85R13037 MCK-F     By: Klick H.B. No. 4094       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 adding Paragraph (A-1) to read as follows:                      (A-1)  "Department of Family and Protective   Services" includes, as authorized by Section 40.002, Human   Resources Code, the Health and Human Services Commission with   respect to a function transferred to the commission under   Subchapter A-1, Chapter 531, and any person or entity acting as an   authorized agent of the department.          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 child-care 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;                      (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; or                      (Q)  any other person 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,   subject to approval by the department and, as applicable, the   Federal Bureau of Investigation.                (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.   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.  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.  The following laws are repealed:                (1)  Section 411.114(a)(1)(E), Government Code; and                (2)  Section 42.056(a-4), Human Resources Code.          SECTION 6.  This Act takes effect September 1, 2017.