HUMAN RESOURCES CODE


TITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES


SUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; CHILD WELFARE AND PROTECTIVE SERVICES


CHAPTER 40. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES


SUBCHAPTER A. GENERAL PROVISIONS


Sec. 40.001. DEFINITIONS. In this subtitle:

(1) Repealed by Acts 2005, 79th Leg., Ch. 268, Sec. 1.129(1), eff. September 1, 2005.

(2) "Commission" means the Health and Human Services Commission.

(2-a) "Council" means the Family and Protective Services Council.

(3) "Department" means the Department of Family and Protective Services.

(4) "Commissioner" means the commissioner of the Department of Family and Protective Services.

(4-a) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(5) "Family preservation" includes the provision of services designed to assist families, including adoptive and extended families, who are at risk or in crisis, including:

(A) preventive services designed to help a child at risk of foster care placement remain safely with the child's family; and

(B) services designed to help a child return, when the return is safe and appropriate, to the family from which the child was removed.

(6) "State supported living center" has the meaning assigned by Section 531.002, Health and Safety Code.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, Sec. 1.10, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.75, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.129(1), eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 23, eff. June 11, 2009.

Sec. 40.002. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; GENERAL DUTIES OF DEPARTMENT. (a) The Department of Family and Protective Services is composed of the council, the commissioner, an administrative staff, and other officers and employees necessary to efficiently carry out the purposes of this chapter.

(b) Notwithstanding any other law, the department shall:

(1) provide protective services for children and elderly and disabled persons, including investigations of alleged abuse, neglect, or exploitation in facilities of the Texas Department of Mental Health and Mental Retardation or its successor agency;

(2) provide family support and family preservation services that respect the fundamental right of parents to control the education and upbringing of their children;

(3) license, register, and enforce regulations applicable to child-care facilities, child-care administrators, and child-placing agency administrators; and

(4) implement and manage programs intended to provide early intervention or prevent at-risk behaviors that lead to child abuse, delinquency, running away, truancy, and dropping out of school.

(c) The department is the state agency designated to cooperate with the federal government in the administration of programs under:

(1) Parts B and E, Title IV, federal Social Security Act (42 U.S.C. Sections 620 et seq. and 670 et seq.); and

(2) other federal law for which the department has administrative responsibility.

(d) The department shall cooperate with the United States Department of Health and Human Services and other federal and state agencies in a reasonable manner and in conformity with the provisions of federal law and this subtitle to the extent necessary to qualify for federal assistance in the delivery of services.

(e) If the department determines that a provision of state law governing the department conflicts with a provision of federal law, the executive commissioner may adopt policies and rules necessary to allow the state to receive and spend federal matching funds to the fullest extent possible in accordance with the federal statutes, this subtitle, and the state constitution and within the limits of appropriated funds.

(f) Repealed by Acts 2007, 80th Leg., R.S., Ch. 268, Sec. 32(f), eff. September 1, 2008.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 489, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, Sec. 1.11, 2.128, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1325, Sec. 13.07, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.76, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 281 (H.B. 2702), Sec. 4.05, eff. June 14, 2005.

Acts 2007, 80th Leg., R.S., Ch. 268 (S.B. 10), Sec. 32(f), eff. September 1, 2008.

Sec. 40.003. SUNSET PROVISION. The Department of Family and Protective Services is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished and this chapter expires September 1, 2015.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 3, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.77, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 928 (H.B. 3249), Sec. 3.04, eff. June 15, 2007.

Acts 2009, 81st Leg., 1st C.S., Ch. 2 (S.B. 2), Sec. 2.10, eff. July 10, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 1232 (S.B. 652), Sec. 2.13, eff. June 17, 2011.

Sec. 40.004. PUBLIC INTEREST INFORMATION AND PUBLIC ACCESS. (a) The commissioner shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commissioner and to speak on any issue under the jurisdiction of the department.

(b) The commissioner, with the advice of the council, shall prepare information of public interest describing the functions of the department. The commission shall make the information available to the public and appropriate state agencies.

(c) The commissioner shall grant an opportunity for a public hearing before the council makes recommendations to the commissioner regarding a substantive rule if a public hearing is requested by:

(1) at least 25 persons;

(2) a governmental entity; or

(3) an association with at least 25 members.

(d) The executive commissioner shall consider fully all written and oral submissions about a proposed rule.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 4, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.0041. COMPLAINT PROCESS. (a) The department shall develop and implement a uniform process for receiving and resolving complaints against the department throughout the state. The process shall include:

(1) statewide procedures through which the public, consumers, and service recipients are informed:

(A) of the right to make a complaint against the department, including the mailing addresses and telephone numbers of appropriate department personnel responsible for receiving complaints and providing related assistance; and

(B) of the department's procedures for resolving a complaint, including the right to appeal a decision made at the local level;

(2) development and statewide distribution of a form or telephone system that may be used to make a complaint;

(3) a requirement that the department provide information by mail or telephone regarding the department's procedures for investigating and resolving a complaint to each person who makes a complaint; and

(4) a requirement that the department provide status information at least quarterly to a person with a pending complaint against the department, unless the information would jeopardize an undercover investigation.

(b) In addition to other appropriate methods, the department may provide the information specified by Subsection (a)(1):

(1) on each registration form, application, or written contract for services of a person regulated by the department;

(2) on a sign prominently displayed in the place of business of each person regulated by the department; or

(3) in a bill for service provided by a person regulated by the department.

(c) The department shall keep an information file about each complaint made against the department that the department has authority to resolve.

(d) The executive director shall develop a consistent, statewide process for addressing an appeal by a person dissatisfied with the resolution of a complaint at the regional level. The process shall include an opportunity for appeal of a complaint without the participation of the department's ombudsman office.

(e) The department shall develop and maintain a centralized tracking system to gather information concerning all complaints made against the department throughout the state. The department shall require its personnel to provide information regarding each complaint for inclusion in records maintained under the tracking system at the department's state headquarters, regardless of the location or level at which the complaint is initiated or resolved. The department shall require at least the following information to be maintained for each complaint:

(1) the date the complaint is received;

(2) the name of the person making the complaint;

(3) the subject matter of the complaint;

(4) a record of all persons contacted by the department in relation to the complaint;

(5) a summary of the results of the review or investigation of the complaint; and

(6) for each complaint determined by the department to require no corrective action, an explanation of the reason that the complaint was closed without action.

(f) The department shall periodically prepare and deliver reports to the board and the executive director regarding the number, type, and resolution of complaints made in the state against the department.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 4, eff. Sept. 1, 1997.

Sec. 40.005. CONFIDENTIALITY OF INFORMATION. (a) The department shall establish and enforce rules governing the custody, use, and preservation of the department's records, papers, files, and communications.

(b) The department shall prescribe safeguards to govern the use or disclosure of information relating to a recipient of a department service or to an investigation the department conducts in performing its duties and responsibilities. The safeguards must be consistent with the purposes of the department's programs and must comply with applicable state and federal law and department rules.

(c) Notwithstanding any other provision of law, the department by rule may prescribe a process by which an administrative law judge may disclose requested confidential information that the department possesses. The rules must provide that the information may be disclosed by the administrative law judge only if the administrative law judge:

(1) provides notice to the department and any interested party; and

(2) determines after an in camera review of the information that disclosure is essential to the administration of justice and will not endanger the life or safety of any individual.

(d) Except as otherwise provided, a person who is authorized to receive confidential information shall maintain its confidentiality and shall prevent disclosure of the information to a person who is not authorized to receive the information.

(e) A person commits an offense if the person discloses without authorization confidential information contained in the department's records, papers, files, or communications. An offense under this subsection is a Class A misdemeanor.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.006. APPLICATION OF OTHER LAWS. (a) The department is subject to Chapters 551, 2001, and 2002, Government Code.

(b) The department is not required to comply with Chapter 53, Occupations Code, in issuing a license or conducting a background check under Chapter 42 or 43.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 720 (S.B. 68), Sec. 1, eff. September 1, 2009.

Sec. 40.007. REPORTING REQUIREMENT; PROFESSIONAL FEES. (a) The department shall include in any report required by law concerning the department's expenditures information relating to fees for professional or consultative services provided for the general administration of the department.

(b) The report required under Subsection (a) may not include:

(1) professional fees paid for routine or special examinations to determine an individual's eligibility for a program administered by the department;

(2) professional fees for treatment, services, or care for individual recipients; or

(3) fees for providing for the special needs of individual recipients, including the provision of appliances.

Added by Acts 1997, 75th Leg., ch. 165, Sec. 21.01(a), eff. Sept. 1, 1997.

Sec. 40.008. PROGRAM ACCESSIBILITY. The department shall comply with federal and state laws related to program and facility accessibility. The department shall also prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the department's programs and services.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 5, eff. Sept. 1, 1997.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS


Sec. 40.021. FAMILY AND PROTECTIVE SERVICES COUNCIL. (a) The Family and Protective Services Council is created to assist the commissioner in developing rules and policies for the department.

(b) The council is composed of nine members of the public appointed by the governor with the advice and consent of the senate. To be eligible for appointment to the council, a person must have demonstrated an interest in and knowledge of problems and available services related to the functions of the department.

(c) The council shall study and make recommendations to the executive commissioner and the commissioner regarding the management and operation of the department, including policies and rules governing the delivery of services to persons who are served by the department and the rights and duties of persons who are served or regulated by the department.

(d) Chapter 551, Government Code, applies to the council.

(e) Chapter 2110, Government Code, does not apply to the council.

(f) A majority of the members of the council constitute a quorum for the transaction of business.

(g) One of the members of the council under Subsection (b) must be a person who was a child in the foster care system. If after conducting a search, the governor determines that no qualified individual under this subsection is available, the governor may appoint another person qualified under Subsection (b).

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 6, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 175 (H.B. 404), Sec. 1, eff. May 27, 2005.

Sec. 40.022. APPOINTMENTS. (a) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.

(b) Appointments to the council shall be made so that each geographic area of the state is represented on the council. Notwithstanding Subsection (a), appointments to the council must reflect the ethnic diversity of this state.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 7, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.0226. TRAINING PROGRAM FOR COUNCIL MEMBERS. (a) A person who is appointed as a member of the council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section.

(b) The training program must provide information to the member regarding:

(1) the legislation that created the department and the council;

(2) the programs operated by the department;

(3) the role and functions of the department and the council, including detailed information regarding:

(A) the division of authority and of responsibility between the commissioner and the executive commissioner; and

(B) the advisory responsibilities of the council;

(4) the rules of the executive commissioner applicable to the department, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5) the current budget for the department;

(6) the results of the most recent formal audit of the department;

(7) the requirements of the:

(A) open meetings law, Chapter 551, Government Code;

(B) public information law, Chapter 552, Government Code; and

(C) administrative procedure law, Chapter 2001, Government Code;

(8) the requirements of the conflict-of-interest laws and other laws relating to public officials; and

(9) any applicable ethics policies adopted by the executive commissioner or the Texas Ethics Commission.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 9, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.024. TERMS; VACANCY. (a) Members of the council serve for staggered six-year terms, with the terms of three members expiring February 1 of each odd-numbered year.

(b) A member of the council may not serve more than two consecutive full terms as a council member.

(c) The governor by appointment shall fill the unexpired term of a vacancy on the council.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.025. REIMBURSEMENT FOR EXPENSES. A council member may not receive compensation for service as a member of the council but is entitled to reimbursement for travel expenses incurred by the member while conducting the business of the council as provided by the General Appropriations Act.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.026. PRESIDING OFFICER; OTHER OFFICERS; MEETINGS. (a) The governor shall designate a member of the council as the presiding officer to serve in that capacity at the pleasure of the governor.

(b) The members of the council shall elect any other necessary officers.

(c) The council shall meet quarterly and at other times at the call of the presiding officer. The council may hold meetings in different areas of the state.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.027. COMMISSIONER. (a) The executive commissioner shall appoint a commissioner in accordance with Section 531.0056, Government Code. The commissioner is to be selected according to education, training, experience, and demonstrated ability.

(b) The commissioner serves at the pleasure of the executive commissioner.

(c) Subject to the control of the executive commissioner, the commissioner shall act as the department's chief administrative officer and as a liaison between the department and commission.

(d) The commissioner shall administer this chapter and other laws relating to the department under operational policies established by the executive commissioner and in accordance with the memorandum of understanding under Section 531.0055(k), Government Code, between the commissioner and the executive commissioner, as adopted by rule.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 1460, Sec. 2.04, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, Sec. 1.12, eff. Sept. 1, 2003.

Sec. 40.030. ADVISORY COMMITTEES. The executive commissioner or the executive commissioner's designee may appoint advisory committees in accordance with Chapter 2110, Government Code.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.78, eff. September 1, 2005.

Sec. 40.0305. STRATEGIC USE OF TECHNOLOGY. (a) The department shall continually explore the strategic use of technology as a means to improve services, reduce workload burdens, increase accountability, and enhance the overall efficiency and effectiveness of department operations. The department shall develop strategic plans and seek funding to implement technology enhancements that the department determines are feasible and cost-effective.

(b) Repealed by Acts 2005, 79th Leg., Ch. 268, Sec. 1.129(4), eff. September 1, 2005.

(c) Repealed by Acts 2005, 79th Leg., Ch. 268, Sec. 1.129(4), eff. September 1, 2005.

(d) In evaluating major information technology project proposals, the department, in cooperation with the commission, shall:

(1) assess the major information needs of the department;

(2) define standard criteria for setting priorities for the department's information needs;

(3) forecast the returns to the department on project investments;

(4) evaluate the department's available information resources; and

(5) review, approve, and evaluate the status of projected costs and benefits related to project proposals.

(e) To the extent that funds are appropriated for these specific purposes, the department shall implement the following technology projects:

(1) a mobile technology project, including online transcription services designed to:

(A) increase caseworker access to department policy and family case history;

(B) facilitate communication between caseworkers and supervisors;

(C) allow timely and accurate data entry; and

(D) reduce backlogged investigations; and

(2) a modified design of the department's automated case management system to improve risk and safety assessment and service plan development, and to facilitate incorporation of historical case data.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 12, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.79, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.80, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.129(4), eff. September 1, 2005.

Sec. 40.031. DIVISIONS OF DEPARTMENT. (a) The executive commissioner may establish divisions within the department as necessary for efficient administration and for the discharge of the department's functions.

(b) The executive commissioner shall establish an investigations division to oversee and direct the investigation functions of the child protective services program, including the receipt and screening of all reports of alleged child abuse or neglect.

(c) The commissioner shall designate a person with law enforcement experience as the director of the investigations division.

(d) The investigations division shall, as appropriate, refer children and families in need of services to other department divisions or to other persons or entities with whom the department contracts for the provision of the needed services.

(e) Reports of alleged child abuse or neglect investigated under Section 261.401 or 261.404, Family Code, are not subject to investigation by the investigations division.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.82, eff. September 1, 2005.

Sec. 40.0315. INVESTIGATION UNIT FOR ADULT PROTECTIVE SERVICES. (a) The adult protective services division of the department shall maintain an investigation unit to investigate allegations of abuse, neglect, and exploitation of elderly and disabled persons reported to the division.

(b) An investigator in the unit shall determine whether an elderly or disabled person who is the subject of a report made under Section 48.051(a) may have suffered from abuse, neglect, or exploitation as a result of the criminal conduct of another person. If the investigator determines that criminal conduct may have occurred, the investigator shall immediately notify:

(1) the commission's office of inspector general if the disabled person who is the subject of the report resides in a state supported living center or the ICF-MR component of the Rio Grande State Center; and

(2) the appropriate law enforcement agency, unless the law enforcement agency reported the alleged abuse, neglect, or exploitation to the department.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.01, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 24, eff. June 11, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221), Sec. 4, eff. September 1, 2011.

Sec. 40.032. PERSONNEL. (a) The executive director may employ personnel necessary to administer the department's duties.

(b) The executive director or the executive director's designated representative shall develop an intradepartmental career ladder program that addresses opportunities for mobility and advancement for employees within the department. The program shall require the intradepartmental posting of all positions concurrently with any public posting.

(c) The executive director or the executive director's designated representative shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for department employees must be based on the system established under this subsection.

(d) The executive director or the executive director's designated representative shall provide to members of the board and to the department's employees, as often as is necessary, information regarding their qualifications for office or employment under this chapter and their responsibilities under applicable laws relating to standards of conduct for state officers or employees.

(e) The executive director or the executive director's designated representative shall prepare and maintain a written policy statement to ensure implementation of a program of equal employment opportunity under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel, that comply with Chapter 21, Labor Code;

(2) a comprehensive analysis of the department's workforce that meets federal and state laws, rules, and regulations and instructions adopted under those laws, rules, and regulations;

(3) procedures by which a determination can be made about the extent of underuse in the department's workforce of all persons for whom federal or state laws, rules, and regulations and instructions adopted under those laws, rules, and regulations encourage a more equitable balance; and

(4) reasonable methods to appropriately address those areas of underuse.

(f) The policy statement required under Subsection (e) shall:

(1) be filed with the governor's office;

(2) cover an annual period;

(3) be updated at least annually; and

(4) be reviewed by the Commission on Human Rights for compliance with Subsection (e)(1).

(g) The governor's office shall develop and deliver a biennial report to the legislature based on the information submitted under Subsection (f). The report may be made separately or as a part of other biennial reports made to the legislature.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 13, eff. Sept. 1, 1997.

Sec. 40.0321. SALARY SUPPLEMENTATION BY COUNTY OR MUNICIPALITY. (a) A county or municipality may supplement, from its own funds, the salary of a department employee whose duties include providing services as part of, or relating to, the provision of child protective services and adult protective services by the department.

(b) A department employee who has worked in the same position for the department in a different region is not eligible for a salary supplement under Subsection (a) for a minimum of six months after assuming the position in the new region.

(c) Section 659.020, Government Code, does not apply to the supplement authorized by this section.

(d) The department shall not require a salary supplement as a condition for creating or maintaining a position in the region.

Added by Acts 2001, 77th Leg., ch. 606, Sec. 1, eff. Sept. 1, 2001.

Sec. 40.0322. QUALIFICATIONS FOR ADULT PROTECTIVE SERVICES PERSONNEL; RECRUITMENT. (a) In hiring department employees whose duties include providing services as part of, or relating to, the provision of adult protective services directly to an elderly or disabled person, the commissioner shall ensure that the department hires, as often as possible, persons with professional credentials related to adult protective services, including persons who are licensed master social workers, as defined by Section 505.002, Occupations Code, or licensed professional counselors.

(b) Subject to the availability of funds, the executive commissioner by rule shall develop and the department shall implement a recruiting program designed to attract and retain for employment in the adult protective services division persons with professional credentials described by Subsection (a).

(c) Subject to the availability of funds, the executive commissioner by rule shall develop and the department shall implement an incentive program to encourage each department employee whose duties include the duties described by Subsection (a) to obtain professional credentials described by that subsection if the employee does not have those credentials.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.02, eff. September 1, 2005.

Sec. 40.0323. COORDINATION REGARDING RECRUITMENT FOR AND CURRICULUM OF CERTAIN CERTIFICATE OR DEGREE PROGRAMS. Subject to the availability of funds, the department and the Texas Higher Education Coordinating Board jointly shall develop strategies to:

(1) promote certificate or degree programs in the fields of social work and psychology to individuals enrolled in or admitted to institutions of higher education in this state; and

(2) ensure that persons receiving a certificate or degree, including a graduate degree, in social work or psychology from an institution of higher education in this state have the knowledge and skills regarding protective services that are provided directly to elderly or disabled persons and necessary for successful employment by the adult protective services division of the department.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.02, eff. September 1, 2005.

Sec. 40.0324. CASEWORKER REPLACEMENT PROGRAM. (a) To the extent that funding is available, the department shall develop a program to provide for the timely replacement of caseworkers with trainees hired in anticipation of vacancies.

(b) In developing the program, the department shall consider the turnover rate for caseworkers by region.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.83(a), eff. September 1, 2005.

Sec. 40.0325. STUDY OF CASEWORKER EDUCATION REIMBURSEMENT. (a) The department shall study the effect that providing reimbursement for certain educational expenses would have on recruiting and retaining qualified child protective services caseworkers. The study must include a comparative analysis of the cost of training new caseworkers and the benefits of having an experienced caseworker staff with the cost of providing reimbursement for educational expenses.

(b) In determining the cost of reimbursing caseworkers for educational expenses, the department shall consider reimbursing caseworkers for tuition, academic fees, and other academic expenses the caseworker paid to an institution of higher education or a private or independent institution of higher education, as those terms are defined by Section 61.003, Education Code, while the caseworker was enrolled in a bachelor's degree or advanced degree program in an academic program that the department determines provides necessary training for child protective services caseworkers.

(c) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1083, Sec. 25(113), eff. June 17, 2011.

Added by Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 24, eff. September 1, 2007.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1083 (S.B. 1179), Sec. 25(113), eff. June 17, 2011.

Sec. 40.0326. RECRUITMENT OF CASEWORKERS. When recruiting child protective services caseworkers, the department shall target its recruitment efforts toward individuals who hold a bachelor's degree or advanced degree in at least one of the following academic areas:

(1) social work;

(2) counseling;

(3) early childhood education;

(4) psychology;

(5) criminal justice;

(6) elementary or secondary education;

(7) sociology; or

(8) human services.

Added by Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 24, eff. September 1, 2007.

Sec. 40.0327. PREEMPLOYMENT ASSESSMENT; PREFERENCE. (a) The department shall use special assessment tools in screening applicants for employment with the child protective services division in order to match an applicant with the position in the division for which an applicant would be best suited based on the applicant's skills, personality traits, and experience.

(b) The department shall give favorable consideration to an applicant for an entry-level caseworker position who has a master's degree or bachelor's degree in social work over other applicants who have comparable skills.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1277 (H.B. 753), Sec. 1, eff. June 17, 2011.

Sec. 40.033. MERIT SYSTEM. (a) The department may establish a merit system for its employees.

(b) The merit system may be maintained in conjunction with other state agencies that are required by federal law to operate under a merit system.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.034. PROHIBITED ACTIVITIES BY FORMER OFFICERS OR EMPLOYEES. (a) For one year after the date on which a former officer or employee of the department terminates service or employment with the department, the individual may not, directly or indirectly, attempt or aid in the attempt to procure a contract with the department that relates to a program or service in which the individual was directly concerned or for which the individual had administrative responsibility.

(b) This section does not apply to:

(1) a former employee who is compensated on the last date of service or employment below the amount prescribed by the General Appropriations Act for step 1, salary group 17, of the position classification salary schedule, including a state employee who is exempt from the state's position classification plan; or

(2) a former officer or employee who is employed by another state agency or a community center.

(c) A former officer or employee of the department commits an offense if the former officer or employee violates this section. An offense under this section is a Class A misdemeanor.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.035. TRAINING PROGRAM FOR ADULT PROTECTIVE SERVICES; CONTINUING EDUCATION. (a) The department shall develop and implement a training program that each newly hired or assigned department employee must complete before:

(1) initiating an investigation of a report of alleged abuse, neglect, or exploitation of an elderly or disabled person under Chapter 48; or

(2) providing protective services to elderly or disabled persons under that chapter.

(b) The training program must:

(1) provide the person with appropriate comprehensive information regarding:

(A) the incidence and types of reports of abuse, neglect, and exploitation of elderly or disabled persons that are received by the department, including information concerning false reports; and

(B) the use and proper implementation of:

(i) the risk assessment criteria developed under Section 48.004;

(ii) the criteria used by caseworkers to determine whether elderly or disabled persons lack capacity to consent to receive protective services; and

(iii) the legal procedures available under Chapter 48 for the protection of elderly or disabled persons, including the procedures for obtaining a court order for emergency protective services under Section 48.208;

(2) include best practices for management of a case from the intake process to the provision of protective services, including criteria that specify the circumstances under which an employee should:

(A) consult a supervisor regarding a case; or

(B) refer an elderly or disabled person to an appropriate public agency or community service provider for guardianship or other long-term services after the delivery of protective services to that person has been completed;

(3) provide appropriate specialized training in any necessary topics, including:

(A) investigation of suspected identity theft and other forms of financial exploitation and suspected self-neglect; and

(B) establishment and maintenance of working relationships with community organizations and other local providers who provide services to elderly and disabled persons;

(4) include on-the-job training, which must require another department caseworker with more experience to accompany and train the caseworker in the field;

(5) provide for the development of individualized training plans;

(6) include training in working with law enforcement agencies and the court system when legal intervention is sought for investigations or emergency orders;

(7) to the maximum extent possible, include nationally recognized best practices in addition to the best practices required under Subdivision (2); and

(8) include testing, progress reports, or other evaluations to assess the performance of trainees.

(c) The department at least annually shall provide comprehensive case management training to supervisors of department employees who conduct investigations under Chapter 48. The training must be designed to enable the supervisors to provide guidance on investigations of reports of alleged abuse, neglect, or exploitation that are complex or present unique problems.

(d) The department shall develop and implement appropriate continuing education programs for employees of the adult protective services division who have completed initial training under this section. The continuing education programs must include nationally recognized best practices to the maximum extent possible and must be designed to provide an annual update regarding changes in:

(1) adult protective services division policies and procedures; and

(2) applicable law, including statutory changes affecting the adult protective services division or elderly or disabled persons served by the division.

(e) A department employee required to participate in a continuing education program under this section must complete the program at least once each calendar year.

(f) The department shall:

(1) make curriculum developed for a training or continuing education program under this section readily available to department employees in written form; and

(2) periodically revise a training and continuing education program established under this section as necessary to satisfy training needs identified by the department or department employees.

(g) The circumstances specified under Subsection (b)(2) under which an employee should consult a supervisor regarding a case must be consistent with the risk assessment criteria developed under Section 48.004 that require consultation with a supervisor.

(h) The executive commissioner by rule shall provide policies and procedures by which the department incorporates examples of actual cases investigated by the department in the training programs under this section for use as training tools.

(i) In implementing the training program and continuing education programs under this section, the department, to the maximum extent possible, shall contract with persons who are not department employees to conduct the programs.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.03, eff. September 1, 2005.

Sec. 40.036. ENHANCED TRAINING OF CHILD PROTECTIVE SERVICES CASEWORKERS. To improve the quality and consistency of training provided to child protective services caseworkers, the department shall:

(1) augment classroom-based training with a blended learning environment using computer-based modules, structured field experience, and simulation for skills development;

(2) use a core curriculum for all new department caseworkers and specialized training for specific jobs;

(3) require that department caseworkers transferring from one specialty to another must complete the core curriculum and advanced training for the new specialty before assuming their new responsibilities;

(4) centralize accountability and oversight of all department training in order to ensure statewide consistency; and

(5) require department caseworkers to receive training relating to the benefits of using a protective order under Title 4, Family Code, to protect a child as an alternative to removing the child from the child's home.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.84, eff. September 1, 2005.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 598 (S.B. 218), Sec. 9, eff. September 1, 2011.

Sec. 40.037. TRAINING PROGRAM FOR CHILD PROTECTIVE SERVICES MANAGERS. (a) The department shall develop and implement a training program that each employee who is newly hired or promoted to a management position in the child protective services division must complete before the employee begins serving in the management position.

(b) The training program must be designed to assist the employee in developing skills, including communication, decision-making, and strategic thinking skills, to prepare the employee to assume management duties, including managing employee workloads, conducting effective unit meetings, managing a mobile workforce, implementing program and operational policies, and completing performance plans.

(c) The department may waive the training required by this section for an employee who has completed another training program provided by the department that is similar to the management training required by this section.

Added by Acts 2013, 83rd Leg., R.S., Ch. 445 (S.B. 771), Sec. 1, eff. January 1, 2014.

SUBCHAPTER C. GENERAL FUNCTIONS OF DEPARTMENT


Sec. 40.0505. POWERS AND DUTIES OF COMMISSIONER OF HEALTH AND HUMAN SERVICES. The commissioner of health and human services has the powers and duties relating to the board and executive director as provided by Section 531.0055, Government Code. To the extent a power or duty given to the board or executive director by this chapter or another law conflicts with Section 531.0055, Government Code, Section 531.0055 controls.

Added by Acts 1999, 76th Leg., ch. 1460, Sec. 2.05, eff. Sept. 1, 1999.

Sec. 40.051. STRATEGIC PLAN FOR DEPARTMENT. The department shall develop a departmental strategic plan based on the goals and priorities stated in the commission's coordinated strategic plan for health and human services. The department shall also develop its plan based on furthering the policy of family preservation.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 14, eff. Sept. 1, 1997.

Sec. 40.0515. QUALITY ASSURANCE PROGRAM FOR ADULT PROTECTIVE SERVICES; QUARTERLY REPORTS. (a) The department shall develop and implement a quality assurance program for adult protective services provided by or on behalf of the department.

(b) In developing the program, the department shall establish:

(1) client-centered outcome measures for each of the following functions of the adult protective services program:

(A) intake process;

(B) investigations;

(C) risk assessment determinations; and

(D) delivery of protective services;

(2) minimum job performance standards for personnel and each work department of the adult protective services division of the department; and

(3) procedures for conducting periodic performance reviews to monitor compliance with the standards established under Subdivision (2), which must include requirements that, for each caseworker in the adult protective services division of the department, a supervisor shall conduct:

(A) at least two performance reviews each year, if the employee has less than two years of adult protective services casework experience; and

(B) at least one performance review each year, if the employee has at least two years of adult protective services casework experience.

(c) The department shall promptly address a person's or work department's failure to meet minimum job performance standards established under Subsection (b)(2):

(1) by issuing to the person or work department, as appropriate, a corrective action plan detailing the actions required to comply with the standards; or

(2) if necessary, through disciplinary action, including a person's demotion or discharge, for repeated failure to meet the standards.

(d) A performance review conducted under Subsection (b)(3) is considered a performance evaluation for purposes of Section 40.032(c). The department shall ensure that disciplinary or other corrective action is taken against a supervisor or other managerial employee who is required to conduct a performance evaluation under Section 40.032(c) or a performance review under Subsection (b)(3) and who fails to complete that evaluation or review in a timely manner.

(e) The annual performance evaluation required under Section 40.032(c) of the performance of a supervisor in the adult protective services division must:

(1) be performed by an appropriate program administrator; and

(2) include:

(A) an evaluation of the supervisor with respect to the job performance standards applicable to the supervisor's assigned duties; and

(B) an evaluation of the supervisor with respect to the compliance of employees supervised by the supervisor with the job performance standards applicable to those employees' assigned duties.

(f) A summary of the findings of outcome measures established and performance reviews conducted under this section must be reported to regional directors and other senior management employees of the adult protective services division.

(g) Each fiscal quarter the department shall file with the governor and the presiding officer of each house of the legislature a report that includes:

(1) a comprehensive review of the adult protective services division's overall performance during the preceding quarter; and

(2) a summary of the adult protective services division's performance during the preceding quarter on each of the outcome measures established under Subsection (b)(1).

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.04(a), eff. September 1, 2005.

Sec. 40.052. DUTIES RELATING TO DELIVERY OF SERVICES. The department shall:

(1) propose and implement service delivery standards for departmental programs;

(2) provide training and technical assistance to regional and local service providers;

(3) provide joint training on the investigation of reports of child abuse or neglect to department personnel and law enforcement personnel in appropriate state and local law enforcement agencies;

(4) develop and implement systems for monitoring departmental program performance and service delivery;

(5) promote innovative service delivery at the local level; and

(6) cooperate and coordinate as appropriate with other governmental entities in the delivery of services.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 15, eff. Sept. 1, 1997.

Sec. 40.0521. RULES REGARDING DOMESTIC VIOLENCE. (a) The department shall adopt and implement rules that require an investigating employee to document indications of domestic violence, including elder, spousal, and child abuse. The department may develop forms to facilitate the documentation process.

(b) The department by rule shall require that written information, printed in English and Spanish, concerning community services that are available to victims of domestic violence be distributed to those victims. The department may coordinate its efforts under this subsection with local law enforcement agencies already providing that information.

(c) The department shall include in its annual report statistical compilations of information regarding domestic abuse documented under Subsection (a).

Added by Acts 1997, 75th Leg., ch. 165, Sec. 21.02(a), eff. Sept. 1, 1997.

Sec. 40.0522. COMMUNITY EDUCATION AND TRAINING RELATING TO CHILD ABUSE OR NEGLECT. (a) The department shall assure the availability of community education programs designed to improve participation of the general public in preventing, identifying, and treating cases of child abuse or neglect, including parent education programs.

(b) The department shall assure that training concerning child abuse or neglect is available to professionals who are required by law to report, investigate, or litigate those cases.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 16, eff. Sept. 1, 1997.

Sec. 40.0523. INFANT MORTALITY PREVENTION EDUCATION PROGRAM. (a) The department and the Children's Trust Fund of Texas Council jointly shall develop and implement a statewide education program designed to prevent infant mortality. The department and the council shall develop and mutually agree to a memorandum of understanding to clearly define the responsibilities of the department and the council under this section.

(b) In developing and implementing the program, the department and the Children's Trust Fund of Texas Council shall request the assistance of individuals, governmental entities, private organizations, and other entities with specific knowledge of infant mortality prevention.

(c) The board and the Children's Trust Fund of Texas Council shall adopt rules to implement this section.

Added by Acts 2001, 77th Leg., ch. 157, Sec. 1, eff. Sept. 1, 2001.

Sec. 40.0524. MULTIDISCIPLINARY TEAMS. (a) To the extent possible, the department shall establish multidisciplinary teams to provide services relating to a report of child abuse or neglect. A multidisciplinary team shall include professionals in parent education and in each professional discipline necessary to provide comprehensive medical and psychological services to a child who is the subject of a report and to members of the child's household.

(b) Members of a multidisciplinary team may exchange information relating to a report of child abuse or neglect as necessary to facilitate a thorough investigation of the report. The department may adopt rules governing the exchange of information between team members.

(c) A multidisciplinary team established under this section shall coordinate services provided by the department to a child and to members of the child's household with services available from other sources, including public and private agencies in the community. The goal of the multidisciplinary team is to provide the greatest range of services possible without duplication of effort.

(d) The department shall establish a process by which members of a multidisciplinary team are involved in the department's development and implementation of procedures relating to coordination of the department's child abuse or neglect services with services provided by other public and private agencies.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 16, eff. Sept. 1, 1997. Renumbered from Human Resources Code Sec. 40.0523 by Acts 2001, 77th Leg., ch. 157, Sec. 1.

Sec. 40.0525. SEPARATION OF INVESTIGATORY AND SERVICE DELIVERY FUNCTIONS. (a) To the extent feasible, the department shall separate the performance of investigations by department employees from the delivery of services to clients and their families. The department may take into consideration the needs and caseloads in the different programs and regions of the state in developing policies for the separation of the department's investigatory and service delivery functions.

(b) The department shall develop policies and procedures for the exchange of information between employees who are responsible for performing investigations and employees who are responsible for the delivery of services to clients and families.

(c) Subject to Section 40.031(b), this section does not require the department to establish separate departments for investigations and service delivery.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 17, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.85, eff. September 1, 2005.

Sec. 40.0526. BUILDING COMMUNITY PARTNERSHIPS TO SUPPORT CHILDREN AND FAMILIES. (a) The department shall develop a statewide strategy to build alliances and networks at the local level that support the detection and treatment of child abuse and neglect and enhance the coordination and delivery of services to children and families.

(b) The strategy must include plans to:

(1) move staff from centralized office sites into community-based settings to the greatest extent feasible; and

(2) enter into agreements for the establishment or development of joint offices or workplaces with local officials and organizations, including:

(A) children's advocacy centers;

(B) law enforcement officials;

(C) prosecutors;

(D) health care providers; and

(E) domestic violence shelters.

(c) The department may employ specialized staff, to the extent that funds are appropriated for that purpose, to serve as:

(1) local legal liaisons who support the prosecution in each region of legal cases through the judicial system by improving coordination and cooperation in case consultation and preparation of cases for court; and

(2) local community initiative specialists in each region who focus on building community alliances and networks.

(d) An agreement made in accordance with this section for the joint location of department personnel with other local officials or organizations is not subject to Chapter 2167, Government Code.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.86, eff. September 1, 2005.

Sec. 40.0527. PUBLIC AWARENESS. (a) Subject to the availability of funds, the executive commissioner by rule shall develop and the department shall implement a statewide public awareness campaign designed to educate the public regarding the abuse, neglect, and exploitation of elderly and disabled persons.

(b) The department may use mass communications media, the Internet, publications, or other means of public education in conducting the campaign.

(c) A public awareness strategy implemented for the program must include:

(1) the provision of information on the incidence and types of reports of abuse, neglect, and exploitation of elderly or disabled persons; and

(2) practices that can reduce the incidences of abuse, neglect, and exploitation of elderly or disabled persons in this state.

(d) The department shall enlist the support and assistance of civic, philanthropic, and public service organizations in the performance of the duties imposed under this section.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.05, eff. September 1, 2005.

Sec. 40.0528. COMPREHENSIVE STAFFING AND WORKLOAD DISTRIBUTION PLAN FOR CHILD PROTECTIVE SERVICES. (a) The department shall develop and implement a staffing and workload distribution plan for the child protective services program to:

(1) reduce caseloads;

(2) enhance accountability;

(3) improve the quality of investigations;

(4) eliminate delays; and

(5) ensure the most efficient and effective use of child protective services staff and resources.

(b) In developing and implementing the plan, the department shall, subject to available funds:

(1) develop a methodology for the equitable distribution of investigative and other staff to ensure an equitable assignment of cases in each area of the state;

(2) evaluate the duties of investigators and supervisors and identify and reassign functions that may be performed more efficiently by support or other paraprofessional staff;

(3) ensure that investigative and service units contain adequate supervisory and support staff;

(4) provide incentives to recruit and retain:

(A) caseworkers and supervisors assigned to investigative units; and

(B) specialized staff with law enforcement or forensic investigation experience;

(5) ensure that caseworkers and supervisors who are not in an investigations unit are paid appropriately to increase employee retention;

(6) when appropriate, identify and use alternative work schedules;

(7) use a system of regional hiring supervisors for targeted recruitment efforts;

(8) improve staff recruitment and screening methods to promote the hiring of the most qualified candidates and improve an applicant's understanding of the job requirements;

(9) reduce the time necessary to complete a plan of service for a child and family when providing family-based safety services; and

(10) identify methods to reduce the administrative area that a manager is responsible for to increase accountability.

(c) This section does not prevent the department from contracting for special investigator services as needed.

(d) In reporting information relating to caseloads of child protective services caseworkers, in addition to reporting caseload by each individual affected by the case, the department shall report the number of cases for each caseworker on the basis of family unit.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.87, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 25, eff. September 1, 2007.

Sec. 40.053. DUTY TO PERFORM OTHER FUNCTIONS. The department shall perform other functions as required by law.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.054. ACCESS TO CRIMINAL HISTORY. Subject to the availability of funds appropriated by the legislature, the department is entitled to obtain any criminal history information from records maintained by:

(1) the Department of Public Safety, as prescribed by Section 411.114, Government Code;

(2) another law enforcement agency in this state, subject to the same procedures and limitations prescribed by Section 411.114, Government Code, as applicable; or

(3) federal agencies, as provided by federal law.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.055. LEGISLATIVE APPROPRIATION REQUEST. The department shall submit any legislative appropriation request to the commission for comment and for incorporation into the commission's consolidated health and human services budget recommendation. The legislative appropriation request must comply with state priorities and federal requirements.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.056. USE OF FUNDS. (a) Notwithstanding any other provision of law, the department may extend the scope of its programs to the extent necessary to ensure that federal matching funds are available, if the department determines that the extension of scope is feasible and within the limits of appropriated funds.

(b) The department may accept, spend, and transfer federal and state funds appropriated for programs authorized by federal law. The department may accept, spend, and transfer funds received from any source, including a county, municipality, or public or private agency.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.0561. COMMUNITY YOUTH DEVELOPMENT GRANTS. (a) Subject to available funding, the department shall award community youth development grants to communities identified by incidence of crime. The department shall give priority in awarding grants under this section to areas of the state in which there is a high incidence of juvenile crime.

(b) The purpose of a grant under this section is to assist a community in alleviating conditions in the family and community that lead to juvenile crime.

Added by Acts 1997, 75th Leg., ch. 165, Sec. 21.03(a), eff. Sept. 1, 1997.

Sec. 40.0562. FEDERAL FUNDING FOR CERTAIN CHILDREN. (a) For purposes of Medicaid eligibility only, the department shall classify as a "child in substitute care" each child who is in the conservatorship of the state and placed in the home of a relative. A child classified as a "child in substitute care" under this subsection is not automatically eligible to receive foster care payments because of that classification.

(b) The department shall ensure that each time study used to allocate costs identifies all costs incurred on behalf of a child if the child's case plan clearly indicates that substitute care is the planned arrangement for that child.

(c) The department shall claim federal financial participation under Title IV-E, Social Security Act (42 U.S.C. Section 670 et seq.), for all nonrecurring adoption expenses at the highest rate authorized by federal law. The department shall include all charges from state attorneys and state courts and any applicable overhead. The department may claim the expenses as either administrative or training expenses depending on which classification results in a higher federal match.

Added by Acts 1997, 75th Leg., ch. 165, Sec. 21.04(a), eff. Sept. 1, 1997.

Sec. 40.0563. FEDERAL REIMBURSEMENT FOR FOSTER CARE COSTS. The department shall work with the Health and Human Services Commission to develop methods to maximize the amount of federal reimbursement funds received under:

(1) Title IV-E, Social Security Act (42 U.S.C. Section 670 et seq.), for administering the foster care program and for providing child care in for-profit facilities through the foster care program; and

(2) Title XIX, Social Security Act (42 U.S.C. Section 1396 et seq.).

Added by Acts 1997, 75th Leg., ch. 484, Sec. 1, eff. Sept. 1, 1997.

Sec. 40.0564. DEPARTMENT FUNDS. All money paid to the department under this chapter is subject to Subchapter F, Chapter 404, Government Code.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 18, eff. Sept. 1, 1997.

Sec. 40.0566. COUNTY OUTREACH PROGRAM. (a) The department shall develop and implement a standard statewide outreach program under which the department:

(1) informs each county of the availability of federal funds to pay costs of providing child protective services within the county; and

(2) provides technical assistance on request to a county seeking federal funds.

(b) In implementing the program, the department shall:

(1) designate local department personnel responsible for performing the functions specified in Subsection (a);

(2) designate a statewide coordinator responsible for coordinating the activities of local department personnel and developing methods of providing information to counties; and

(3) develop a database that:

(A) identifies department and county personnel involved with the outreach program; and

(B) contains information regarding the date and type of assistance provided by the department to each county.

(c) The department, in consultation with the Legislative Budget Board, shall ensure that a record is maintained of the amount of funding for child protective services that each county receives directly from the federal government.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 18, eff. Sept. 1, 1997. Renumbered from Sec. 40.0563 by Acts 1999, 76th Leg., ch. 62, Sec. 19.01(79), eff. Sept. 1, 1999.

Sec. 40.057. GIFTS AND GRANTS. The department may accept a gift or grant from a public or private source to perform any of the department's powers or duties.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.058. CONTRACTS AND AGREEMENTS. (a) The department may enter into contracts or agreements with any person, including a federal, state, or other public or private agency, as necessary to perform any of the department's powers or duties.

(b) A contract for the purchase of program-related client services must include:

(1) clearly defined goals and outcomes that can be measured to determine whether the objectives of the program are being achieved;

(2) clearly defined sanctions or penalties for noncompliance with contract terms; and

(3) clearly specified accounting, reporting, and auditing requirements applicable to money received under the contract.

(b-1) A contract for the purchase of substitute care services, as defined by Section 264.106, Family Code, must be procured using:

(1) department procurement procedures; or

(2) procurement procedures approved by the executive commissioner that promote open and fair competition.

(c) The department shall monitor a contractor's performance under a contract for the purchase of program-related client services. In monitoring performance, the department shall:

(1) use a risk-assessment methodology to ensure compliance with financial and performance requirements under the contract; and

(2) obtain and evaluate program cost information to ensure that all costs, including administrative costs, are reasonable and necessary to achieve program objectives.

(d) An agreement made under this section is not subject to Chapter 771 or 791, Government Code.

(e) This section does not prohibit the department from entering into a contract or agreement subject to Chapter 771 or 791, Government Code, for a purpose authorized in the applicable chapter.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 19, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.88, eff. September 1, 2005.

Sec. 40.059. FEES. The department may set and charge appropriate fees in the administration and delivery of services.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.060. INDEMNIFICATION FOR LEGAL EXPENSES. If a present or former employee of the department who is or was involved in activities relating to the protection of children or elderly or disabled persons is criminally prosecuted for conduct involving the person's misfeasance or nonfeasance in the course and scope of the person's employment and is found not guilty after a trial or appeal or if the complaint or indictment is dismissed without a plea of guilty or nolo contendere being entered, the department may indemnify the person or the person's estate for the reasonable attorney's fees incurred in defense of the prosecution up to a maximum of $10,000.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.061. IMMUNITY. (a) A department employee, a member of a multidisciplinary team established under Section 40.0524, or an authorized department volunteer who performs a departmental duty or responsibility is immune from civil or criminal liability for any act or omission that relates to the duty or responsibility if the person acted in good faith and within the scope of the person's authority.

(b) In this section, "volunteer" means a person who:

(1) renders services for or on behalf of the department under the supervision of a department employee; and

(2) does not receive compensation that exceeds the authorized expenses the person incurs in rendering those services.

(c) This section does not provide immunity to a department employee who, in a suit affecting the parent-child relationship in which child abuse is alleged or that arises out of a child abuse investigation, in a criminal prosecution for an offense in which child abuse is an element, or in the preparation of the suit or prosecution:

(1) commits or attempts to commit perjury;

(2) fabricates or attempts to fabricate evidence;

(3) knowingly conceals or intentionally withholds information that would establish that a person alleged to have committed child abuse did not commit child abuse; or

(4) violates state or federal law in the investigation or prosecution of the suit.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 20, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 157, Sec. 2, eff. Sept. 1, 2001.

Sec. 40.062. EXEMPTION FROM CERTAIN COSTS AND FEES. The department is not required to pay any cost or fee otherwise imposed for court proceedings or other services, including a:

(1) filing fee or fee for issuance or service of process imposed by Section 110.002, Family Code, or by Section 51.317, 51.318(b)(2), or 51.319, Government Code;

(2) transfer fee imposed by Section 110.002 or 110.005, Family Code;

(3) court reporter fee imposed by Section 51.601, Government Code;

(4) judicial fund fee imposed by Sections 51.701 and 51.702, Government Code;

(5) judge's fee imposed by Section 25.0008 or 25.0029, Government Code;

(6) cost or security fee imposed by Section 12 or 622, Probate Code; or

(7) fee imposed by a county officer under Section 118.011 or 118.052, Local Government Code.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 21, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 426, Sec. 6, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, Sec. 9.001(g), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 733, Sec. 1, eff. Sept. 1, 2003.

Sec. 40.063. EXCEPTIONS FROM CERTAIN PROVISIONS OF ADMINISTRATIVE PROCEDURE ACT. Section 2001.038 and Subchapters C through H, Chapter 2001, Government Code, do not apply to the granting, payment, denial, or withdrawal of financial or medical assistance or benefits under a service program of the department.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.064. INTERAGENCY COOPERATION AND EXCHANGE OF INFORMATION. (a) The department may execute a memorandum of understanding with another state agency to facilitate the implementation of a program or the delivery of a service that the department is required by law to implement or deliver.

(b) The department may establish procedures to exchange with another state agency or governmental entity information that is necessary for the department or the agency or entity to properly execute its respective duties and responsibilities. An exchange of information does not affect whether the information is subject to disclosure under Chapter 552, Government Code.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.065. COMMUNICATIONS OFFICER; PLAN. (a) The department shall designate one or more department employees to be primarily responsible for communicating with the public regarding the department's powers and duties. Through the use of designated employees, the department shall ensure:

(1) effective communications between the department and persons seeking to report abuse or neglect or inquiring about the status of a case; and

(2) effective and timely response to questions from the public within the department's confidentiality guidelines.

(b) The department shall develop and implement a communication plan to ensure statewide public and government awareness of child abuse or neglect investigated by the department. The plan shall include information detailing the procedure followed by the department during the investigation and the responsibilities of the department in child abuse cases. In implementing the plan, the department shall establish a process for expediting the reporting of child abuse or neglect to the department. The department shall adopt rules to implement this subsection.

Added by Acts 1995, 74th Leg., ch. 920, Sec. 1, eff. Sept. 1, 1995.

Sec. 40.066. COOPERATION WITH STATE OFFICE OF ADMINISTRATIVE HEARINGS. (a) Except as provided by Subsection (e), the department and the chief administrative law judge of the State Office of Administrative Hearings shall adopt a memorandum of understanding under which the State Office of Administrative Hearings, on behalf of the department, conducts all contested case hearings authorized or required by law to be conducted by the department under the administrative procedure law, Chapter 2001, Government Code.

(b) The memorandum of understanding shall require the chief administrative law judge, the department, and the executive director to cooperate in connection with a contested case hearing and may authorize the State Office of Administrative Hearings to perform any administrative act, including giving of notice, that is required to be performed by the department or executive director.

(c) The administrative law judge who conducts a contested case hearing for the State Office of Administrative Hearings on behalf of the department shall enter the final decision in the case after completion of the hearing.

(d) The department by interagency contract shall reimburse the State Office of Administrative Hearings for the costs incurred in conducting contested case hearings for the department. The department may pay an hourly fee for the costs of conducting those hearings or a fixed annual fee negotiated biennially by the department and the State Office of Administrative Hearings to coincide with the department's legislative appropriations request.

(e) This section does not apply to a personnel grievance hearing involving a department employee.

(f) Unless otherwise agreed by all parties to a contested case, a hearing conducted by the State Office of Administrative Hearings on behalf of the department under this section must be held in the department's administrative region in which the conduct at issue in the case occurred.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 22, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1128, Sec. 1, eff. Sept. 1, 1999.

Sec. 40.067. DELIVERY OF SERVICES IN AREAS BORDERING UNITED MEXICAN STATES. The department shall:

(1) study issues related to providing child and adult protective services in areas bordering the United Mexican States;

(2) develop a plan for providing those services in the most efficient manner; and

(3) pursue and enter into agreements for coordinated services, to the extent permissible under federal law, with the United Mexican States or any of its political subdivisions.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 22, eff. Sept. 1, 1997.

Sec. 40.068. LOCAL ACCOUNTS. (a) The department may establish and maintain local bank or savings accounts for a client of the department as necessary to administer funds belonging to the client or received in trust for or on behalf of the client.

(b) Funds maintained in an account for the benefit of a child who is under the managing conservatorship of the department may be used by the department for the support of the child, including the payment of foster care expenses, or may be paid to a person providing care for the child.

(c) The department shall spend funds in a guardianship of a client's estate in compliance with Chapter XIII, Texas Probate Code.

(d) Except as provided by Subsection (c), funds maintained in an account for the benefit of a client of the department may be used to provide care, including medical care, for the client.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 22, eff. Sept. 1, 1997.

Sec. 40.069. REQUIRED AFFIDAVIT FOR APPLICANTS FOR EMPLOYMENT. (a) An applicant for temporary or permanent employment with the department whose employment or potential employment with the department involves direct interactions with or the opportunity to interact and associate with children must execute and submit the following affidavit with the application for employment:

STATE OF ____________

COUNTY OF ____________

I swear or affirm under penalty of perjury that I do not now and I have not at any time, either as an adult or as a juvenile:

1. Been convicted of;

2. Pleaded guilty to (whether or not resulting in a conviction);

3. Pleaded nolo contendere or no contest to;

4. Admitted;

5. Had any judgment or order rendered against me (whether by default or otherwise);

6. Entered into any settlement of an action or claim of;

7. Had any license, certification, employment, or volunteer position suspended, revoked, terminated, or adversely affected because of;

8. Been diagnosed as having or have been treated for any mental or emotional condition arising from;

9. Resigned under threat of termination of employment or volunteerism for;

10. Had a report of child abuse or neglect made and substantiated against me for; or

11. Have any pending criminal charges against me in this or any other jurisdiction for;

Any conduct, matter, or thing (irrespective of formal name thereof) constituting or involving (whether under criminal or civil law of any jurisdiction):

1. Any felony;

2. Rape or other sexual assault;

3. Physical, sexual, emotional abuse and/or neglect of a minor;

4. Incest;

5. Exploitation, including sexual, of a minor;

6. Sexual misconduct with a minor;

7. Molestation of a child;

8. Lewdness or indecent exposure;

9. Lewd and lascivious behavior;

10. Obscene or pornographic literature, photographs, or videos;

11. Assault, battery, or any violent offense involving a minor;

12. Endangerment of a child;

13. Any misdemeanor or other offense classification involving a minor or to which a minor was a witness;

14. Unfitness as a parent or custodian;

15. Removing children from a state or concealing children in violation of a court order;

16. Restrictions or limitations on contact or visitation with children or minors;

17. Any type of child abduction; or,

18. Similar or related conduct, matters, or things.

Except the following (list all incidents, location, description, and date) (if none, write NONE):

Signed________________________

Date_______________.

Subscribed and sworn to (or affirmed) before me this ______ day of _________________,_________.

Signature of notarial officer ______________________________.

(seal, if any, of notarial officer)

My commission expires: ___________

(b) The failure or refusal of the applicant to sign or provide the affidavit constitutes good cause for refusal to hire the applicant.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 22, eff. Sept. 1, 1997.

Sec. 40.070. SUPPORT SERVICES FOR CERTAIN FAMILIES. (a) If the department places a child who is in the conservatorship of the state in the home of a grandparent of the child, the department shall:

(1) refer the grandparent to support services offered by the department; and

(2) inform the grandparent of the availability of financial assistance under Chapter 31, including supplemental financial assistance, if the eligibility requirements of that chapter are satisfied.

(b) The department shall maintain complete records and compile statistics regarding the number of children who are placed by the department in the home of a grandparent of the child.

Added by Acts 1999, 76th Leg., ch. 471, Sec. 2, eff. Sept. 1, 1999.

Sec. 40.071. DRUG-ENDANGERED CHILD INITIATIVE. The department shall establish a drug-endangered child initiative aimed at protecting children who are exposed to heroin, cocaine or any of its forms, or methamphetamine or to chemicals and other hazardous materials used in the illicit manufacture of methamphetamine.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.89, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 26, eff. September 1, 2007.

Sec. 40.072. DUTY TO REPORT; DEPARTMENT RECORDS. (a) To the extent that reporting does not interfere with an ongoing criminal investigation, the Department of Public Safety and each local law enforcement agency shall report to the department on discovering the presence of a child in a location where methamphetamine is manufactured.

(b) The department shall maintain a record of reports received under this section and shall include in the record information regarding actions taken by the department to ensure the child's safety and well-being.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.89, eff. September 1, 2005.

Sec. 40.073. PARENTAL ADVISORY COMMITTEE. (a) The Parental Advisory Committee shall advise the department on policies affecting parents and their involvement with the department, including:

(1) investigations of allegations of abuse or neglect;

(2) designations of alternative placements for children; and

(3) standards for persons who investigate reports of abuse or neglect on the state or local level.

(b) The Parental Advisory Committee consists of members appointed by the governor. The governor shall establish:

(1) the qualifications for committee members;

(2) the terms for committee members; and

(3) the number of committee members.

(c) Chapter 2110, Government Code, does not apply to the committee.

(d) A committee member may not receive compensation for serving on the committee but is entitled to reimbursement of travel expenses incurred by the member while conducting the business of the committee as provided by the General Appropriations Act.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.89, eff. September 1, 2005.

For expiration of this section, see Subsection (b).


Sec. 40.074. WAIVER TO USE FUNDS TO TEST INNOVATIONS TO CHILD WELFARE PROGRAMS. (a) The department shall apply for and actively pursue a waiver, as authorized by the Child and Family Services Improvement and Innovation Act (Pub. L. No. 112-34), to allow the department to use federal funds available under Title IV-E, Social Security Act (42 U.S.C. Section 670 et seq.), to conduct demonstration projects to accomplish one or more of the following goals:

(1) providing more permanency for children by reducing time in foster care and promoting successful transitions to adulthood for former foster youth;

(2) increasing positive outcomes for infants, children, and families in their homes and communities and increasing the safety and well-being of infants, children, and youth; and

(3) preventing child abuse and neglect and the reentry of children into foster care.

(b) This section expires December 31, 2015.

Added by Acts 2013, 83rd Leg., R.S., Ch. 269 (H.B. 748), Sec. 1, eff. June 14, 2013.

SUBCHAPTER D. CHILD ABUSE AND NEGLECT PRIMARY PREVENTION PROGRAMS


Sec. 40.101. DEFINITIONS. In this subchapter:

(1) "Children's trust fund" means a child abuse and neglect primary prevention program.

(2) "Primary prevention" means services and activities available to the community at large or to families to prevent child abuse and neglect before it occurs.

(3) "Operating fund" means the Department of Protective and Regulatory Services child abuse and neglect prevention operating fund account.

(4) "State agency" means a board, commission, department, office, or other state agency that:

(A) is in the executive branch of the state government;

(B) was created by the constitution or a statute of this state; and

(C) has statewide jurisdiction.

(5) "Trust fund" means the child abuse and neglect prevention trust fund account.

Added by Acts 2001, 77th Leg., ch. 957, Sec. 1, eff. Sept. 1, 2001.

Sec. 40.102. CHILD ABUSE AND NEGLECT PRIMARY PREVENTION PROGRAMS. (a) The department shall operate the children's trust fund to:

(1) set policy, offer resources for community primary prevention programs, and provide information and education on prevention of child abuse and neglect;

(2) develop a state plan for expending funds for child abuse and neglect primary prevention programs that includes an annual schedule of transfers of trust fund money to the operating fund;

(3) develop eligibility criteria for applicants requesting funding for child abuse and neglect primary prevention programs; and

(4) establish funding priorities for child abuse and neglect primary prevention programs.

(b) The children's trust fund shall accommodate the department's existing rules and policies in procuring, awarding, and monitoring contracts and grants.

(c) The department may:

(1) apply for and receive funds made available by the federal government or another public or private source for administering programs under this subchapter and for funding for child abuse and neglect primary prevention programs; and

(2) solicit donations for child abuse and neglect primary prevention programs.

Added by Acts 2001, 77th Leg., ch. 957, Sec. 1, eff. Sept. 1, 2001.

Sec. 40.104. ADMINISTRATIVE AND OTHER COSTS. (a) Administrative costs under this subchapter during any fiscal year may not exceed an amount equal to 50 percent of the interest credited to the trust fund during the preceding fiscal year.

(b) Funds expended under a special project grant from a governmental source or a nongovernmental source for public education or public awareness may not be counted as administrative costs for the purposes of this section.

Added by Acts 2001, 77th Leg., ch. 957, Sec. 1, eff. Sept. 1, 2001.

Sec. 40.105. CHILD ABUSE AND NEGLECT PREVENTION TRUST FUND ACCOUNT. (a) The child abuse and neglect prevention trust fund account is an account in the general revenue fund. Money in the trust fund is dedicated to child abuse prevention programs.

(b) The department may transfer money contained in the trust fund to the operating fund at any time. However, during a fiscal year the department may not transfer more than the amount appropriated for the operating fund for that fiscal year. Money transferred to the operating fund that was originally deposited to the credit of the trust fund under Section 118.022, Local Government Code, may be used only for child abuse and neglect primary prevention programs.

(c) Interest earned on the trust fund shall be credited to the trust fund.

(d) The trust fund is exempt from the application of Section 403.095, Government Code.

(e) All marriage license fees and other fees collected for and deposited in the trust fund and interest earned on the trust fund balance shall be appropriated each biennium only to the operating fund for primary child abuse prevention programs.

Added by Acts 2001, 77th Leg., ch. 957, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 632 (H.B. 662), Sec. 4, eff. June 15, 2007.

Acts 2007, 80th Leg., R.S., Ch. 632 (H.B. 662), Sec. 4, eff. September 1, 2010.

Sec. 40.106. DEPARTMENT OPERATING FUND ACCOUNT. (a) The Department of Protective and Regulatory Services child abuse and neglect prevention operating fund account is an account in the general revenue fund.

(b) Administrative and other costs allowed in Section 40.104 shall be taken from the operating fund. The department may transfer funds contained in the operating fund to the trust fund at any time.

(c) The legislature may appropriate the money in the operating fund to carry out the provisions of this subchapter.

(d) The operating fund is exempt from the application of Section 403.095, Government Code.

Added by Acts 2001, 77th Leg., ch. 957, Sec. 1, eff. Sept. 1, 2001.

Sec. 40.107. CONTRIBUTIONS. (a) The department may solicit contributions from any appropriate source.

(b) Any other contributions for child abuse and neglect primary prevention or other prevention and early intervention programs shall be deposited into a separate designated fund in the state treasury and shall be used for that designated purpose.

(c) A person may contribute funds to either the trust fund, the operating fund, or a fund designated by the department for a specific child abuse and neglect primary prevention or other prevention or early intervention purpose.

(d) If a person designates that a contribution is intended as a donation to a specific fund, the contribution shall be deposited in the designated fund.

Added by Acts 2001, 77th Leg., ch. 957, Sec. 1, eff. Sept. 1, 2001.