H.B. No. 4094
 
 
 
 
AN ACT
  relating to the access of criminal history record information by
  the Department of Family and Protective Services.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 411.114(a)(1), Government Code, is
  amended by amending Paragraph (A) and adding Paragraph (A-1) to
  read as follows:
                     (A)  "Child," "child-care facility,"
  "child-placing agency," "facility," and "family home" have the
  meanings assigned by Section 42.002, Human Resources Code.
                     (A-1)  "Department of Family and Protective
  Services" includes:
                           (i)  the Department of Family and Protective
  Services as authorized by Section 40.002, Human Resources Code;
                           (ii)  the Health and Human Services
  Commission with respect to a function transferred to the commission
  under Subchapter A-1, Chapter 531; and
                           (iii)  any person or entity acting as an
  authorized agent of the Department of Family and Protective
  Services.
         SECTION 2.  Sections 411.114(a)(2), (3), and (7), Government
  Code, are amended to read as follows:
               (2)  The Department of Family and Protective 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;
                     (B)  an owner, operator, or employee of or an
  applicant for employment by a child-care facility, child-placing
  agency, or family home licensed, registered, certified, or listed
  under Chapter 42, Human Resources Code;
                     (C)  a person 14 years of age or older who will be
  regularly or frequently working or staying in a [child-care]
  facility or family home [while children are being provided care],
  other than a child in the care of the home or facility;
                     (D)  except as provided by Subsection (d), an
  applicant selected for a position with the Department of Family and
  Protective Services, the duties of which include direct delivery of
  protective services to children, elderly persons, or persons with a
  disability;
                     (E)  an employee of, an applicant for employment
  with, or a volunteer or an applicant volunteer with a business
  entity or person that contracts with the Department of Family and
  Protective Services to provide direct delivery of protective
  services to children, elderly persons, or persons with a
  disability, if the person's duties or responsibilities include
  direct contact with children, elderly persons, or persons with a
  disability;
                     (F)  a registered volunteer with the Department of
  Family and Protective Services;
                     (G)  a person providing or applying to provide
  in-home, adoptive, or foster care for children in the care of the
  Department of Family and Protective Services and other persons
  living in the residence in which the child will reside;
                     (H)  a Department of Family and Protective
  Services employee who is engaged in the direct delivery of
  protective services to children, elderly persons, or persons with a
  disability;
                     (I)  an alleged perpetrator in a report the
  Department of Family and Protective Services receives alleging that
  the person has abused, neglected, or exploited a child, an elderly
  person, or a person with a disability, provided that:
                           (i)  the report alleges the person has
  engaged in conduct that meets the applicable definition of abuse,
  neglect, or exploitation under Chapter 261, Family Code, or Chapter
  48, Human Resources Code; and
                           (ii)  the person is not also the victim of
  the alleged conduct;
                     (J)  a person providing child care for a child who
  is in the care of the Department of Family and Protective Services
  and who is or will be receiving adoptive, foster, or in-home care;
                     (K)  through a contract with a nonprofit
  management center, an employee of, an applicant for employment
  with, or a volunteer or an applicant volunteer with a nonprofit,
  tax-exempt organization that provides any service that involves the
  care of or access to a child, an elderly person, or a person with a
  disability; or
                     (L)  an applicant for a child-care administrator
  or child-placing agency administrator license under Chapter 43,
  Human Resources Code.
               (3)  In addition to the criminal history record
  information the Department of Family and Protective Services is
  required to obtain under Subdivision (2), the [The] Department of
  Family and Protective Services is entitled to obtain from the
  department criminal history record information maintained by the
  department that relates to a person who is:
                     (A)  an applicant for a position with the
  Department of Family and Protective Services regardless of the
  duties of the position, including a position described by
  Subdivision (2)(D);
                     (B)  a Department of Family and Protective
  Services employee regardless of the duties of the employee's
  position, including an employee described by Subdivision (2)(H);
                     (C)  a volunteer or applicant volunteer with the
  Department of Family and Protective Services regardless of the
  duties to be performed, including a registered volunteer;
                     (D)  an employee of, an applicant for employment
  with, or a volunteer or an applicant volunteer with an entity or
  person that contracts with the Department of Family and Protective
  Services and has access to confidential information in the
  department's records, if the employee, applicant, volunteer, or
  applicant volunteer has or will have access to that confidential
  information;
                     (E)  a person living in the residence in which the
  alleged victim of the report resides, including an alleged
  perpetrator in a report described by Subdivision (2)(I);
                     (F)  a person providing, at the request of the
  child's parent, in-home care for a child who is the subject of a
  report alleging the child has been abused or neglected;
                     (G)  a person providing, at the request of the
  child's parent, in-home care for a child only if the person gives
  written consent to the release and disclosure of the information;
                     (H)  a child who is related to the caretaker, as
  determined under Section 42.002, Human Resources Code, or any other
  person who resides in, is present in, or has unsupervised access to
  a child in the care of a facility or family home; 
                     (I)  a relative of a child in the care of the
  Department of Family and Protective Services, to the extent
  necessary to comply with Section 162.007, Family Code;
                     (J)  a person providing or applying to provide
  in-home, adoptive, or foster care for children to the extent
  necessary to comply with Subchapter B, Chapter 162, Family Code;
                     (K)  a person who volunteers to supervise
  visitation under Subchapter B, Chapter 263, Family Code;
                     (L)  an employee of or volunteer at, or an
  applicant for employment with or to be a volunteer at, an entity
  that provides supervised independent living services to a young
  adult receiving extended foster care services from the Department
  of Family and Protective Services;
                     (M)  a person 14 years of age or older who will be
  regularly or frequently working or staying in a host home that is
  providing supervised independent living services to a young adult
  receiving extended foster care services from the Department of
  Family and Protective Services;
                     (N)  a volunteer or applicant volunteer with a
  local affiliate in this state of Big Brothers Big Sisters of
  America;
                     (O)  a volunteer or applicant volunteer with an
  organization that provides court-appointed volunteer advocates for
  abused or neglected children; or
                     (P)  an employee, volunteer, or applicant
  volunteer of a children's advocacy center under Subchapter E,
  Chapter 264, Family Code, including a member of the governing board
  of a center [with respect to whom the Department of Family and
  Protective Services determines obtaining a criminal history record
  is necessary to ensure the safety or welfare of a child, elderly
  person, or person with a disability].
               (7)  The Department of Family and Protective Services
  is not prohibited from releasing criminal history record
  information obtained under this subsection to:
                     (A)  the person who is the subject of the criminal
  history record information;
                     (B)  a [child-care facility,] child-placing
  agency[, or family home] listed in Subdivision (2) that is seeking
  to verify or approve a foster or adoptive home under procedures
  authorized by Section 471(a)(20)(A), Social Security Act (42 U.S.C.
  Section 671(a)(20)(A)) [employs or is considering employing the
  person who is the subject of the criminal history record
  information];
                     (C)  [a person or business entity described by
  Subdivision (2)(E) who uses or intends to use the services of the
  volunteer or employs or is considering employing the person who is
  the subject of the criminal history record information;
                     [(D)     a person or business entity who uses or
  intends to use the volunteer services of or who employs or is
  considering employing the person who is the subject of the criminal
  history record if the release of the record is related to the
  purpose for which the record was obtained under Subdivision (3);
                     [(E)]  an adult who resides with an alleged victim
  of abuse, neglect, or exploitation of a child, elderly person, or
  person with a disability and who also resides with the alleged
  perpetrator of that abuse, neglect, or exploitation if:
                           (i)  the alleged perpetrator is the subject
  of the criminal history record information; and
                           (ii)  the Department of Family and
  Protective Services determines that the release of information to
  the adult is necessary to ensure the safety or welfare of the
  alleged victim or the adult; or
                     (D) [(F)]  an elderly or disabled person who is an
  alleged victim of abuse, neglect, or exploitation and who resides
  with the alleged perpetrator of that abuse, neglect, or
  exploitation if:
                           (i)  the alleged perpetrator is the subject
  of the criminal history record information; and
                           (ii)  the Department of Family and
  Protective Services determines that the release of information to
  the elderly or disabled person or adult is necessary to ensure the
  safety or welfare of the elderly or disabled person.
         SECTION 3.  Section 411.114, Government Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  With respect to an applicant who is selected for
  employment for a function or in a division of the Department of
  Family and Protective Services that is transferred to the Health
  and Human Services Commission under Subchapter A-1, Chapter 531,
  the commission may obtain from the department criminal history
  record information maintained by the department that relates to the
  applicant.
         SECTION 4.  Effective January 1, 2018, Section 42.056, Human
  Resources Code, is amended by amending Subsections (a), (a-2),
  (a-5), (b), (b-1), and (g) and adding Subsections (a-3) and (b-2) to
  read as follows:
         (a)  The [In accordance with rules adopted by the executive
  commissioner, the] director, owner, or operator of a [child-care]
  facility[, child-placing agency,] or family home shall[, when
  applying to operate a child-care facility or child-placing agency
  or when listing or registering a family home and at least once
  during each 24 months after receiving a license, listing,
  registration, or certification of approval,] submit to the
  department the names of the following individuals, who must have
  [for use in conducting] background [and criminal history] checks as
  described by this section and in accordance with rules adopted by
  the executive commissioner [the name of]:
               (1)  the director, owner, and operator of the facility,
  agency, or home;
               (2)  each person employed at the facility, agency, or
  home;
               (3)  each prospective employee of the facility, agency,
  or home;
               (4)  each person who provides care or supervision to
  children in the care of the facility, agency, or home under a
  contract with the facility, agency, or home;
               (5)  each current or prospective foster parent
  providing foster care through a child-placing agency;
               (6) [(5)]  each prospective adoptive parent seeking to
  adopt through a child-placing agency;
               (7) [(6)]  each person at least 14 years of age, other
  than a client in care, who:
                     (A)  is counted in child-to-caregiver ratios in
  accordance with the minimum standards of the department;
                     (B)  will reside in a prospective adoptive home if
  the adoption is through a child-placing agency;
                     (C)  has unsupervised access to children in care
  at the facility or family home; or
                     (D)  resides in the facility or family home; or
               (8) [(7)]  each person 14 years of age or older, other
  than a client in care, who will regularly or frequently be staying
  or working at a facility, family home, or prospective adoptive
  home, while children are being provided care.
         (a-2)  In accordance with rules adopted by the executive
  commissioner, a person [the director, owner, or operator of a
  residential child-care facility, listed or registered family home,
  group day-care home, day-care center, before-school or
  after-school program, or school-age program] shall submit a
  complete set of fingerprints if:
               (1)  the [of each] person [whose name] is required to
  have a background check under Subsections (a)(1)-(7);
               (2)  the person resided in another state during [be
  submitted by] the five years preceding the date [director, owner,
  or operator under Subsection (a), unless the person is only
  required to have] the person's name was required to be submitted
  under [based on criteria specified by] Subsection (a); or
               (3)  the director, owner, or operator has reason to
  suspect that the person has a criminal history in another state
  [(a)(7)].
         (a-3)  Subsection (a-2)(1) [This subsection] does not apply
  to a family home that is subject to regulation by the department
  under Section 42.0523.
         (a-5)  The rules adopted by the executive commissioner under
  Subsection [Subsections] (a-2) [and (a-4)]:
               (1)  must require that the fingerprints be submitted in
  a form and of a quality acceptable to the Department of Public
  Safety and the Federal Bureau of Investigation for conducting a
  criminal history check;
               (2)  may require that the fingerprints be submitted
  electronically through an applicant fingerprinting service center;
  and
               (3)  may allow the department to waive the submission
  of fingerprints required by this section if:
                     (A)  the person for whom the submission is
  required has:
                           (i)  a fingerprint-based criminal history
  record check on file with the department; or
                           (ii)  a fingerprint-based criminal history
  clearinghouse record, as provided by Section 411.0845, Government
  Code, that is accessible to the department through the Department
  of Public Safety; and
                     (B)  the department has an active subscription to
  the Federal Bureau of Investigation's national rap back service for
  the person for whom the [date on which the current] submission [of
  fingerprints] is required [occurs before the second anniversary of
  a previous name-based criminal history check of the person].
         (b)  The department shall conduct background [and criminal
  history] checks using:
               (1)  the information provided under Subsection (a);
               (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; and
               (4)  any other registry, repository, or database
  required by federal law.
         (b-1)  For [In addition to any other background or criminal
  history check conducted under Subsection (b), for] each person
  whose fingerprints are submitted under Subsection (a-2) [or (a-4)],
  the department shall conduct a state and Federal Bureau of
  Investigation criminal history check by:
               (1)  submitting the person's fingerprints, or causing
  the fingerprints to be submitted electronically, to the Department
  of Public Safety for the purpose of conducting a state and federal
  criminal history check; and
               (2)  using the resulting information made available by
  that department under Section 411.114, Government Code, and by the
  Federal Bureau of Investigation and any other criminal justice
  agency under Section 411.087, Government Code.
         (b-2)  For each person required to have a background check
  under Subsection (a), but who is not required to submit
  fingerprints for a Federal Bureau of Investigations criminal
  history check under Subsection (a-2):
               (1)  the person shall have a name-based check instead
  of a fingerprint check; and
               (2)  the director, owner, or operator of the child-care
  facility, child-placing agency, or family home shall submit the
  name of the person each 24 months after last submitting the person's
  name to the department for use in conducting a background check.
         (g)  Except as otherwise provided by this subsection, a
  person whose name is submitted under Subsection (a) may not provide
  direct care or have direct access to a child in a facility or family
  home before the person's background check is [and criminal history
  checks under Subsections (b) and (b-1) are] completed.  A person
  may be employed at a facility or family home and may provide direct
  care or have direct access to a child in the facility or family home
  before the person's criminal history check under Subsection (b-1)
  is completed if:
               (1)  the facility or family home is experiencing a
  staff shortage;
               (2)  the Federal Bureau of Investigations fingerprint
  [state criminal history] check and the background check using the
  department's records of reported abuse and neglect have been
  completed under Subsection (b), and the resulting information does
  not preclude the person from being present at the facility or family
  home; and
               (3)  the person does not have unsupervised access to
  any child in care [person's fingerprints are submitted as soon as
  possible, but not later than the 30th day after the earliest of the
  date on which the person first:
                     [(A)  provides direct care to a child;
                     [(B)  has direct access to a child; or
                     [(C)  is hired].
         SECTION 5.  (a) Section 411.114(a)(1)(E), Government Code,
  is repealed.
         (b)  Effective January 1, 2018, Section 42.056(a-4), Human
  Resources Code, is repealed.
         SECTION 6.  Except as otherwise provided by this Act, this
  Act takes effect September 1, 2017.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 4094 was passed by the House on May 9,
  2017, by the following vote:  Yeas 145, Nays 0, 2 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 4094 was passed by the Senate on May
  24, 2017, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor