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Family Code - CHAPTER 261

SUBTITLE E. PROTECTION OF THE CHILD

CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT

SUBCHAPTER A. GENERAL PROVISIONS

261.001. Definitions

     In this chapter:

     (1) "Abuse" includes the following acts or omissions by a person:

     (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;

     (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;

     (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;

     (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;

     (E) sexual conduct harmful to a child's mental, emotional, or physical welfare;

     (F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;

     (G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code;

     (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic;

     (I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child; or

     (J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code.

     (2) "Department" means the Department of Protective and Regulatory Services.

     (3) "Designated agency" means the agency designated by the court as responsible for the protection of children.

     (4) "Neglect" includes:

     (A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;

     (B) the following acts or omissions by a person:

     (i) placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child;

     (ii) failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;

     (iii) the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused; or

     (iv) placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or

     (C) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away.

     (5) "Person responsible for a child's care, custody, or welfare" means a person who traditionally is responsible for a child's care, custody, or welfare, including:

     (A) a parent, guardian, managing or possessory conservator, or foster parent of the child;

     (B) a member of the child's family or household as defined by Chapter 71;

     (C) a person with whom the child's parent cohabits;

     (D) school personnel or a volunteer at the child's school; or

     (E) personnel or a volunteer at a public or private child-care facility that provides services for the child or at a public or private residential institution or facility where the child resides.

     (6) "Report" means a report that alleged or suspected abuse or neglect of a child has occurred or may occur.

     (7) "Board" means the Board of Protective and Regulatory Services.

     (8) "Born addicted to alcohol or a controlled substance" means a child:

     (A) who is born to a mother who during the pregnancy used a controlled substance, as defined by Chapter 481, Health and Safety Code, other than a controlled substance legally obtained by prescription, or alcohol; and

     (B) who, after birth as a result of the mother's use of the controlled substance or alcohol:

     (i) experiences observable withdrawal from the alcohol or controlled substance;

     (ii) exhibits observable or harmful effects in the child's physical appearance or functioning; or

     (iii) exhibits the demonstrable presence of alcohol or a controlled substance in the child's bodily fluids.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 86, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 10, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, 63, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, 19.01(26), eff. Sept. 1, 1999.

261.002. Central Registry

     (a) The department shall establish and maintain in Austin a central registry of reported cases of child abuse or neglect.

     (b) The department may adopt rules necessary to carry out this section. The rules shall provide for cooperation with local child service agencies, including hospitals, clinics, and schools, and cooperation with other states in exchanging reports to effect a national registration system.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.003. Application to Students in School for Deaf or School for Blind and Visually Impaired

     This chapter applies to the investigation of a report of abuse or neglect of a student, without regard to the age of the student, in the Texas School for the Deaf or the Texas School for the Blind and Visually Impaired.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.004. Statistics of Abuse and Neglect of Children

     (a) The department shall prepare and disseminate statistics by county relating to the department's activities under this subtitle and include the information specified in Subsection (b) in an annual report available to the public.

     (b) The department shall report the following information:

     (1) the number of initial phone calls received by the department alleging abuse and neglect;

     (2) the number of children reported to the department as having been abused and neglected;

     (3) the number of reports received by the department alleging abuse or neglect and assigned by the department for investigation;

     (4) of the children to whom Subdivision (2) applies:

     (A) the number for whom the report was substantiated;

     (B) the number for whom the report was unsubstantiated;

     (C) the number for whom the report was determined to be false;

     (D) the number who did not receive services from the department under a state or federal program;

     (E) the number who received services, including preventative services, from the department under a state or federal program; and

     (F) the number who were removed from the child's home during the preceding year;

     (5) the number of families in which the child was not removed, but the child or family received services from the department;

     (6) the number of children who died during the preceding year as a result of child abuse or neglect;

     (7) of the children to whom Subdivision (6) applies, the number who were in foster care at the time of death;

     (8) the number of child protective services workers responsible for report intake, assessment, or investigation;

     (9) the response time by the department with respect to conducting an initial investigation of a report of child abuse or neglect;

     (10) the response time by the department with respect to commencing services to families and children for whom an allegation of abuse or neglect has been made;

     (11) the number of children who were returned to their families or who received family preservation services and who, before the fifth anniversary of the date of return or receipt, were the victims of substantiated reports of child abuse or neglect, including abuse or neglect resulting in the death of the child;

     (12) the number of cases pursued by the department in each stage of the judicial process, including civil and criminal proceedings and the results of each proceeding; and

     (13) the number of children for whom a person was appointed by the court to represent the best interests of the child and the average number of out-of-court contacts between the person and the child.

     (c) The department shall compile the information specified in Subsection (b) for the preceding year in a report to be submitted to the legislature and the general public not later than February 1 of each year.

Added by Acts 1997, 75th Leg., ch. 1022, 64, eff. Sept. 1, 1997.

SUBCHAPTER B. REPORT OF ABUSE OR NEGLECT; IMMUNITIES

261.101. Persons Required to Report; Time to Report

     (a) A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

     (b) If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected or that a child is a victim of an offense under Section 21.11, Penal Code, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report. In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

     (c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

     (d) Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:

     (1) as provided by Section 261.201; or

     (2) to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 87, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 162, 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 575, 11, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, 65, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, 6.29, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1150, 2, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 21, eff. Sept. 1, 1999.

261.102. Matters to be Reported

     A report should reflect the reporter's belief that a child has been or may be abused or neglected or has died of abuse or neglect.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 88, eff. Sept. 1, 1995.

261.103. Report Made to Appropriate Agency

     (a) Except as provided by Subsection (b), a report shall be made to:

     (1) any local or state law enforcement agency;

     (2) the department if the alleged or suspected abuse involves a person responsible for the care, custody, or welfare of the child;

     (3) the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred; or

     (4) the agency designated by the court to be responsible for the protection of children.

     (b) A report may be made to the Texas Youth Commission instead of the entities listed under Subsection (a) if the report is based on information provided by a child while under the supervision of the commission concerning the child's alleged abuse of another child.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 89, eff. Sept. 1, 1995.

Amended by Acts 1999, 76th Leg., ch. 1477, 24, eff. Sept. 1, 1999.

261.104. Contents of Report

     The person making a report shall identify, if known:

     (1) the name and address of the child;

     (2) the name and address of the person responsible for the care, custody, or welfare of the child; and

     (3) any other pertinent information concerning the alleged or suspected abuse or neglect.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 90, eff. Sept. 1, 1995.

261.105. Referral of Report by Department or Law Enforcement

     (a) All reports received by a local or state law enforcement agency that allege abuse or neglect by a person responsible for a child's care, custody, or welfare shall be referred immediately to the department or the designated agency.

     (b) The department or designated agency shall immediately notify the appropriate state or local law enforcement agency of any report it receives, other than a report from a law enforcement agency, that concerns the suspected abuse or neglect of a child or death of a child from abuse or neglect.

     (c) In addition to notifying a law enforcement agency, if the report relates to a child in a facility operated, licensed, certified, or registered by a state agency, the department shall refer the report to the agency for investigation.

     (d) If the department initiates an investigation and determines that the abuse or neglect does not involve a person responsible for the child's care, custody, or welfare, the department shall refer the report to a law enforcement agency for further investigation.

     (e) In cooperation with the department, the Texas Youth Commission by rule shall adopt guidelines for identifying a report made to the commission under Section 261.103(b) that is appropriate to refer to the department or a law enforcement agency for investigation. Guidelines adopted under this subsection must require the commission to consider the severity and immediacy of the alleged abuse or neglect of the child victim.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

Amended by Acts 1997, 75th Leg., ch. 1022, 66, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1477, 25, eff. Sept. 1, 1999.

261.1055. Notification of District Attorneys

     (a) A district attorney may inform the department or designated agency that the district attorney wishes to receive notification of some or all reports of suspected abuse or neglect of children who were in the county at the time the report was made or who were in the county at the time of the alleged abuse or neglect.

     (b) If the district attorney makes the notification under this section, the department or designated agency shall, on receipt of a report of suspected abuse or neglect, immediately notify the district attorney as requested and the department or designated agency shall forward a copy of the reports to the district attorney on request.

Added by Acts 1997, 75th Leg., ch. 1022, 67, eff. Sept. 1, 1997.

261.106. Immunities

     (a) A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

     (b) Immunity from civil and criminal liability extends to an authorized volunteer of the department or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person's responsibilities.

     (c) A person who reports the person's own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 91, eff. Sept. 1, 1995.

261.107. False Report; Penalty

     (a) A person commits an offense if the person knowingly or intentionally makes a report as provided in this chapter that the person knows is false or lacks factual foundation. An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a state jail felony.

     (b) A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.

     (c) The appropriate county prosecuting attorney shall be responsible for the prosecution of an offense under this section.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 92, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, 68; Acts 1999, 76th Leg., ch. 62, 6.30, eff. Sept. 1, 1999.

261.108. Frivolous Claims Against Person Reporting

     (a) In this section:

     (1) "Claim" means an action or claim by a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, requesting recovery of damages.

     (2) "Defendant" means a party against whom a claim is made.

     (b) A court shall award a defendant reasonable attorney's fees and other expenses related to the defense of a claim filed against the defendant for damages or other relief arising from reporting or assisting in the investigation of a report under this chapter or participating in a judicial proceeding resulting from the report if:

     (1) the court finds that the claim is frivolous, unreasonable, or without foundation because the defendant is immune from liability under Section 261.106; and

     (2) the claim is dismissed or judgment is rendered for the defendant.

     (c) To recover under this section, the defendant must, at any time after the filing of a claim, file a written motion stating that:

     (1) the claim is frivolous, unreasonable, or without foundation because the defendant is immune from liability under Section 261.106; and

     (2) the defendant requests the court to award reasonable attorney's fees and other expenses related to the defense of the claim.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.109. Failure to Report; Penalty

     (a) A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

     (b) An offense under this section is a Class B misdemeanor.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

SUBCHAPTER C. CONFIDENTIALITY AND PRIVILEGED COMMUNICATION

261.201. Confidentiality and Disclosure of Information

     (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

     (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

     (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

     (b) A court may order the disclosure of information that is confidential under this section if:

     (1) a motion has been filed with the court requesting the release of the information;

     (2) a notice of hearing has been served on the investigating agency and all other interested parties; and

     (3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is:

     (A) essential to the administration of justice; and

     (B) not likely to endanger the life or safety of:

     (i) a child who is the subject of the report of alleged or suspected abuse or neglect;

     (ii) a person who makes a report of alleged or suspected abuse or neglect; or

     (iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child.

     (c) In addition to Subsection (b), a court, on its own motion, may order disclosure of information that is confidential under this section if:

     (1) the order is rendered at a hearing for which all parties have been given notice;

     (2) the court finds that disclosure of the information is:

     (A) essential to the administration of justice; and

     (B) not likely to endanger the life or safety of:

     (i) a child who is the subject of the report of alleged or suspected abuse or neglect;

     (ii) a person who makes a report of alleged or suspected abuse or neglect; or

     (iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child; and

     (3) the order is reduced to writing or made on the record in open court.

     (d) The adoptive parents of a child who was the subject of an investigation and an adult who was the subject of an investigation as a child are entitled to examine and make copies of any report, record, working paper, or other information in the possession, custody, or control of the state that pertains to the history of the child. The department may edit the documents to protect the identity of the biological parents and any other person whose identity is confidential.

     (e) Before placing a child who was the subject of an investigation, the department shall notify the prospective adoptive parents of their right to examine any report, record, working paper, or other information in the possession, custody, or control of the state that pertains to the history of the child.

     (f) The department shall provide prospective adoptive parents an opportunity to examine information under this section as early as practicable before placing a child.

     (g) Notwithstanding Subsection (b), the department, on request and subject to department rule, shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information concerning the reported abuse or neglect that would otherwise be confidential under this section if the department has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure.

     (h) This section does not apply to an investigation of child abuse or neglect in a home or facility regulated under Chapter 42, Human Resources Code.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 93, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 12, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, 69, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1150, 3, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 22, eff. Sept. 1, 1999.

261.202. Privileged Communication

     In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

SUBCHAPTER D. INVESTIGATIONS

261.301. Investigation of Report

     (a) With assistance from the appropriate state or local law enforcement agency, the department or designated agency shall make a prompt and thorough investigation of a report of child abuse or neglect allegedly committed by a person responsible for a child's care, custody, or welfare. The investigation shall be conducted without regard to any pending suit affecting the parent-child relationship.

     (b) A state agency shall investigate a report that alleges abuse or neglect occurred in a facility operated, licensed, certified, or registered by that agency as provided by Subchapter E. In conducting an investigation for a facility operated, licensed, certified, registered, or listed by the department, the department shall perform the investigation as provided by:

     (1) Subchapter E; and

     (2) the Human Resources Code.

     (c) The department is not required to investigate a report that alleges child abuse or neglect by a person other than a person responsible for a child's care, custody, or welfare. The appropriate state or local law enforcement agency shall investigate that report if the agency determines an investigation should be conducted.

     (d) The department may by rule assign priorities and prescribe investigative procedures for investigations based on the severity and immediacy of the alleged harm to the child. The primary purpose of the investigation shall be the protection of the child.

     (e) As necessary to provide for the protection of the child, the department or designated agency shall determine:

     (1) the nature, extent, and cause of the abuse or neglect;

     (2) the identity of the person responsible for the abuse or neglect;

     (3) the names and conditions of the other children in the home;

     (4) an evaluation of the parents or persons responsible for the care of the child;

     (5) the adequacy of the home environment;

     (6) the relationship of the child to the persons responsible for the care, custody, or welfare of the child; and

     (7) all other pertinent data.

     (f) An investigation of a report to the department of serious physical or sexual abuse of a child shall be conducted jointly by an investigator from the appropriate local law enforcement agency and the department or agency responsible for conducting an investigation under Subchapter E.

     (g) The inability or unwillingness of a local law enforcement agency to conduct a joint investigation under Subsection (f) does not constitute grounds to prevent or prohibit the department from performing its duties under this subtitle. The department shall document any instance in which a law enforcement agency is unable or unwilling to conduct a joint investigation under Subsection (f).

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 94, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 943, 2, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 1022, 70, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1137, 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1150, 4, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 23, eff. Sept. 1, 1999.

261.3015. Flexible Response System

     (a) In assigning priorities and prescribing investigative procedures based on the severity and immediacy of the alleged harm to a child under Section 261.301(d), the board by rule shall establish a flexible response system to allow the department to allocate resources by investigating serious cases of abuse and neglect and providing assessment and family preservation services in less serious cases.

     (b) The classification under the flexible response system of a case may be changed as warranted by the circumstances.

     (c) The department may implement the flexible response system by establishing a pilot program in a single department service region. The department shall study the results of the system in the region in determining the method by which to implement the system statewide.

Added by Acts 1997, 75th Leg., ch. 1022, 71, eff. Sept. 1, 1997.

261.3019. Pilot Programs for Investigations of Child Abuse

Text of section effective until September 1, 2001

     (a) On or after September 1, 1997, but not later than March 1, 1998, the department shall enter into two agreements, one with a sheriff of a county with a population of not less than 500,000 and if necessary for jurisdictional purposes any other law enforcement agency, and one with a sheriff of a county with a population of 25,000 or less and if necessary for jurisdictional purposes any other law enforcement agency, under which the sheriff or law enforcement agency shall conduct investigations of reports of abuse. The commissioners court of a county that is eligible to establish a pilot program and that intends to do so shall inform the department of the county's interest.

     (b) An agreement under this section shall:

     (1) specify the respective roles of law enforcement and department staff in the investigative process;

     (2) provide for the department to assist in the removal of a child under Chapter 262 as necessary for the protection of the child;

     (3) provide for the use of any available children's advocacy center or multidisciplinary team under Subchapter E, Chapter 264;

     (4) include provisions for the reimbursement by the department from available state and federal funds of the costs incurred by the sheriff or law enforcement agency in conducting an investigation of a report of abuse;

     (5) develop a plan for the transfer of calls received by the state child abuse hotline to the local law enforcement agency;

     (6) develop a plan to be submitted to the department that specifies the manner in which the county's law enforcement agency shall handle investigations, investigator training, and the processing of reports made to the local agency;

     (7) permit an additional contract with other appropriate local law enforcement agencies, if necessary for jurisdictional purposes, to implement the pilot program; and

     (8) contain provisions the department and the sheriff and law enforcement determine to be necessary and appropriate.

     (c) The department may provide advice and technical assistance to the county to ensure that the county complies with state and federal law in implementing and operating the pilot program.

     (d) Under each pilot program, the department shall provide to a participating county law enforcement agency:

     (A) information regarding:

     (i) the average number of child abuse cases that are typically investigated; and

     (ii) staff and investigator training; and

     (B) other assistance necessary to adequately implement and fund the pilot program.

     (e) Under the pilot program, the commissioners court shall establish an independent local citizens review board composed of seven volunteers who represent the community, including members who have experience in matters relating to child abuse and including one member who is licensed as a psychologist, one member licensed as a medical or health professional, and one member who is a licensed or ordained priest, rabbi, or officer of a religious organization. A member of a review board may not be an employee of or contract with any participating law enforcement agency or the department. The citizens review board shall prepare and make available to the public on an annual basis a report containing a summary of the activities of the board.

     (f) The commissioners court may apply for any grants and research other sources of funding for the county's participation in the pilot program.

     (g) An agreement under Subsection (a) is not required to provide for:

     (1) the investigation of abuse alleged to have occurred in a facility or home regulated by the department under Chapter 42, Human Resources Code; or

     (2) an investigation conducted under Section 261.404.

     (h) The state auditor shall perform an audit and evaluation of the pilot program under this section. In preparing the evaluation, the auditor shall consider any report prepared by a citizens review board established under Subsection (e). The auditor shall report, not later than March 1, 2001, the results of the audit and evaluation to the presiding officers of both houses of the 77th Legislature and to the governor. The report must include an evaluation of the strengths and weaknesses of the pilot program and a recommendation about the feasibility of expanding the pilot program statewide.

     (i) The department shall adopt rules necessary to perform the department's duties under this section.

     (j) This section expires September 1, 2001.

Added by Acts 1997, 75th Leg., ch. 1022, 72, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 907, 38, eff. Sept. 1, 1999.

261.302. Conduct of Investigation

     (a) The investigation may include:

     (1) a visit to the child's home, unless the alleged abuse or neglect can be confirmed or clearly ruled out without a home visit; and

     (2) an interview with and examination of the subject child, which may include a medical, psychological, or psychiatric examination.

     (b) The interview with and examination of the child may:

     (1) be conducted at any reasonable time and place, including the child's home or the child's school;

     (2) include the presence of persons the department or designated agency determines are necessary; and

     (3) include transporting the child for purposes relating to the interview or investigation.

     (c) The investigation may include an interview with the child's parents and an interview with and medical, psychological, or psychiatric examination of any child in the home.

     (d) If, before an investigation is completed, the investigating agency believes that the immediate removal of a child from the child's home is necessary to protect the child from further abuse or neglect, the investigating agency shall file a petition or take other action under Chapter 262 to provide for the temporary care and protection of the child.

     (e) An interview with a child alleged to be a victim of physical abuse or sexual abuse shall be audiotaped or videotaped unless the investigating agency determines that good cause exists for not audiotaping or videotaping the interview in accordance with rules of the agency. Good cause may include, but is not limited to, such considerations as the age of the child and the nature and seriousness of the allegations under investigation. Nothing in this subsection shall be construed as prohibiting the investigating agency from audiotaping or videotaping an interview of a child on any case for which such audiotaping or videotaping is not required under this subsection. The fact that the investigating agency failed to audiotape or videotape an interview is admissible at the trial of the offense that is the subject of the interview.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 95, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 13, 14, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, 73, eff. Sept. 1, 1997.

261.303. Interference With Investigation; Court Order

     (a) A person may not interfere with an investigation of a report of child abuse or neglect conducted by the department or designated agency.

     (b) If admission to the home, school, or any place where the child may be cannot be obtained, then for good cause shown the court having family law jurisdiction shall order the parent, the person responsible for the care of the children, or the person in charge of any place where the child may be to allow entrance for the interview, examination, and investigation.

     (c) If a parent or person responsible for the child's care does not consent to release of the child's prior medical, psychological, or psychiatric records or to a medical, psychological, or psychiatric examination of the child that is requested by the department or designated agency, the court having family law jurisdiction shall, for good cause shown, order the records to be released or the examination to be made at the times and places designated by the court.

     (d) A person, including a medical facility, that makes a report under Subchapter B1 shall release to the department or designated agency, as part of the required report under Section 261.103, records that directly relate to the suspected abuse or neglect without requiring parental consent or a court order.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 96, eff. Sept. 1, 1995.

Amended by Acts 1999, 76th Leg., ch. 1150, 5, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 24, eff. Sept. 1, 1999.

261.304. Investigation of Anonymous Report

     (a) If the department receives an anonymous report of child abuse or neglect by a person responsible for a child's care, custody, or welfare, the department shall conduct a preliminary investigation to determine whether there is any evidence to corroborate the report.

     (b) An investigation under this section may include a visit to the child's home and an interview with and examination of the child and an interview with the child's parents. In addition, the department may interview any other person the department believes may have relevant information.

     (c) Unless the department determines that there is some evidence to corroborate the report of abuse, the department may not conduct the thorough investigation required by this chapter or take any action against the person accused of abuse.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.305. Access to Mental Health Records

     (a) An investigation may include an inquiry into the possibility that a parent or a person responsible for the care of a child who is the subject of a report under Subchapter B1 has a history of medical or mental illness.

     (b) If the parent or person does not consent to an examination or allow the department or designated agency to have access to medical or mental health records requested by the department or agency, the court having family law jurisdiction, for good cause shown, shall order the examination to be made or that the department or agency be permitted to have access to the records under terms and conditions prescribed by the court.

     (c) If the court determines that the parent or person is indigent, the court shall appoint an attorney to represent the parent or person at the hearing. The fees for the appointed attorney shall be paid as provided by Chapter 107.

     (d) A parent or person responsible for the child's care is entitled to notice and a hearing when the department or designated agency seeks a court order to allow a medical, psychological, or psychiatric examination or access to medical or mental health records.

     (e) This access does not constitute a waiver of confidentiality.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 15, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1150, 6, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 25, eff. Sept. 1, 1999.

261.306. Removal of Child From State

     (a) If the department or designated agency has reason to believe that a person responsible for the care, custody, or welfare of the child may remove the child from the state before the investigation is completed, the department or designated agency may file an application for a temporary restraining order in a district court without regard to continuing jurisdiction of the child as provided in Chapter 155.

     (b) The court may render a temporary restraining order prohibiting the person from removing the child from the state pending completion of the investigation if the court:

     (1) finds that the department or designated agency has probable cause to conduct the investigation; and

     (2) has reason to believe that the person may remove the child from the state.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.307. Information Relating to Investigation Procedure

     As soon as possible after initiating an investigation of a parent or other person having legal custody of a child, the department shall provide to the person a brief and easily understood summary of:

     (1) the department's procedures for conducting an investigation of alleged child abuse or neglect, including:

     (A) a description of the circumstances under which the department would request to remove the child from the home through the judicial system; and

     (B) an explanation that the law requires the department to refer all reports of alleged child abuse or neglect to a law enforcement agency for a separate determination of whether a criminal violation occurred;

     (2) the person's right to file a complaint with the department or to request a review of the findings made by the department in the investigation;

     (3) the person's right to review all records of the investigation unless the review would jeopardize an ongoing criminal investigation;

     (4) the person's right to seek legal counsel;

     (5) references to the statutory and regulatory provisions governing child abuse and neglect and how the person may obtain copies of those provisions; and

     (6) the process the person may use to acquire access to the child if the child is removed from the home.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.308. Submission of Investigation Report

     (a) The department or designated agency shall make a complete written report of the investigation.

     (b) If sufficient grounds for filing a suit exist, the department or designated agency shall submit the report, together with recommendations, to the court, the district attorney, and the appropriate law enforcement agency.

     (c) On receipt of the report and recommendations, the court may direct the department or designated agency to file a petition requesting appropriate relief as provided in this title.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 97, eff. Sept. 1, 1995.

261.309. Review of Department Investigations

     (a) The department shall by rule establish policies and procedures to resolve complaints relating to and conduct reviews of child abuse or neglect investigations conducted by the department.

     (b) If a person under investigation for allegedly abusing or neglecting a child requests clarification of the status of the person's case or files a complaint relating to the conduct of the department's staff or to department policy, the department shall conduct an informal review to clarify the person's status or resolve the complaint. The immediate supervisor of the employee who conducted the child abuse or neglect investigation or against whom the complaint was filed shall conduct the informal review as soon as possible but not later than the 14th day after the date the request or complaint is received.

     (c) If, after the department's investigation, the person who is alleged to have abused or neglected a child disputes the department's determination of whether child abuse or neglect occurred, the person may request an administrative review of the findings. A department employee in administration who was not involved in or did not directly supervise the investigation shall conduct the review. The review must sustain, alter, or reverse the department's original findings in the investigation.

     (d) Unless a civil or criminal court proceeding or an ongoing criminal investigation relating to the alleged abuse or neglect investigated by the department is pending, the department employee shall conduct the review prescribed by Subsection (c) as soon as possible but not later than the 45th day after the date the department receives the request. If a civil or criminal court proceeding or an ongoing criminal investigation is pending, the department may postpone the review until the court proceeding is completed.

     (e) A person is not required to exhaust the remedies provided by this section before pursuing a judicial remedy provided by law.

     (f) This section does not provide for a review of an order rendered by a court.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.310. Investigation Standards

     (a) The department shall by rule develop and adopt voluntary standards for persons who investigate suspected child abuse or neglect at the state or local level. The standards shall encourage professionalism and consistency in the investigation of suspected child abuse or neglect.

     (b) The standards must provide for a minimum number of hours of annual professional training for interviewers and investigators of suspected child abuse or neglect.

     (c) The professional training curriculum developed under this section shall include information concerning:

     (1) physical abuse and neglect, including distinguishing physical abuse from ordinary childhood injuries;

     (2) psychological abuse and neglect;

     (3) available treatment resources; and

     (4) the incidence and types of reports of child abuse and neglect that are received by the investigating agencies, including information concerning false reports.

     (d) The standards shall recommend:

     (1) that videotaped and audiotaped interviews with a suspected victim be uninterrupted;

     (2) a maximum number of interviews with and examinations of a suspected victim;

     (3) procedures to preserve evidence, including the original notes, videotapes, and audiotapes; and

     (4) that an investigator of suspected child abuse or neglect make a reasonable effort to locate and inform each parent of a child of any report of abuse or neglect relating to the child.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.311. Notice of Report

     (a) When during an investigation of a report of suspected child abuse or neglect a representative of the department or the designated agency conducts an interview with or an examination of a child, the department or designated agency shall make a reasonable effort before 24 hours after the time of the interview or examination to notify each parent of the child and the child's legal guardian, if one has been appointed, of the nature of the allegation and of the fact that the interview or examination was conducted.

     (b) If a report of suspected child abuse or neglect is administratively closed by the department or designated agency as a result of a preliminary investigation that did not include an interview or examination of the child, the department or designated agency shall make a reasonable effort before the expiration of 24 hours after the time the investigation is closed to notify each parent and legal guardian of the child of the disposition of the investigation.

     (c) The notice required by Subsection (a) or (b) is not required if the department or agency determines that the notice is likely to endanger the safety of the child who is the subject of the report, the person who made the report, or any other person who participates in the investigation of the report.

     (d) The notice required by Subsection (a) or (b) may be delayed at the request of a law enforcement agency if notification during the required time would interfere with an ongoing criminal investigation.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

Amended by Acts 1997, 75th Leg., ch. 1022, 74, eff. Sept. 1, 1997.

261.312. Review Teams; Offense

     (a) The department shall establish review teams to evaluate department casework and decision-making related to investigations by the department of child abuse or neglect. The department may create one or more review teams for each region of the department for child protective services. A review team is a citizen review panel or a similar entity for the purposes of federal law relating to a state's child protection standards.

     (b) A review team consists of five members who serve staggered two-year terms. Review team members are appointed by the director of the department and consist of community representatives and private citizens who live in the region for which the team is established. Each member must be a parent who has not been convicted of or indicted for an offense involving child abuse or neglect, has not been determined by the department to have engaged in child abuse or neglect, or is not under investigation by the department for child abuse or neglect. A member of a review team is a department volunteer for the purposes of Section 411.114, Government Code.

     (c) A review team conducting a review of an investigation may conduct the review by examining the facts of the case as outlined by the department caseworker and law enforcement personnel. A review team member acting in the member's official capacity may receive information made confidential under Section 40.005, Human Resources Code, or Section 261.201.

     (d) A review team shall report to the department the results of the team's review of an investigation. The review team's report may not include confidential information. The findings contained in a review team's report are subject to disclosure under Chapter 552, Government Code. This section does not require a law enforcement agency to divulge information to a review team that the agency believes would compromise an ongoing criminal case, investigation, or proceeding.

     (e) A member of a review team commits an offense if the member discloses confidential information. An offense under this subsection is a Class C misdemeanor.

Added by Acts 1995, 74th Leg., ch. 943, 3, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 16, eff. Sept. 1, 1997.

261.3125. Investigations Coordinator

     (a) The department shall employ in each region of the department for child protective services at least one child protective services investigations coordinator. The job responsibilities of the investigations coordinator must focus only on child abuse and neglect investigation issues, including reports of child abuse required by Section 261.101, to achieve a greater compliance with that section, and on assessing and improving the effectiveness of the department in providing for the protection of children in the region.

     (b) The duties of a child protective services investigations coordinator must include the duty to:

     (1) conduct staff reviews and evaluations of cases determined to involve a high risk to the health or safety of a child, including cases of abuse reported under Section 261.101;

     (2) monitor cases in which there have been multiple referrals to the department of child abuse or neglect involving the same family, child, or person alleged to have committed the abuse or neglect; and

     (3) approve decisions and assessments related to investigations of cases of child abuse or neglect that involve a high risk to the health or safety of a child.

Added by Acts 1999, 76th Leg., ch. 1490, 1, eff. Sept. 1, 1999.

261.314. Testing

     (a) The department shall provide testing as necessary for the welfare of a child who the department believes, after an investigation under this chapter, has been sexually abused, including human immunodeficiency virus (HIV) testing of a child who was abused in a manner by which HIV may be transmitted.

     (b) Except as provided by Subsection (c), the results of a test under this section are confidential.

     (c) If requested, the department shall report the results of a test under this section to:

     (1) a court having jurisdiction of a proceeding involving the child or a proceeding involving a person suspected of abusing the child;

     (2) a person responsible for the care and custody of the child as a foster parent; and

     (3) a person seeking to adopt the child.

Added by Acts 1995, 74th Leg., ch. 943, 7, eff. Sept. 1, 1995.

261.315. Removal of Certain Investigation Information From Records

     (a) At the conclusion of an investigation in which the department determines that the person alleged to have abused or neglected a child did not commit abuse or neglect, the department shall notify the person of the person's right to request the department to remove information about the person's alleged role in the abuse or neglect report from the department's records.

     (b) On request under Subsection (a) by a person whom the department has determined did not commit abuse or neglect, the department shall remove information from the department's records concerning the person's alleged role in the abuse or neglect report.

     (c) The board shall adopt rules necessary to administer this section.

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

261.316. Exemption From Fees for Medical Records

     The department is exempt from the payment of a fee otherwise required or authorized by law to obtain a medical record from a hospital or health care provider if the request for a record is made in the course of an investigation by the department.

Added by Acts 1997, 75th Leg., ch. 575, 17, eff. Sept. 1, 1997. Renumbered from 261.315 by Acts 1999, 76th Leg., ch. 62, 19.01(27), eff. Sept. 1, 1999.

SUBCHAPTER E. INVESTIGATIONS OF ABUSE OR NEGLECT IN CERTAIN FACILITIES

261.401. Agency Investigation

     (a) A state agency that operates, licenses, certifies, or registers a facility in which children are located shall make a prompt, thorough investigation of a report that a child has been or may be abused or neglected in the facility. The primary purpose of the investigation shall be the protection of the child.

     (b) A state agency shall adopt rules relating to the investigation and resolution of reports received as provided by this subchapter. The Health and Human Services Commission shall review and approve the rules to ensure that all agencies implement appropriate standards for the conduct of investigations and that uniformity exists among agencies in the investigation and resolution of reports.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 98, eff. Sept. 1, 1995.

261.402. Investigative Reports

     (a) A state agency shall prepare and keep on file a complete written report of each investigation conducted by the agency under this subchapter.

     (b) A state agency shall immediately notify the appropriate state or local law enforcement agency of any report the agency receives, other than a report from a law enforcement agency, that concerns the suspected abuse or neglect of a child or the death of a child from abuse or neglect. If the state agency finds evidence indicating that a child may have been abused or neglected, the agency shall report the evidence to the appropriate law enforcement agency.

     (d) A state agency that licenses, certifies, or registers a facility in which children are located shall compile, maintain, and make available statistics on the incidence of child abuse and neglect in the facility.

     (e) A state agency shall compile, maintain, and make available statistics on the incidence of child abuse and neglect in a facility operated by the state agency.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, 99, eff. Sept. 1, 1995.

261.403. Complaints

     (a) If a state agency receives a complaint relating to an investigation conducted by the agency concerning a facility operated by that agency in which children are located, the agency shall refer the complaint to the agency's board.

     (b) The board of a state agency that operates a facility in which children are located shall ensure that the procedure for investigating abuse and neglect allegations and inquiries in the agency's facility is periodically reviewed under the agency's internal audit program required by Chapter 2102, Government Code.

Added by Acts 1995, 74th Leg., ch. 20, 1, eff. April 20, 1995.

261.404. Investigations in Facilities Under Department of Mental Health and Mental Retardation

     (a) The department shall investigate a report of abuse, neglect, or exploitation of a child receiving services:

     (1) in a facility operated by the Texas Department of Mental Health and Mental Retardation;

     (2) in or from a community center, a local mental health authority, or a local mental retardation authority; or

     (3) through a program providing services to that child by contract with a facility operated by the Texas Department of Mental Health and Mental Retardation, a community center, a local mental health authority, or a local mental retardation authority.

     (b) The department shall investigate the report under rules developed jointly between the department and the Texas Department of Mental Health and Mental Retardation.

     (c) The definitions of "abuse" and "neglect" prescribed by Section 261.001 do not apply to an investigation under this section.

     (d) In this section, "community center," "local mental health authority," and "local mental retardation authority" have the meanings assigned by Section 531.002, Health and Safety Code.

Added by Acts 1995, 74th Leg., ch. 751, 100, eff. Sept. 1, 1995.

Amended by Acts 1999, 76th Leg., ch. 907, 39, eff. Sept. 1, 1999.

261.405. Investigations in Juvenile Justice Programs And Facilities

     (a) A report of alleged abuse or neglect in a public or private juvenile pre-adjudication secure detention facility, including hold-over facilities, or public or private juvenile post-adjudication secure correctional facility, except for a facility operated solely for children committed to the Texas Youth Commission, shall be made to a local law enforcement agency for investigation. The local law enforcement agency shall immediately notify the Texas Juvenile Probation Commission of any report the agency receives.

     (b) The Texas Juvenile Probation Commission shall conduct an investigation as provided by this chapter if the commission receives a report of alleged abuse or neglect in any program, including a juvenile justice alternative education program, operated wholly or partly by:

     (1) a local juvenile probation department; or

     (2) a private vendor operating under the authority of a county juvenile board in accordance with the standards adopted by the commission.

     (c) In an investigation required under this section, the investigating agency shall have access to medical and mental health records as provided by Subchapter D1.

Added by Acts 1995, 74th Leg., ch. 751, 100, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 162, 2; , Acts 1997, 75th Leg., ch. 1374, 8, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1150, 7, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 26, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1477, 26, eff. Sept. 1, 1999.

261.406. Investigations in Schools

     (a) On receipt of a report of alleged or suspected abuse or neglect of a child in a public or private school under the jurisdiction of the Texas Education Agency, the department shall perform an investigation as provided by this chapter.

     (b) The department shall send a written report of the department's investigation, as appropriate, to the Texas Education Agency, the agency responsible for teacher certification, the local school board or the school's governing body, and the school principal or director, unless the principal or director is alleged to have committed the abuse or neglect, for appropriate action. On request, the department shall provide a copy of the report of investigation to the parent, managing conservator, or legal guardian of a child who is the subject of the investigation and to the person alleged to have committed the abuse or neglect. The report of investigation shall be edited to protect the identity of the persons who made the report of abuse or neglect. Section 261.201(b) applies to the release of confidential information relating to the investigation of a report of abuse or neglect under this section and to the identity of the person who made the report of abuse or neglect.

     (c) Nothing in this section may prevent a law enforcement agency from conducting an investigation of a report made under this section.

     (d) The Board of Protective and Regulatory Services shall adopt rules necessary to implement this section.

Added by Acts 1995, 74th Leg., ch. 751, 100, eff. Sept. 1, 1995.

Amended by Acts 1997, 75th Leg., ch. 575, 18, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1150, 8, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, 27, eff. Sept. 1, 1999.

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