TX
Texas House Bill HB1190

Texas 2021 - 87th Regular

Texas House Bill HB1190 Compare Versions

OldNewDifferences
1-87R18619 MCK-F
2- By: Krause, Gates, Minjarez H.B. No. 1190
3- Substitute the following for H.B. No. 1190:
4- By: Hull C.S.H.B. No. 1190
1+87R1191 E
2+ By: Krause H.B. No. 1190
53
64
75 A BILL TO BE ENTITLED
86 AN ACT
9- relating to a required court finding of abuse or neglect before an
10- individual's name is added to the central child abuse or neglect
11- registry.
7+ relating to the procedures required before an individual's name is
8+ added to the central child abuse or neglect registry.
129 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1310 SECTION 1. Section 261.002, Family Code, is amended by
14- adding Subsection (a-1) to read as follows:
15- (a-1) The department may not add to the central registry
16- maintained under this section the name of an individual found by the
17- department to have abused or neglected a child unless a court of
18- competent jurisdiction enters a final order in a civil, criminal,
19- or juvenile proceeding in which the court finds the individual
20- abused or neglected the child.
21- SECTION 2. Section 261.002(a-1), Family Code, as added by
22- this Act, applies only to a finding that an individual abused or
23- neglected a child made by the Department of Family and Protective
24- Services on or after the effective date of this Act. A finding made
25- by the department before that date is governed by the law in effect
26- on the date the finding was made, and the former law is continued in
27- effect for that purpose.
28- SECTION 3. This Act takes effect September 1, 2021.
11+ adding Subsections (a-1) and (a-2) and amending Subsection (b) to
12+ read as follows:
13+ (a-1) Except as provided by Subsection (a-2), the
14+ department may not add to the central registry maintained under
15+ this section the name of an individual found by the department to
16+ have abused or neglected a child unless the department's finding is
17+ sustained by an administrative law judge at an administrative
18+ hearing before the State Office of Administrative Hearings under
19+ Section 261.0021.
20+ (a-2) The department may add the name of an individual to
21+ the central registry maintained under this section without an
22+ administrative hearing under Section 261.0021 if in a civil,
23+ criminal, administrative, or juvenile proceeding in which the
24+ allegations of abuse or neglect are at issue, a court finds the
25+ individual abused or neglected a child.
26+ (b) The [executive] commissioner shall adopt rules
27+ necessary to carry out this section. The rules shall:
28+ (1) prohibit the department from making a finding of
29+ abuse or neglect against a person in a case in which the department
30+ is named managing conservator of a child who has a severe emotional
31+ disturbance only because the child's family is unable to obtain
32+ mental health services for the child;
33+ (2) establish guidelines for reviewing the records in
34+ the registry and removing those records in which the department was
35+ named managing conservator of a child who has a severe emotional
36+ disturbance only because the child's family was unable to obtain
37+ mental health services for the child;
38+ (3) require the department to remove a person's name
39+ from the central registry maintained under this section not later
40+ than the 10th business day after the date the department receives
41+ notice that a finding of abuse and neglect against the person is
42+ overturned in:
43+ (A) an administrative review or an appeal of the
44+ review conducted under Section 261.309(c);
45+ (B) a review or an appeal of the review conducted
46+ by the office of consumer affairs of the department; or
47+ (C) a hearing or an appeal conducted by the State
48+ Office of Administrative Hearings; and
49+ (4) require the department to update any relevant
50+ department files to reflect an overturned finding of abuse or
51+ neglect against a person not later than the 10th business day after
52+ the date the finding is overturned in a review, hearing, or appeal
53+ described by Subdivision (3).
54+ SECTION 2. Subchapter A, Chapter 261, Family Code, is
55+ amended by adding Sections 261.0021 and 261.0022 to read as
56+ follows:
57+ Sec. 261.0021. PROCEDURES FOR ADDING ALLEGED OFFENDERS TO
58+ CENTRAL REGISTRY; ADMINISTRATIVE HEARING. (a) Not later than the
59+ 14th day after the date the department makes a finding that an
60+ individual abused or neglected a child, the department shall:
61+ (1) submit a request for a hearing to the State Office
62+ of Administrative Hearings; and
63+ (2) provide written notice to the individual that the
64+ department intends to add the individual's name and information
65+ regarding the reported case of abuse or neglect to the central
66+ registry maintained under Section 261.002.
67+ (b) The notice required by Subsection (a)(2) must include:
68+ (1) a clear statement of the specific allegations that
69+ will be added to the central registry, including:
70+ (A) the name of the alleged victim;
71+ (B) the injury or harm alleged to have resulted
72+ from the abuse or neglect; and
73+ (C) the date the report of abuse or neglect was
74+ made to the department;
75+ (2) the consequences of being listed in the central
76+ registry, including any possible negative impact on the
77+ individual's ability to obtain employment or certain licenses and
78+ to have future contact with children, including any limitation on
79+ volunteering or involvement in school activities;
80+ (3) the length of the time the individual's name may be
81+ included in the registry;
82+ (4) a copy of the information that will be added to the
83+ registry;
84+ (5) confirmation that the department has requested a
85+ hearing before the State Office of Administrative Hearings to
86+ review the department's findings; and
87+ (6) the contact information for the State Office of
88+ Administrative Hearings.
89+ (c) On receipt of a request for a hearing from the
90+ department regarding its intention to list an alleged offender in
91+ the central registry, the State Office of Administrative Hearings
92+ shall contact the parties to schedule a date for the hearing. The
93+ hearing shall be held not later than the 60th day after the date the
94+ department issues its findings.
95+ (d) The alleged offender has the right to be represented by
96+ an attorney at the hearing. If the alleged offender is indigent the
97+ State Office of Administrative Hearings shall appoint an attorney
98+ to represent the alleged offender at the hearing.
99+ (e) Before the hearing, the department shall provide the
100+ alleged offender with the department's complete investigative file
101+ and any exculpatory evidence the department possesses or controls.
102+ (f) At the hearing, the alleged offender may:
103+ (1) present sworn evidence, law, or rules related to
104+ the allegations; and
105+ (2) subpoena witnesses, cross-examine the
106+ department's witnesses, introduce evidence, object to evidence
107+ introduced by the department, and make an opening and a closing
108+ argument.
109+ (g) Not later than the 30th day after the date the hearing
110+ concludes, the presiding administrative law judge shall enter an
111+ order containing the judge's written findings of fact and
112+ conclusions of law. The burden of proof is on the department to
113+ establish by a preponderance of the evidence that the alleged
114+ offender abused or neglected the child.
115+ (h) If the presiding administrative law judge enters an
116+ order under Subsection (g) that sustains the department's findings,
117+ the department shall enter the alleged offender's information into
118+ the central registry. The department shall maintain the information
119+ in the registry for a period proportionate to the severity of the
120+ offense. The department may not retain the information in the
121+ registry after the 10th anniversary of the date the abuse or neglect
122+ occurred.
123+ (i) If the presiding administrative law judge enters an
124+ order under Subsection (g) that does not sustain the department's
125+ findings, the judge shall order the department to amend the
126+ department's findings accordingly and the department may not enter
127+ the allegations into the central registry.
128+ (j) A hearing under this section is a contested case under
129+ Chapter 2001, Government Code, and the administrative law judge's
130+ decision is subject to judicial review as provided by that chapter.
131+ The district court with jurisdiction over child protection cases in
132+ the county in which the alleged abuse or neglect occurred has
133+ jurisdiction to review the administrative law judge's decision. A
134+ party may file a motion to transfer the judicial review case to a
135+ district court with jurisdiction over child protection cases in
136+ another county. The district court, for good cause shown, may grant
137+ the motion to transfer.
138+ (k) The department may not add an alleged offender to the
139+ central registry or release information to any third party until
140+ all appeals are either exhausted or waived.
141+ (l) The Texas Rules of Civil Procedure apply to a proceeding
142+ under this section.
143+ Sec. 261.0022. PROCEDURES FOR REMOVING ALLEGED OFFENDER
144+ FROM CENTRAL REGISTRY. (a) An individual listed in the central
145+ registry maintained under Section 261.002 may request to have the
146+ individual's name and information removed from the registry by
147+ submitting a written request to the State Office of Administrative
148+ Hearings accompanied by an affidavit sworn to by a person with
149+ personal knowledge stating facts sufficient to show there is good
150+ cause for a hearing on the issue of whether the individual abused or
151+ neglected a child. Good cause for a hearing includes:
152+ (1) newly discovered evidence that a substantiated
153+ report of child abuse or neglect is inaccurate; or
154+ (2) evidence that:
155+ (A) the individual no longer poses a risk; and
156+ (B) no significant public purpose is served by
157+ continuing to list the individual in the registry.
158+ (b) Except for the affidavit required by Subsection (a), a
159+ written request to remove information from the central registry
160+ submitted under this section may be in any form.
161+ (c) Before a hearing is held under this section, the
162+ department may remove from the central registry the name and
163+ information of an individual listed in the registry.
164+ (d) A hearing requested under this section shall be
165+ conducted in the same manner as a hearing conducted under Section
166+ 261.0021.
167+ (e) An individual who is listed in the central registry may
168+ not request to have the information removed from the registry
169+ before the second anniversary of the date the information is added
170+ to the registry.
171+ (e-1) Notwithstanding Subsection (e), an individual listed
172+ in the central registry on September 1, 2021, may request to have
173+ the individual's name and information removed from the registry as
174+ provided by this section. This subsection expires September 1,
175+ 2023.
176+ (f) An individual whose request to remove information from
177+ the central registry under this section is denied may not make a
178+ subsequent request to have the information removed from the
179+ registry before the second anniversary of the date the request for
180+ removal is denied.
181+ (g) The Texas Rules of Civil Procedure apply to a proceeding
182+ under this section.
183+ SECTION 3. Section 261.103, Family Code, is amended by
184+ adding Subsection (d) to read as follows:
185+ (d) The department or other entity receiving a report of
186+ abuse or neglect that is not substantiated in the manner described
187+ by Section 261.002(a-2) or as provided by Section 261.0021 shall
188+ maintain information relating to the report until the second
189+ anniversary of the date the department or other entity receives the
190+ report.
191+ SECTION 4. The changes in law made by this Act by amending
192+ Section 261.002, Family Code, and adding Section 261.0021, Family
193+ Code, apply only to a finding that an individual abused or neglected
194+ a child made by the Department of Family and Protective Services on
195+ or after the effective date of this Act. A finding made by the
196+ department before that date is governed by the law in effect on the
197+ date the finding was made, and the former law is continued in effect
198+ for that purpose.
199+ SECTION 5. This Act takes effect September 1, 2021.