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A BILL TO BE ENTITLED
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AN ACT
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relating to the access of criminal history record information by |
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the Department of Family and Protective Services. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 411.114(a)(1), Government Code, is |
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amended by amending Paragraph (A) and adding Paragraph (A-1) to |
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read as follows: |
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(A) "Child," "child-care facility," |
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"child-placing agency," "facility," and "family home" have the |
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meanings assigned by Section 42.002, Human Resources Code. |
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(A-1) "Department of Family and Protective |
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Services" includes: |
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(i) the Department of Family and Protective |
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Services as authorized by Section 40.002, Human Resources Code; |
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(ii) the Health and Human Services |
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Commission with respect to a function transferred to the commission |
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under Subchapter A-1, Chapter 531; and |
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(iii) any person or entity acting as an |
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authorized agent of the Department of Family and Protective |
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Services. |
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SECTION 2. Sections 411.114(a)(2), (3), and (7), Government |
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Code, are amended to read as follows: |
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(2) The Department of Family and Protective Services |
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shall obtain from the department criminal history record |
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information maintained by the department that relates to a person |
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who is: |
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(A) an applicant for a license, registration, |
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certification, or listing under Chapter 42, Human Resources Code; |
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(B) an owner, operator, or employee of or an |
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applicant for employment by a child-care facility, child-placing |
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agency, or family home licensed, registered, certified, or listed |
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under Chapter 42, Human Resources Code; |
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(C) a person 14 years of age or older who will be |
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regularly or frequently working or staying in a [child-care] |
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facility or family home [while children are being provided care], |
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other than a child in the care of the home or facility; |
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(D) except as provided by Subsection (d), an |
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applicant selected for a position with the Department of Family and |
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Protective Services, the duties of which include direct delivery of |
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protective services to children, elderly persons, or persons with a |
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disability; |
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(E) an employee of, an applicant for employment |
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with, or a volunteer or an applicant volunteer with a business |
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entity or person that contracts with the Department of Family and |
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Protective Services to provide direct delivery of protective |
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services to children, elderly persons, or persons with a |
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disability, if the person's duties or responsibilities include |
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direct contact with children, elderly persons, or persons with a |
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disability; |
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(F) a registered volunteer with the Department of |
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Family and Protective Services; |
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(G) a person providing or applying to provide |
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in-home, adoptive, or foster care for children in the care of the |
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Department of Family and Protective Services and other persons |
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living in the residence in which the child will reside; |
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(H) a Department of Family and Protective |
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Services employee who is engaged in the direct delivery of |
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protective services to children, elderly persons, or persons with a |
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disability; |
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(I) an alleged perpetrator in a report the |
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Department of Family and Protective Services receives alleging that |
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the person has abused, neglected, or exploited a child, an elderly |
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person, or a person with a disability, provided that: |
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(i) the report alleges the person has |
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engaged in conduct that meets the applicable definition of abuse, |
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neglect, or exploitation under Chapter 261, Family Code, or Chapter |
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48, Human Resources Code; and |
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(ii) the person is not also the victim of |
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the alleged conduct; |
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(J) a person providing child care for a child who |
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is in the care of the Department of Family and Protective Services |
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and who is or will be receiving adoptive, foster, or in-home care; |
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(K) through a contract with a nonprofit |
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management center, an employee of, an applicant for employment |
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with, or a volunteer or an applicant volunteer with a nonprofit, |
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tax-exempt organization that provides any service that involves the |
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care of or access to a child, an elderly person, or a person with a |
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disability; or |
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(L) an applicant for a child-care administrator |
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or child-placing agency administrator license under Chapter 43, |
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Human Resources Code. |
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(3) In addition to the criminal history record |
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information the Department of Family and Protective Services is |
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required to obtain under Subdivision (2), the [The] Department of |
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Family and Protective Services 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 a person who is: |
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(A) an applicant for a position with the |
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Department of Family and Protective Services regardless of the |
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duties of the position, including a position described by |
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Subdivision (2)(D); |
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(B) a Department of Family and Protective |
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Services employee regardless of the duties of the employee's |
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position, including an employee described by Subdivision (2)(H); |
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(C) a volunteer or applicant volunteer with the |
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Department of Family and Protective Services regardless of the |
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duties to be performed, including a registered volunteer; |
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(D) an employee of, an applicant for employment |
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with, or a volunteer or an applicant volunteer with an entity or |
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person that contracts with the Department of Family and Protective |
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Services and has access to confidential information in the |
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department's records, if the employee, applicant, volunteer, or |
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applicant volunteer has or will have access to that confidential |
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information; |
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(E) a person living in the residence in which the |
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alleged victim of the report resides, including an alleged |
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perpetrator in a report described by Subdivision (2)(I); |
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(F) a person providing, at the request of the |
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child's parent, in-home care for a child who is the subject of a |
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report alleging the child has been abused or neglected; |
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(G) a person providing, at the request of the |
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child's parent, in-home care for a child only if the person gives |
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written consent to the release and disclosure of the information; |
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(H) a child who is related to the caretaker, as |
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determined under Section 42.002, Human Resources Code, or any other |
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person who resides in, is present in, or has unsupervised access to |
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a child in the care of a facility or family home; |
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(I) a relative of a child in the care of the |
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Department of Family and Protective Services, to the extent |
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necessary to comply with Section 162.007, Family Code; |
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(J) a person providing or applying to provide |
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in-home, adoptive, or foster care for children to the extent |
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necessary to comply with Subchapter B, Chapter 162, Family Code; |
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(K) a person who volunteers to supervise |
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visitation under Subchapter B, Chapter 263, Family Code; |
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(L) an employee of or volunteer at, or an |
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applicant for employment with or to be a volunteer at, an entity |
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that provides supervised independent living services to a young |
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adult receiving extended foster care services from the Department |
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of Family and Protective Services; |
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(M) a person 14 years of age or older who will be |
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regularly or frequently working or staying in a host home that is |
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providing supervised independent living services to a young adult |
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receiving extended foster care services from the Department of |
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Family and Protective Services; |
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(N) a volunteer or applicant volunteer with a |
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local affiliate in this state of Big Brothers Big Sisters of |
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America; |
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(O) a volunteer or applicant volunteer with an |
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organization that provides court-appointed volunteer advocates for |
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abused or neglected children; or |
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(P) an employee, volunteer, or applicant |
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volunteer of a children's advocacy center under Subchapter E, |
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Chapter 264, Family Code, including a member of the governing board |
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of a center [with respect to whom the Department of Family and
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Protective Services determines obtaining a criminal history record
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is necessary to ensure the safety or welfare of a child, elderly
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person, or person with a disability]. |
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(7) The Department of Family and Protective Services |
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is not prohibited from releasing criminal history record |
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information obtained under this subsection to: |
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(A) the person who is the subject of the criminal |
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history record information; |
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(B) a [child-care facility,] child-placing |
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agency[, or family home] listed in Subdivision (2) that is seeking |
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to verify or approve a foster or adoptive home under procedures |
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authorized by Section 471(a)(20)(A), Social Security Act (42 U.S.C. |
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Section 671(a)(20)(A)) [employs or is considering employing the
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person who is the subject of the criminal history record
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information]; |
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(C) [a person or business entity described by
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Subdivision (2)(E) who uses or intends to use the services of the
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volunteer or employs or is considering employing the person who is
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the subject of the criminal history record information;
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[(D)
a person or business entity who uses or
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intends to use the volunteer services of or who employs or is
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considering employing the person who is the subject of the criminal
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history record if the release of the record is related to the
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purpose for which the record was obtained under Subdivision (3);
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[(E)] an adult who resides with an alleged victim |
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of abuse, neglect, or exploitation of a child, elderly person, or |
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person with a disability and who also resides with the alleged |
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perpetrator of that abuse, neglect, or exploitation if: |
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(i) the alleged perpetrator is the subject |
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of the criminal history record information; and |
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(ii) the Department of Family and |
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Protective Services determines that the release of information to |
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the adult is necessary to ensure the safety or welfare of the |
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alleged victim or the adult; or |
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(D) [(F)] an elderly or disabled person who is an |
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alleged victim of abuse, neglect, or exploitation and who resides |
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with the alleged perpetrator of that abuse, neglect, or |
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exploitation if: |
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(i) the alleged perpetrator is the subject |
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of the criminal history record information; and |
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(ii) the Department of Family and |
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Protective Services determines that the release of information to |
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the elderly or disabled person or adult is necessary to ensure the |
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safety or welfare of the elderly or disabled person. |
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SECTION 3. Section 411.114, Government Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) With respect to an applicant who is selected for |
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employment for a function or in a division of the Department of |
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Family and Protective Services that is transferred to the Health |
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and Human Services Commission under Subchapter A-1, Chapter 531, |
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the commission may obtain from the department criminal history |
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record information maintained by the department that relates to the |
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applicant. |
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SECTION 4. Effective January 1, 2018, Section 42.056, Human |
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Resources Code, is amended by amending Subsections (a), (a-2), |
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(a-5), (b), (b-1), and (g) and adding Subsections (a-3) and (b-2) to |
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read as follows: |
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(a) The [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[, child-placing agency,] or family home shall[, when
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applying to operate a child-care facility or child-placing agency
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or when listing or registering a family home and at least once
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during each 24 months after receiving a license, listing,
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registration, or certification of approval,] submit to the |
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department the names of the following individuals, who must have |
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[for use in conducting] background [and criminal history] checks as |
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described by this section and in accordance with rules adopted by |
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the executive commissioner [the name of]: |
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(1) the director, owner, and operator of the facility, |
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agency, or home; |
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(2) each person employed at the facility, agency, or |
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home; |
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(3) each prospective employee of the facility, agency, |
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or home; |
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(4) each person who provides care or supervision to |
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children in the care of the facility, agency, or home under a |
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contract with the facility, agency, or home; |
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(5) each current or prospective foster parent |
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providing foster care through a child-placing agency; |
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(6) [(5)] each prospective adoptive parent seeking to |
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adopt through a child-placing agency; |
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(7) [(6)] each person at least 14 years of age, other |
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than a client in care, who: |
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(A) is counted in child-to-caregiver ratios in |
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accordance with the minimum standards of the department; |
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(B) will reside in a prospective adoptive home if |
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the adoption is through a child-placing agency; |
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(C) has unsupervised access to children in care |
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at the facility or family home; or |
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(D) resides in the facility or family home; or |
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(8) [(7)] each person 14 years of age or older, other |
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than a client in care, who will regularly or frequently be staying |
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or working at a facility, family home, or prospective adoptive |
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home, while children are being provided care. |
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(a-2) In accordance with rules adopted by the executive |
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commissioner, a person [the director, owner, or operator of a
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residential child-care facility, listed or registered family home,
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group day-care home, day-care center, before-school or
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after-school program, or school-age program] shall submit a |
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complete set of fingerprints if: |
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(1) the [of each] person [whose name] is required to |
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have a background check under Subsections (a)(1)-(7); |
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(2) the person resided in another state during [be
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submitted by] the five years preceding the date [director, owner,
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or operator under Subsection (a), unless the person is only
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required to have] the person's name was required to be submitted |
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under [based on criteria specified by] Subsection (a); or |
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(3) 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)(7)]. |
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(a-3) Subsection (a-2)(1) [This subsection] does not apply |
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to a family home that is subject to regulation by the department |
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under Section 42.0523. |
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(a-5) The rules adopted by the executive commissioner under |
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Subsection [Subsections] (a-2) [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 department has an active subscription to |
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the Federal Bureau of Investigation's national rap back service for |
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the person for whom the [date on which the current] submission [of
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fingerprints] is required [occurs before the second anniversary of
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a previous name-based criminal history check of the person]. |
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(b) The department shall conduct background [and criminal
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history] checks using: |
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(1) the information provided under Subsection (a); |
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(2) the information made available by the Department |
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of Public Safety under Section 411.114, Government Code, or by the |
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Federal Bureau of Investigation or other criminal justice agency |
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under Section 411.087, Government Code; [and] |
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(3) the department's records of reported abuse and |
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neglect; and |
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(4) any other registry, repository, or database |
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required by federal law. |
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(b-1) For [In addition to any other background or criminal
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history check conducted under Subsection (b), for] each person |
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whose fingerprints are submitted under Subsection (a-2) [or (a-4)], |
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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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(b-2) For each person required to have a background check |
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under Subsection (a), but who is not required to submit |
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fingerprints for a Federal Bureau of Investigations criminal |
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history check under Subsection (a-2): |
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(1) the person shall have a name-based check instead |
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of a fingerprint check; and |
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(2) the director, owner, or operator of the child-care |
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facility, child-placing agency, or family home shall submit the |
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name of the person each 24 months after last submitting the person's |
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name to the department for use in conducting a background check. |
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(g) Except as otherwise provided by this subsection, a |
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person whose name is submitted under Subsection (a) may not provide |
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direct care or have direct access to a child in a facility or family |
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home before the person's background check is [and criminal history
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checks under Subsections (b) and (b-1) are] completed. A person |
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may be employed at a facility or family home and may provide direct |
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care or have direct access to a child in the facility or family home |
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before the person's criminal history check under Subsection (b-1) |
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is completed if: |
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(1) the facility or family home is experiencing a |
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staff shortage; |
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(2) the Federal Bureau of Investigations fingerprint |
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[state criminal history] check and the background check using the |
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department's records of reported abuse and neglect have been |
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completed under Subsection (b), and the resulting information does |
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not preclude the person from being present at the facility or family |
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home; and |
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(3) the person does not have unsupervised access to |
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any child in care [person's fingerprints are submitted as soon as
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possible, but not later than the 30th day after the earliest of the
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date on which the person first:
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[(A) provides direct care to a child;
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[(B) has direct access to a child; or
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[(C) is hired]. |
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SECTION 5. (a) Section 411.114(a)(1)(E), Government Code, |
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is repealed. |
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(b) Effective January 1, 2018, Section 42.056(a-4), Human |
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Resources Code, is repealed. |
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SECTION 6. Except as otherwise provided by this Act, this |
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Act takes effect September 1, 2017. |