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AN ACT
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relating to the regulation of certain child-care facilities and |
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administrators of those facilities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsection (b), Section 42.041, Human Resources |
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Code, is amended to read as follows: |
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(b) This section does not apply to: |
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(1) a state-operated facility; |
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(2) an agency foster home or agency foster group home; |
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(3) a facility that is operated in connection with a |
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shopping center, business, religious organization, or |
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establishment where children are cared for during short periods |
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while parents or persons responsible for the children are attending |
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religious services, shopping, or engaging in other activities, |
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including retreats or classes for religious instruction, on or near |
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the premises, that does not advertise as a child-care facility or |
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day-care center, and that informs parents that it is not licensed by |
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the state; |
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(4) a school or class for religious instruction that |
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does not last longer than two weeks and is conducted by a religious |
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organization during the summer months; |
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(5) a youth camp licensed by the Department of State |
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Health Services; |
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(6) a facility licensed, operated, certified, or |
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registered by another state agency; |
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(7) an educational facility that is accredited by the |
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Texas Education Agency, the Southern Association of Colleges and |
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Schools, or an accreditation body that is a member of the Texas |
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Private School Accreditation Commission and that operates |
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primarily for educational purposes for prekindergarten and above, a |
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before-school or after-school program operated directly by an |
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accredited educational facility, or a before-school or |
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after-school program operated by another entity under contract with |
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the educational facility, if the Texas Education Agency, the |
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Southern Association of Colleges and Schools, or the other |
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accreditation body, as applicable, has approved the curriculum |
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content of the before-school or after-school program operated under |
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the contract; |
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(8) an educational facility that operates solely for |
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educational purposes for prekindergarten through at least grade |
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two, that does not provide custodial care for more than one hour |
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during the hours before or after the customary school day, and that |
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is a member of an organization that promulgates, publishes, and |
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requires compliance with health, safety, fire, and sanitation |
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standards equal to standards required by state, municipal, and |
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county codes; |
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(9) a kindergarten or preschool educational program |
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that is operated as part of a public school or a private school |
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accredited by the Texas Education Agency, that offers educational |
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programs through grade six, and that does not provide custodial |
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care during the hours before or after the customary school day; |
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(10) a family home, whether registered or listed; |
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(11) an educational facility that is integral to and |
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inseparable from its sponsoring religious organization or an |
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educational facility both of which do not provide custodial care |
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for more than two hours maximum per day, and that offers an |
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educational program in one or more of the |
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following: prekindergarten through at least grade three, |
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elementary grades, or secondary grades; |
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(12) an emergency shelter facility providing shelter |
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to minor mothers who are the sole support of their natural children |
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under Section 32.201, Family Code, unless the facility would |
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otherwise require a license as a child-care facility under this |
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section; |
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(13) a juvenile detention facility certified under |
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Section 51.12, Family Code, a juvenile correctional facility |
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certified under Section 51.125, Family Code, a juvenile facility |
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providing services solely for the Texas Juvenile Justice Department |
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[Youth Commission], or any other correctional facility for children |
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operated or regulated by another state agency or by a political |
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subdivision of the state; |
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(14) an elementary-age (ages 5-13) recreation program |
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operated by a municipality provided the governing body of the |
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municipality annually adopts standards of care by ordinance after a |
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public hearing for such programs, that such standards are provided |
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to the parents of each program participant, and that the ordinances |
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shall include, at a minimum, staffing ratios, minimum staff |
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qualifications, minimum facility, health, and safety standards, |
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and mechanisms for monitoring and enforcing the adopted local |
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standards; and further provided that parents be informed that the |
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program is not licensed by the state and the program may not be |
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advertised as a child-care facility; |
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(15) an annual youth camp held in a municipality with a |
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population of more than 1.5 million that operates for not more than |
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three months and that has been operated for at least 10 years by a |
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nonprofit organization that provides care for the homeless; |
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(16) a food distribution program that: |
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(A) serves an evening meal to children two years |
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of age or older; and |
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(B) is operated by a nonprofit food bank in a |
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nonprofit, religious, or educational facility for not more than two |
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hours a day on regular business days; |
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(17) a child-care facility that operates for less than |
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three consecutive weeks and less than 40 days in a period of 12 |
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months; |
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(18) a program: |
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(A) in which a child receives direct instruction |
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in a single skill, talent, ability, expertise, or proficiency; |
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(B) that does not provide services or offerings |
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that are not directly related to the single talent, ability, |
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expertise, or proficiency; |
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(C) that does not advertise or otherwise |
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represent that the program is a child-care facility, day-care |
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center, or licensed before-school or after-school program or that |
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the program offers child-care services; |
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(D) that informs the parent or guardian: |
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(i) that the program is not licensed by the |
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state; and |
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(ii) about the physical risks a child may |
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face while participating in the program; and |
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(E) that conducts background checks for all |
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program employees and volunteers who work with children in the |
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program using information that is obtained from the Department of |
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Public Safety; |
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(19) an elementary-age (ages 5-13) recreation program |
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that: |
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(A) adopts standards of care, including |
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standards relating to staff ratios, staff training, health, and |
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safety; |
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(B) provides a mechanism for monitoring and |
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enforcing the standards and receiving complaints from parents of |
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enrolled children; |
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(C) does not advertise as or otherwise represent |
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the program as a child-care facility, day-care center, or licensed |
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before-school or after-school program or that the program offers |
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child-care services; |
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(D) informs parents that the program is not |
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licensed by the state; |
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(E) is organized as a nonprofit organization or |
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is located on the premises of a participant's residence; |
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(F) does not accept any remuneration other than a |
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nominal annual membership fee; |
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(G) does not solicit donations as compensation or |
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payment for any good or service provided as part of the program; and |
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(H) conducts background checks for all program |
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employees and volunteers who work with children in the program |
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using information that is obtained from the Department of Public |
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Safety; |
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(20) a living arrangement in a caretaker's home |
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involving one or more children or a sibling group, excluding |
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children who are related to the caretaker, in which the caretaker: |
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(A) had a prior relationship with the child or |
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sibling group or other family members of the child or sibling group; |
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(B) does not care for more than one unrelated |
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child or sibling group; |
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(C) does not receive compensation or solicit |
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donations for the care of the child or sibling group; and |
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(D) has a written agreement with the parent to |
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care for the child or sibling group; |
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(21) a living arrangement in a caretaker's home |
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involving one or more children or a sibling group, excluding |
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children who are related to the caretaker, in which: |
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(A) the department is the managing conservator of |
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the child or sibling group; |
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(B) the department placed the child or sibling |
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group in the caretaker's home; and |
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(C) the caretaker had a long-standing and |
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significant relationship with the child or sibling group before the |
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child or sibling group was placed with the caretaker; [or] |
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(22) a living arrangement in a caretaker's home |
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involving one or more children or a sibling group, excluding |
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children who are related to the caretaker, in which the child is in |
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the United States on a time-limited visa under the sponsorship of |
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the caretaker or of a sponsoring organization; or |
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(23) a facility operated by a nonprofit organization |
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that: |
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(A) does not otherwise operate as a child-care |
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facility that is required to be licensed under this section; |
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(B) provides emergency shelter and care for not |
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more than 15 days to children 13 years of age or older but younger |
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than 18 years of age who are victims of human trafficking alleged |
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under Section 20A.02, Penal Code; |
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(C) is located in a municipality with a |
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population of at least 600,000 that is in a county on an |
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international border; and |
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(D) meets one of the following criteria: |
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(i) is licensed by, or operates under an |
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agreement with, a state or federal agency to provide shelter and |
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care to children; or |
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(ii) meets the eligibility requirements for |
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a contract under Section 51.005(b)(3). |
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SECTION 2. Section 42.044, Human Resources Code, is amended |
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by amending Subsections (b) and (b-2) and adding Subsection (b-3) |
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to read as follows: |
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(b) Except as provided by Subsection (b-3), the [The] |
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department shall inspect all licensed or certified facilities at |
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least once a year and may inspect other facilities or registered |
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family homes as necessary. At least one of the annual visits must |
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be unannounced and all may be unannounced. |
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(b-2) Except as otherwise provided by this subsection, |
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during an unannounced annual or biennial inspection of a day-care |
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center, the department shall meet with the director designated by |
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the day-care center as having daily, on-site responsibility for the |
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operation of the day-care center to assess whether the director |
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meets the qualifications of a director specified by this chapter |
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and department rules. If the director is not present during the |
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unannounced annual or biennial inspection, the department shall |
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schedule a subsequent meeting with the director for that purpose |
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and shall conduct that meeting at the day-care center. |
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(b-3) The department may, in accordance with rules adopted |
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by the executive commissioner, designate a licensed day-care center |
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or group day-care home for a biennial inspection if the department |
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determines, based on previous inspections, that the facility has a |
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history of substantial compliance with minimum licensing |
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standards. The biennial inspection of a day-care center or group |
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day-care home must be unannounced. |
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SECTION 3. Subsections (a-2), (a-4), (a-5), and (b-1), |
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Section 42.056, Human Resources Code, are amended to read as |
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follows: |
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(a-2) In accordance with rules adopted by the executive |
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commissioner, the director, owner, or operator of a residential |
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child-care facility, day-care center, before-school or |
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after-school program, or school-age program shall submit a complete |
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set of fingerprints of each person whose name is required to be |
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submitted by the director, owner, or operator under Subsection (a), |
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unless the person is only required to have the person's name |
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submitted based on criteria specified by Subsection (a)(7). This |
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subsection does not apply to a program that is exempt from the |
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licensing requirements of Section 42.041. |
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(a-4) In accordance with rules adopted by the executive |
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commissioner, the director, owner, or operator of a [child-care] |
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facility or family home shall submit a complete set of fingerprints |
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of each person whose name is required to be submitted by the |
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director, owner, or operator under Subsection (a) if: |
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(1) the person resided in another state during the |
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five years preceding the date the person's name was required to be |
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submitted under Subsection (a); or |
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(2) the director, owner, or operator has reason to |
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suspect that the person has a criminal history in another state. |
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(a-5) The rules adopted by the executive commissioner under |
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Subsections (a-2)[, (a-3),] and (a-4): |
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(1) must require that the fingerprints be submitted in |
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a form and of a quality acceptable to the Department of Public |
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Safety and the Federal Bureau of Investigation for conducting a |
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criminal history check; |
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(2) may require that the fingerprints be submitted |
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electronically through an applicant fingerprinting service center; |
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and |
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(3) may allow the department to waive the submission |
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of fingerprints required by this section if: |
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(A) the person for whom the submission is |
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required has: |
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(i) a fingerprint-based criminal history |
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record check on file with the department; or |
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(ii) a fingerprint-based criminal history |
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clearinghouse record, as provided by Section 411.0845, Government |
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Code, that is accessible to the department through the Department |
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of Public Safety; and |
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(B) the date on which the current submission of |
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fingerprints is required occurs before the second anniversary of a |
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previous name-based criminal history check of the person. |
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(b-1) In addition to any other background or criminal |
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history check conducted under Subsection (b), for each person whose |
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fingerprints are submitted under Subsection (a-2)[, (a-3),] or |
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(a-4), the department shall conduct a state and Federal Bureau of |
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Investigation criminal history check by: |
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(1) submitting the person's fingerprints, or causing |
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the fingerprints to be submitted electronically, to the Department |
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of Public Safety for the purpose of conducting a state and federal |
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criminal history check; and |
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(2) using the resulting information made available by |
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that department under Section 411.114, Government Code, and by the |
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Federal Bureau of Investigation and any other criminal justice |
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agency under Section 411.087, Government Code. |
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SECTION 4. Section 42.078, Human Resources Code, is amended |
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by amending Subsections (a) and (a-1) and adding Subsection (a-2) |
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to read as follows: |
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(a) The department may impose an administrative sanction or |
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an administrative penalty against a facility or family home |
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licensed, registered, or listed under this chapter that violates |
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this chapter or a rule or order adopted under this chapter. In |
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addition, the department may impose an administrative penalty |
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against a [residential child-care] facility or family home or a |
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controlling person of a [residential child-care] facility or family |
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home if the facility, family home, or controlling person: |
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(1) violates a term of a license or registration |
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issued under this chapter; |
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(2) makes a statement about a material fact that the |
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facility or person knows or should know is false: |
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(A) on an application for the issuance of a |
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license or registration or an attachment to the application; or |
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(B) in response to a matter under investigation; |
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(3) refuses to allow a representative of the |
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department to inspect: |
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(A) a book, record, or file required to be |
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maintained by the facility; or |
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(B) any part of the premises of the facility; |
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(4) purposefully interferes with the work of a |
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representative of the department or the enforcement of this |
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chapter; or |
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(5) fails to pay a penalty assessed under this chapter |
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on or before the date the penalty is due, as determined under this |
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section. |
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(a-1) Except as provided by Subsection (a-2), nonmonetary |
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[Nonmonetary,] administrative sanctions [penalties or remedies], |
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including [but not limited to] corrective action plans, probation, |
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and evaluation periods, shall be imposed when appropriate before |
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administrative [monetary] penalties. |
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(a-2) The department may impose an administrative penalty |
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without first imposing a nonmonetary administrative sanction for |
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the following violations: |
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(1) failing to timely submit the information required |
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to conduct a background and criminal history check under Section |
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42.056 and applicable department rules on two or more occasions; |
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(2) failing to submit the information required to |
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conduct a background and criminal history check under Section |
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42.056 and applicable department rules before the 30th day after |
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the date the facility or family home is notified by the department |
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that the information is overdue; |
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(3) except as provided by Section 42.056(g), knowingly |
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allowing a person to be present in a facility or family home when |
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the person's background and criminal history check has not been |
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received; |
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(4) knowingly allowing a person to be present in a |
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facility or family home when the person's background and criminal |
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history check has been received and contains criminal history or |
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central registry findings that under department rules preclude the |
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person from being present in the facility or family home; or |
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(5) violating a condition or restriction the |
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department places on a person's presence at a facility or family |
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home as part of a pending or approved risk evaluation of the |
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person's background and criminal history or central registry |
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findings. |
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SECTION 5. Section 43.001, Human Resources Code, is amended |
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by adding Subdivisions (5), (6), and (7) to read as follows: |
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(5) "Controlling person" has the meaning assigned by |
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Section 42.002. |
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(6) "General residential operation" has the meaning |
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assigned by Section 42.002. |
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(7) "Permit" means a license, listing, registration, |
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or certification issued to a facility or family home under Chapter |
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42. |
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SECTION 6. Subsection (a), Section 43.003, Human Resources |
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Code, is amended to read as follows: |
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(a) Except as provided by Subsection (b) of this section, a |
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person may not serve as a child-care administrator of a general |
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residential operation [child-care institution] without a license |
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issued by the department under this chapter. |
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SECTION 7. Section 43.004, Human Resources Code, is amended |
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by amending Subsections (a) and (b) and adding Subsection (d) to |
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read as follows: |
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(a) To be eligible for a child-care administrator's license |
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a person must: |
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(1) provide information for the department's use in |
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conducting a criminal history and background check under Subsection |
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(c), including a complete set of the person's fingerprints; |
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(2) satisfy the minimum requirements under department |
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rules relating to criminal history and background checks; |
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(3) pass an examination developed and administered by |
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the department that demonstrates competence in the field of |
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child-care administration; |
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(4) [(3)] have one year of full-time experience in |
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management or supervision of child-care personnel and programs; and |
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(5) [(4)] have one of the following educational and |
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experience qualifications: |
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(A) a master's or doctoral degree in social work |
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or other area of study; or |
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(B) a bachelor's degree and two years' full-time |
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experience in child care or a closely related field. |
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(b) To be eligible for a child-placing agency |
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administrator's license a person must: |
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(1) provide information for the department's use in |
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conducting a criminal history and background check under Subsection |
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(c), including a complete set of the person's fingerprints; |
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(2) satisfy the minimum requirements under department |
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rules relating to criminal history and background checks; |
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(3) pass an examination developed and administered by |
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the department that demonstrates competence in the field of placing |
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children in residential settings or adoptive homes; |
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(4) [(3)] have one year of full-time experience in |
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management or supervision of child-placing personnel and programs; |
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and |
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(5) [(4)] have one of the following educational and |
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experience qualifications: |
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(A) a master's or doctoral degree in social work |
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or other area of study; or |
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(B) a bachelor's degree and two years' full-time |
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experience in the field of placing children in residential settings |
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or adoptive homes or a closely related field. |
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(d) The executive commissioner shall adopt rules consistent |
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with Section 42.056 relating to requiring a criminal history and |
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background check before issuing or renewing a license under this |
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chapter. |
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SECTION 8. Subsection (a), Section 43.009, Human Resources |
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Code, is amended to read as follows: |
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(a) To be eligible for license renewal, a license holder |
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shall: |
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(1) present evidence to the department of |
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participation in a program of continuing education for 15 hours of |
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formal study each year during the two-year period before the |
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renewal; and |
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(2) provide information for the department's use in |
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conducting a criminal history and background check under Section |
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43.004(c) and applicable department rules, including a complete set |
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of the person's fingerprints. |
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SECTION 9. Subsection (a), Section 43.010, Human Resources |
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Code, is amended to read as follows: |
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(a) The department may deny, revoke, suspend, or refuse to |
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renew a license, or place on probation or reprimand a license holder |
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for: |
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(1) violating this chapter or a rule adopted under |
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this chapter; |
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(2) circumventing or attempting to circumvent the |
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requirements of this chapter or a rule adopted under this chapter; |
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(3) engaging in fraud or deceit related to the |
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requirements of this chapter or a rule adopted under this chapter; |
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(4) providing false or misleading information to the |
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department during the license application or renewal process for |
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any person's license; |
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(5) making a statement about a material fact during |
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the license application or renewal process that the person knows or |
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should know is false; |
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(6) having: |
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(A) a criminal history or central registry record |
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that would prohibit a person from working in a child-care facility, |
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as defined by Section 42.002, under rules applicable to that type of |
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facility; or |
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(B) a criminal history relevant to the duties of |
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a licensed child-care or child-placing administrator, as those |
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duties are specified in rules adopted by the executive |
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commissioner; |
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(7) using drugs or alcohol in a manner that |
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jeopardizes the person's ability to function as an administrator; |
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[or] |
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(8) performing duties as a child-care administrator in |
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a negligent manner; or |
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(9) engaging in conduct that makes the license holder |
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ineligible for: |
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(A) a permit under Section 42.072; or |
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(B) employment as a controlling person or service |
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in that capacity in a facility or family home under Section 42.062. |
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SECTION 10. Subsection (a-3), Section 42.056 and |
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Subdivision (1), Section 43.001, Human Resources Code, are |
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repealed. |
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SECTION 11. The changes in law made by this Act to Section |
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42.078, Human Resources Code, apply only to a violation committed |
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on or after the effective date of this Act. A violation committed |
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before the effective date of this Act is governed by the law in |
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effect when the violation was committed, and the former law is |
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continued in effect for that purpose. |
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SECTION 12. This Act takes effect September 1, 2013. |
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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. 427 passed the Senate on |
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April 9, 2013, by the following vote: Yeas 31, Nays 0; and that |
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the Senate concurred in House amendment on May 20, 2013, 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. 427 passed the House, with |
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amendment, on May 17, 2013, by the following vote: Yeas 135, |
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Nays 5, three 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 |