Bill Text: TX HB4094 | 2017-2018 | 85th Legislature | Enrolled
Bill Title: Relating to the access of criminal history record information by the Department of Family and Protective Services.
Spectrum: Bipartisan Bill
Status: (Passed) 2017-06-15 - See remarks for effective date [HB4094 Detail]
Download: Texas-2017-HB4094-Enrolled.html
H.B. No. 4094 |
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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 [ |
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facility or family home [ |
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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 [ |
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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 [ |
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(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 [ |
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agency[ |
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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)) [ |
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(C) [ |
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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) [ |
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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 [ |
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facility[ |
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department the names of the following individuals, who must have | ||
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described by this section and in accordance with rules adopted by | ||
the executive commissioner [ |
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(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) [ |
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adopt through a child-placing agency; | ||
(7) [ |
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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) [ |
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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 [ |
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complete set of fingerprints if: | ||
(1) the [ |
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have a background check under Subsections (a)(1)-(7); | ||
(2) the person resided in another state during [ |
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under [ |
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(3) the director, owner, or operator has reason to | ||
suspect that the person has a criminal history in another state | ||
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(a-3) Subsection (a-2)(1) [ |
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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 [ |
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(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 [ |
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(b) The department shall conduct background [ |
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(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; [ |
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(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 [ |
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whose fingerprints are submitted under Subsection (a-2) [ |
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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 [ |
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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 | ||
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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 [ |
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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 |