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 F. Regulation of Employer-Based Day-Care Facilities › Section 42.159. Background and Criminal History Checks Required

Sec. 42.159.  BACKGROUND AND CRIMINAL HISTORY CHECKS REQUIRED.  (a)  In accordance with rules adopted by the executive commissioner, a small employer shall, when applying for a permit under this subchapter and at least once during each 24 months after receiving that permit, submit to the department for use in conducting background and criminal history checks:
(1)  the name of any director of the employer-based day-care facility and the name of each caregiver employed at the facility to provide care to children; and
(2)  the name of each person 14 years of age or older who will regularly or frequently be staying or working at the facility while children are being provided care.
(b)  The small employer shall also submit to the department for use in conducting background and criminal history checks the name of each prospective caregiver who will provide care to children at the facility or other prospective employee who will have direct access to those children.
(b-1)  A person subject to the background and criminal history check required by Subsection (a) or (b) shall submit to the commission a complete set of fingerprints.
(b-2)  The executive commissioner shall adopt rules to implement this section.  The rules adopted under this section:
(1)  must require that the fingerprints submitted be in a form and of a quality acceptable to the Department of Public Safety and the Federal Bureau of Investigation for the purpose of 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 commission to waive a fingerprint submission required by this section if:
(A)  the person for whom the submission is required has:
(i)  a fingerprint-based criminal history check on file with the commission obtained under Section 411.114, Government Code; or
(ii)  a fingerprint-based criminal history clearinghouse record, as provided by Section 411.0845, Government Code, that is accessible to the commission through the Department of Public Safety and obtained under Section 411.114, Government Code; and
(B)  the commission has an active subscription to the Federal Bureau of Investigation's National Record of Arrest and Prosecution Back Service for the person for whom the fingerprint submission is required.
(c)  The department shall conduct background and criminal history checks using:
(1)  the information provided under Subsection (a) or (b), as applicable;
(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 information provided by the Texas Juvenile Justice Department under a memorandum of understanding; and
(5)  the interagency reportable conduct search engine established under Chapter 810, Health and Safety Code.
(c-1)  For each person whose fingerprints are submitted under Subsection (b-1), 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.
(d)  For purposes of Sections 411.114 and 411.087, Government Code:
(1)  a small employer that applies for a permit is considered an applicant for a license under this chapter; and
(2)  an employer-based day-care facility operating under a permit issued under this subchapter is considered a child-care facility licensed under this chapter.
(e)  The department shall require the small employer to pay to the department a fee set by the executive commissioner by rule in an amount not to exceed the administrative costs the department incurs in conducting a background and criminal history check under this section.
Added by Acts 2007, 80th Leg., R.S., Ch. 1414 (H.B. 1385), Sec. 2, eff. September 1, 2007.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.242, eff. April 2, 2015.
Acts 2021, 87th Leg., R.S., Ch. 597 (S.B. 1061), Sec. 1, eff. September 1, 2021.
Acts 2023, 88th Leg., R.S., Ch. 954 (S.B. 1849), Sec. 5, eff. September 1, 2023.