CHAPTER 40. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

State Codes and Statutes

Statutes > Texas > Human-resources-code > Title-2-department-of-human-services-and-department-of-protective-and-regulatory-services > Chapter-40-department-of-family-and-protective-services

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(1) Repealed by Acts 2005, 79th Leg., Ch. 268, Sec. 1.129(1),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, Sec. 1.75, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

268, Sec. 1.129(1), eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch.

284, 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.

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, Sec. 1.76, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

281, Sec. 4.05, eff. June 14, 2005.

Acts 2007, 80th Leg., R.S., Ch.

268, 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, 2013.

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, Sec. 1.77, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

928, Sec. 3.04, eff. June 15, 2007.

Acts 2009, 81st Leg., 1st C.S., Ch.

2, Sec. 2.10, eff. July 10, 2009.

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.

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.

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.

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, 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.

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, 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

(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.

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.

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.

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, 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.

(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;

(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, Sec. 1.79, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

268, Sec. 1.80, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

268, 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.

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, 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; or

(2) the appropriate law enforcement agency.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 2.01, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

284, Sec. 24, eff. June 11, 2009.

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.

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.

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).

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, 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, 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, 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.

its findings and recommendations to the governor, lieutenant

governor, and speaker of the house of representatives.

Added by Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 24, eff. September 1, 2007.

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, Sec. 24, eff. September 1, 2007.

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.

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.

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, 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; and

(4) centralize accountability and oversight of all department

training in order to ensure statewide consistency.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.84, eff. September 1, 2005.

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;

(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.

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, 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.

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.

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.

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.

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, 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;

(D) health care providers; and

(E) domestic violence shelters.

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, 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.

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, 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.

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, Sec. 1.87, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1406, 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.

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 tr

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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