2023 Texas Statutes › Human Resources Code › Title 2 - Human Services and Protective Services in General › Subtitle D - Department of Family and Protective Services; Child Welfare and Protective Services › Chapter 42 - Regulation of Certain Facilities, Homes, and Agencies That Provide Child-Care Services › Subchapter C. Regulation of Certain Facilities, Homes, and Agencies › Section 42.056. Required Background and Criminal History Checks; Criminal Penalties

Sec. 42.056.  REQUIRED BACKGROUND AND CRIMINAL HISTORY CHECKS; CRIMINAL PENALTIES.  (a)  The director, owner, or operator of a facility or family home shall submit to the department the names of the following individuals, who must have background checks as described by this section and in accordance with rules adopted by the executive commissioner:
(1)  the director, owner, and operator of the facility, agency, or home;
(2)  each person employed at the facility, agency, or home;
(3)  each prospective employee of the facility, agency, or home;
(4)  each person who provides care or supervision to children in the care of the facility, agency, or home under a contract with the facility, agency, or home;
(5)  each current or prospective foster parent providing foster care through a child-placing agency;
(6)  each prospective adoptive parent seeking to adopt through a child-placing agency;
(7)  each person at least 14 years of age, other than a client in care, who:
(A)  is counted in child-to-caregiver ratios in accordance with the minimum standards of the department;
(B)  will reside in a prospective adoptive home if the adoption is through a child-placing agency;
(C)  has unsupervised access to children in care at the facility or family home; or
(D)  resides in the facility or family home; or
(8)  each person 14 years of age or older, other than a client in care, who will regularly or frequently be staying or working at a facility, family home, or prospective adoptive home, while children are being provided care.
(a-1)  Notwithstanding Subsection (a), the director, owner, or operator of a residential child-care facility is not required to submit to the department the information required under that subsection for use in conducting a background and criminal history check on a parent or other relative of a child who is a client in care at the facility if:
(1)  the department has on file for the parent or relative a background and criminal history check; and
(2)  the background and criminal history check was conducted within the two-year period preceding the date the parent or relative visits the client at the facility.
(a-2)  In accordance with rules adopted by the executive commissioner, a person shall submit a complete set of fingerprints if:
(1)  the person is required to have a background check under Subsections (a)(1)-(7);
(2)  the person resided in another state during the five years preceding the date the person's name was required to be submitted under Subsection (a); or
(3)  the director, owner, or operator has reason to suspect that the person has a criminal history in another state.
(a-3)  Subsection (a-2)(1) does not apply to a family home that is subject to regulation by the department under Section 42.0523.
(a-4)  Repealed by Acts 2017, 85th Leg., R.S., Ch. 1108 (H.B. 4094), Sec. 5(b), eff. January 1, 2018.
(a-5)  The rules adopted by the executive commissioner under Subsection (a-2):
(1)  must require that the fingerprints be submitted in a form and of a quality acceptable to the Department of Public Safety and the Federal Bureau of Investigation for conducting a criminal history check;
(2)  may require that the fingerprints be submitted electronically through an applicant fingerprinting service center; and
(3)  may allow the department to waive the submission of fingerprints required by this section if:
(A)  the person for whom the submission is required has:
(i)  a fingerprint-based criminal history record check on file with the department; or
(ii)  a fingerprint-based criminal history clearinghouse record, as provided by Section 411.0845, Government Code, that is accessible to the department through the Department of Public Safety; and
(B)  the department has an active subscription to the Federal Bureau of Investigation's national rap back service for the person for whom the submission is required.
(b)  The department shall conduct background checks using:
(1)  the information provided under Subsection (a);
(2)  the information made available by the Department of Public Safety under Section 411.114, Government Code, or by the Federal Bureau of Investigation or other criminal justice agency under Section 411.087, Government Code;
(3)  the department's records of reported abuse and neglect;
(4)  any other registry, repository, or database required by federal law;
(5)  any information provided by the Texas Juvenile Justice Department under a memorandum of understanding; and
(6)  the interagency reportable conduct search engine established under Chapter 810, Health and Safety Code.
(b-1)  For each person whose fingerprints are submitted under Subsection (a-2), the department shall conduct a state and Federal Bureau of Investigation criminal history check by:
(1)  submitting the person's fingerprints, or causing the fingerprints to be submitted electronically, to the Department of Public Safety for the purpose of conducting a state and federal criminal history check; and
(2)  using the resulting information made available by that department under Section 411.114, Government Code, and by the Federal Bureau of Investigation and any other criminal justice agency under Section 411.087, Government Code.
(b-2)  For each person required to have a background check under Subsection (a), but who is not required to submit fingerprints for a Federal Bureau of Investigations criminal history check under Subsection (a-2):
(1)  the person shall have a name-based check instead of a fingerprint check; and
(2)  the director, owner, or operator of the child-care facility, child-placing agency, or family home shall submit the name of the person each 24 months after last submitting the person's name to the department for use in conducting a background check.
(c)  The executive commissioner by rule shall require a child-care facility, child-placing agency, or listed or registered family home to pay to the department a fee in an amount not to exceed the administrative costs the department incurs in conducting a background and criminal history check under this section.
(d)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 720, Sec. 19(3), eff. September 1, 2009.
(e)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 720, Sec. 19(3), eff. September 1, 2009.
(f)  As part of a background check under this section, the department shall provide any relevant information available in the department's records regarding a person's previous employment in a facility or family home to the person submitting the request.
(g)  Except as otherwise provided by this subsection, a person whose name is submitted under Subsection (a) may not provide direct care or have direct access to a child in a facility or family home before the person's background check is completed.  A person may be employed at a facility or family home and may provide direct care or have direct access to a child in the facility or family home before the person's criminal history check under Subsection (b-1) is completed if:
(1)  the facility or family home is experiencing a staff shortage;
(2)  the Federal Bureau of Investigations fingerprint check and the background check using the department's records of reported abuse and neglect have been completed under Subsection (b), and the resulting information does not preclude the person from being present at the facility or family home; and
(3)  the person does not have unsupervised access to any child in care.
(h)  If the results of a criminal history check under Subsection (b-1) for a person employed by a facility or family home during a staffing shortage as authorized by Subsection (g) preclude the person from being present at the facility or family home, the director, owner, or operator of the facility or family home shall immediately terminate the person's employment.
(i)  A director, owner, or operator of a facility or family home commits an offense if the director, owner, or operator knowingly:
(1)  fails to submit to the department information about a person as required by this section and department rules for use in conducting background and criminal history checks with respect to the person; and
(2)  employs the person at the facility or family home or otherwise allows the person to regularly or frequently stay or work at the facility or family home while children are being provided care.
(j)  A director, owner, or operator of a facility or family home commits an offense if, after the date the director, owner, or operator receives notice from the department that, based on the results of a person's background or criminal history check, the person is precluded from being present at the facility or family home, the director, owner, or operator knowingly:
(1)  employs the person at the facility or family home; or
(2)  otherwise allows the person to regularly or frequently stay or work at the facility or family home while children are being provided care.
(k)  An offense under Subsection (i) or (j) is a Class B misdemeanor.
(l)  In accordance with rules adopted by the executive commissioner, a person that contracts to provide one or more substitute employees to a facility or family home must submit to the department for use in conducting background and criminal history checks the name of each substitute employee.  Before a substitute employee may be present at a facility or family home, the employee must meet the same requirements under this section as an employee present at the facility or family home who performs similar duties.  The director, owner, or operator of a facility or family home must verify with the department that a substitute employee is eligible to be present at the facility or family home before allowing the employee to begin work.
Amended by Acts 1997, 75th Leg., ch. 1063, Sec. 7, eff. Sept. 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.103(a), eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 38, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 39, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 720 (S.B. 68), Sec. 11, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 720 (S.B. 68), Sec. 19(3), eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1082 (S.B. 1178), Sec. 6, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 422 (S.B. 428), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 746 (S.B. 427), Sec. 3, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 746 (S.B. 427), Sec. 10, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.233, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 857 (S.B. 1496), Sec. 2, eff. September 1, 2016.
Acts 2017, 85th Leg., R.S., Ch. 1108 (H.B. 4094), Sec. 4, eff. January 1, 2018.
Acts 2017, 85th Leg., R.S., Ch. 1108 (H.B. 4094), Sec. 5(b), eff. January 1, 2018.
Acts 2023, 88th Leg., R.S., Ch. 954 (S.B. 1849), Sec. 4, eff. September 1, 2023.