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S.B. No. 6
AN ACT
relating to protective services and certain family law matters;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHILD PROTECTIVE SERVICES
SECTION 1.01. Section 54.211, Education Code, is amended to
read as follows:
Sec. 54.211. EXEMPTIONS FOR STUDENTS IN FOSTER OR OTHER
RESIDENTIAL CARE. (a) A student is exempt from the payment of
tuition and fees authorized in this chapter if the student:
(1) was in foster care or other residential care under
the conservatorship of the Department of Family and Protective [and
Regulatory] Services on or after:
(A) the day preceding the student's 18th
birthday;
(B) the day of the student's 14th birthday, if
the student was also eligible for adoption on or after that day; or
(C) the day the student graduated from high
school or received the equivalent of a high school diploma; and
(2) enrolls in an institution of higher education as
an undergraduate student not later than:
(A) the third anniversary of the date the student
was discharged from the foster or other residential care, the date
the student graduated from high school, or the date the student
received the equivalent of a high school diploma, whichever date is
earliest; or
(B) the student's 21st birthday.
(b) The Texas Education Agency and the Texas Higher
Education Coordinating Board shall develop outreach programs to
ensure that students in foster or other residential care in grades
9-12 are aware of the availability of the exemption from the payment
of tuition and fees provided by this section.
SECTION 1.02. Section 54.2111, Education Code, is amended
to read as follows:
Sec. 54.2111. EXEMPTIONS FOR ADOPTED STUDENTS FORMERLY IN
FOSTER OR OTHER RESIDENTIAL CARE. (a) A student is exempt from the
payment of tuition and fees authorized by this chapter if the
student:
(1) was adopted; and
(2) was the subject of an adoption assistance
agreement under Subchapter D, Chapter 162, Family Code.
(b) The Texas Education Agency and the Texas Higher
Education Coordinating Board shall develop outreach programs to
ensure that adopted students in grades 9-12 formerly in foster or
other residential care are aware of the availability of the
exemption from the payment of tuition and fees provided by this
section.
SECTION 1.03. Section 101.024, Family Code, is amended to
read as follows:
Sec. 101.024. PARENT. (a) "Parent" means the mother, a
man presumed to be the father, a man legally determined to be the
father, a man who has been adjudicated to be the father by a court of
competent jurisdiction, a man who has acknowledged his paternity
under applicable law, or an adoptive mother or father. Except as
provided by Subsection (b), the [The] term does not include a parent
as to whom the parent-child relationship has been terminated.
(b) For purposes of establishing, determining the terms of,
modifying, or enforcing an order, a reference in this title to a
parent includes a person ordered to pay child support under Section
154.001(a-1) or to provide medical support for a child.
SECTION 1.04. (a) Section 107.004, Family Code, is amended
to read as follows:
Sec. 107.004. ADDITIONAL DUTIES OF ATTORNEY AD LITEM FOR
CHILD. (a) Except as otherwise provided by this chapter, the
attorney ad litem appointed for a child shall:
(1) seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
(2) advise the child;
(3) provide guidance to the child;
(4) represent the child's expressed objectives of
representation and follow the child's expressed objectives of
representation during the course of litigation if the attorney ad
litem determines that the child is competent to understand the
nature of an attorney-client relationship and has formed that
relationship with the attorney ad litem;
(5) consider the impact on the child in formulating
the attorney ad litem's presentation of the child's expressed
objectives of representation to the court; and
(6) become familiar with:
(A) the American Bar Association's standards of
practice for attorneys who represent children in abuse and neglect
cases; and
(B) the suggested amendments to those standards
adopted by the National Association of Counsel for Children.
(b) An attorney ad litem appointed for a child in a
proceeding under Chapter 262 or 263 shall complete at least three
hours of continuing legal education relating to child advocacy as
described by Subsection (c) as soon as practicable after the
attorney ad litem's appointment. An attorney ad litem is not
required to comply with this subsection if the court finds that the
attorney ad litem has experience equivalent to the required
education.
(c) The continuing legal education required by Subsection
(b) must:
(1) be low-cost and available to persons throughout
this state, including on the Internet provided through the State
Bar of Texas; and
(2) focus on the duties of an attorney ad litem in, and
the procedures of and best practices for, a proceeding under
Chapter 262 or 263.
(d) Except as provided by Subsection (e), an attorney ad
litem appointed for a child in a proceeding under Chapter 262 or 263
shall meet before each court hearing with:
(1) the child, if the child is at least four years of
age; or
(2) the individual with whom the child ordinarily
resides, including the child's parent, conservator, guardian,
caretaker, or custodian, if the child is younger than four years of
age.
(e) An attorney ad litem appointed for a child in a
proceeding under Chapter 262 or 263 is not required to comply with
Subsection (d) before a hearing if the court finds at that hearing
that the attorney ad litem has shown good cause why the attorney ad
litem's compliance with that subsection is not feasible or in the
best interest of the child.
(b) The changes in law made by this section apply only to an
attorney ad litem for a child appointed in a proceeding under
Chapter 262 or 263, Family Code, on or after the effective date of
this section. An attorney ad litem for a child appointed in a
proceeding under Chapter 262 or 263, Family Code, before the
effective date of this section is governed by the law in effect on
the date the attorney ad litem was appointed, and the former law is
continued in effect for that purpose.
(c) The State Bar of Texas shall adopt rules governing the
reporting of an attorney ad litem's timely completion of the
continuing legal education required by Subsection (b), Section
107.004, Family Code, as added by this section.
SECTION 1.05. Subchapter A, Chapter 107, Family Code, is
amended by adding Section 107.0045 to read as follows:
Sec. 107.0045. DISCIPLINE OF ATTORNEY AD LITEM. An
attorney ad litem who fails to perform the duties required by
Sections 107.003 and 107.004 is subject to disciplinary action
under Subchapter E, Chapter 81, Government Code.
SECTION 1.06. Section 107.013, Family Code, is amended by
adding Subsection (c) to read as follows:
(c) In a suit filed by a governmental entity requesting
temporary managing conservatorship of a child, the court shall
appoint an attorney ad litem to represent the interests of an
indigent parent of the child who responds in opposition to the suit.
SECTION 1.07. Subsection (c), Section 107.015, Family Code,
is amended to read as follows:
(c) If indigency of the parents is shown, an attorney ad
litem appointed to represent a child or parent in a suit filed by a
governmental entity [in which termination of the parent-child
relationship is requested] shall be paid from the general funds of
the county according to the fee schedule that applies to an attorney
appointed to represent a child in a suit under Title 3 as provided
by Chapter 51. The court may not award attorney ad litem fees under
this chapter against the state, a state agency, or a political
subdivision of the state except as provided by this subsection.
SECTION 1.08. (a) Section 154.001, Family Code, is amended
by adding Subsection (a-1) to read as follows:
(a-1) The court may order each person who is financially
able and whose parental rights have been terminated with respect to
a child in substitute care for whom the department has been
appointed managing conservator to support the child in the manner
specified by the order:
(1) until the earliest of:
(A) the child's adoption;
(B) the child's 18th birthday or graduation from
high school, whichever occurs later;
(C) removal of the child's disabilities of
minority by court order, marriage, or other operation of law; or
(D) the child's death; or
(2) if the child is disabled as defined in this
chapter, for an indefinite period.
(b) Section 154.001, Family Code, as amended by this
section, applies only to a person whose parent-child relationship
with respect to a child is terminated on or after the effective
date of this section. A person whose parent-child relationship is
terminated before the effective date of this section is governed by
the law in effect on the date the parent-child relationship was
terminated, and the former law is continued in effect for that
purpose.
SECTION 1.09. Section 162.304, Family Code, is amended by
adding Subsection (f) to read as follows:
(f) Subject to the availability of funds, the department
shall work with the Health and Human Services Commission and the
federal government to develop a program to provide medical
assistance under Chapter 32, Human Resources Code, to children who
were in the conservatorship of the department at the time of
adoptive placement and need medical or rehabilitative care but do
not qualify for adoption assistance.
SECTION 1.10. Subchapter B, Chapter 231, Family Code, is
amended by adding Section 231.122 to read as follows:
Sec. 231.122. MONITORING CHILD SUPPORT CASES; ENFORCEMENT.
The Title IV-D agency shall monitor each Title IV-D case from the
date the agency begins providing services on the case. If a child
support obligor in a Title IV-D case becomes more than 60 days
delinquent in paying child support, the Title IV-D agency shall
expedite the commencement of an action to enforce the child support
order.
SECTION 1.11. Subdivisions (2) and (4), Section 261.001,
Family Code, are amended to read as follows:
(2) "Department" means the Department of Family and
Protective [and Regulatory] Services.
(4) "Neglect" includes:
(A) the leaving of a child in a situation where
the child would be exposed to a substantial risk of physical or
mental harm, without arranging for necessary care for the child,
and the demonstration of an intent not to return by a parent,
guardian, or managing or possessory conservator of the child;
(B) the following acts or omissions by a person:
(i) placing a child in or failing to remove
a child from a situation that a reasonable person would realize
requires judgment or actions beyond the child's level of maturity,
physical condition, or mental abilities and that results in bodily
injury or a substantial risk of immediate harm to the child;
(ii) failing to seek, obtain, or follow
through with medical care for a child, with the failure resulting in
or presenting a substantial risk of death, disfigurement, or bodily
injury or with the failure resulting in an observable and material
impairment to the growth, development, or functioning of the child;
(iii) the failure to provide a child with
food, clothing, or shelter necessary to sustain the life or health
of the child, excluding failure caused primarily by financial
inability unless relief services had been offered and refused; [or]
(iv) placing a child in or failing to remove
the child from a situation in which the child would be exposed to a
substantial risk of sexual conduct harmful to the child; or
(v) placing a child in or failing to remove
the child from a situation in which the child would be exposed to
acts or omissions that constitute abuse under Subdivision (1)(E),
(F), (G), (H), or (K) committed against another child; or
(C) the failure by the person responsible for a
child's care, custody, or welfare to permit the child to return to
the child's home without arranging for the necessary care for the
child after the child has been absent from the home for any reason,
including having been in residential placement or having run away.
SECTION 1.12. Section 261.002, Family Code, is amended by
adding Subsection (c) to read as follows:
(c) The department may enter into agreements with other
states to allow for the exchange of reports of child abuse and
neglect in other states' central registry systems. The department
shall use information obtained under this subsection in performing
the background checks required under Section 42.056, Human
Resources Code. The department shall cooperate with federal
agencies and shall provide information and reports of child abuse
and neglect to the appropriate federal agency that maintains the
national registry for child abuse and neglect, if a national
registry exists.
SECTION 1.13. The heading to Section 261.107, Family Code,
is amended to read as follows:
Sec. 261.107. FALSE REPORT; CRIMINAL PENALTY; CIVIL
PENALTY.
SECTION 1.14. (a) Section 261.107, Family Code, is amended
by amending Subsection (a) and adding Subsections (d) and (e) to
read as follows:
(a) A person commits an offense if, with the intent to
deceive, the person knowingly [or intentionally] makes a report as
provided in this chapter that [the person knows] is false [or lacks
factual foundation]. An offense under this subsection [section] is
a state jail felony [Class A misdemeanor] unless it is shown on the
trial of the offense that the person has previously been convicted
under this section, in which case the offense is a [state jail]
felony of the third degree.
(d) The court shall order a person who is convicted of an
offense under Subsection (a) to pay any reasonable attorney's fees
incurred by the person who was falsely accused of abuse or neglect
in any proceeding relating to the false report.
(e) A person who engages in conduct described by Subsection
(a) is liable to the state for a civil penalty of $1,000. The
attorney general shall bring an action to recover a civil penalty
authorized by this subsection.
(b) The changes in law made by Subsection (a), Section
261.107, Family Code, as amended by this section, and Subsection
(d), Section 261.107, Family Code, as added by this section, apply
only to an offense committed on or after the effective date of this
section. An offense committed before the effective date of this
section is covered by Section 261.107, Family Code, as it existed on
the date the offense was committed, and the former law is continued
in effect for that purpose. For purposes of this subsection, an
offense is committed before the effective date of this section if
any element of the offense occurs before that date.
(c) Subsection (e), Section 261.107, Family Code, as added
by this section, applies only to conduct that occurs on or after the
effective date of this section. Conduct that occurs before the
effective date of this section is governed by the law in effect on
the date the conduct occurred, and the former law is continued in
effect for that purpose.
SECTION 1.15. Section 261.201, Family Code, is amended by
adding Subsection (f-1) to read as follows:
(f-1) The department shall provide to a relative or other
individual with whom a child is placed any information the
department considers necessary to ensure that the relative or other
individual is prepared to meet the needs of the child. The
information required by this subsection may include information
related to any abuse or neglect suffered by the child.
SECTION 1.16. (a) Subsections (a), (d), (f), (g), and (h),
Section 261.301, Family Code, are amended to read as follows:
(a) With assistance from the appropriate state or local law
enforcement agency as provided by this section, the department or
designated agency shall make a prompt and thorough investigation of
a report of child abuse or neglect allegedly committed by a person
responsible for a child's care, custody, or welfare. The
investigation shall be conducted without regard to any pending suit
affecting the parent-child relationship.
(d) The department shall [may] by rule assign priorities and
prescribe investigative procedures for investigations based on the
severity and immediacy of the alleged harm to the child. The
primary purpose of the investigation shall be the protection of the
child. The rules must require the department, subject to the
availability of funds, to:
(1) immediately respond to a report of abuse and
neglect that involves circumstances in which the death of the child
or substantial bodily harm to the child would result unless the
department immediately intervenes;
(2) respond within 24 hours to a report of abuse and
neglect that is assigned the highest priority, other than a report
described by Subdivision (1); and
(3) respond within 72 hours to a report of abuse and
neglect that is assigned the second highest priority.
(f) An investigation of a report to the department [that is
assigned the highest priority in accordance with department rules
adopted under Subsection (d) and] that alleges that a child has been
or may be the victim of conduct that constitutes a criminal offense
that poses an immediate risk of physical or sexual abuse of a child
that could result in the death of or serious harm to the child shall
be conducted jointly by a peace officer, as defined by Article 2.12,
Code of Criminal Procedure, from the appropriate local law
enforcement agency and the department or the agency responsible for
conducting an investigation under Subchapter E.
(g) The inability or unwillingness of a local law
enforcement agency to conduct a joint investigation under this
section [Subsection (f)] does not constitute grounds to prevent or
prohibit the department from performing its duties under this
subtitle. The department shall document any instance in which a law
enforcement agency is unable or unwilling to conduct a joint
investigation under this section [Subsection (f)].
(h) The department and the appropriate local law
enforcement agency shall conduct an investigation, other than an
investigation under Subchapter E, as provided by this section and
Article 2.27, Code of Criminal Procedure, if the investigation is
of a report [of child abuse or neglect that is assigned the highest
priority in accordance with department rules adopted under
Subsection (d) and] that alleges that a child has been or may be the
victim of conduct that constitutes a criminal offense that poses an
immediate risk of physical or sexual abuse of a child that could
result in the death of or serious harm to the child. Immediately on
receipt of a report described by this subsection, the department
shall notify the appropriate local law enforcement agency of the
report.
(b) The change in law made by this section to Section
261.301, Family Code, applies to the investigation of a report of
child abuse or neglect made on or after the effective date of this
section. The investigation of a report of child abuse or neglect
made before the effective date of this section is governed by the
law in effect on the date the report was made, and the former law is
continued in effect for that purpose.
(c) The Department of Family and Protective Services shall
develop and implement an automated tracking and reporting system
that enables the department to track information on initial
contacts to monitor compliance with the requirements of Subsection
(d), Section 261.301, Family Code, as amended by this section,
relating to the timely response to reports of abuse and neglect.
(d) The executive commissioner of the Health and Human
Services Commission shall adopt the rules as required by Subsection
(d), Section 261.301, Family Code, as amended by this section, not
later than September 1, 2007.
SECTION 1.17. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3011 to read as follows:
Sec. 261.3011. JOINT INVESTIGATION GUIDELINES AND
TRAINING. (a) The department shall, in consultation with the
appropriate law enforcement agencies, develop guidelines and
protocols for joint investigations by the department and the law
enforcement agency under Section 261.301. The guidelines and
protocols must:
(1) clarify the respective roles of the department and
law enforcement agency in conducting the investigation;
(2) require that mutual child protective services and
law enforcement training and agreements be implemented by both
entities to ensure the integrity and best outcomes of joint
investigations; and
(3) incorporate the use of forensic methods in
determining the occurrence of child abuse and neglect.
(b) The department shall collaborate with law enforcement
agencies to provide to department investigators and law enforcement
officers responsible for investigating reports of abuse and neglect
joint training relating to methods to effectively conduct joint
investigations under Section 261.301. The training must include
information on interviewing techniques, evidence gathering, and
testifying in court for criminal investigations, as well as
instruction on rights provided by the Fourth Amendment to the
United States Constitution.
SECTION 1.18. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3012 to read as follows:
Sec. 261.3012. COMPLETION OF PAPERWORK. An employee of the
department who responds to a report that is assigned the highest
priority in accordance with department rules adopted under Section
261.301(d) shall identify, to the extent reasonable under the
circumstances, forms and other paperwork that can be completed by
members of the family of the child who is the subject of the report.
The department employee shall request the assistance of the child's
family members in completing that documentation but remains
responsible for ensuring that the documentation is completed in an
appropriate manner.
SECTION 1.19. (a) Section 261.3015, Family Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) In assigning priorities and prescribing investigative
procedures based on the severity and immediacy of the alleged harm
to a child under Section 261.301(d), the department [board by rule]
shall establish a flexible response system to allow the department
to make the most effective use of [allocate] resources by
investigating serious cases of abuse and neglect and by screening
out less serious cases of abuse and neglect if the department
determines, after contacting a professional or other credible
source, that the child's safety can be assured without further
investigation. The department may administratively close the less
serious cases without providing services or making a referral to
another entity for assistance [providing assessment and family
preservation services in less serious cases].
(a-1) For purposes of Subsection (a), a case is considered
to be a less serious case of abuse or neglect if the circumstances
of the case do not indicate an immediate risk of abuse or neglect
that could result in the death of or serious harm to the child who is
the subject of the case.
(b) To ensure the safety of children, the Department of
Family and Protective Services shall use highly skilled caseworkers
to perform the screening functions described by Subsection (a),
Section 261.3015, Family Code, as amended by this section, and
develop standardized policy guidelines, including accountability
measures to monitor closed cases, to ensure that screening
guidelines do not result in the closing of cases that should not be
closed.
SECTION 1.20. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3016 to read as follows:
Sec. 261.3016. TRAINING OF PERSONNEL RECEIVING REPORTS OF
ABUSE AND NEGLECT. The department shall develop, in cooperation
with local law enforcement officials and the Commission on State
Emergency Communications, a training program for department
personnel who receive reports of abuse and neglect. The training
program must include information on:
(1) the proper methods of screening reports of abuse
and neglect; and
(2) ways to determine the seriousness of a report,
including determining whether a report alleges circumstances that
could result in the death of or serious harm to a child or whether
the report is less serious in nature.
SECTION 1.21. Section 261.302, Family Code, is amended by
adding Subsections (b-1) and (f) and amending Subsection (e) to
read as follows:
(b-1) Before the department may transport a child as
provided by Subsection (b)(3), the department shall attempt to
notify the parent or other person having custody of the child of the
transport.
(e) An interview with a child conducted by the department
during the investigation stage shall be audiotaped or videotaped.
An interview with a child alleged to be a victim of physical abuse
or sexual abuse conducted by an investigating agency other than the
department shall be audiotaped or videotaped unless the
investigating agency determines that good cause exists for not
audiotaping or videotaping the interview in accordance with rules
of the agency. Good cause may include, but is not limited to, such
considerations as the age of the child and the nature and
seriousness of the allegations under investigation. Nothing in
this subsection shall be construed as prohibiting the investigating
agency from audiotaping or videotaping an interview of a child on
any case for which such audiotaping or videotaping is not required
under this subsection. The fact that the investigating agency
failed to audiotape or videotape an interview is admissible at the
trial of the offense that is the subject of the interview.
(f) A person commits an offense if the person is notified of
the time of the transport of a child by the department and the
location from which the transport is initiated and the person is
present at the location when the transport is initiated and
attempts to interfere with the department's investigation. An
offense under this subsection is a Class B misdemeanor. It is an
exception to the application of this subsection that the department
requested the person to be present at the site of the transport.
SECTION 1.22. Subchapter D, Chapter 261, Family Code, is
amended by adding Sections 261.3021, 261.3022, 261.3023, and
261.3024 to read as follows:
Sec. 261.3021. CASEWORK DOCUMENTATION AND MANAGEMENT.
Subject to the appropriation of money for these purposes, the
department shall:
(1) identify critical investigation actions that
impact child safety and require department caseworkers to document
those actions in a child's case file not later than the day after
the action occurs;
(2) identify and develop a comprehensive set of
casework quality indicators that must be reported in real time to
support timely management oversight;
(3) provide department supervisors with access to
casework quality indicators and train department supervisors on the
use of that information in the daily supervision of caseworkers;
(4) develop a case tracking system that notifies
department supervisors and management when a case is not
progressing in a timely manner;
(5) use current data reporting systems to provide
department supervisors and management with easier access to
information; and
(6) train department supervisors and management on the
use of data to monitor cases and make decisions.
Sec. 261.3022. CHILD SAFETY CHECK ALERT LIST. (a) Subject
to the availability of funds, the Department of Public Safety of the
State of Texas shall create a child safety check alert list as part
of the Texas Crime Information Center to help locate a family for
purposes of investigating a report of child abuse or neglect.
(b) If the child safety check alert list is established and
the department is unable to locate a family for purposes of
investigating a report of child abuse or neglect, after the
department has exhausted all means available to the department for
locating the family, the department may seek assistance under this
section from the appropriate county attorney, district attorney, or
criminal district attorney with responsibility for representing
the department as provided by Section 264.009.
(c) If the department requests assistance, the county
attorney, district attorney, or criminal district attorney, as
applicable, may file an application with the court requesting the
issuance of an ex parte order requiring the Texas Crime Information
Center to place the members of the family the department is
attempting to locate on a child safety check alert list. The
application must include a summary of:
(1) the report of child abuse or neglect the
department is attempting to investigate; and
(2) the department's efforts to locate the family.
(d) If the court determines after a hearing that the
department has exhausted all means available to the department for
locating the family, the court shall approve the application and
order the appropriate law enforcement agency to notify the Texas
Crime Information Center to place the family on a child safety check
alert list. The alert list must include:
(1) the name of the family member alleged to have
abused or neglected a child according to the report the department
is attempting to investigate;
(2) the name of the child who is the subject of the
report;
(3) a code identifying the type of child abuse or
neglect alleged to have been committed against the child;
(4) the family's last known address; and
(5) the minimum criteria for an entry as established
by the center.
Sec. 261.3023. LAW ENFORCEMENT RESPONSE TO CHILD SAFETY
CHECK ALERT. (a) If a law enforcement officer encounters a person
listed on the Texas Crime Information Center's child safety check
alert list who is alleged to have abused or neglected a child, or
encounters a child listed on the alert list who is the subject of a
report of child abuse or neglect the department is attempting to
investigate, the officer shall request information from the person
or the child regarding the child's well-being and current
residence.
(b) If the law enforcement officer determines that the
circumstances described by Section 262.104 exist, the officer may
take possession of the child without a court order as authorized by
that section if the officer is able to locate the child. If the
circumstances described by Section 262.104 do not exist, the
officer shall obtain the child's current address and any other
relevant information and report that information to the department.
Sec. 261.3024. REMOVAL FROM CHILD SAFETY CHECK ALERT LIST.
(a) A law enforcement officer who locates a child listed on the
Texas Crime Information Center's child safety check alert list who
is the subject of a report of child abuse or neglect the department
is attempting to investigate and who reports the child's current
address and other relevant information to the department under
Section 261.3023 shall report to the Texas Crime Information Center
that the child has been located.
(b) If the department locates a child described by
Subsection (a) through a means other than information reported by a
law enforcement officer under Subsection (a), the department shall
report to the Texas Crime Information Center that the child has been
located.
(c) On receipt of notice under this section that a child has
been located, the Texas Crime Information Center shall remove the
child and the child's family from the child safety check alert list.
SECTION 1.23. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3031 to read as follows:
Sec. 261.3031. FAILURE TO COOPERATE WITH INVESTIGATION;
DEPARTMENT RESPONSE. If a parent or other person refuses to
cooperate with the department's investigation of the alleged abuse
or neglect of a child and the refusal poses a risk to the child's
safety, the department shall seek assistance from the appropriate
county attorney or district attorney or criminal district attorney
with responsibility for representing the department as provided by
Section 264.009 to obtain a court order as described by Section
261.303.
SECTION 1.24. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3032 to read as follows:
Sec. 261.3032. INTERFERENCE WITH INVESTIGATION; CRIMINAL
PENALTY. (a) A person commits an offense if, with the intent to
interfere with the department's investigation of a report of abuse
or neglect of a child, the person relocates the person's residence,
either temporarily or permanently, without notifying the
department of the address of the person's new residence or conceals
the child and the person's relocation or concealment interferes
with the department's investigation.
(b) An offense under this section is a Class B misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section or the other law.
SECTION 1.25. (a) Section 261.307, Family Code, is amended
to read as follows:
Sec. 261.307. INFORMATION RELATING TO INVESTIGATION
PROCEDURE. (a) As soon as possible after initiating an
investigation of a parent or other person having legal custody of a
child, the department shall provide to the person:
(1) a [brief and easily understood] summary that [of]:
(A) is brief and easily understood;
(B) is written in a language that the person
understands, or if the person is illiterate, is read to the person
in a language that the person understands; and
(C) contains the following information:
(i) [(1)] the department's procedures for
conducting an investigation of alleged child abuse or neglect,
including:
(a) [(A)] a description of the
circumstances under which the department would request to remove
the child from the home through the judicial system; and
(b) [(B)] an explanation that the law
requires the department to refer all reports of alleged child abuse
or neglect to a law enforcement agency for a separate determination
of whether a criminal violation occurred;
(ii) [(2)] the person's right to file a
complaint with the department or to request a review of the findings
made by the department in the investigation;
(iii) [(3)] the person's right to review
all records of the investigation unless the review would jeopardize
an ongoing criminal investigation or the child's safety;
(iv) [(4)] the person's right to seek legal
counsel;
(v) [(5)] references to the statutory and
regulatory provisions governing child abuse and neglect and how the
person may obtain copies of those provisions; and
(vi) [(6)] the process the person may use
to acquire access to the child if the child is removed from the
home;
(2) if the department determines that removal of the
child may be warranted, a proposed child placement resources form
that:
(A) instructs the parent or other person having
legal custody of the child to:
(i) complete and return the form to the
department or agency; and
(ii) identify in the form three individuals
who could be relative caregivers or designated caregivers, as those
terms are defined by Section 264.751; and
(B) informs the parent or other person of a
location that is available to the parent or other person to submit
the information in the form 24 hours a day either in person or by
facsimile machine or e-mail; and
(3) an informational manual required by Section
261.3071.
(b) The child placement resources form described by
Subsection (a)(2) must include information on the periods of time
by which the department must complete a background check.
(b) The Department of Family and Protective Services shall
develop the proposed child placement resources form required to be
provided under Section 261.307, Family Code, as amended by this
section, not later than November 1, 2005.
(c) The Department of Family and Protective Services shall
provide the proposed child placement resources form required under
Section 261.307, Family Code, as amended by this section, to the
parent or other person having legal custody of a child who is the
subject of an investigation of abuse or neglect that is commenced on
or after November 1, 2005.
SECTION 1.26. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3071 to read as follows:
Sec. 261.3071. INFORMATIONAL MANUALS. (a) In this
section, "relative caregiver" and "designated caregiver" have the
meanings assigned those terms by Section 264.751.
(b) The department shall develop and publish informational
manuals that provide information for:
(1) a parent or other person having custody of a child
who is the subject of an investigation under this chapter; and
(2) a person who is selected by the department to be
the child's relative or designated caregiver.
(c) Information provided in the manuals must be in both
English and Spanish and must include, as appropriate:
(1) useful indexes of information such as telephone
numbers;
(2) the information required to be provided under
Section 261.307(a)(1);
(3) information describing the rights and duties of a
relative or designated caregiver; and
(4) information regarding the relative and other
designated caregiver program under Subchapter I, Chapter 264.
SECTION 1.27. Section 261.310, Family Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsection (e) to
read as follows:
(a) The department shall by rule develop and adopt
[voluntary] standards for persons who investigate suspected child
abuse or neglect at the state or local level. The standards shall
encourage professionalism and consistency in the investigation of
suspected child abuse or neglect.
(c) The professional training curriculum developed under
this section shall include:
(1) information concerning:
(A) [(1)] physical abuse and neglect, including
distinguishing physical abuse from ordinary childhood injuries;
(B) [(2)] psychological abuse and neglect;
(C) [(3)] available treatment resources; and
(D) [(4)] the incidence and types of reports of
child abuse and neglect that are received by the investigating
agencies, including information concerning false reports;
(2) law-enforcement-style training, including
training relating to forensic interviewing and investigatory
techniques and the collection of physical evidence; and
(3) training regarding applicable federal law,
including the Adoption and Safe Families Act of 1997 (Pub. L. No.
105-89) and the Child Abuse Prevention and Treatment Act (Pub. L.
No. 93-247) and its subsequent amendments by the Keeping Children
and Families Safe Act of 2003 (Pub. L. No. 108-36).
(d) The standards shall [recommend]:
(1) recommend that videotaped and audiotaped
interviews [with a suspected victim] be uninterrupted;
(2) recommend a maximum number of interviews with and
examinations of a suspected victim;
(3) provide procedures to preserve evidence,
including the original recordings of the intake telephone calls,
original notes, videotapes, and audiotapes, for one year; and
(4) provide that an investigator of suspected child
abuse or neglect make a reasonable effort to locate and inform each
parent of a child of any report of abuse or neglect relating to the
child.
(e) The department, in conjunction with the Department of
Public Safety, shall provide to the department's residential
child-care facility licensing investigators advanced training in
investigative protocols and techniques.
SECTION 1.28. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3101 to read as follows:
Sec. 261.3101. FORENSIC INVESTIGATION SUPPORT. The
department shall, subject to the availability of money:
(1) employ or contract with medical and law
enforcement professionals who shall be strategically placed
throughout the state to provide forensic investigation support and
to assist caseworkers with assessment decisions and intervention
activities;
(2) employ or contract with subject matter experts to
serve as consultants to department caseworkers in all aspects of
their duties; and
(3) designate persons who shall act as liaisons within
the department whose primary functions are to develop relationships
with local law enforcement agencies and courts.
SECTION 1.29. Section 261.3125, Family Code, is amended to
read as follows:
Sec. 261.3125. CHILD SAFETY SPECIALISTS [INVESTIGATIONS
COORDINATOR]. (a) The department shall employ in each of the
department's administrative regions [region of the department for
child protective services] at least one child safety specialist
[protective services investigations coordinator]. The job
responsibilities of the child safety specialist [investigations
coordinator] must focus [only] on child abuse and neglect
investigation issues, including reports of child abuse required by
Section 261.101, to achieve a greater compliance with that section,
and on assessing and improving the effectiveness of the department
in providing for the protection of children in the region.
(b) The duties of a child safety specialist [protective
services investigations coordinator] must include the duty to:
(1) conduct staff reviews and evaluations of cases
determined to involve a high risk to the health or safety of a
child, including cases of abuse reported under Section 261.101, to
ensure that risk assessment tools are fully and correctly used;
(2) review and evaluate [monitor] cases in which there
have been multiple referrals to the department of child abuse or
neglect involving the same family, child, or person alleged to have
committed the abuse or neglect; and
(3) approve decisions and assessments related to
investigations of cases of child abuse or neglect that involve a
high risk to the health or safety of a child.
SECTION 1.30. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3126 to read as follows:
Sec. 261.3126. COLOCATION OF INVESTIGATORS. (a) In each
county, to the extent possible, the department and the local law
enforcement agencies that investigate child abuse in the county
shall colocate in the same offices investigators from the
department and the law enforcement agencies to improve the
efficiency of child abuse investigations. With approval of the
local children's advocacy center and its partner agencies, in each
county in which a children's advocacy center established under
Section 264.402 is located, the department shall attempt to locate
investigators from the department and county and municipal law
enforcement agencies at the center.
(b) A law enforcement agency is not required to comply with
the colocation requirements of this section if the law enforcement
agency does not have a full-time peace officer solely assigned to
investigate reports of child abuse and neglect.
(c) If a county does not have a children's advocacy center,
the department shall work with the local community to encourage one
as provided by Section 264.402.
SECTION 1.31. Subchapter E, Chapter 261, Family Code, is
amended by adding Section 261.410 to read as follows:
Sec. 261.410. REPORT OF ABUSE BY OTHER CHILDREN. (a) In
this section:
(1) "Physical abuse" means:
(A) physical injury that results in substantial
harm to the child requiring emergency medical treatment and
excluding an accident or reasonable discipline by a parent,
guardian, or managing or possessory conservator that does not
expose the child to a substantial risk of harm; or
(B) failure to make a reasonable effort to
prevent an action by another person that results in physical injury
that results in substantial harm to the child.
(2) "Sexual abuse" means:
(A) sexual conduct harmful to a child's mental,
emotional, or physical welfare; or
(B) failure to make a reasonable effort to
prevent sexual conduct harmful to a child.
(b) An agency that operates, licenses, certifies, or
registers a facility shall require a residential child-care
facility to report each incident of physical or sexual abuse
committed by a child against another child.
(c) Using information received under Subsection (b), the
agency that operates, licenses, certifies, or registers a facility
shall, subject to the availability of funds, compile a report that
includes information:
(1) regarding the number of cases of physical and
sexual abuse committed by a child against another child;
(2) identifying the residential child-care facility;
(3) regarding the date each allegation of abuse was
made;
(4) regarding the date each investigation was started
and concluded;
(5) regarding the findings and results of each
investigation; and
(6) regarding the number of children involved in each
incident investigated.
SECTION 1.32. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.1041 to read as follows:
Sec. 262.1041. RELEASE OF CHILD BY LAW ENFORCEMENT OR
JUVENILE PROBATION OFFICER. (a) A law enforcement or juvenile
probation officer who takes possession of a child under this
chapter may release the child to:
(1) a child-placing agency licensed by the Department
of Family and Protective Services under Chapter 42, Human Resources
Code, if the agency is authorized by the department to take
possession of the child;
(2) the Department of Family and Protective Services;
or
(3) any other person authorized by law to take
possession of the child.
(b) A child-placing agency or other authorized person who
takes possession of a child under this section shall:
(1) immediately notify the Department of Family and
Protective Services that the agency or other authorized person has
taken possession of the child; and
(2) with the assistance of the law enforcement or
juvenile probation officer who releases the child to the agency or
other authorized person, complete a form prescribed by the
Department of Family and Protective Services that contains basic
information regarding the child and the circumstances under which
the officer took possession of the child and promptly submit the
completed form to the department.
SECTION 1.33. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.114 to read as follows:
Sec. 262.114. EVALUATION OF IDENTIFIED RELATIVES AND OTHER
DESIGNATED INDIVIDUALS; PLACEMENT. (a) Before a full adversary
hearing under Subchapter C, the Department of Family and Protective
Services must perform a background and criminal history check of
the relatives or other designated individuals identified as a
potential relative or designated caregiver, as defined by Section
264.751, on the proposed child placement resources form provided
under Section 261.307. The department shall evaluate each person
listed on the form to determine the relative or other designated
individual who would be the most appropriate substitute caregiver
for the child and must complete a home study of the most appropriate
substitute caregiver, if any, before the full adversary hearing.
Until the department identifies a relative or other designated
individual qualified to be a substitute caregiver, the department
must continue to explore substitute caregiver options. The time
frames in this subsection do not apply to a relative or other
designated individual located in another state.
(b) The department may place a child with a relative or
other designated individual identified on the proposed child
placement resources form if the department determines that the
placement is in the best interest of the child. The department may
place the child with the relative or designated individual before
conducting the background and criminal history check or home study
required under Subsection (a). The department shall provide a copy
of an informational manual required under Section 261.3071 to the
relative or other designated caregiver at the time of the child's
placement.
SECTION 1.34. (a) Subsection (c), Section 262.201, Family
Code, is amended to read as follows:
(c) If the court finds sufficient evidence to satisfy a
person of ordinary prudence and caution that there is a continuing
danger to the physical health or safety of the child and for the
child to remain in the home is contrary to the welfare of the child,
the court shall issue an appropriate temporary order under Chapter
105. The court shall require each parent, alleged father, or
relative of the child before the court to submit the proposed child
placement resources form provided under Section 261.307, if the
form has not been previously provided, and provide the Department
of Family and Protective [and Regulatory] Services with information
necessary to locate any other absent parent, alleged father, or
relative of the child. The court shall inform each parent, alleged
father, or relative of the child before the court that the person's
failure to submit the proposed child placement resources form will
not delay any court proceedings relating to the child. The court
shall inform each parent in open court that parental and custodial
rights and duties may be subject to restriction or to termination
unless the parent or parents are willing and able to provide the
child with a safe environment. If the court finds that the child
requires protection from family violence by a member of the child's
family or household, the court shall render a protective order
under Title 4 for the child. In this subsection, "family violence"
has the meaning assigned by Section 71.004.
(b) The change in law made by this section to Subsection
(c), Section 262.201, Family Code, applies only to a full adversary
hearing that occurs on or after November 1, 2005. A full adversary
hearing that occurs before that date is governed by the law as it
existed before amendment by this section, and the former law is
continued in effect for that purpose.
SECTION 1.35. Subsection (b), Section 262.2015, Family
Code, is amended to read as follows:
(b) The court may find under Subsection (a) that a parent
has subjected the child to aggravated circumstances if:
(1) the parent abandoned the child without
identification or a means for identifying the child;
(2) the child is a victim of serious bodily injury or
sexual abuse inflicted by the parent or by another person with the
parent's consent;
(3) the parent has engaged in conduct against the
child that would constitute an offense under the following
provisions of the Penal Code:
(A) Section 19.02 (murder);
(B) Section 19.03 (capital murder);
(C) Section 19.04 (manslaughter);
(D) Section 21.11 (indecency with a child);
(E) Section 22.011 (sexual assault);
(F) Section 22.02 (aggravated assault);
(G) Section 22.021 (aggravated sexual assault);
(H) Section 22.04 (injury to a child, elderly
individual, or disabled individual);
(I) Section 22.041 (abandoning or endangering
child);
(J) Section 25.02 (prohibited sexual conduct);
(K) Section 43.25 (sexual performance by a
child); or
(L) Section 43.26 (possession or promotion of
child pornography);
(4) the parent voluntarily left the child alone or in
the possession of another person not the parent of the child for at
least six months without expressing an intent to return and without
providing adequate support for the child;
(5) the parent's parental rights with regard to
another child have been involuntarily terminated based on a finding
that the parent's conduct violated Section 161.001(1)(D) or (E) or
a substantially equivalent provision of another state's law; [or]
(6) the parent has been convicted for:
(A) the murder of another child of the parent and
the offense would have been an offense under 18 U.S.C. Section
1111(a) if the offense had occurred in the special maritime or
territorial jurisdiction of the United States;
(B) the voluntary manslaughter of another child
of the parent and the offense would have been an offense under 18
U.S.C. Section 1112(a) if the offense had occurred in the special
maritime or territorial jurisdiction of the United States;
(C) aiding or abetting, attempting, conspiring,
or soliciting an offense under Subdivision (A) or (B); or
(D) the felony assault of the child or another
child of the parent that resulted in serious bodily injury to the
child or another child of the parent; or
(7) the parent's parental rights with regard to two
other children have been involuntarily terminated.
SECTION 1.36. Subdivision (1), Subsection (a), Section
263.001, Family Code, is amended to read as follows:
(1) "Department" means the Department of Family and
Protective [and Regulatory] Services.
SECTION 1.37. (a) Section 263.201, Family Code, is amended
by adding Subsection (c) to read as follows:
(c) The court shall require each parent, alleged father, or
relative of the child before the court to submit the proposed child
placement resources form provided under Section 261.307 at the
status hearing, if the form has not previously been submitted.
(b) The change in law made by this section to Section
263.201, Family Code, applies only to a status hearing that occurs
on or after November 1, 2005. A status hearing that occurs before
that date is governed by the law as it existed before amendment by
this section, and the former law is continued in effect for that
purpose.
SECTION 1.38. (a) Section 263.102, Family Code, is amended
by amending Subsection (a) and adding Subsections (d) and (e) to
read as follows:
(a) The service plan must:
(1) be specific;
(2) be in writing in a language that the parents
understand, or made otherwise available;
(3) be prepared by the department or other agency in
conference with the child's parents;
(4) state appropriate deadlines;
(5) state whether the goal of the plan is:
(A) return of the child to the child's parents;
(B) termination of parental rights and placement
of the child for adoption; or
(C) because of the child's special needs or
exceptional circumstances, continuation of the child's care out of
the child's home;
(6) state steps that are necessary to:
(A) return the child to the child's home if the
placement is in foster care;
(B) enable the child to remain in the child's
home with the assistance of a service plan if the placement is in
the home under the department's or other agency's supervision; or
(C) otherwise provide a permanent safe placement
for the child;
(7) state the actions and responsibilities that are
necessary for the child's parents to take to achieve the plan goal
during the period of the service plan and the assistance to be
provided to the parents by the department or other authorized
agency toward meeting that goal;
(8) state any specific skills or knowledge that the
child's parents must acquire or learn, as well as any behavioral
changes the parents must exhibit, to achieve the plan goal;
(9) state the actions and responsibilities that are
necessary for the child's parents to take to ensure that the child
attends school and maintains or improves the child's academic
compliance;
(10) state the name of the person with the department
or other agency whom the child's parents may contact for
information relating to the child if other than the person
preparing the plan; and
(11) [(9)] prescribe any other term or condition that
the department or other agency determines to be necessary to the
service plan's success.
(d) The department or other authorized entity must write the
service plan in a manner that is clear and understandable to the
parent in order to facilitate the parent's ability to follow the
requirements of the service plan.
(e) Regardless of whether the goal stated in a child's
service plan as required under Subsection (a)(5) is to return the
child to the child's parents or to terminate parental rights and
place the child for adoption, the department shall concurrently
provide to the child and the child's family, as applicable:
(1) time-limited family reunification services as
defined by 42 U.S.C. Section 629a for a period not to exceed the
period within which the court must render a final order in or
dismiss the suit affecting the parent-child relationship with
respect to the child as provided by Subchapter E; and
(2) adoption promotion and support services as defined
by 42 U.S.C. Section 629a.
(b) Subsection (c), Section 263.202, Family Code, is
amended to read as follows:
(c) The court shall advise the parties that progress under
the service plan will be reviewed at all subsequent hearings,
including a review of whether the parties have acquired or learned
any specific skills or knowledge stated in the service plan.
(c) The changes in law made by Section 263.102 and
Subsection (c), Section 263.202, Family Code, as amended by this
section, apply only to a child placed in the custody of the
Department of Family and Protective Services on or after the
effective date of this section. A child placed in the custody of
the department before the effective date of this section is
governed by the law in effect on the date the child was placed in the
department's custody, and the former law is continued in effect for
that purpose.
SECTION 1.39. Section 263.202, Family Code, is amended by
amending Subsection (b) and adding Subsection (e) to read as
follows:
(b) Except as provided by Subsection (e), a [A] status
hearing shall be limited to matters related to the contents and
execution of the service plan filed with the court. The court shall
review the service plan that the department or other agency filed
under this chapter for reasonableness, accuracy, and compliance
with requirements of court orders and make findings as to whether:
(1) a plan that has the goal of returning the child to
the child's parents adequately ensures that reasonable efforts are
made to enable the child's parents to provide a safe environment for
the child; and
(2) the child's parents have reviewed and understand
the service plan and have been advised that unless the parents are
willing and able to provide the child with a safe environment, even
with the assistance of a service plan, within the reasonable period
of time specified in the plan, the parents' parental and custodial
duties and rights may be subject to restriction or to termination
under this code or the child may not be returned to the parents.
(e) At the status hearing, the court shall make a finding as
to whether the court has identified the individual who has the right
to consent for the child under Section 266.003.
SECTION 1.40. Subsection (b), Section 263.401, Family Code,
is amended to read as follows:
(b) The court may not retain the suit on the court's docket
after the time described by Subsection (a) unless the court finds
that extraordinary circumstances necessitate the child remaining
in the temporary managing conservatorship of the department and
that continuing the appointment of the department as temporary
managing conservator is in the best interest of the child. If the
court makes those findings, the court may retain the suit on the
court's docket for a period not to exceed 180 days after the time
described by Subsection (a)[, if the court finds that continuing
the appointment of the department as temporary managing conservator
is in the best interest of the child]. If the court retains the suit
on the court's docket, the court shall render an order in which the
court:
(1) schedules the new date for dismissal of the suit
not later than the 180th day after the time described by Subsection
(a);
(2) makes further temporary orders for the safety and
welfare of the child as necessary to avoid further delay in
resolving the suit; and
(3) sets a final hearing on a date that allows the
court to render a final order before the required date for dismissal
of the suit under this subsection.
SECTION 1.41. (a) Subsection (c), Section 263.502, Family
Code, is amended to read as follows:
(c) The placement review report must:
(1) evaluate whether the child's current placement is
appropriate for meeting the child's needs;
(2) evaluate whether efforts have been made to ensure
placement of the child in the least restrictive environment
consistent with the best interest and special needs of the child if
the child is placed in institutional care;
(3) contain a discharge plan for a child who is at
least 16 years of age that identifies [identify] the services and
specific tasks that are needed to assist the [a] child [who is at
least 16 years of age] in making the transition from substitute care
to adult [independent] living and describes the services that are
available through the Preparation for Adult Living Program operated
by the department [if the services are available in the community];
(4) evaluate whether the child's current educational
placement is appropriate for meeting the child's academic needs;
(5) identify other plans or services that are needed
to meet the child's special needs or circumstances; and
(6) [(5)] describe the efforts of the department or
authorized agency to place the child for adoption if parental
rights to the child have been terminated and the child is eligible
for adoption, including efforts to provide adoption promotion and
support services as defined by 42 U.S.C. Section 629a and other
efforts consistent with the federal Adoption and Safe Families Act
of 1997 (Pub. L. No. 105-89).
(b) In implementing the provisions of Subdivision (3),
Subsection (c), Section 263.502, Family Code, as amended by this
section, the Department of Family and Protective Services shall, to
the extent that funding is appropriated for this purpose, contract
with outside entities to assist in the discharge planning process.
SECTION 1.42. Section 264.001, Family Code, is amended to
read as follows:
Sec. 264.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Department"[, "department"] means the Department
of Family and Protective [and Regulatory] Services.
(2) "Commission" means the Health and Human Services
Commission.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Residential child-care facility" has the meaning
assigned by Section 42.002, Human Resources Code.
SECTION 1.43. Subchapter A, Chapter 264, Family Code, is
amended by adding Section 264.0091 to read as follows:
Sec. 264.0091. USE OF TELECONFERENCING AND
VIDEOCONFERENCING TECHNOLOGY. Subject to the availability of
funds, the department, in cooperation with district and county
courts, shall expand the use of teleconferencing and
videoconferencing to facilitate participation by medical experts
and other individuals in court proceedings.
SECTION 1.44. Subchapter A, Chapter 264, Family Code, is
amended by adding Section 264.013 to read as follows:
Sec. 264.013. EXCHANGE OF INFORMATION WITH OTHER STATES.
Subject to the availability of funds, the department shall enter
into agreements with other states to allow for the exchange of
information relating to a child for whom the department is or was
the managing conservator. The information may include the child's
health passport and education passport.
SECTION 1.45. Section 264.101, Family Code, is amended by
adding Subsection (d-1) to read as follows:
(d-1) The executive commissioner may adopt rules that
prescribe the maximum amount of state money that a residential
child-care facility may spend on nondirect residential services,
including administrative services. The commission shall recover
the money that exceeds the maximum amount established under this
subsection.
SECTION 1.46. Section 264.106, Family Code, is amended to
read as follows:
Sec. 264.106. REQUIRED CONTRACTS FOR SUBSTITUTE CARE AND
CASE MANAGEMENT SERVICES. (a) In this section:
(1) "Case management services" means the provision of
case management services to a child for whom the department has been
appointed temporary or permanent managing conservator, including
caseworker-child visits, family visits, the convening of family
group conferences, the development and revision of the case plan,
the coordination and monitoring of services needed by the child and
family, and the assumption of court-related duties, including
preparing court reports, attending judicial hearings and
permanency hearings, and ensuring that the child is progressing
toward permanency within state and federal mandates.
(2) "Independent administrator" means an independent
agency selected through a competitive procurement process to:
(A) secure, coordinate, and manage substitute
care services and case management services in a geographically
designated area of the state; and
(B) ensure continuity of care for a child
referred to the administrator by the department and the child's
family from the day a child enters the child protective services
system until the child leaves the system.
(3) "Permanency services" means services, other than
family-based safety services, provided to secure a child's safety,
permanency, and well-being, including substitute care services,
family reunification services, adoption and postadoption services,
preparation for adult living services, and case management
services.
(4) "Substitute care provider" means a child-care
institution or a child-placing agency, as defined by Section
42.002, Human Resources Code.
(5) "Substitute care services" means services
provided to or for children in substitute care and their families,
including the recruitment, training, and management of foster
parents, the recruitment of adoptive families, and the facilitation
of the adoption process, family preservation, independent living,
emergency shelter, residential group care, foster care,
therapeutic foster care, and post-placement supervision, including
relative placement. The term does not include the regulation of
facilities under Subchapter C, Chapter 42, Human Resources Code.
(b) The department shall, in accordance with Section
45.004, Human Resources Code:
(1) assess the need for substitute care and case
management services throughout the state; [and]
(2) either contract directly with private agencies as
part of regional community-centered networks for the provision of
all necessary substitute care and case management [substitute care
providers only to the extent necessary to meet the need for those]
services or use an independent administrator to contract for those
services;
(3) contract with an independent administrator, if
cost beneficial, to coordinate and manage all services needed for
children in the temporary or permanent managing conservatorship of
the department in a designated geographic area;
(4) monitor the quality of services for which the
department and each independent administrator contract under this
section; and
(5) ensure that the services are provided in
accordance with federal law and the laws of this state, including
department rules and rules of the Department of State Health
Services and the Texas Commission on Environmental Quality.
(c) An independent administrator may not:
(1) directly provide substitute care services; or
(2) be governed by a board that has a member who has a
financial interest in a substitute care or case management provider
with whom the independent administrator subcontracts.
(d) Administrative services to be provided by an
independent administrator include:
(1) recruiting and subcontracting with
community-based substitute care and case management providers to
ensure a full array of services in defined geographic areas;
(2) managing placements and making referrals for
placement based on department-approved protocols;
(3) monitoring services delivered by subcontractors;
(4) providing training and technical assistance to
contract providers;
(5) maintaining data systems that support tracking and
reporting key performance and outcome data; and
(6) ensuring accountability for achieving defined
client and system outcomes.
(e) [(b) Before contracting with a substitute care
provider, the department shall determine whether:
[(1) community resources are available to support
children placed under the provider's care; and
[(2) the appropriate public school district has
sufficient resources to support children placed under the
provider's care if the children will attend public school.
[(c)] In addition to the requirements of Section 40.058(b),
Human Resources Code, a contract with an independent administrator
[a substitute care provider] must include provisions that:
(1) enable the department to monitor the effectiveness
of the [provider's] services; [and]
(2) specify performance outcomes;
(3) authorize the department to terminate the contract
or impose sanctions for a violation of a provision of the contract
that specifies performance criteria;
(4) ensure that an independent administrator may not
refuse to accept a client who is referred for services or reject a
client who is receiving services unless the department has reviewed
the independent administrator's decision and approved the decision
in writing;
(5) authorize the department, an agent of the
department, and the state auditor to inspect all books, records,
and files maintained by an independent administrator relating to
the contract; and
(6) the department determines are necessary to ensure
accountability for the delivery of services and for the expenditure
of public funds.
(f) A contract with an independent administrator for
substitute care and case management services under Subsection
(b)(2) must include department-approved provisions that:
(1) enable the independent administrator and the
department to:
(A) monitor the effectiveness of substitute care
and case management services; and
(B) specify performance standards and authorize
termination of the contract for cause;
(2) describe how performance is linked to
reimbursement amounts or schedules to provide incentives for
desired results;
(3) require all independent administrators and
private contractors to disclose to the department any information
that may indicate an actual or potential conflict of interest with
the commission, the department, or another health and human
services agency, including information regarding actual or
potential related-party transactions, relationships, interests, or
business history, and any other factor that may indicate an actual
or potential conflict of interest;
(4) authorize the independent administrator, an agent
of the independent administrator, the department, an agent of the
department, and the state auditor to inspect all books, records,
and files maintained by a contractor relating to the contract; and
(5) the department determines are necessary to ensure
accountability for the delivery of services and for the expenditure
of public funds.
(g) [(d)] In determining whether to contract with a
substitute care provider or an independent administrator, the
department shall consider the provider's or administrator's
performance under any previous contract [for substitute care
services] between the department and the provider or administrator.
(h) A contract under this section does not affect the rights
and duties of the department in the department's capacity as the
temporary or permanent managing conservator of a child.
(i) Except as provided by Subsections (j) and (k) and
notwithstanding any other law, on and after September 1, 2011, the
department may not directly provide substitute care and case
management services for children for whom the department has been
appointed temporary or permanent managing conservator.
(j) On and after September 1, 2011, the department may
provide substitute care and case management services in an
emergency. The executive commissioner shall adopt rules describing
the circumstances in which the department may provide those
services.
(k) The department may provide substitute care and case
management services as a provider of last resort in any region of
the state in which the department or an independent administrator
contracting with the department is unable to contract with a
private agency to provide those services
[(e) In this section, "substitute care provider" means a
person who provides residential care for children for 24 hours a
day, including:
[(1) a child-care institution, as defined by Section
42.002, Human Resources Code;
[(2) a child-placing agency, as defined by Section
42.002, Human Resources Code;
[(3) a foster group home or foster family home, as
defined by Section 42.002, Human Resources Code; and
[(4) an agency group home or agency home, as defined by
Section 42.002, Human Resources Code, other than an agency group
home, agency home, or a foster home verified or certified by the
department].
SECTION 1.47. Subchapter B, Chapter 264, Family Code, is
amended by adding Sections 264.1062 and 264.1063 to read as
follows:
Sec. 264.1062. EVALUATION OF INDEPENDENT ADMINISTRATORS.
The department shall develop and implement a comprehensive
multidisciplinary team to monitor and evaluate the performance of
independent administrators. The team must consist of specialized
staff who can enable the department to measure critical dimensions
of community-based organization performance, obtained through the
quality assurance functions of the independent administrator,
including:
(1) achievement of client and system outcomes;
(2) compliance with contractual terms and conditions;
and
(3) any history of the community-based organization's
noncompliance with the department's licensing standards.
Sec. 264.1063. MONITORING PERFORMANCE OF SUBSTITUTE CARE
AND CASE MANAGEMENT PROVIDERS. (a) The department, in
consultation with private entities under contract with either an
independent administrator or the department to provide substitute
care or case management services, shall establish a quality
assurance program that uses comprehensive, multitiered assurance
and improvement systems based, subject to the availability of
funds, on real-time data to evaluate performance.
(b) The contract performance outcomes specified in a
contract under Section 264.106 must be consistent with the fiscal
goals of privatizing substitute care and case management services
and must be within the contractor's authority to deliver. The
contract must clearly define the manner in which the substitute
care or case management provider's performance will be measured and
identify the information sources the department and, if applicable,
the independent administrator will use to evaluate the performance.
SECTION 1.48. Section 264.107, Family Code, is amended by
adding Subsections (c) through (f) to read as follows:
(c) The contract between the department and an independent
administrator or other authorized entity must require, not later
than September 1, 2009, the use of real-time technology in the
independent administrator's or other authorized entity's placement
system to screen possible placement options for a child and match
the child's needs with the most qualified providers with vacancies.
(d) The department shall institute a quality assurance
system in monitoring the independent administrators or other
authorized entities to ensure that placement decisions are reliable
and are made in a consistent manner.
(e) In making placement decisions, an independent
administrator or other authorized entity shall use clinical
protocols to match a child to the most appropriate placement
resource.
(f) The department may create a regional advisory council in
a region to assist the department and independent administrator or
other authorized entity in:
(1) assessing the need for resources in the region;
and
(2) locating substitute care services in the region
for hard-to-place children.
SECTION 1.49. Section 264.1075, Family Code, is amended to
read as follows:
Sec. 264.1075. ASSESSING NEEDS OF CHILD [USE OF ASSESSMENT
SERVICES]. (a) On removing a child from the child's home [Before
placing a child in substitute care], the department shall use
assessment services provided by a child-care facility, a [or]
child-placing agency, or the child's medical home during the
initial substitute care placement. The assessment may be used [in
accordance with Section 42.0425, Human Resources Code,] to
determine the most appropriate substitute care placement for the
child, if needed.
(b) As soon as possible after a child begins receiving
foster care under this subchapter, the department shall assess
whether the child has a developmental disability or mental
retardation. The commission shall establish the procedures that
the department must use in making an assessment under this
subsection. The procedures may include screening or participation
by:
(1) a person who has experience in childhood
developmental disabilities or mental retardation;
(2) a local mental retardation authority; or
(3) a provider in a county with a local child welfare
board.
SECTION 1.50. (a) Subchapter B, Chapter 264, Family Code,
is amended by adding Sections 264.116, 264.117, and 264.118 to read
as follows:
Sec. 264.116. TEXAS FOSTER GRANDPARENT MENTORS. (a) The
department shall make the active recruitment and inclusion of
senior citizens a priority in ongoing mentoring initiatives.
(b) An individual who volunteers as a mentor is subject to
state and national criminal background checks in accordance with
Sections 411.087 and 411.114, Government Code.
(c) The department shall require foster parents or
employees of residential child-care facilities to provide
appropriate supervision over individuals who serve as mentors
during their participation in the mentoring initiative.
(d) Chapter 2109, Government Code, applies to the mentoring
initiative described by this section.
Sec. 264.117. NOTICE TO ATTORNEY AD LITEM. (a) The
department shall notify the attorney ad litem for a child in the
conservatorship of the department about each event involving the
child that the department reports in the child's case file.
(b) The department shall give a child's attorney ad litem
written notice at least 48 hours before the date the department
changes the child's residential care provider. The department may
change the child's residential care provider without notice if the
department determines that an immediate change is necessary to
protect the child.
Sec. 264.118. ANNUAL SURVEY. (a) The department shall
conduct an annual random survey of a sample of children from each
region of the state who are at least 14 years of age and who receive
substitute care services. The survey must include questions
regarding:
(1) the quality of the substitute care services
provided to the child;
(2) any improvements that could be made to better
support the child; and
(3) any other factor that the department considers
relevant to enable the department to identify potential program
enhancements.
(b) The identity of each child participating in a department
survey is confidential and not subject to public disclosure under
Chapter 552, Government Code. The department shall adopt
procedures to ensure that the identity of each child participating
in a department survey remains confidential.
(b) The Department of Family and Protective Services shall
implement the provisions of Section 264.116, Family Code, as added
by this section, not later than June 1, 2006.
SECTION 1.51. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.121 to read as follows:
Sec. 264.121. PREPARATION FOR ADULT LIVING PROGRAM.
(a) The department shall address the unique challenges facing
foster children in the conservatorship of the department who must
transition to independent living by:
(1) expanding efforts to improve discharge planning
and increasing the availability of transitional family group
decision-making to all youth age 16 or older in the department's
permanent managing conservatorship;
(2) coordinating with the Health and Human Services
Commission to obtain authority, to the extent allowed by federal
law, the state Medicaid plan, the Title IV-E state plan, and any
waiver or amendment to either plan, necessary to:
(A) extend foster care eligibility and
transition services for youth up to age 21 and develop policy to
permit eligible youth to return to foster care as necessary to
achieve the goals of the Preparation for Adult Living Program; and
(B) extend Medicaid coverage for foster care
youth and former foster care youth up to age 21 with a single
application at the time the youth leaves foster care; and
(3) entering into cooperative agreements with the
Texas Workforce Commission and local workforce development boards
to further the objectives of the Preparation for Adult Living
Program. The department, the Texas Workforce Commission, and the
local workforce development boards shall ensure that services are
prioritized and targeted to meet the needs of foster care and former
foster care children and that such services will include, where
feasible, referrals for short-term stays for youth needing housing.
(b) In this section "local workforce development board"
means a local workforce development board created under Chapter
2308, Government Code.
SECTION 1.52. Subchapter C, Chapter 264, Family Code, is
amended by adding Section 264.2015 to read as follows:
Sec. 264.2015. FAMILY GROUP CONFERENCING. The department
may collaborate with the courts and other appropriate local
entities to develop and implement family group conferencing as a
strategy for promoting family preservation and permanency for
children.
SECTION 1.53. Subchapter C, Chapter 264, Family Code, is
amended by adding Section 264.204 to read as follows:
Sec. 264.204. COMMUNITY-BASED FAMILY SERVICES. (a) The
department shall administer a grant program to provide funding to
community organizations, including faith-based or county
organizations, to respond to:
(1) low-priority, less serious cases of abuse and
neglect; and
(2) cases in which an allegation of abuse or neglect of
a child was unsubstantiated but involved a family that has been
previously investigated for abuse or neglect of a child.
(b) The executive commissioner shall adopt rules to
implement the grant program, including rules governing the
submission and approval of grant requests and the cancellation of
grants.
(c) To receive a grant, a community organization whose grant
request is approved must execute an interagency agreement or a
contract with the department. The contract must require the
organization receiving the grant to perform the services as stated
in the approved grant request. The contract must contain
appropriate provisions for program and fiscal monitoring.
(d) In areas of the state in which community organizations
receive grants under the program, the department shall refer
low-priority, less serious cases of abuse and neglect to a
community organization receiving a grant under the program.
(e) A community organization receiving a referral under
Subsection (d) shall make a home visit and offer family social
services to enhance the parents' ability to provide a safe and
stable home environment for the child. If the family chooses to use
the family services, a case manager from the organization shall
monitor the case and ensure that the services are delivered.
(f) If after the home visit the community organization
determines that the case is more serious than the department
indicated, the community organization shall refer the case to the
department for a full investigation.
(g) The department may not award a grant to a community
organization in an area of the state in which a similar program is
already providing effective family services in the community.
(h) For purposes of this section, a case is considered to be
a less serious case of abuse or neglect if:
(1) the circumstances of the case do not appear to
involve a reasonable likelihood that the child will be abused or
neglected in the foreseeable future; or
(2) the allegations in the report of child abuse or
neglect:
(A) are general in nature or vague and do not
support a determination that the child who is the subject of the
report has been abused or neglected or will likely be abused or
neglected; or
(B) if substantiated, would not be considered
abuse or neglect under this chapter.
SECTION 1.54. (a) Subchapter C, Chapter 264, Family Code,
is amended by adding Section 264.2041 to read as follows:
Sec. 264.2041. CULTURAL AWARENESS. The department shall:
(1) develop and deliver cultural competency training
to all service delivery staff;
(2) increase targeted recruitment efforts for foster
and adoptive families who can meet the needs of children and youth
who are waiting for permanent homes;
(3) target recruitment efforts to ensure diversity
among department staff; and
(4) develop collaborative partnerships with community
groups, agencies, faith-based organizations, and other community
organizations to provide culturally competent services to children
and families of every race and ethnicity.
(b) The Health and Human Services Commission and the
Department of Family and Protective Services shall analyze data
regarding child removals and other enforcement actions taken by the
department during state fiscal years 2004 and 2005. Based on the
analysis, the commission and the department shall determine whether
enforcement actions were disproportionately initiated against any
racial or ethnic group, in any area of the state, taking into
account other relevant factors, including poverty, single-parent
families, young-parent families, and any additional factor
determined by other research to be statistically correlated with
child abuse or child neglect.
(c) The rate of enforcement actions shall be deemed
disproportionate for a given racial or ethnic group if it is
significantly different from the rate of enforcement actions
against the population as a whole, taking into account other
relevant factors.
(d) Not later than January 1, 2006, the Health and Human
Services Commission shall report the results of the analysis to the
lieutenant governor, the speaker of the house of representatives,
the presiding officer of each house and senate standing committee
having jurisdiction over child protective services, and the
Parental Advisory Committee created under Section 40.073, Human
Resources Code, as added by this Act.
(e) If the results of the analysis indicate that enforcement
actions are initiated disproportionately against any racial or
ethnic group, in any area of the state, taking into account other
relevant factors, the Health and Human Services Commission and
Department of Family and Protective Services shall:
(1) evaluate the policies and procedures the
department uses in deciding to take enforcement actions to
determine why racial or ethnic disparities exist;
(2) develop and implement a remediation plan to
prevent racial or ethnic disparities not justified by other
external factors from affecting the decision to initiate
enforcement actions; and
(3) not later than July 1, 2006, submit a report to the
lieutenant governor, the speaker of the house of representatives,
and the presiding officer of each house and senate standing
committee having jurisdiction over child protective services that
explains:
(A) the evaluation of policies and procedures;
and
(B) the remediation plan.
SECTION 1.55. Subsection (c), Section 264.203, Family Code,
is amended to read as follows:
(c) If the person ordered to participate in the services
fails to follow the court's order, the court may impose appropriate
sanctions in order to protect the health and safety of the child,
including the removal of the child as specified by Chapter 262
[community service as a sanction for contempt].
SECTION 1.56. Subsection (b), Section 264.502, Family Code,
is amended to read as follows:
(b) The members of the committee who serve under Subsections
(a)(1) through (3) shall select the following additional committee
members:
(1) a criminal prosecutor involved in prosecuting
crimes against children;
(2) a sheriff;
(3) a justice of the peace;
(4) a medical examiner;
(5) a police chief;
(6) a pediatrician experienced in diagnosing and
treating child abuse and neglect;
(7) a child educator;
(8) a child mental health provider;
(9) a public health professional;
(10) a child protective services specialist;
(11) a sudden infant death syndrome family service
provider;
(12) a neonatologist;
(13) a child advocate; [and]
(14) a chief juvenile probation officer; and
(15) a child abuse prevention specialist.
SECTION 1.57. Section 264.503, Family Code, is amended by
amending Subsections (b) through (f) and adding Subsections (d-1)
and (g) to read as follows:
(b) To ensure that the committee achieves its purpose, the
department and the [Texas] Department of State Health Services
shall perform the duties specified by this section.
(c) The department shall:
(1) recognize the creation and participation of review
teams; and
(2) work cooperatively with the committee and with
individual child fatality review teams [promote and coordinate
training to assist the review teams in carrying out their duties;
[(3) assist the committee in developing model
protocols for:
[(A) the reporting and investigating of child
fatalities for law enforcement agencies, child protective
services, justices of the peace and medical examiners, and other
professionals involved in the investigations of child deaths;
[(B) the collection of data regarding child
deaths; and
[(C) the operation of the review teams; and
[(4) develop and implement procedures necessary for
the operation of the committee].
(d) The Department of State Health Services [department]
shall:
(1) promote and coordinate training to assist the
review teams in carrying out their duties;
(2) assist the committee in developing model protocols
for:
(A) the reporting and investigating of child
fatalities for law enforcement agencies, child protective
services, justices of the peace and medical examiners, and other
professionals involved in the investigations of child deaths;
(B) the collection of data regarding child
deaths; and
(C) the operation of the review teams;
(3) develop and implement procedures necessary for the
operation of the committee; and
(4) promote education of the public regarding the
incidence and causes of child deaths, the public role in preventing
child deaths, and specific steps the public can undertake to
prevent child deaths.
(d-1) The committee shall enlist the support and assistance
of civic, philanthropic, and public service organizations in the
performance of the duties imposed under Subsection (d) [this
subsection].
(e) In addition to the duties under Subsection (d), the [The
Texas] Department of State Health Services shall:
(1) collect data under this subchapter and coordinate
the collection of data under this subchapter with other data
collection activities; and
(2) perform annual statistical studies of the
incidence and causes of child fatalities using the data collected
under this subchapter.
(f) The committee shall issue a report for each preventable
child death. The report must include [annual reports on the
committee's activities, including] findings related to the child's
death, [and] recommendations on how to prevent similar deaths, and
details surrounding the department's involvement with the child
prior to the child's death [relating to each purpose and duty of the
committee described by this section]. Not later than December 1 of
each [even-numbered] year, the committee shall publish a
compilation of the reports published under this subsection during
the year, [the report and] submit a copy of the compilation [report]
to the governor, lieutenant governor, [and] speaker of the house of
representatives, and department, and make the compilation
available to the public. Not later than June 1 of each year, the
department shall submit a written response on the compilation from
the previous year to the committee, governor, lieutenant governor,
and speaker of the house of representatives describing which of the
committee's recommendations regarding the operation of the child
protective services system the department will implement and the
methods of implementation.
(g) The committee shall perform the functions and duties
required of a citizen review panel under 42 U.S.C. Section
5106a(c)(4)(A).
SECTION 1.58. Subsection (c), Section 264.504, Family Code,
is amended to read as follows:
(c) Information identifying a deceased child, a member of
the child's family, a guardian or caretaker of the child, or an
alleged or suspected perpetrator of abuse or neglect of the child
may not be disclosed during a public meeting. On a majority vote of
the committee members, the members shall remove from the committee
any member who discloses information described by this subsection
in a public meeting.
SECTION 1.59. Subsection (c), Section 264.505, Family Code,
is amended to read as follows:
(c) A review team may include:
(1) a criminal prosecutor involved in prosecuting
crimes against children;
(2) a sheriff;
(3) a justice of the peace or medical examiner;
(4) a police chief;
(5) a pediatrician experienced in diagnosing and
treating child abuse and neglect;
(6) a child educator;
(7) a child mental health provider;
(8) a public health professional;
(9) a child protective services specialist;
(10) a sudden infant death syndrome family service
provider;
(11) a neonatologist;
(12) a child advocate; [and]
(13) a chief juvenile probation officer; and
(14) a child abuse prevention specialist.
SECTION 1.60. Subsection (b), Section 264.509, Family Code,
is amended to read as follows:
(b) On request of the presiding officer of a review team,
the custodian of the relevant information and records relating to a
deceased child shall provide those records to the review team at no
cost to the review team.
SECTION 1.61. Section 264.602, Family Code, is amended by
adding Subsection (e) to read as follows:
(e) The department, in cooperation with the statewide
organization with which the attorney general contracts under
Section 264.603 and other interested agencies, shall support the
expansion of court-appointed volunteer advocate programs into
counties in which there is a need for the programs. In expanding
into a county, a program shall work to ensure the independence of
the program, to the extent possible, by establishing community
support and accessing private funding from the community for the
program.
SECTION 1.62. (a) Chapter 264, Family Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. RELATIVE AND OTHER DESIGNATED CAREGIVER PLACEMENT
PROGRAM
Sec. 264.751. DEFINITIONS. In this subchapter:
(1) "Designated caregiver" means an individual who has
a longstanding and significant relationship with a child for whom
the department has been appointed managing conservator and who:
(A) is appointed to provide substitute care for
the child, but is not licensed or certified to operate a foster
home, foster group home, agency foster home, or agency foster group
home under Chapter 42, Human Resources Code; or
(B) is subsequently appointed permanent managing
conservator of the child after providing the care described by
Paragraph (A).
(2) "Relative" means a person related to a child by
consanguinity as determined under Section 573.022, Government
Code.
(3) "Relative caregiver" means a relative who:
(A) provides substitute care for a child for whom
the department has been appointed managing conservator, but who is
not licensed or certified to operate a foster home, foster group
home, agency foster home, or agency foster group home under Chapter
42, Human Resources Code; or
(B) is subsequently appointed permanent managing
conservator of the child after providing the care described by
Paragraph (A).
Sec. 264.752. RELATIVE AND OTHER DESIGNATED CAREGIVER
PLACEMENT PROGRAM. (a) The department shall develop and procure a
program to:
(1) promote continuity and stability for children for
whom the department is appointed managing conservator by placing
those children with relative or other designated caregivers; and
(2) facilitate relative or other designated caregiver
placements by providing assistance and services to those caregivers
in accordance with this subchapter and rules adopted by the
executive commissioner.
(b) To the extent permitted by federal law, the department
shall use federal funds available under Title IV-E, Social Security
Act (42 U.S.C. Section 670 et seq.), to administer the program under
this subchapter.
(c) The executive commissioner shall adopt rules necessary
to implement this subchapter. The rules must include eligibility
criteria for receiving assistance and services under this
subchapter.
Sec. 264.753. EXPEDITED PLACEMENT. The department or other
authorized entity shall expedite the completion of the background
and criminal history check, the home study, and any other
administrative procedure to ensure that the child is placed with a
qualified relative or caregiver as soon as possible after the date
the caregiver is identified.
Sec. 264.754. INVESTIGATION OF PROPOSED PLACEMENT. Before
placing a child with a proposed relative or other designated
caregiver, the department must conduct an investigation to
determine whether the proposed placement is in the child's best
interest.
Sec. 264.755. CAREGIVER ASSISTANCE AGREEMENT. (a) The
department shall, subject to the availability of funds, enter into
a caregiver assistance agreement with each relative or other
designated caregiver to provide monetary assistance and additional
support services to the caregiver. The monetary assistance and
support services shall be based on a family's need, as determined by
rules adopted by the executive commissioner.
(b) Monetary assistance provided under this section must
include a one-time cash payment of not more than $1,000 to the
caregiver on the initial placement of a child or a sibling group.
The cash payment must be provided on the initial placement of each
child with the caregiver and is provided to assist the caregiver in
purchasing essential child-care items such as furniture and
clothing.
(c) Monetary assistance and additional support services
provided under this section may include:
(1) case management services and training and
information about the child's needs until the caregiver is
appointed permanent managing conservator;
(2) referrals to appropriate state agencies
administering public benefits or assistance programs for which the
child, the caregiver, or the caregiver's family may qualify;
(3) family counseling not provided under the Medicaid
program for the caregiver's family for a period not to exceed two
years from the date of initial placement;
(4) if the caregiver meets the eligibility criteria
determined by rules adopted by the executive commissioner,
reimbursement of all child-care expenses incurred while the child
is under 13 years of age, or under 18 years of age if the child has a
developmental disability, and while the department is the child's
managing conservator;
(5) if the caregiver meets the eligibility criteria
determined by rules adopted by the executive commissioner,
reimbursement of 50 percent of child-care expenses incurred after
the caregiver is appointed permanent managing conservator of the
child while the child is under 13 years of age, or under 18 years of
age if the child has a developmental disability; and
(6) reimbursement of other expenses, as determined by
rules adopted by the executive commissioner, not to exceed $500 per
year for each child.
Sec. 264.756. ASSISTANCE WITH PERMANENT PLACEMENT. The
department shall collaborate with the State Bar of Texas and local
community partners to identify legal resources to assist relatives
and other designated caregivers in obtaining conservatorship,
adoption, or other permanent legal status for the child.
Sec. 264.757. COORDINATION WITH OTHER AGENCIES. The
department shall coordinate with other health and human services
agencies, as defined by Section 531.001, Government Code, to
provide assistance and services under this subchapter.
Sec. 264.758. FUNDS. The department and other state
agencies shall actively seek and use federal funds available for
the purposes of this subchapter.
(b) Not later than December 1, 2005, the executive
commissioner of the Health and Human Services Commission shall
adopt rules for implementing and administering the relative and
other designated caregiver placement program under Subchapter I,
Chapter 264, Family Code, as added by this section.
(c) Not later than March 1, 2006, the Department of Family
and Protective Services shall implement the relative and other
designated caregiver placement program in accordance with
Subchapter I, Chapter 264, Family Code, as added by this section.
(d) As soon as possible after the effective date of this
Act, the Department of Family and Protective Services shall take
all necessary actions to apply for a federal waiver under Title
IV-E, Social Security Act (42 U.S.C. Section 670 et seq.), to use
federal funds available under that title to implement the relative
and other designated caregiver placement program under Subchapter
I, Chapter 264, Family Code, as added by this section.
SECTION 1.63. Chapter 264, Family Code, is amended by
adding Subchapter J to read as follows:
SUBCHAPTER J. FAMILY DRUG COURT PROGRAM
Sec. 264.801. FAMILY DRUG COURT PROGRAM DEFINED. In this
subchapter, "family drug court program" means a program that has
the following essential characteristics:
(1) the integration of substance abuse treatment
services in the processing of civil cases in the child welfare
system with the goal of family reunification;
(2) the use of a comprehensive case management
approach involving department caseworkers, court-appointed case
managers, and court-appointed special advocates to rehabilitate a
parent who has had a child removed from the parent's care by the
department because of suspected child abuse or neglect and who is
suspected of substance abuse;
(3) early identification and prompt placement of
eligible parents who volunteer to participate in the program;
(4) comprehensive substance abuse needs assessment
and referral to an appropriate substance abuse treatment agency;
(5) a progressive treatment approach with specific
requirements that a parent must meet to advance to the next phase of
the program;
(6) monitoring of abstinence through periodic alcohol
or other drug testing;
(7) ongoing judicial interaction with program
participants;
(8) monitoring and evaluation of program goals and
effectiveness;
(9) continuing interdisciplinary education to promote
effective program planning, implementation, and operations; and
(10) development of partnerships with public agencies
and community organizations.
Sec. 264.802. AUTHORITY TO ESTABLISH PROGRAM. The
commissioners court of a county may establish a family drug court
program for persons who:
(1) have had a child removed from their care by the
department; and
(2) are suspected by the department or a court of
having a substance abuse problem.
Sec. 264.803. OVERSIGHT. (a) The lieutenant governor and
the speaker of the house of representatives may assign to
appropriate legislative committees duties relating to the
oversight of family drug court programs established under this
subchapter.
(b) A legislative committee or the governor may request the
state auditor to perform a management, operations, or financial or
accounting audit of a family drug court program established under
this subchapter.
Sec. 264.804. PARTICIPANT PAYMENT FOR TREATMENT AND
SERVICES. A family drug court program may require a participant to
pay the cost of all treatment and services received while
participating in the program, based on the participant's ability to
pay.
Sec. 264.805. FUNDING. A county creating a family drug
court under this chapter shall explore the possibility of using
court improvement project funds to finance the family drug court in
the county. The county shall also explore the availability of
federal and state matching funds to finance the court.
SECTION 1.64. Chapter 265, Family Code, is amended by
adding Section 265.004 to read as follows:
Sec. 265.004. USE OF EVIDENCE-BASED PROGRAMS FOR AT-RISK
FAMILIES. (a) To the extent that money is appropriated for the
purpose, the department shall fund evidence-based programs offered
by community-based organizations that are designed to prevent or
ameliorate child abuse and neglect.
(b) The department shall place priority on programs that
target children whose race or ethnicity is disproportionately
represented in the child protective services system.
(c) The department shall periodically evaluate the
evidence-based abuse and neglect prevention programs to determine
the continued effectiveness of the programs.
SECTION 1.65. (a) Subtitle E, Title 5, Family Code, is
amended by adding Chapter 266 to read as follows:
CHAPTER 266. MEDICAL CARE AND EDUCATIONAL SERVICES
FOR CHILDREN IN FOSTER CARE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 266.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Department" means the Department of Family and
Protective Services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Foster child" means a child who is in the managing
conservatorship of the department.
(5) "Medical care" means all health care and related
services provided under the medical assistance program under
Chapter 32, Human Resources Code, and described by Section
32.003(4), Human Resources Code.
Sec. 266.002. CONSTRUCTION WITH OTHER LAW. This chapter
does not limit the right to consent to medical, dental,
psychological, and surgical treatment under Chapter 32.
Sec. 266.003. MEDICAL SERVICES FOR CHILD ABUSE AND NEGLECT
VICTIMS. (a) The commission shall collaborate with health care
and child welfare professionals to design a comprehensive,
cost-effective medical services delivery model, either directly or
by contract, to meet the needs of children served by the department.
The medical services delivery model must include:
(1) the designation of health care facilities with
expertise in the forensic assessment, diagnosis, and treatment of
child abuse and neglect as pediatric centers of excellence;
(2) a statewide telemedicine system to link department
investigators and caseworkers with pediatric centers of excellence
or other medical experts for consultation;
(3) identification of a medical home for each foster
child on entering foster care at which the child will receive an
initial comprehensive assessment as well as preventive treatments,
acute medical services, and therapeutic and rehabilitative care to
meet the child's ongoing physical and mental health needs
throughout the duration of the child's stay in foster care;
(4) the development and implementation of health
passports as described in Section 266.006;
(5) establishment and use of a management information
system that allows monitoring of medical care that is provided to
all children in foster care;
(6) the use of medical advisory committees and medical
review teams, as appropriate, to establish treatment guidelines and
criteria by which individual cases of medical care provided to
children in foster care will be identified for further, in-depth
review;
(7) development of the training program described by
Section 266.004(h);
(8) provision for the summary of medical care
described by Section 266.007; and
(9) provision for the participation of the person
authorized to consent to medical care for a child in foster care in
each appointment of the child with the provider of medical care.
(b) The commission shall collaborate with health and human
services agencies, community partners, the health care community,
and federal health and social services programs to maximize
services and benefits available under this section.
(c) The executive commissioner shall adopt rules necessary
to implement this chapter.
Sec. 266.004. CONSENT FOR MEDICAL CARE. (a) Medical care
may not be provided to a child in foster care unless the person
authorized by this section has provided consent.
(b) Except as provided by Section 266.010, the court may
authorize the following persons to consent to medical care for a
foster child:
(1) an individual designated by name in an order of the
court, including the child's foster parent or the child's parent, if
the parent's rights have not been terminated and the court
determines that it is in the best interest of the parent's child to
allow the parent to make medical decisions on behalf of the child;
or
(2) the department or an agent of the department.
(c) If the person authorized by the court to consent to
medical care is the department or an agent of the department, the
department shall, not later than the fifth business day after the
date the court provides authorization, file with the court and each
party the name of the individual who will exercise the duty and
responsibility of providing informed consent on behalf of the
department. If that individual changes, the department shall file
notice of the change with the court and each party not later than
the fifth business day after the date of the change.
(d) A physician or other provider of medical care acting in
good faith may rely on the representation by a person that the
person has the authority to consent to the provision of medical care
to a foster child as provided by Subsection (b).
(e) The department, a person authorized to consent to
medical care under Subsection (b), the child's parent if the
parent's rights have not been terminated, a guardian ad litem or
attorney ad litem if one has been appointed, or the person providing
foster care to the child may petition the court for any order
related to medical care for a foster child that the department or
other person believes is in the best interest of the child. Notice
of the petition must be given to each person entitled to notice
under Section 263.301(b).
(f) If a physician who has examined or treated the foster
child has concerns regarding the medical care provided to the
foster child, the physician may file a letter with the court stating
the reasons for the physician's concerns. The court shall provide a
copy of the letter to each person entitled to notice under Section
263.301(b).
(g) On its own motion or in response to a petition under
Subsection (e) or Section 266.010, the court may issue any order
related to the medical care of a foster child that the court
determines is in the best interest of the child.
(h) Notwithstanding Subsection (b), a person may not be
authorized to consent to medical care provided to a foster child
unless the person has completed a department-approved training
program related to informed consent and the provision of all areas
of medical care as defined by Section 266.001. This subsection does
not apply to a parent whose rights have not been terminated unless
the court orders the parent to complete the training.
(i) The person authorized under Subsection (b) to consent to
medical care of a foster child shall participate in each
appointment of the child with the provider of the medical care.
(j) Nothing in this section requires the identity of a
foster parent to be publicly disclosed.
Sec. 266.005. PARENTAL NOTIFICATION OF SIGNIFICANT MEDICAL
CONDITIONS. (a) In this section, "significant medical condition"
means an injury or illness that is life-threatening or has
potentially serious long-term health consequences, including
hospitalization for surgery or other procedures, except minor
emergency care.
(b) Except as provided by Subsection (c), the department
shall make reasonable efforts to notify the child's parents within
24 hours of a significant medical condition involving a foster
child.
(c) The department is not required to provide notice under
Subsection (b) to a parent who:
(1) has failed to give the department current contact
information and cannot be located;
(2) has executed an affidavit of relinquishment of
parental rights;
(3) has had the parent's parental rights terminated;
or
(4) has had access to medical information otherwise
restricted by the court.
Sec. 266.006. HEALTH PASSPORT. (a) The commission, in
conjunction with the department, and with the assistance of
physicians and other health care providers experienced in the care
of foster children and children with disabilities and with the use
of electronic health records, shall develop and provide a health
passport for each foster child. The passport must be maintained in
an electronic format and use the commission's and the department's
existing computer resources to the greatest extent possible.
(b) The executive commissioner shall adopt rules specifying
the information required to be included in the passport. The
required information may include:
(1) the name and address of each of the child's
physicians and health care providers;
(2) a record of each visit to a physician or other
health care provider, including routine checkups conducted in
accordance with the Texas Health Steps program;
(3) an immunization record that may be exchanged with
ImmTrac;
(4) a list of the child's known health problems and
allergies;
(5) information on all medications prescribed to the
child in adequate detail to permit refill of prescriptions,
including the disease or condition that the medication treats; and
(6) any other available health history that physicians
and other health care providers who provide care for the child
determine is important.
(c) The system used to access the health passport must be
secure and maintain the confidentiality of the child's health
records.
(d) Health passport information shall be part of the
department's record for the child as long as the child remains in
foster care.
(e) The commission shall provide training or instructional
materials to foster parents, physicians, and other health care
providers regarding use of the health passport.
(f) The department shall make health passport information
available in printed and electronic formats to the following
individuals when a child is discharged from foster care:
(1) the child's legal guardian, managing conservator,
or parent; or
(2) the child, if the child is at least 18 years of age
or has had the disabilities of minority removed.
Sec. 266.007. JUDICIAL REVIEW OF MEDICAL CARE. (a) At
each hearing under Chapter 263, or more frequently if ordered by the
court, the court shall review a summary of the medical care provided
to the foster child since the last hearing. The summary must
include information regarding:
(1) the nature of any emergency medical care provided
to the child and the circumstances necessitating emergency medical
care, including any injury or acute illness suffered by the child;
(2) all medical and mental health treatment that the
child is receiving and the child's progress with the treatment;
(3) any medication prescribed for the child and the
condition, diagnosis, and symptoms for which the medication was
prescribed and the child's progress with the medication;
(4) the degree to which the child or foster care
provider has complied or failed to comply with any plan of medical
treatment for the child;
(5) any adverse reaction to or side effects of any
medical treatment provided to the child;
(6) any specific medical condition of the child that
has been diagnosed or for which tests are being conducted to make a
diagnosis;
(7) any activity that the child should avoid or should
engage in that might affect the effectiveness of the treatment,
including physical activities, other medications, and diet; and
(8) other information required by department rule or
by the court.
(b) At or before each hearing under Chapter 263, the
department shall provide the summary of medical care described by
Subsection (a) to:
(1) the court;
(2) the person authorized to consent to medical
treatment for the child;
(3) the guardian ad litem or attorney ad litem, if one
has been appointed by the court;
(4) the child's parent, if the parent's rights have not
been terminated; and
(5) any other person determined by the department or
the court to be necessary or appropriate for review of the provision
of medical care to foster children.
(c) At each hearing under Chapter 263, the foster child
shall be provided the opportunity to express to the court the
child's views on the medical care being provided to the child.
Sec. 266.008. EDUCATION PASSPORT. (a) The commission
shall develop an education passport for each foster child. The
commission, in conjunction with the department, shall determine the
format of the passport. The passport may be maintained in an
electronic format. The passport must contain educational records
of the child, including the names and addresses of educational
providers, the child's grade-level performance, and any other
educational information the commission determines is important.
(b) The department shall maintain the passport as part of
the department's records for the child as long as the child remains
in foster care.
(c) The department shall make the passport available to the
person authorized to consent to medical care for the foster child
and to a provider of medical care to the foster child if access to
the foster child's educational information is necessary to the
provision of medical care and is not prohibited by law.
(d) The department and the commission shall collaborate
with the Texas Education Agency to develop policies and procedures
to ensure that the needs of foster children are met in every school
district.
Sec. 266.009. PROVISION OF MEDICAL CARE IN EMERGENCY.
(a) Consent or court authorization for the medical care of a
foster child otherwise required by this chapter is not required in
an emergency during which it is immediately necessary to provide
medical care to the foster child to prevent the imminent
probability of death or substantial bodily harm to the child or
others, including circumstances in which:
(1) the child is overtly or continually threatening or
attempting to commit suicide or cause serious bodily harm to the
child or others; or
(2) the child is exhibiting the sudden onset of a
medical condition manifesting itself by acute symptoms of
sufficient severity, including severe pain, such that the absence
of immediate medical attention could reasonably be expected to
result in placing the child's health in serious jeopardy, serious
impairment of bodily functions, or serious dysfunction of any
bodily organ or part.
(b) The physician providing the medical care or designee
shall notify the person authorized to consent to medical care for a
foster child about the decision to provide medical care without
consent or court authorization in an emergency not later than the
second business day after the date of the provision of medical care
under this section. This notification must be documented in the
foster child's health passport.
(c) This section does not apply to the administration of
medication under Subchapter G, Chapter 574, Health and Safety Code,
to a foster child who is at least 16 years of age and who is placed
in an inpatient mental health facility.
Sec. 266.010. CONSENT TO MEDICAL CARE BY FOSTER CHILD AT
LEAST 16 YEARS OF AGE. (a) A foster child who is at least 16 years
of age may consent to the provision of medical care, except as
provided by Chapter 33, if the court with continuing jurisdiction
determines that the child has the capacity to consent to medical
care. If the child provides consent by signing a consent form, the
form must be written in language the child can understand.
(b) A court with continuing jurisdiction may make the
determination regarding the foster child's capacity to consent to
medical care during a hearing under Chapter 263 or may hold a
hearing to make the determination on its own motion. The court may
issue an order authorizing the child to consent to all or some of
the medical care as defined by Section 266.001. In addition, a
foster child who is at least 16 years of age, or the foster child's
attorney ad litem, may file a petition with the court for a hearing.
If the court determines that the foster child lacks the capacity to
consent to medical care, the court may consider whether the foster
child has acquired the capacity to consent to medical care at
subsequent hearings under Section 263.503.
(c) If the court determines that a foster child lacks the
capacity to consent to medical care, the person authorized by the
court under Section 266.004 shall continue to provide consent for
the medical care of the foster child.
(d) If a foster child who is at least 16 years of age and who
has been determined to have the capacity to consent to medical care
refuses to consent to medical care and the department or private
agency providing substitute care or case management services to the
child believes that the medical care is appropriate, the department
or the private agency may file a motion with the court requesting an
order authorizing the provision of the medical care.
(e) The motion under Subsection (d) must include:
(1) the child's stated reasons for refusing the
medical care; and
(2) a statement prepared and signed by the treating
physician that the medical care is the proper course of treatment
for the foster child.
(f) If a motion is filed under Subsection (d), the court
shall appoint an attorney ad litem for the foster child if one has
not already been appointed. The foster child's attorney ad litem
shall:
(1) discuss the situation with the child;
(2) discuss the suitability of the medical care with
the treating physician;
(3) review the child's medical and mental health
records; and
(4) advocate to the court on behalf of the child's
expressed preferences regarding the medical care.
(g) The court shall issue an order authorizing the provision
of the medical care in accordance with a motion under Subsection (d)
to the foster child only if the court finds, by clear and convincing
evidence, after the hearing that the medical care is in the best
interest of the foster child and:
(1) the foster child lacks the capacity to make a
decision regarding the medical care;
(2) the failure to provide the medical care will
result in an observable and material impairment to the growth,
development, or functioning of the foster child; or
(3) the foster child is at risk of suffering
substantial bodily harm or of inflicting substantial bodily harm to
others.
(h) In making a decision under this section regarding
whether a foster child has the capacity to consent to medical care,
the court shall consider:
(1) the maturity of the child;
(2) whether the child is sufficiently well informed to
make a decision regarding the medical care; and
(3) the child's intellectual functioning.
(i) In determining whether the medical care is in the best
interest of the foster child, the court shall consider:
(1) the foster child's expressed preference regarding
the medical care, including perceived risks and benefits of the
medical care;
(2) likely consequences to the foster child if the
child does not receive the medical care;
(3) the foster child's prognosis, if the child does
receive the medical care; and
(4) whether there are alternative, less intrusive
treatments that are likely to reach the same result as provision of
the medical care.
(j) This section does not apply to emergency medical care.
An emergency relating to a foster child who is at least 16 years of
age, other than a child in an inpatient mental health facility, is
governed by Section 266.009.
(k) This section does not apply to the administration of
medication under Subchapter G, Chapter 574, Health and Safety Code,
to a foster child who is at least 16 years of age and who is placed
in an inpatient mental health facility.
(l) Before a foster child reaches the age of 16, the
department or the private agency providing substitute care or case
management services to the foster child shall advise the foster
child of the right to a hearing under this section to determine
whether the foster child may consent to medical care. The
department or the private agency providing substitute care or case
management services shall provide the foster child with training on
informed consent and the provision of medical care as part of the
Preparation for Adult Living Program.
Sec. 266.011. STUDY OF INCENTIVES TO PRESCRIBE PSYCHOTROPIC
DRUGS. (a) The department shall study the level of care system the
department uses to determine a child's foster care needs to
ascertain whether the system creates incentives for prescribing
psychotropic medications to children in foster care.
(b) No later than October 1, 2006, the department shall
report the results of the study to the legislature. The report must
include the department's proposed changes to the level of care
system.
(c) This section expires January 1, 2007.
(b) Not later than September 1, 2007, the Department of
Family and Protective Services shall implement the health passport
required by Section 266.006, Family Code, as added by this section.
(c) The Health and Human Services Commission is required to
develop and implement the education passport program required by
Section 266.008, Family Code, as added by this section, if the
legislature appropriates money specifically for that purpose. If
the legislature does not appropriate money specifically for that
purpose, the commission may, but is not required to, develop and
implement the education passport program using other
appropriations available for that purpose. In addition, the
commission may develop and implement the education passport program
required by Section 266.008, Family Code, as added by this section,
only if technology necessary to ensure privacy is available.
(d) If the Health and Human Services Commission develops and
implements the education passport program required by Section
266.008, Family Code, as added by this section, the commission
shall finalize the form and content of the passport not later than
March 1, 2006.
SECTION 1.66. Section 51.961, Government Code, is amended
to read as follows:
Sec. 51.961. FAMILY PROTECTION FEE. (a) The commissioners
court of a county shall [may] adopt a family protection fee in an
amount not to exceed $30 [$15].
(b) Except as provided by Subsection (c), the district clerk
or county clerk shall collect the family protection fee at the time
a suit for dissolution of a marriage under Chapter 6, Family Code,
is filed. The fee is in addition to any other fee collected by the
district clerk or county clerk.
(c) The clerk may not collect a fee under this section from a
person who is protected by an order issued under:
(1) Subtitle B, Title 4, Family Code; or
(2) Article 17.292, Code of Criminal Procedure.
(d) The clerk shall pay one-half of the [a] fee collected
under this section to the appropriate officer of the county in which
the suit is filed for deposit in the county treasury to the credit
of the family protection account. The account may be used by the
commissioners court of the county only to fund a service provider
located in that county or an adjacent county. The commissioners
court may provide funding to a nonprofit organization that provides
services described by Subsection (e).
(e) A service provider who receives funds under Subsection
(d) may provide family violence and child abuse prevention,
intervention, family strengthening, mental health, counseling,
legal, and marriage preservation services to families that are at
risk of experiencing or that have experienced family violence or
the abuse or neglect of a child.
(f) In this section, "family violence" has the meaning
assigned by Section 71.004, Family Code.
(g) The clerk shall pay one-half of the fee collected under
this section to the comptroller, who shall deposit the money to the
credit of the child abuse and neglect prevention trust fund account
established under Section 40.105, Human Resources Code.
SECTION 1.67. Section 101.061, Government Code, is amended
to read as follows:
Sec. 101.061. DISTRICT COURT FEES AND COSTS. The clerk of a
district court shall collect fees and costs as follows:
(1) filing fee in action with respect to a fraudulent
court record or fraudulent lien or claim filed against property
(Sec. 12.005, Civil Practice and Remedies Code) . . . $15;
(2) fee for service of notice of action with respect to
a fraudulent court record or fraudulent lien or claim filed against
property (Sec. 12.005, Civil Practice and Remedies Code) . . . not
to exceed $20, if notice delivered in person, or the cost of
postage, if service is by registered or certified mail;
(3) court cost in certain civil cases to establish and
maintain an alternative dispute resolution system, if authorized by
the county commissioners court (Sec. 152.004, Civil Practice and
Remedies Code) . . . not to exceed $10;
(4) appellate judicial system filing fees for:
(A) First or Fourteenth Court of Appeals District
(Sec. 22.2021, Government Code) . . . not more than $5;
(B) Second Court of Appeals District (Sec.
22.2031, Government Code) . . . not more than $5;
(C) Fourth Court of Appeals District (Sec.
22.2051, Government Code) . . . not more than $5;
(D) Fifth Court of Appeals District (Sec.
22.2061, Government Code) . . . not more than $5; and
(E) Thirteenth Court of Appeals District (Sec.
22.2141, Government Code) . . . not more than $5;
(5) additional filing fees:
(A) for each suit filed for insurance contingency
fund, if authorized by the county commissioners court (Sec. 51.302,
Government Code) . . . not to exceed $5;
(B) for each civil suit filed, for court-related
purposes for the support of the judiciary and for civil legal
services to an indigent:
(i) for family law cases and proceedings as
defined by Section 25.0002, Government Code (Sec. 133.151, Local
Government Code) . . . $45; or
(ii) for any case other than a case
described by Subparagraph (i) (Sec. 133.151, Local Government
Code) . . . $50;
(C) to fund the improvement of Dallas County
civil court facilities, if authorized by the county commissioners
court (Sec. 51.705, Government Code) . . . not more than $15; and
(D) on the filing of any civil action or
proceeding requiring a filing fee, including an appeal, and on the
filing of any counterclaim, cross-action, intervention,
interpleader, or third-party action requiring a filing fee, to fund
civil legal services for the indigent:
(i) for family law cases and proceedings as
defined by Section 25.0002, Government Code (Sec. 133.152, Local
Government Code) . . . $5; or
(ii) for any case other than a case
described by Subparagraph (i) (Sec. 133.152, Local Government
Code) . . . $10;
(6) for filing a suit, including an appeal from an
inferior court:
(A) for a suit with 10 or fewer plaintiffs (Sec.
51.317, Government Code) . . . $50;
(B) for a suit with at least 11 but not more than
25 plaintiffs (Sec. 51.317, Government Code) . . . $75;
(C) for a suit with at least 26 but not more than
100 plaintiffs (Sec. 51.317, Government Code) . . . $100;
(D) for a suit with at least 101 but not more than
500 plaintiffs (Sec. 51.317, Government Code) . . . $125;
(E) for a suit with at least 501 but not more than
1,000 plaintiffs (Sec. 51.317, Government Code) . . . $150; or
(F) for a suit with more than 1,000 plaintiffs
(Sec. 51.317, Government Code) . . . $200;
(7) for filing a cross-action, counterclaim,
intervention, contempt action, motion for new trial, or third-party
petition (Sec. 51.317, Government Code) . . . $15;
(8) for issuing a citation or other writ or process not
otherwise provided for, including one copy, when requested at the
time a suit or action is filed (Sec. 51.317, Government
Code) . . . $8;
(9) for records management and preservation (Sec.
51.317, Government Code) . . . $10;
(10) for issuing a subpoena, including one copy (Sec.
51.318, Government Code) . . . $8;
(11) for issuing a citation, commission for
deposition, writ of execution, order of sale, writ of execution and
order of sale, writ of injunction, writ of garnishment, writ of
attachment, or writ of sequestration not provided for in Section
51.317, or any other writ or process not otherwise provided for,
including one copy if required by law (Sec. 51.318, Government
Code) . . . $8;
(12) for searching files or records to locate a cause
when the docket number is not provided (Sec. 51.318, Government
Code) . . . $5;
(13) for searching files or records to ascertain the
existence of an instrument or record in the district clerk's office
(Sec. 51.318, Government Code) . . . $5;
(14) for abstracting a judgment (Sec. 51.318,
Government Code) . . . $8;
(15) for approving a bond (Sec. 51.318, Government
Code) . . . $4;
(16) for a certified copy of a record, judgment,
order, pleading, or paper on file or of record in the district
clerk's office, including certificate and seal, for each page or
part of a page (Sec. 51.318, Government Code) . . . $1;
(17) for a noncertified copy, for each page or part of
a page (Sec. 51.318, Government Code) . . . not to exceed $1;
(18) jury fee (Sec. 51.604, Government
Code) . . . $30;
(19) for filing a report of divorce or annulment (Sec.
194.002, Health and Safety Code) . . . $1;
(20) for filing a suit in Comal County (Sec. 152.0522,
Human Resources Code) . . . $4;
(21) additional filing fee for family protection on
filing a suit for dissolution of a marriage under Chapter 6, Family
Code, if authorized by the county commissioners court (Sec. 51.961,
Government Code) . . . not to exceed $30 [$15];
(22) fee on filing a suit for dissolution of a marriage
for services of child support department in Harris County, if
authorized by the county commissioners court (Sec. 152.1074, Human
Resources Code) . . . not to exceed $12;
(23) fee on filing a suit requesting an adoption in
Montague County (Sec. 152.1752, Human Resources Code) . . . $25;
(24) court cost on citation for contempt of court for
failure to comply with child support order in Nueces County, if
authorized by the commissioners court (Sec. 152.1844, Human
Resources Code) . . . not to exceed $10;
(25) fee on filing a suit for divorce in Orange County
(Sec. 152.1873, Human Resources Code) . . . not less than $5;
(26) court costs on citation for contempt of court in
Orange County for failure to comply with a child support order or
order providing for possession of or access to a child (Sec.
152.1873, Human Resources Code) . . . amount determined by
district clerk;
(27) fee on filing a suit requesting an adoption in
Orange County (Sec. 152.1874, Human Resources Code) . . . not less
than $25;
(28) fee on filing a suit requesting an adoption in
Wichita County (Sec. 152.2496, Human Resources Code) . . . $100;
(29) additional filing fee to fund the courthouse
security fund, if authorized by the county commissioners court
(Sec. 291.008, Local Government Code) . . . not to exceed $5;
(30) additional filing fee for filing documents not
subject to certain filing fees to fund the courthouse security
fund, if authorized by the county commissioners court (Sec.
291.008, Local Government Code) . . . $1;
(31) additional filing fee to fund the courthouse
security fund in Webb County, if authorized by the county
commissioners court (Sec. 291.009, Local Government
Code) . . . not to exceed $20;
(32) court cost in civil cases other than suits for
delinquent taxes to fund the county law library fund, if authorized
by the county commissioners court (Sec. 323.023, Local Government
Code) . . . not to exceed $35;
(33) when administering a case for the Rockwall County
Court at Law (Sec. 25.2012, Government Code) . . . civil fees and
court costs as if the case had been filed in district court;
(34) at a hearing held by an associate judge in Dallas
County, a court cost to preserve the record, in the absence of a
court reporter, by other means (Sec. 54.509, Government
Code) . . . as assessed by the referring court or associate judge;
and
(35) at a hearing held by an associate judge in Duval
County, a court cost to preserve the record (Sec. 54.1151,
Government Code, as added by Chapter 1150, Acts of the 78th
Legislature, Regular Session, 2003) . . . as imposed by the
referring court or associate judge.
SECTION 1.68. Section 102.021, Government Code, is amended
to read as follows:
Sec. 102.021. COURT COSTS ON CONVICTION. A person
convicted of an offense shall pay, in addition to all other costs:
(1) court costs on conviction of a felony (Sec.
133.102, Local Government Code) . . . $133;
(2) court costs on conviction of a Class A or Class B
misdemeanor (Sec. 133.102, Local Government Code) . . . $83;
(3) court costs on conviction of a nonjailable
misdemeanor offense, including a criminal violation of a municipal
ordinance, other than a conviction of an offense relating to a
pedestrian or the parking of a motor vehicle (Sec. 133.102, Local
Government Code) . . . $40;
(4) court costs on certain convictions in statutory
county courts (Sec. 51.702, Government Code) . . . $15;
(5) court costs on certain convictions in certain
county courts (Sec. 51.703, Government Code) . . . $15;
(6) a time payment fee if convicted of a felony or
misdemeanor for paying any part of a fine, court costs, or
restitution on or after the 31st day after the date on which a
judgment is entered assessing the fine, court costs, or restitution
(Sec. 133.103, Local Government Code) . . . $25;
(7) a fee for services of prosecutor (Art. 102.008,
Code of Criminal Procedure) . . . $25;
(8) fees for services of peace officer:
(A) issuing a written notice to appear in court
for certain violations (Art. 102.011, Code of Criminal
Procedure) . . . $5;
(B) executing or processing an issued arrest
warrant or capias (Art. 102.011, Code of Criminal
Procedure) . . . $50;
(C) summoning a witness (Art. 102.011, Code of
Criminal Procedure) . . . $5;
(D) serving a writ not otherwise listed (Art.
102.011, Code of Criminal Procedure) . . . $35;
(E) taking and approving a bond and, if
necessary, returning the bond to courthouse (Art. 102.011, Code of
Criminal Procedure) . . . $10;
(F) commitment or release (Art. 102.011, Code of
Criminal Procedure) . . . $5;
(G) summoning a jury (Art. 102.011, Code of
Criminal Procedure) . . . $5;
(H) attendance of a prisoner in habeas corpus
case if prisoner has been remanded to custody or held to bail (Art.
102.011, Code of Criminal Procedure) . . . $8 each day;
(I) mileage for certain services performed (Art.
102.011, Code of Criminal Procedure) . . . $0.29 per mile; and
(J) services of a sheriff or constable who serves
process and attends examining trial in certain cases (Art. 102.011,
Code of Criminal Procedure) . . . not to exceed $5;
(9) services of a peace officer in conveying a witness
outside the county (Art. 102.011, Code of Criminal
Procedure) . . . $10 per day or part of a day, plus actual
necessary travel expenses;
(10) overtime of peace officer for time spent
testifying in the trial or traveling to or from testifying in the
trial (Art. 102.011, Code of Criminal Procedure) . . . actual
cost;
(11) court costs on an offense relating to rules of the
road, when offense occurs within a school crossing zone (Art.
102.014, Code of Criminal Procedure) . . . $25;
(12) court costs on an offense of passing a school bus
(Art. 102.014, Code of Criminal Procedure) . . . $25;
(13) court costs on an offense of truancy or
contributing to truancy (Art. 102.014, Code of Criminal
Procedure) . . . $20;
(14) cost for visual recording of intoxication arrest
before conviction (Art. 102.018, Code of Criminal
Procedure) . . . $15;
(15) cost of certain evaluations (Art. 102.018, Code
of Criminal Procedure) . . . actual cost;
(16) additional costs attendant to certain
intoxication convictions under Chapter 49, Penal Code, for
emergency medical services, trauma facilities, and trauma care
systems (Art. 102.0185, Code of Criminal Procedure) . . . $100;
(16-a) additional costs attendant to certain child
sexual assault and related convictions, for child abuse prevention
programs (Art. 102.0186, Code of Criminal Procedure) . . . $100;
(17) cost for DNA testing for certain felonies (Art.
102.020, Code of Criminal Procedure) . . . $250;
(18) court cost on an offense of public lewdness or
indecent exposure (Art. 102.020, Code of Criminal
Procedure) . . . $50;
(19) court cost on conviction of a misdemeanor under
Subtitle C, Title 7, Transportation Code (Sec. 542.403,
Transportation Code) . . . $3;
(20) cost for impoundment of vehicle (Sec. 601.263,
Transportation Code) . . . $15 per day; and
(21) a civil and criminal enforcement cost on
conviction of an offense of, or related to, the nonpayment of a toll
in certain counties (Sec. 284.2031, Transportation Code) . . . $1.
SECTION 1.69. Subdivision (2), Subsection (a), Section
411.114, Government Code, is amended to read as follows:
(2) The Department of Family and Protective [and
Regulatory] Services 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,
or Chapter 249, Health and Safety Code[, or a person who registers
with or has been issued a certificate to operate under
accreditation by the Department of Protective and Regulatory
Services under Subchapter E, 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, family home, or maternity home licensed, registered,
certified, or listed under Chapter 42, Human Resources Code, or
Chapter 249, Health and Safety Code[, or by a child-care facility or
child-placing agency that is seeking to register with or has been
issued a certificate to operate under accreditation by the
Department of Protective and Regulatory Services under Subchapter
E, 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 child-care
facility, family home, or maternity home while children are being
provided care, other than a child in the care of the home or
facility;
(D) an applicant selected for a position with the
Department of Family and Protective [and Regulatory] Services, 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 [and Regulatory] Services 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 [and Regulatory] Services;
(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 [and Regulatory] Services and
other persons living in the residence in which the child will
reside;
(H) a Department of Family and Protective [and
Regulatory] Services employee who is engaged in the direct delivery
of protective services to children, elderly persons, or persons
with a disability;
(I) a person who is the subject of a report the
Department of Family and Protective [and Regulatory] Services
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 statutory definition of abuse,
neglect, or exploitation under Chapter 261, Family Code, or Chapter
48, Human Resources Code; and
(ii) the person who is the subject of the
report 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 [and
Regulatory] Services 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 children, elderly persons, or persons with a
disability; or
(L) an applicant for a child-care administrator
or child-placing agency administrator license under Chapter 43
[seeking accreditation as provided by Section 43.003], Human
Resources Code.
SECTION 1.70. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.078 to read as follows:
Sec. 531.078. POOLED FUNDING FOR FOSTER CARE PREVENTIVE
SERVICES. (a) The commission and the Department of Family and
Protective Services shall develop and implement a plan to combine,
to the extent and in the manner allowed by Section 51, Article III,
Texas Constitution, and other applicable law, funds of those
agencies with funds of other appropriate state agencies and local
governmental entities to provide services designed to prevent
children from being placed in foster care. The preventive services
may include:
(1) child and family counseling;
(2) instruction in parenting and homemaking skills;
(3) parental support services;
(4) temporary respite care; and
(5) crisis services.
(b) The plan must provide for:
(1) state funding to be distributed to other state
agencies, local governmental entities, or private entities only as
specifically directed by the terms of a grant or contract to provide
preventive services;
(2) procedures to ensure that funds received by the
commission by gift, grant, or interagency or interlocal contract
from another state agency, a local governmental entity, the federal
government, or any other public or private source for purposes of
this section are disbursed in accordance with the terms under which
the commission received the funds; and
(3) a reporting mechanism to ensure appropriate use of
funds.
(c) For the purposes of this section, the commission may
request and accept gifts and grants under the terms of a gift,
grant, or contract from a local governmental entity, a private
entity, or any other public or private source for use in providing
services designed to prevent children from being placed in foster
care. If required by the terms of a gift, grant, or contract or by
applicable law, the commission shall use the amounts received:
(1) from a local governmental entity to provide the
services in the geographic area of this state in which the entity is
located; and
(2) from the federal government or a private entity to
provide the services statewide or in a particular geographic area
of this state.
(b) Not later than November 1, 2006, the Health and Human
Services Commission shall provide to the governor and the
Legislative Budget Board a report on the status and progress of the
preventive services funding plan required by Section 531.078,
Government Code, as added by this section.
SECTION 1.71. Section 651.004, Government Code, is amended
by adding Subsection (e) to read as follows:
(e) The Department of Family and Protective Services is not
required to comply with management-to-staff ratio requirements of
this section with respect to caseworker supervisors, program
directors, and program administrators.
SECTION 1.72. (a) Subchapter C, Chapter 2155, Government
Code, is amended by adding Section 2155.1442 to read as follows:
Sec. 2155.1442. FOSTER CARE RESIDENTIAL CONTRACT
MANAGEMENT. (a) Subject to Subsection (e), the state auditor
shall conduct a management review of the residential contract
management employees of the Health and Human Services Commission
and the Department of Family and Protective Services and make
recommendations regarding the organization of, and skills and
educational requirements for, those employees. The state auditor
shall also make recommendations regarding the implementation of
financial accountability provisions and processes to ensure
effective and efficient expenditure of state and other contract
funds. The state auditor shall report annually to the governor, the
lieutenant governor, the speaker of the house of representatives,
and the comptroller on the auditor's recommendations and the
commission's and department's implementation of each
recommendation.
(b) The Health and Human Services Commission shall contract
with the state auditor to perform on-site financial audits of
selected residential contractors as necessary. The state auditor,
in consultation with the commission, shall select the contractors
to audit based on the contract's risk assessment rating,
allegations of fraud or misuse of state or other contract funds, or
other appropriate audit selection criteria. The residential
contractors selected to be audited must be included in the audit
plan and approved by the legislative audit committee under Section
321.013.
(c) The Department of Family and Protective Services shall
require that all files related to contracts for residential care of
foster children:
(1) be complete and accurately reflect the
contractor's actual updated contract performance; and
(2) be maintained in accordance with the department's
record retention procedures and made available to the state auditor
when requested.
(d) Subject to the availability of funds appropriated for
the purpose, the Department of Family and Protective Services may
develop an Internet-based system to enable residential contractors
to review their reimbursement accounts or other pertinent financial
data and reconcile their accounts.
(e) Work performed under Subsections (a) and (b) by the
state auditor is subject to approval by the legislative audit
committee for inclusion in the audit plan under Section 321.013(c).
(b) Section 2155.1442, Government Code, as added by this
section, applies only to a contract that is entered into or renewed
on or after the effective date of this section. A contract entered
into or renewed before that date is governed by the law in effect on
the date the contract is entered into or renewed, and the former law
is continued in effect for that purpose.
(c) Not later than December 1, 2005, the state auditor shall
complete and publish the management review and report required by
Subsection (a), Section 2155.1442, Government Code, as added by
this section. This subsection applies only if the auditor's work is
approved by the legislative audit committee in time to meet this
deadline.
(d) Not later than October 1, 2011, the state auditor shall
begin the on-site financial reviews of selected contractors
required by Subsection (b), Section 2155.1442, Government Code, as
added by this section.
SECTION 1.73. The heading to Subtitle D, Title 2, Human
Resources Code, is amended to read as follows:
SUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
SERVICES; CHILD WELFARE AND PROTECTIVE SERVICES
SECTION 1.74. The heading to Chapter 40, Human Resources
Code, is amended to read as follows:
CHAPTER 40. DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
SERVICES
SECTION 1.75. Subdivisions (3) and (5), Section 40.001,
Human Resources Code, are amended to read as follows:
(3) "Department" means the Department of Family and
Protective [and Regulatory] Services.
(5) "Family preservation" includes the provision of
services designed to assist families, including adoptive and
extended families, who are at risk or in crisis, including:
(A) preventive services designed to help a child
at risk of foster care placement remain safely with the child's
family; and
(B) services designed to help a child return,
when the return is safe and appropriate, to the family from which
the child was removed [the protection of parents and their children
from needless family disruption because of unfounded accusations of
child abuse or neglect. It does not include the provision of state
social services for the rehabilitation of parents convicted of
abusing or neglecting their children].
SECTION 1.76. Subsection (b), Section 40.002, Human
Resources Code, is amended to read as follows:
(b) Notwithstanding any other law, the department shall:
(1) provide protective services for children and
elderly and disabled persons, including investigations of alleged
abuse, neglect, or exploitation in facilities of the Texas
Department of Mental Health and Mental Retardation or its successor
agency;
(2) provide family support and family preservation
services that respect the fundamental right of parents to control
the education and upbringing of their children;
(3) license, register, and enforce regulations
applicable to child-care facilities, [and] child-care
administrators, and child-placing agency administrators; and
(4) implement and manage programs intended to provide
early intervention or prevent at-risk behaviors that lead to child
abuse, delinquency, running away, truancy, and dropping out of
school.
SECTION 1.77. Section 40.003, Human Resources Code, is
amended to read as follows:
Sec. 40.003. SUNSET PROVISION. The Department of Family
and Protective [and Regulatory] Services is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the department is abolished and this
chapter expires September 1, 2009.
SECTION 1.78. Section 40.030, Human Resources Code, is
amended to read as follows:
Sec. 40.030. ADVISORY COMMITTEES. The executive
commissioner or the executive commissioner's designee [board] may
appoint advisory committees in accordance with Chapter 2110,
Government Code [Article 6252-33, Revised Statutes].
SECTION 1.79. The heading to Section 40.0305, Human
Resources Code, is amended to read as follows:
Sec. 40.0305. STRATEGIC USE OF TECHNOLOGY [STEERING
COMMITTEE].
SECTION 1.80. Subsections (a), (d), and (e), Section
40.0305, Human Resources Code, are amended to read as follows:
(a) The department shall continually explore the strategic
use of technology as a means to improve services, reduce workload
burdens, increase accountability, and enhance the overall
efficiency and effectiveness of department operations. The
department shall develop strategic plans and seek funding to
implement technology enhancements that the department determines
are feasible and cost-effective [establish a strategic technology
steering committee within the department to evaluate major
information technology project proposals].
(d) In evaluating major information technology project
proposals, the department, in cooperation with the commission,
[steering committee] shall:
(1) assess the major information needs of the
department;
(2) define standard criteria for setting priorities
for the department's information needs;
(3) forecast the returns to the department on project
investments;
(4) evaluate the department's available information
resources; and
(5) review, approve, and evaluate the status of
projected costs and benefits related to project proposals.
(e) To the extent that funds are appropriated for these
specific purposes, the department shall implement the following
technology projects:
(1) a mobile technology project, including online
transcription services designed to:
(A) increase caseworker access to department
policy and family case history;
(B) facilitate communication between caseworkers
and supervisors;
(C) allow timely and accurate data entry; and
(D) reduce backlogged investigations; and
(2) a modified design of the department's automated
case management system to improve risk and safety assessment and
service plan development, and to facilitate incorporation of
historical case data [The steering committee shall make
recommendations to the executive director based on the committee's
performance of its duties].
SECTION 1.81. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.03051 to read as follows:
Sec. 40.03051. PAPERLESS INFORMATION EXCHANGE PILOT
PROGRAM. (a) The department shall develop and implement a pilot
program to allow the paperless exchange of information between the
department and courts with jurisdiction over child protective
services cases.
(b) The pilot program must:
(1) include one or more courts with jurisdiction over
child protective services cases; and
(2) be designed to facilitate the progression of child
protective services cases through the judicial process.
(c) The executive commissioner shall adopt rules necessary
to implement this section.
(d) Notwithstanding any other provision of this section,
the department is not required to implement the pilot program
unless funds are appropriated for that purpose.
(e) Not later than December 1, 2006, the department shall
submit a report to the governor, the lieutenant governor, and the
speaker of the house of representatives regarding the preliminary
results of the pilot program. The report must include:
(1) a description of the status of the pilot program;
(2) a description of the effects of the pilot program
on the progression of child protective services cases through the
judicial process; and
(3) an evaluation of the feasibility of expanding the
system statewide.
(f) This section expires September 1, 2009.
SECTION 1.82. Section 40.031, Human Resources Code, is
amended to read as follows:
Sec. 40.031. DIVISIONS OF DEPARTMENT. (a) The executive
commissioner [board] may establish divisions within the department
as necessary for efficient administration and for the discharge of
the department's functions.
(b) The executive commissioner shall establish an
investigations division to oversee and direct the investigation
functions of the child protective services program, including the
receipt and screening of all reports of alleged child abuse or
neglect.
(c) The commissioner shall designate a person with law
enforcement experience as the director of the investigations
division.
(d) The investigations division shall, as appropriate,
refer children and families in need of services to other department
divisions or to other persons or entities with whom the department
contracts for the provision of the needed services.
(e) Reports of alleged child abuse or neglect investigated
under Section 261.401 or 261.404, Family Code, are not subject to
investigation by the investigations division [board may allocate
and reallocate functions, programs, and activities among the
department's divisions].
SECTION 1.83. (a) Subchapter B, Chapter 40, Human
Resources Code, is amended by adding Section 40.0324 to read as
follows:
Sec. 40.0324. CASEWORKER REPLACEMENT PROGRAM. (a) To the
extent that funding is available, the department shall develop a
program to provide for the timely replacement of caseworkers with
trainees hired in anticipation of vacancies.
(b) In developing the program, the department shall
consider the turnover rate for caseworkers by region.
(b) Unless sufficient funds are not available, the
Department of Family and Protective Services shall develop the
program required under Section 40.0324, Human Resources Code, as
added by this section, not later than December 31, 2005.
SECTION 1.84. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.036 to read as follows:
Sec. 40.036. ENHANCED TRAINING OF CHILD PROTECTIVE SERVICES
CASEWORKERS. To improve the quality and consistency of training
provided to child protective services caseworkers, the department
shall:
(1) augment classroom-based training with a blended
learning environment using computer-based modules, structured
field experience, and simulation for skills development;
(2) use a core curriculum for all new department
caseworkers and specialized training for specific jobs;
(3) require that department caseworkers transferring
from one specialty to another must complete the core curriculum and
advanced training for the new specialty before assuming their new
responsibilities; and
(4) centralize accountability and oversight of all
department training in order to ensure statewide consistency.
SECTION 1.85. Subsection (c), Section 40.0525, Human
Resources Code, is amended to read as follows:
(c) Subject to Section 40.031(b), this [This] section does
not require the department to establish separate departments for
investigations and service delivery.
SECTION 1.86. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0526 to read as follows:
Sec. 40.0526. BUILDING COMMUNITY PARTNERSHIPS TO SUPPORT
CHILDREN AND FAMILIES. (a) The department shall develop a
statewide strategy to build alliances and networks at the local
level that support the detection and treatment of child abuse and
neglect and enhance the coordination and delivery of services to
children and families.
(b) The strategy must include plans to:
(1) move staff from centralized office sites into
community-based settings to the greatest extent feasible; and
(2) enter into agreements for the establishment or
development of joint offices or workplaces with local officials and
organizations, including:
(A) children's advocacy centers;
(B) law enforcement officials;
(C) prosecutors;
(D) health care providers; and
(E) domestic violence shelters.
(c) The department may employ specialized staff, to the
extent that funds are appropriated for that purpose, to serve as:
(1) local legal liaisons who support the prosecution
in each region of legal cases through the judicial system by
improving coordination and cooperation in case consultation and
preparation of cases for court; and
(2) local community initiative specialists in each
region who focus on building community alliances and networks.
(d) An agreement made in accordance with this section for
the joint location of department personnel with other local
officials or organizations is not subject to Chapter 2167,
Government Code.
SECTION 1.87. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0528 to read as follows:
Sec. 40.0528. COMPREHENSIVE STAFFING AND WORKLOAD
DISTRIBUTION PLAN FOR CHILD PROTECTIVE SERVICES. (a) The
department shall develop and implement a staffing and workload
distribution plan for the child protective services program to:
(1) reduce caseloads;
(2) enhance accountability;
(3) improve the quality of investigations;
(4) eliminate delays; and
(5) ensure the most efficient and effective use of
child protective services staff and resources.
(b) In developing and implementing the plan, the department
shall, subject to available funds:
(1) develop a methodology for the equitable
distribution of investigative and other staff to ensure an
equitable assignment of cases in each area of the state;
(2) evaluate the duties of investigators and
supervisors and identify and reassign functions that may be
performed more efficiently by support or other paraprofessional
staff;
(3) ensure that investigative and service units
contain adequate supervisory and support staff;
(4) provide incentives to recruit and retain:
(A) caseworkers and supervisors assigned to
investigative units; and
(B) specialized staff with law enforcement or
forensic investigation experience;
(5) ensure that caseworkers and supervisors who are
not in an investigations unit are paid appropriately to increase
employee retention;
(6) when appropriate, identify and use alternative
work schedules;
(7) use a system of regional hiring supervisors for
targeted recruitment efforts;
(8) improve staff recruitment and screening methods to
promote the hiring of the most qualified candidates and improve an
applicant's understanding of the job requirements;
(9) reduce the time necessary to complete a plan of
service for a child and family when providing family-based safety
services; and
(10) identify methods to reduce the administrative
area that a manager is responsible for to increase accountability.
SECTION 1.88. Section 40.058, Human Resources Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) A contract for the purchase of substitute care
services, as defined by Section 264.106, Family Code, must be
procured using:
(1) department procurement procedures; or
(2) procurement procedures approved by the executive
commissioner that promote open and fair competition.
SECTION 1.89. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Sections 40.071, 40.072, and 40.073 to
read as follows:
Sec. 40.071. DRUG-ENDANGERED CHILD INITIATIVE. The
department shall establish a drug-endangered child initiative
aimed at protecting children who are exposed to methamphetamine or
to chemicals and other hazardous materials used in the illicit
manufacture of methamphetamine.
Sec. 40.072. DUTY TO REPORT; DEPARTMENT RECORDS. (a) To
the extent that reporting does not interfere with an ongoing
criminal investigation, the Department of Public Safety and each
local law enforcement agency shall report to the department on
discovering the presence of a child in a location where
methamphetamine is manufactured.
(b) The department shall maintain a record of reports
received under this section and shall include in the record
information regarding actions taken by the department to ensure the
child's safety and well-being.
Sec. 40.073. PARENTAL ADVISORY COMMITTEE. (a) The
Parental Advisory Committee shall advise the department on policies
affecting parents and their involvement with the department,
including:
(1) investigations of allegations of abuse or neglect;
(2) designations of alternative placements for
children; and
(3) standards for persons who investigate reports of
abuse or neglect on the state or local level.
(b) The Parental Advisory Committee consists of members
appointed by the governor. The governor shall establish:
(1) the qualifications for committee members;
(2) the terms for committee members; and
(3) the number of committee members.
(c) Chapter 2110, Government Code, does not apply to the
committee.
(d) A committee member may not receive compensation for
serving on the committee but is entitled to reimbursement of travel
expenses incurred by the member while conducting the business of
the committee as provided by the General Appropriations Act.
SECTION 1.90. Section 42.002, Human Resources Code, is
amended by adding Subdivisions (18) and (19) to read as follows:
(18) "Controlling person" means a person who, either
alone or in connection with others, has the ability to directly or
indirectly influence or direct the management, expenditures, or
policies of a residential child-care facility.
(19) "Residential child-care facility" means a
facility licensed or certified by the department to provide
assessment, care, training, education, custody, treatment, or
supervision for a child who is not related by blood, marriage, or
adoption to the owner or operator of the facility, for all of the
24-hour day, whether or not the facility is operated for profit or
charges for the services it offers. The term includes child-care
institutions, child-placing agencies, foster group homes, foster
homes, agency foster group homes, and agency foster homes.
SECTION 1.91. Subsections (b) and (d), Section 42.021,
Human Resources Code, are amended to read as follows:
(b) The commissioner [executive director of the department]
shall appoint as director of a division designated under Subsection
(a) a person who meets the qualifications set by the executive
commissioner [board].
(d) The commissioner [director] may divide the state into
regions for the purpose of administering this chapter.
SECTION 1.92. Subsections (a) and (b), Section 42.023,
Human Resources Code, are amended to read as follows:
(a) The department [executive director] shall prepare an
annual written report regarding the department's activities under
this chapter.
(b) The annual report shall include:
(1) a report by regions of applications for licensure
or certification, of initial [provisional] licenses issued,
denied, or revoked, of licenses issued, denied, suspended or
revoked, of emergency closures and injunctions, and of the
compliance of state-operated agencies, if such agencies exist, with
certification requirements;
(2) a summary of the training programs required by the
department and their effectiveness [amount and kind of in-service
training and other professional development opportunities provided
for department staff];
(3) a summary of training and other professional
development opportunities offered to facilities' staffs; [and]
(4) a report of new administrative procedures, of the
number of staff and staff changes, and of plans for the coming year;
and
(5) a report of trends in licensing violations on a
statewide and regional basis and the department's plans to address
those trends through the provision of technical assistance.
SECTION 1.93. (a) Subsection (c), Section 42.041, Human
Resources Code, is amended to read as follows:
(c) A single license that lists addresses and the
appropriate facilities may be issued to a child-care institution
that operates noncontiguous facilities that are across the street
from, in the same city block as, or on the same property as one
another [nearby] and that are demonstrably a single operation as
indicated by patterns of staffing, finance, administrative
supervision, and programs.
(b) Subsection (c), Section 42.041, Human Resources Code,
as amended by this section, applies only to a license issued or
renewed on or after the effective date of this section. A license
issued or renewed before the effective date of this section is
governed by the law in effect at the time the license is issued or
renewed, and the former law is continued in effect for that purpose.
SECTION 1.94. (a) Section 42.042, Human Resources Code, is
amended by adding Subsections (h-1) and (q) to read as follows:
(h-1) The executive commissioner shall adopt rules
governing:
(1) the placement and care of children by a
child-placing agency, as necessary to ensure the health and safety
of those children;
(2) the verification and monitoring of agency foster
homes, agency foster group homes, and adoptive homes by a
child-placing agency; and
(3) if appropriate, child-placing agency staffing
levels, office locations, and administration.
(q) Each residential child-care facility shall notify the
department and the appropriate local law enforcement agency
immediately on determining that a child is missing from the
facility.
(b) As soon as possible after the effective date of this
Act, the executive commissioner of the Health and Human Services
Commission shall adopt rules and establish standards, policies, and
procedures to implement and administer Subsections (h-1) and (q),
Section 42.042, Human Resources Code, as added by this section.
SECTION 1.95. Section 42.0426, Human Resources Code, is
amended to read as follows:
Sec. 42.0426. TRAINING OF PERSONNEL. (a) A licensed
facility shall provide training for staff members in:
(1) the recognition of symptoms of child abuse,
neglect, and sexual molestation and the responsibility and
procedure of reporting suspected occurrences of child abuse,
neglect, and sexual molestation to the department or other
appropriate entity;
(2) the application of first aid; and
(3) the prevention and spread of communicable
diseases.
(b) A residential child-care facility shall implement a
behavior intervention program approved by the department for the
benefit of a child served by the facility who needs assistance in
managing the child's conduct. The program must include:
(1) behavior intervention instruction for staff
members who work directly with children served by the facility; and
(2) training for all employees regarding the risks
associated with the use of prone restraints.
SECTION 1.96. Section 42.044, Human Resources Code, is
amended by adding Subsections (e) and (f) to read as follows:
(e) The department shall periodically conduct inspections
of a random sample of agency foster homes and agency foster group
homes. The department shall use the inspections to monitor and
enforce compliance by a child-placing agency with rules and
standards established under Section 42.042.
(f) The department shall use an inspection checklist that
includes a list of all required items for inspection in conducting a
monitoring inspection under this section.
SECTION 1.97. The heading to Section 42.0441, Human
Resources Code, is amended to read as follows:
Sec. 42.0441. INSPECTION RESULTS FOR CERTAIN
NONRESIDENTIAL CHILD-CARE FACILITIES.
SECTION 1.98. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.04411 to read as follows:
Sec. 42.04411. INSPECTION RESULTS AND EXIT CONFERENCE FOR
RESIDENTIAL CHILD-CARE FACILITIES. (a) On completion of an
inspection of a residential child-care facility under Section
42.044, the inspector shall hold an exit conference with a
representative of the inspected facility. The inspector shall
provide to the representative a copy of the inspection checklist
used by the inspector.
(b) The inspector shall provide the representative an
opportunity to communicate regarding potential violations.
SECTION 1.99. Section 42.046, Human Resources Code, is
amended by adding Subsection (e) to read as follows:
(e) The department may deny an application under this
section if the applicant:
(1) has a residential child-care facility license
revoked in another state; or
(2) is barred from operating a residential child-care
facility in another state.
SECTION 1.100. Subsections (f) and (g), Section 42.0461,
Human Resources Code, are amended to read as follows:
(f) A child-placing agency that proposes to verify an agency
foster home or agency foster group home that is located in a county
with a population of less than 300,000 that provides child care for
24 hours a day at a location other than the actual residence of a
child's primary caretaker shall:
(1) comply with the notice and hearing requirements
imposed by Subsections (a) and (b); and
(2) after conducting the required public hearing,
provide the department with information relating to the
considerations specified in Subsection (d).
(g) The department may prohibit the child-placing agency
from verifying the proposed agency foster home or agency foster
group home on the same grounds that the department may deny an
application under Subsection (e). The department may invalidate
the verification of an agency foster home or agency foster group
home that was not verified using the procedures required by
Subsection (f) on or after September 1, 1997.
SECTION 1.101. Section 42.051, Human Resources Code, is
amended to read as follows:
Sec. 42.051. INITIAL [PROVISIONAL] LICENSE. (a) The
department shall issue an initial [a provisional] license when a
facility's plans meet the department's licensing requirements and
one of the following situations exists:
(1) the facility is not currently operating;
(2) the facility has relocated and has made changes in
the type of child-care service it provides; or
(3) there is a change in ownership of the facility
resulting in changes in policy and procedure or in the staff who
have direct contact with the children.
(b) An initial [A provisional] license is valid for six
months from the date it is issued and may be renewed for an
additional six months.
SECTION 1.102. Subsection (b), Section 42.054, Human
Resources Code, is amended to read as follows:
(b) The department shall charge each child-care facility a
fee of $35 for an initial [a provisional] license. The department
shall charge each child-placing agency a fee of $50 for an initial
[a provisional] license.
SECTION 1.103. (a) Section 42.056, Human Resources Code,
is amended by adding Subsections (a-1), (d), (e), and (f) and
amending Subsection (b) to read as follows:
(a-1) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a residential
child-care facility shall submit to the department for use in
conducting background and criminal history checks the name of each
prospective employee who will provide direct care or have direct
access to a child in the residential child-care facility.
(b) The department shall conduct background and criminal
history checks using:
(1) the information provided under Subsections
[Subsection] (a) and (a-1);
(2) the information made available by the Department
of Public Safety under Section 411.114, Government Code, or by the
Federal Bureau of Investigation or other criminal justice agency
under Section 411.087, Government Code; and
(3) the department's records of reported abuse and
neglect.
(d) A person described by Subsection (a) or (a-1) may not
provide direct care or have direct access to a child in a
residential child-care facility before completion of the person's
background check and criminal history check.
(e) If the residential child-care facility does not receive
the results of the background or criminal history check within two
working days, the facility may obtain that information for the
facility's employee, subcontractor, or volunteer directly from the
Department of Public Safety. If the information obtained verifies
that the person does not have a criminal record, the facility may
allow the person to have unsupervised client contact until the
department has performed the department's own criminal history
check and notified the facility.
(f) As part of a background check under this section, the
department shall provide any relevant information available in the
department's records regarding a person's previous employment in a
residential child-care facility to the person submitting the
request.
(b) The director, owner, or operator of a residential
child-care facility shall begin providing information to the
Department of Family and Protective Services as required by
Subsection (a-1), Section 42.056, Human Resources Code, as added by
this section, as soon as possible after the effective date of this
section and not later than January 1, 2006.
SECTION 1.104. (a) Subchapter C, Chapter 42, Human
Resources Code, is amended by adding Section 42.057 to read as
follows:
Sec. 42.057. DRUG TESTING. (a) Each residential
child-care facility shall establish a drug testing policy for
employees. A residential child-care facility may adopt the model
employee drug testing policy adopted by the executive commissioner
under Subsection (b) or may use another employee drug testing
policy approved by the executive commissioner.
(b) The executive commissioner by rule shall adopt a model
employee drug testing policy for use by a residential child-care
facility. The policy must be designed to ensure the safety of
resident children through appropriate drug testing of employees
while protecting the rights of employees. The model policy must
require:
(1) preemployment drug testing;
(2) random, unannounced drug testing of each employee
who has direct contact with a child in the care of the facility;
(3) drug testing of an employee against whom there is
an allegation of drug abuse; and
(4) drug testing of an employee whom the department is
investigating for the abuse or neglect of a child in the care of the
facility, if the allegation of abuse or neglect includes
information that provides good cause to suspect drug abuse.
(c) The department shall require a drug test of a person who
directly cares for or has access to a child in a residential
child-care facility within 24 hours after the department receives
notice of an allegation that the person has abused drugs.
(d) An employee may not provide direct care or have direct
access to a child in a residential child-care facility before
completion of the employee's initial drug test.
(e) A residential child-care facility shall pay any fee or
cost associated with performing the drug test for an employee.
(b) Not later than December 1, 2005, the executive
commissioner of the Health and Human Services Commission shall
adopt the model drug testing policy required by Section 42.057,
Human Resources Code, as added by this section.
(c) Not later than January 1, 2006, each residential
child-care facility shall adopt a drug testing policy required by
Section 42.057, Human Resources Code, as added by this section.
SECTION 1.105. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.062 to read as follows:
Sec. 42.062. CERTAIN EMPLOYMENT PROHIBITED. A residential
child-care facility may not employ in any capacity a person who is
not eligible to receive a license or certification for the
operation of a residential child-care facility under Section
42.072(g) or who has been denied a license under Section 42.046.
SECTION 1.106. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.063 to read as follows:
Sec. 42.063. REPORTING OF INCIDENTS AND VIOLATIONS.
(a) In this section, "serious incident" means a suspected or
actual incident that threatens or impairs the basic health, safety,
or well-being of a child. The term includes:
(1) the arrest, abuse, neglect, exploitation, running
away, attempted suicide, or death of a child;
(2) a critical injury of a child; and
(3) an illness of a child that requires
hospitalization.
(b) A person licensed under this chapter shall report to the
department each serious incident involving a child who receives
services from the person, regardless of whether the department is
the managing conservator of the child.
(c) An employee of a person described by Subsection (b)
shall report suspected abuse or neglect directly to the statewide
intake system.
(d) An employee or volunteer of a child-care institution,
child-placing agency, foster home, or foster group home shall
report any serious incident directly to the department if the
incident involves a child under the care of the institution,
agency, or home.
(e) A foster parent shall report any serious incident
directly to the department if the incident involves a child under
the care of the parent.
(f) The executive commissioner by rule shall prescribe:
(1) procedures governing reporting required under
this section; and
(2) the manner in which a report under this section
must be provided.
(g) The department shall implement this section using
existing appropriations.
SECTION 1.107. Section 42.072, Human Resources Code, is
amended by amending Subsection (c) and adding Subsection (g) to
read as follows:
(c) The department may not issue a license, listing,
registration, or certification to a [A] person whose license,
listing, registration, or certification is revoked or whose
application for a license, listing, registration, or certification
is denied for a substantive reason under this chapter [may not apply
for any license, listing, registration, or certification under this
chapter] before:
(1) the fifth anniversary of the date on which the
revocation takes effect by department or court order or the
decision to deny the application is final, if the facility is a
residential child-care facility; or
(2) the second anniversary of the date on which the
revocation takes effect by department or court order or the
decision to deny the application is final, if the facility is not a
residential child-care facility.
(g) Notwithstanding Subsection (c), the department may
refuse to issue a license, listing, registration, or certification
to:
(1) a person whose license or certification for a
residential child-care facility was revoked by the department or by
court order;
(2) a person who was a controlling person of a
residential child-care facility at the time conduct occurred that
resulted in the revocation of the license or certification of the
facility;
(3) a person who voluntarily closed a residential
child-care facility or relinquished the person's license or
certification after:
(A) the department took an action under
Subsection (a) in relation to the facility or person; or
(B) the person received notice that the
department intended to take an action under Subsection (a) in
relation to the facility or person; or
(4) a person who was a controlling person of a
residential child-care facility at the time conduct occurred that
resulted in the closure of the facility or relinquishment of the
license or certification in the manner described by Subdivision
(3).
SECTION 1.108. Subsection (c), Section 42.073, Human
Resources Code, is amended to read as follows:
(c) An order is valid for 10 days after the effective date of
the order, except that an order relating to a residential
child-care facility is valid for 30 days after the effective date of
the order.
SECTION 1.109. Section 42.077, Human Resources Code, is
amended by adding Subsection (d-1) to read as follows:
(d-1) If the department determines that the license of a
residential child-care facility should be revoked or suspended, the
facility shall mail notification of the action or proposed action
by certified mail to a parent of each child served by the facility,
if the person's parental rights have not been terminated, and to the
child's managing conservator, as appropriate. The residential
child-care facility shall mail the notification not later than the
fifth day after the date the facility is notified of the
department's determination that revocation or suspension of the
license is appropriate.
SECTION 1.110. (a) Section 42.078, Human Resources Code,
is amended by amending Subsections (a) through (i) and (l), (m), and
(n) and adding Subsection (a-1) to read as follows:
(a) The department may impose an administrative penalty
against a facility or family home licensed or registered under this
chapter that violates this chapter or a rule or order adopted under
this chapter. In addition, the department may impose an
administrative penalty against a residential child-care facility
or a controlling person of a residential child-care facility if the
facility or controlling person:
(1) violates a term of a license or registration
issued under this chapter;
(2) makes a statement about a material fact that the
facility or person knows or should know is false:
(A) on an application for the issuance or renewal
of a license or registration or an attachment to the application; or
(B) in response to a matter under investigation;
(3) refuses to allow a representative of the
department to inspect:
(A) a book, record, or file required to be
maintained by the facility; or
(B) any part of the premises of the facility;
(4) purposefully interferes with the work of a
representative of the department or the enforcement of this
chapter; or
(5) fails to pay a penalty assessed under this chapter
on or before the date the penalty is due, as determined under this
section.
(a-1) Nonmonetary, administrative penalties or remedies,
including but not limited to corrective action plans, probation,
and evaluation periods, shall be imposed when appropriate before
monetary penalties.
(b) Each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty. The penalty for a
violation may be in an amount not to exceed the following limits,
based on the maximum number of children for whom the facility or
family home was authorized to provide care or the number of children
under the care of the child-placing agency when the violation
occurred [receiving care at the facility or family home at the time
of the violation]:
(1) for violations that occur in a facility other than
a residential child-care facility:Number of children Maximum amount of penalty
The] amount
of the penalty shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of any prohibited acts,
and the hazard or potential hazard created to the health, safety, or
economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) Monetary penalties shall not be assessed for violations
that are the result of clerical errors [or standards which do not
clearly apprise the facility or family home of the action required
by the standard].
(e) If the department [executive director] determines that
a violation has occurred, the department [executive director] may
issue a recommendation on the imposition of a penalty, including a
recommendation on the amount of the penalty.
(f) Within 14 days after the date the recommendation is
issued, the department [executive director] shall give written
notice of the recommendation to the person owning or operating the
facility or family home or to the controlling person, if
applicable. The notice may be given by certified mail. The notice
must include a brief summary of the alleged violation and a
statement of the amount of the recommended penalty and must inform
the person that the person has a right to a hearing on the
occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
(g) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
recommended penalty of the department [executive director] or may
make a written request for a hearing on the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(h) If the person accepts the determination and recommended
penalty of the department [executive director] or fails to respond
to the notice in a timely manner, the department [executive
director] shall issue an order and impose the recommended penalty.
(i) If the person requests a hearing, the department
[executive director] shall set a hearing and give notice of the
hearing to the person. The hearing shall be held by an
administrative law judge of the State Office of Administrative
Hearings. The administrative law judge shall make findings of fact
and conclusions of law and issue a final decision finding that a
violation has occurred and imposing a penalty or finding that no
violation occurred.
(l) Within the 30-day period, a person who acts under
Subsection (k)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the
department [executive director] by certified mail.
(m) On receipt of a copy of an affidavit under Subsection
(l)(2), the department [executive director] may file with the
court, within five days after the date the copy is received, a
contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall stay
the enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the amount of the
penalty and to give a supersedeas bond.
(n) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the department
[executive director] may refer the matter to the attorney general
for collection of the amount of the penalty.
(b) Section 42.078, Human Resources Code, as amended by this
section, applies to conduct that occurs on or after the effective
date of this section. Conduct that occurs before the effective date
of this section is governed by Section 42.078, Human Resources
Code, as it existed before amendment by this section, and the former
law is continued in effect for that purpose.
SECTION 1.111. The heading to Chapter 43, Human Resources
Code, is amended to read as follows:
CHAPTER 43. REGULATION OF CHILD-CARE
AND CHILD-PLACING AGENCY ADMINISTRATORS
SECTION 1.112. Section 43.001, Human Resources Code, is
amended by amending Subdivision (1) and adding Subdivisions (3) and
(4) to read as follows:
(1) "Child-care institution" has the meaning assigned
by Section 42.002 [means a profit or nonprofit children's home,
orphanage, institution, or other place that receives and provides
24-hour-a-day care for more than six children who are dependent,
neglected, handicapped, delinquent, in danger of becoming
delinquent, or in need of group care].
(3) "Child-placing agency" has the meaning assigned in
Section 42.002.
(4) "Child-placing agency administrator" means a
person who supervises and exercises direct control over a
child-placing agency and who is responsible for the child-placing
agency's program and personnel, regardless of whether the person
has an ownership interest in the child-placing agency or shares
duties with other persons.
SECTION 1.113. (a) Section 43.003, Human Resources Code,
is amended by adding Subsection (c) to read as follows:
(c) A person may not serve as a child-placing agency
administrator without a license issued by the department under this
chapter.
(b) Notwithstanding Subsection (c), Section 43.003, Human
Resources Code, as added by this section, a person is not required
to hold a license issued under Chapter 43, Human Resources Code, to
act as a child-placing agency administrator until January 1, 2006.
SECTION 1.114. (a) Section 43.004, Human Resources Code,
is amended to read as follows:
Sec. 43.004. QUALIFICATIONS FOR LICENSE. (a) To be
eligible for a child-care administrator's license a person must:
(1) provide information for the department's use in
conducting a criminal history and background check under Subsection
(c) [present evidence in writing of good moral character, ethical
commitment, and sound physical and emotional health];
(2) pass an examination developed [devised] and
administered by the department that demonstrates competence in the
field of child-care administration;
(3) have one year of full-time experience in
management or supervision of child-care personnel and programs; and
(4) have one of the following educational and
experience qualifications:
(A) a master's or doctoral [doctor of philosophy]
degree in social work or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in child care or a closely related field[;
[(C) an associate degree from a junior college
and four years' experience in child care or a closely related field;
or
[(D) a high school diploma or its equivalent and
six years' experience in child care or a closely related field].
(b) To be eligible for a child-placing agency
administrator's license a person must:
(1) provide information for the department's use in
conducting a criminal history and background check under Subsection
(c);
(2) pass an examination developed and administered by
the department that demonstrates competence in the field of placing
children in residential settings or adoptive homes;
(3) have one year of full-time experience in
management or supervision of child-placing personnel and programs;
and
(4) have one of the following educational and
experience qualifications:
(A) a master's or doctoral degree in social work
or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in the field of placing children in residential settings
or adoptive homes or a closely related field.
(c) Before the department issues a license under this
chapter, the department must conduct a criminal history and
background check of the applicant using:
(1) the information made available by the Department
of Public Safety under Section 411.114, Government Code, or by the
Federal Bureau of Investigation or other criminal justice agency
under Section 411.087, Government Code; and
(2) the information in the central registry of
reported cases of child abuse or neglect established under Section
261.002, Family Code.
(b) Except as provided by Subsection (c) of this section,
Subsection (a), Section 43.004, Human Resources Code, as amended by
this section, applies only to a person who applies for a license or
license renewal on or after the effective date of this section.
(c) A person who is qualified for a license under Paragraph
(C) or (D), Subdivision (4), Section 43.004, Human Resources Code,
as that section existed prior to the effective date of this section,
and who is licensed or has applied for a license as a child-care
administrator prior to the effective date of this section is
eligible for a child-care administrator license under Subsection
(a), Section 43.004, Human Resources Code, as amended by this
section, or license renewal.
SECTION 1.115. (a) Section 43.0041, Human Resources Code,
is amended by adding Subsection (c) to read as follows:
(c) A person who fails an examination three times may not
submit a new application for a license until after the first
anniversary of the date the person last failed the examination.
(b) Subsection (c), Section 43.0041, Human Resources Code,
as added by this section, applies only to an examination taken on or
after the effective date of this section. An examination taken
before the effective date of this section is not considered in
determining whether a person is prohibited from seeking a new
license for the period specified by Subsection (c), Section
43.0041, Human Resources Code, as added by this section.
SECTION 1.116. Subsection (a), Section 43.0081, Human
Resources Code, is amended to read as follows:
(a) The department may issue a provisional child-care
administrator's license to an applicant licensed in another state
who applies for a license in this state. An applicant for a
provisional license under this section must:
(1) be licensed in good standing as a child-care
administrator for at least two years in another state, the District
of Columbia, a foreign country, or a territory of the United States
that has licensing requirements that are substantially equivalent
to the requirements of this chapter;
(2) have passed a national or other examination
recognized by the department that demonstrates competence in the
field of child-care administration; and
(3) be sponsored by a person licensed by the
department under this chapter with whom the provisional license
holder may practice under this section.
SECTION 1.117. (a) Subsection (a), Section 43.009, Human
Resources Code, is amended to read as follows:
(a) To be eligible for license renewal, a license holder
shall present evidence to the department of participation in a
program of continuing education for 15 [approximating 15 actual]
hours of formal study each year during the two-year period before
the renewal.
(b) Subsection (a), Section 43.009, Human Resources Code,
as amended by this section, applies to a person who seeks license
renewal on or after September 1, 2007. A person who seeks license
renewal before September 1, 2007, is governed by the law in effect
before amendment by this section, and the former law is continued in
effect for that purpose.
SECTION 1.118. The heading to Section 43.010, Human
Resources Code, is amended to read as follows:
Sec. 43.010. LICENSE DENIAL, REVOCATION, SUSPENSION, OR
REFUSAL TO RENEW; REPRIMAND OR PROBATION.
SECTION 1.119. (a) Subsections (a), (b), and (d), Section
43.010, Human Resources Code, are amended to read as follows:
(a) The department may deny, [shall] revoke, suspend, or
refuse to renew a license, or place on probation [a person whose
license has been suspended,] or reprimand a license holder for:
(1) violating [a violation by the license holder of]
this chapter or a rule adopted under this chapter;
(2) circumventing or attempting to circumvent the
requirements of this chapter or a rule adopted under this chapter;
(3) engaging in fraud or deceit related to the
requirements of this chapter or a rule adopted under this chapter;
(4) providing false or misleading information to the
department during the license application or renewal process for
any person's license;
(5) making a statement about a material fact during
the license application or renewal process that the person knows or
should know is false;
(6) having a criminal history or central registry
record that would prohibit a person from working in a child-care
facility, as defined by Section 42.002, under rules applicable to
that type of facility;
(7) using drugs or alcohol in a manner that
jeopardizes the person's ability to function as an administrator;
or
(8) [of the board.
[(b) The department may revoke a license if the license
holder is:
[(1) convicted of a felony;
[(2) convicted of a misdemeanor involving fraud or
deceit;
[(3) addicted to a dangerous drug or intemperate in
the use of alcohol; or
[(4) grossly negligent in] performing duties as a
child-care administrator in a negligent manner.
(b) A person whose license is revoked under Subsection (a)
is not eligible to apply for another license under this chapter for
a period of five years after the date the license was revoked.
(d) If a license holder is placed on probation [suspension
is probated], the department may require the license holder:
(1) to report regularly to the department on the
conditions of the probation;
(2) to limit practice to the areas prescribed by the
department; or
(3) to continue or renew professional education until
the practitioner attains a degree of skill satisfactory to the
department in those areas in which improvement is a condition of the
probation.
(b) Subsection (b), Section 43.010, Human Resources Code,
as amended by this section, applies only to a person whose license
is revoked on or after the effective date of this section. A person
whose license is revoked before the effective date of this section
is governed by the law in effect at the time of the revocation, and
the former law is continued in effect for that purpose.
SECTION 1.120. Section 43.0105, Human Resources Code, is
amended to read as follows:
Sec. 43.0105. REVOCATION OF PROBATION. The department may
revoke the probation of a license holder [whose license is
suspended] if the license holder violates a term of the conditions
of probation.
SECTION 1.121. Section 43.0106, Human Resources Code, is
amended to read as follows:
Sec. 43.0106. ADMINISTRATIVE [DISCIPLINARY] HEARING.
(a) If the department denies a license or proposes to suspend,
revoke, or refuse to renew a person's license, the person is
entitled to a hearing conducted by the State Office of
Administrative Hearings. Proceedings for a disciplinary action are
governed by the administrative procedure law, Chapter 2001,
Government Code. Rules of practice adopted by the executive
commissioner [board] under Section 2001.004, Government Code,
applicable to the proceedings for a disciplinary action may not
conflict with rules adopted by the State Office of Administrative
Hearings.
(b) A person may not continue to operate as a licensed
child-care administrator or child-placing agency administrator
during the appeal process if the department determines that the
person is an immediate threat to the health or safety of a child.
(c) The department must notify the person, and if
applicable, the governing body of the facility that employs the
person, of the department's determination under Subsection (b).
SECTION 1.122. Section 43.012, Human Resources Code, is
amended to read as follows:
Sec. 43.012. PENALTY. A person who serves as a child-care
or child-placing agency administrator without the license required
by this chapter commits a Class C misdemeanor.
SECTION 1.123. Subtitle D, Title 2, Human Resources Code,
is amended by adding Chapter 45 to read as follows:
CHAPTER 45. PRIVATIZATION OF SUBSTITUTE CARE AND CASE
MANAGEMENT SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 45.001. DEFINITIONS. In this chapter:
(1) "Case management services" means the provision of
case management services to a child for whom the department has been
appointed temporary or permanent managing conservator, including
caseworker-child visits, family visits, the convening of family
group conferences, the development and revision of the case plan,
the coordination and monitoring of services needed by the child and
family, and the assumption of court-related duties, including
preparing court reports, attending judicial hearings and
permanency hearings, and ensuring that the child is progressing
toward permanency within state and federal mandates.
(2) "Commission" means the Health and Human Services
Commission.
(3) "Department" means the Department of Family and
Protective Services.
(4) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(5) "Family-based safety services" means services
designed to help children at risk of being placed in foster care to
remain safely with their families.
(6) "Independent administrator" means an independent
agency selected through a competitive procurement process to:
(A) secure, coordinate, and manage substitute
care services and case management services in a geographically
designated area of the state; and
(B) ensure continuity of care for a child
referred to the administrator by the department and the child's
family from the day a child enters the child protective services
system until the child leaves the system.
(7) "Performance-based contracting" means the
structuring of all aspects of the procurement of services around
the purpose of the work to be performed and the desired results with
the contract requirements set forth in clear, specific, and
objective terms with measurable outcomes. Contracts may also
include provisions that link the performance of the contractor to
the level and timing of reimbursement.
(8) "Permanency services" means services, other than
family-based safety services, provided to secure a child's safety,
permanency, and well-being, including substitute care services,
family reunification services, adoption and postadoption services,
preparation for adult living services, and case management
services.
(9) "Placement assessment" means the process used by
the department or another authorized entity to determine the most
appropriate, least restrictive, safe placement resource for a child
who must be separated temporarily from the care of the child's
parents.
(10) "Privatize" means to contract with a private
entity to provide certain governmental services.
(11) "Psychotropic medication" means a drug that
affects the mind through action on the central nervous system and is
prescribed for depression, schizophrenia, attention deficit
hyperactivity disorder, seizures, and a variety of other similar
conditions.
(12) "Substitute care provider" means a child-care
institution or a child-placing agency, as defined by Section
42.002.
(13) "Substitute care services" means services
provided to or for children in substitute care and their families,
including the recruitment, training, and management of foster
parents, the recruitment of adoptive families, and the facilitation
of the adoption process, family reunification, independent living,
emergency shelter, residential group care, foster care,
therapeutic foster care, and post-placement supervision, including
relative placement. The term does not include the regulation of
facilities under Subchapter C, Chapter 42.
Sec. 45.002. PRIVATIZING SUBSTITUTE CARE AND CASE
MANAGEMENT SERVICES; DEPARTMENT DUTIES. (a) Not later than
September 1, 2011, the department shall complete the statewide
privatization of the provision of substitute care and case
management services in this state.
(b) On and after September 1, 2011:
(1) all substitute care and case management services
for children for whom the department has been appointed temporary
or permanent managing conservator must be provided by child-care
institutions and child-placing agencies;
(2) all substitute care and case management service
providers shall, to the best extent possible, honor the cultural
and religious affiliations of a child placed in the service
provider's care, regardless of the religious affiliation of the
service provider; and
(3) except as provided by Subsections (d) and (e) and
notwithstanding any other law, the department may not directly
provide substitute care and case management services.
(c) On and after September 1, 2011, the department shall:
(1) monitor the quality of services for which the
department and each independent administrator contract under this
chapter; and
(2) ensure that the services are provided in
accordance with federal law and the laws of this state, including
department rules and rules of the Department of State Health
Services and the Texas Commission on Environmental Quality.
(d) On and after September 1, 2011, the department may
provide substitute care and case management services in an
emergency. The executive commissioner shall adopt rules describing
the circumstances in which the department may provide those
services.
(e) The department may provide substitute care and case
management services as a provider of last resort as provided by
Section 264.106(k), Family Code.
Sec. 45.003. HIRING PREFERENCE. A substitute care or case
management services provider that contracts with the department to
provide substitute care or case management services shall:
(1) give a preference in hiring to qualified
department employees in good standing with the department who
provide substitute care or case management services and whose
positions with the department may be eliminated as a result of the
privatization of substitute care and case management services; and
(2) ensure that each subcontractor with whom the
substitute care or case management services provider contracts for
the provision of substitute care or case management services also
gives a preference in hiring to current and former qualified
department employees whose positions with the department may be or
were eliminated as a result of the privatization of substitute care
and case management services.
Sec. 45.004. INDEPENDENT ADMINISTRATORS; DEPARTMENT
DUTIES. (a) The department shall research and develop a
comprehensive strategy for contracting for management support
services from independent administrators on a regional basis. If
the department determines that an independent administrator could
manage and procure substitute care and case management services
contracts with private agencies and conduct placement assessments
in a more cost-beneficial manner, the department shall implement a
transition plan to transfer the procurement, management, and
oversight of substitute care and case management services from the
department to an independent administrator, as well as
responsibility for placement assessments. If the department
determines that contracting for management support from an
independent administrator is not cost beneficial, the
privatization of substitute care and case management services will
occur as provided by Section 45.002(b).
(b) The comprehensive strategy, at a minimum, must:
(1) use competitively procured independent
administrators to procure and manage substitute care and case
management providers in a geographic region designated by the
department;
(2) require independent administrators to contract
with private agencies that will:
(A) increase local foster and adoptive placement
options for all children, especially teenagers, sibling groups,
children whose race or ethnicity is disproportionately represented
in foster care, children with severe or multiple disabilities, and
other children who are difficult to place; and
(B) expand efforts to recruit foster families,
adoptive families, and alternative care providers through
faith-based and other targeted recruitment programs; and
(3) allow permanency services providers to enter
client, service, and outcome information into the department's
client data system.
(c) Subject to the appropriation of funds, the department
shall:
(1) enhance existing data systems to include contract
performance information; and
(2) implement a contracting data system developed or
procured by the department, to track quality assurance and other
contracting tools to effectively manage, monitor, and evaluate
performance-based contracting functions.
[Sections 45.005-45.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT DUTIES
Sec. 45.051. REORGANIZING STAFF RESPONSIBILITIES. Not
later than March 1, 2006, the department shall develop a plan for
reorganizing the department's operation to support future
procurement of, contracting with, and monitoring of private
contractors and enforcement of the licensing of facilities. The
plan must include provisions for reducing duplication of the
department's program monitoring activities.
Sec. 45.052. FINANCING. The department shall create
financing and payment arrangements that provide incentives for an
independent administrator and substitute care and case management
providers to achieve safety, permanency, and well-being outcomes
and improved system performance. In developing this financing
arrangement, the department shall examine:
(1) the use of case rates or performance-based
fee-for-service contracts that include incentive payments or
payment schedules that link reimbursement to results; and
(2) ways to reduce a contractor's financial risk that
could jeopardize the solvency of the contractor, including the use
of a risk-reward corridor that limits risk of loss and potential
profits or the establishment of a statewide risk pool.
Sec. 45.053. ADOPTION OF TRANSITION PLAN. (a) Not later
than September 30, 2005, the commission and the department shall
submit to the legislature a plan for the development of the
transition plan, including the planning structure and process,
engagement of stakeholders, and access to experienced consultation
and technical assistance.
(b) Not later than March 1, 2006, the commission and the
department shall, in consultation with private entities under
contract to provide substitute care services for the department,
including members of the boards of directors of the private
entities and other community stakeholders, develop and adopt a
substitute care and case management services transition plan
consistent with the requirements of Subchapter C.
(c) The executive commissioner shall adopt rules to
implement the privatization of substitute care and case management
services in this state.
Sec. 45.054. REGIONAL IMPLEMENTATION. (a) The department
shall implement the privatization of substitute care and case
management services on a regional basis in accordance with the
transition plan. The transition plan must include a schedule with
deadlines for implementation of the plan. Subject to the
requirements of Subsections (c), (d), and (e), statewide
implementation of the plan shall be completed not later than
September 1, 2011. The commission shall propose the first three
regions of the state for implementation of privatization based on
state demographics and shall consider including a rural region, a
metropolitan region, and a region including border areas of the
state.
(b) The transition plan must include a schedule with the
following deadlines for implementation of the plan:
(1) completion of the transition plan, not later than
March 1, 2006;
(2) release of a request for proposal for a geographic
region of the state designated by the department, not later than
April 30, 2006;
(3) the awarding of the contract described by
Subdivision (2), not later than September 30, 2006;
(4) establishment of the multidisciplinary team and
necessary processes, evaluation criteria, and monitoring tools to
be used to monitor and evaluate the performance of the contractor,
not later than September 30, 2006;
(5) completion of the transition of substitute care
and case management services in the first region, not later than
December 31, 2007;
(6) the review and evaluation of the multidisciplinary
team's reports pertaining to the contractor's achievement of
performance-based milestones and the effect on the quality of
permanency services provided, annually beginning December 31,
2007;
(7) completion of the transition of substitute care
and case management services in the second and third regions, not
later than December 1, 2009; and
(8) completion of the statewide implementation of
contracted substitute care and case management services for
additional geographic regions, not later than September 1, 2011.
(c) Not later than the first anniversary of the date the
department enters into the first contract for substitute care and
case management services under this section, the department shall
contract with a qualified, independent third party to evaluate each
phase of the privatization of substitute care and case management
services. Each evaluation must:
(1) assess the performance of substitute care and case
management services based on compliance with defined quality
outcomes for children;
(2) assess the achievement of performance measures;
(3) compare for quality the performance of substitute
care and case management services provided by contractors to
substitute care and case management services provided by the
department in similar regions;
(4) determine if contracted services are cost
beneficial; and
(5) assess the private sector's ability to meet the
performance measures, including service capacity, for the
remaining regions.
(d) The independent third party with whom the department
contracts under Subsection (c) shall submit its reports and
recommendations to the House Human Services Committee, or its
successor, and the Senate Health and Human Services Committee, or
its successor.
(e) The department shall continue to implement the
transition plan for the second and third regions only after:
(1) the commission reports to the House Human Services
Committee, or its successor, and the Senate Health and Human
Services Committee, or its successor, the status of the initial
transition of services to a contractor in the first region not later
than December 31, 2006;
(2) the independent third party with whom the
department contracts under Subsection (c) evaluates and reports to
the House Human Services Committee, or its successor, and the
Senate Health and Human Services Committee, or its successor, on
the performance of contracted substitute care and case management
services in the first region not later than December 31, 2008; and
(3) the commission determines, based on the report
prepared under Subdivision (2) or information obtained by the
review required under Subsection (b)(6), whether material
modifications to the model for privatization of substitute care and
case management services are necessary and submits a report and
recommendations to the House Human Services Committee, or its
successor, and the Senate Health and Human Services Committee, or
its successor, not later than December 31, 2008.
(f) The department may not implement the transition plan for
the second and third regions before September 1, 2009.
(g) The department shall continue to implement the
transition plan for the remaining regions of the state only after:
(1) the independent third party with whom the
department contracts under Subsection (c) evaluates and reports to
the House Human Services Committee, or its successor, and the
Senate Health and Human Services Committee, or its successor, on
the performance of contracted substitute care and case management
services in the second and third regions not later than September 1,
2010; and
(2) the commission determines, based on the report
prepared under Subdivision (1) or information obtained by the
review required under Subsection (b)(6), whether material
modifications to the model for privatization of substitute care and
case management services are necessary and submits a report and
recommendations to the House Human Services Committee, or its
successor, and the Senate Health and Human Services Committee, or
its successor, not later than December 31, 2010.
(h) Nothing in this chapter, including the deadlines for
implementing this section, precludes the department from
immediately converting from an open-enrollment system to a
statewide competitive procurement system for substitute care.
[Sections 45.055-45.100 reserved for expansion]
SUBCHAPTER C. TRANSITION PLAN
Sec. 45.101. GOALS FOR PRIVATIZATION. The transition plan
adopted under Section 45.053 must provide for a new structural
model for the community-centered delivery of substitute care and
case management services that is based on a goal of improving
protective services, achieving timely permanency for children in
substitute care, including family reunification, placement with a
relative, or adoption, and improving the overall well-being of
children in substitute care consistent with federal and state
mandates.
Sec. 45.102. TRANSITION PLAN REQUIREMENTS. The transition
plan developed by the department and the commission must:
(1) identify barriers to privatization, including
regional disparities in resources, provider capacity, and
population, and propose solutions to stimulate capacity and adjust
program delivery;
(2) provide details regarding the target population
and services by region that will be part of the system redesign,
including the number of children and families, historic caseload
trends and service utilization information, and projected
caseloads;
(3) provide details regarding the roles,
responsibilities, and authority assigned to the public and private
entities, including the department, independent administrators,
and substitute care and case management providers, in making key
decisions throughout the child and family case;
(4) include an implementation plan to transfer all
foster homes certified by the department to private child-placing
agencies, ensuring minimum disruption to the children in foster
care and to current foster parents;
(5) specify the limited circumstances under which a
foster home verified by the department may continue to be verified
by the department when continuation would be in the best interest of
a child in the care of the foster home;
(6) include a process for assessing each child who is
transferred to a private substitute care provider to verify the
child's service needs;
(7) include an implementation plan to transfer all
adoption services to private agencies, including details of how and
when cases will be transferred and how adoption provider contracts
and reimbursements methods will be structured;
(8) describe the process to transfer the duties of
case management and family reunification services from department
staff to private agency staff, including the integration of family
group conferencing into private agency case management;
(9) describe the manner in which the department will
procure and contract for kinship services that are funded by the
state;
(10) provide details regarding financial arrangements
and performance expectations for independent administrators and
substitute care and case management providers that:
(A) provide incentives for desired results and
explicit contract performance and outcome indicators;
(B) describe how various risk-based arrangements
will be weighed and realistically assessed using sound actuarial
data and risk modeling and how mechanisms will be selected to limit
uncontrollable risks that could threaten provider stability and
quality;
(C) describe how financing options will increase
flexibility to promote innovation and efficiency in service
delivery; and
(D) provide balance between control over key
decisions and the level of risk the contractor assumes;
(11) require the executive commissioner to evaluate
whether existing rate structures are appropriate to compensate
substitute care providers who enter into contracts with an
independent administrator under Section 264.106, Family Code,
considering new functions to be served by the providers, and, if
necessary, require the executive commissioner to adjust the rates
accordingly;
(12) require the department to enter into contracts
for the provision of substitute care and case management services
as required by Section 264.106, Family Code, and describe the
procurement and contracting process, including:
(A) stating how the department will shift from an
open-enrollment system to a competitive procurement system;
(B) identifying the services that will be
procured and contracted for directly with the department and the
services that will be procured by an independent administrator; and
(C) developing a procurement and contracting
schedule to ensure full implementation not later than September 1,
2011;
(13) provide for the implementation of Sections
264.1062 and 264.107, Family Code, by describing each party's
responsibility and ensuring that the department retains the legal
authority to effectively provide oversight;
(14) describe formal training required for department
staff, independent administrators, and substitute care and case
management providers;
(15) define roles and expectations related to
reporting and managing data required to ensure quality services and
meet state and federal requirements, including data collection
responsibilities for an independent administrator and service
provider;
(16) describe how the transition will impact the
state's ability to obtain federal funding and examine options to
further maximize federal funding opportunities and increased
flexibility; and
(17) describe the costs of the transition, the initial
start-up costs, and mechanisms to periodically assess the overall
adequacy of funds and the fiscal impact of the change.
[Sections 45.103-45.150 reserved for expansion]
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
Sec. 45.151. PROHIBITION ON CERTAIN CONTRACTS. (a) The
department may not accept a bid under this chapter from a person or
award to a person a contract under this chapter that includes
proposed financial participation by the person if:
(1) the person participated in preparing the bid
specifications or request for proposals on which the bid or
contract is based; and
(2) the bid specifications or request for proposals on
which the bid or contract is based:
(A) requires a work plan, project design, or
other criteria for participation in the contract that is specific
to that person or likely to limit or exclude competitors who provide
similar goods or services; or
(B) includes a scope of required goods or
services that is so narrowly defined that it is specific to that
person or likely to limit or exclude competitors who provide
similar goods or services.
(b) The department may not accept a bid under this chapter
from or award a contract under this chapter to an individual or
business entity that is barred from participating in state
contracts under Section 2155.077, Government Code.
(c) The department may not accept a bid under this chapter
from or award a contract under this chapter to an individual or
business entity that was awarded a contract valued at $1 billion or
more during the four-year period immediately before the date of the
issuance of relevant requests for proposals under Section 45.054.
(d) If the department determines that an individual or
business entity holding a contract under this chapter was
ineligible to have the contract accepted or awarded under
Subsection (a), (b), or (c), the department may immediately
terminate the contract without further obligation to the vendor.
Sec. 45.152. SUBCONTRACTOR PAYMENT. The existence of a
dispute between the department and a contractor regarding a
contract under this chapter does not justify nonpayment of a
subcontractor for work completed by the subcontractor under the
contract if the subcontractor has completed the work in a
satisfactory manner and the work has been approved by the
department and the contractor.
Sec. 45.153. EXPIRATION. This chapter expires September 1,
2012.
SECTION 1.124. Section 21.01, Penal Code, is amended by
adding Subdivision (4) to read as follows:
(4) "Spouse" means a person to whom a person is legally
married under Subtitle A, Title 1, Family Code, or a comparable law
of another jurisdiction.
SECTION 1.125. (a) Section 22.04, Penal Code, is amended
by adding Subsection (a-1) and amending Subsections (b) through (g)
to read as follows:
(a-1) A person commits an offense if the person is an owner,
operator, or employee of a group home, nursing facility, assisted
living facility, intermediate care facility for persons with mental
retardation, or other institutional care facility and the person
intentionally, knowingly, recklessly, or with criminal negligence
by omission causes to a child, elderly individual, or disabled
individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury;
(3) bodily injury; or
(4) exploitation.
(b) An omission that causes a condition described by
Subsection (a)(1), (2), or (3) or (a-1)(1), (2), (3), or (4)
[Subsections (a)(1) through (a)(3)] is conduct constituting an
offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of
a child, elderly individual, or disabled individual.
(c) In this section:
(1) "Child" means a person 14 years of age or younger.
(2) "Elderly individual" means a person 65 years of
age or older.
(3) "Disabled individual" means a person older than 14
years of age who by reason of age or physical or mental disease,
defect, or injury is substantially unable to protect himself from
harm or to provide food, shelter, or medical care for himself.
(4) "Exploitation" means the illegal or improper use
of an individual or of the resources of the individual for monetary
or personal benefit, profit, or gain.
(d) For purposes of an omission that causes a condition
described by Subsection (a)(1), (2), or (3), the [The] actor has
assumed care, custody, or control if he has by act, words, or course
of conduct acted so as to cause a reasonable person to conclude that
he has accepted responsibility for protection, food, shelter, and
medical care for a child, elderly individual, or disabled
individual. For purposes of an omission that causes a condition
described by Subsection (a-1)(1), (2), (3), or (4), the actor
acting during the actor's capacity as owner, operator, or employee
of a group home or facility described by Subsection (a-1) is
considered to have accepted responsibility for protection, food,
shelter, and medical care for the child, elderly individual, or
disabled individual who is a resident of the group home or facility.
(e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or
(2) is a felony of the first degree when the conduct is committed
intentionally or knowingly. When the conduct is engaged in
recklessly, the offense is [it shall be] a felony of the second
degree.
(f) An offense under Subsection (a)(3) or (a-1)(3) or (4) is
a felony of the third degree when the conduct is committed
intentionally or knowingly. When the conduct is engaged in
recklessly, the offense is [it shall be] a state jail felony.
(g) An offense under Subsection (a) is a state jail felony
when the person acts with criminal negligence [shall be a state jail
felony]. An offense under Subsection (a-1) is a state jail felony
when the person, with criminal negligence and by omission, causes a
condition described by Subsection (a-1)(1), (2), (3), or (4).
(b) The change in law made by this section applies only to an
offense committed on or after the effective date of this section.
An offense committed before the effective date of this section is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For the
purposes of this subsection, an offense was committed before the
effective date of this section if any element of the offense was
committed before that date.
SECTION 1.126. Subdivision (3), Article 56.01, Code of
Criminal Procedure, is amended to read as follows:
(3) "Victim" means a person who is the victim of the
offense of sexual assault, kidnapping, [or] aggravated robbery, or
injury to a child, elderly individual, or disabled individual or
who has suffered bodily injury or death as a result of the criminal
conduct of another.
SECTION 1.127. (a) Subchapter A, Chapter 102, Code of
Criminal Procedure, is amended by adding Article 102.0186 to read
as follows:
Art. 102.0186. ADDITIONAL COSTS ATTENDANT TO CERTAIN CHILD
SEXUAL ASSAULT AND RELATED CONVICTIONS. (a) A person convicted of
an offense under Section 21.11, 22.011(a)(2), 22.021(a)(1)(B),
43.25, 43.251, or 43.26, Penal Code, shall pay $100 on conviction of
the offense.
(b) Costs imposed under this article are imposed without
regard to whether the defendant is placed on community supervision
after being convicted of the offense or receives deferred
adjudication for the offense.
(c) The clerks of the respective courts shall collect the
costs and pay them to the county treasurer or to any other official
who discharges the duties commonly delegated to the county
treasurer for deposit in a fund to be known as the county child
abuse prevention fund. A fund designated by this subsection may be
used only to fund child abuse prevention programs in the county
where the court is located.
(d) The county child abuse prevention fund shall be
administered by or under the direction of the commissioners court.
(b) The change in law made by this section applies only to an
offense committed on or after the effective date of this section.
An offense committed before the effective date of this section is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this section if any element of the offense was committed before that
date.
SECTION 1.128. TRAINING FOR CHILD PROTECTIVE SERVICES.
(a) In this section:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Health and human services agencies" has the
meaning assigned by Section 531.001, Government Code.
(3) "Training for child protective services" means
training administered by a state agency or an institution of higher
education that is provided to individuals working or interested in
working in the field of child protective services and that is
intended to assist the individuals in performing that work more
effectively or efficiently.
(b) The commission shall study the feasibility of providing
a financial incentive to individuals to assist the individuals in
receiving training for child protective services.
(c) The study must:
(1) consider the feasibility of creating a private
foundation to solicit and receive money that will be used to assist
those individuals;
(2) consider possible means of providing a financial
incentive, including educational or living stipends or
reimbursement of tuition costs, to assist those individuals and
determine the most effective means to deliver the incentives;
(3) suggest criteria that those individuals must meet
to receive the financial incentives;
(4) estimate the initial cost and annual cost to this
state of providing the financial incentives to those individuals;
and
(5) estimate the savings and costs associated with
improved training of those individuals that may result from
providing the financial incentives.
(d) In conducting the study under Subsection (b) of this
section, the commission may cooperate as necessary with any
appropriate state agency.
(e) Not later than September 1, 2006, the commission shall
report the results of the study to the standing committees of the
senate and house of representatives with primary jurisdiction over
health and human services programs or appropriations.
SECTION 1.129. REPEALER. The following provisions of the
Human Resources Code are repealed:
(1) Subdivision (1), Section 40.001;
(2) Section 40.028;
(3) Section 40.029;
(4) Subsections (b) and (c), Section 40.0305; and
(5) Subsection (c), Section 43.010.
ARTICLE 2. ADULT PROTECTIVE SERVICES
SECTION 2.01. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.0315 to read as follows:
Sec. 40.0315. INVESTIGATION UNIT FOR ADULT PROTECTIVE
SERVICES. (a) The adult protective services division of the
department shall maintain an investigation unit to investigate
allegations of abuse, neglect, and exploitation of elderly and
disabled persons reported to the division.
(b) An investigator in the unit shall determine whether an
elderly or disabled person who is the subject of a report made under
Section 48.051(a) may have suffered from abuse, neglect, or
exploitation as a result of the criminal conduct of another person.
If the investigator determines that criminal conduct may have
occurred, the investigator shall immediately notify the
appropriate law enforcement agency.
SECTION 2.02. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Sections 40.0322 and 40.0323 to read as
follows:
Sec. 40.0322. QUALIFICATIONS FOR ADULT PROTECTIVE SERVICES
PERSONNEL; RECRUITMENT. (a) In hiring department employees whose
duties include providing services as part of, or relating to, the
provision of adult protective services directly to an elderly or
disabled person, the commissioner shall ensure that the department
hires, as often as possible, persons with professional credentials
related to adult protective services, including persons who are
licensed master social workers, as defined by Section 505.002,
Occupations Code, or licensed professional counselors.
(b) Subject to the availability of funds, the executive
commissioner by rule shall develop and the department shall
implement a recruiting program designed to attract and retain for
employment in the adult protective services division persons with
professional credentials described by Subsection (a).
(c) Subject to the availability of funds, the executive
commissioner by rule shall develop and the department shall
implement an incentive program to encourage each department
employee whose duties include the duties described by Subsection
(a) to obtain professional credentials described by that subsection
if the employee does not have those credentials.
Sec. 40.0323. COORDINATION REGARDING RECRUITMENT FOR AND
CURRICULUM OF CERTAIN CERTIFICATE OR DEGREE PROGRAMS. Subject to
the availability of funds, the department and the Texas Higher
Education Coordinating Board jointly shall develop strategies to:
(1) promote certificate or degree programs in the
fields of social work and psychology to individuals enrolled in or
admitted to institutions of higher education in this state; and
(2) ensure that persons receiving a certificate or
degree, including a graduate degree, in social work or psychology
from an institution of higher education in this state have the
knowledge and skills regarding protective services that are
provided directly to elderly or disabled persons and necessary for
successful employment by the adult protective services division of
the department.
SECTION 2.03. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.035 to read as follows:
Sec. 40.035. TRAINING PROGRAM FOR ADULT PROTECTIVE
SERVICES; CONTINUING EDUCATION. (a) The department shall develop
and implement a training program that each newly hired or assigned
department employee must complete before:
(1) initiating an investigation of a report of alleged
abuse, neglect, or exploitation of an elderly or disabled person
under Chapter 48; or
(2) providing protective services to elderly or
disabled persons under that chapter.
(b) The training program must:
(1) provide the person with appropriate comprehensive
information regarding:
(A) the incidence and types of reports of abuse,
neglect, and exploitation of elderly or disabled persons that are
received by the department, including information concerning false
reports; and
(B) the use and proper implementation of:
(i) the risk assessment criteria developed
under Section 48.004;
(ii) the criteria used by caseworkers to
determine whether elderly or disabled persons lack capacity to
consent to receive protective services; and
(iii) the legal procedures available under
Chapter 48 for the protection of elderly or disabled persons,
including the procedures for obtaining a court order for emergency
protective services under Section 48.208;
(2) include best practices for management of a case
from the intake process to the provision of protective services,
including criteria that specify the circumstances under which an
employee should:
(A) consult a supervisor regarding a case; or
(B) refer an elderly or disabled person to an
appropriate public agency or community service provider for
guardianship or other long-term services after the delivery of
protective services to that person has been completed;
(3) provide appropriate specialized training in any
necessary topics, including:
(A) investigation of suspected identity theft
and other forms of financial exploitation and suspected
self-neglect; and
(B) establishment and maintenance of working
relationships with community organizations and other local
providers who provide services to elderly and disabled persons;
(4) include on-the-job training, which must require
another department caseworker with more experience to accompany and
train the caseworker in the field;
(5) provide for the development of individualized
training plans;
(6) include training in working with law enforcement
agencies and the court system when legal intervention is sought for
investigations or emergency orders;
(7) to the maximum extent possible, include nationally
recognized best practices in addition to the best practices
required under Subdivision (2); and
(8) include testing, progress reports, or other
evaluations to assess the performance of trainees.
(c) The department at least annually shall provide
comprehensive case management training to supervisors of
department employees who conduct investigations under Chapter 48.
The training must be designed to enable the supervisors to provide
guidance on investigations of reports of alleged abuse, neglect, or
exploitation that are complex or present unique problems.
(d) The department shall develop and implement appropriate
continuing education programs for employees of the adult protective
services division who have completed initial training under this
section. The continuing education programs must include nationally
recognized best practices to the maximum extent possible and must
be designed to provide an annual update regarding changes in:
(1) adult protective services division policies and
procedures; and
(2) applicable law, including statutory changes
affecting the adult protective services division or elderly or
disabled persons served by the division.
(e) A department employee required to participate in a
continuing education program under this section must complete the
program at least once each calendar year.
(f) The department shall:
(1) make curriculum developed for a training or
continuing education program under this section readily available
to department employees in written form; and
(2) periodically revise a training and continuing
education program established under this section as necessary to
satisfy training needs identified by the department or department
employees.
(g) The circumstances specified under Subsection (b)(2)
under which an employee should consult a supervisor regarding a
case must be consistent with the risk assessment criteria developed
under Section 48.004 that require consultation with a supervisor.
(h) The executive commissioner by rule shall provide
policies and procedures by which the department incorporates
examples of actual cases investigated by the department in the
training programs under this section for use as training tools.
(i) In implementing the training program and continuing
education programs under this section, the department, to the
maximum extent possible, shall contract with persons who are not
department employees to conduct the programs.
SECTION 2.04. (a) Subchapter C, Chapter 40, Human
Resources Code, is amended by adding Section 40.0515 to read as
follows:
Sec. 40.0515. QUALITY ASSURANCE PROGRAM FOR ADULT
PROTECTIVE SERVICES; QUARTERLY REPORTS. (a) The department shall
develop and implement a quality assurance program for adult
protective services provided by or on behalf of the department.
(b) In developing the program, the department shall
establish:
(1) client-centered outcome measures for each of the
following functions of the adult protective services program:
(A) intake process;
(B) investigations;
(C) risk assessment determinations; and
(D) delivery of protective services;
(2) minimum job performance standards for personnel
and each work department of the adult protective services division
of the department; and
(3) procedures for conducting periodic performance
reviews to monitor compliance with the standards established under
Subdivision (2), which must include requirements that, for each
caseworker in the adult protective services division of the
department, a supervisor shall conduct:
(A) at least two performance reviews each year,
if the employee has less than two years of adult protective services
casework experience; and
(B) at least one performance review each year, if
the employee has at least two years of adult protective services
casework experience.
(c) The department shall promptly address a person's or work
department's failure to meet minimum job performance standards
established under Subsection (b)(2):
(1) by issuing to the person or work department, as
appropriate, a corrective action plan detailing the actions
required to comply with the standards; or
(2) if necessary, through disciplinary action,
including a person's demotion or discharge, for repeated failure to
meet the standards.
(d) A performance review conducted under Subsection (b)(3)
is considered a performance evaluation for purposes of Section
40.032(c). The department shall ensure that disciplinary or other
corrective action is taken against a supervisor or other managerial
employee who is required to conduct a performance evaluation under
Section 40.032(c) or a performance review under Subsection (b)(3)
and who fails to complete that evaluation or review in a timely
manner.
(e) The annual performance evaluation required under
Section 40.032(c) of the performance of a supervisor in the adult
protective services division must:
(1) be performed by an appropriate program
administrator; and
(2) include:
(A) an evaluation of the supervisor with respect
to the job performance standards applicable to the supervisor's
assigned duties; and
(B) an evaluation of the supervisor with respect
to the compliance of employees supervised by the supervisor with
the job performance standards applicable to those employees'
assigned duties.
(f) A summary of the findings of outcome measures
established and performance reviews conducted under this section
must be reported to regional directors and other senior management
employees of the adult protective services division.
(g) Each fiscal quarter the department shall file with the
governor and the presiding officer of each house of the legislature
a report that includes:
(1) a comprehensive review of the adult protective
services division's overall performance during the preceding
quarter; and
(2) a summary of the adult protective services
division's performance during the preceding quarter on each of the
outcome measures established under Subsection (b)(1).
(b) The Department of Family and Protective Services shall
submit the initial report required under Section 40.0515, Human
Resources Code, as added by this section, not later than February 1,
2006.
SECTION 2.05. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0527 to read as follows:
Sec. 40.0527. PUBLIC AWARENESS. (a) Subject to the
availability of funds, the executive commissioner by rule shall
develop and the department shall implement a statewide public
awareness campaign designed to educate the public regarding the
abuse, neglect, and exploitation of elderly and disabled persons.
(b) The department may use mass communications media, the
Internet, publications, or other means of public education in
conducting the campaign.
(c) A public awareness strategy implemented for the program
must include:
(1) the provision of information on the incidence and
types of reports of abuse, neglect, and exploitation of elderly or
disabled persons; and
(2) practices that can reduce the incidences of abuse,
neglect, and exploitation of elderly or disabled persons in this
state.
(d) The department shall enlist the support and assistance
of civic, philanthropic, and public service organizations in the
performance of the duties imposed under this section.
SECTION 2.06. Subchapter A, Chapter 48, Human Resources
Code, is amended by adding Section 48.004 to read as follows:
Sec. 48.004. RISK ASSESSMENT. The executive commissioner
by rule shall develop and maintain risk assessment criteria for use
by department personnel in determining whether an elderly or
disabled person is in imminent risk of abuse, neglect, or
exploitation or in a state of abuse, neglect, or exploitation and
needs protective services. The criteria must:
(1) provide for a comprehensive assessment of the
person's:
(A) environmental, physical, medical, mental
health, and financial condition;
(B) social interaction and support; and
(C) need for legal intervention; and
(2) specify the circumstances under which a caseworker
must consult with a supervisor regarding a case.
SECTION 2.07. Subchapter A, Chapter 48, Human Resources
Code, is amended by adding Sections 48.005 and 48.006 to read as
follows:
Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding
Chapter 441, Government Code, or any other law, and subject to the
availability of funds, the department shall maintain in an
electronic format a summary of all records related to
investigations of reports made under Section 48.051 that includes
only critical information with respect to those investigations that
will enable the department to research the history of a person's
involvement in the investigated cases.
Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) Subject
to the availability of funds, the department shall develop a
community satisfaction survey that solicits information regarding
the department's performance with respect to providing
investigative and adult protective services. In each region, the
department shall send the survey at least annually to:
(1) stakeholders in the adult protective services
system, including local law enforcement agencies and prosecutors'
offices;
(2) protective services agencies, including nonprofit
agencies; and
(3) courts with jurisdiction over probate matters.
(b) The department shall send the results of each region's
survey to:
(1) the region for evaluation by regional and program
administrators and implementation of changes necessary to address
community concerns;
(2) the presiding judge of the statutory probate
courts in that region; and
(3) courts with jurisdiction over probate matters in
that region.
(c) The department may not include any confidential
information in the results of the survey provided under Subsection
(b)(2) or (3) unless ordered by a court.
SECTION 2.08. Section 48.051, Human Resources Code, is
amended by adding Subsection (e) to read as follows:
(e) If a person who makes a report under this section
chooses to give self-identifying information, the caseworker who
investigates the report shall contact the person if necessary to
obtain any additional information required to assist the person who
is the subject of the report.
SECTION 2.09. Section 48.101, Human Resources Code, is
amended by amending Subsections (d) and (e) and adding Subsections
(d-1), (e-1), (g), and (g-1) to read as follows:
(d) The executive commissioner shall adopt rules providing
[department or investigating state agency by rule shall provide]
for the release, on request, to a person who is the subject of a
report of abuse, neglect, or exploitation or to that person's legal
representative of otherwise confidential information relating to
that report. The department or investigating state agency shall
edit the information before release to protect the confidentiality
of information relating to the reporter's identity and to protect
any other individual whose safety or welfare may be endangered by
disclosure.
(d-1) Subject to Subsection (e-1), the executive
commissioner shall adopt rules providing for the release, on
request, by the department or investigating state agency of
otherwise confidential information relating to a person who is the
subject of a report or investigation of abuse, neglect, or
exploitation or to whom the department has provided protective
services, to:
(1) a court that has a matter pending before it that
involves the person;
(2) the attorney ad litem or any other legal
representative, other than a guardian, appointed for the person;
and
(3) the person's legal guardian.
(e) The executive commissioner [department or investigating
state agency] may adopt rules relating to the release of
information by the department or investigating state agency that is
contained in the record of a deceased individual who was the subject
of an investigation conducted by the department or investigating
state agency or to whom the department has provided protective
services. The rules must be consistent with the purposes of this
chapter and any applicable state or federal law. The executive
commissioner shall adopt rules, subject to Subsection (e-1), that
provide for the release, on request, of otherwise confidential
information in the deceased person's record to the personal
representative appointed for the person's estate.
(e-1) Information released by the department or an
investigating state agency under Subsection (d-1) or to a personal
representative under Subsection (e) may not include the identity of
the person who made the report of abuse, neglect, or exploitation.
(g) The department may establish procedures to exchange
with a community service provider or local governmental entity
confidential information relating to a report made under Section
48.051(a) that is necessary for the department, provider, or entity
to provide protective services, health care services, housing
services, or social services to the person who is the subject of the
report. An exchange of information under this subsection does not
affect whether the information is subject to disclosure under
Chapter 552, Government Code.
(g-1) The executive commissioner by rule shall provide
policies and procedures that are designed to guard against the
unauthorized release or dissemination of confidential information
that is exchanged under Subsection (g).
SECTION 2.10. (a) Subchapter D, Chapter 48, Human
Resources Code, is amended by adding Section 48.1521 to read as
follows:
Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) The
department shall develop and implement a system to ensure that, to
the greatest extent possible, investigations conducted by the
department that involve especially complex issues of abuse,
neglect, or exploitation, such as issues associated with identity
theft and other forms of financial exploitation, are:
(1) assigned to personnel who have experience and
training in those issues; and
(2) monitored by a special task unit for complex
cases.
(b) Each county with a population of 250,000 or more shall
appoint persons to serve as standing members of a special task unit
to monitor cases that arise in the county and require monitoring as
provided by Subsection (a). The standing members of each special
task unit must include:
(1) a provider of mental health services or aging
services or a representative of a nonprofit entity serving persons
with disabilities;
(2) a representative of a law enforcement agency; and
(3) a legal expert.
(c) In addition to the standing members specified by
Subsection (b), the special task unit:
(1) must include, for purposes of monitoring a
particular case, the caseworker on the case and the caseworker's
supervisor; and
(2) may include a financial forensics expert and any
other person with expertise that would be useful in monitoring a
particular case.
(d) The department shall develop and make available to each
county described by Subsection (b) a manual to assist the county in
establishing and operating the special task unit required by this
section. The manual must describe:
(1) the purpose and potential benefits of the unit;
(2) a description of the monitoring process the unit
is expected to follow and potential problems the unit may
encounter;
(3) the composition and administration of the unit;
and
(4) the department's criteria for selecting cases to
be monitored by the unit.
(e) Before the special task unit makes a recommendation that
a guardian be appointed for a person in a case being monitored by
the unit, the unit shall thoroughly consider all less-restrictive
alternatives for legal intervention in the case.
(b) The Department of Family and Protective Services shall
develop the manual required by Subsection (d), Section 48.1521,
Human Resources Code, as added by Subsection (a) of this section, as
soon as possible after the effective date of this article. In
developing the manual, the department shall use Wisconsin's Elder
Abuse Interdisciplinary Team Manual as a model.
SECTION 2.11. Subchapter D, Chapter 48, Human Resources
Code, is amended by adding Section 48.1522 to read as follows:
Sec. 48.1522. REPORTS OF CRIMINAL CONDUCT TO LAW
ENFORCEMENT AGENCY. If during the course of the department's or
another state agency's investigation of reported abuse, neglect, or
exploitation a caseworker of the department or other state agency,
as applicable, or the caseworker's supervisor has cause to believe
that the elderly or disabled person has been abused, neglected, or
exploited by another person in a manner that constitutes a criminal
offense under any law, including Section 22.04, Penal Code, the
caseworker or supervisor shall:
(1) immediately notify an appropriate law enforcement
agency; and
(2) provide the law enforcement agency with a copy of
the investigation report of the department or other state agency,
as applicable, in a timely manner.
SECTION 2.12. Subchapter D, Chapter 48, Human Resources
Code, is amended by adding Section 48.1523 to read as follows:
Sec. 48.1523. MANAGEMENT REVIEW FOLLOWING CERTAIN
INVESTIGATIONS. If the department receives and investigates a
report made under Section 48.051, the subject of which is a person
with respect to whom the department received and investigated two
previous reports under that section and closed those
investigations, an adult protective services supervisor shall:
(1) classify the case as a recidivist case;
(2) review the reports and investigation files
concerning that person; and
(3) assist the caseworker and supervisor
investigating the third report in developing a long-term plan for
resolving the issues involved in the case.
SECTION 2.13. Subchapter D, Chapter 48, Human Resources
Code, is amended by adding Section 48.159 to read as follows:
Sec. 48.159. INTERNAL REVIEW OF DEPARTMENT INVESTIGATION.
The department shall establish procedures for conducting an
internal review of completed investigations conducted by the
department under this chapter to:
(1) determine whether information obtained during the
intake process was sufficient and accurate;
(2) assess whether telephone calls were appropriately
routed;
(3) assess whether investigations were appropriately
classified and prioritized;
(4) evaluate the case reports for any special issues
or requirements;
(5) assess whether appropriate law enforcement
agencies were notified of any suspected criminal conduct; and
(6) identify other relevant information to enable the
department to take any corrective action necessary to improve the
process of conducting investigations under this chapter.
SECTION 2.14. Section 48.202, Human Resources Code, is
amended to read as follows:
Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY.
(a) In an investigation the department or state agency, as
appropriate, shall determine:
(1) whether the person needs protective services from
the department;
(2) what services are needed;
(3) whether services are available from the
department, from the state agency, or in the community and how they
can be provided;
(4) whether the person, acting alone, would be capable
of obtaining needed services and could bear the cost or would be
eligible for services from the department or state agency;
(5) whether a caretaker would be willing to provide
services or would agree to their provision [provisions];
(6) whether the elderly or disabled person desires the
services; [and]
(7) whether the person needs legal intervention to
resolve the person's abuse, neglect, or exploitation and, if so,
what type of intervention is needed; and
(8) other pertinent data.
(b) If the department or state agency, as appropriate,
determines under Subsection (a)(1) that a person needs protective
services, the department or agency shall, in determining how those
services can be provided as required by Subsection (a)(3),
determine whether the person is eligible for community-based
long-term care services and whether those services are available.
If the person is eligible for those services, but the services are
not immediately available, the department or state agency shall
ensure that the person is placed on an appropriate waiting list for
the services and that the person's abuse, neglect, or exploitation
is resolved before the department closes the case.
SECTION 2.15. Subsections (a) and (b), Section 48.205,
Human Resources Code, are amended to read as follows:
(a) Subject to the availability of funds, the [The]
department shall [may] provide direct protective services or
contract with protective services agencies for the provision
[provisions] of those services.
(b) The department shall use existing resources and
services of public and private agencies in providing protective
services. If the department does not have existing resources to
provide direct protective services to elderly or disabled persons,
the department, subject to the availability of funds, shall
contract with protective services agencies for the provision of
those services, especially to elderly or disabled persons residing
in rural or remote areas of this state or not previously served by
the department.
SECTION 2.16. Section 48.208, Human Resources Code, is
amended by amending Subsection (e) and adding Subsections (c-1),
(c-2), (c-3), (c-4), (c-5), (d-1), (e-1), and (e-2) to read as
follows:
(c-1) Notwithstanding Subsection (c)(4), in lieu of a
medical report described by Subsection (c)(4), the petition may
include an assessment of the elderly or disabled person's health
status as described by Subsection (c-2) or psychological status as
described by Subsection (c-3), or a medical opinion of the elderly
or disabled person's health status as described by Subsection
(c-4), if the department determines, after making a good faith
effort, that a physician from whom the department may obtain the
medical report is unavailable. The department shall ensure that
the person who performs an assessment of the elderly or disabled
person's health or psychological status has training and experience
in performing the applicable assessment.
(c-2) Except as provided by Subsection (c-4), an assessment
of the elderly or disabled person's health status must be performed
by a physician assistant or advanced practice nurse. The person
performing the assessment shall sign a report stating:
(1) that the elderly or disabled person is reported to
be suffering from abuse, neglect, or exploitation, which may
present a threat to the person's life or physical safety;
(2) whether the elderly or disabled person has
provided the person's medical history to the physician assistant or
advanced practice nurse, as applicable; and
(3) that in the professional opinion of the physician
assistant or advanced practice nurse, as applicable, the issuance
of an emergency order authorizing protective services without the
elderly or disabled person's consent is necessary under the
circumstances.
(c-3) An assessment of the elderly or disabled person's
psychological status must be performed by a licensed psychologist
or master social worker who has training and expertise in issues
related to abuse, neglect, and exploitation. The person performing
the assessment shall sign a report stating:
(1) that the elderly or disabled person is reported to
be suffering from abuse, neglect, or exploitation, which may
present a threat to the person's life or physical safety; and
(2) that in the professional opinion of the licensed
psychologist or master social worker, as applicable, the issuance
of an emergency order authorizing protective services without the
elderly or disabled person's consent is necessary under the
circumstances.
(c-4) A registered nurse may perform a nursing assessment of
the elderly or disabled person's health status. If the registered
nurse, based on the registered nurse's professional nursing
judgment, determines that the elderly or disabled person is likely
to be suffering from abuse, neglect, or exploitation, which may
present a threat to the person's life or physical safety, the
registered nurse shall report that assessment to a physician.
After the registered nurse reports the assessment, the physician
shall sign a written opinion stating whether:
(1) the elderly or disabled person is reported to be
suffering from abuse, neglect, or exploitation, which may present a
threat to the person's life or physical safety; and
(2) the issuance of an emergency order authorizing
protective services without the elderly or disabled person's
consent is necessary under the circumstances.
(c-5) The physician may use the registered nurse's
assessment of the elderly or disabled person's health status as the
basis of the physician's professional opinion under Subsection
(c-4).
(d-1) If the court renders an order that is based on a
petition including an assessment under Subsection (c-2) or (c-3) or
a medical opinion under Subsection (c-4), the court shall order
that the elderly or disabled person be examined by a physician not
later than 72 hours after the time the provision of protective
services begins. After performing the examination, the physician
shall sign and submit to the court a medical report stating the
physician's opinion whether the elderly or disabled person is:
(1) suffering from abuse, neglect, or exploitation
presenting a threat to life or physical safety; and
(2) physically or mentally incapable of consenting to
services.
(e) The emergency order expires at the end of 72 hours from
the time [of] the order is rendered unless:
(1) the emergency order terminates as provided by
Subsection (e-1);
(2) the 72-hour period ends on a Saturday, Sunday, or
legal holiday in which event the order is automatically extended to
4 p.m. on the first succeeding business day; or
(3) the court extends the order as provided by
Subsection (e-2).
(e-1) An emergency order that was rendered based on a
petition that included an assessment under Subsection (c-2) or
(c-3) or a medical opinion under Subsection (c-4) immediately
terminates if the medical report issued under Subsection (d-1)
states the physician's opinion that the elderly or disabled person:
(1) is not suffering from abuse, neglect, or
exploitation presenting a threat to life or physical safety; or
(2) is physically or mentally capable of consenting to
services.
(e-2) The court may extend an emergency order issued under
this section [An order may be renewed] for a period of not more than
30 [14 additional] days. An extension [A renewal] order that ends
on a Saturday, Sunday, or legal holiday is automatically extended
to 4 p.m. on the first succeeding business day. The court may
modify or terminate the emergency order on petition of the
department, the incapacitated person, or any person interested in
his welfare.
SECTION 2.17. Section 531.0162, Government Code, is amended
by adding Subsections (c) and (d) to read as follows:
(c) Subject to available appropriations, the commission
shall use technology whenever possible in connection with the adult
protective services program of the Department of Family and
Protective Services to:
(1) provide for automated collection of information
necessary to evaluate program effectiveness using systems that
integrate collection of necessary information with other routine
duties of caseworkers and other service providers; and
(2) consequently reduce the time that caseworkers and
other service providers are required to use in gathering and
reporting information necessary for program evaluation.
(d) The commission shall include representatives of the
private sector in the technology planning process used to determine
appropriate technology for the adult protective services program of
the Department of Family and Protective Services.
SECTION 2.18. (a) Section 531.048, Government Code, is
amended by adding Subsection (g) to read as follows:
(g) The executive commissioner shall develop and, subject
to the availability of funds, implement a caseload management
reduction plan to reduce, not later than January 1, 2011, caseloads
for caseworkers employed by the adult protective services division
of the Department of Family and Protective Services to a level that
does not exceed professional caseload standards by more than five
cases per caseworker. The plan must provide specific annual
targets for caseload reduction.
(b) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
adopt rules establishing the caseload management reduction plan as
provided by Subsection (g), Section 531.048, Government Code, as
added by this section.
(c) Not later than December 31 of each even-numbered year,
the executive commissioner of the Health and Human Services
Commission shall prepare a report regarding the implementation of
the plan provided by Subsection (g), Section 531.048, Government
Code, as added by this section. The report must include an
assessment of the effect of the plan on reducing caseloads and the
amount of funding necessary to fully implement the plan during the
next biennium. The executive commissioner shall submit the report
to the governor, the lieutenant governor, the speaker of the house
of representatives, and the presiding officer of each house and
senate standing committee having jurisdiction over adult
protective services.
SECTION 2.19. LOCAL ADULT PROTECTIVE SERVICES BOARDS.
(a) The standing committee of the senate having jurisdiction over
adult protective services shall conduct a study regarding the
feasibility of establishing a system by which adult protective
services are provided through a statewide network of local adult
protective services boards. Each local adult protective services
board would:
(1) serve a designated local adult protective services
area;
(2) develop a local adult protective services plan for
approval by the Department of Family and Protective Services; and
(3) receive a block grant through the department to
provide adult protective services in accordance with the approved
local adult protective services plan.
(b) The standing committee of the senate having
jurisdiction over adult protective services must include the
results of the study conducted under this section and
recommendations regarding implementation of the local adult
protective services board system in the committee's interim report
to the 80th Legislature.
SECTION 2.20. PILOT PROGRAM FOR MONITORING CERTAIN
UNLICENSED LONG-TERM CARE FACILITIES. (a) In this section:
(1) "Disabled person" has the meaning assigned by
Section 48.002, Human Resources Code.
(2) "Elderly person" has the meaning assigned by
Section 48.002, Human Resources Code.
(3) "Long-term care facility" means:
(A) a nursing home or related institution;
(B) an assisted living facility;
(C) an ICF-MR, as defined by Section 531.002,
Health and Safety Code;
(D) a community home subject to Chapter 123,
Human Resources Code; or
(E) any other residential arrangement that
provides care to four or more adults who are unrelated to the
proprietor of the establishment.
(b) The executive commissioner of the Health and Human
Services Commission by rule shall develop and implement a pilot
program in which local task forces composed of health care
providers, representatives from governmental entities, and local
government officials are created to:
(1) identify, through a coordination of efforts and
resources, persons establishing or operating:
(A) long-term care facilities providing personal
care services, health-related services, or other care to elderly or
disabled persons without being licensed or providing disclosures as
required by state law; or
(B) residential facilities or arrangements
providing personal care services or other care in violation of
state law to three or fewer elderly or disabled persons who are
unrelated to the proprietor of the establishment; and
(2) take appropriate action necessary to:
(A) report the facilities or arrangements
described by Subdivision (1) of this subsection to the appropriate
state regulatory agencies or local law enforcement agencies;
(B) assist, whenever practicable, a long-term
care facility described by Paragraph (A), Subdivision (1) of this
subsection, in obtaining the appropriate licensure or making the
appropriate disclosures on request of the facility; and
(C) assist, if it is feasible and practicable, a
facility or arrangement described by Paragraph (B), Subdivision (1)
of this subsection, in complying with applicable regulatory
requirements of state or local law.
(c) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
implement the pilot program in at least one rural area and one urban
area of this state.
(d) Not later than January 1, 2007, the Health and Human
Services Commission shall submit a report on the status and
progress of the pilot program to the governor, the lieutenant
governor, the speaker of the house of representatives, and the
presiding officer of each house and senate standing committee
having jurisdiction over adult protective services. The report
must include a recommendation regarding the advisability of
expanding the pilot program statewide.
(e) This section expires September 1, 2007.
SECTION 2.21. REPEALER. Section 48.157, Human Resources
Code, is repealed.
ARTICLE 3. GUARDIANSHIP AND RELATED SERVICES
SECTION 3.01. The heading to Subchapter E, Chapter 48,
Human Resources Code, is amended to read as follows:
SUBCHAPTER E. PROVISION OF SERVICES; [GUARDIANSHIP SERVICES;]
EMERGENCY PROTECTION
SECTION 3.02. Section 48.209, Human Resources Code, is
amended to read as follows:
Sec. 48.209. REFERRAL FOR GUARDIANSHIP SERVICES
[GUARDIANSHIPS]. (a) The department shall refer an individual to
the Department of Aging and Disability Services for guardianship
services under Subchapter E, Chapter 161, if the individual is:
(1) a minor in the conservatorship of the department
who:
(A) is 16 years of age or older; and
(B) the department has reason to believe will,
because of a physical or mental condition, be substantially unable
to provide for the individual's own food, clothing, or shelter, to
care for the individual's own physical health, or to manage the
individual's own financial affairs when the individual becomes an
adult; or
(2) an elderly or disabled person who:
(A) has been found by the department to be in a
state of abuse, neglect, or exploitation; and
(B) the department has reason to believe is an
incapacitated person as defined by Section 601(14)(B), Texas
Probate Code.
(b) Notwithstanding Subsection (a), if a less restrictive
alternative to guardianship is appropriate and available for the
individual, the department shall pursue that alternative instead of
making a referral to the Department of Aging and Disability
Services for guardianship services.
(c) The department and the Department of Aging and
Disability Services shall enter into a memorandum of understanding
that sets forth in detail the roles and duties of each agency
regarding the referral for guardianship services under Subsection
(a) and the provision of guardianship services to individuals under
Subchapter E, Chapter 161.
(d) Nothing in this section shall prohibit the department
from also making a referral of an individual to a court having
probate jurisdiction in the county where the individual is
domiciled or found, if the court has requested the department to
notify the court of any individuals who may be appropriate for a
court-initiated guardianship proceeding under Section 683, Texas
Probate Code. In making a referral under this subsection and if
requested by the court, the department shall, to the extent allowed
by law, provide the court with all relevant information in the
department's records relating to the individual. The court, as
part of this process, may not require the department to:
(1) perform the duties of a guardian ad litem or court
investigator as prescribed by Section 683, Texas Probate Code; or
(2) gather additional information not contained in the
department's records.
(e) The department may not be appointed to serve as
temporary or permanent guardian for any individual. [(a) The
department shall file an application under Section 682 or 875,
Texas Probate Code, to be appointed guardian of the person or estate
or both of an individual who is a minor, is a conservatee of the
department, and, because of a physical or mental condition, will be
substantially unable to provide food, clothing, or shelter for
himself or herself, to care for the individual's own physical
health, or to manage the individual's own financial affairs when
the individual becomes an adult. If a less restrictive alternative
to guardianship is available for an individual, the department
shall pursue the alternative instead of applying for appointment as
a guardian.
[(b) As a last resort, the department may apply to be
appointed guardian of the person or estate of an elderly or disabled
person who is found by the department to be in a state of abuse,
neglect, or exploitation, and who, because of a physical or mental
condition, will be substantially unable to provide food, clothing,
or shelter for himself or herself, to care for the individual's own
physical health, or to manage the individual's own financial
affairs. A representative of the department shall take the oath
required by the Texas Probate Code on behalf of the department if
the department is appointed guardian. If the department knows that
an individual is willing and able to serve as the guardian, the
department may inform the court of that individual's willingness
and ability.
[(c) If appropriate, the department may contract with a
political subdivision of this state, a private agency, or another
state agency for the provision of guardianship services under this
section. The department or a political subdivision of the state or
state agency with which the department contracts under this section
is not required to post a bond or pay any cost or fee otherwise
required by the Texas Probate Code.
[(d) If the department is appointed guardian, the
department is not liable for funding services provided to the
department's ward, including long-term care or burial expenses.
[(e) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
[(f) The department shall file an application with the court
to name a successor guardian if the department becomes aware of a
qualified and willing individual or guardianship program serving
the area in which the ward is located.]
SECTION 3.03. Section 161.071, Human Resources Code, is
amended to read as follows:
Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
department is responsible for administering human services
programs for the aging and disabled, including:
(1) administering and coordinating programs to
provide community-based care and support services to promote
independent living for populations that would otherwise be
institutionalized;
(2) providing institutional care services, including
services through convalescent and nursing homes and related
institutions under Chapter 242, Health and Safety Code;
(3) providing and coordinating programs and services
for persons with disabilities, including programs for the
treatment, rehabilitation, or benefit of persons with
developmental disabilities or mental retardation;
(4) operating state facilities for the housing,
treatment, rehabilitation, or benefit of persons with
disabilities, including state schools for persons with mental
retardation;
(5) serving as the state unit on aging required by the
federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
and its subsequent amendments, including performing the general
functions under Section 101.022 to ensure:
(A) implementation of the federal Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
subsequent amendments, including implementation of services and
volunteer opportunities under that Act for older residents of this
state through area agencies on aging;
(B) advocacy for residents of nursing facilities
through the office of the state long-term care ombudsman;
(C) fostering of the state and community
infrastructure and capacity to serve older residents of this state;
and
(D) availability of a comprehensive resource for
state government and the public on trends related to and services
and programs for an aging population;
(6) performing all licensing and enforcement
activities and functions related to long-term care facilities,
including licensing and enforcement activities related to
convalescent and nursing homes and related institutions under
Chapter 242, Health and Safety Code;
(7) performing all licensing and enforcement
activities related to assisted living facilities under Chapter 247,
Health and Safety Code;
(8) performing all licensing and enforcement
activities related to intermediate care facilities for persons with
mental retardation under Chapter 252, Health and Safety Code; [and]
(9) performing all licensing and enforcement
activities and functions related to home and community support
services agencies under Chapter 142, Health and Safety Code; and
(10) serving as guardian of the person or estate, or
both, for an incapacitated individual as provided by Subchapter E
of this chapter and Chapter XIII, Texas Probate Code.
SECTION 3.04. Chapter 161, Human Resources Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. GUARDIANSHIP SERVICES
Sec. 161.101. GUARDIANSHIP SERVICES. (a) The department
shall file an application under Section 682 or 875, Texas Probate
Code, to be appointed guardian of the person or estate, or both, of
a minor referred to the department under Section 48.209(a)(1) for
guardianship services if the department determines:
(1) that the minor, because of a mental or physical
condition, will be substantially unable to provide for the minor's
own food, clothing, or shelter, to care for the minor's own physical
health, or to manage the individual's own financial affairs when
the minor becomes an adult; and
(2) that a less restrictive alternative to
guardianship is not available for the minor.
(b) The department shall conduct a thorough assessment of
the conditions and circumstances of an elderly or disabled person
referred to the department under Section 48.209(a)(2) for
guardianship services to determine whether a guardianship is
appropriate for the individual. In determining whether a
guardianship is appropriate, the department may consider the
resources and funds available to meet the needs of the elderly or
disabled person. The executive commissioner shall adopt rules for
the administration of this subsection.
(c) If after conducting an assessment of an elderly or
disabled person under Subsection (b) the department determines that
a guardianship is appropriate for the elderly or disabled person,
the department shall file an application under Section 682 or 875,
Texas Probate Code, to be appointed guardian of the person or
estate, or both, of the individual. If after conducting the
assessment the department determines that a less restrictive
alternative to guardianship is available for the elderly or
disabled person, the department shall pursue the less restrictive
alternative instead of applying for appointment as the person's
guardian.
(d) The department may not be required by a court to file an
application for guardianship, and the department may not be
appointed as permanent guardian for any individual unless the
department files an application to serve or otherwise agrees to
serve as the individual's guardian of the person or estate, or both.
(e) A guardianship created for an individual as a result of
an application for guardianship filed under Subsection (a) may not
take effect before the individual's 18th birthday.
Sec. 161.102. REFERRAL TO GUARDIANSHIP PROGRAM, COURT, OR
OTHER PERSON. (a) If the department becomes aware of a
guardianship program, private professional guardian, or other
person willing and able to provide the guardianship services that
would otherwise be provided by the department to an individual
referred to the department by the Department of Family and
Protective Services under Section 48.209, the department shall
refer the individual to that person or program for guardianship
services.
(b) If requested by a court, the department shall notify the
court of any referral made to the department by the Department of
Family and Protective Services relating to any individual who is
domiciled or found in a county where the requesting court has
probate jurisdiction and who may be appropriate for a
court-initiated guardianship proceeding under Section 683, Texas
Probate Code. In making a referral under this subsection and if
requested by the court, the department shall, to the extent allowed
by law, provide the court with all relevant information in the
department's records relating to the individual. The court, as
part of this process, may not require the department to:
(1) perform the duties of a guardian ad litem or court
investigator as prescribed by Section 683, Texas Probate Code; or
(2) gather additional information not contained in the
department's records.
Sec. 161.103. CONTRACT FOR GUARDIANSHIP SERVICES. If
appropriate, the department may contract with a political
subdivision of this state, a guardianship program as defined by
Section 601, Texas Probate Code, a private agency, or another state
agency for the provision of guardianship services under this
section.
Sec. 161.104. QUALITY ASSURANCE PROGRAM. The department
shall develop and implement a quality assurance program for
guardianship services provided by or on behalf of the department.
If the department enters into a contract with a political
subdivision, guardianship program, private agency, or other state
agency under Section 161.103, the department shall establish a
monitoring system as part of the quality assurance program to
ensure the quality of guardianship services for which the
department contracts under that section.
Sec. 161.105. OATH. A representative of the department
shall take the oath required by the Texas Probate Code on behalf of
the department if the department is appointed guardian of the
person or estate, or both, of a ward under Chapter XIII of that
code.
Sec. 161.106. GUARDIANSHIP POWERS AND DUTIES. In serving
as guardian of the person or estate, or both, for an incapacitated
individual, the department has all the powers granted and duties
prescribed to a guardian under Chapter XIII, Texas Probate Code, or
any other applicable law.
Sec. 161.107. EXEMPTION FROM GUARDIANSHIP BONDS, CERTAIN
COSTS, FEES, AND EXPENSES. (a) The department or a political
subdivision of this state or state agency with which the department
contracts under Section 161.103 is not required to post a bond or
pay any cost or fee associated with a bond otherwise required by the
Texas Probate Code in guardianship matters.
(b) The department is not required to pay any cost or fee
otherwise imposed for court proceedings or other services,
including:
(1) a filing fee or fee for issuance of service of
process imposed by Section 51.317, 51.318(b)(2), or 51.319,
Government Code;
(2) a court reporter fee imposed by Section 51.601,
Government Code;
(3) a judicial fund fee imposed by Section 51.702,
Government Code;
(4) a judge's fee imposed by Section 25.0008 or
25.0029, Government Code;
(5) a cost or security fee imposed by Section 12 or
622, Texas Probate Code; or
(6) a fee imposed by a county officer under Section
118.011 or 118.052, Local Government Code.
(c) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
(d) A political subdivision of this state or state agency
with which the department contracts under Section 161.103 is not
required to pay any cost or fee otherwise required by the Texas
Probate Code.
(e) If the department is appointed guardian, the department
is not liable for funding services provided to the department's
ward, including long-term care or burial expenses.
Sec. 161.108. SUCCESSOR GUARDIAN. The department shall
review each of the department's pending guardianship cases at least
annually to determine whether a more suitable person, including a
guardianship program or private professional guardian, is willing
and able to serve as successor guardian for a ward of the
department. If the department becomes aware of any person's
willingness and ability to serve as successor guardian, the
department shall notify the court in which the guardianship is
pending as required by Section 695A, Texas Probate Code.
Sec. 161.109. ACCESS TO RECORDS OR DOCUMENTS. (a) The
department shall have access to all of the records and documents
concerning an individual referred for guardianship services under
this subchapter that are necessary to the performance of the
department's duties under this subchapter, including
client-identifying information and medical, psychological,
educational, or residential information.
(b) The department is exempt from the payment of a fee
otherwise required or authorized by law to obtain a medical record,
including a mental health record, from a hospital or health care
provider if the request for a record is made in the course of an
assessment for guardianship services conducted by the department.
(c) If the department cannot obtain access to a record or
document that is necessary to properly perform a duty under this
subchapter, the department may petition the probate court or the
statutory or constitutional court having probate jurisdiction for
access to the record or document.
(d) The court with probate jurisdiction shall, on good cause
shown, order the person or entity who denied access to a record or
document to allow the department to have access to the record or
document under the terms and conditions prescribed by the court.
(e) A person or entity is entitled to notice of and a hearing
on the department's petition for access as described by this
section.
(f) Access to, or disclosure of, a confidential record or
other confidential information under this section does not
constitute a waiver of confidentiality for other purposes or as to
other persons.
Sec. 161.110. LEGAL REPRESENTATION OF DEPARTMENT.
(a) Except as provided by Subsection (b), (c), or (f), the
prosecuting attorney representing the state in criminal cases in
the county court shall represent the department in any proceeding
under this subchapter unless the representation would be a conflict
of interest.
(b) If the attorney representing the state in criminal cases
in the county court is unable to represent the department in an
action under this subchapter because of a conflict of interest, the
attorney general shall represent the department in the action.
(c) If the attorney general is unable to represent the
department in an action under this subchapter, the attorney general
shall deputize an attorney who has contracted with the department
under Subsection (d) or an attorney employed by the department
under Subsection (e) to represent the department in the action.
(d) Subject to the approval of the attorney general, the
department may contract with a private attorney to represent the
department in an action under this subchapter.
(e) The department may employ attorneys to represent the
department in an action under this subchapter.
(f) In a county having a population of more than 2.8
million, the prosecuting attorney representing the state in civil
cases in the county court shall represent the department in any
proceeding under this subchapter unless the representation would be
a conflict of interest. If such attorney is unable to represent the
department in an action under this subchapter because of a conflict
of interest, the attorney general shall represent the department in
the action.
Sec. 161.111. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION. (a) All files, reports, records, communications, or
working papers used or developed by the department in the
performance of duties relating to the assessment for or the
provision of guardianship services to an individual referred for
guardianship services under this subchapter are confidential and
not subject to disclosure under Chapter 552, Government Code.
(b) Confidential information may be disclosed only for a
purpose consistent with this subchapter, as required by other state
or federal law, or as necessary to enable the department to exercise
its powers and duties as guardian of the person or estate, or both,
of an individual.
(c) A court may order disclosure of confidential
information only if:
(1) a motion is filed with the court requesting
release of the information and a hearing on that request;
(2) notice of the hearing is served on the department
and each interested party; and
(3) the court determines after the hearing and an in
camera review of the information that disclosure is essential to
the administration of justice and will not endanger the life or
safety of any individual who:
(A) is being assessed by the department for
guardianship services under this subchapter;
(B) is a ward of the department; or
(C) provides services to a ward of the
department.
(d) The department shall establish a policy and procedures
for the exchange of information with another state agency or
governmental entity, including a court, with a local guardianship
program to which an individual is referred for services, or with any
other entity who provides services to a ward of the department, as
necessary for the department, state agency, governmental entity, or
other entity to properly execute its respective duties and
responsibilities to provide guardianship services or other needed
services to meet the needs of the ward under this subchapter or
other law. An exchange of information under this subsection does
not constitute a release for purposes of waiving the
confidentiality of the information exchanged.
Sec. 161.112. INDEMNIFICATION FOR LEGAL EXPENSES. If a
present or former employee of the department who was involved in
activities related to the provision of guardianship services under
this subchapter is criminally prosecuted for conduct related to the
person's misfeasance or nonfeasance in the course and scope of the
person's employment and is found not guilty after a trial or appeal
or if the complaint or indictment is dismissed without a plea of
guilty or nolo contendere being entered, the department may
indemnify the person or the person's estate for the reasonable
attorney's fees incurred in defense of the prosecution up to a
maximum of $10,000.
Sec. 161.113. IMMUNITY. (a) In this section, "volunteer"
means a person who:
(1) renders services for or on behalf of the
department under the supervision of a department employee; and
(2) does not receive compensation that exceeds the
authorized expenses the person incurs in performing those services.
(b) A department employee or an authorized volunteer who
performs a department duty or responsibility under this subchapter
is immune from civil or criminal liability for any act or omission
that relates to the duty or responsibility if the person acted in
good faith and within the scope of the person's authority.
SECTION 3.05. Section 601, Texas Probate Code, is amended
by adding Subdivision (12-a) and amending Subdivisions (13) and
(24) to read as follows:
(12-a) "Guardianship Certification Board" means the
Guardianship Certification Board established under Chapter 111,
Government Code.
(13) "Guardianship program" has the meaning assigned
by Section 111.001, Government Code [means a local, county, or
regional program that provides guardianship and related services to
an incapacitated person or other person who needs assistance in
making decisions concerning the person's own welfare or financial
affairs].
(24) "Private professional guardian" has the meaning
assigned by Section 111.001, Government Code [means a person, other
than an attorney or a corporate fiduciary, who is engaged in the
business of providing guardianship services].
SECTION 3.06. The heading to Subpart J, Part 2, Chapter
XIII, Texas Probate Code, is amended to read as follows:
SUBPART J. LIABILITY OF GUARDIAN [FOR CONDUCT OF WARD]
SECTION 3.07. The heading to Section 673, Texas Probate
Code, is amended to read as follows:
Sec. 673. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD.
SECTION 3.08. Subpart J, Part 2, Chapter XIII, Texas
Probate Code, is amended by adding Section 674 to read as follows:
Sec. 674. IMMUNITY OF GUARDIANSHIP PROGRAM. A guardianship
program is not liable for civil damages arising from an action taken
or omission made by a person while providing guardianship services
to a ward on behalf of the guardianship program, unless the action
or omission:
(1) was wilfully wrongful;
(2) was taken or made with conscious indifference or
reckless disregard to the safety of the incapacitated person or
another;
(3) was taken or made in bad faith or with malice; or
(4) was grossly negligent.
SECTION 3.09. Section 682, Texas Probate Code, is amended
to read as follows:
Sec. 682. APPLICATION; CONTENTS. Any person may commence a
proceeding for the appointment of a guardian by filing a written
application in a court having jurisdiction and venue. The
application must be sworn to by the applicant and state:
(1) the name, sex, date of birth, and address of the
proposed ward;
(2) the name, relationship, and address of the person
the applicant desires to have appointed as guardian;
(3) whether guardianship of the person or estate, or
both, is sought;
(4) the nature and degree of the alleged incapacity,
the specific areas of protection and assistance requested, and the
limitation of rights requested to be included in the court's order
of appointment;
(5) the facts requiring that a guardian be appointed
and the interest of the applicant in the appointment;
(6) the nature and description of any guardianship of
any kind existing for the proposed ward in any other state;
(7) the name and address of any person or institution
having the care and custody of the proposed ward;
(8) the approximate value and description of the
proposed ward's property, including any compensation, pension,
insurance, or allowance to which the proposed ward may be entitled;
(9) the name and address of any person whom the
applicant knows to hold a power of attorney signed by the proposed
ward and a description of the type of power of attorney;
(10) if the proposed ward is a minor and if known by
the applicant:
(A) the name of each parent of the proposed ward
and state the parent's address or that the parent is deceased;
(B) the name and age of each sibling, if any, of
the proposed ward and state the sibling's address or that the
sibling is deceased; and
(C) if each of the proposed ward's parents and
siblings are deceased, the names and addresses of the proposed
ward's next of kin who are adults;
(11) if the proposed ward is a minor, whether the minor
was the subject of a legal or conservatorship proceeding within the
preceding two-year period and, if so, the court involved, the
nature of the proceeding, and the final disposition, if any, of the
proceeding;
(12) if the proposed ward is an adult and if known by
the applicant:
(A) the name of the proposed ward's spouse, if
any, and state the spouse's address or that the spouse is deceased;
(B) the name of each of the proposed ward's
parents and state the parent's address or that the parent is
deceased;
(C) the name and age of each of the proposed
ward's siblings, if any, and state the sibling's address or that the
sibling is deceased;
(D) the name and age of each of the proposed
ward's children, if any, and state the child's address or that the
child is deceased; and
(E) if the proposed ward's spouse and each of the
proposed ward's parents, siblings, and children are deceased, or,
if there is no spouse, parent, adult sibling, or adult child, the
names and addresses of the proposed ward's next of kin who are
adults;
(13) facts showing that the court has venue over the
proceeding; and
(14) if applicable, that the person whom the applicant
desires to have appointed as a guardian is a private professional
guardian who is certified under Subchapter C, Chapter 111,
Government Code, and has complied with the requirements of Section
697 of this code.
SECTION 3.10. Section 695A, Texas Probate Code, is amended
by adding Subsection (a-1) to read as follows:
(a-1) If, while serving as a guardian for a ward under this
chapter, the Department of Aging and Disability Services becomes
aware of a guardianship program or private professional guardian
willing and able to serve as the ward's successor guardian and the
department is not aware of a family member or friend of the ward or
any other interested person who is willing and able to serve as the
ward's successor guardian, the department shall notify the court in
which the guardianship is pending of the guardianship program's or
private professional guardian's willingness and ability to serve.
SECTION 3.11. Section 696, Texas Probate Code, is amended
to read as follows:
Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
court may not appoint a private professional guardian to serve as a
guardian or permit a private professional guardian to continue to
serve as a guardian under this code if the private professional
guardian:
(1) has not complied with the requirements of Section
697 of this code; or
(2) is not certified as provided by Section 697B of
this code.
SECTION 3.12. Subpart A, Part 3, Texas Probate Code, is
amended by adding Sections 696A and 696B to read as follows:
Sec. 696A. APPOINTMENT OF PUBLIC GUARDIANS. (a) An
individual employed by or contracting with a guardianship program
must be certified as provided by Section 697B of this code to
provide guardianship services to a ward of the guardianship
program.
(b) An employee of the Department of Aging and Disability
Services must be certified as provided by Section 697B of this code
to provide guardianship services to a ward of the department.
Sec. 696B. APPOINTMENT OF FAMILY MEMBERS OR FRIENDS. A
family member or friend of an incapacitated person is not required
to be certified under Subchapter C, Chapter 111, Government Code,
or any other law to serve as the person's guardian.
SECTION 3.13. Subsections (a), (c), and (e), Section 697,
Texas Probate Code, are amended to read as follows:
(a) A private professional guardian must apply annually to
the clerk of the county having venue over the proceeding for the
appointment of a guardian for a certificate of registration
[certification]. The application must include a sworn statement
containing the following information concerning a private
professional guardian or each person who represents or plans to
represent the interests of a ward as a guardian on behalf of the
private professional guardian:
(1) educational background and professional
experience;
(2) three or more professional references;
(3) the names of all of the wards the private
professional guardian or person is or will be serving as a guardian;
(4) the aggregate fair market value of the property of
all wards that is being or will be managed by the private
professional guardian or person;
(5) place of residence, business address, and business
telephone number; and
(6) whether the private professional guardian or
person has ever been removed as a guardian by the court or resigned
as a guardian in a particular case, and, if so, a description of the
circumstances causing the removal or resignation, and the style of
the suit, the docket number, and the court having jurisdiction over
the proceeding.
(c) The term of the registration [certification] begins on
the date that the requirements are met and extends through December
31 of the initial year. After the initial year of registration
[certification], the term of the registration [certification]
begins on January 1 and ends on December 31 of each year. A renewal
application must be completed during December of the year preceding
the year for which the renewal is requested.
(e) Not later than February 1 of each year, the clerk shall
submit to the Guardianship Certification Board and the Health and
Human Services Commission the names and business addresses of
private professional guardians who have satisfied the registration
[certification] requirements under this section during the
preceding year.
SECTION 3.14. Subpart A, Part 3, Texas Probate Code, is
amended by adding Sections 697A and 697B to read as follows:
Sec. 697A. LIST OF CERTAIN PUBLIC GUARDIANS MAINTAINED BY
COUNTY CLERKS. (a) Each guardianship program operating in a
county shall submit annually to the county clerk a statement
containing the name, address, and telephone number of each
individual employed by or volunteering or contracting with the
program to provide guardianship services to a ward or proposed ward
of the program.
(b) The Department of Aging and Disability Services, if the
department files an application for and is appointed to serve as
guardian for one or more incapacitated persons residing in the
county as provided by Subchapter E, Chapter 161, Human Resources
Code, shall submit annually to the county clerk the information
required under Subsection (a) of this section for each department
employee who is or will be providing guardianship services in the
county on the department's behalf.
(c) Not later than February 1 of each year, the county clerk
shall submit to the Guardianship Certification Board the
information received under this section during the preceding year.
Sec. 697B. CERTIFICATION REQUIREMENT FOR PRIVATE
PROFESSIONAL GUARDIANS AND PUBLIC GUARDIANS. (a) The following
persons must be certified under Subchapter C, Chapter 111,
Government Code:
(1) an individual who is a private professional
guardian;
(2) an individual who will represent the interests of
a ward as a guardian on behalf of a private professional guardian;
(3) an individual providing guardianship services to a
ward of a guardianship program on the program's behalf, except as
provided by Subsection (d) of this section; and
(4) an employee of the Department of Aging and
Disability Services providing guardianship services to a ward of
the department.
(b) A person whose certification has expired must obtain a
new certification under Subchapter C, Chapter 111, Government Code,
to be allowed to provide or continue to provide guardianship
services to a ward under this code.
(c) The court shall notify the Guardianship Certification
Board if the court becomes aware of a person who is not complying
with the terms of a certification issued under Subchapter C,
Chapter 111, Government Code, or with the standards and rules
adopted under that subchapter.
(d) An individual volunteering with a guardianship program
is not required to be certified as provided by this section to
provide guardianship services on the program's behalf.
SECTION 3.15. Subsections (a) and (c), Section 698, Texas
Probate Code, are amended to read as follows:
(a) The clerk of the county having venue over the proceeding
for the appointment of a guardian shall obtain criminal history
record information that is maintained by the Department of Public
Safety or the Federal Bureau of Investigation identification
division relating 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; [or]
(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) an employee of the Department of Aging and
Disability Services who is or will be providing guardianship
services to a ward of the department.
(c) The court shall use the information obtained under this
section only in determining whether to appoint, remove, or continue
the appointment of a private professional guardian, a guardianship
program, or the Department of Aging and Disability Services.
SECTION 3.16. Subsection (b), Section 700, Texas Probate
Code, is amended to read as follows:
(b) A representative of the Department of Aging and
Disability [Protective and Regulatory] Services shall take the oath
required by Subsection (a) of this section if the department is
appointed guardian.
SECTION 3.17. Subsection (a), Section 767, Texas Probate
Code, is amended to read as follows:
(a) The guardian of the person is entitled to take [the]
charge [and control] of the person of the ward, and the duties of
the guardian correspond with the rights of the guardian. A guardian
of the person has:
(1) the right to have physical possession of the ward
and to establish the ward's legal domicile;
(2) the duty to provide [of] care, supervision
[control], and protection for [of] the ward;
(3) the duty to provide the ward with clothing, food,
medical care, and shelter;
(4) the power to consent to medical, psychiatric, and
surgical treatment other than the in-patient psychiatric
commitment of the ward; and
(5) on application to and order of the court, the power
to establish a trust in accordance with 42 U.S.C. Section
1396p(d)(4)(B), as amended, and direct that the income of the ward
as defined by that section be paid directly to the trust, solely for
the purpose of the ward's eligibility for medical assistance under
Chapter 32, Human Resources Code.
SECTION 3.18. Subsections (c) and (j), Section 875, Texas
Probate Code, are amended to read as follows:
(c) A sworn, written application for the appointment of a
temporary guardian shall be filed before the court appoints a
temporary guardian. The application must state:
(1) the name and address of the person who is the
subject of the guardianship proceeding;
(2) the danger to the person or property alleged to be
imminent;
(3) the type of appointment and the particular
protection and assistance being requested;
(4) the facts and reasons supporting the allegations
and requests;
(5) the name, address, and qualification of the
proposed temporary guardian;
(6) the name, address, and interest of the applicant;
and
(7) if applicable, that the proposed temporary
guardian is a private professional guardian who is certified under
Subchapter C, Chapter 111, Government Code, and has complied with
the requirements of Section 697 of this code.
(j) The court may not customarily or ordinarily appoint the
Department of Aging and Disability [Protective and Regulatory]
Services as a temporary guardian under this section. The
appointment of the department as a temporary guardian under this
section should be made only as a last resort.
SECTION 3.19. Subdivisions (3) and (5), Section 531.121,
Government Code, are amended to read as follows:
(3) "Guardianship program" has the meaning assigned by
Section 111.001 [601, Texas Probate Code].
(5) "Private professional guardian" has the meaning
assigned by Section 111.001 [601, Texas Probate Code].
SECTION 3.20. The heading to Section 531.122, Government
Code, is amended to read as follows:
Sec. 531.122. ADVISORY BOARD; MEMBERSHIP [AND DUTIES].
SECTION 3.21. Subsections (a), (b), and (d), Section
531.122, Government Code, are amended to read as follows:
(a) The Guardianship Advisory Board [shall advise the
commission in adopting standards under Section 531.124 and in
administering the commission's duties under this subchapter.
[(b) The advisory board] is composed of one representative
from each of the health and human services regions, as defined by
the commission, three public representatives, and one
representative of the Department of Aging and Disability
[Protective and Regulatory] Services. The representatives of the
health and human services regions are appointed by a majority vote
of the judges of the statutory probate courts in each region. If a
health and human services region does not contain a statutory
probate court, the representative shall be appointed by a majority
vote of the judges of the statutory probate courts in the state.
The public representatives are appointed by the executive
commissioner and the representative of the Department of Aging and
Disability [Protective and Regulatory] Services is appointed by the
commissioner of aging and disability services [Board of Protective
and Regulatory Services].
(d) A member of the advisory board serves at the pleasure of
a majority of the judges of the statutory probate courts that
appointed the member, of the executive commissioner, or of the
commissioner of aging and disability services [Board of Protective
and Regulatory Services], as appropriate.
SECTION 3.22. Section 531.1235, Government Code, is
amended to read as follows:
Sec. 531.1235. ADVISORY BOARD; [ADDITIONAL] DUTIES;
STATEWIDE GUARDIANSHIP SYSTEM. (a) The advisory board shall
advise the commission in administering the commission's duties
under this subchapter. In addition [to performing the duties
described by Section 531.122], the advisory board shall:
(1) advise the commission and the Department of Aging
and Disability [Protective and Regulatory] Services with respect to
a statewide guardianship program and develop a proposal for a
statewide guardianship program; and
(2) review and comment on the guardianship policies of
all health and human services agencies and recommend changes to the
policies the advisory board considers necessary or advisable.
(b) The advisory board shall prepare an annual report with
respect to the recommendations of the advisory board under
Subsection (a). The advisory board shall file the report with the
commission, the Department of Aging and Disability [Protective and
Regulatory] Services, the governor, the lieutenant governor, and
the speaker of the house of representatives not later than December
15 of each year.
SECTION 3.23. Section 531.124, Government Code, is amended
to read as follows:
Sec. 531.124. COMMISSION DUTIES. (a) With the advice of
the advisory board, the commission shall[:
[(1) adopt minimum standards for the provision of
guardianship and related services by:
[(A) a guardianship program;
[(B) a person who provides guardianship and
related services on behalf of a guardianship program or local
guardianship center, including a person who serves as a volunteer
guardian; and
[(C) a person who serves as a private
professional guardian; and
[(2)] develop and, subject to appropriations,
implement a plan to:
(1) [(A)] ensure that each incapacitated individual
in this state who needs a guardianship or another less restrictive
type of assistance to make decisions concerning the incapacitated
individual's own welfare and financial affairs receives that
assistance; and
(2) [(B)] foster the establishment and growth of local
volunteer guardianship programs.
(b) [The commission shall design the standards under
Subsection (a)(1) to protect the interests of an incapacitated
individual or other individual who needs assistance in making
decisions concerning the individual's own welfare or financial
affairs.
[(c)] The advisory board shall annually review and comment
on the minimum standards adopted under Section 111.041 [Subsection
(a)(1)] and the plan implemented under Subsection (a)[(2)] and
shall include its conclusions in the report submitted under Section
531.1235.
SECTION 3.24. Title 2, Government Code, is amended by
adding Subtitle J to read as follows:
SUBTITLE J. GUARDIANSHIPS
CHAPTER 111. GUARDIANSHIP CERTIFICATION BOARD
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 111.001. DEFINITIONS. In this chapter:
(1) "Administrative director" means the
administrative director of the courts as appointed by Chapter 72.
(2) "Board" means the Guardianship Certification
Board.
(3) "Corporate fiduciary" has the meaning assigned by
Section 601, Texas Probate Code.
(4) "Director" means the administrative officer of the
board, as provided by Section 111.021.
(5) "Guardian" has the meaning assigned by Section
601, Texas Probate Code.
(6) "Guardianship program" means a local, county, or
regional program that provides guardianship and related services to
an incapacitated person or other person who needs assistance in
making decisions concerning the person's own welfare or financial
affairs.
(7) "Incapacitated person" has the meaning assigned by
Section 601, Texas Probate Code.
(8) "Office of Court Administration" means the Office
of Court Administration of the Texas Judicial System.
(9) "Private professional guardian" means a person,
other than an attorney or a corporate fiduciary, who is engaged in
the business of providing guardianship services.
(10) "Ward" has the meaning assigned by Section 601,
Texas Probate Code.
Sec. 111.002. RULES. The supreme court may adopt rules
consistent with this chapter, including rules governing the
certification of individuals providing guardianship services.
Sec. 111.003. SUNSET PROVISION. The board is subject to
Chapter 325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the board is abolished and
this chapter expires September 1, 2015.
[Sections 111.004-111.010 reserved for expansion]
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 111.011. BOARD. (a) The Guardianship Certification
Board is composed of:
(1) 11 members appointed by the supreme court; and
(2) four public members appointed by the supreme court
from a list of nominees submitted by the governor.
(b) The supreme court shall appoint members under
Subsection (a)(1) from the different geographical areas of this
state.
(c) In making an appointment under Subsection (a)(2), the
supreme court may reject one or more of the nominees on a list
submitted by the governor and request a new list of different
nominees.
(d) To be eligible for appointment to the board other than
as a public member, an individual must have demonstrated experience
working with:
(1) a guardianship program;
(2) an organization that advocates on behalf of or in
the interest of elderly individuals;
(3) an organization that advocates on behalf of or in
the interest of individuals with mental illness or mental
retardation or individuals with physical disabilities; or
(4) incapacitated individuals.
(e) The public members of the board must be:
(1) caretakers of individuals with mental illness or
mental retardation or individuals with physical disabilities; or
(2) persons who advocate on behalf of or in the
interest of individuals with mental illness or mental retardation
or individuals with physical disabilities.
(f) Appointments to the board shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointees.
(g) The members of the board serve for staggered six-year
terms, with the terms of one-third of the members expiring on
February 1 of each odd-numbered year. Board members are not
entitled to receive compensation or reimbursement for expenses.
(h) The board shall elect from among its members a presiding
officer and other officers considered necessary.
(i) The board shall meet at least quarterly at the call of
the presiding officer.
(j) Any action taken by the board must be approved by a
majority vote of the members present.
Sec. 111.012. ADMINISTRATIVE ATTACHMENT. (a) The board is
administratively attached to the Office of Court Administration.
(b) Notwithstanding any other law, the Office of Court
Administration shall:
(1) provide administrative assistance, services, and
materials to the board, including budget planning and purchasing;
(2) accept, deposit, and disburse money made available
to the board;
(3) pay the salaries and benefits of the director;
(4) reimburse the travel expenses and other actual and
necessary expenses of the director incurred in the performance of a
function of the board, as provided by the General Appropriations
Act; and
(5) provide the board with adequate computer equipment
and support.
Sec. 111.013. ELIGIBILITY OF PUBLIC MEMBERS. A person is
not eligible for appointment as a public member of the board if the
person or the person's spouse:
(1) is certified by the board;
(2) is registered, certified, or licensed by a
regulatory agency in the field of guardianship;
(3) is employed by or participates in the management
of a business entity or other organization regulated by the board or
receiving money from the Office of Court Administration;
(4) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by the board or receiving money from the
Office of Court Administration; or
(5) uses or receives a substantial amount of tangible
goods, services, or funds from the Office of Court Administration.
Sec. 111.014. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
(a) In this section, "Texas trade association" means a cooperative
and voluntarily joined statewide association of business or
professional competitors in this state designed to assist its
members and its industry or profession in dealing with mutual
business or professional problems and in promoting their common
interest.
(b) A person may not be a member of the board or may not be
the director in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of
establishing an exemption to the overtime provisions of the federal
Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.),
if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of
guardianship; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of
guardianship.
(c) A person may not be a member of the board if the person
is required to register as a lobbyist under Chapter 305 because of
the person's activities for compensation on behalf of a profession
related to the operation of the board.
Sec. 111.015. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a
ground for removal from the board that a member:
(1) does not have at the time of appointment the
qualifications required by Section 111.011;
(2) does not maintain during service on the board the
qualifications required by Section 111.011;
(3) is ineligible for membership under Section 111.013
or 111.014;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the board.
(b) The validity of an action of the board is not affected by
the fact that it is taken when a ground for removal of a board member
exists.
(c) If the director has knowledge that a potential ground
for removal exists, the director shall notify the presiding officer
of the board of the potential ground. The presiding officer shall
then notify the chief justice of the supreme court that a potential
ground for removal exists. If the potential ground for removal
involves the presiding officer, the director shall notify the next
highest ranking officer of the board, who shall then notify the
chief justice of the supreme court that a potential ground for
removal exists.
Sec. 111.016. POWERS AND DUTIES OF BOARD. (a) The board is
charged with the executive functions necessary to carry out the
purposes of this chapter under rules adopted by the supreme court.
(b) The board shall:
(1) administer and enforce this chapter;
(2) develop and recommend proposed rules and
procedures to the supreme court as necessary to implement this
chapter;
(3) set the amount of each fee prescribed by Section
111.042, subject to the approval of the supreme court;
(4) establish the qualifications for obtaining
certification or recertification under Section 111.042;
(5) issue certificates to individuals who meet the
certification requirements of Section 111.042; and
(6) perform any other duty required by this chapter or
other law.
(c) The board may appoint any necessary or proper
subcommittee.
(d) The board shall maintain:
(1) a complete record of each board proceeding; and
(2) a complete record of each certification issued,
renewed, suspended, or revoked under Section 111.042.
Sec. 111.017. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the board may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the board until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter;
(2) the role and functions of the board;
(3) the current budget for the board;
(4) the results of the most recent formal audit of the
board; and
(5) any applicable ethics policies adopted by the
board.
Sec. 111.018. USE OF TECHNOLOGY. The Office of Court
Administration shall research and propose appropriate
technological solutions to improve the board's ability to perform
its functions. The technological solutions must:
(1) ensure that the public is able to easily find
information about the board on the Internet;
(2) ensure that persons who want to use the board's
services are able to:
(A) interact with the board through the Internet;
and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost-effective and developed through the
board's planning processes.
Sec. 111.019. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
(a) The board shall develop and implement a policy to encourage
the use of appropriate alternative dispute resolution procedures to
assist in the resolution of internal and external disputes under
the board's jurisdiction.
(b) The procedures relating to alternative dispute
resolution under this section must conform, to the extent possible,
to any model guidelines issued by the State Office of
Administrative Hearings for the use of alternative dispute
resolution by state agencies.
Sec. 111.020. PUBLIC ACCESS. The board shall develop and
implement policies that provide the public with a reasonable
opportunity to appear before the board and to speak on any issue
under the jurisdiction of the board.
Sec. 111.021. DIRECTOR. (a) The administrative director
shall employ a director from a list of candidates submitted by the
board. The administrative director may request an additional list
of candidates if the administrative director does not select any of
the initial candidates recommended by the board.
(b) The list may contain the hiring preference of the board.
(c) The director is the administrative officer of the board
and is charged with carrying out the duties and functions conferred
on the director by the board, this subchapter, and other law.
Sec. 111.022. DIVISION OF RESPONSIBILITIES. The board
shall develop and implement policies that clearly separate the
policy-making responsibilities of the board and the management
responsibilities of the director.
Sec. 111.023. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The director shall provide to members of the board, as
often as necessary, information regarding the requirements for
office under this chapter, including information regarding a
person's responsibilities under applicable laws relating to
standards of conduct for state officers.
[Sections 111.024-111.040 reserved for expansion]
SUBCHAPTER C. REGULATION OF CERTAIN GUARDIANS
Sec. 111.041. STANDARDS FOR CERTAIN GUARDIANSHIPS AND
ALTERNATIVES TO GUARDIANSHIP. (a) The board shall adopt minimum
standards for:
(1) the provision of guardianship services or other
similar but less restrictive types of assistance or services by:
(A) guardianship programs; and
(B) private professional guardians; and
(2) the provision of guardianship services by the
Department of Aging and Disability Services.
(b) The board shall design the standards to protect the
interests of an incapacitated person or other person needing
assistance making decisions concerning the person's own welfare or
financial affairs.
Sec. 111.042. CERTIFICATION REQUIRED FOR CERTAIN
GUARDIANS. (a) To provide guardianship services in this state,
the following individuals must hold a certificate issued under this
section:
(1) an individual who is a private professional
guardian;
(2) an individual who will provide those services to a
ward of a private professional guardian or the Department of Aging
and Disability Services on the guardian's or department's behalf;
and
(3) an individual, other than a volunteer, who will
provide those services to a ward of a guardianship program on the
program's behalf.
(b) An applicant for a certificate under this section must:
(1) apply to the board on a form prescribed by the
board; and
(2) submit with the application a nonrefundable
application fee in an amount determined by the board, subject to the
approval of the supreme court.
(c) The supreme court may adopt rules and procedures for
issuing a certificate and for renewing, suspending, or revoking a
certificate issued under this section. Any rules adopted by the
supreme court under this section must:
(1) ensure compliance with the standards adopted under
Section 111.041;
(2) provide that the board establish qualifications
for obtaining and maintaining certification;
(3) provide that the board issue certificates under
this section;
(4) provide that a certificate expires on the second
anniversary of the date the certificate is issued;
(5) prescribe procedures for accepting complaints and
conducting investigations of alleged violations of the minimum
standards adopted under Section 111.041 or other terms of the
certification by certificate holders; and
(6) prescribe procedures by which the board, after
notice and hearing, may suspend or revoke the certificate of a
holder who fails to substantially comply with appropriate standards
or other terms of the certification.
(d) If the requirements for issuing a certificate under this
section include passage of an examination covering guardianship
education requirements:
(1) the board shall develop and the director shall
administer the examination; or
(2) the board shall direct the director to contract
with another person or entity the board determines has the
expertise and resources to develop and administer the examination.
(e) In lieu of the certification requirements imposed under
this section, the board may issue a certificate to an individual to
engage in business as a guardian or to provide guardianship
services in this state if the individual:
(1) submits an application to the board in the form
prescribed by the board;
(2) pays a fee in a reasonable amount determined by the
board, subject to the approval of the supreme court;
(3) is certified, registered, or licensed as a
guardian by a national organization or association the board
determines has requirements at least as stringent as those
prescribed by the board under this subchapter; and
(4) is in good standing with the organization or
association with whom the person is licensed, certified, or
registered.
(f) An employee of the Department of Aging and Disability
Services who is applying for a certificate under this section to
provide guardianship services to a ward of the department is exempt
from payment of an application fee required by this section.
(g) An application fee or other fee collected under this
section shall be deposited to the credit of the guardianship
certification account in the general revenue fund and may be
appropriated only to the Office of Court Administration for the
administration and enforcement of this chapter.
(h) The Texas Department of Licensing and Regulation shall
advise and assist the board as necessary in administering the
certification process established under this section.
Sec. 111.043. INFORMATION FROM PRIVATE PROFESSIONAL
GUARDIANS. In addition to the information submitted under Section
697(e), Texas Probate Code, the director may require a private
professional guardian or a person who represents or plans to
represent the interests of a ward as a guardian on behalf of the
private professional guardian to submit information considered
necessary to monitor the person's compliance with the applicable
standards adopted under Section 111.041 or with the certification
requirements of Section 111.042.
Sec. 111.044. ANNUAL DISCLOSURE. Not later than January 31
of each year, each guardianship program and private professional
guardian shall provide to the board a report containing for the
preceding year:
(1) the total number of wards served by the
guardianship program or private professional guardian, as
applicable;
(2) the total amount of money received from this state
for the provision of guardianship services; and
(3) the total amount of money received from any other
public source, including a county or the federal government, for
the provision of guardianship services.
SECTION 3.25. TRANSFERS TO THE DEPARTMENT OF AGING AND
DISABILITY SERVICES. (a) On September 1, 2005:
(1) all powers, duties, functions, programs, and
activities of the Department of Family and Protective Services
related to providing guardianship services for incapacitated
persons under Chapter 48, Human Resources Code, Chapter XIII, Texas
Probate Code, or other law are transferred to the Department of
Aging and Disability Services;
(2) all employees of the Department of Family and
Protective Services who primarily perform duties related to
providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law become employees of the Department of Aging and
Disability Services;
(3) a rule or form adopted by the executive
commissioner of the Health and Human Services Commission that
relates to the provision of guardianship services by the Department
of Family and Protective Services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law, as those laws existed immediately before that date, is
a rule or form of the Department of Aging and Disability Services
and remains in effect until altered by the executive commissioner;
(4) a reference in law to the Department of Family and
Protective Services or its predecessor agency, the Department of
Protective and Regulatory Services, that relates to providing
guardianship services for incapacitated persons under Chapter 48,
Human Resources Code, Chapter XIII, Texas Probate Code, or other
law means the Department of Aging and Disability Services;
(5) a waiver in effect that was issued by the
Department of Family and Protective Services relating to the
provision of guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law is continued in effect as a waiver of the Department of
Aging and Disability Services;
(6) a proceeding involving the Department of Family
and Protective Services that is related to providing guardianship
services for incapacitated persons under Chapter 48, Human
Resources Code, Chapter XIII, Texas Probate Code, or other law is
transferred without change in status to the Department of Aging and
Disability Services, and the Department of Aging and Disability
Services assumes, without a change in status, the position of the
Department of Family and Protective Services in a proceeding
relating to guardianship matters to which the Department of Family
and Protective Services is a party;
(7) all money, contracts, rights, and obligations of
the Department of Family and Protective Services related to
providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law are transferred to the Department of Aging and
Disability Services, subject to Subsection (b) of this section;
(8) all property and records in the custody of the
Department of Family and Protective Services related to providing
guardianship services for incapacitated persons under Chapter 48,
Human Resources Code, Chapter XIII, Texas Probate Code, or other
law shall be transferred to the Department of Aging and Disability
Services; and
(9) all funds appropriated by the legislature to the
Department of Family and Protective Services for purposes related
to providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law are transferred to the Department of Aging and
Disability Services.
(b) The Department of Aging and Disability Services shall
administer a contract of the Department of Family and Protective
Services transferred under Subdivision (7), Subsection (a) of this
section, until the contract expires or is otherwise lawfully
terminated.
(c) To effectuate a smooth and orderly transfer of existing
guardianship status, a court may not require the Department of
Family and Protective Services or the Department of Aging and
Disability Services to comply with the provisions concerning
resignation of a guardian and appointment of a successor guardian
under Subpart D, Part 4, Chapter XIII, Texas Probate Code, with
respect to guardianship cases of the Department of Family and
Protective Services transferred to the Department of Aging and
Disability Services under this section and Section 3.26 of this
article.
(d) A reference in a legal document, including a letter of
guardianship issued under Section 659, Texas Probate Code, to the
Department of Family and Protective Services as guardian in an
existing guardianship or application for guardianship that is
pending on the effective date of this Act is considered to be a
reference to the Department of Aging and Disability Services.
(e) A public entity, a private entity, or any other person,
including a bank, a service provider, law enforcement personnel, or
medical personnel, is required to accept the Department of Aging
and Disability Services' authority as guardian in the same manner
the entity or person would have accepted the Department of Family
and Protective Services' authority as guardian of a particular
ward.
(f) The Department of Aging and Disability Services may not
be required to take a new oath of guardianship under Section 700,
Texas Probate Code, with respect to a guardianship case transferred
to the department from the Department of Family and Protective
Services under this section and Section 3.26 of this article.
SECTION 3.26. TRANSITION PLAN. The executive commissioner
of the Health and Human Services Commission shall establish a plan
for the transfer of guardianship cases of the Department of Family
and Protective Services to the Department of Aging and Disability
Services on or before the period prescribed by the executive
commissioner.
SECTION 3.27. PROPOSED RULES AND PROCEDURES. Not later
than March 1, 2006, the Guardianship Certification Board
established under Chapter 111, Government Code, as added by this
article, shall develop rules and procedures for consideration by
the supreme court as required by Chapter 111, Government Code, as
added by this article.
SECTION 3.28. APPOINTMENT OF BOARD MEMBERS. (a) As soon
as practicable after the effective date of this Act, the supreme
court shall appoint 11 members who are not public members to the
Guardianship Certification Board in accordance with Chapter 111,
Government Code, as added by this article. In making the initial
appointments, the supreme court shall designate three members for
terms expiring February 1, 2007, four members for terms expiring
February 1, 2009, and four members for terms expiring February 1,
2011.
(b) As soon as practicable after the effective date of this
Act, the supreme court shall appoint four public members to the
Guardianship Certification Board in accordance with Chapter 111,
Government Code, as added by this article. In making the initial
appointments, the supreme court shall designate two members for
terms expiring February 1, 2007, one member for a term expiring
February 1, 2009, and one member for a term expiring February 1,
2011.
SECTION 3.29. EFFECTIVE DATE OF CERTIFICATION. A person is
not required to hold a certificate issued under Subchapter C,
Chapter 111, Government Code, as added by this article, to provide
or continue to provide guardianship services to a ward before
September 1, 2007.
ARTICLE 4. CERTAIN REQUIREMENTS AND LIMITATIONS RELATING TO
MARRIAGE; PROVIDING CRIMINAL PENALTIES
SECTION 4.01. Article 38.10, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.10. EXCEPTIONS TO THE SPOUSAL ADVERSE TESTIMONY
PRIVILEGE. The privilege of a person's spouse not to be called as a
witness for the state does not apply in any proceeding in which the
person is charged with:
(1) a crime committed against the person's spouse, a
minor child, or a member of the household of either spouse; or
(2) an offense under Section 25.01, Penal Code
(Bigamy).
SECTION 4.02. Subsections (e) and (f), Section 22.011,
Penal Code, are amended to read as follows:
(e) It is an affirmative defense to prosecution under
Subsection (a)(2) that:
(1) the actor was not more than three years older than
the victim and at the time of the offense:
(A) was not required under Chapter 62, Code of
Criminal Procedure, [as added by Chapter 668, Acts of the 75th
Legislature, Regular Session, 1997,] to register for life as a sex
offender; or
(B) was not a person who under Chapter 62, Code of
Criminal Procedure, had a reportable conviction or adjudication for
an offense under this section; and
(2) the victim:
(A) was a child of 14 years of age or older; and
(B) was not a person whom the actor was
prohibited from marrying or purporting to marry or with whom the
actor was prohibited from living under the appearance of being
married under Section 25.01.
(f) An offense under this section is a felony of the second
degree, except that an offense under this section is a felony of the
first degree if the victim was a person whom the actor was
prohibited from marrying or purporting to marry or with whom the
actor was prohibited from living under the appearance of being
married under Section 25.01.
SECTION 4.03. Subsections (c) and (e), Section 25.01, Penal
Code, are amended to read as follows:
(c) It is a defense to prosecution under Subsection (a)(1)
that the actor reasonably believed at the time of the commission of
the offense that the actor and the person whom the actor married or
purported to marry or with whom the actor lived under the appearance
of being married were legally eligible to be married because the
actor's prior [his] marriage was void or had been dissolved by
death, divorce, or annulment. For purposes of this subsection, an
actor's belief is reasonable if the belief is substantiated by a
certified copy of a death certificate or other signed document
issued by a court.
(e) An offense under this section is a felony of the third
degree, except that if at the time of the commission of the offense,
the person whom the actor marries or purports to marry or with whom
the actor lives under the appearance of being married is:
(1) 16 years of age or older, the offense is a felony
of the second degree; or
(2) younger than 16 years of age, the offense is a
felony of the first degree [Class A misdemeanor].
SECTION 4.04. Subsections (a) and (c), Section 25.02, Penal
Code, are amended to read as follows:
(a) A person [An individual] commits an offense if the
person [he] engages in sexual intercourse or deviate sexual
intercourse with another [a] person the actor [he] knows to be,
without regard to legitimacy:
(1) the actor's [his] ancestor or descendant by blood
or adoption;
(2) the actor's current or former [his] stepchild or
stepparent[, while the marriage creating that relationship
exists];
(3) the actor's [his] parent's brother or sister of the
whole or half blood;
(4) the actor's [his] brother or sister of the whole or
half blood or by adoption; [or]
(5) the children of the actor's [his] brother or sister
of the whole or half blood or by adoption; or
(6) the son or daughter of the actor's aunt or uncle of
the whole or half blood or by adoption.
(c) An offense under this section is a felony of the third
degree, unless the offense is committed under Subsection (a)(6), in
which event the offense is a felony of the second degree.
SECTION 4.05. Section 2.004, Family Code, is amended by
amending Subsection (b) and adding Subsections (c) and (d) to read
as follows:
(b) The application form must contain:
(1) a heading entitled "Application for Marriage
License, ____________ County, Texas";
(2) spaces for each applicant's full name, including
the woman's maiden surname, address, social security number, if
any, date of birth, and place of birth, including city, county, and
state;
(3) a space for indicating the document tendered by
each applicant as proof of identity and age;
(4) spaces for indicating whether each applicant has
been divorced within the last 30 days;
(5) printed boxes for each applicant to check "true"
or "false" in response to the following statement: "I am not
presently married and the other applicant is not presently
married.";
(6) printed boxes for each applicant to check "true"
or "false" in response to the following statement: "The other
applicant is not related to me as:
(A) an ancestor or descendant, by blood or
adoption;
(B) a brother or sister, of the whole or half
blood or by adoption;
(C) a parent's brother or sister, of the whole or
half blood or by adoption; [or]
(D) a son or daughter of a brother or sister, of
the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent;
or
(F) a son or daughter of a parent's brother or
sister, of the whole or half blood or by adoption.";
(7) printed boxes for each applicant to check "true"
or "false" in response to the following statement: "I am not
presently delinquent in the payment of court-ordered child
support.";
(8) a printed oath reading: "I SOLEMNLY SWEAR (OR
AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS
CORRECT.";
(9) spaces immediately below the printed oath for the
applicants' signatures;
(10) a certificate of the county clerk that:
(A) each applicant made the oath and the date and
place that it was made; or
(B) an applicant did not appear personally but
the prerequisites for the license have been fulfilled as provided
by this chapter;
(11) spaces for indicating the date of the marriage
and the county in which the marriage is performed; and
(12) a space for the address to which the applicants
desire the completed license to be mailed.
(c) An applicant commits an offense if the applicant
knowingly provides false information under Subsection (b)(1), (2),
(3), or (4). An offense under this subsection is a Class C
misdemeanor.
(d) An applicant commits an offense if the applicant
knowingly provides false information under Subsection (b)(5) or
(6). An offense under this subsection is a Class A misdemeanor.
SECTION 4.06. Section 2.005, Family Code, is amended by
adding Subsection (c) to read as follows:
(c) A person commits an offense if the person knowingly
provides false, fraudulent, or otherwise inaccurate proof of an
applicant's identity or age under this section. An offense under
this subsection is a Class A misdemeanor.
SECTION 4.07. Section 2.007, Family Code, is amended to
read as follows:
Sec. 2.007. AFFIDAVIT OF ABSENT APPLICANT. The affidavit
of an absent applicant must include:
(1) the absent applicant's full name, including the
maiden surname of a female applicant, address, date of birth, place
of birth, including city, county, and state, citizenship, and
social security number, if any;
(2) a declaration that the absent applicant has not
been divorced within the last 30 days;
(3) a declaration that the absent applicant is:
(A) not presently married; or
(B) married to the other applicant and they wish
to marry again;
(4) a declaration that the other applicant is not
presently married and is not related to the absent applicant as:
(A) an ancestor or descendant, by blood or
adoption;
(B) a brother or sister, of the whole or half
blood or by adoption;
(C) a parent's brother or sister, of the whole or
half blood or by adoption; [or]
(D) a son or daughter of a brother or sister, of
the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent;
or
(F) a son or daughter of a parent's brother or
sister, of the whole or half blood or by adoption;
(5) a declaration that the absent applicant desires to
marry and the name, age, and address of the person to whom the
absent applicant desires to be married;
(6) the approximate date on which the marriage is to
occur;
(7) the reason the absent applicant is unable to
appear personally before the county clerk for the issuance of the
license; and
(8) if the absent applicant will be unable to attend
the ceremony, the appointment of any adult, other than the other
applicant, to act as proxy for the purpose of participating in the
ceremony.
SECTION 4.08. Subsections (a) and (b), Section 2.009,
Family Code, are amended to read as follows:
(a) Except as provided by Subsections (b) and (d), the
county clerk may not issue a license if either applicant:
(1) fails to provide the information required by this
subchapter;
(2) fails to submit proof of age and identity;
(3) is under 16 [14] years of age and has not been
granted a court order as provided by Section 2.103;
(4) is 16 [14] years of age or older but under 18 years
of age and has not presented at least one of the following:
(A) parental consent as provided by Section
2.102;
(B) documents establishing that a prior marriage
of the applicant has been dissolved; or
(C) a court order as provided by Section 2.103;
(5) checks "false" in response to a statement in the
application, except as provided by Subsection (b) or (d), or fails
to make a required declaration in an affidavit required of an absent
applicant; or
(6) indicates that the applicant has been divorced by
a decree of a court of this state within the last 30 days, unless:
(A) the applicants were divorced from each other;
or
(B) the prohibition against remarriage is waived
as provided by Section 6.802.
(b) If an applicant checks "false" in response to the
statement "I am not presently married and the other applicant is not
presently married," the county clerk shall inquire as to whether
the applicant is presently married to the other applicant. If the
applicant states that the applicant is currently married to the
other applicant, the county clerk shall record that statement on
the license before the administration of the oath. The county clerk
may not refuse to issue a license on the ground that the applicants
are already married to each other.
SECTION 4.09. Section 2.102, Family Code, is amended by
amending Subsection (a) and adding Subsections (g) and (h) to read
as follows:
(a) If an applicant is 16 [14] years of age or older but
under 18 years of age, the county clerk shall issue the license if
parental consent is given as provided by this section.
(g) A person commits an offense if the person knowingly
provides parental consent for an underage applicant under this
section and the person is not a parent or a judicially designated
managing conservator or guardian of the applicant. An offense
under this subsection is a Class A misdemeanor.
(h) A parent or judicially designated managing conservator
or guardian of an applicant commits an offense if the parent,
managing conservator, or guardian knowingly provides parental
consent under this section for an applicant who is younger than 16
years of age or who is presently married to a person other than the
person the applicant desires to marry. An offense under this
subsection is a felony of the third degree.
SECTION 4.10. Section 2.202, Family Code, is amended by
adding Subsections (c) and (d) to read as follows:
(c) Except as provided by Subsection (d), a person commits
an offense if the person knowingly conducts a marriage ceremony
without authorization under this section. An offense under this
subsection is a Class A misdemeanor.
(d) A person commits an offense if the person knowingly
conducts a marriage ceremony of a minor whose marriage is
prohibited by law or of a person who by marrying commits an offense
under Section 25.01, Penal Code. An offense under this subsection
is a felony of the third degree.
SECTION 4.11. Section 2.302, Family Code, is amended to
read as follows:
Sec. 2.302. CEREMONY CONDUCTED BY UNAUTHORIZED PERSON. The
validity of a marriage is not affected by the lack of authority of
the person conducting the marriage ceremony if:
(1) there was a reasonable appearance of authority by
that person; [and]
(2) at least one party to the marriage participated in
the ceremony in good faith and that party treats the marriage as
valid; and
(3) neither party to the marriage:
(A) is a minor whose marriage is prohibited by
law; or
(B) by marrying commits an offense under Section
25.01, Penal Code.
SECTION 4.12. Section 2.401, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) A person may not be a party to an informal marriage or
execute a declaration of an informal marriage if the person is
presently married to a person who is not the other party to the
informal marriage or declaration of an informal marriage, as
applicable.
SECTION 4.13. Subsection (b), Section 2.402, Family Code,
is amended to read as follows:
(b) The declaration form must contain:
(1) a heading entitled "Declaration and Registration
of Informal Marriage, ___________ County, Texas";
(2) spaces for each party's full name, including the
woman's maiden surname, address, date of birth, place of birth,
including city, county, and state, and social security number, if
any;
(3) a space for indicating the type of document
tendered by each party as proof of age and identity;
(4) printed boxes for each party to check "true" or
"false" in response to the following statement: "The other party is
not related to me as:
(A) an ancestor or descendant, by blood or
adoption;
(B) a brother or sister, of the whole or half
blood or by adoption;
(C) a parent's brother or sister, of the whole or
half blood or by adoption; [or]
(D) a son or daughter of a brother or sister, of
the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent;
or
(F) a son or daughter of a parent's brother or
sister, of the whole or half blood or by adoption.";
(5) a printed declaration and oath reading: "I
SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO
EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE
AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS
HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE
WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE
NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND
THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT.";
(6) spaces immediately below the printed declaration
and oath for the parties' signatures; and
(7) a certificate of the county clerk that the parties
made the declaration and oath and the place and date it was made.
SECTION 4.14. Section 2.403, Family Code, is amended to
read as follows:
Sec. 2.403. PROOF OF IDENTITY AND AGE; OFFENSE. (a) The
county clerk shall require proof of the identity and age of each
party to the declaration of informal marriage to be established by a
certified copy of the party's birth certificate or by some
certificate, license, or document issued by this state or another
state, the United States, or a foreign government.
(b) A person commits an offense if the person knowingly
provides false, fraudulent, or otherwise inaccurate proof of the
person's identity or age under this section. An offense under this
subsection is a Class A misdemeanor.
SECTION 4.15. Section 6.101, Family Code, is amended to
read as follows:
Sec. 6.101. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 16
[14]. (a) The court may grant an annulment of a licensed marriage
of a person under 16 [14] years of age unless a court order has been
obtained as provided in Subchapter B, Chapter 2.
(b) A petition for annulment under this section may be filed
by a next friend for the benefit of a person under 16 [14] years of
age or on the petition of the parent or the judicially designated
managing conservator or guardian, whether an individual,
authorized agency, or court, of the person.
(c) A suit by a parent, managing conservator, or guardian of
the person may be brought at any time before the person is 16 [14]
years of age.
(d) A suit under this section to annul the marriage of a
person 16 [14] years of age or older that was entered into before
the person was 16 [14] years of age is barred unless the suit is
filed within the later of:
(1) 90 days after the date the petitioner knew or
should have known of the marriage; or
(2) 90 days after the date of the 16th [14th] birthday
of the underage party.
SECTION 4.16. Subsection (a), Section 6.102, Family Code,
is amended to read as follows:
(a) The court may grant an annulment of a licensed or
informal marriage of a person 16 [14] years of age or older but
under 18 years of age that occurred without parental consent or
without a court order as provided by Subchapters B and E, Chapter 2.
SECTION 4.17. Subchapter C, Chapter 6, Family Code, is
amended by adding Sections 6.205 and 6.206 to read as follows:
Sec. 6.205. MARRIAGE TO MINOR. A marriage is void if either
party to the marriage is younger than 16 years of age.
Sec. 6.206. MARRIAGE TO STEPCHILD OR STEPPARENT. A
marriage is void if a party is a current or former stepchild or
stepparent of the other party.
SECTION 4.18. Under the terms of Subsection (b), Section
22.109, Government Code, Rule 504(b)(1), Texas Rules of Evidence,
is disapproved to the extent that the rule conflicts with Article
38.10, Code of Criminal Procedure, as amended by this article.
SECTION 4.19. The changes in law made by this article in
amending Article 38.10, Code of Criminal Procedure, and Sections
22.011, 25.01, and 25.02, Penal Code, apply only to an offense
committed on or after the effective date of this Act. An offense
committed before the effective date of this Act is covered by the
law in effect at the time the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense was committed before that date.
SECTION 4.20. The changes in law made by this article to
Sections 2.004, 2.005, 2.007, 2.009, and 2.102, Family Code, apply
only to an application for a marriage license filed on or after the
effective date of this Act. An application filed before the
effective date of this Act is governed by the law in effect on the
date the application was filed, and the former law is continued in
effect for that purpose.
SECTION 4.21. The changes in law made by this article to
Sections 2.202 and 2.302, Family Code, apply only to a marriage
ceremony that is conducted on or after the effective date of this
Act. A marriage ceremony conducted before the effective date of
this Act is governed by the law in effect on the date the ceremony
was conducted, and the former law is continued in effect for that
purpose.
SECTION 4.22. Subsection (d), Section 2.401, Family Code,
as added by this article, applies to an informal marriage or a
declaration of an informal marriage regardless of when the informal
marriage was entered into or the declaration was executed.
SECTION 4.23. The changes in law made by this article to
Subsection (b), Section 2.402, and Section 2.403, Family Code,
apply to a declaration of an informal marriage executed on or after
the effective date of this Act. A declaration executed before the
effective date of this Act is governed by the law in effect on the
date the declaration was executed, and the former law is continued
in effect for that purpose.
SECTION 4.24. The changes in law made by this article by the
amendment of Section 6.101 and Subsection (a), Section 6.102,
Family Code, and the enactment of Sections 6.205 and 6.206, Family
Code, apply only to a marriage entered into on or after the
effective date of this Act. A marriage entered into before the
effective date of this Act is governed by the law in effect on the
date the marriage was entered into, and the former law is continued
in effect for that purpose.
ARTICLE 5. REPORT; EFFECTIVE DATE
SECTION 5.01. (a) Not later than the 180th day after the
effective date of this Act, and every six months after that date,
the Health and Human Services Commission shall provide a detailed
progress report on the implementation of the provisions of this Act
to:
(1) the governor;
(2) the Legislative Budget Board;
(3) the lieutenant governor;
(4) the speaker of the house of representatives;
(5) appropriate oversight committees of the
legislature; and
(6) the state auditor.
(b) Each progress report must address:
(1) the achievement status of each major element of
reform and each of the performance milestones specified in this
Act;
(2) any significant obstacles encountered by the
Health and Human Services Commission, Department of Family and
Protective Services, or Department of Aging and Disability Services
in implementing the provisions of this Act, and the steps proposed
to resolve those obstacles;
(3) any provision of this Act the Health and Human
Services Commission, Department of Family and Protective Services,
or Department of Aging and Disability Services determines that it
is unable to fully implement due to insufficient funds;
(4) any significant unanticipated fiscal implications
associated with the implementation of this Act, and recommendations
for addressing the fiscal implications in the most cost-effective
manner; and
(5) steps taken to enhance internal and external
accountability for:
(A) achieving favorable outcomes for children
needing protective services and adults needing protective services
or guardianship services; and
(B) the expenditure of public funds.
(c) In accordance with Chapter 321, Government Code, the
state auditor may conduct financial and compliance audits related
to the implementation of this Act as specified in an audit plan.
The state auditor shall coordinate an audit performed under this
subsection with the Health and Human Services Commission,
Department of Family and Protective Services, and Department of
Aging and Disability Services internal auditors and the
commission's office of inspector general to avoid duplication of
effort.
(d) Except as provided by this subsection, this section
expires September 1, 2010. Subsections (a) and (b) of this section
expire September 1, 2009.
SECTION 5.02. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 6 passed the Senate on
March 3, 2005, by the following vote: Yeas 30, Nays 0;
April 26, 2005, Senate refused to concur in House amendments and
requested appointment of Conference Committee; April 28, 2005,
House granted request of the Senate; May 29, 2005, Senate adopted
Conference Committee Report by the following vote: Yeas 30,
Nays 1.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 6 passed the House, with
amendments, on April 20, 2005, by the following vote: Yeas 135,
Nays 6, two present not voting; April 28, 2005, House granted
request of the Senate for appointment of Conference Committee;
May 29, 2005, House adopted Conference Committee Report by the
following vote: Yeas 124, Nays 20, three present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor