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A BILL TO BE ENTITLED
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AN ACT
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relating to the ability of health and human services agencies to |
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continue to be able to obtain criminal history record information. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 411.110, Government Code, is amended to |
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read as follows: |
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Sec. 411.110. ACCESS TO CRIMINAL HISTORY RECORD |
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INFORMATION: DEPARTMENT OF STATE HEALTH SERVICES AND HEALTH AND |
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HUMAN SERVICES COMMISSION. (a) The Department of State Health |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, is entitled to obtain from the department criminal |
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|
history record information maintained by the department that |
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|
relates to: |
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(1) a person who is: |
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(A) an applicant for a license or certificate |
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|
under the Emergency Health Care Act (Chapter 773, Health and Safety |
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|
Code); |
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(B) an owner or manager of an applicant for an |
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|
emergency medical services provider license under that Act; or |
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(C) the holder of a license or certificate under |
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|
that Act; |
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(2) an applicant for a license or a license holder |
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under Subchapter N, Chapter 431, Health and Safety Code; |
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(3) an applicant for a license, the owner or manager of |
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|
an applicant for a massage establishment license, or a license |
|
|
holder under Chapter 455, Occupations Code; |
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(4) an applicant for employment at or current employee |
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of: |
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(A) a public health hospital as defined by |
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Section 13.033, Health and Safety Code; or |
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(B) the South Texas Health Care System; |
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(5) an applicant for employment at, current employee |
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of, or person who contracts or may contract to provide goods or |
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services with the Council on Sex Offender Treatment or other |
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division or component of the Department of State Health Services |
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that monitors sexually violent predators as described by Section |
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841.003(a), Health and Safety Code; or |
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(6) a person authorized to access vital records or the |
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vital records electronic registration system under Chapter 191, |
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Health and Safety Code, including an employee of or contractor for |
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the Department of State Health Services, a local registrar, a |
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medical professional, or a funeral director. |
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(b) Criminal history record information obtained by the |
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Department of State Health Services or the Health and Human |
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Services Commission, as applicable, under Subsection (a) may not be |
|
|
released or disclosed to any person except on court order, with the |
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written consent of the person or entity that is the subject of the |
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criminal history record information, or as provided by Subsection |
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(e). |
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(c) After an entity is licensed or certified, the Department |
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of State Health Services or the Health and Human Services |
|
|
Commission, as applicable, shall destroy the criminal history |
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|
record information that relates to that entity. The Department of |
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|
State Health Services or the Health and Human Services Commission, |
|
|
as applicable, shall destroy the criminal history record |
|
|
information that relates to: |
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(1) an applicant for employment after that applicant |
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is employed or, for an applicant who is not employed, after the |
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check of the criminal history record information on that applicant |
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is completed; or |
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(2) an employee or contractor after the check of the |
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criminal history record information on that employee or contractor |
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is completed. |
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(d) The Department of State Health Services or the Health |
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and Human Services Commission, as applicable, shall destroy |
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criminal history record information that relates to an applicant |
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who is not certified or employed, as applicable. |
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(e) The Department of State Health Services or the Health |
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|
and Human Services Commission, as applicable, is not prohibited |
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|
from disclosing criminal history record information obtained under |
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|
Subsection (a) in a criminal proceeding or in a hearing conducted by |
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|
the Department of State Health Services or the Health and Human |
|
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Services Commission, as applicable. |
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(f) The Department of State Health Services or the Health |
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and Human Services Commission, as applicable, may not consider |
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|
offenses for which points are assessed under Section 708.052, |
|
|
Transportation Code, to determine whether to hire or retain an |
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employee or to contract with a person on whom criminal history |
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record information is obtained under this section. |
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SECTION 2. Section 411.1103, Government Code, is amended to |
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read as follows: |
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Sec. 411.1103. ACCESS TO CRIMINAL HISTORY RECORD |
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INFORMATION: DEPARTMENT OF STATE HEALTH SERVICES AND HEALTH AND |
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|
HUMAN SERVICES COMMISSION. (a) The Department of State Health |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, is entitled to obtain from the department criminal |
|
|
history record information maintained by the department that |
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|
relates to a person: |
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(1) who is: |
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(A) an applicant for employment at a state |
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|
hospital; |
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(B) an employee of a state hospital; |
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|
(C) a person who contracts or may contract to |
|
|
provide goods or services to the Department of State Health |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, at a state hospital or an employee of or applicant for |
|
|
employment with that person; |
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|
(D) a volunteer with a state hospital; or |
|
|
(E) an applicant for a volunteer position with a |
|
|
state hospital; and |
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(2) who would be placed in direct contact with a |
|
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patient at a state hospital. |
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(b) Criminal history record information obtained by the |
|
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Department of State Health Services or the Health and Human |
|
|
Services Commission, as applicable, under this section may not be |
|
|
released or disclosed to any person except: |
|
|
(1) on court order; |
|
|
(2) with the consent of the person who is the subject |
|
|
of the criminal history record information; |
|
|
(3) for purposes of an administrative hearing held by |
|
|
the Department of State Health Services or the Health and Human |
|
|
Services Commission, as applicable, concerning the person who is |
|
|
the subject of the criminal history record information; or |
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|
(4) as provided by Subsection (c). |
|
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(c) The Department of State Health Services or the Health |
|
|
and Human Services Commission, as applicable, is not prohibited |
|
|
from releasing criminal history record information obtained under |
|
|
this section to the person who is the subject of the criminal |
|
|
history record information. |
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(d) Subject to Section 411.087, the Department of State |
|
|
Health Services or the Health and Human Services Commission, as |
|
|
applicable, is entitled to: |
|
|
(1) obtain through the Federal Bureau of Investigation |
|
|
criminal history record information maintained or indexed by that |
|
|
bureau that pertains to a person described by Subsection (a); and |
|
|
(2) obtain from any other criminal justice agency in |
|
|
this state criminal history record information maintained by that |
|
|
criminal justice agency that relates to a person described by |
|
|
Subsection (a). |
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(e) This section does not prohibit the Department of State |
|
|
Health Services or the Health and Human Services Commission, as |
|
|
applicable, from obtaining and using criminal history record |
|
|
information as provided by other law. |
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SECTION 3. Section 411.1105, Government Code, is amended to |
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|
read as follows: |
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|
Sec. 411.1105. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: DEPARTMENT OF STATE HEALTH SERVICES AND HEALTH AND |
|
|
HUMAN SERVICES COMMISSION. (a) The Department of State Health |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, is entitled to obtain from the department criminal |
|
|
history record information maintained by the department that |
|
|
relates to a person who is: |
|
|
(1) an applicant for a chemical dependency counselor's |
|
|
license, a counselor intern's registration, or a clinical |
|
|
supervisor certification under Chapter 504, Occupations Code; or |
|
|
(2) the holder of a license, registration, or |
|
|
certification under that chapter. |
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(b) In addition to information obtained from the Federal |
|
|
Bureau of Investigation under Section 411.087, the Department of |
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|
State Health Services or the Health and Human Services Commission, |
|
|
as applicable, is entitled to obtain information relating to the |
|
|
wanted persons status of an individual listed in Subsection (a). |
|
|
(c) Criminal history record information obtained by the |
|
|
Department of State Health Services or the Health and Human |
|
|
Services Commission, as applicable, under Subsection (a) may not be |
|
|
released or disclosed to any person except on court order, with the |
|
|
consent of the person who is the subject of the criminal history |
|
|
record information, or as provided by Subsection (d). |
|
|
(d) The Department of State Health Services or the Health |
|
|
and Human Services Commission, as applicable, may provide the |
|
|
applicant or licensee with a copy of the person's criminal history |
|
|
record information obtained from the Department of Public Safety, |
|
|
Federal Bureau of Investigation identification division, or |
|
|
another law enforcement agency. |
|
|
SECTION 4. Section 411.1106, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.1106. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: HEALTH AND HUMAN SERVICES COMMISSION. (a) In this |
|
|
section, "commission" means the Health and Human Services |
|
|
Commission. |
|
|
(b) The executive commissioner of the commission, or the |
|
|
executive commissioner's designee, is entitled to obtain from the |
|
|
department criminal history record information maintained by the |
|
|
department that relates to a person who is: |
|
|
(1) an applicant for employment for a position in |
|
|
which the person, as an employee, would have access to sensitive |
|
|
personal or financial information, as determined by the executive |
|
|
commissioner, in: |
|
|
(A) the eligibility services division of the |
|
|
commission; or |
|
|
(B) the commission's office of inspector |
|
|
general; or |
|
|
(2) an employee of the commission who has access to |
|
|
sensitive personal or financial information, as determined by the |
|
|
executive commissioner. |
|
|
(b-1) The executive commissioner of the commission, or the |
|
|
executive commissioner's designee, is entitled to obtain from the |
|
|
department criminal history record information maintained by the |
|
|
department with respect to a function transferred to the commission |
|
|
under Subchapter A-1, Chapter 531. |
|
|
(c) Criminal history record information obtained by the |
|
|
executive commissioner of the commission, or by the executive |
|
|
commissioner's designee, under Subsection (b) may not be released |
|
|
or disclosed, except: |
|
|
(1) if the information is in a public record at the |
|
|
time the information is obtained; |
|
|
(2) on court order; |
|
|
(3) to a criminal justice agency, upon request; |
|
|
(4) with the consent of the person who is the subject |
|
|
of the criminal history record information; or |
|
|
(5) as provided by Subsection (d). |
|
|
(d) The commission is not prohibited from disclosing |
|
|
criminal history record information obtained under Subsection (b) |
|
|
in a criminal proceeding or in a hearing conducted by the |
|
|
commission. |
|
|
(e) The executive commissioner shall destroy all criminal |
|
|
history record information obtained under Subsection (b) as soon as |
|
|
practicable after the information is used for its authorized |
|
|
purpose. |
|
|
SECTION 5. Section 411.1131, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.1131. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES |
|
|
AND HEALTH AND HUMAN SERVICES COMMISSION. (a) The Department of |
|
|
Assistive and Rehabilitative Services or the Health and Human |
|
|
Services Commission, as applicable, is entitled to obtain from the |
|
|
department criminal history record information maintained by the |
|
|
department that relates to a person who is an applicant for a staff |
|
|
position at an outdoor training program for children who are deaf or |
|
|
hard of hearing conducted by a private entity through a contract |
|
|
with the Department of Assistive and Rehabilitative Services or the |
|
|
Health and Human Services Commission, as applicable, in accordance |
|
|
with Section 81.013, Human Resources Code. |
|
|
(b) Criminal history record information obtained by the |
|
|
Department of Assistive and Rehabilitative Services or the Health |
|
|
and Human Services Commission, as applicable, under Subsection (a) |
|
|
may be used only to evaluate an applicant for a staff position at an |
|
|
outdoor training program for children who are deaf or hard of |
|
|
hearing. The Department of Assistive and Rehabilitative Services |
|
|
or the Health and Human Services Commission, as applicable, may |
|
|
release or disclose the information to a private entity described |
|
|
by Subsection (a) for that purpose. |
|
|
(c) The Department of Assistive and Rehabilitative Services |
|
|
or the Health and Human Services Commission, as applicable, may not |
|
|
release or disclose information obtained under Subsection (a), |
|
|
except on court order or with the consent of the person who is the |
|
|
subject of the criminal history record information, and shall |
|
|
destroy all criminal history record information obtained under |
|
|
Subsection (a) after the information is used for its authorized |
|
|
purpose. |
|
|
SECTION 6. Section 411.114, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.114. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES AND |
|
|
HEALTH AND HUMAN SERVICES COMMISSION. (a)(1) In this subsection: |
|
|
(A) "Child," "child-care facility," "child- |
|
|
placing agency," "facility," and "family home" have the meanings |
|
|
assigned by Section 42.002, Human Resources Code. |
|
|
(A-1) "Department of Family and Protective |
|
|
Services" includes: |
|
|
(i) the Department of Family and Protective |
|
|
Services as authorized by Section 40.002, Human Resources Code; |
|
|
(ii) the Health and Human Services |
|
|
Commission with respect to a function transferred to the commission |
|
|
under Subchapter A-1, Chapter 531; and |
|
|
(iii) any person or entity acting as an |
|
|
authorized agent of the Department of Family and Protective |
|
|
Services. |
|
|
(B) "Elderly person" has the meaning assigned by |
|
|
Section 48.002, Human Resources Code. |
|
|
(C) Deleted by Acts 2011, 82nd Leg., R.S., Ch. |
|
|
1082 (S.B. 1178), Sec. 13, eff. September 1, 2012. |
|
|
(D) "Person with a disability" means a disabled |
|
|
person as defined by Section 48.002, Human Resources Code. |
|
|
(E) Repealed by Acts 2017, 85th Leg., R.S., Ch. |
|
|
1108 (H.B. 4094), Sec. 5, eff. September 1, 2017. |
|
|
(2) The Department of Family and Protective Services |
|
|
or the Health and Human Services Commission, as applicable, shall |
|
|
obtain from the department criminal history record information |
|
|
maintained by the department that relates to a person who is: |
|
|
(A) an applicant for a license, registration, |
|
|
certification, or listing under Chapter 42, Human Resources Code; |
|
|
(B) an owner, operator, or employee of or an |
|
|
applicant for employment by a child-care facility, child-placing |
|
|
agency, or family home licensed, registered, certified, or listed |
|
|
under Chapter 42, Human Resources Code; |
|
|
(C) a person 14 years of age or older who will be |
|
|
regularly or frequently working or staying in a facility or family |
|
|
home, other than a child in the care of the home or facility; |
|
|
(D) except as provided by Subsection (d), an |
|
|
applicant selected for a position with the Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, the duties of which include direct delivery of |
|
|
protective services to children, elderly persons, or persons with a |
|
|
disability; |
|
|
(E) an employee of, an applicant for employment |
|
|
with, or a volunteer or an applicant volunteer with a business |
|
|
entity or person that contracts with the Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, to provide direct delivery of protective services to |
|
|
children, elderly persons, or persons with a disability, if the |
|
|
person's duties or responsibilities include direct contact with |
|
|
children, elderly persons, or persons with a disability; |
|
|
(F) a registered volunteer with the Department of |
|
|
Family and Protective Services or the Health and Human Services |
|
|
Commission, as applicable; |
|
|
(G) a person providing or applying to provide |
|
|
in-home, adoptive, or foster care for children in the care of the |
|
|
Department of Family and Protective Services or the Health and |
|
|
Human Services Commission, as applicable, and other persons living |
|
|
in the residence in which the child will reside; |
|
|
(H) a Department of Family and Protective |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, employee who is engaged in the direct delivery of |
|
|
protective services to children, elderly persons, or persons with a |
|
|
disability; |
|
|
(I) an alleged perpetrator in a report the |
|
|
Department of Family and Protective Services or the Health and |
|
|
Human Services Commission, as applicable, receives alleging that |
|
|
the person has abused, neglected, or exploited a child, an elderly |
|
|
person, or a person with a disability, provided that: |
|
|
(i) the report alleges the person has |
|
|
engaged in conduct that meets the applicable definition of abuse, |
|
|
neglect, or exploitation under Chapter 261, Family Code, or Chapter |
|
|
48, Human Resources Code; and |
|
|
(ii) the person is not also the victim of |
|
|
the alleged conduct; |
|
|
(J) a person providing child care for a child who |
|
|
is in the care of the Department of Family and Protective Services |
|
|
or the Health and Human Services Commission, as applicable, and who |
|
|
is or will be receiving adoptive, foster, or in-home care; |
|
|
(K) through a contract with a nonprofit |
|
|
management center, an employee of, an applicant for employment |
|
|
with, or a volunteer or an applicant volunteer with a nonprofit, |
|
|
tax-exempt organization that provides any service that involves the |
|
|
care of or access to a child, an elderly person, or a person with a |
|
|
disability; or |
|
|
(L) an applicant for a child-care administrator |
|
|
or child-placing agency administrator license under Chapter 43, |
|
|
Human Resources Code. |
|
|
(3) In addition to the criminal history record |
|
|
information the Department of Family and Protective Services or the |
|
|
Health and Human Services Commission, as applicable, is required to |
|
|
obtain under Subdivision (2), the Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, is entitled to obtain from the department criminal |
|
|
history record information maintained by the department that |
|
|
relates to a person who is: |
|
|
(A) an applicant for a position with the |
|
|
Department of Family and Protective Services or the Health and |
|
|
Human Services Commission, as applicable, regardless of the duties |
|
|
of the position, including a position described by Subdivision |
|
|
(2)(D); |
|
|
(B) a Department of Family and Protective |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, employee regardless of the duties of the employee's |
|
|
position, including an employee described by Subdivision (2)(H); |
|
|
(C) a volunteer or applicant volunteer with the |
|
|
Department of Family and Protective Services or the Health and |
|
|
Human Services Commission, as applicable, regardless of the duties |
|
|
to be performed, including a registered volunteer; |
|
|
(D) an employee of, an applicant for employment |
|
|
with, or a volunteer or an applicant volunteer with an entity or |
|
|
person that contracts with the Department of Family and Protective |
|
|
Services or the Health and Human Services Commission, as |
|
|
applicable, and has access to confidential information in the |
|
|
department's or the Health and Human Services Commission's records, |
|
|
if the employee, applicant, volunteer, or applicant volunteer has |
|
|
or will have access to that confidential information; |
|
|
(E) a person living in the residence in which the |
|
|
alleged victim of the report resides, including an alleged |
|
|
perpetrator in a report described by Subdivision (2)(I); |
|
|
(F) a person providing, at the request of the |
|
|
child's parent, in-home care for a child who is the subject of a |
|
|
report alleging the child has been abused or neglected; |
|
|
(G) a person providing, at the request of the |
|
|
child's parent, in-home care for a child only if the person gives |
|
|
written consent to the release and disclosure of the information; |
|
|
(H) a child who is related to the caretaker, as |
|
|
determined under Section 42.002, Human Resources Code, or any other |
|
|
person who resides in, is present in, or has unsupervised access to |
|
|
a child in the care of a facility or family home; |
|
|
(I) a relative of a child in the care of the |
|
|
Department of Family and Protective Services or the Health and |
|
|
Human Services Commission, as applicable, to the extent necessary |
|
|
to comply with Section 162.007, Family Code; |
|
|
(J) a person providing or applying to provide |
|
|
in-home, adoptive, or foster care for children to the extent |
|
|
necessary to comply with Subchapter B, Chapter 162, Family Code; |
|
|
(K) a person who volunteers to supervise |
|
|
visitation under Subchapter B, Chapter 263, Family Code; |
|
|
(L) an employee of or volunteer at, or an |
|
|
applicant for employment with or to be a volunteer at, an entity |
|
|
that provides supervised independent living services to a young |
|
|
adult receiving extended foster care services from the Department |
|
|
of Family and Protective Services or the Health and Human Services |
|
|
Commission, as applicable; |
|
|
(M) a person 14 years of age or older who will be |
|
|
regularly or frequently working or staying in a host home that is |
|
|
providing supervised independent living services to a young adult |
|
|
receiving extended foster care services from the Department of |
|
|
Family and Protective Services or the Health and Human Services |
|
|
Commission, as applicable; |
|
|
(N) a volunteer or applicant volunteer with a |
|
|
local affiliate in this state of Big Brothers Big Sisters of |
|
|
America; |
|
|
(O) a volunteer or applicant volunteer with an |
|
|
organization that provides court-appointed volunteer advocates for |
|
|
abused or neglected children; or |
|
|
(P) an employee, volunteer, or applicant |
|
|
volunteer of a children's advocacy center under Subchapter E, |
|
|
Chapter 264, Family Code, including a member of the governing board |
|
|
of a center. |
|
|
(4) Subject to Section 411.087, the Department of |
|
|
Family and Protective Services or the Health and Human Services |
|
|
Commission, as applicable, is entitled to: |
|
|
(A) obtain through the Federal Bureau of |
|
|
Investigation criminal history record information maintained or |
|
|
indexed by that bureau that pertains to a person described by |
|
|
Subdivision (2) or (3); and |
|
|
(B) obtain from any other criminal justice agency |
|
|
in this state criminal history record information maintained by |
|
|
that criminal justice agency that relates to a person described by |
|
|
Subdivision (2) or (3). Law enforcement entities shall expedite |
|
|
the furnishing of such information to Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, workers to ensure prompt criminal background checks for |
|
|
the safety of alleged victims and Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, workers. |
|
|
(5) The Department of Family and Protective Services |
|
|
or the Health and Human Services Commission, as applicable, may not |
|
|
use the authority granted under this section to harass an employee |
|
|
or volunteer. The commissioner of the Department of Family and |
|
|
Protective Services or the executive commissioner of the Health and |
|
|
Human Services Commission, as applicable, shall adopt rules to |
|
|
prevent the harassment of an employee or volunteer through the |
|
|
request and use of criminal records. |
|
|
(6) Criminal history record information obtained by |
|
|
the Department of Family and Protective Services or the Health and |
|
|
Human Services Commission, as applicable, under this subsection may |
|
|
not be released to any person except: |
|
|
(A) on court order; |
|
|
(B) with the consent of the person who is the |
|
|
subject of the criminal history record information; |
|
|
(C) for purposes of an administrative hearing |
|
|
held by the Department of Family and Protective Services or the |
|
|
Health and Human Services Commission, as applicable, concerning the |
|
|
person who is the subject of the criminal history record |
|
|
information; or |
|
|
(D) as provided by Subdivision (7). |
|
|
(7) The Department of Family and Protective Services |
|
|
or the Health and Human Services Commission, as applicable, is not |
|
|
prohibited from releasing criminal history record information |
|
|
obtained under this subsection to: |
|
|
(A) the person who is the subject of the criminal |
|
|
history record information; |
|
|
(B) a child-placing agency listed in Subdivision |
|
|
(2) that is seeking to verify or approve a foster or adoptive home |
|
|
under procedures authorized by Section 471(a)(20)(A), Social |
|
|
Security Act (42 U.S.C. Section 671(a)(20)(A)); |
|
|
(C) an adult who resides with an alleged victim |
|
|
of abuse, neglect, or exploitation of a child, elderly person, or |
|
|
person with a disability and who also resides with the alleged |
|
|
perpetrator of that abuse, neglect, or exploitation if: |
|
|
(i) the alleged perpetrator is the subject |
|
|
of the criminal history record information; and |
|
|
(ii) the Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, determines that the release of information to the adult |
|
|
is necessary to ensure the safety or welfare of the alleged victim |
|
|
or the adult; or |
|
|
(D) an elderly or disabled person who is an |
|
|
alleged victim of abuse, neglect, or exploitation and who resides |
|
|
with the alleged perpetrator of that abuse, neglect, or |
|
|
exploitation if: |
|
|
(i) the alleged perpetrator is the subject |
|
|
of the criminal history record information; and |
|
|
(ii) the Department of Family and |
|
|
Protective Services or the Health and Human Services Commission, as |
|
|
applicable, determines that the release of information to the |
|
|
elderly or disabled person or adult is necessary to ensure the |
|
|
safety or welfare of the elderly or disabled person. |
|
|
(b) The failure or refusal to provide a complete set of |
|
|
fingerprints or a complete name on request constitutes good cause |
|
|
for dismissal or refusal to hire, as applicable, with regard to a |
|
|
volunteer of or an employee or applicant for permanent or temporary |
|
|
employment with the Department of Family and Protective Services or |
|
|
the Health and Human Services Commission, as applicable, or a |
|
|
facility, home, business, or other entity, if the volunteer |
|
|
position, employment, or potential employment involves direct |
|
|
interaction with or the opportunity to interact and associate with |
|
|
children. |
|
|
(c) The Department of Family and Protective Services or the |
|
|
Health and Human Services Commission, as applicable, may charge an |
|
|
organization or person that requests criminal history record |
|
|
information under Subsection (a)(3) a fee in an amount necessary to |
|
|
cover the costs of obtaining the information on the organization's |
|
|
or person's behalf. |
|
|
(d) With respect to an applicant who is selected for |
|
|
employment for a function or in a division of the Department of |
|
|
Family and Protective Services that is transferred to the Health |
|
|
and Human Services Commission under Subchapter A-1, Chapter 531, |
|
|
the commission may obtain from the department criminal history |
|
|
record information maintained by the department that relates to the |
|
|
applicant. |
|
|
SECTION 7. Sec. 411.1142. ACCESS TO CRIMINAL HISTORY |
|
|
RECORD: INTERAGENCY COUNCIL ON EARLY CHILDHOOD INTERVENTION AND |
|
|
HUMAN SERVICES COMMISSION. (a) The Interagency Council on Early |
|
|
Childhood Intervention or the Health and Human Services Commission, |
|
|
as applicable, is entitled to obtain criminal history record |
|
|
information maintained by the Department of Public Safety, the |
|
|
Federal Bureau of Investigation identification division, or |
|
|
another law enforcement agency that relates to an employee or an |
|
|
applicant for permanent, temporary, or consultative employment or |
|
|
for volunteer positions whose employment or potential employment or |
|
|
volunteer position with the council or a local provider involves |
|
|
the delivery of early childhood intervention services or involves |
|
|
direct interactions with or the opportunity to interact and |
|
|
associate with children. |
|
|
(b) Criminal history record information obtained by the |
|
|
council or the Health and Human Services Commission, as applicable, |
|
|
under Subsection (a) may not be released or disclosed to any person |
|
|
except on court order, with the consent of the person who is the |
|
|
subject of the criminal history record information, or as provided |
|
|
by Subsection (d). |
|
|
(c) The council or the Health and Human Services Commission, |
|
|
as applicable, shall destroy criminal history record information |
|
|
that relates to a person after the information is used for its |
|
|
authorized purpose. |
|
|
(d) The council or the Health and Human Services Commission, |
|
|
as applicable, may provide the applicant, employee, professional |
|
|
consultant, or volunteer with a copy of the person's criminal |
|
|
history record information obtained from the Department of Public |
|
|
Safety, Federal Bureau of Investigation identification division, |
|
|
or another law enforcement agency. |
|
|
(e) The failure or refusal to provide a complete set of |
|
|
fingerprints or a complete name on request constitutes good cause |
|
|
for dismissal or refusal to hire, as applicable, with regard to |
|
|
council employees, professional consultants, and applicants for |
|
|
permanent, temporary, or consultative employment or for volunteer |
|
|
positions whose employment or potential employment or volunteer |
|
|
position with the council or a local provider involves the delivery |
|
|
of early childhood intervention services or involves direct |
|
|
interactions with or the opportunity to interact and associate with |
|
|
children. |
|
|
SECTION 8. Section 411.1144, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: AGENCIES WITH EMPLOYEES, CONTRACTORS, OR VOLUNTEERS |
|
|
AT STATE SUPPORTED LIVING CENTERS. (a) The Department of State |
|
|
Health Services[, the Department of Aging and Disability Services,] |
|
|
and the Health and Human Services Commission are entitled to obtain |
|
|
from the department criminal history record information maintained |
|
|
by the department that relates to a person: |
|
|
(1) who is: |
|
|
(A) an applicant for employment with the agency; |
|
|
(B) an employee of the agency; |
|
|
(C) a volunteer with the agency; |
|
|
(D) an applicant for a volunteer position with |
|
|
the agency; |
|
|
(E) an applicant for a contract with the agency; |
|
|
or |
|
|
(F) a contractor of the agency; and |
|
|
(2) who would be placed in direct contact with a |
|
|
resident or client, as defined by Section 555.001, Health and |
|
|
Safety Code. |
|
|
(b) Criminal history record information obtained by an |
|
|
agency under Subsection (a) may not be released or disclosed to any |
|
|
person except: |
|
|
(1) on court order; |
|
|
(2) with the consent of the person who is the subject |
|
|
of the criminal history record information; |
|
|
(3) for purposes of an administrative hearing held by |
|
|
the agency concerning the person who is the subject of the criminal |
|
|
history record information; or |
|
|
(4) as provided by Subsection (c). |
|
|
(c) An agency is not prohibited from releasing criminal |
|
|
history record information obtained under Subsection (a) or (d) to |
|
|
the person who is the subject of the criminal history record |
|
|
information. |
|
|
(d) Subject to Section 411.087, the Department of State |
|
|
Health Services[, the Department of Aging and Disability Services,] |
|
|
and the Health and Human Services Commission are entitled to: |
|
|
(1) obtain through the Federal Bureau of Investigation |
|
|
criminal history record information maintained or indexed by that |
|
|
bureau that pertains to a person described by Subsection (a); and |
|
|
(2) obtain from any other criminal justice agency in |
|
|
this state criminal history record information maintained by that |
|
|
criminal justice agency that relates to a person described by |
|
|
Subsection (a). |
|
|
(e) This section does not prohibit an agency from obtaining |
|
|
and using criminal history record information as provided by other |
|
|
law. |
|
|
SECTION 9. Section 411.115, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.115. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: TEXAS DEPARTMENT OF STATE HEALTH SERVICES AND HEALTH |
|
|
AND HUMAN SERVICES COMMISSION [MENTAL HEALTH AND MENTAL
|
|
|
RETARDATION]; LOCAL AUTHORITIES; COMMUNITY CENTERS. (a) In this |
|
|
section, "local mental health authority," "local mental |
|
|
retardation authority," and "community center" have the meanings |
|
|
assigned by Section 531.002, Health and Safety Code. |
|
|
(b) The Texas Department of State Health Services or the |
|
|
Health and Human Services Commission, as applicable [Mental Health
|
|
|
and Mental Retardation], a local mental health or mental |
|
|
retardation authority, or a community center is entitled to obtain |
|
|
from the department criminal history record information maintained |
|
|
by the department that relates to a person: |
|
|
(1) who is: |
|
|
(A) an applicant for employment with the Texas |
|
|
Department of State Health Services or the Health and Human |
|
|
Services Commission, as applicable [Mental Health and Mental
|
|
|
Retardation], a local mental health or mental retardation |
|
|
authority, or a community center; |
|
|
(B) an employee of the Texas Department of State |
|
|
Health Services or the Health and Human Services Commission, as |
|
|
applicable [Mental Health and Mental Retardation], a local mental |
|
|
health or mental retardation authority, or a community center; |
|
|
(C) an applicant for employment with or an |
|
|
employee of a business or person that contracts with the Texas |
|
|
Department of State Health Services or the Health and Human |
|
|
Services Commission, as applicable [Mental Health and Mental
|
|
|
Retardation], a local mental health or mental retardation |
|
|
authority, or a community center to provide residential services to |
|
|
patients with mental illness or clients with mental retardation who |
|
|
were furloughed or discharged from a Texas Department of State |
|
|
Health Services or the Health and Human Services Commission, as |
|
|
applicable, [Mental Health and Mental Retardation] facility or |
|
|
community center; |
|
|
(D) a volunteer with the Texas Department of |
|
|
State Health Services or the Health and Human Services Commission, |
|
|
as applicable [Mental Health and Mental Retardation], a local |
|
|
mental health or mental retardation authority, or a community |
|
|
center; or |
|
|
(E) a volunteer applicant; and |
|
|
(2) who would be placed in direct contact with |
|
|
patients with mental illness or clients with mental retardation. |
|
|
(c) Repealed by Acts 2003, 78th Leg., ch. 296, Sec. 13(2). |
|
|
(d) Criminal history record information obtained by the |
|
|
Texas Department of State Health Services or the Health and Human |
|
|
Services Commission, as applicable [Mental Health and Mental
|
|
|
Retardation] [mental health department], a local mental health or |
|
|
mental retardation authority, or a community center under |
|
|
Subsection (b) may not be released or disclosed to a person, other |
|
|
than the contractor that employs the person who is the subject of |
|
|
the criminal history record information, except on court order or |
|
|
with the consent of the person who is the subject of the criminal |
|
|
history record information. |
|
|
(e) The Texas Department of State Health Services or the |
|
|
Health and Human Services Commission, as applicable [Mental Health
|
|
|
and Mental Retardation], a local mental health or mental |
|
|
retardation authority, or a community center shall collect and |
|
|
destroy criminal history record information that relates to a |
|
|
person immediately after making an employment decision or taking a |
|
|
personnel action relating to the person who is the subject of the |
|
|
criminal history record information. |
|
|
SECTION 10. Section 411.117, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.117. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: HEALTH AND HUMAN SERVICES COMMISSION AND TEXAS |
|
|
WORKFORCE COMMISSION [DEPARTMENT OF ASSISTIVE AND REHABILITATIVE
|
|
|
SERVICES]. The Health and Human Services Commission or the Texas |
|
|
Workforce Commission, as applicable, [Department of Assistive and
|
|
|
Rehabilitative Services] is entitled to obtain from the department |
|
|
criminal history record information maintained by the department |
|
|
that relates to a person who is: |
|
|
(1) an applicant for services of the Health and Human |
|
|
Services Commission or the Texas Workforce Commission, as |
|
|
applicable, [Department of Assistive and Rehabilitative Services]; |
|
|
(2) a client of the Health and Human Services |
|
|
Commission or the Texas Workforce Commission, as applicable, |
|
|
[Department of Assistive and Rehabilitative Services]; or |
|
|
(3) an applicant for employment whose potential duties |
|
|
include direct contact with clients of the Health and Human |
|
|
Services Commission or the Texas Workforce Commission, as |
|
|
applicable, [Department of Assistive and Rehabilitative Services]. |
|
|
SECTION 11. Section 411.122, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.122. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: LICENSING OR REGULATORY AGENCY. (a) Except as |
|
|
provided by Subsection (c)(2), an agency of this state listed in |
|
|
Subsection (d) or a political subdivision of this state covered by |
|
|
Chapter 53, Occupations Code, that licenses or regulates members of |
|
|
a particular trade, occupation, business, vocation, or profession |
|
|
is entitled to obtain from the department criminal history record |
|
|
information maintained by the department that relates to a person |
|
|
who: |
|
|
(1) is an applicant for a license from the agency; |
|
|
(2) is the holder of a license from the agency; or |
|
|
(3) requests a determination of eligibility for a |
|
|
license from the agency. |
|
|
(b) A municipality or county that requires a sexually |
|
|
oriented business to obtain a license or other permit under Section |
|
|
243.007, Local Government Code, is entitled to obtain from the |
|
|
department criminal history record information maintained by the |
|
|
department that relates to a person who: |
|
|
(1) is an applicant for a license or other permit for a |
|
|
sexually oriented business issued by the municipality or county; |
|
|
(2) is the holder of a license or other permit for a |
|
|
sexually oriented business issued by the municipality or county; or |
|
|
(3) requests a determination of eligibility for a |
|
|
license or other permit for a sexually oriented business issued by |
|
|
the municipality or county. |
|
|
(c) This section does not apply to an agency that is: |
|
|
(1) specifically authorized by this subchapter or |
|
|
Subchapter E-1 to obtain criminal history record information from |
|
|
the department; or |
|
|
(2) covered by Section 53.002, Occupations Code, to |
|
|
the extent provided by that section. |
|
|
(d) The following state agencies are subject to this |
|
|
section: |
|
|
(1) Texas Appraiser Licensing and Certification |
|
|
Board; |
|
|
(2) Texas Board of Architectural Examiners; |
|
|
(3) Texas Board of Chiropractic Examiners; |
|
|
(4) State Board of Dental Examiners; |
|
|
(5) Texas Board of Professional Engineers; |
|
|
(6) Texas Funeral Service Commission; |
|
|
(7) Texas Board of Professional Geoscientists; |
|
|
(8) Department of State Health Services or the Health |
|
|
and Human Services Commission, as applicable, except as provided by |
|
|
Section 411.110, and agencies attached to the department, |
|
|
including: |
|
|
(A) Texas State Board of Examiners of Marriage |
|
|
and Family Therapists; |
|
|
(B) Texas State Board of Examiners of |
|
|
Professional Counselors; and |
|
|
(C) Texas State Board of Social Worker Examiners; |
|
|
(9) Texas Board of Professional Land Surveying; |
|
|
(10) Texas Department of Licensing and Regulation, |
|
|
except as provided by Section 411.093; |
|
|
(11) Texas Commission on Environmental Quality; |
|
|
(12) Texas Board of Occupational Therapy Examiners; |
|
|
(13) Texas Optometry Board; |
|
|
(14) Texas State Board of Pharmacy; |
|
|
(15) Texas Board of Physical Therapy Examiners; |
|
|
(16) Texas State Board of Plumbing Examiners; |
|
|
(17) Texas State Board of Podiatric Medical Examiners; |
|
|
(18) Texas State Board of Examiners of Psychologists; |
|
|
(19) Texas Real Estate Commission; |
|
|
(20) Texas Department of Transportation; |
|
|
(21) State Board of Veterinary Medical Examiners; |
|
|
(22) Texas Department of Housing and Community |
|
|
Affairs; |
|
|
(23) secretary of state; |
|
|
(24) state fire marshal; |
|
|
(25) Texas Education Agency; |
|
|
(26) Department of Agriculture; and |
|
|
(27) Texas Department of Motor Vehicles. |
|
|
SECTION 12. Section 411.1386, Government Code, is amended |
|
|
to read as follows: |
|
|
Sec. 411.1386. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: COURT CLERK; HEALTH AND HUMAN SERVICES COMMISSION |
|
|
[DEPARTMENT OF AGING AND DISABILITY SERVICES]; GUARDIANSHIPS. |
|
|
(a) Except as provided by Subsections (a-1), (a-5), and |
|
|
(a-6), the clerk of the county having venue over a proceeding for |
|
|
the appointment of a guardian under Title 3, Estates Code, shall |
|
|
obtain from the department criminal history record information |
|
|
maintained by the department that relates to: |
|
|
(1) a private professional guardian; |
|
|
(2) each person who represents or plans to represent |
|
|
the interests of a ward as a guardian on behalf of the private |
|
|
professional guardian; |
|
|
(3) each person employed by a private professional |
|
|
guardian who will: |
|
|
(A) have personal contact with a ward or proposed |
|
|
ward; |
|
|
(B) exercise control over and manage a ward's |
|
|
estate; or |
|
|
(C) perform any duties with respect to the |
|
|
management of a ward's estate; |
|
|
(4) each person employed by or volunteering or |
|
|
contracting with a guardianship program to provide guardianship |
|
|
services to a ward of the program on the program's behalf; or |
|
|
(5) any other person proposed to serve as a guardian |
|
|
under Title 3, Estates Code, including a proposed temporary |
|
|
guardian and a proposed successor guardian, other than an attorney. |
|
|
(a-1) The Health and Human Services Commission [Department
|
|
|
of Aging and Disability Services] shall obtain from the Department |
|
|
of Public Safety criminal history record information maintained by |
|
|
the Department of Public Safety that relates to each individual who |
|
|
is or will be providing guardianship services to a ward of or |
|
|
referred by the Health and Human Services Commission [Department of
|
|
|
Aging and Disability Services], including: |
|
|
(1) an employee of or an applicant selected for an |
|
|
employment position with the Health and Human Services Commission |
|
|
[Department of Aging and Disability Services]; |
|
|
(2) a volunteer or an applicant selected to volunteer |
|
|
with the Health and Human Services Commission [Department of Aging
|
|
|
and Disability Services]; |
|
|
(3) an employee of or an applicant selected for an |
|
|
employment position with a business entity or other person that |
|
|
contracts with the Health and Human Services Commission [Department
|
|
|
of Aging and Disability Services] to provide guardianship services |
|
|
to a ward referred by the department; |
|
|
(4) a volunteer or an applicant selected to volunteer |
|
|
with a business entity or person described by Subdivision (3); and |
|
|
(5) a contractor or an employee of a contractor who |
|
|
provides services to a ward of the Health and Human Services |
|
|
Commission [Department of Aging and Disability Services] under a |
|
|
contract with the estate of the ward. |
|
|
(a-2) The information in Subsection (a-1) regarding |
|
|
applicants for employment positions must be obtained before an |
|
|
offer of employment, and the information regarding applicant |
|
|
volunteers must be obtained before the person's contact with a ward |
|
|
of or referred by the Health and Human Services Commission |
|
|
[Department of Aging and Disability Services]. |
|
|
(a-3) The information in Subsection (a-1) regarding |
|
|
employees, contractors, or volunteers providing guardianship |
|
|
services must be obtained annually. |
|
|
(a-4) The Health and Human Services Commission [Department
|
|
|
of Aging and Disability Services] shall provide the information |
|
|
obtained under Subsection (a-1) to: |
|
|
(1) the clerk of the county having venue over the |
|
|
guardianship proceeding at the request of the court; and |
|
|
(2) the guardianship certification program of the |
|
|
Judicial Branch Certification Commission at the request of the |
|
|
commission. |
|
|
(a-5) Not later than the 10th day before the date of the |
|
|
hearing to appoint a guardian, a person may submit to the clerk a |
|
|
copy of the person's criminal history record information required |
|
|
under Subsection (a)(5) that the person obtains from the department |
|
|
not earlier than the 30th day before the date of the hearing. |
|
|
(a-6) The clerk described by Subsection (a) is not required |
|
|
to obtain criminal history record information for a person if the |
|
|
Judicial Branch Certification Commission conducted a criminal |
|
|
history check on the person under Chapter 155. The commission shall |
|
|
provide to the clerk at the court's request the criminal history |
|
|
record information that was obtained from the department or the |
|
|
Federal Bureau of Investigation. |
|
|
(b) Criminal history record information obtained by or |
|
|
provided to a clerk under Subsection (a), (a-5), or (a-6) is for the |
|
|
exclusive use of the court and is privileged and confidential. |
|
|
(c) Criminal history record information obtained by or |
|
|
provided to a clerk under Subsection (a), (a-5), or (a-6) may not be |
|
|
released or disclosed to any person or agency except on court order |
|
|
or with the consent of the person who is the subject of the |
|
|
information. The clerk may destroy the criminal history record |
|
|
information after the information is used for the purposes |
|
|
authorized by this section. |
|
|
(d) The criminal history record information obtained under |
|
|
Subsection (a-4) is for the exclusive use of the court or |
|
|
guardianship certification program of the Judicial Branch |
|
|
Certification Commission, as appropriate, and is privileged and |
|
|
confidential. The information may not be released or otherwise |
|
|
disclosed to any person or agency except on court order, with the |
|
|
consent of the person being investigated, or as authorized by |
|
|
Subsection (a-6) or Section 1104.404, Estates Code. The county |
|
|
clerk or guardianship certification program of the Judicial Branch |
|
|
Certification Commission may destroy the criminal history record |
|
|
information after the information is used for the purposes |
|
|
authorized by this section. |
|
|
(e) The court, as that term is defined by Section 1002.008, |
|
|
Estates Code, shall use the information obtained or provided under |
|
|
Subsection (a), (a-4)(1), (a-5), or (a-6) only in determining |
|
|
whether to: |
|
|
(1) appoint, remove, or continue the appointment of a |
|
|
private professional guardian, a guardianship program, or the |
|
|
Health and Human Services Commission [Department of Aging and
|
|
|
Disability Services]; or |
|
|
(2) appoint any other person proposed to serve as a |
|
|
guardian under Title 3, Estates Code, including a proposed |
|
|
temporary guardian and a proposed successor guardian, other than an |
|
|
attorney. |
|
|
(f) Criminal history record information obtained by the |
|
|
guardianship certification program of the Judicial Branch |
|
|
Certification Commission under Subsection (a-4)(2) may be used for |
|
|
any purpose related to the issuance, denial, renewal, suspension, |
|
|
or revocation of a certificate issued by the commission. |
|
|
(g) A person commits an offense if the person releases or |
|
|
discloses any information received under this section without the |
|
|
authorization prescribed by Subsection (c) or (d). An offense under |
|
|
this subsection is a Class A misdemeanor. |
|
|
(h) The county clerk may charge a $10 fee to recover the |
|
|
costs of obtaining criminal history information records authorized |
|
|
by Subsection (a). |
|
|
(i) This section does not prohibit the Health and Human |
|
|
Services Commission [Department of Aging and Disability Services] |
|
|
from obtaining and using criminal history record information as |
|
|
provided by other law. |
|
|
SECTION 13. Section 411.13861, Government Code, is amended |
|
|
to read as follows: |
|
|
Sec. 411.13861. ACCESS TO CRIMINAL HISTORY RECORD |
|
|
INFORMATION: HEALTH AND HUMAN SERVICES COMMISSION [DEPARTMENT OF
|
|
|
AGING AND DISABILITY SERVICES]. (a) The Health and Human Services |
|
|
Commission [Department of Aging and Disability Services] is |
|
|
entitled to obtain from the Department of Public Safety criminal |
|
|
history record information maintained by the Department of Public |
|
|
Safety that relates to a person: |
|
|
(1) required to undergo a background and criminal |
|
|
history check under Chapter 248A, Health and Safety Code; |
|
|
(2) who seeks unsupervised visits with a ward of the |
|
|
The Health and Human Services Commission [department], including a |
|
|
relative of the ward; |
|
|
(3) who is an applicant for employment with the Health |
|
|
and Human Services Commission [Department of Aging and Disability
|
|
|
Services] for a position in which the person, as an employee, would |
|
|
have direct access to residents or clients of a facility regulated |
|
|
by the Health and Human Services Commission [department], as |
|
|
determined by the executive commissioner of the Health and Human |
|
|
Services Commission [aging and disability services]; or |
|
|
(4) who is an employee of the Health and Human Services |
|
|
Commission [Department of Aging and Disability Services] and who |
|
|
has direct access to residents or clients of a facility regulated by |
|
|
the Health and Human Services Commission [department], as |
|
|
determined by the executive commissioner of the Health and Human |
|
|
Services Commission [aging and disability services]. |
|
|
(b) Criminal history record information obtained under |
|
|
Subsection (a) is for the exclusive use of the Health and Human |
|
|
Services Commission [Department of Aging and Disability Services] |
|
|
and is privileged and confidential. |
|
|
(c) Criminal history record information obtained under |
|
|
Subsection (a) may not be released or disclosed to any person or |
|
|
agency except on court order or with the consent of the person who |
|
|
is the subject of the information. The Health and Human Services |
|
|
Commission [Department of Aging and Disability Services] may |
|
|
destroy the criminal history record information after the |
|
|
information is used for the purposes authorized by this section. |
|
|
(d) This section does not prohibit the Health and Human |
|
|
Services Commission [Department of Aging and Disability Services] |
|
|
from obtaining and using criminal history record information as |
|
|
provided by other law. |
|
|
(e) In this section, "ward" has the meaning assigned by |
|
|
Section 1002.030, Estates Code. |
|
|
(f) Notwithstanding Subsection (c), the Health and Human |
|
|
Services Commission [Department of Aging and Disability Services] |
|
|
shall destroy information obtained under Subsection (a)(3) or (4) |
|
|
after the information is used for the purposes authorized by this |
|
|
section. |
|
|
SECTION 14. This Act takes effect immediately if it |
|
|
receives a vote of two-thirds of all the members elected to each |
|
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
|
If this Act does not receive the vote necessary for immediate |
|
|
effect, this Act takes effect September 1, 2019. |