence and caution that there is a continuing
62-23 danger to the physical health or safety of the child and for the
62-24 child to remain in the home is contrary to the welfare of the
62-25 child, the court shall:
62-26 (1) issue an appropriate temporary order under Chapter
62-27 105; and
63-1 (2) inform each parent in open court that parental and
63-2 custodial rights and duties may be subject to restriction or to
63-3 termination unless the parent or parents are willing and able to
63-4 provide the child with a safe environment.
63-5 SECTION 63. Subchapter A, Chapter 263, Family Code, is
63-6 amended by adding Section 263.006 to read as follows:
63-7 Sec. 263.006. WARNING TO PARENTS. At the status hearing
63-8 under Subchapter C and at each permanency hearing under Subchapter
63-9 D held after the court has rendered a temporary order appointing
63-10 the department as temporary managing conservator, the court shall
63-11 inform each parent in open court that parental and custodial rights
63-12 and duties may be subject to restriction or to termination unless
63-13 the parent or parents are willing and able to provide the child
63-14 with a safe environment.
63-15 SECTION 64. Section 263.201, Family Code, is amended to
63-16 read as follows:
63-17 Sec. 263.201. STATUS HEARING; TIME. Not later than the 60th
63-18 day after the date the court renders a temporary order appointing
63-19 the department as temporary managing conservator of a child [of a
63-20 full adversary hearing under Chapter 262], the court shall hold a
63-21 status hearing to review the child's status and the permanency plan
63-22 developed for the child.
63-23 SECTION 65. The heading to Subchapter D, Chapter 263,
63-24 Family Code, is amended to read as follows:
63-25 SUBCHAPTER D. PERMANENCY [REVIEW] HEARINGS
63-26 SECTION 66. Subsections (a) and (b), Section 263.301,
63-27 Family Code, are amended to read as follows:
64-1 (a) Notice of a permanency [review] hearing shall be given
64-2 as provided by Rule 21a, Texas Rules of Civil Procedure, to all
64-3 persons entitled to notice of the hearing.
64-4 (b) The following persons are entitled to at least 10 days'
64-5 notice of a permanency hearing [to review a child's placement] and
64-6 are entitled to present evidence and be heard at the hearing:
64-7 (1) the department;
64-8 (2) the foster parent or director of the group home or
64-9 institution where the child is residing;
64-10 (3) each parent of the child;
64-11 (4) the managing conservator or guardian of the child;
64-12 [and]
64-13 (5) an attorney ad litem appointed for the child under
64-14 Chapter 107;
64-15 (6) a volunteer advocate appointed for the child under
64-16 Chapter 107; and
64-17 (7) any other person or agency named by the court to
64-18 have an interest in the child's welfare.
64-19 SECTION 67. Section 263.302, Family Code, is amended to
64-20 read as follows:
64-21 Sec. 263.302. CHILD'S ATTENDANCE AT HEARING. The [court may
64-22 dispense with the attendance of the] child shall attend each
64-23 permanency hearing unless the court specifically excuses the
64-24 child's attendance. Failure by the child to attend a hearing does
64-25 not affect the validity of an order rendered at the [at a placement
64-26 review] hearing.
64-27 SECTION 68. Subchapter D, Chapter 263, Family Code, is
65-1 amended by adding Section 263.3025 to read as follows:
65-2 Sec. 263.3025. PERMANENCY PLAN. (a) The department shall
65-3 prepare a permanency plan for a child for whom the department has
65-4 been appointed temporary managing conservator. The department
65-5 shall give a copy of the plan to each person entitled to notice
65-6 under Section 263.301(b) not later than the 10th day before the
65-7 date of the child's first permanency hearing.
65-8 (b) In addition to the requirements of the department rules
65-9 governing permanency planning, the permanency plan must contain the
65-10 information required to be included in a permanency progress report
65-11 under Section 263.303.
65-12 (c) The department shall modify the permanency plan for a
65-13 child as required by the circumstances and needs of the child.
65-14 SECTION 69. Section 263.303, Family Code, is amended to
65-15 read as follows:
65-16 Sec. 263.303. PERMANENCY PROGRESS [STATUS] REPORT. (a) Not
65-17 later than the 10th day before the date set for each permanency
65-18 hearing other than the first permanency [review] hearing, the
65-19 department or other authorized agency shall file with the court and
65-20 provide to each party, the child's attorney ad litem, and the
65-21 child's volunteer advocate a permanency progress [status] report
65-22 unless the court orders a different period for providing the report
65-23 [or orders that a report is not required for a specific hearing].
65-24 (b) The permanency progress [status] report must:
65-25 (1) recommend that the suit be dismissed; or
65-26 (2) recommend that the suit continue, and:
65-27 (A) identify the date for dismissal of the suit
66-1 under this chapter;
66-2 (B) provide:
66-3 (i) the name of any person entitled to
66-4 notice under Chapter 102 who has not been served;
66-5 (ii) a description of the efforts by the
66-6 department or another agency to locate and request service of
66-7 citation; and
66-8 (iii) a description of each parent's
66-9 assistance in providing information necessary to locate an unserved
66-10 party;
66-11 (C) evaluate [all relevant information
66-12 concerning each of the guidelines under this chapter and] the
66-13 parties' compliance with temporary orders and with the service
66-14 plan;
66-15 (D) evaluate whether the child's placement in
66-16 substitute care meets the child's needs and recommend other plans
66-17 or services to meet the child's special needs or circumstances;
66-18 (E) describe the permanency plan for the child
66-19 and recommend actions necessary to ensure that a final order
66-20 consistent with that permanency plan is rendered before the date
66-21 for dismissal of the suit under this chapter; and
66-22 (F) [(2) recommend one of the following actions:]
66-23 [(A) that the child be returned to the child's
66-24 home and that the suit be dismissed;]
66-25 [(B) that the child be returned to the child's
66-26 home with the department or other agency retaining conservatorship;]
66-27 [(C) that the child remain in substitute care
67-1 for a specified period and that the child's parents continue to
67-2 work toward providing the child with a safe environment;]
67-3 [(D) that the child remain in substitute care
67-4 for a specified period and that termination of parental rights be
67-5 sought under this code;]
67-6 [(E) that a child who has resided in substitute
67-7 care for at least 18 months be placed or remain in permanent or
67-8 long-term substitute care because of the child's special needs or
67-9 circumstances; or]
67-10 [(F) that other plans be made or other services
67-11 provided in accordance with the child's special needs or
67-12 circumstances; and]
67-13 [(3)] with respect to a child 16 years of age or
67-14 older, identify the services needed to assist the child in the
67-15 transition to adult life.
67-16 (c) A parent whose parental rights are the subject of a suit
67-17 affecting the parent-child relationship, the attorney for that
67-18 parent, or the child's attorney ad litem or guardian ad litem may
67-19 file a response to the department's or other agency's report filed
67-20 under Subsection (b). A response must be filed not later than the
67-21 third day before the date of the hearing.
67-22 SECTION 70. Section 263.304, Family Code, is amended to
67-23 read as follows:
67-24 Sec. 263.304. INITIAL PERMANENCY [REVIEW] HEARING; TIME.
67-25 Not later than the 180th day after the date the court renders a
67-26 temporary order appointing the department as temporary managing
67-27 conservator of a child [of the conclusion of the full adversary
68-1 hearing under Chapter 262], the court shall hold a permanency
68-2 hearing to review the status of, and permanency plan for, the [a]
68-3 child to ensure that a final order consistent with that permanency
68-4 plan is rendered before the date for dismissal of the suit under
68-5 this chapter [in substitute care in the court's jurisdiction,
68-6 including the time for the completion of the plan and the projected
68-7 date for the achievement of the child's permanency plan].
68-8 SECTION 71. Section 263.305, Family Code, is amended to
68-9 read as follows:
68-10 Sec. 263.305. SUBSEQUENT PERMANENCY [REVIEW] HEARINGS. A
68-11 subsequent permanency hearing before entry of a final order
68-12 [Subsequent review hearings] shall be held [not earlier than 5 1/2
68-13 months and] not later than the 120th day [seven months] after the
68-14 date of the last permanency hearing in the suit. For [unless,
68-15 for] good cause shown or on the court's own motion [by a party],
68-16 the court may order more frequent hearings [an earlier hearing is
68-17 approved by the court].
68-18 SECTION 72. Section 263.306, Family Code, is amended to
68-19 read as follows:
68-20 Sec. 263.306. PERMANENCY [REVIEW] HEARINGS: PROCEDURE. At
68-21 each permanency [review] hearing the court shall [determine]:
68-22 (1) identify [the identity of] all persons or parties
68-23 present at the hearing or those given notice but failing to appear;
68-24 (2) review the efforts of the department or another
68-25 agency in:
68-26 (A) attempting to locate all necessary persons;
68-27 (B) requesting service of citation; and
69-1 (C) obtaining the assistance of a parent in
69-2 providing information necessary to locate an absent parent;
69-3 (3) return the child to the parent or parents if
69-4 [whether] the child's parent or parents are willing and able to
69-5 provide the child with a safe environment and the return of the
69-6 child is in the child's best interest;
69-7 (4) place the child with a person or entity, other
69-8 than a parent, entitled to service under Chapter 102 if the person
69-9 or entity is willing and able to provide the child with a safe
69-10 environment and the return of the child is in the child's best
69-11 interest;
69-12 (5) evaluate the department's efforts to identify
69-13 relatives who could provide the child with a safe environment, if
69-14 the child is not returned to a parent or another person or entity
69-15 entitled to service under Chapter 102;
69-16 (6) evaluate the parties' compliance with temporary
69-17 orders and
69-18 [(3) the extent to which the child's parents have
69-19 taken the necessary actions or responsibilities toward achieving
69-20 the plan goal during the period of the service plan and the extent
69-21 to which the department or other authorized agency has provided
69-22 assistance to the parents as provided in] the service plan;
69-23 (7) determine [(4)] whether:
69-24 (A) the child continues to need substitute care;
69-25 (B) [and whether] the child's current placement
69-26 is appropriate for meeting the child's needs; and
69-27 (C) other plans or services are needed to meet
70-1 the child's special needs or circumstances;
70-2 (8) if the child is placed in institutional care,
70-3 determine whether efforts have been made to ensure placement of the
70-4 child in the least restrictive environment consistent with the best
70-5 interest and special needs of the child;
70-6 (9) if the child is 16 years of age or older, order
70-7 services that are needed to assist the child in making the
70-8 transition from substitute care to independent living if the
70-9 services are available in the community;
70-10 (10) determine plans, services, and further temporary
70-11 orders necessary to ensure that a final order is rendered before
70-12 the date for dismissal of the suit under this chapter; and
70-13 (11) determine the date for dismissal of the suit
70-14 under this chapter and give notice in open court to all parties of:
70-15 (A) the dismissal date;
70-16 (B) the date of the next permanency hearing; and
70-17 (C) the date the suit is set for trial.
70-18 [(5) a date for achieving the child's permanency plan;]
70-19 [(6) if the child has been in substitute care for not
70-20 less than 18 months, the future status of the child and the
70-21 appropriateness of the date by which the child may return home and
70-22 whether to render further appropriate orders;]
70-23 [(7) if the child is in substitute care outside the
70-24 state, whether the out-of-state placement continues to be
70-25 appropriate and in the best interest of the child;]
70-26 [(8) whether the child's parents are willing and able
70-27 to provide the child with a safe environment without the assistance
71-1 of a service plan and, if so, return the child to the parents;]
71-2 [(9) whether the child's parents are willing and able
71-3 to provide the child with a safe environment with the assistance of
71-4 a service plan and, if so, return the child or continue the
71-5 placement of the child in the child's home under the department's
71-6 or other agency's supervision;]
71-7 [(10) whether the child's parents are presently
71-8 unwilling or unable to provide the child with a safe environment,
71-9 even with the assistance of a service plan, and, if so, order the
71-10 child to remain under the department's or other agency's managing
71-11 conservatorship for a period of time specified by the court;]
71-12 [(11) whether a long-term substitute care placement is
71-13 in the child's best interest because of the child's special needs
71-14 or circumstances and, if so, begin a long-term substitute care
71-15 placement and if the child is placed in institutional care, whether
71-16 efforts have been made to ensure placement of the child in the
71-17 least restrictive environment consistent with the best interest and
71-18 special needs of the child;]
71-19 [(12) whether a child is 16 years of age or older and,
71-20 if so, order the services that are needed to assist the child in
71-21 making the transition from substitute care to independent living if
71-22 the services are available in the community;]
71-23 [(13) whether the child has been placed with the
71-24 department under a voluntary placement agreement and, if so, order
71-25 that the department will institute further proceedings or return
71-26 the child to the parents;]
71-27 [(14) whether the department or authorized agency has
72-1 custody, care, and control of the child under an affidavit of
72-2 relinquishment of parental rights naming the department managing
72-3 conservator and, if so, direct the department or authorized agency
72-4 to institute further proceedings; and]
72-5 [(15) whether parental rights to the child have been
72-6 terminated and, if so, determine whether the department or
72-7 authorized agency will attempt to place the child for adoption.]
72-8 SECTION 73. Chapter 263, Family Code, is amended by adding
72-9 Subchapters E and F to read as follows:
72-10 SUBCHAPTER E. FINAL ORDER FOR CHILD UNDER DEPARTMENT CARE
72-11 Sec. 263.401. DISMISSAL AFTER ONE YEAR; EXTENSION.
72-12 (a) Unless the court has rendered a final order or granted an
72-13 extension under Subsection (b), on the first Monday after the first
72-14 anniversary of the date the court rendered a temporary order
72-15 appointing the department as temporary managing conservator, the
72-16 court shall dismiss the suit affecting the parent-child
72-17 relationship filed by the department that requests termination of
72-18 the parent-child relationship or requests that the department be
72-19 named conservator of the child.
72-20 (b) On or before the time described by Subsection (a) for
72-21 the dismissal of the suit, the court may extend the court's
72-22 jurisdiction of the suit for a period stated in the extension
72-23 order, but not longer than 180 days after the time described by
72-24 Subsection (a), if the court has continuing jurisdiction of the
72-25 suit and the appointment of the department as temporary managing
72-26 conservator is in the best interest of the child. If the court
72-27 grants an extension, the extension order must also:
73-1 (1) schedule the new date for dismissal of the suit;
73-2 and
73-3 (2) make further temporary orders for the safety and
73-4 welfare of the child as necessary to avoid further delay in
73-5 resolving the suit.
73-6 (c) If the court grants an extension, the court shall render
73-7 a final order or dismiss the suit on or before the date specified
73-8 in the extension order and may not grant an additional extension.
73-9 (d) For purposes of this section, a final order is an order
73-10 that:
73-11 (1) requires that a child be returned to the child's
73-12 parent;
73-13 (2) names a relative of the child or another person as
73-14 the child's managing conservator;
73-15 (3) without terminating the parent-child relationship,
73-16 appoints the department as the managing conservator of the child;
73-17 or
73-18 (4) terminates the parent-child relationship and
73-19 appoints a relative of the child, another suitable person, or the
73-20 department as managing conservator of the child.
73-21 Sec. 263.402. RETURN OF CHILD TO PARENT OR PLACEMENT WITH
73-22 RELATIVE. (a) Notwithstanding Section 263.401, the court may
73-23 retain jurisdiction and not dismiss the suit or render a final
73-24 order as required by that section if the court renders a temporary
73-25 order that:
73-26 (1) finds that retaining jurisdiction under this
73-27 section is in the best interest of the child;
74-1 (2) orders the department to return the child to the
74-2 child's parent or to place the child with a relative of the child;
74-3 (3) orders the department to continue to serve as
74-4 temporary managing conservator of the child; and
74-5 (4) orders the department to monitor the child's
74-6 placement to ensure that the child is in a safe environment.
74-7 (b) If the court renders an order under this section, the
74-8 court shall:
74-9 (1) include in the order specific findings regarding
74-10 the grounds for the order; and
74-11 (2) schedule a new date, not later than the 180th day
74-12 after the date the temporary order is rendered, for dismissal of
74-13 the suit.
74-14 (c) If a child placed with a parent or relative under this
74-15 section must be moved from that home by the department before the
74-16 dismissal of the suit or the rendering of a final order, the court
74-17 shall, at the time of the move, schedule a new date for dismissal
74-18 of the suit. The new dismissal date may not be later than the
74-19 original dismissal date established under Section 263.401 or the
74-20 180th day after the date the child is moved under this subsection,
74-21 whichever date is later.
74-22 (d) If the court renders an order under this section, the
74-23 court must include in the order specific findings regarding the
74-24 grounds for the order.
74-25 Sec. 263.403. FINAL ORDER APPOINTING DEPARTMENT AS MANAGING
74-26 CONSERVATOR WITHOUT TERMINATING PARENTAL RIGHTS. (a) The court
74-27 may render a final order appointing the department as managing
75-1 conservator of the child without terminating the rights of the
75-2 parent of the child if the court finds that:
75-3 (1) appointment of a parent as managing conservator
75-4 would not be in the best interest of the child because the
75-5 appointment would significantly impair the child's physical health
75-6 or emotional development; and
75-7 (2) it would not be in the best interest of the child
75-8 to appoint a relative of the child or another person as managing
75-9 conservator.
75-10 (b) In determining whether the department should be
75-11 appointed as managing conservator of the child without terminating
75-12 the rights of a parent of the child, the court shall take the
75-13 following factors into consideration:
75-14 (1) that the child will reach 18 years of age in not
75-15 less than three years;
75-16 (2) that the child is 12 years of age or older and has
75-17 expressed a strong desire against termination or being adopted;
75-18 (3) that the child has special medical or behavioral
75-19 needs that make adoption of the child unlikely; and
75-20 (4) the needs and desires of the child.
75-21 (Sections 263.404-263.500 reserved for expansion
75-22 SUBCHAPTER F. PLACEMENT REVIEW HEARINGS
75-23 Sec. 263.501. PLACEMENT REVIEW AFTER FINAL ORDER. (a) If
75-24 the department has been named as a child's managing conservator in
75-25 a final order that does not include termination of parental rights,
75-26 the court shall conduct a placement review hearing at least once
75-27 every six months until the child becomes an adult.
76-1 (b) If the department has been named as a child's managing
76-2 conservator in a final order that terminates a parent's parental
76-3 rights, the court shall conduct a placement review hearing at least
76-4 once every six months until the date the child is adopted or the
76-5 child becomes an adult.
76-6 (c) Notice of a placement review hearing shall be given as
76-7 provided by Rule 21a, Texas Rules of Civil Procedure, to each
76-8 person entitled to notice of the hearing.
76-9 (d) The following are entitled to not less than 10 days'
76-10 notice of a placement review hearing:
76-11 (1) the department;
76-12 (2) the foster parent or director of the group home or
76-13 institution in which the child is residing;
76-14 (3) each parent of the child;
76-15 (4) each possessory conservator or guardian of the
76-16 child;
76-17 (5) the child's attorney ad litem and volunteer
76-18 advocate, if the appointments were not dismissed in the final
76-19 order; and
76-20 (6) any other person or agency named by the court as
76-21 having an interest in the child's welfare.
76-22 (e) The court may dispense with the requirement that the
76-23 child attend a placement review hearing.
76-24 Sec. 263.502. PLACEMENT REVIEW REPORT. (a) Not later than
76-25 the 10th day before the date set for a placement review hearing,
76-26 the department or other authorized agency shall file a placement
76-27 review report with the court and provide a copy to each person
77-1 entitled to notice under Section 263.501(d).
77-2 (b) For good cause shown, the court may order a different
77-3 time for filing the placement review report or may order that a
77-4 report is not required for a specific hearing.
77-5 (c) The placement review report must:
77-6 (1) evaluate whether the child's current placement is
77-7 appropriate for meeting the child's needs;
77-8 (2) evaluate whether efforts have been made to ensure
77-9 placement of the child in the least restrictive environment
77-10 consistent with the best interest and special needs of the child if
77-11 the child is placed in institutional care;
77-12 (3) identify the services that are needed to assist a
77-13 child who is at least 16 years of age in making the transition from
77-14 substitute care to independent living if the services are available
77-15 in the community;
77-16 (4) identify other plans or services that are needed
77-17 to meet the child's special needs or circumstances; and
77-18 (5) describe the efforts of the department or
77-19 authorized agency to place the child for adoption if parental
77-20 rights to the child have been terminated and the child is eligible
77-21 for adoption.
77-22 Sec. 263.503. PLACEMENT REVIEW HEARINGS; PROCEDURE. At each
77-23 placement review hearing, the court shall determine whether:
77-24 (1) the child's current placement is appropriate for
77-25 meeting the child's needs;
77-26 (2) efforts have been made to ensure placement of the
77-27 child in the least restrictive environment consistent with the best
78-1 interest and special needs of the child if the child is placed in
78-2 institutional care;
78-3 (3) the services that are needed to assist a child who
78-4 is at least 16 years of age in making the transition from
78-5 substitute care to independent living are available in the
78-6 community;
78-7 (4) other plans or services are needed to meet the
78-8 child's special needs or circumstances; and
78-9 (5) the department or authorized agency has exercised
78-10 due diligence in attempting to place the child for adoption if
78-11 parental rights to the child have been terminated and the child is
78-12 eligible for adoption.
78-13 SECTION 74. Section 264.009, Family Code, is amended to
78-14 read as follows:
78-15 Sec. 264.009. LEGAL REPRESENTATION OF DEPARTMENT.
78-16 (a) Except as provided by Subsection (b) or (c), in any action
78-17 under this code [title], the department shall be represented in
78-18 court by the county[:]
78-19 [(1) prosecuting] attorney [who represents the state
78-20 in criminal cases in the district or county court] of the county
78-21 where the action is brought, unless the district attorney or
78-22 criminal district attorney of the county elects to provide
78-23 representation[; or]
78-24 [(2) attorney general].
78-25 (b) If the county attorney, district attorney, or criminal
78-26 district attorney is unable to represent the department in an
78-27 action under this code because of a conflict of interest or because
79-1 special circumstances exist, the attorney general shall represent
79-2 the department in the action.
79-3 (c) If the attorney general is unable to represent the
79-4 department in an action under this code, the attorney general shall
79-5 deputize an attorney who has contracted with the department under
79-6 Subsection (d) or an attorney employed by the department under
79-7 Subsection (e) to represent the department in the action.
79-8 (d) Subject to the approval of the attorney general, the
79-9 department may contract with a private attorney to represent the
79-10 department in an action under this code.
79-11 (e) The department may employ attorneys to represent the
79-12 department in an action under this code [In a county with a
79-13 population of 2,800,000 or more, in an action under this title, the
79-14 department shall be represented in court by the:]
79-15 [(1) attorney who represents the state in civil cases
79-16 in the district or county court of the county where the action is
79-17 brought; or]
79-18 [(2) attorney general].
79-19 SECTION 75. Subchapter B, Chapter 264, Family Code, is
79-20 amended by amending Section 264.106 and adding Section 264.1061 to
79-21 read as follows:
79-22 Sec. 264.106. CONTRACTS FOR SUBSTITUTE CARE SERVICES
79-23 [CONTRACT RESIDENTIAL CARE]. (a) The department shall:
79-24 (1) assess the need for substitute care services
79-25 throughout the state; and
79-26 (2) contract with substitute care providers only to
79-27 the extent necessary to meet the need for those services.
80-1 (b) Before contracting with a substitute care provider, the
80-2 department shall determine whether:
80-3 (1) community resources are available to support
80-4 children placed under the provider's care; and
80-5 (2) the appropriate public school district has
80-6 sufficient resources to support children placed under the
80-7 provider's care if the children will attend public school.
80-8 (c) In addition to the requirements of Section 40.058(b),
80-9 Human Resources Code, a contract with a substitute care provider
80-10 must include provisions that:
80-11 (1) enable the department to monitor the effectiveness
80-12 of the provider's services; and
80-13 (2) authorize the department to terminate the contract
80-14 or impose sanctions for a violation of a provision of the contract
80-15 that specifies performance criteria.
80-16 (d) In determining whether to contract with a substitute
80-17 care provider, the department shall consider the provider's
80-18 performance under any previous contract for substitute care
80-19 services between the department and the provider.
80-20 (e) In this section, "substitute care provider" means a
80-21 person who provides residential care for children for 24 hours a
80-22 day, including:
80-23 (1) a child-care institution, as defined by Section
80-24 42.002, Human Resources Code;
80-25 (2) a child-placing agency, as defined by Section
80-26 42.002, Human Resources Code;
80-27 (3) a foster group home or foster family home, as
81-1 defined by Section 42.002, Human Resources Code; and
81-2 (4) an agency group home or agency home, as defined by
81-3 Section 42.002, Human Resources Code, other than an agency group
81-4 home, agency home, or a foster home verified or certified by the
81-5 department [make reasonable efforts to ensure that the expenditure
81-6 of appropriated funds to purchase contract residential care for
81-7 children is allocated to providers on a fixed monthly basis if:]
81-8 [(1) the allocation is cost effective; and]
81-9 [(2) the number, type, needs, and conditions of the
81-10 children served are reasonably constant.]
81-11 [(b) This section does not apply to the purchase of care in
81-12 a foster family home].
81-13 Sec. 264.1061. FOSTER PARENT PERFORMANCE. The department
81-14 shall monitor the performance of a foster parent who has been
81-15 verified by the department in the department's capacity as a
81-16 child-placing agency. The method under which performance is
81-17 monitored must include the use of objective criteria by which the
81-18 foster parent's performance may be assessed. The department shall
81-19 include references to the criteria in a written agreement between
81-20 the department and the foster parent concerning the foster parent's
81-21 services.
81-22 SECTION 76. Section 264.107, Family Code, is amended to
81-23 read as follows:
81-24 Sec. 264.107. Placement of Children. (a) In making a
81-25 placement of a child removed from the home of the child's custodial
81-26 parent, the department shall consider placing the child in the home
81-27 of the child's noncustodial parent.
82-1 (b) The department shall use a system for the placement of
82-2 children in contract residential care, including foster care, that
82-3 conforms to the levels of care adopted and maintained by the Health
82-4 and Human Services Commission.
82-5 (c) [(b)] The department shall use the standard application
82-6 for the placement of children in contract residential care as
82-7 adopted and maintained by the Health and Human Services Commission.
82-8 SECTION 77. Subchapter B, Chapter 264, Family Code, is
82-9 amended by adding Section 264.1075 to read as follows:
82-10 Sec. 264.1075. USE OF ASSESSMENT SERVICES. Before placing a
82-11 child in substitute care, the department shall use assessment
82-12 services provided by a child-care facility or child-placing agency
82-13 in accordance with Section 42.0425, Human Resources Code, to
82-14 determine the appropriate substitute care for the child.
82-15 SECTION 78. Subchapter C, Chapter 264, Family Code, is
82-16 amended by adding Sections 264.206 and 264.207 to read as follows:
82-17 Sec. 264.206. SEARCH FOR ADOPTIVE PARENTS. (a) The
82-18 department shall begin its efforts to locate qualified persons to
82-19 adopt a child, including persons registered with the adoptive
82-20 parent registry under Subchapter B, at the time the department's
82-21 permanency plan for the child becomes the termination of the
82-22 parent-child relationship and adoption of the child.
82-23 (b) The department shall report to the court in which the
82-24 department petitions for termination of the parent-child
82-25 relationship on the child's adoptability and the department's
82-26 search for prospective adoptive parents for the child, including
82-27 information relating to the department's efforts to work with
83-1 licensed child-placing agencies.
83-2 Sec. 264.207. DEPARTMENT PLANNING AND ACCOUNTABILITY.
83-3 (a) The department shall adopt policies that provide for the
83-4 improvement of the department's services for children and families,
83-5 including policies that provide for conducting a home study within
83-6 four months after the date an applicant is approved for an adoption
83-7 and documenting the results of the home study within 30 days after
83-8 the date the study is completed. The policies adopted under this
83-9 section must:
83-10 (1) be designed to increase the accountability of the
83-11 department to individuals who receive services and to the public;
83-12 and
83-13 (2) assure consistency of services provided by the
83-14 department in the different regions of the state.
83-15 (b) To accomplish the goals stated in Subsection (a), the
83-16 department shall:
83-17 (1) establish time frames for the initial screening of
83-18 families seeking to adopt children;
83-19 (2) provide for the evaluation of the effectiveness of
83-20 the department's management-level employees in expeditiously making
83-21 permanent placements for children;
83-22 (3) establish, as feasible, comprehensive assessment
83-23 services in various locations in the state to determine the needs
83-24 of children and families served by the department;
83-25 (4) emphasize and centralize the monitoring and
83-26 promoting of the permanent placement of children receiving
83-27 department services;
84-1 (5) establish goals and performance measures in the
84-2 permanent placement of children;
84-3 (6) seek private licensed child-placing agencies to
84-4 place a child in the department's managing conservatorship who has
84-5 been available for permanent placement for more than 90 days;
84-6 (7) provide information to private licensed
84-7 child-placing agencies concerning children under Subdivision (6);
84-8 (8) provide incentives for a private licensed
84-9 child-placing agency that places a child, as defined by Section
84-10 162.301, under Subdivision (6);
84-11 (9) encourage foster parents to be approved by the
84-12 department as both foster parents and adoptive parents;
84-13 (10) address failures by the department's service
84-14 regions in making permanent placements for children in a reasonable
84-15 time; and
84-16 (11) require the department's service regions to
84-17 participate in the Texas Adoption Resources Exchange.
84-18 SECTION 79. Subchapter B, Chapter 531, Government Code, is
84-19 amended by adding Section 531.047 to read as follows:
84-20 Sec. 531.047. SUBSTITUTE CARE PROVIDER OUTCOME STANDARDS.
84-21 (a) The commission, after consulting with representatives from the
84-22 Department of Protective and Regulatory Services, the Texas
84-23 Juvenile Probation Commission, and the Texas Department of Mental
84-24 Health and Mental Retardation, shall by rule adopt result-oriented
84-25 standards that a provider of substitute care services for children
84-26 under the care of the state must achieve.
84-27 (b) A health and human services agency that purchases
85-1 substitute care services must include the result-oriented standards
85-2 as requirements in each substitute care service provider contract.
85-3 (c) A health and human services agency may provide
85-4 information about a substitute care provider, including rates,
85-5 contracts, outcomes, and client information, to another agency that
85-6 purchases substitute care services.
85-7 SECTION 80. Section 700, Texas Probate Code, is amended to
85-8 read as follows:
85-9 Sec. 700. Oath of Guardian. (a) The guardian shall take an
85-10 oath to discharge faithfully the duties of guardian for the person
85-11 or estate, or both, of a ward.
85-12 (b) A representative of the Department of Protective and
85-13 Regulatory Services shall take the oath required by Subsection (a)
85-14 of this section if the department is appointed guardian.
85-15 SECTION 81. (a) Representatives from each state agency
85-16 that purchases substitute care services for children under the
85-17 state's care shall meet to:
85-18 (1) assess the total need for substitute care services
85-19 in this state; and
85-20 (2) develop and implement a competitive bidding
85-21 process to purchase substitute care services.
85-22 (b) Except as provided by Subsection (c) of this section,
85-23 each state agency must use the competitive bidding process created
85-24 under Subsection (a) of this section to purchase substitute care
85-25 services.
85-26 (c) A state agency is not required to use the competitive
85-27 bidding process to purchase:
86-1 (1) foster family care services;
86-2 (2) substitute care services in a geographic area of
86-3 this state that has a shortage of service providers; or
86-4 (3) specialized substitute care services if there is a
86-5 shortage of providers of the specialized services.
86-6 (d) The state agency representatives shall meet and develop
86-7 the competitive bidding process for purchasing substitute care
86-8 services as soon as possible after the effective date of this Act.
86-9 (e) Not later than September 1, 1998, the Department of
86-10 Protective and Regulatory Services shall develop and implement a
86-11 pilot program under which the department purchases substitute care
86-12 services through a competitive bidding process. The department
86-13 must design the pilot program to produce a substitute care system
86-14 that is outcome-based and that uses the department's outcome
86-15 measures.
86-16 SECTION 82. (a) Sections 263.308 and 263.309, Family Code,
86-17 are repealed.
86-18 (b) Section 42.050, Human Resources Code, as amended by
86-19 Chapter 1052, Acts of the 70th Legislature, Regular Session, 1987,
86-20 is repealed.
86-21 SECTION 83. (a) Except as otherwise provided by this Act,
86-22 this Act takes effect September 1, 1997.
86-23 (b) The Board of Protective and Regulatory Services shall
86-24 adopt rules necessary to administer the changes in law made by this
86-25 Act not later than November 1, 1997.
86-26 (c) The changes in law made by this Act in the
86-27 qualifications of, and the prohibitions applying to, members of the
87-1 Board of Protective and Regulatory Services do not affect the
87-2 entitlement of a member serving on the board immediately before
87-3 September 1, 1997, to continue to carry out the functions of the
87-4 board for the remainder of the member's term. The changes in law
87-5 apply only to a member appointed on or after September 1, 1997.
87-6 This Act does not prohibit a person who is a member of the board on
87-7 September 1, 1997, from being reappointed to the board if the
87-8 person has the qualifications required for a member under Chapter
87-9 40, Human Resources Code, as amended by this Act.
87-10 (d) The executive director of the Department of Protective
87-11 and Regulatory Services shall appoint the members of the strategic
87-12 technology steering committee established by Section 40.0305, Human
87-13 Resources Code, as added by this Act, not later than November 1,
87-14 1997.
87-15 (e) Except as provided by Section 84 of this Act and
87-16 Subsection (f) of this section, the change in law made by this Act
87-17 relating to a disciplinary proceeding or contested case of the
87-18 Department of Protective and Regulatory Services applies only to a
87-19 proceeding initiated on or after the effective date of this Act.
87-20 (f) The change in law made by this Act relating to the
87-21 imposition of a penalty or other disciplinary action on a person or
87-22 entity regulated by the Department of Protective and Regulatory
87-23 Services applies only to a violation that occurs on or after the
87-24 effective date of this Act. A violation that occurs before the
87-25 effective date of this Act is governed by the law in effect on the
87-26 date the violation occurred, and the former law is continued in
87-27 effect for that purpose.
88-1 (g) The change in law made by this Act relating to the
88-2 qualifications for a license issued by the Department of Protective
88-3 and Regulatory Services applies only to an application for a
88-4 license made on or after the effective date of this Act. An
88-5 application made before the effective date of this Act is governed
88-6 by the law in effect on the date the application was made, and the
88-7 former law is continued in effect for that purpose.
88-8 (h) The change in law made by this Act regarding the
88-9 termination of the parent-child relationship applies only to a suit
88-10 affecting the parent-child relationship in which termination of the
88-11 parent-child relationship is sought filed on or after the effective
88-12 date of this Act. A suit affecting the parent-child relationship
88-13 in which termination of the parent-child relationship is sought
88-14 filed before the effective date of this Act is governed by the law
88-15 in effect on the date the suit was filed, and the former law is
88-16 continued in effect for that purpose.
88-17 SECTION 84. (a) The change in law made by this Act
88-18 relating to a contested case hearing conducted by the State Office
88-19 of Administrative Hearings on behalf of the Department of
88-20 Protective and Regulatory Services applies only to a hearing that
88-21 begins on or after January 1, 1998. Notwithstanding any other
88-22 provision of this Act, a hearing that begins before that date is
88-23 governed by the law in effect at the time the hearing begins, and
88-24 that law is continued in effect for that purpose.
88-25 (b) The executive director of the Department of Protective
88-26 and Regulatory Services and the chief administrative law judge of
88-27 the State Office of Administrative Hearings may agree to transfer
89-1 contested cases pending before the Department of Protective and
89-2 Regulatory Services to the State Office of Administrative Hearings
89-3 before January 1, 1998.
89-4 SECTION 85. Section 42.0461, Human Resources Code, as added
89-5 by this Act, applies only to an application for a license or for
89-6 authorization to expand capacity under a license filed on or after
89-7 the effective date of this Act. An application filed before the
89-8 effective date of this Act is governed by the law in effect at the
89-9 time the application was filed, and the former law is continued in
89-10 effect for that purpose.
89-11 SECTION 86. (a) The change in law made by Sections 61
89-12 through 73 of this Act takes effect January 1, 1998.
89-13 (b) Except as provided by Subsection (c) of this section,
89-14 Sections 61 through 73 of this Act apply to a pending suit
89-15 affecting the parent-child relationship regardless of whether the
89-16 suit was commenced before, on, or after the effective date of this
89-17 Act.
89-18 (c) If the Department of Protective and Regulatory Services
89-19 has been appointed temporary managing conservator of a child before
89-20 January 1, 1998, the court shall at the first hearing conducted on
89-21 or after that date under Chapter 263, Family Code, establish a date
89-22 for dismissal of the suit not later than the second anniversary of
89-23 the date of the hearing, unless the court has rendered a final
89-24 order before the dismissal date.
89-25 SECTION 87. The Health and Human Services Commission shall
89-26 adopt the rules required by Section 531.047, Government Code, as
89-27 added by this Act, not later than January 1, 1998.
90-1 SECTION 88. An agency that purchases substitute care
90-2 services shall review the effectiveness of the result-oriented
90-3 standards adopted under Section 531.047, Government Code, as added
90-4 by this Act, and report to the governor, lieutenant governor,
90-5 speaker of the house of representatives, comptroller, and
90-6 Legislative Budget Board not later than January 31, 1999.
90-7 SECTION 89. Not later than September 15, 1997, each agency
90-8 or subdivision of the state that inspects child-care facilities
90-9 shall submit a copy of the inspection form used by the agency or
90-10 subdivision to the Department of Protective and Regulatory Services
90-11 for the department's use in implementing Section 42.0441, Human
90-12 Resources Code, as added by this Act.
90-13 SECTION 90. Not later than February 1, 1998, the Department
90-14 of Protective and Regulatory Services, the Texas Department of
90-15 Human Services, the Texas Department of Health, and the Texas
90-16 Workforce Commission shall report the recommendations for the
90-17 protocol for coordinated inspections provided by Section 42.0442,
90-18 Human Resources Code, as added by this Act, to their respective
90-19 governing boards or commissions. The implementation of the
90-20 protocol shall begin not later than June 1, 1998.
90-21 SECTION 91. The Department of Protective and Regulatory
90-22 Services shall establish a working group to coordinate the
90-23 processing of child protection cases. The working group shall
90-24 consist of representatives from the Office of Court Administration,
90-25 the Texas Supreme Court, and district and county attorneys'
90-26 offices. The working group shall report its recommendations to the
90-27 Texas Supreme Court not later than September 1, 1998. After
91-1 considering the recommendations of the working group, the Texas
91-2 Supreme Court shall adopt rules regarding the processing of child
91-3 protection cases.
91-4 SECTION 92. If, before implementing any provision of this
91-5 Act, a state agency determines that a waiver or authorization from
91-6 a federal agency is necessary to implement a provision, the state
91-7 agency shall request the waiver or authorization and may delay
91-8 implementing the provision until the waiver or authorization is
91-9 granted.
91-10 SECTION 93. The importance of this legislation and the
91-11 crowded condition of the calendars in both houses create an
91-12 emergency and an imperative public necessity that the
91-13 constitutional rule requiring bills to be read on three several
91-14 days in each house be suspended, and this rule is hereby suspended.