87R22445 MLH-D
By: Klick, et al. H.B. No. 2055
Substitute the following for H.B. No. 2055:
By: Shaheen C.S.H.B. No. 2055
A BILL TO BE ENTITLED
AN ACT
relating to investigations of child abuse and neglect and the
procedures for adding names to or removing names from the central
registry of child abuse and neglect.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 261.002, Family Code, is amended by
amending Subsections (a) and (b) and adding Subsections (a-1),
(a-2), (a-3), and (b-1) to read as follows:
(a) The department shall establish and maintain a central
registry of the names of persons [individuals] found by the
department to have abused or neglected a child other than persons
whose case was assigned the severity code "Low". Except as required
for an investigation of a person working at a facility or family
home regulated under Chapter 42, Human Resources Code, or as
provided by Subsection (a-1), the department shall maintain the
person's name in the registry until:
(1) the fifth anniversary of the date of the finding
for a case assigned the severity code "Moderate";
(2) the 15th anniversary of the date of the finding for
a case assigned the severity code "Serious";
(3) the 30th anniversary of the date of the finding for
a case assigned the severity code "Severe" or the 15th anniversary
of the date of the finding if the court returned the child to the
child's home during the period within which the court must render a
final order under Chapter 263; and
(4) the 99th anniversary of the date of the finding for
a case assigned the severity code "Near Fatal" or "Fatal".
(a-1) If the department's finding of abuse or neglect is
sustained by an administrative law judge of the State Office of
Administrative Hearings, the department shall maintain the
person's name in the central registry until the 20th anniversary of
the date of the finding or the date designated under Subsection (a),
whichever is longer.
(a-2) If a person is found by the department to have
committed multiple acts of abuse or neglect and the findings are
assigned different severity codes, the department shall maintain
the person's name in the central registry until the latest date
applicable under Subsection (a) or (a-1).
(a-3) The department may not maintain a person's name in the
central registry after the date the department disposes of the case
records related to the investigation.
(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:
(A) the date the department receives notice that
a finding of abuse and neglect against the person is overturned in:
(i) [(A)] an administrative review or an
appeal of the review conducted under Section 261.309(c);
(ii) [(B)] a review or an appeal of the
review conducted by the office of consumer relations [affairs] of
the department; or
(iii) [(C)] a hearing or an appeal
conducted by the State Office of Administrative Hearings; or
(B) the date the expungement review panel renders
a decision to remove a person's name from the registry after
conducting an expungement hearing under Subchapter G; 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).
(b-1) The department shall remove from the central registry
the name of any person against whom the department made a finding of
abuse or neglect when the person was younger than 18 years of age
if:
(1) two years have passed since the department made
the finding;
(2) the department has not made any subsequent finding
of abuse or neglect against the person;
(3) the person has not had a juvenile offender
adjudication for any act other than the same incident that resulted
in the finding made by the department; and
(4) the person has not had any criminal adjudications
for an offense involving child abuse or neglect other than the
incident that resulted in the finding made by the department.
SECTION 2. Subchapter A, Chapter 261, Family Code, is
amended by adding Section 261.0021 to read as follows:
Sec. 261.0021. NOTICE BEFORE ADDING ALLEGED OFFENDER TO
CENTRAL REGISTRY. Before the department may add a person's name and
information regarding the reported case of abuse or neglect to the
central registry maintained under Section 261.002, the department
shall provide written notice to the person that the person's name
will be added to the registry. The notice must include:
(1) a clear statement of what the central registry is;
and
(2) an explanation of the consequences of being listed
in the central registry, including any possible negative impact on
the person'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.
SECTION 3. Subchapter D, Chapter 261, Family Code, is
amended by adding Sections 261.3081 and 261.317 to read as follows:
Sec. 261.3081. SEVERITY CODES. (a) The department shall
assign a severity code as provided by this section to each
substantiated finding of abuse or neglect made by the department in
an investigation relating to a person described in Sections
261.001(5)(A)-(D).
(b) The department shall assign the severity code "Low" to
an isolated incident where there was a threat of harm but no injury
to the child and the incident was due to an accident or parental
mistake that does not pose an ongoing risk of harm beyond the
incident. The "Low" severity code is limited to substantiated
findings of neglectful supervision. The department may not use the
severity code "Low" in an investigation of a school under Section
261.406 in which the department substantiated findings of abuse or
neglect.
(c) The department shall assign the severity code
"Moderate" to an incident of abuse or neglect in which there is a
low or moderate risk of future harm to a child, there are no
unmanaged dangers in the home, the incident does not result in
removal, and the department closes the investigation with a
recommendation for community services. The severity code
"Moderate" is limited to substantiated findings of emotional abuse,
neglectful supervision, and physical abuse consisting of an
isolated incident of inappropriate discipline that does not require
care by a medical provider or result in substantial injury to the
child.
(d) The department shall assign the severity code "Serious"
to an incident of abuse or neglect in which there is a high risk of
future harm to a child, there are unmanaged dangers in the home, and
without services to the family removal of the child from the home
would be necessary. The severity code "Serious" is limited to
substantiated findings of emotional abuse, neglectful supervision,
refusal to accept parental responsibility, medical or physical
neglect if the incident did not result in any harm or injury to the
child, and physical abuse excluding circumstances of physical abuse
that resulted in serious injury to a child.
(e) The department shall assign the severity code "Severe"
to an incident of abuse or neglect in which there is a very high risk
of future harm to a child, there are unmanaged dangers in the home,
and a court in a suit affecting the parent-child relationship
renders an order removing the child from the home. The severity
code "Severe" is limited to substantiated findings of sexual abuse,
physical abuse that resulted in serious injury to the child,
medical or physical neglect that resulted or could have resulted in
impairment to the child's overall health or well-being, sex or
labor trafficking, forced marriage, and abandonment.
(f) The department shall assign the severity code "Near
Fatal" to an incident of abuse or neglect that meets the definition
of near fatality in Section 264.5031.
(g) The department shall assign the severity code "Fatal" to
an incident of abuse or neglect that results in a child fatality.
(h) This section does not apply to a person alleged to have
abused or neglected a child at a facility or family home regulated
under Chapter 42, Human Resources Code.
(i) The commissioner may adopt rules to implement this
section.
Sec. 261.317. RECORDS RETENTION; EXPUNCTION. (a) The
department may retain records related to an investigation under
this chapter in accordance with the department's records retention
schedule after a person's name has been removed from the central
registry in order to perform background checks required under
Section 42.056, Human Resources Code, and to conduct risk and
safety assessments.
(b) The department shall comply with a court order directing
expunction of the department's records concerning a person for whom
the department maintains records.
SECTION 4. Chapter 261, Family Code, is amended by adding
Subchapter G to read as follows:
SUBCHAPTER G. REMOVING NAMES FROM CENTRAL REGISTRY OF ABUSE AND
NEGLECT
Sec. 261.601. DEFINITION. In this subchapter, "central
registry" means the central registry of the names of persons found
by the department to have abused or neglected a child maintained by
the department under Section 261.002.
Sec. 261.602. NONAPPLICABILITY OF SUBCHAPTER. This
subchapter does not apply to persons alleged to have abused or
neglected a child in a facility or family home regulated under
Chapter 42, Human Resources Code, or to school investigations
conducted under Section 261.406.
Sec. 261.603. EXPUNGEMENT REVIEW PANEL; MEMBERS. (a) The
department shall establish an expungement review panel to review
requests to have a person's name removed from the central registry.
(b) The expungement review panel is composed of department
employees and a representative of the public appointed by the
commissioner. The representative of the public shall serve a
two-year term and may serve for not more than three terms.
(c) A person may not serve as a public member of the
expungement review panel if the person:
(1) has been convicted of or indicted for an offense
involving child abuse or neglect;
(2) has been determined by the department to have
engaged in child abuse or neglect; or
(3) is under investigation by the department for child
abuse or neglect.
(d) The public member of the expungement review panel is a
department volunteer for the purposes of Section 411.114,
Government Code.
(e) The members of the expungement review panel are immune
from civil or criminal liability for any act or omission that
relates to their duty or responsibility as a member of the review
panel if they acted in good faith and within the scope of their
responsibility, as provided in Section 40.061, Human Resources
Code.
Sec. 261.604. REQUEST FOR REMOVAL OF NAME. (a) A person
who desires to have the person's name removed from the central
registry shall submit a written request to the commissioner that
includes a letter describing the reason for the request.
(b) Only the following persons may make a request to have
their name removed from the central registry as provided by this
subchapter:
(1) a parent, guardian, or managing or possessory
conservator of the child;
(2) a member of the child's family or household as
defined by Chapter 71; and
(3) a person with whom the child's parent cohabits.
(c) A person may not make a request under this section
before the third anniversary of the date the department made the
most recent finding of child abuse or neglect against the person.
(d) The expungement review panel shall deny a person's
request under this section if, after the person submits the
request, the department makes a finding of child abuse or neglect
against the person.
(e) If the expungement review panel denies a request under
this section after a hearing, the person may not submit a subsequent
request until the first anniversary of the date the review panel
rendered a decision on the person's last request.
(f) A person who has been determined by the department to
have engaged in child abuse or neglect is not eligible for a review
under this subchapter if:
(1) the incident of abuse or neglect resulted in a
child fatality or near fatality;
(2) a court ordered termination of the parent-child
relationship as a result of the abuse or neglect; or
(3) the person has been convicted of an offense
involving child abuse or neglect.
Sec. 261.605. HEARING DATE AND NOTICE; LIMITATION. (a) On
receipt of a request under Section 261.604(a), the commissioner
shall notify the expungement review panel of the request. The
review panel shall set a date for a hearing on the request. The
review panel shall hold the hearing not later than the 60th day
after the date the commissioner receives the request, unless the
panel has good cause for holding the hearing after that date.
(b) The expungement review panel shall send written notice
of the date, time, and location of the hearing to the requestor and
the regional office that conducted the original investigation.
Sec. 261.606. REVIEW HEARING. (a) At the hearing, the
person requesting the review may present evidence supporting
removal of the person's name from the central registry. The person
has the burden of providing the expungement review panel with the
basis for granting the request and may present evidence including:
(1) completion of treatment services or programs
related to the finding;
(2) letters of support from professionals or others;
(3) evidence of activities that would reflect upon the
person's changed behavior or circumstances such as therapy,
employment, or education; and
(4) any other relevant evidence that shows changed
circumstances.
(b) The regional office of the department that conducted the
original investigation may:
(1) present evidence in support of or in opposition to
the request; and
(2) make a recommendation regarding the request.
Sec. 261.607. EXPUNGEMENT REVIEW PANEL'S DECISION. (a)
Unless the expungement review panel has good cause for an
extension, the panel shall render a written decision on the request
that includes the review panel's reasons for the decision not later
than the 45th day after the date of the hearing. The review panel's
decision must be by majority vote.
(b) The expungement review panel shall provide the written
decision to the person requesting the review and to the
department's commissioner, deputy commissioner, chief of staff,
and associate commissioner for child protective investigations.
(c) The expungement review panel shall consider the
following factors in making its decision:
(1) the department's findings regarding the nature and
severity of the incident of abuse or neglect and the circumstances
surrounding the incident;
(2) the number of findings of abuse or neglect
involving the person;
(3) the person's age at the time of the incident, and
whether the person was a child at the time of the incident;
(4) whether the circumstances that contributed to the
incident of abuse or neglect still exist;
(5) actions taken by the person since the incident to
prevent the reoccurrence of abuse or neglect, including
participation in and completion of services and programs related to
the allegations; and
(6) any other relevant information that shows that the
person no longer poses a risk to the safety and well-being of the
alleged victim, other children, and vulnerable adults.
Sec. 261.608. LIMIT ON NUMBER OF REVIEW HEARINGS. A person
may not have more than four hearings under this subchapter.
Sec. 261.609. CONFIDENTIALITY. The review conducted under
this subchapter is confidential and not subject to disclosure under
Chapter 552, Government Code.
Sec. 261.610. RULEMAKING. The commissioner may adopt rules
to implement this subchapter.
SECTION 5. Section 261.002, Family Code, as amended by this
Act, and Section 261.3081, Family Code, as added by this Act, apply
only to a finding of abuse or neglect made by the Department of
Family and Protective Services on or after May 1, 2022. A finding
made by the Department of Family and Protective Services before
that date is governed by the law in effect prior to the effective
date of this Act, and the former law is continued in effect for that
purpose.
SECTION 6. This Act takes effect September 1, 2021.