BILL ANALYSIS |
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C.S.H.B. 3859 |
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By: Frank |
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State Affairs |
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Committee Report (Substituted) |
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BACKGROUND AND PURPOSE
Interested parties note that many providers of child welfare services in Texas act according to their sincerely held religious beliefs. Concerns have been raised that these providers may experience adverse or retaliatory actions from state agencies or other governmental entities for exercising their religious beliefs while providing those services. C.S.H.B. 3859 seeks to address these concerns by providing certain protections for these child welfare services providers to maintain a diverse network of service providers and families to accommodate children of diverse cultural backgrounds and beliefs to meet the needs of children in the child welfare system.
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CRIMINAL JUSTICE IMPACT
It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.
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RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
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ANALYSIS
C.S.H.B. 3859 amends the Human Resources Code to prohibit a governmental entity, from discriminating or taking adverse action, as defined by the bill, against a child welfare services provider, as defined by the bill. The bill defines governmental entity as the state, a municipality or other political subdivision of the state, an agency of the state or of a municipality or other political subdivision, or a single source continuum contractor in Texas. The bill prohibits a governmental entity or any person that contracts with the state or operates under governmental authority to refer or place children for child welfare services, as defined by the bill, from discriminating or taking adverse action against a child welfare services provider on the basis, wholly or partly, that the provider has acted according to sincerely held religious belief. This includes declining to facilitate or refer a person for child welfare services that conflict with, or under circumstances that conflict with, the provider's sincerely held religious beliefs; or providing children under the provider's control, care, guardianship, or direction with a religious education, including placement of children in private or parochial school; or declining to provide, facilitate, or refer a person for abortions, contraceptives, or drugs, devices, or services that are potentially abortion-inducing; or refusing to enter into a contract that is inconsistent with or would in any way interfere with or force a provider to surrender the rights created by the bill.
C.S.H.B. 3859 protects a child welfare services provider from being required to provide any service that conflicts with the provider's sincerely held religious beliefs. The bill requires a governmental entity or any person that operates under governmental authority to refer or place children for child welfare services to ensure that a secondary child welfare services provider is available in that catchment area to provide a child welfare service that a primary services provider declines to provide due to sincerely held religious beliefs. The bill requires a governmental entity or any person that operates under governmental authority to provide for one or more secondary services providers in a nearby catchment area, if there is an insufficient number of secondary service providers willing or available in that catchment area to provide those services. The bill defines "catchment area" as a geographic service area for providing child protective services or child welfare services identified as part of the foster care redesign under Section 264.126, Family Code.
C.S.H.B. 3859 entitles a child welfare services provider who successfully asserts a claim or defense under the bill's provisions to obtain declaratory relief under specified provisions of the Civil Practice and Remedies Code or injunctive relief to prevent the threatened or continued adverse action but prohibits a person from bringing an action for declaratory or injunctive relief against an individual, other than an action brought against an individual acting in the individual's official capacity. The bill authorizes a child welfare services provider to assert an actual or threatened violation of the bill's provisions as a claim or defense in a judicial or administrative proceeding and to obtain such relief. The bill waives sovereign and governmental immunity to suit but establishes that the bill's provisions do not waive or abolish sovereign immunity to suit under the Eleventh Amendment to the United States Constitution.
C.S.H.B 3859 sets out provisions establishing the intended construction, interpretation, and effect of the bill's provisions with regard to other laws and rights. The bill's provisions expressly may not be construed to authorize a governmental entity to burden a person's free exercise of religion. The bill establishes that the protections of religious freedom afforded by its provisions are in addition to the protections provided under federal or state law and the constitutions of this state and the United States. The bill's provisions expressly may not be construed to supersede any law of the state that is equally as protective of religious beliefs as, or more protective of religious beliefs than, its provisions. The bill's provisions expressly may not be considered to narrow the meaning or application of any other law protecting religious beliefs. The bill's provisions expressly may not be construed to prevent law enforcement officers from exercising duties imposed on the officers under the Family Code and the Penal Code. The bill's provisions expressly may not be construed to allow a child welfare services provider to decline to provide, facilitate, or refer a person for child welfare services on the basis of that person's race, ethnicity, or national origin. The bill's provisions expressly may not be construed to allow a child welfare services provider to deprive a minor of the rights, including the right to medical care, provided by specified provisions of the Family Code. The bill's provisions apply to any ordinance, rule, order, decision, practice, or other exercise of governmental authority and to an act of a governmental entity, in the exercise of governmental authority, granting or refusing to grant a government benefit to a child welfare services provider.
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EFFECTIVE DATE
On passage, or, if the bill does not receive the necessary vote, September 1, 2017.
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COMPARISON OF ORIGINAL AND SUBSTITUTE
While C.S.H.B. 3859 may differ from the original in minor or nonsubstantive ways, the following comparison is organized and formatted in a manner that indicates the substantial differences between the introduced and committee substitute versions of the bill.
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