Texas 2009 - 81st Regular

Texas Senate Bill SB1064 Compare Versions

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1	1	81R33462 MCK-F
2	2	By: Watson, et al. S.B. No. 1064
3	3	Substitute the following for S.B. No. 1064:
4	4	By: Naishtat C.S.S.B. No. 1064
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the investigation of child abuse or neglect.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 261.302, Family Code, is amended by
12	12	adding Subsection (g) to read as follows:
13	13	(g) The department, without filing suit, may seek a court
14	14	order in aid of an investigation under Section 261.303.
15	15	SECTION 2. Section 261.303, Family Code, is amended by
16	16	amending Subsections (a), (b), and (c) and adding Subsections
17	17	(c-1), (c-2), (c-3), (f), (g), (h), (i), (j), (k), (l), and (m) to
18	18	read as follows:
19	19	(a) A person may not interfere with an investigation of a
20	20	report of child abuse or neglect conducted by the department or
21	21	designated agency, and a court may render an order to assist the
22	22	department in an investigation under this subchapter.
23	23	(b) If admission to the home, school, or any place where the
24	24	child may be cannot be obtained, or if consent to transport a child
25	25	for purposes relating to an interview or investigation cannot be
26	26	obtained, then, on presentation of an application supported by an
27	27	affidavit described by Subsection (c-2) that is executed by an
28	28	investigator or authorized representative of the department, [for
29	29	good cause shown] the court having family law jurisdiction,
30	30	including any associate judge designated by the court, may, on
31	31	finding that the affidavit is sufficient and without prior notice
32	32	or a hearing, [shall] order the parent, the person responsible for
33	33	the care of the children, or the person in charge of any place where
34	34	the child may be to allow entrance, transport of the child, or both
35	35	entrance and transport for the interview, examination, and
36	36	investigation.
37	37	(c) If a parent or person responsible for the child's care
38	38	does not consent to release of the child's prior medical,
39	39	psychological, or psychiatric records or to a medical,
40	40	psychological, or psychiatric examination of the child that is
41	41	requested by the department or designated agency, then, on
42	42	presentation of an application supported by an affidavit described
43	43	by Subsection (c-2) that is executed by an investigator or
44	44	authorized representative of the department, the court having
45	45	family law jurisdiction, including any associate judge designated
46	46	by the court, may, on finding that the affidavit is sufficient and
47	47	without prior notice or a hearing, [shall, for good cause shown,]
48	48	order the records to be released or the examination to be made at
49	49	the times and places designated by the court.
50	50	(c-1) If a person having possession of records relating to a
51	51	child that are relevant to an investigation does not consent to the
52	52	release of the records on the request of the department or
53	53	designated agency, then, on presentation of an application
54	54	supported by an affidavit described by Subsection (c-2) that is
55	55	executed by an investigator or authorized representative of the
56	56	department, the court having family law jurisdiction, including any
57	57	associate judge designated by the court, may, on finding that the
58	58	affidavit is sufficient and without prior notice or a hearing,
59	59	order the records to be released at the time and place designated by
60	60	the court.
61	61	(c-2) An application filed under this section must be
62	62	accompanied by an affidavit executed by an investigator or
63	63	authorized representative of the department that states facts
64	64	sufficient to lead a person of ordinary prudence and caution to
65	65	believe that:
66	66	(1) based on information available, a child's physical
67	67	or mental health or welfare has been or may be adversely affected by
68	68	abuse or neglect;
69	69	(2) the requested order is necessary to aid in the
70	70	investigation; and
71	71	(3) there is a fair probability that allegations of
72	72	abuse or neglect will be sustained if the order is issued and
73	73	executed.
74	74	(c-3) An application and supporting affidavit used to
75	75	obtain a court order in aid of an investigation under this section
76	76	may be filed on any day, including Sunday.
77	77	(f) A court may designate an associate judge to render an
78	78	order in aid of an investigation under this section. An order
79	79	rendered by an associate judge is immediately effective without the
80	80	ratification or signature of the court making the designation.
81	81	(g) As soon as practicable after executing the order or
82	82	attempting to execute the order, as applicable, the department
83	83	shall file with the clerk of the court that rendered the order a
84	84	written report stating:
85	85	(1) the facts surrounding the execution of the order,
86	86	including the date and time the order was executed and the name of
87	87	the investigator or authorized representative executing the order;
88	88	or
89	89	(2) the reasons why the department was unable to
90	90	execute the order.
91	91	(h) A court issuing an order in aid of an investigation
92	92	under this section shall keep a record of all the proceedings before
93	93	the court under this subchapter, including a report filed with the
94	94	court under Subsection (g). The record of proceedings, including
95	95	any application and supporting affidavit presented to the court and
96	96	any report filed with the court under Subsection (g), is
97	97	confidential and may only be disclosed as provided by Subsection
98	98	(i) or Section 261.201.
99	99	(i) If the department files a suit under Chapter 262, the
100	100	department shall include with its original petition a copy of the
101	101	record of all the proceedings before the court under this
102	102	subchapter, including an application and supporting affidavit for
103	103	an order under this section and any report relating to an order in
104	104	aid of an investigation.
105	105	(j) As soon as practicable after the department obtains
106	106	access to records of a child under an order in aid of an
107	107	investigation, the department shall notify the child's parents or
108	108	another person with legal custody of the child that the department
109	109	has obtained the records.
110	110	(k) Access to a confidential record under this subchapter
111	111	does not constitute a waiver of confidentiality.
112	112	(l) This section does not prevent a court from requiring
113	113	notice and a hearing before issuance of an order in aid of an
114	114	investigation under this section if the court determines that:
115	115	(1) there is no immediate risk to the safety of the
116	116	child; and
117	117	(2) notice and a hearing are required to determine
118	118	whether the requested access to persons, records, or places or to
119	119	transport the child is necessary to aid in the investigation.
120	120	(m) A court's denial of a request for an ex parte order under
121	121	this section does not prevent the issuance of a criminal warrant.
122	122	SECTION 3. This Act takes effect immediately if it receives
123	123	a vote of two-thirds of all the members elected to each house, as
124	124	provided by Section 39, Article III, Texas Constitution. If this
125	125	Act does not receive the vote necessary for immediate effect, this
126	126	Act takes effect September 1, 2009.