87R1808 MCK-F
By: Gates H.B. No. 1204
A BILL TO BE ENTITLED
AN ACT
relating to the procedures required before an individual's name is
added to the central child abuse or neglect registry.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 261.002, Family Code, is amended by
adding Subsections (a-1) and (a-2) and amending Subsection (b) to
read as follows:
(a-1) Except as provided by Subsection (a-2), the
department may not add to the central registry maintained under
this section the name of an individual found by the department to
have abused or neglected a child unless the department's finding is
sustained by an administrative law judge at an administrative
hearing before the State Office of Administrative Hearings under
Section 261.0021.
(a-2) The department may add the name of an individual to
the central registry maintained under this section without an
administrative hearing under Section 261.0021 if in a civil,
criminal, administrative, or juvenile proceeding in which the
allegations of abuse or neglect are at issue, a court finds the
individual abused or neglected a child.
(b) The [executive] commissioner shall adopt rules
necessary to carry out this section. The rules shall:
(1) prohibit the department from making a finding of
abuse or neglect against a person in a case in which the department
is named managing conservator of a child who has a severe emotional
disturbance only because the child's family is unable to obtain
mental health services for the child;
(2) establish guidelines for reviewing the records in
the registry and removing those records in which the department was
named managing conservator of a child who has a severe emotional
disturbance only because the child's family was unable to obtain
mental health services for the child;
(3) require the department to remove a person's name
from the central registry maintained under this section not later
than the 10th business day after the date the department receives
notice that a finding of abuse and neglect against the person is
overturned in:
(A) an administrative review or an appeal of the
review conducted under Section 261.309(c);
(B) a review or an appeal of the review conducted
by the office of consumer affairs of the department; or
(C) a hearing or an appeal conducted by the State
Office of Administrative Hearings; and
(4) require the department to update any relevant
department files to reflect an overturned finding of abuse or
neglect against a person not later than the 10th business day after
the date the finding is overturned in a review, hearing, or appeal
described by Subdivision (3).
SECTION 2. Subchapter A, Chapter 261, Family Code, is
amended by adding Sections 261.0021 and 261.0022 to read as
follows:
Sec. 261.0021. PROCEDURES FOR ADDING ALLEGED OFFENDERS TO
CENTRAL REGISTRY; ADMINISTRATIVE HEARING. (a) Not later than the
14th day after the date the department makes a finding that an
individual abused or neglected a child, the department shall:
(1) submit a request for a hearing to the State Office
of Administrative Hearings; and
(2) provide written notice to the individual that the
department intends to add the individual's name and information
regarding the reported case of abuse or neglect to the central
registry maintained under Section 261.002.
(b) The notice required by Subsection (a)(2) must include:
(1) a clear statement of the specific allegations that
will be added to the central registry, including:
(A) the name of the alleged victim;
(B) the injury or harm alleged to have resulted
from the abuse or neglect; and
(C) the date the report of abuse or neglect was
made to the department;
(2) the consequences of being listed in the central
registry, including any possible negative impact on the
individual's ability to obtain employment or certain licenses and
to have future contact with children, including any limitation on
volunteering or involvement in school activities;
(3) the length of the time the individual's name may be
included in the registry;
(4) a copy of the information that will be added to the
registry;
(5) confirmation that the department has requested a
hearing before the State Office of Administrative Hearings to
review the department's findings; and
(6) the contact information for the State Office of
Administrative Hearings.
(c) On receipt of a request for a hearing from the
department regarding its intention to list an alleged offender in
the central registry, the State Office of Administrative Hearings
shall contact the parties to schedule a date for the hearing. The
hearing shall be held not later than the 60th day after the date the
department issues its findings.
(d) The alleged offender has the right to be represented by
an attorney at the hearing. If the alleged offender is indigent the
State Office of Administrative Hearings shall appoint an attorney
to represent the alleged offender at the hearing.
(e) Before the hearing, the department shall provide the
alleged offender with:
(1) the department's complete investigative file;
(2) any exculpatory evidence the department possesses
or controls; and
(3) any discovery authorized by the Texas Rules of
Civil Procedure requested by the alleged offender.
(f) At the hearing, the alleged offender may:
(1) present sworn evidence, law, or rules related to
the allegations; and
(2) subpoena witnesses, cross-examine the
department's witnesses, introduce evidence, object to evidence
introduced by the department, and make an opening and a closing
argument.
(g) Not later than the 30th day after the date the hearing
concludes, the presiding administrative law judge shall enter an
order containing the judge's written findings of fact and
conclusions of law. The burden of proof is on the department to
establish by a preponderance of the evidence that the alleged
offender abused or neglected the child.
(h) If the presiding administrative law judge enters an
order under Subsection (g) that sustains the department's findings,
the department shall enter the alleged offender's information into
the central registry. The department shall maintain the
information in the registry for a period proportionate to the
severity of the offense. The department may not retain the
information in the registry after the earlier of:
(1) the 10th anniversary of the date the abuse or
neglect occurred; or
(2) the date the youngest victim of the abuse or
neglect turns 18 years of age.
(i) If the presiding administrative law judge enters an
order under Subsection (g) that does not sustain the department's
findings, the judge shall order the department to amend the
department's findings accordingly and the department may not enter
the allegations into the central registry.
(j) A hearing under this section is a contested case under
Chapter 2001, Government Code, and the administrative law judge's
decision is subject to judicial review as provided by that chapter.
(k) The department may not add an alleged offender to the
central registry or release information to any third party until
all appeals are either exhausted or waived.
(l) This section does not affect a review of the
department's findings requested under Section 261.309.
Sec. 261.0022. PROCEDURES FOR REMOVING ALLEGED OFFENDER
FROM CENTRAL REGISTRY. (a) An individual listed in the central
registry maintained under Section 261.002 may request to have the
individual's name and information removed from the registry by
submitting a written request to the State Office of Administrative
Hearings accompanied by an affidavit sworn to by a person with
personal knowledge stating facts sufficient to show there is good
cause for a hearing on the issue of whether the individual abused or
neglected a child. Good cause for a hearing includes:
(1) newly discovered evidence that a substantiated
report of child abuse or neglect is inaccurate; or
(2) evidence that:
(A) the individual no longer poses a risk; and
(B) no significant public purpose is served by
continuing to list the individual in the registry.
(b) Except for the affidavit required by Subsection (a), a
written request to remove information from the central registry
submitted under this section may be in any form.
(c) Before a hearing is held under this section, the
department may remove from the central registry the name and
information of an individual listed in the registry.
(d) A hearing requested under this section shall be
conducted in the same manner as a hearing conducted under Section
261.0021.
(e) An individual who is listed in the central registry may
not request to have the information removed from the registry
before the second anniversary of the date the information is added
to the registry.
(e-1) Notwithstanding Subsection (e), an individual listed
in the central registry on September 1, 2021, may request to have
the individual's name and information removed from the registry as
provided by this section. This subsection expires September 1,
2023.
(f) An individual whose request to remove information from
the central registry under this section is denied may not make a
subsequent request to have the information removed from the
registry before the second anniversary of the date the request for
removal is denied.
SECTION 3. Section 261.103, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) The department or other entity receiving a report of
abuse or neglect that is not substantiated in the manner described
by Section 261.002(a-2) or as provided by Section 261.0021 shall
maintain information relating to the report until the second
anniversary of the date the department or other entity receives the
report.
SECTION 4. The changes in law made by this Act by amending
Section 261.002, Family Code, and adding Section 261.0021, Family
Code, apply only to a finding that an individual abused or neglected
a child made by the Department of Family and Protective Services on
or after the effective date of this Act. A finding made by the
department before that date is governed by the law in effect on the
date the finding was made, and the former law is continued in effect
for that purpose.
SECTION 5. This Act takes effect September 1, 2021.