Tex. Government Code § 411.114 — TX Code / Code gv / Chapter 411 / Section 411.114
§ 411.114.
Status: in_force

Sec. 411.114. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES AND HEALTH AND HUMAN SERVICES COMMISSION. (a)(1) In this subsection:

(A) "Child," "child-care facility," "child-placing agency," "facility," and "family home" have the meanings assigned by Section 42.002, Human Resources Code.

(A-1) "Department of Family and Protective Services" includes:

(i) the Department of Family and Protective Services as authorized by Section 40.002, Human Resources Code; and

(ii) any person or entity acting as an authorized agent of the Department of Family and Protective Services.

(B) "Elderly person" has the meaning assigned by Section 48.002, Human Resources Code.

(D) "Person with a disability" has the meaning assigned by Section 48.002, Human Resources Code.

(2) The Department of Family and Protective Services or the Health and Human Services Commission, as applicable, shall obtain criminal history record information as provided by Subdivision (4) 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 facility or family home, other than a child in the care of the home or facility;

(D) an applicant selected for a position with the Department of Family and Protective Services or the Health and Human Services Commission, 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 who contracts with the Department of Family and Protective Services or the Health and Human Services Commission 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 or the Health and Human Services Commission;

(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 or the Health and Human Services Commission and other persons living in the residence in which the child will reside;

(H) a Department of Family and Protective Services employee or a Health and Human Services Commission 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 or the Health and Human Services Commission 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 or the Health and Human Services Commission 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 or the Health and Human Services Commission is required to obtain under Subdivision (2), the Department of Family and Protective Services or the Health and Human Services Commission, as applicable, is entitled to obtain criminal history record information as provided by Subdivision (4) that relates to a person who is:

(A) an applicant for a position with the Department of Family and Protective Services or the Health and Human Services Commission regardless of the duties of the position, including a position described by Subdivision (2)(D);

(B) a Department of Family and Protective Services employee or a Health and Human Services Commission 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 or the Health and Human Services Commission 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 who contracts with the Department of Family and Protective Services or the Health and Human Services Commission, as applicable, and has access to confidential information in that department's or commission'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 facility or family home;

(I) a relative of a child in the care of the Department of Family and Protective Services or the Health and Human Services Commission, as applicable, 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 or the Health and Human Services Commission, as applicable;

(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 or the Health and Human Services Commission, as applicable;

(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; or

(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.

(4) Subject to Section 411.087 and consistent with the public policy of this state, the Department of Family and Protective Services and the Health and Human Services Commission are entitled to:

(A) obtain through the Federal Bureau of Investigation criminal history record information maintained or indexed by that bureau that pertains to a person described by Subdivision (2) or (3); and

(B) obtain from the department or any other criminal justice agency in this state criminal history record information maintained by the department or that criminal justice agency that relates to a person described by Subdivision (2) or (3).

(4-a) Law enforcement entities shall expedite the furnishing of criminal history record information obtained under Subdivision (4)(B) to Department of Family and Protective Services workers or Health and Human Services Commission workers, as applicable, to ensure prompt criminal background checks for the safety of alleged victims and Department of Family and Protective Services workers or Health and Human Services Commission workers, as applicable.

(5) The Department of Family and Protective Services or the Health and Human Services Commission may not use the authority granted under this section to harass an employee or volunteer. The commissioner of the Department of Family and Protective Services or the executive commissioner of the Health and Human Services Commission, as applicable, shall adopt rules to prevent the harassment of an employee or volunteer through the request and use of criminal records.

(6) The Department of Family and Protective Services or the Health and Human Services Commission, as applicable, may not release or disclose to any person criminal history record information obtained from the Federal Bureau of Investigation under Subdivision (4)(A). Criminal history record information obtained by the Department of Family and Protective Services or the Health and Human Services Commission under Subdivision (4)(B) may not be released to any person except:

(A) on court order;

(B) with the consent of the person who is the subject of the criminal history record information;

(C) for purposes of an administrative hearing held by the Department of Family and Protective Services or the Health and Human Services Commission, as applicable, concerning the person who is the subject of the criminal history record information; or

(D) as provided by Subdivision (7).

(7) Subject to Subdivision (8), the Department of Family and Protective Services or the Health and Human Services Commission, as applicable, is not prohibited from releasing criminal history record information obtained under Subdivision (4)(B) to:

(A) the person who is the subject of the criminal history record information;

(B) a child-placing agency listed in Subdivision (2) that is seeking to verify or approve a foster or adoptive home under procedures authorized by federal law;

(C) 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 or the Health and Human Services Commission, as applicable, 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) an elderly person or a person with a disability 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 or the Health and Human Services Commission, as applicable, determines that the release of information to the person is necessary to ensure the safety or welfare of the person.

(8) The Department of Family and Protective Services or the Health and Human Services Commission may only release to a person described by Subdivision (7)(B), (C), or (D) criminal history record information that that department or commission obtains from the Department of Public Safety's computerized criminal history system.

(b) The failure or refusal to provide a complete set of fingerprints or a complete name on request constitutes good cause for dismissal or refusal to hire, as applicable, with regard to a volunteer of or an employee or applicant for permanent or temporary employment with the Department of Family and Protective Services or the Health and Human Services Commission, as applicable, or a facility, home, business, or other entity, if the volunteer position, employment, or potential employment involves direct interaction with or the opportunity to interact and associate with children.

(c) The Department of Family and Protective Services or the Health and Human Services Commission, as applicable, may charge an organization or person that requests criminal history record information under Subsection (a)(3) a fee in an amount necessary to cover the costs of obtaining the information on the organization's or person's behalf.

(d) The Department of Family and Protective Services and the Health and Human Services Commission, as applicable, shall destroy criminal history record information that is obtained under this section after the information is used for its authorized purpose.