Texas 2017 - 85th Regular

Texas House Bill HB4094 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	H.B. No. 4094
	1	+	By: Klick (Senate Sponsor - Uresti) H.B. No. 4094
	2	+	(In the Senate - Received from the House May 10, 2017;
	3	+	May 12, 2017, read first time and referred to Committee on Health &
	4	+	Human Services; May 19, 2017, reported favorably by the following
	5	+	vote: Yeas 8, Nays 0; May 19, 2017, sent to printer.)
	6	+	Click here to see the committee vote
2	7
3	8
	9	+	A BILL TO BE ENTITLED
4	10		AN ACT
5	11		relating to the access of criminal history record information by
6	12		the Department of Family and Protective Services.
7	13		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	14		SECTION 1. Section 411.114(a)(1), Government Code, is
9	15		amended by amending Paragraph (A) and adding Paragraph (A-1) to
10	16		read as follows:
11	17		(A) "Child," "child-care facility,"
12	18		"child-placing agency," "facility," and "family home" have the
13	19		meanings assigned by Section 42.002, Human Resources Code.
14	20		(A-1) "Department of Family and Protective
15	21		Services" includes:
16	22		(i) the Department of Family and Protective
17	23		Services as authorized by Section 40.002, Human Resources Code;
18	24		(ii) the Health and Human Services
19	25		Commission with respect to a function transferred to the commission
20	26		under Subchapter A-1, Chapter 531; and
21	27		(iii) any person or entity acting as an
22	28		authorized agent of the Department of Family and Protective
23	29		Services.
24	30		SECTION 2. Sections 411.114(a)(2), (3), and (7), Government
25	31		Code, are amended to read as follows:
26	32		(2) The Department of Family and Protective Services
27	33		shall obtain from the department criminal history record
28	34		information maintained by the department that relates to a person
29	35		who is:
30	36		(A) an applicant for a license, registration,
31	37		certification, or listing under Chapter 42, Human Resources Code;
32	38		(B) an owner, operator, or employee of or an
33	39		applicant for employment by a child-care facility, child-placing
34	40		agency, or family home licensed, registered, certified, or listed
35	41		under Chapter 42, Human Resources Code;
36	42		(C) a person 14 years of age or older who will be
37	43		regularly or frequently working or staying in a [child-care]
38	44		facility or family home [while children are being provided care],
39	45		other than a child in the care of the home or facility;
40	46		(D) except as provided by Subsection (d), an
41	47		applicant selected for a position with the Department of Family and
42	48		Protective Services, the duties of which include direct delivery of
43	49		protective services to children, elderly persons, or persons with a
44	50		disability;
45	51		(E) an employee of, an applicant for employment
46	52		with, or a volunteer or an applicant volunteer with a business
47	53		entity or person that contracts with the Department of Family and
48	54		Protective Services to provide direct delivery of protective
49	55		services to children, elderly persons, or persons with a
50	56		disability, if the person's duties or responsibilities include
51	57		direct contact with children, elderly persons, or persons with a
52	58		disability;
53	59		(F) a registered volunteer with the Department of
54	60		Family and Protective Services;
55	61		(G) a person providing or applying to provide
56	62		in-home, adoptive, or foster care for children in the care of the
57	63		Department of Family and Protective Services and other persons
58	64		living in the residence in which the child will reside;
59	65		(H) a Department of Family and Protective
60	66		Services employee who is engaged in the direct delivery of
61	67		protective services to children, elderly persons, or persons with a
62	68		disability;
63	69		(I) an alleged perpetrator in a report the
64	70		Department of Family and Protective Services receives alleging that
65	71		the person has abused, neglected, or exploited a child, an elderly
66	72		person, or a person with a disability, provided that:
67	73		(i) the report alleges the person has
68	74		engaged in conduct that meets the applicable definition of abuse,
69	75		neglect, or exploitation under Chapter 261, Family Code, or Chapter
70	76		48, Human Resources Code; and
71	77		(ii) the person is not also the victim of
72	78		the alleged conduct;
73	79		(J) a person providing child care for a child who
74	80		is in the care of the Department of Family and Protective Services
75	81		and who is or will be receiving adoptive, foster, or in-home care;
76	82		(K) through a contract with a nonprofit
77	83		management center, an employee of, an applicant for employment
78	84		with, or a volunteer or an applicant volunteer with a nonprofit,
79	85		tax-exempt organization that provides any service that involves the
80	86		care of or access to a child, an elderly person, or a person with a
81	87		disability; or
82	88		(L) an applicant for a child-care administrator
83	89		or child-placing agency administrator license under Chapter 43,
84	90		Human Resources Code.
85	91		(3) In addition to the criminal history record
86	92		information the Department of Family and Protective Services is
87	93		required to obtain under Subdivision (2), the [The] Department of
88	94		Family and Protective Services is entitled to obtain from the
89	95		department criminal history record information maintained by the
90	96		department that relates to a person who is:
91	97		(A) an applicant for a position with the
92	98		Department of Family and Protective Services regardless of the
93	99		duties of the position, including a position described by
94	100		Subdivision (2)(D);
95	101		(B) a Department of Family and Protective
96	102		Services employee regardless of the duties of the employee's
97	103		position, including an employee described by Subdivision (2)(H);
98	104		(C) a volunteer or applicant volunteer with the
99	105		Department of Family and Protective Services regardless of the
100	106		duties to be performed, including a registered volunteer;
101	107		(D) an employee of, an applicant for employment
102	108		with, or a volunteer or an applicant volunteer with an entity or
103	109		person that contracts with the Department of Family and Protective
104	110		Services and has access to confidential information in the
105	111		department's records, if the employee, applicant, volunteer, or
106	112		applicant volunteer has or will have access to that confidential
107	113		information;
108	114		(E) a person living in the residence in which the
109	115		alleged victim of the report resides, including an alleged
110	116		perpetrator in a report described by Subdivision (2)(I);
111	117		(F) a person providing, at the request of the
112	118		child's parent, in-home care for a child who is the subject of a
113	119		report alleging the child has been abused or neglected;
114	120		(G) a person providing, at the request of the
115	121		child's parent, in-home care for a child only if the person gives
116	122		written consent to the release and disclosure of the information;
117	123		(H) a child who is related to the caretaker, as
118	124		determined under Section 42.002, Human Resources Code, or any other
119	125		person who resides in, is present in, or has unsupervised access to
120	126		a child in the care of a facility or family home;
121	127		(I) a relative of a child in the care of the
122	128		Department of Family and Protective Services, to the extent
123	129		necessary to comply with Section 162.007, Family Code;
124	130		(J) a person providing or applying to provide
125	131		in-home, adoptive, or foster care for children to the extent
126	132		necessary to comply with Subchapter B, Chapter 162, Family Code;
127	133		(K) a person who volunteers to supervise
128	134		visitation under Subchapter B, Chapter 263, Family Code;
129	135		(L) an employee of or volunteer at, or an
130	136		applicant for employment with or to be a volunteer at, an entity
131	137		that provides supervised independent living services to a young
132	138		adult receiving extended foster care services from the Department
133	139		of Family and Protective Services;
134	140		(M) a person 14 years of age or older who will be
135	141		regularly or frequently working or staying in a host home that is
136	142		providing supervised independent living services to a young adult
137	143		receiving extended foster care services from the Department of
138	144		Family and Protective Services;
139	145		(N) a volunteer or applicant volunteer with a
140	146		local affiliate in this state of Big Brothers Big Sisters of
141	147		America;
142	148		(O) a volunteer or applicant volunteer with an
143	149		organization that provides court-appointed volunteer advocates for
144	150		abused or neglected children; or
145	151		(P) an employee, volunteer, or applicant
146	152		volunteer of a children's advocacy center under Subchapter E,
147	153		Chapter 264, Family Code, including a member of the governing board
148	154		of a center [with respect to whom the Department of Family and
149	155		Protective Services determines obtaining a criminal history record
150	156		is necessary to ensure the safety or welfare of a child, elderly
151	157		person, or person with a disability].
152	158		(7) The Department of Family and Protective Services
153	159		is not prohibited from releasing criminal history record
154	160		information obtained under this subsection to:
155	161		(A) the person who is the subject of the criminal
156	162		history record information;
157	163		(B) a [child-care facility,] child-placing
158	164		agency[, or family home] listed in Subdivision (2) that is seeking
159	165		to verify or approve a foster or adoptive home under procedures
160	166		authorized by Section 471(a)(20)(A), Social Security Act (42 U.S.C.
161	167		Section 671(a)(20)(A)) [employs or is considering employing the
162	168		person who is the subject of the criminal history record
163	169		information];
164	170		(C) [a person or business entity described by
165	171		Subdivision (2)(E) who uses or intends to use the services of the
166	172		volunteer or employs or is considering employing the person who is
167	173		the subject of the criminal history record information;
168	174		[(D) a person or business entity who uses or
169	175		intends to use the volunteer services of or who employs or is
170	176		considering employing the person who is the subject of the criminal
171	177		history record if the release of the record is related to the
172	178		purpose for which the record was obtained under Subdivision (3);
173	179		[(E)] an adult who resides with an alleged victim
174	180		of abuse, neglect, or exploitation of a child, elderly person, or
175	181		person with a disability and who also resides with the alleged
176	182		perpetrator of that abuse, neglect, or exploitation if:
177	183		(i) the alleged perpetrator is the subject
178	184		of the criminal history record information; and
179	185		(ii) the Department of Family and
180	186		Protective Services determines that the release of information to
181	187		the adult is necessary to ensure the safety or welfare of the
182	188		alleged victim or the adult; or
183	189		(D) [(F)] an elderly or disabled person who is an
184	190		alleged victim of abuse, neglect, or exploitation and who resides
185	191		with the alleged perpetrator of that abuse, neglect, or
186	192		exploitation if:
187	193		(i) the alleged perpetrator is the subject
188	194		of the criminal history record information; and
189	195		(ii) the Department of Family and
190	196		Protective Services determines that the release of information to
191	197		the elderly or disabled person or adult is necessary to ensure the
192	198		safety or welfare of the elderly or disabled person.
193	199		SECTION 3. Section 411.114, Government Code, is amended by
194	200		adding Subsection (d) to read as follows:
195	201		(d) With respect to an applicant who is selected for
196	202		employment for a function or in a division of the Department of
197	203		Family and Protective Services that is transferred to the Health
198	204		and Human Services Commission under Subchapter A-1, Chapter 531,
199	205		the commission may obtain from the department criminal history
200	206		record information maintained by the department that relates to the
201	207		applicant.
202	208		SECTION 4. Effective January 1, 2018, Section 42.056, Human
203	209		Resources Code, is amended by amending Subsections (a), (a-2),
204	210		(a-5), (b), (b-1), and (g) and adding Subsections (a-3) and (b-2) to
205	211		read as follows:
206	212		(a) The [In accordance with rules adopted by the executive
207	213		commissioner, the] director, owner, or operator of a [child-care]
208	214		facility[, child-placing agency,] or family home shall[, when
209	215		applying to operate a child-care facility or child-placing agency
210	216		or when listing or registering a family home and at least once
211	217		during each 24 months after receiving a license, listing,
212	218		registration, or certification of approval,] submit to the
213	219		department the names of the following individuals, who must have
214	220		[for use in conducting] background [and criminal history] checks as
215	221		described by this section and in accordance with rules adopted by
216	222		the executive commissioner [the name of]:
217	223		(1) the director, owner, and operator of the facility,
218	224		agency, or home;
219	225		(2) each person employed at the facility, agency, or
220	226		home;
221	227		(3) each prospective employee of the facility, agency,
222	228		or home;
223	229		(4) each person who provides care or supervision to
224	230		children in the care of the facility, agency, or home under a
225	231		contract with the facility, agency, or home;
226	232		(5) each current or prospective foster parent
227	233		providing foster care through a child-placing agency;
228	234		(6) [(5)] each prospective adoptive parent seeking to
229	235		adopt through a child-placing agency;
230	236		(7) [(6)] each person at least 14 years of age, other
231	237		than a client in care, who:
232	238		(A) is counted in child-to-caregiver ratios in
233	239		accordance with the minimum standards of the department;
234	240		(B) will reside in a prospective adoptive home if
235	241		the adoption is through a child-placing agency;
236	242		(C) has unsupervised access to children in care
237	243		at the facility or family home; or
238	244		(D) resides in the facility or family home; or
239	245		(8) [(7)] each person 14 years of age or older, other
240	246		than a client in care, who will regularly or frequently be staying
241	247		or working at a facility, family home, or prospective adoptive
242	248		home, while children are being provided care.
243	249		(a-2) In accordance with rules adopted by the executive
244	250		commissioner, a person [the director, owner, or operator of a
245	251		residential child-care facility, listed or registered family home,
246	252		group day-care home, day-care center, before-school or
247	253		after-school program, or school-age program] shall submit a
248	254		complete set of fingerprints if:
249	255		(1) the [of each] person [whose name] is required to
250	256		have a background check under Subsections (a)(1)-(7);
251	257		(2) the person resided in another state during [be
252	258		submitted by] the five years preceding the date [director, owner,
253	259		or operator under Subsection (a), unless the person is only
254	260		required to have] the person's name was required to be submitted
255	261		under [based on criteria specified by] Subsection (a); or
256	262		(3) the director, owner, or operator has reason to
257	263		suspect that the person has a criminal history in another state
258	264		[(a)(7)].
259	265		(a-3) Subsection (a-2)(1) [This subsection] does not apply
260	266		to a family home that is subject to regulation by the department
261	267		under Section 42.0523.
262	268		(a-5) The rules adopted by the executive commissioner under
263	269		Subsection [Subsections] (a-2) [and (a-4)]:
264	270		(1) must require that the fingerprints be submitted in
265	271		a form and of a quality acceptable to the Department of Public
266	272		Safety and the Federal Bureau of Investigation for conducting a
267	273		criminal history check;
268	274		(2) may require that the fingerprints be submitted
269	275		electronically through an applicant fingerprinting service center;
270	276		and
271	277		(3) may allow the department to waive the submission
272	278		of fingerprints required by this section if:
273	279		(A) the person for whom the submission is
274	280		required has:
275	281		(i) a fingerprint-based criminal history
276	282		record check on file with the department; or
277	283		(ii) a fingerprint-based criminal history
278	284		clearinghouse record, as provided by Section 411.0845, Government
279	285		Code, that is accessible to the department through the Department
280	286		of Public Safety; and
281	287		(B) the department has an active subscription to
282	288		the Federal Bureau of Investigation's national rap back service for
283	289		the person for whom the [date on which the current] submission [of
284	290		fingerprints] is required [occurs before the second anniversary of
285	291		a previous name-based criminal history check of the person].
286	292		(b) The department shall conduct background [and criminal
287	293		history] checks using:
288	294		(1) the information provided under Subsection (a);
289	295		(2) the information made available by the Department
290	296		of Public Safety under Section 411.114, Government Code, or by the
291	297		Federal Bureau of Investigation or other criminal justice agency
292	298		under Section 411.087, Government Code; [and]
293	299		(3) the department's records of reported abuse and
294	300		neglect; and
295	301		(4) any other registry, repository, or database
296	302		required by federal law.
297	303		(b-1) For [In addition to any other background or criminal
298	304		history check conducted under Subsection (b), for] each person
299	305		whose fingerprints are submitted under Subsection (a-2) [or (a-4)],
300	306		the department shall conduct a state and Federal Bureau of
301	307		Investigation criminal history check by:
302	308		(1) submitting the person's fingerprints, or causing
303	309		the fingerprints to be submitted electronically, to the Department
304	310		of Public Safety for the purpose of conducting a state and federal
305	311		criminal history check; and
306	312		(2) using the resulting information made available by
307	313		that department under Section 411.114, Government Code, and by the
308	314		Federal Bureau of Investigation and any other criminal justice
309	315		agency under Section 411.087, Government Code.
310	316		(b-2) For each person required to have a background check
311	317		under Subsection (a), but who is not required to submit
312	318		fingerprints for a Federal Bureau of Investigations criminal
313	319		history check under Subsection (a-2):
314	320		(1) the person shall have a name-based check instead
315	321		of a fingerprint check; and
316	322		(2) the director, owner, or operator of the child-care
317	323		facility, child-placing agency, or family home shall submit the
318	324		name of the person each 24 months after last submitting the person's
319	325		name to the department for use in conducting a background check.
320	326		(g) Except as otherwise provided by this subsection, a
321	327		person whose name is submitted under Subsection (a) may not provide
322	328		direct care or have direct access to a child in a facility or family
323	329		home before the person's background check is [and criminal history
324	330		checks under Subsections (b) and (b-1) are] completed. A person
325	331		may be employed at a facility or family home and may provide direct
326	332		care or have direct access to a child in the facility or family home
327	333		before the person's criminal history check under Subsection (b-1)
328	334		is completed if:
329	335		(1) the facility or family home is experiencing a
330	336		staff shortage;
331	337		(2) the Federal Bureau of Investigations fingerprint
332	338		[state criminal history] check and the background check using the
333	339		department's records of reported abuse and neglect have been
334	340		completed under Subsection (b), and the resulting information does
335	341		not preclude the person from being present at the facility or family
336	342		home; and
337	343		(3) the person does not have unsupervised access to
338	344		any child in care [person's fingerprints are submitted as soon as
339	345		possible, but not later than the 30th day after the earliest of the
340	346		date on which the person first:
341	347		[(A) provides direct care to a child;
342	348		[(B) has direct access to a child; or
343	349		[(C) is hired].
344	350		SECTION 5. (a) Section 411.114(a)(1)(E), Government Code,
345	351		is repealed.
346	352		(b) Effective January 1, 2018, Section 42.056(a-4), Human
347	353		Resources Code, is repealed.
348	354		SECTION 6. Except as otherwise provided by this Act, this
349	355		Act takes effect September 1, 2017.
350		-	______________________________ ______________________________
351		-	President of the Senate Speaker of the House
352		-	I certify that H.B. No. 4094 was passed by the House on May 9,
353		-	2017, by the following vote: Yeas 145, Nays 0, 2 present, not
354		-	voting.
355		-	______________________________
356		-	Chief Clerk of the House
357		-	I certify that H.B. No. 4094 was passed by the Senate on May
358		-	24, 2017, by the following vote: Yeas 31, Nays 0.
359		-	______________________________
360		-	Secretary of the Senate
361		-	APPROVED: _____________________
362		-	Date
363		-	_____________________
364		-	Governor
	356	+	* * * * *