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A BILL TO BE ENTITLED
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AN ACT
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relating to the prosecution, punishment, and certain civil |
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consequences of conduct causing the birth of a child born addicted |
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to a controlled substance; creating an offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 22, Penal Code, is amended by adding |
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Section 22.042 to read as follows: |
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Sec. 22.042. INGESTION OF CONTROLLED SUBSTANCE WHILE |
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PREGNANT. (a) In this section: |
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(1) "Born addicted to a controlled substance" means a |
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child who, during the first month after birth: |
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(A) experiences observable withdrawal from a |
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controlled substance; |
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(B) exhibits observable or harmful effects in the |
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child's physical appearance or functioning attributable to |
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addiction to a controlled substance; or |
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(C) exhibits the demonstrable presence of a |
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controlled substance in the child's bodily fluids. |
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(2) "Controlled substance" and "prescription" have |
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the meanings assigned by Section 481.002, Health and Safety Code. |
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(b) A person commits an offense if the person ingests a |
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controlled substance while pregnant, resulting in the birth of a |
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child who is born addicted to a controlled substance. |
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(c) It is a defense to prosecution under this section that |
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the child was born addicted to a controlled substance that the actor |
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ingested pursuant to a prescription issued by a licensed physician. |
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(d) It is a defense to prosecution under this section that |
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the actor attended counseling sessions for substance abusers or |
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participated in substance abuse treatment services while pregnant |
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with the child who is born addicted to a controlled substance. |
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(e) An offense under this section is a Class A misdemeanor. |
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(f) The enhancements provided by Sections 12.43 and 12.49 do |
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not apply to an offense under this section. |
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SECTION 2. Subchapter C, Chapter 42A, Code of Criminal |
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Procedure, is amended by adding Article 42A.1011 to read as |
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follows: |
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Art. 42A.1011. DEFERRED ADJUDICATION COMMUNITY SUPERVISION |
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OR COMMUNITY SUPERVISION FOR INGESTION OF CONTROLLED SUBSTANCE |
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WHILE PREGNANT. (a) Except as provided by Subsection (b), if a |
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defendant is determined in a trial on the merits to have committed |
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an offense under Section 22.042, Penal Code, or in the trial of such |
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an offense the defendant enters a plea of guilty or nolo contendere |
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and, after hearing the evidence, the judge finds that it |
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substantiates the defendant's guilt, the judge shall: |
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(1) defer further proceedings without entering an |
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adjudication of guilt; |
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(2) place the defendant on deferred adjudication |
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community supervision; and |
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(3) inform the defendant orally or in writing of the |
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possible consequences under Articles 42A.108 and 42A.110 of a |
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violation of a condition of deferred adjudication community |
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supervision. |
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(b) If the information provided to the defendant under |
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Subsection (a)(3) is provided orally, the judge must record and |
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maintain the judge's statement to the defendant. The failure of a |
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judge to inform a defendant of possible consequences under Articles |
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42A.108 and 42A.110 is not a ground for reversal unless the |
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defendant shows that the defendant was harmed by the failure of the |
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judge to provide the information. |
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(c) If a defendant has previously been placed on deferred |
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adjudication community supervision under this section, on |
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conviction or after receiving a plea of guilty or nolo contendere, |
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after hearing the evidence and finding that it substantiates the |
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defendant's guilt, the judge shall place the defendant on community |
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supervision. |
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(d) A judge who places a defendant on deferred adjudication |
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community supervision under Subsection (a) or community |
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supervision under Subsection (c) shall require the defendant, as a |
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condition of community supervision, to attend counseling sessions |
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for substance abusers or participate in substance abuse treatment |
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services in a program or facility approved or licensed by the |
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Department of State Health Services. |
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SECTION 3. Section 261.001(1), Family Code, is amended to |
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read as follows: |
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(1) "Abuse" includes the following acts or omissions |
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by a person: |
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(A) mental or emotional injury to a child that |
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results in an observable and material impairment in the child's |
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growth, development, or psychological functioning; |
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(B) causing or permitting the child to be in a |
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situation in which the child sustains a mental or emotional injury |
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that results in an observable and material impairment in the |
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child's growth, development, or psychological functioning; |
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(C) physical injury that results in substantial |
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harm to the child, or the genuine threat of substantial harm from |
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physical injury to the child, including an injury that is at |
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variance with the history or explanation given and excluding an |
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accident or reasonable discipline by a parent, guardian, or |
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managing or possessory conservator that does not expose the child |
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to a substantial risk of harm; |
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(D) failure to make a reasonable effort to |
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prevent an action by another person that results in physical injury |
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that results in substantial harm to the child; |
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(E) sexual conduct harmful to a child's mental, |
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emotional, or physical welfare, including conduct that constitutes |
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the offense of continuous sexual abuse of young child or children |
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under Section 21.02, Penal Code, indecency with a child under |
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Section 21.11, Penal Code, sexual assault under Section 22.011, |
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Penal Code, or aggravated sexual assault under Section 22.021, |
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Penal Code; |
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(F) failure to make a reasonable effort to |
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prevent sexual conduct harmful to a child; |
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(G) compelling or encouraging the child to engage |
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in sexual conduct as defined by Section 43.01, Penal Code, |
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including compelling or encouraging the child in a manner that |
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constitutes an offense of trafficking of persons under Section |
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20A.02(a)(7) or (8), Penal Code, prostitution under Section |
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43.02(b), Penal Code, or compelling prostitution under Section |
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43.05(a)(2), Penal Code; |
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(H) causing, permitting, encouraging, engaging |
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in, or allowing the photographing, filming, or depicting of the |
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child if the person knew or should have known that the resulting |
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photograph, film, or depiction of the child is obscene as defined by |
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Section 43.21, Penal Code, or pornographic; |
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(I) the current use by a person of a controlled |
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substance as defined by Chapter 481, Health and Safety Code, in a |
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manner or to the extent that the use results in physical, mental, or |
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emotional injury to a child; |
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(J) causing, expressly permitting, or |
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encouraging a child to use a controlled substance as defined by |
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Chapter 481, Health and Safety Code; |
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(K) causing, permitting, encouraging, engaging |
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in, or allowing a sexual performance by a child as defined by |
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Section 43.25, Penal Code; [or] |
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(L) knowingly causing, permitting, encouraging, |
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engaging in, or allowing a child to be trafficked in a manner |
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punishable as an offense under Section 20A.02(a)(5), (6), (7), or |
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(8), Penal Code, or the failure to make a reasonable effort to |
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prevent a child from being trafficked in a manner punishable as an |
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offense under any of those sections; or |
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(M) allowing a child to be born addicted to a |
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controlled substance, as defined by Section 22.042, Penal Code. |
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SECTION 4. Section 262.102, Family Code, is amended by |
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adding Subsection (b-2) to read as follows: |
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(b-2) In determining whether there is an immediate danger to |
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the physical health or safety of a child who is younger than one |
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year of age, the court may consider whether the child was the |
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subject of abuse described by Section 261.001(1)(M). |
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SECTION 5. Section 262.104, Family Code, is amended by |
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amending Subsection (a) and adding Subsection (c) to read as |
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follows: |
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(a) If there is no time to obtain a temporary order, |
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temporary restraining order, or attachment under Section |
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262.102(a) before taking possession of a child consistent with the |
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health and safety of that child, an authorized representative of |
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the Department of Family and Protective Services, a law enforcement |
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officer, or a juvenile probation officer may take possession of a |
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child without a court order under the following conditions, only: |
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(1) on personal knowledge of facts that would lead a |
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person of ordinary prudence and caution to believe that there is an |
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immediate danger to the physical health or safety of the child; |
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(2) on information furnished by another that has been |
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corroborated by personal knowledge of facts and all of which taken |
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together would lead a person of ordinary prudence and caution to |
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believe that there is an immediate danger to the physical health or |
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safety of the child; |
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(3) on personal knowledge of facts that would lead a |
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person of ordinary prudence and caution to believe that the child |
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has been the victim of sexual abuse or of trafficking under Section |
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20A.02 or 20A.03, Penal Code; |
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(4) on information furnished by another that has been |
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corroborated by personal knowledge of facts and all of which taken |
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together would lead a person of ordinary prudence and caution to |
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believe that the child has been the victim of sexual abuse or of |
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trafficking under Section 20A.02 or 20A.03, Penal Code; [or] |
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(5) on information furnished by another that has been |
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corroborated by personal knowledge of facts and all of which taken |
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together would lead a person of ordinary prudence and caution to |
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believe that the parent or person who has possession of the child is |
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currently using a controlled substance as defined by Chapter 481, |
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Health and Safety Code, and the use constitutes an immediate danger |
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to the physical health or safety of the child; or |
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(6) if the child is younger than one year of age, on |
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information furnished by another that has been corroborated by |
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personal knowledge of facts and all of which taken together would |
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lead a person of ordinary prudence and caution to believe that the |
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child was born addicted to a controlled substance, as defined by |
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Section 22.042, Penal Code, and there is an immediate danger to the |
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physical health or safety of the child. |
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(c) An authorized representative of the Department of |
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Family and Protective Services, a law enforcement officer, or a |
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juvenile probation officer who takes possession of a child without |
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a court order under a condition described by Subsection (a)(6) must |
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report the facts that supported taking possession of the child to |
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the local prosecutor with jurisdiction over an offense under |
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Section 22.042, Penal Code. |
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SECTION 6. The change in law made by this Act to Section |
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261.001, Family Code, applies only to an investigation of child |
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abuse alleged to have occurred on or after the effective date of |
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this Act. |
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SECTION 7. This Act takes effect September 1, 2017. |