BILL ANALYSIS

 

 

Senate Research Center

S.B. 1269

88R10942 AMF-D

By: Hughes

 

State Affairs

 

3/14/2023

 

As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

S.B. 1269 amends Chapter 104 of the Family Code to protect certain statements from disclosure and admission into evidence during the trial of a suit involving the Department of Family and Protective Services (DFPS).  This bill also prevents the admission of evidence in a termination trial where the State is the petitioner when the Code of Criminal Procedure would prevent the admission of the evidence in a criminal case. 

 

These protections are necessary to protect the fundamental rights of parents. Termination of parental rights has been deemed "the death penalty of civil cases," and it only makes sense to protect parents in these cases as you would when the State is prosecuting them for a crime.

 

S.B. 1269 adds protections for statements that a parent makes during the course of substance abuse evaluations and treatment, psychological exams or therapy, counseling sessions, etc.  This is necessary because often a parent will refrain from divulging information necessary for treatment, either because a criminal case is pending, or because the parent is otherwise asserting a 5th Amendment right not to incriminate him/herself.  DFPS often requires parents to admit wrongdoing, which causes a severe conflict and interferes with the parent's constitutional rights.

 

The bill also prevents the statement of a confidential reporter from being admitted into evidence unless such statement can be independently corroborated by another source.  This is hearsay and highly prejudicial without any other evidence to back it up.

 

Finally, the bill prevents any evidence from being admitted at a hearing or trial unless it is admitted in compliance with the Code of Criminal Procedure.  For instance, in a criminal case, the results of drug tests are not admissible against the accused unless there is a sponsoring witness or the defense does not object.  The same should apply in termination cases where the State is a party.

 

As proposed, S.B. 1269 amends current law relating to admissibility of certain evidence in a suit affecting the parent-child relationship filed by the Department of Family and Protective Services.

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Chapter 104, Family Code, by designating Sections 104.001 through 104.008 as Subchapter A and adding a subchapter heading, to read as follows:

 

SUBCHAPTER A. GENERAL PROVISIONS

 

SECTION 2. Amends Chapter 104, Family Code, by adding Subchapter B, as follows:

 

SUBCHAPTER B. SUITS FILED BY DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

 

Sec. 104.101. DEFINITION. Defines "department."

 

Sec. 104.102. ADMISSIBILITY OF EVIDENCE GENERALLY. Provides that Chapter 38 (Evidence in Criminal Actions), Code of Criminal Procedure, applies to the admissibility of evidence against the respondent in the same manner as if the respondent were a defendant in a criminal prosecution in a suit affecting the parent-child relationship filed by the Department of Family and Protective Services (DFPS) concerning a child who is alleged in the suit to have been abused or neglected and except as otherwise provided by law.

 

Sec. 104.103. STATEMENT BY INDIVIDUAL UNDERGOING SUBSTANCE USE DISORDER TREATMENT OR EVALUATION. Provides that a statement made by an individual undergoing voluntary or court-ordered treatment for a substance use disorder, or undergoing an evaluation for admission to treatment for a substance use disorder, is not admissible for use against the individual in a suit affecting the parent-child relationship filed by DFPS concerning a child who is alleged in the suit to have been abused or neglected, if the statement was made to any person involved in the individual's treatment or evaluation.

 

Sec. 104.104. STATEMENT BY INDIVIDUAL UNDERGOING MENTAL HEALTH TREATMENT OR EVALUATION. Provides that a statement made by an individual undergoing voluntary or court-ordered therapeutic treatment for a mental illness, or undergoing a psychological or psychiatric evaluation for that treatment, is not admissible for use against the individual in a suit affecting the parent-child relationship filed by DFPS concerning a child who is alleged in the suit to have been abused or neglected, if the statement was made to any person involved in the individual's treatment or evaluation.

 

Sec. 104.105. STATEMENT BY PERSON REQUIRED TO REPORT ABUSE OR NEGLECT OF CHILD. Provides that an out-of-court statement regarding the alleged abuse or neglect made to DFPS under Subchapter B (Report of Abuse or Neglect; Immunities), Chapter 261, is not admissible into evidence at any evidentiary proceeding in a suit affecting the parent-child relationship filed by DFPS concerning a child who is alleged in the suit to have been abused or neglected, unless the statement can be independently corroborated by other evidence.

 

SECTION 3. Makes application of this Act prospective.

 

SECTION 4. Effective date: September 1, 2023.