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.