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AN ACT
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relating to criminal history record information for guardianship |
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proceedings and to lists of certain public guardians; providing a |
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criminal penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Section 697A, Texas Probate Code, |
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is amended to read as follows: |
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Sec. 697A. LIST OF CERTAIN PUBLIC GUARDIANS MAINTAINED BY |
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COUNTY CLERKS OR GUARDIANSHIP CERTIFICATION BOARD. |
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SECTION 2. Subsections (b) and (c), Section 697A, Texas |
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Probate Code, are amended to read as follows: |
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(b) Not later than February 1 of each year, the [The] |
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Department of Aging and Disability Services[, if the department
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files an application for and is appointed to serve as guardian for
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one or more incapacitated persons residing in the county as
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provided by Subchapter E, Chapter 161, Human Resources Code,] shall |
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submit [annually] to the Guardianship Certification Board a |
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statement containing: |
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(1) the name, address, and telephone number of each |
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department employee who is or will be providing guardianship |
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services to a ward or proposed ward on behalf of the department; and |
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(2) the name of the county or counties in which each |
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employee named in Subdivision (1) of this subsection is providing |
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or is authorized to provide those services [county clerk the
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information required under Subsection (a) of this section for each
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department employee who is or will be providing guardianship
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services in the county on the department's behalf]. |
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(c) Not later than February 1 of each year, the county clerk |
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shall submit to the Guardianship Certification Board the |
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information received under Subsection (a) of this section during |
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the preceding year. |
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SECTION 3. Section 698, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 698. ACCESS TO CRIMINAL HISTORY RECORDS. (a) Except |
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as provided by Subsections (a-1) and (a-5) of this section, the |
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[The] clerk of the county having venue over the proceeding for the |
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appointment of a guardian shall obtain criminal history record |
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information that is maintained by the Department of Public Safety |
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or the Federal Bureau of Investigation identification division |
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relating to: |
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(1) a private professional guardian; |
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(2) each person who represents or plans to represent |
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the interests of a ward as a guardian on behalf of the private |
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professional guardian; |
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(3) each person employed by a private professional |
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guardian who will: |
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(A) have personal contact with a ward or proposed |
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ward; |
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(B) exercise control over and manage a ward's |
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estate; or |
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(C) perform any duties with respect to the |
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management of a ward's estate; |
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(4) each person employed by or volunteering or |
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contracting with a guardianship program to provide guardianship |
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services to a ward of the program on the program's behalf; or |
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(5) any other person proposed to serve as a guardian |
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under this chapter, including a proposed temporary guardian and a |
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proposed successor guardian, other than the ward's or proposed |
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ward's family member or an attorney [an employee of the Department
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of Aging and Disability Services who is or will be providing
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guardianship services to a ward of the department]. |
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(a-1) The Department of Aging and Disability Services shall |
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obtain criminal history record information that is maintained by |
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the Department of Public Safety or the Federal Bureau of |
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Investigation identification division relating to each individual |
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who is or will be providing guardianship services to a ward of or |
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referred by the department, including: |
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(1) an employee of or an applicant selected for an |
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employment position with the Department of Aging and Disability |
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Services; |
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(2) a volunteer or an applicant selected to volunteer |
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with the Department of Aging and Disability Services; |
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(3) an employee of or an applicant selected for an |
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employment position with a business entity or other person that |
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contracts with the Department of Aging and Disability Services to |
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provide guardianship services to a ward referred by the department; |
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and |
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(4) a volunteer or an applicant selected to volunteer |
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with a business entity or other person described by Subdivision (3) |
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of this subsection. |
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(a-2) The information in Subsection (a-1) of this section |
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regarding applicants for employment positions must be obtained |
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before an offer of employment, and the information regarding |
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applicant volunteers must be obtained before the person's contact |
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with a ward of or referred by the Department of Aging and Disability |
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Services. |
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(a-3) The information in Subsection (a-1) of this section |
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regarding employees or volunteers providing guardianship services |
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must be obtained annually. |
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(a-4) The Department of Aging and Disability Services shall |
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provide the information obtained under Subsection (a-1) of this |
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section to: |
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(1) the clerk of the county having venue over the |
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guardianship proceeding at the request of the court; and |
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(2) the Guardianship Certification Board at the |
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request of the board. |
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(a-5) Not later than the 10th day before the date of the |
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hearing to appoint a guardian, a person may submit to the clerk a |
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copy of the person's criminal history record information required |
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under Subsection (a)(5) of this section that the person obtains |
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from the Department of Public Safety or the Federal Bureau of |
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Investigation not earlier than the 30th day before the date of the |
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hearing. |
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(b) The criminal history record information obtained under |
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Subsection (a) or (a-5) of this section is for the exclusive use of |
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the court and is privileged and confidential. The criminal history |
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record information may not be released or otherwise disclosed to |
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any person or agency except on court order or consent of the person |
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being investigated. The county clerk may destroy the criminal |
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history information records after the records are used for the |
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purposes authorized by this section. |
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(b-1) The criminal history record information obtained |
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under Subsection (a-4) of this section is for the exclusive use of |
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the court or Guardianship Certification Board, as appropriate, and |
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is privileged and confidential. The information may not be |
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released or otherwise disclosed to any person or agency except on |
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court order or consent of the person being investigated. The county |
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clerk or Guardianship Certification Board may destroy the criminal |
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history record information after the information is used for the |
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purposes authorized by this section. |
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(c) The court shall use the information obtained under this |
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section only in determining whether to: |
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(1) appoint, remove, or continue the appointment of a |
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private professional guardian, a guardianship program, or the |
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Department of Aging and Disability Services; or |
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(2) appoint any other person proposed to serve as a |
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guardian under this chapter, including a proposed temporary |
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guardian and a proposed successor guardian, other than the ward's |
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or proposed ward's family member or an attorney. |
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(c-1) Criminal history record information obtained by the |
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Guardianship Certification Board under Subsection (a-4)(2) of this |
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section may be used for any purpose related to the issuance, denial, |
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renewal, suspension, or revocation of a certificate issued by the |
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board. |
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(d) A person commits an offense if the person releases or |
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discloses any information received under this section without the |
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authorization prescribed by Subsection (b) or (b-1) of this |
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section. An offense under this subsection is a Class A misdemeanor. |
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(e) The clerk may charge a $10 [reasonable] fee [sufficient] |
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to recover the costs of obtaining criminal history information |
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records authorized by Subsection (a) of this section. |
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(f) This section does not prohibit the Department of Aging |
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and Disability Services from obtaining and using criminal history |
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record information as provided by other law. |
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SECTION 4. Section 411.1386, Government Code, is amended to |
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read as follows: |
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Sec. 411.1386. ACCESS TO CRIMINAL HISTORY RECORD |
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INFORMATION: COURT CLERK; DEPARTMENT OF AGING AND DISABILITY |
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SERVICES; GUARDIANSHIPS. (a) Except as provided by Subsections |
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(a-1) and (a-5), the [The] clerk of the county having venue over a |
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proceeding for the appointment of a guardian under Chapter XIII |
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[13], Texas Probate Code, shall [is entitled to] obtain from the |
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department criminal history record information maintained by the |
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department that relates to: |
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(1) a private professional guardian; |
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(2) each person who represents or plans to represent |
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the interests of a ward as a guardian on behalf of the private |
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professional guardian; [or] |
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(3) each person employed by a private professional |
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guardian who will: |
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(A) have personal contact with a ward or proposed |
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ward; |
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(B) exercise control over and manage a ward's |
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estate; or |
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(C) perform any duties with respect to the |
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management of a ward's estate; |
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(4) each person employed by or volunteering or |
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contracting with a guardianship program to provide guardianship |
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services to a ward of the program on the program's behalf; or |
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(5) any other person proposed to serve as a guardian |
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under Chapter XIII, Texas Probate Code, including a proposed |
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temporary guardian and a proposed successor guardian, other than |
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the ward's or proposed ward's family member or an attorney. |
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(a-1) The Department of Aging and Disability Services shall |
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obtain from the Department of Public Safety criminal history record |
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information maintained by the Department of Public Safety that |
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relates to each individual who is or will be providing guardianship |
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services to a ward of or referred by the Department of Aging and |
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Disability Services, including: |
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(1) an employee of or an applicant selected for an |
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employment position with the Department of Aging and Disability |
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Services; |
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(2) a volunteer or an applicant selected to volunteer |
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with the Department of Aging and Disability Services; |
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(3) an employee of or an applicant selected for an |
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employment position with a business entity or other person that |
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contracts with the Department of Aging and Disability Services to |
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provide guardianship services to a ward referred by the department; |
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and |
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(4) a volunteer or an applicant selected to volunteer |
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with a business entity or person described by Subdivision (3). |
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(a-2) The information in Subsection (a-1) regarding |
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applicants for employment positions must be obtained before an |
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offer of employment, and the information regarding applicant |
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volunteers must be obtained before the person's contact with a ward |
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of or referred by the Department of Aging and Disability Services. |
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(a-3) The information in Subsection (a-1) regarding |
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employees or volunteers providing guardianship services must be |
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obtained annually. |
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(a-4) The Department of Aging and Disability Services shall |
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provide the information obtained under Subsection (a-1) to: |
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(1) the clerk of the county having venue over the |
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guardianship proceeding at the request of the court; and |
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(2) the Guardianship Certification Board at the |
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request of the board. |
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(a-5) Not later than the 10th day before the date of the |
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hearing to appoint a guardian, a person may submit to the clerk a |
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copy of the person's criminal history record information required |
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under Subsection (a)(5) that the person obtains from the department |
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not earlier than the 30th day before the date of the hearing. |
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(b) Criminal history record information obtained by a clerk |
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under Subsection (a) or (a-5) is for the exclusive use of the court |
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and is privileged and confidential [may be used only in determining
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whether to appoint, remove, or continue the appointment of a
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private professional guardian]. |
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(c) Criminal history record information obtained by a clerk |
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under Subsection (a) or (a-5) may not be released or disclosed to |
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any person or agency except on court order or with the consent of |
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the person who is the subject of the information. The clerk may |
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destroy the criminal history record information after the |
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information is used for the purposes authorized by this section. |
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(d) The criminal history record information obtained under |
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Subsection (a-4) is for the exclusive use of the court or |
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Guardianship Certification Board, as appropriate, and is |
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privileged and confidential. The information may not be released |
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or otherwise disclosed to any person or agency except on court order |
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or consent of the person being investigated. The county clerk or |
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Guardianship Certification Board may destroy the criminal history |
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record information after the information is used for the purposes |
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authorized by this section. |
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(e) The court, as that term is defined by Section 601, Texas |
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Probate Code, shall use the information obtained under Subsection |
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(a), (a-4)(1), or (a-5) only in determining whether to: |
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(1) appoint, remove, or continue the appointment of a |
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private professional guardian, a guardianship program, or the |
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Department of Aging and Disability Services; or |
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(2) appoint any other person proposed to serve as a |
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guardian under Chapter XIII, Texas Probate Code, including a |
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proposed temporary guardian and a proposed successor guardian, |
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other than the ward's or proposed ward's family member or an |
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attorney. |
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(f) Criminal history record information obtained by the |
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Guardianship Certification Board under Subsection (a-4)(2) may be |
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used for any purpose related to the issuance, denial, renewal, |
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suspension, or revocation of a certificate issued by the board. |
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(g) A person commits an offense if the person releases or |
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discloses any information received under this section without the |
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authorization prescribed by Subsection (c) or (d). An offense |
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under this subsection is a Class A misdemeanor. |
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(h) The county clerk may charge a $10 fee to recover the |
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costs of obtaining criminal history information records authorized |
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by Subsection (a). |
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(i) This section does not prohibit the Department of Aging |
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and Disability Services from obtaining and using criminal history |
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record information as provided by other law. |
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SECTION 5. The change in law made by this Act: |
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(1) by the amendment of Subsection (a), Section |
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411.1386, Government Code, other than the addition of Subdivision |
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(5) to that subsection, is made to conform to Subsection (a), |
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Section 698, Texas Probate Code, as that section existed |
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immediately before the effective date of this Act; |
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(2) by the amendment of Subsections (b) and (c), |
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Section 411.1386, Government Code, and the addition of Subsection |
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(e), Section 411.1386, Government Code, other than the addition of |
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Subdivision (2) and the reference to Subdivision (1), Subsection |
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(a-4), and Subsection (a-5), Section 411.1386, Government Code, is |
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made to conform to Subsections (b) and (c), Section 698, Texas |
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Probate Code, as those subsections existed immediately before the |
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effective date of this Act; and |
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(3) by the addition of Subsection (g), Section |
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411.1386, Government Code, other than the addition of the reference |
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to Subsection (d), Section 411.1386, Government Code, is made to |
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conform to Subsection (d), Section 698, Texas Probate Code, as that |
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subsection existed immediately before the effective date of this |
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Act. |
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SECTION 6. This Act takes effect September 1, 2007. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 291 passed the Senate on |
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March 28, 2007, by the following vote: Yeas 30, Nays 0; and that |
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the Senate concurred in House amendments on May 15, 2007, by the |
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following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 291 passed the House, with |
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amendments, on May 11, 2007, by the following vote: Yeas 144, |
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Nays 0, two present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |