85R21568 MCK-F
By: Frank, Cook, Dale, et al. H.B. No. 3859
Substitute the following for H.B. No. 3859:
By: Cook C.S.H.B. No. 3859
A BILL TO BE ENTITLED
AN ACT
relating to protection of the rights of conscience for child
welfare services providers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle D, Title 2, Human Resources Code, is
amended by adding Chapter 45 to read as follows:
CHAPTER 45. PROTECTION OF RIGHTS OF CONSCIENCE FOR
CHILD WELFARE SERVICES PROVIDERS
Sec. 45.001. LEGISLATIVE INTENT. It is the intent of the
legislature to maintain a diverse network of service providers that
offer a range of foster capacity options and that accommodate
children from various cultural backgrounds. To that end, the
legislature expects reasonable accommodations to be made by the
state to allow people of diverse backgrounds and beliefs to be a
part of meeting the needs of children in the child welfare system.
Decisions regarding the placement of children shall continue to be
made in the best interest of the child, including which person is
best able to provide for the child's physical, psychological, and
emotional needs and development.
Sec. 45.002. DEFINITIONS. In this chapter:
(1) "Adverse action" means any action that directly or
indirectly adversely affects the person against whom the adverse
action is taken, places the person in a worse position than the
person was in before the adverse action was taken, or is likely to
deter a reasonable person from acting or refusing to act. An adverse
action includes:
(A) denying an application for, refusing to
renew, or canceling funding;
(B) declining to enter into, refusing to renew,
or canceling a contract;
(C) declining to issue, refusing to renew, or
canceling a license;
(D) terminating, suspending, demoting, or
reassigning a person; and
(E) limiting the ability of a person to engage in
child welfare services.
(2) "Catchment area" means a geographic service area
for providing child protective services or child welfare services
identified as part of the foster care redesign under Section
264.126, Family Code.
(3) "Child welfare services" means social services
provided to or on behalf of children, including:
(A) assisting abused or neglected children;
(B) counseling children or parents;
(C) promoting foster parenting;
(D) providing foster homes, general residential
operations, residential care, adoptive homes, group homes, or
temporary group shelters for children;
(E) recruiting foster parents;
(F) placing children in foster homes;
(G) licensing foster homes;
(H) promoting adoption or recruiting adoptive
parents;
(I) assisting adoptions or supporting adoptive
families;
(J) performing or assisting home studies;
(K) assisting kinship guardianships or kinship
caregivers;
(L) providing family preservation services;
(M) providing family support services;
(N) providing temporary family reunification
services;
(O) placing children in adoptive homes; and
(P) serving as a foster parent.
(4) "Child welfare services provider" means a person,
other than a governmental entity, that provides, seeks to provide,
or applies for or receives a contract, subcontract, grant,
subgrant, or cooperative agreement to provide child welfare
services. The person is not required to be engaged exclusively in
child welfare services to be a child welfare services provider.
(5) "Governmental entity" means:
(A) this state or a municipality or other
political subdivision of this state;
(B) any agency of this state or of a municipality
or other political subdivision of this state, including a
department, bureau, board, commission, office, agency, council,
and public institution of higher education; or
(C) a single source continuum contractor in this
state.
Sec. 45.003. APPLICABILITY. (a) This chapter applies to
any ordinance, rule, order, decision, practice, or other exercise
of governmental authority.
(b) This chapter applies to an act of a governmental entity,
in the exercise of governmental authority, granting or refusing to
grant a government benefit to a child welfare services provider.
Sec. 45.004. CHILD WELFARE SERVICES PROVIDERS PROTECTED. A
governmental entity or any person that contracts with this state or
operates under governmental authority to refer or place children
for child welfare services may not discriminate or take any adverse
action against a child welfare services provider on the basis,
wholly or partly, that the provider:
(1) has declined or will decline to provide,
facilitate, or refer a person for child welfare services that
conflict with, or under circumstances that conflict with, the
provider's sincerely held religious beliefs;
(2) provides or intends to provide children under the
control, care, guardianship, or direction of the provider with a
religious education, including through placing the children in a
private or parochial school or otherwise providing a religious
education in accordance with the laws of this state;
(3) has declined or will decline to provide,
facilitate, or refer a person for abortions, contraceptives, or
drugs, devices, or services that are potentially
abortion-inducing; or
(4) refuses to enter into a contract that is
inconsistent with or would in any way interfere with or force a
provider to surrender the rights created by this chapter.
Sec. 45.005. SECONDARY SERVICES PROVIDERS. (a) A child
welfare services provider may not be required to provide any
service that conflicts with the provider's sincerely held religious
beliefs.
(b) A governmental entity or any person that operates under
governmental authority to refer or place children for child welfare
services shall:
(1) ensure that a secondary child welfare services
provider is available in that catchment area to provide a service
described by Subsection (a) to a child; or
(2) if there is an insufficient number of secondary
services providers willing or available in that catchment area to
provide that service, provide for one or more secondary services
providers in a nearby catchment area.
Sec. 45.006. PRIVATE RIGHT OF ACTION. A child welfare
services provider may assert an actual or threatened violation of
this chapter as a claim or defense in a judicial or administrative
proceeding and obtain the relief specified in Section 45.007.
Sec. 45.007. REMEDIES. (a) A child welfare services
provider who successfully asserts a claim or defense under this
chapter is entitled to recover:
(1) declaratory relief under Chapter 37, Civil
Practice and Remedies Code; or
(2) injunctive relief to prevent the threatened or
continued adverse action.
(b) A person may not bring an action for declaratory or
injunctive relief against an individual, other than an action
brought against an individual acting in the individual's official
capacity.
Sec. 45.008. IMMUNITY WAIVED. (a) Sovereign and
governmental immunity to suit are waived.
(b) Notwithstanding Subsection (a), this chapter does not
waive or abolish sovereign immunity to suit under the Eleventh
Amendment to the United States Constitution.
Sec. 45.009. EFFECT ON RIGHTS; CONSTRUCTION OF LAW. (a)
This chapter may not be construed to authorize a governmental
entity to burden a person's free exercise of religion.
(b) The protections of religious freedom afforded by this
chapter are in addition to the protections provided under federal
or state law and the constitutions of this state and the United
States.
(c) This chapter may not be construed to supersede any law
of this state that is equally as protective of religious beliefs as,
or more protective of religious beliefs than, this chapter.
(d) This chapter may not be considered to narrow the meaning
or application of any other law protecting religious beliefs.
(e) This chapter may not be construed to prevent law
enforcement officers from exercising duties imposed on the officers
under the Family Code and the Penal Code.
(f) This chapter may not be construed to allow a child
welfare services provider to decline to provide, facilitate, or
refer a person for child welfare services on the basis of that
person's race, ethnicity, or national origin.
(g) This chapter may not be construed to allow a child
welfare services provider to deprive a minor of the rights,
including the right to medical care, provided by Chapters 32, 263,
and 266, Family Code.
(h) This chapter may not be construed to prohibit the
department from:
(1) exercising its duty as the child's managing
conservator to make decisions in the child's best interest; or
(2) obtaining necessary child welfare services from an
alternate child welfare services provider.
Sec. 45.010. INTERPRETATION. This chapter shall be
liberally construed to effectuate its remedial and deterrent
purposes.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.