By: Klick (Senate Sponsor - Uresti) H.B. No. 4094
(In the Senate - Received from the House May 10, 2017;
May 12, 2017, read first time and referred to Committee on Health &
Human Services; May 19, 2017, reported favorably by the following
vote: Yeas 8, Nays 0; May 19, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
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.
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