By: Watson S.B. No. 1064

(In the Senate - Filed February 23, 2009; March 13, 2009, read first time and referred to Committee on Health and Human Services; April 15, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 9, Nays 0; April 15, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1064 By: Deuell

A BILL TO BE ENTITLED

AN ACT

relating to the investigation of child abuse or neglect.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 261.302, Family Code, is amended by adding Subsection (g) to read as follows:

(g) The department, without filing suit, may seek a court order in aid of investigation under Section 261.303.

SECTION 2. Section 261.303, Family Code, is amended to read as follows:

Sec. 261.303. INTERFERENCE WITH INVESTIGATION; COURT ORDER. (a) A person may not interfere with an investigation of a report of child abuse or neglect conducted by the department or designated agency, and a court may enforce the right of the department to conduct an investigation under this subchapter.

(b) If admission to the home, school, or any place where the child may be cannot be obtained, or if consent to transport a child for purposes relating to an interview or investigation cannot be obtained, then on presentation of an affidavit described by Subsection (e) that is executed by an investigator or authorized representative of the department [for good cause shown] the court having family law jurisdiction, including any associate judge designated by the court, shall without prior notice or a hearing order the parent, the person responsible for the care of the children, or the person in charge of any place where the child may be to allow entrance, transport of the child, or both entrance and transport for the interview, examination, and investigation.

(c) If a parent or person responsible for the child's care does not consent to release of the child's prior medical, psychological, or psychiatric records or to a medical, psychological, or psychiatric examination of the child that is requested by the department or designated agency, then on presentation of an affidavit described by Subsection (e) that is executed by an investigator or authorized representative of the department the court having family law jurisdiction, including any associate judge designated by the court, shall without prior notice or a hearing[, for good cause shown,] order the records to be released or the examination to be made at the times and places designated by the court.

(d) If a person, agency, or entity having possession of records relating to a child that are relevant to an investigation does not consent to the release of the records on the request of the department or designated agency, then on presentation of an affidavit described by Subsection (e) that is executed by an investigator or authorized representative of the department the court having family law jurisdiction, including any associate judge designated by the court, shall without prior notice or a hearing order the records to be released at the time and place designated by the court.

(e) An affidavit required under Subsection (b), (c), or (d) must state facts sufficient to lead a person of ordinary prudence and caution to believe that:

(1) based on information available, a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect; and

(2) the requested order is necessary to aid in the investigation.

(f) An affidavit used to obtain a court order in aid of investigation under this section is not a pleading, and may not be deemed a pleading, for purposes of the Texas Rules of Civil Procedure.

(g) A person, including a medical facility, that makes a report under Subchapter B shall release to the department or designated agency, as part of the required report under Section 261.103, records that directly relate to the suspected abuse or neglect without requiring parental consent or a court order. If a child is transferred from a reporting medical facility to another medical facility to treat the injury or condition that formed the basis for the original report, the transferee medical facility shall, at the department's request, release to the department records relating to the injury or condition without requiring parental consent or a court order.

(h) [(e)] A person, including a utility company, that has confidential locating or identifying information regarding a family that is the subject of an investigation under this chapter shall release that information to the department on request. The release of information to the department as required by this subsection by a person, including a utility company, is not subject to Section 552.352, Government Code, or any other law providing liability for the release of confidential information.

(i) A court having family law jurisdiction may designate an associate judge to issue an order in aid of investigation under this section. An order issued by an associate judge is immediately effective without the ratification or signature of the court making the designation.

(j) An investigator or authorized representative of the department executing an order issued under this section shall promptly file with the court that issued the order a written report stating whether the ordered access was granted, the interview was conducted, or other action was taken in accordance with the order.

(k) A court issuing an order in aid of investigation under this section shall keep a record of all the proceedings before the court under this subchapter and shall certify and deliver the record to the clerk of the court accompanied by all the original papers relating to the proceedings, including a report filed with the court under Subsection (j). The record of proceedings, including any affidavit presented to the court and any report filed with the court, is confidential under Section 261.201 and may only be disclosed as provided by that section.

(l) If the department files a suit affecting the parent-child relationship under Chapter 262, the department shall include with its original petition any prelitigation affidavit, order, or report relating to an order in aid of investigation issued under this section.

(m) As soon as practicable after the department obtains access to records of a child pursuant to an order issued under this section, the department must notify the child's parents or other person with legal custody of the child that the department has obtained the records.

(n) Access to a confidential record under this subchapter does not constitute a waiver of confidentiality.

SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

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