By Goodman H.B. No. 3838
76R12740 JMM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the protection of certain children.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 155.204, Family Code, is amended by
1-5 amending Subsection (a) and adding Subsection (f) to read as
1-6 follows:
1-7 (a) Except as provided by Section 262.203, a [A] motion to
1-8 transfer by a petitioner or movant is timely if it is made at the
1-9 time the initial pleadings are filed. A motion to transfer by
1-10 another party is timely if it is made on or before the first Monday
1-11 after the 20th day after the date of service of citation or notice
1-12 of the suit or before the commencement of the hearing, whichever is
1-13 sooner. If a timely motion to transfer has been filed and no
1-14 controverting affidavit is filed within the period allowed for its
1-15 filing, the proceeding shall be transferred promptly without a
1-16 hearing to the proper court.
1-17 (f) If a transfer order has been rendered by a court
1-18 exercising jurisdiction under Chapter 262, a party may file the
1-19 transfer order with the clerk of the court of continuing, exclusive
1-20 jurisdiction. On receipt and without a hearing, the clerk of the
1-21 court of continuing, exclusive jurisdiction shall transfer the
1-22 files as provided by this subchapter.
1-23 SECTION 2. Section 261.101(d), Family Code, is amended to
1-24 read as follows:
2-1 (d) Unless waived in writing by the person making the
2-2 report, the [The] identity of an individual making a report under
2-3 this chapter is confidential and may be disclosed only:
2-4 (1) as provided by [on the order of a court rendered
2-5 under] Section 261.201; or
2-6 (2) to a law enforcement officer for the purposes of
2-7 conducting a criminal investigation of the report.
2-8 SECTION 3. Section 261.201, Family Code, is amended by
2-9 amending Subsections (b) and (c) and adding Subsection (h) to read
2-10 as follows:
2-11 (b) A court may order the disclosure of information that is
2-12 confidential under this section if:
2-13 (1) a motion has been filed with the court requesting
2-14 the release of the information;
2-15 (2) a notice of hearing has been served on the
2-16 investigating agency and all other interested parties; and
2-17 (3) after hearing and an in camera review of the
2-18 requested information, the court determines that the disclosure of
2-19 the requested information is:
2-20 (A) essential to the administration of justice;
2-21 and
2-22 (B) not likely to endanger the life or safety
2-23 of:
2-24 (i) a child who is the subject of the
2-25 report of alleged or suspected abuse or neglect;
2-26 (ii) a person who makes a report of
2-27 alleged or suspected abuse or neglect; or
3-1 (iii) any other person who participates in
3-2 an investigation of reported abuse or neglect or who provides care
3-3 for the child.
3-4 (c) In addition to Subsection (b), a court, on its own
3-5 motion, may order disclosure of information that is confidential
3-6 under this section if:
3-7 (1) the order is rendered at a hearing for which all
3-8 parties have been given notice;
3-9 (2) the court finds that disclosure of the information
3-10 is:
3-11 (A) essential to the administration of justice;
3-12 and
3-13 (B) not likely to endanger the life or safety
3-14 of:
3-15 (i) a child who is the subject of the
3-16 report of alleged or suspected abuse or neglect;
3-17 (ii) a person who makes a report of
3-18 alleged or suspected abuse or neglect; or
3-19 (iii) any other person who participates in
3-20 an investigation of reported abuse or neglect or who provides care
3-21 for the child; and
3-22 (3) the order is reduced to writing or made on the
3-23 record in open court.
3-24 (h) This section does not apply to an investigation of child
3-25 abuse or neglect in a home or facility regulated under Chapter 42,
3-26 Human Resources Code.
3-27 SECTION 4. Section 261.301(b), Family Code, is amended to
4-1 read as follows:
4-2 (b) A state agency shall investigate a report that alleges
4-3 abuse or neglect occurred in a facility operated, licensed,
4-4 certified, or registered by that agency as provided by Subchapter
4-5 E. In conducting an investigation for a facility operated,
4-6 licensed, certified, registered, or listed by the department, the
4-7 department shall perform the investigation as provided by:
4-8 (1) Subchapter E; and
4-9 (2) the Human Resources Code.
4-10 SECTION 5. Section 261.303, Family Code, is amended by
4-11 amending Subsection (c) and adding Subsection (d) to read as
4-12 follows:
4-13 (c) If a parent or person responsible for the child's care
4-14 does not consent to release of the child's prior medical,
4-15 psychological, or psychiatric records or to a medical,
4-16 psychological, or psychiatric examination of the child that is
4-17 requested by the department or designated agency, the court having
4-18 family law jurisdiction shall, for good cause shown, order the
4-19 records to be released or the examination to be made at the times
4-20 and places designated by the court.
4-21 (d) A person, including a medical facility, that makes a
4-22 report under Subchapter B shall release to the department or
4-23 designated agency, as part of the required report under Section
4-24 261.103, records that directly relate to the suspected abuse or
4-25 neglect without requiring parental consent or a court order.
4-26 SECTION 6. Sections 261.305(a)-(c), Family Code, are amended
4-27 to read as follows:
5-1 (a) An investigation may include an inquiry into the
5-2 possibility that [the child,] a parent[,] or a person responsible
5-3 for the care of a [the] child who is the subject of a report under
5-4 Subchapter B has a history of medical or mental illness.
5-5 (b) If the parent or person [responsible for the care of the
5-6 child] does not consent to an examination or allow the department
5-7 or designated agency to have access to medical or mental health
5-8 records requested by the department or agency, the court having
5-9 family law jurisdiction, for good cause shown, shall order the
5-10 examination to be made or that the department or agency be
5-11 permitted to have access to the records under terms and conditions
5-12 prescribed by the court.
5-13 (c) If the court determines that the parent or person
5-14 [responsible for the care of the child] is indigent, the court
5-15 shall appoint an attorney to represent the parent or person
5-16 [responsible for the child] at the hearing [to obtain medical or
5-17 mental health records]. The fees for the appointed attorney shall
5-18 be paid as provided by Chapter 107 [the department or designated
5-19 agency].
5-20 SECTION 7. Section 261.405, Family Code, as amended by
5-21 Chapters 162 and 1374, Acts of the 75th Legislature, Regular
5-22 Session, 1997, is reenacted to read as follows:
5-23 Sec. 261.405. INVESTIGATIONS IN PRE-ADJUDICATION AND
5-24 POST-ADJUDICATION SECURE JUVENILE FACILITIES. A report of alleged
5-25 abuse or neglect in a public or private juvenile pre-adjudication
5-26 secure detention facility, including hold-over facilities, or
5-27 public or private juvenile post-adjudication secure correctional
6-1 facility, except for a facility operated solely for children
6-2 committed to the Texas Youth Commission, shall be made to a local
6-3 law enforcement agency for investigation. The local law
6-4 enforcement agency shall immediately notify the Texas Juvenile
6-5 Probation Commission of any report the agency receives.
6-6 SECTION 8. Section 261.406(b), Family Code, is amended to
6-7 read as follows:
6-8 (b) The department shall send a written report of the
6-9 department's investigation, as appropriate, to the Texas Education
6-10 Agency, the agency responsible for teacher certification, the local
6-11 school board or the school's [local] governing body, and the school
6-12 principal or director, unless the principal or director is alleged
6-13 to have committed the abuse or neglect, for appropriate action. On
6-14 request, the department shall provide a copy of the report of
6-15 investigation to the parent, managing conservator, or legal
6-16 guardian of a child who is the subject of the investigation and to
6-17 the person alleged to have committed the abuse or neglect. The
6-18 report of investigation shall be edited to protect the identity of
6-19 the persons who made the report of abuse or neglect [or provided
6-20 information for the report of abuse or neglect]. Section
6-21 261.201(b) applies to the release of confidential information
6-22 relating to the investigation of a report of abuse or neglect under
6-23 this section and to the identity of the person who made the report
6-24 of abuse or neglect.
6-25 SECTION 9. The heading of Chapter 262, Family Code, is
6-26 amended to read as follows:
6-27 CHAPTER 262. [EMERGENCY] PROCEDURES IN SUIT BY GOVERNMENTAL
7-1 ENTITY TO PROTECT HEALTH AND SAFETY OF CHILD
7-2 SECTION 10. Section 262.001, Family Code, is amended to read
7-3 as follows:
7-4 Sec. 262.001. AUTHORIZED ACTIONS BY GOVERNMENTAL ENTITY.
7-5 (a) A governmental entity with an interest in the child may file a
7-6 suit affecting the parent-child relationship requesting an
7-7 [emergency] order or take possession of a child without a court
7-8 order as provided by this chapter.
7-9 (b) In determining the reasonable efforts that are required
7-10 to be made with respect to preventing or eliminating the need to
7-11 remove a child from the child's home or to make it possible to
7-12 return a child to the child's home, the child's health and safety
7-13 is the paramount concern.
7-14 SECTION 11. Section 262.002, Family Code, is amended to read
7-15 as follows:
7-16 Sec. 262.002. JURISDICTION [FOR EMERGENCY PROCEDURES]. A
7-17 suit brought by a governmental entity requesting an [emergency]
7-18 order under this chapter may be filed in a court with jurisdiction
7-19 to hear the suit in the county in which the child is found.
7-20 SECTION 12. Section 262.007(c), Family Code, is amended to
7-21 read as follows:
7-22 (c) If a person entitled to possession of the child is not
7-23 immediately available to take possession of the child, the law
7-24 enforcement officer shall deliver the child to the Department of
7-25 Protective and Regulatory Services. Until a person entitled to
7-26 possession of the child takes possession of the child, the
7-27 department may, without a court order, retain possession of the
8-1 child not longer than five [14] days after the date the child is
8-2 delivered to the department. While the department retains
8-3 possession of a child under this subsection, the department may
8-4 place the child in foster home care. If a parent or other person
8-5 entitled to possession of the child does not take possession of the
8-6 child before the sixth [15th] day after the date the child is
8-7 delivered to the department, the department shall proceed under
8-8 this chapter as if the law enforcement officer took possession of
8-9 the child under Section 262.104.
8-10 SECTION 13. The heading for Subchapter B, Chapter 262,
8-11 Family Code, is amended to read as follows:
8-12 SUBCHAPTER B. TAKING POSSESSION OF CHILD [IN EMERGENCY]
8-13 SECTION 14. Section 262.101, Family Code, is amended to read
8-14 as follows:
8-15 Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
8-16 CHILD. An original suit [A petition or affidavit] filed by a
8-17 governmental entity that requests [requesting] permission to take
8-18 possession of a child without prior notice and a hearing must [in
8-19 an emergency shall] be supported by an affidavit sworn to by a
8-20 person with personal knowledge and stating [shall state] facts
8-21 sufficient to satisfy a person of ordinary prudence and caution
8-22 that:
8-23 (1) there is an immediate danger to the physical
8-24 health or safety of the child or the child has been a victim of
8-25 neglect or sexual abuse and that continuation in the home would be
8-26 contrary to the child's welfare; and
8-27 (2) there is no time, consistent with the physical
9-1 health or safety of the child, for an adversary hearing or to make
9-2 reasonable efforts to prevent or eliminate the need for the removal
9-3 of the child.
9-4 SECTION 15. Section 262.102(a), Family Code, is amended to
9-5 read as follows:
9-6 (a) Before a court may, without prior notice and a hearing,
9-7 issue a temporary restraining order or attachment of a child in a
9-8 suit [requesting an emergency order] brought by a governmental
9-9 entity, the court must find that:
9-10 (1) there is an immediate danger to the physical
9-11 health or safety of the child or the child has been a victim of
9-12 neglect or sexual abuse and that continuation in the home would be
9-13 contrary to the child's welfare; and
9-14 (2) there is no time, consistent with the physical
9-15 health or safety of the child and the nature of the emergency, to
9-16 hold an adversary hearing or to make reasonable efforts to prevent
9-17 or eliminate the need for removal of the child.
9-18 SECTION 16. Section 262.106, Family Code, is amended by
9-19 adding Subsection (d) to read as follows:
9-20 (d) For the purpose of determining under Subsection (a) the
9-21 first working day after the date the child is taken into
9-22 possession, the child is considered to have been taken into
9-23 possession by the Department of Protective and Regulatory Services
9-24 on the expiration of the five-day period permitted under Section
9-25 262.007(c) or 262.110(b), as appropriate.
9-26 SECTION 17. Section 262.109(d), Family Code, is amended to
9-27 read as follows:
10-1 (d) The written notice may be waived by the court at the
10-2 initial hearing:
10-3 (1) on a showing that the parents, conservators, or
10-4 other custodians of the child could not be located; or
10-5 (2) for other good cause.
10-6 SECTION 18. Section 262.110, Family Code, is amended to read
10-7 as follows:
10-8 Sec. 262.110. TAKING POSSESSION OF CHILD IN EMERGENCY WITH
10-9 INTENT TO RETURN HOME. (a) An authorized representative of the
10-10 Department of Protective and Regulatory Services, a law enforcement
10-11 officer, or a juvenile probation officer may take temporary
10-12 possession of a child without a court order on discovery of a child
10-13 in a situation of danger to the child's physical health or safety
10-14 when the sole purpose is to deliver the child without unnecessary
10-15 delay to the parent, managing conservator, possessory conservator,
10-16 guardian, caretaker, or custodian who is presently entitled to
10-17 possession of the child.
10-18 (b) Until a parent or other person entitled to possession of
10-19 the child takes possession of the child, the department may retain
10-20 possession of the child without a court order for not more than
10-21 five days. On the expiration of the fifth day, if a parent or
10-22 other person entitled to possession does not take possession of the
10-23 child, the department shall take action under this chapter as if
10-24 the department took possession of the child under Section 262.104.
10-25 SECTION 19. Subchapter B, Chapter 262, Family Code, is
10-26 amended by adding Section 262.113 to read as follows:
10-27 Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF
11-1 CHILD. An original suit filed by a governmental entity that
11-2 requests to take possession of a child after notice and a hearing
11-3 must be supported by an affidavit sworn to by a person with
11-4 personal knowledge and stating facts sufficient to satisfy a person
11-5 of ordinary prudence and caution that:
11-6 (1) reasonable efforts have been made to prevent or
11-7 eliminate the need to remove the child from the child's home; and
11-8 (2) allowing the child to remain in the home would be
11-9 contrary to the child's welfare.
11-10 SECTION 20. Section 262.201, Family Code, is amended by
11-11 adding Subsection (g) to read as follows:
11-12 (g) For the purpose of determining under Subsection (a) the
11-13 14th day after the date the child is taken into possession, a child
11-14 is considered to have been taken into possession by the department
11-15 on the expiration of the five-day period permitted under Section
11-16 262.007(c) or 262.110(b), as appropriate.
11-17 SECTION 21. Section 262.2015, Family Code, is amended to
11-18 read as follows:
11-19 Sec. 262.2015. AGGRAVATED CIRCUMSTANCES [ACCELERATED TRIAL
11-20 ON THE MERITS]. (a) The court may waive the requirement of a
11-21 service plan and the requirement to make reasonable efforts to
11-22 return the child to a parent and may accelerate the trial schedule
11-23 to result in a final order for a child under the care of the
11-24 department at an earlier date than provided by Subchapter D,
11-25 Chapter 263, if the court finds that all reasonable efforts have
11-26 been made to return the child to a parent or that the parent has
11-27 subjected the child to aggravated circumstances.
12-1 (b) The court may find under Subsection (a) that a parent
12-2 has subjected the child to aggravated circumstances if:
12-3 (1) the parent abandoned the child without
12-4 identification or a means for identifying the child [orders at the
12-5 conclusion of the full adversary hearing that the child may not be
12-6 placed in the child's home];
12-7 (2) [finds that] the child is a victim of serious
12-8 bodily injury or sexual abuse inflicted by the parent or by another
12-9 person with the parent's consent; [and]
12-10 (3) the parent [finds that there is probable cause to
12-11 believe that a party to the suit] has engaged in conduct against
12-12 the child or against another child of the parent that would
12-13 constitute an offense under the following provisions of the Penal
12-14 Code:
12-15 (A) Section 19.02 (murder);
12-16 (B) Section 19.03 (capital murder);
12-17 (C) Section 19.04 (manslaughter);
12-18 (D) Section 21.11 (indecency with a child);
12-19 (E) [(B)] Section 22.011 (sexual assault);
12-20 (F) [(C)] Section 22.02 (aggravated assault);
12-21 (G) [(D)] Section 22.021 (aggravated sexual
12-22 assault);
12-23 (H) [(E)] Section 22.04 (injury to a child,
12-24 elderly individual, or disabled individual);
12-25 (I) [(F)] Section 22.041 (abandoning or
12-26 endangering child);
12-27 (J) [(G)] Section 25.02 (prohibited sexual
13-1 conduct);
13-2 (K) [(H)] Section 43.25 (sexual performance by a
13-3 child); or
13-4 (L) [(I)] Section 43.26 (possession or promotion
13-5 of child pornography);
13-6 (4) the parent voluntarily left the child alone or in
13-7 the possession of another person not the parent of the child for at
13-8 least six months without expressing an intent to return and without
13-9 providing adequate support for the child; or
13-10 (5) the parent's parental rights with regard to
13-11 another child have been involuntarily terminated based on a finding
13-12 that the parent's conduct violated Section 161.001(1)(D) or (E) or
13-13 a substantially equivalent provision of another state's law.
13-14 SECTION 22. Section 262.203, Family Code, is amended to read
13-15 as follows:
13-16 Sec. 262.203. TRANSFER OF SUIT. (a) On the motion of a
13-17 party or the court's own motion, if applicable, the court that
13-18 rendered the temporary order shall [transfer the suit] in
13-19 accordance with procedures provided by Chapter 155:
13-20 (1) transfer the suit to the court of continuing,
13-21 exclusive jurisdiction, if any; [or]
13-22 (2) if grounds exist for mandatory transfer from the
13-23 court of continuing, exclusive jurisdiction under Section 155.201,
13-24 order transfer of the suit from that court; or
13-25 (3) if grounds exist for transfer based on improper
13-26 venue, order transfer of the suit [if there is no court of
13-27 continuing jurisdiction,] to the court having venue of the suit
14-1 [affecting the parent-child relationship] under Chapter 103.
14-2 (b) Notwithstanding Section 155.204, a motion to transfer
14-3 relating to [under this section is timely if made at any time after
14-4 the date] a suit [was] filed under this chapter may be filed
14-5 separately from the petition and is timely if filed while the case
14-6 is pending.
14-7 (c) Notwithstanding Sections 6.407 and 103.002, a court
14-8 exercising jurisdiction under this chapter is not required to
14-9 transfer the suit to a court in which a parent has filed a suit
14-10 for dissolution of marriage before a final order for the protection
14-11 of the child has been rendered under Subchapter E, Chapter 263.
14-12 SECTION 23. Subchapter C, Chapter 262, Family Code, is
14-13 amended by adding Section 262.205 to read as follows:
14-14 Sec. 262.205. HEARING WHEN CHILD NOT IN POSSESSION OF
14-15 GOVERNMENTAL ENTITY. (a) In a suit requesting possession of a
14-16 child after notice and hearing, the court may render a temporary
14-17 restraining order as provided by Section 105.001. The suit shall
14-18 be promptly set for hearing.
14-19 (b) After the hearing, the court may grant the request to
14-20 remove the child from the parent, managing conservator, possessory
14-21 conservator, guardian, caretaker, or custodian entitled to
14-22 possession of the child if the court finds sufficient evidence to
14-23 satisfy a person of ordinary prudence and caution that:
14-24 (1) reasonable efforts have been made to prevent or
14-25 eliminate the need to remove the child from the child's home; and
14-26 (2) allowing the child to remain in the home would be
14-27 contrary to the child's welfare.
15-1 (c) If the court orders removal of the child from the
15-2 child's home, the court shall:
15-3 (1) issue an appropriate temporary order under Chapter
15-4 105; and
15-5 (2) inform each parent in open court that parental and
15-6 custodial rights and duties may be subject to restriction or
15-7 termination unless the parent is willing and able to provide a safe
15-8 environment for the child.
15-9 (d) If citation by publication is required for a parent or
15-10 alleged or probable father in an action under this chapter because
15-11 the location of the person is unknown, the court may render a
15-12 temporary order without regard to whether notice of the citation
15-13 has been published.
15-14 (e) If the court finds that the child requires protection
15-15 from family violence by a member of the child's family or
15-16 household, the court shall render a protective order for the child
15-17 under Title 4.
15-18 SECTION 24. Section 263.101, Family Code, is amended to read
15-19 as follows:
15-20 Sec. 263.101. DEPARTMENT TO FILE SERVICE PLAN. Not later
15-21 than the 45th day after the date the court renders a temporary
15-22 order appointing the department as temporary managing conservator
15-23 of a child [of the conclusion of a full adversary hearing] under
15-24 Chapter 262, the department or other agency appointed as the
15-25 managing conservator of a child shall file a service plan.
15-26 SECTION 25. Section 263.105(a), Family Code, is amended to
15-27 read as follows:
16-1 (a) The service plan currently in effect shall be filed with
16-2 the court [along with the next required status report].
16-3 SECTION 26. Section 263.201, Family Code, is amended to read
16-4 as follows:
16-5 Sec. 263.201. STATUS HEARING; TIME. (a) Not later than the
16-6 60th day after the date the court renders a temporary order
16-7 appointing the department as temporary managing conservator of a
16-8 child, the court shall hold a status hearing to review the child's
16-9 status and the service [permanency] plan developed for the child.
16-10 (b) A status hearing is not required if the court holds an
16-11 initial permanency hearing under Section 262.2015 before the date a
16-12 status hearing is required by this section.
16-13 SECTION 27. Section 263.202, Family Code, is amended by
16-14 adding Subsection (d) to read as follows:
16-15 (d) If a service plan with respect to a parent has not been
16-16 filed with the court, the court shall consider whether to waive the
16-17 service plan under Section 262.2015.
16-18 SECTION 28. Section 264.201, Family Code, is amended by
16-19 adding Subsection (e) to read as follows:
16-20 (e) The department may not provide and a court may not order
16-21 the department to provide supervision for visitation in a child
16-22 custody matter unless the department is a petitioner or intervener
16-23 in the underlying suit.
16-24 SECTION 29. Section 154.053, Civil Practice and Remedies
16-25 Code, is amended by adding Subsection (d) to read as follows:
16-26 (d) Each participant, including the impartial third party,
16-27 to an alternative dispute resolution procedure is subject to the
17-1 requirements of Subchapter B, Chapter 261, Family Code, and
17-2 Subchapter C, Chapter 48, Human Resources Code.
17-3 SECTION 30. Section 154.073, Civil Practice and Remedies
17-4 Code, is amended by amending Subsection (a) and adding Subsection
17-5 (e) to read as follows:
17-6 (a) Except as provided by Subsections (c), [and] (d), and
17-7 (e), a communication relating to the subject matter of any civil or
17-8 criminal dispute made by a participant in an alternative dispute
17-9 resolution procedure, whether before or after the institution of
17-10 formal judicial proceedings, is confidential, is not subject to
17-11 disclosure, and may not be used as evidence against the participant
17-12 in any judicial or administrative proceeding.
17-13 (e) This section does not affect the duty to report abuse or
17-14 neglect under Subchapter B, Chapter 261, Family Code, and abuse,
17-15 exploitation, or neglect under Subchapter C, Chapter 48, Human
17-16 Resources Code.
17-17 SECTION 31. Sections 263.003 and 263.004, Family Code, are
17-18 repealed.
17-19 SECTION 32. (a) This Act takes effect September 1, 1999.
17-20 (b) The change in law made by this Act to Chapter 262,
17-21 Family Code, applies only to a suit affecting the parent-child
17-22 relationship filed requesting an order to take possession of a
17-23 child or to a child taken into possession without a court order on
17-24 or after that date. A suit filed before the effective date of this
17-25 Act or a child taken into possession before the effective date of
17-26 this Act is governed by the law in effect on the date the suit was
17-27 filed or the child was taken into possession, as appropriate, and
18-1 the former law is continued in effect for that purpose.
18-2 SECTION 33. The importance of this legislation and the
18-3 crowded condition of the calendars in both houses create an
18-4 emergency and an imperative public necessity that the
18-5 constitutional rule requiring bills to be read on three several
18-6 days in each house be suspended, and this rule is hereby suspended.