By: Solomons H.B. No. 705
Substitute the following for H.B. No. 705:
By: Gattis C.S.H.B. No. 705
A BILL TO BE ENTITLED
AN ACT
relating to liability of in-home service companies and residential
delivery companies for negligent hiring.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 145 to read as follows:
CHAPTER 145. LIABILITY FOR NEGLIGENT HIRING BY IN-HOME SERVICE
COMPANIES AND RESIDENTIAL DELIVERY COMPANIES
Sec. 145.001. DEFINITIONS. In this chapter:
(1) "In-home service company" means a person who
employs a person to enter another person's residence and for a fee
repair:
(A) an appliance;
(B) the residence's heating, air conditioning,
and ventilation system;
(C) the residence's plumbing system; or
(D) the residence's electrical system.
(2) "Residential delivery company" means a person who
employs a person to, for a fee:
(A) deliver an item to another person's
residence; and
(B) enter the residence to place, assemble, or
install the item.
Sec. 145.002. CRIMINAL HISTORY BACKGROUND CHECK. An
in-home service company or residential delivery company shall
obtain from the Department of Public Safety all criminal history
record information relating to an officer, employee, or prospective
employee of the company whose [regular] job duties require or will
require entry into another person's residence.
Sec. 145.003. [IMMUNITY FROM LIABILITY] PRESUMPTION OF NO
NEGLIGENCE. (a) This section applies only to an action against an
in-home service company or residential delivery company that:
(1) arises out of a criminal act or omission by an
officer or employee of the company as to whom the company is
required to obtain criminal history record information under
Section 145.002;
(2) is brought by or on behalf of a person whose home
the officer or employee entered while in the performance of the
officer's or employee entered while in the performance of the
officer's or employee's job duties, without regard to where the
criminal act or omission occurred; and
(3) seeks damages from the company for the negligent
hiring of the officer or employee.
(b) In an action to which this section applies, an in-home
service company or residential delivery company is rebuttably
presumed to have not acted negligently if:
(1) the company obtained criminal history record
information regarding the officer or employee; and
(2) the criminal history record information shows
that, as of the date the information was obtained, the officer or
employee had not been convicted of:
(A) an offense in this state classified as:
(i) an offense against the person or the
family;
(ii) an offense against property; or
(iii) public indecency; or
(B) an offense in another jurisdiction that would
be classified in a category described by Paragraph (A) if the
offense had occurred in this state.
(c) A residential delivery company or an in-home service
company that sends two or more employees together into a residence
shall be deemed to have complied with the requirement in Section
145.002 as long as at least one of those employees has been checked
as described in Section 145.002 and, while they are in the
residence, that employee accompanies and directly supervises any
employee who have not been checked, and the residential delivery
company or in-home service company maintains a record of the
identity of any such non-checked employees for at least two years.
Sec. 145.004. PRESUMPTION OF NO NEGLIGENCE FOR PERSONS
UTILIZING A RESIDENTIAL DELIVERY COMPANY OR IN-HOME SERVICE
COMPANY. A person who contracts with a residential delivery
company to deliver an item or who contracts with an in-home service
company to place, assemble, repair or install an item referred to in
Section 145.001(1), is rebuttably presumed to have not acted
negligently in doing so if:
(1) the residential delivery company or in-home
service company is in compliance with Sec. 145.003(b); or
(2) the person who contracts with the residential
delivery company or in-house service company requests that the
company obtain a criminal history background check from the
Department of Public Safety on any employee of the company being
sent to deliver, place, assemble, repair, or install an item and the
person's request is in writing and is delivered to the company prior
to the company's employee being sent. A copy of any such request
shall be maintained for at least two years.
SECTION 2. Subchapter F, Chapter 411, Government Code, is
amended by adding Section 411.1181 to read as follows:
Sec. 411.1181. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION; APPLICANTS FOR EMPLOYMENT. (a) In this section,
"in-home service company" and "residential delivery company" have
the meanings assigned by Section 145.001, Civil Practice and
Remedies Code.
(b) An in-home service company or residential delivery
company is entitled to obtain from the Department of Public Safety
criminal history record information maintained by the department
that relates to:
(1) an officer of or person employed by the company
whose regular job duties require entry into another person's
residence; or
(2) an applicant to whom an offer of employment is made
for a position of employment with the company, the regular duties of
which require entry into another person's residence.
(c) Criminal history record information obtained by an
in–home service company or residential delivery company under
Subsection (b) may not be released or disclosed to any person except
on court order, upon proper discovery request during litigation or
with the consent of the person who is the subject of the criminal
history record information.
(d) The in-home service company or residential delivery
company shall destroy criminal history record information that
relates to a person no sooner than two years after the person's
office or employment with the company ends or the company
determines not to employ the person, as applicable.
SECTION 3. Chapter 145, Civil Practice and Remedies Code,
as added by this Act, applies only to a cause of action that accrues
on or after September 1, 2003. A cause of action that accrues
before September 1, 2003, is governed by the law in effect at the
time the cause of action accrued, and the former law is continued in
effect for that purpose.
SECTION 4. This Act takes effect September 1, 2003.