Human Resources Code

The purpose of this chapter is to provide for the authority to investigate the abuse, neglect, or exploitation of an elderly or disabled person and to provide protective services to that person.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Amended by Acts 1995, 74th Leg., ch. 303, � 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, � 2, eff. Sept. 1, 1999.

(A) the negligent or wilful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to an elderly or disabled person by the person's caretaker, family member, or other individual who has an ongoing relationship with the person; or

(B) sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (indecent exposure) or Chapter 22, Penal Code (assaultive offenses), committed by the person's caretaker, family member, or other individual who has an ongoing relationship with the person.

(3) "Exploitation" means the illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person.

(4) "Neglect" means the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services.

(5) "Protective services" means the services furnished by the department or by a protective services agency to an elderly or disabled person who has been determined to be in a state of abuse, neglect, or exploitation. These services may include social casework, case management, and arranging for psychiatric and health evaluation, home care, day care, social services, health care, and other services consistent with this chapter.

(6) "Protective services agency" means a public or private agency, corporation, board, or organization that provides protective services to elderly or disabled persons in the state of abuse, neglect, or exploitation.

(8) "Disabled person" means a person with a mental, physical, or developmental disability that substantially impairs the person's ability to provide adequately for the person's care or protection and who is:

(9) "Legal holiday" means a state holiday listed in Subchapter B, Chapter 662, Government Code, or an officially declared county holiday.

(A) performs services for or on behalf of the department under the supervision of a department employee; and

(B) does not receive compensation that exceeds the authorized expenses the person incurs in performing those services.

(b) The definitions of "abuse," "neglect," and "exploitation" adopted by the department as prescribed by Section 48.251 apply to an investigation of abuse, neglect, or exploitation in a facility subject to Subchapters F and H.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 274, ch. 51, � 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 264, � 16, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 568, � 1, eff. Sept. 1, 1987.

Amended by Acts 1991, 72nd Leg., ch. 213, � 1, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, �� 5.95(15), 8.041, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, � 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, � 51, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, � 2, eff. Sept. 1, 1999.

(a) This chapter does not apply if the alleged or suspected abuse, neglect, or exploitation occurs in a facility licensed under Chapter 242, Health and Safety Code.

(b) Alleged or suspected abuse, neglect, or exploitation that occurs in a facility licensed under Chapter 242, Health and Safety Code, is governed by Subchapter B, Chapter 242, Health and Safety Code.

Added by Acts 1995, 74th Leg., ch. 303, � 14, eff. Sept. 1, 1995. Renumbered from � 48.085 and amended by Acts 1999, 76th Leg., ch. 907, � 3, eff. Sept. 1, 1999.

(a) On determining after an investigation that an elderly or disabled person has been abused, exploited, or neglected by an employee of a home and community support services agency licensed under Chapter 142, Health and Safety Code, the department shall:

(1) notify the state agency responsible for licensing the home and community support services agency of the department's determination;

(2) notify any health and human services agency, as defined by Section 531.001, Government Code, that contracts with the home and community support services agency for the delivery of health care services of the department's determination; and

(3) provide to the licensing state agency and any contracting health and human services agency access to the department's records or documents relating to the department's investigation.

(b) Providing access to a confidential record or document under this section does not constitute a waiver of confidentiality.

(a) Except as prescribed by Subsection (b), a person having cause to believe that an elderly or disabled person is in the state of abuse, neglect, or exploitation shall report the information required by Subsection (d) immediately to the department.

(b) If a person has cause to believe that an elderly or disabled person has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency other than the Texas Department of Mental Health and Mental Retardation, the person shall report the information to the state agency that operates, licenses, certifies, or registers the facility for investigation by that agency.

(c) The duty imposed by Subsections (a) and (b) applies without exception to a person whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, and mental health professional.

(2) the name and address of any person responsible for the elderly or disabled person's care;

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, � 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, � 16, eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 14, � 284(22), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, � 8.043, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, �� 6, 15(1), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, � 54, eff. Sept. 1, 1997. Renumbered from � 48.036 and amended by Acts 1999, 76th Leg., ch. 907, � 5, eff. Sept. 1, 1999.

(a) A person commits an offense if the person has cause to believe that an elderly or disabled person has been abused, neglected, or exploited or is in the state of abuse, neglect, or exploitation and knowingly fails to report in accordance with this chapter. An offense under this subsection is a Class A misdemeanor.

(b) This section does not apply if the alleged abuse, neglect, or exploitation occurred in a facility licensed under Chapter 242, Health and Safety Code. Failure to report abuse, neglect, or exploitation that occurs in a facility licensed under that chapter is governed by that chapter.

Added by Acts 1987, 70th Leg., ch. 1052, � 5.03, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 14, � 284(21), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, � 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1278, � 1, eff. Sept. 1, 1997. Renumbered from � 48.0361 and amended by Acts 1999, 76th Leg., ch. 907, � 6, eff. Sept. 1, 1999.

A person commits an offense if the person knowingly or intentionally reports information as provided in this chapter that the person knows is false or lacks factual foundation. An offense under this section is a Class B misdemeanor.

Added by Acts 1997, 75th Leg., ch. 1022, � 55, eff. Sept. 1, 1997. Renumbered from � 48.0362 by Acts 1999, 76th Leg., ch. 907, � 7, eff. Sept. 1, 1999.

(a) A person filing a report under this chapter or testifying or otherwise participating in any judicial proceeding arising from a petition, report, or investigation is immune from civil or criminal liability on account of his or her petition, report, testimony, or participation, unless the person acted in bad faith or with a malicious purpose.

(b) A person, including an authorized department volunteer, medical personnel, or law enforcement officer, who at the request of the department participates in an investigation required by this chapter or in an action that results from that investigation is immune from civil or criminal liability for any act or omission relating to that participation if the person acted in good faith and, if applicable, in the course and scope of the person's assigned responsibilities or duties.

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

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, � 10, eff. Sept. 1, 1995. Renumbered from � 48.039 and amended by Acts 1999, 76th Leg., ch. 907, � 8, eff. Sept. 1, 1999.

(a) The following information is confidential and not subject to disclosure under Chapter 552, Government Code:

(3) except as provided by this section, all files, reports, records, communications, and working papers used or developed in an investigation made under this chapter or in providing services as a result of an investigation.

(b) Confidential information may be disclosed only for a purpose consistent with this chapter and as provided by department or investigating state agency rule and applicable federal law.

(1) a motion is filed with the court requesting release of the information and a hearing on that request;

(2) notice of that hearing is served on the department or investigating state agency and each interested party; and

(3) the court determines after the hearing and 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 who:

(d) The department or investigating state agency by rule shall provide for the release on request to a person who is the subject of a report of abuse, neglect, or exploitation or to that person's legal representative of otherwise confidential information relating to that report. The department or investigating state agency shall edit the information before release to protect the confidentiality of information relating to the reporter's identity and to protect any other individual whose safety or welfare may be endangered by disclosure.

(e) The department or investigating state agency may adopt rules relating to the release of information contained in the record of a deceased individual who was the subject of an investigation conducted by the department or investigating state agency or to whom the department has provided protective services. The rules must be consistent with the purposes of this chapter and any applicable state or federal law.

(f) The department or investigating state agency may establish procedures to exchange with another state agency or governmental entity information that is necessary for the department, state agency, or entity to properly execute its respective duties and responsibilities to provide services to elderly or disabled persons under this chapter or other law. An exchange of information under this subsection does not affect whether the information is subject to disclosure under Chapter 552, Government Code.

Added by Acts 1995, 74th Leg., ch. 303, � 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, � 58, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, � 10, eff. Sept. 1, 1999.

(a) The department shall send a written report of the department's investigation of alleged abuse, neglect, or exploitation of a disabled adult at a school, 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, neglect, or exploitation. The entity to which the report is sent shall take appropriate action.

(b) On request, the department shall provide a copy of the report of the investigation to the person who is alleged to have suffered the abuse, neglect, or exploitation, to the legal guardian of that person, and to the person alleged to have committed the abuse, neglect, or exploitation.

(c) The report of the investigation shall be edited to protect the identity of the person who made the report under Section 48.051.

(a) Not later than 24 hours after the department receives a report of an allegation of abuse, neglect, or exploitation under Section 48.051, the department shall initiate a prompt and thorough investigation as needed to evaluate the accuracy of the report and to assess the need for protective services, unless the department determines that the report:

(2) does not concern abuse, neglect, or exploitation, as those terms are defined by Section 48.002.

(b) The department shall adopt rules for conducting investigations under this chapter.

(c) The department by rule may assign priorities and prescribe investigative procedures for conducting investigations according to the degree of severity and immediacy of the alleged harm to the individual. Notwithstanding Subsection (a), the department's priorities and procedures may provide that an investigation is not required to be initiated within 24 hours in all cases.

(d) The department shall prepare and keep on file a report of each investigation conducted by the department.

(e) This section does not apply to investigations conducted under Subchapter F or H.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, � 5.04, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, � 8, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, � 56, eff. Sept. 1, 1997. Renumbered from � 48.037 and amended by Acts 1999, 76th Leg., ch. 907, � 14, eff. Sept. 1, 1999.

An investigation by the department or a state agency shall include an interview with the elderly or disabled person, if appropriate, and with persons thought to have knowledge of the circumstances. The investigation may include an interview with an alleged juvenile perpetrator of the alleged abuse, neglect, or exploitation. The department or state agency may conduct an interview under this section in private or may include any person the department or agency determines is necessary.

(a) To implement an investigation of reported abuse, neglect, or exploitation, the probate court, or the county court when no probate court exists, may authorize entry of the place of residence of the elderly or disabled person.

(b) A peace officer shall accompany and assist the person making a court-ordered entry under this section, if in the opinion of the court such action is necessary.

(a) The department or state agency, as appropriate, shall have access to any records or documents, including client-identifying information and medical and psychological records, necessary to the performance of the department's or state agency's duties under this chapter. The duties include but are not limited to the investigation of abuse, neglect, or exploitation or the provisions of services to an elderly or disabled person. A person or agency that has a record or document that the department or state agency needs to perform its duties under this chapter shall, without unnecessary delay, make the record or document available to the department or agency.

(b) The department is exempt from the payment of a fee otherwise required or authorized by law to obtain a medical record, including a mental health 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.

(c) If the department or another state agency cannot obtain access to a record or document that is necessary to properly conduct an investigation or to perform another duty under this chapter, the department or agency may petition the probate court or the statutory or constitutional county court having probate jurisdiction for access to the record or document.

(d) On good cause shown, the court shall order the person who denied access to a record or document to allow the department or agency to have access under the terms and conditions prescribed by the court.

(f) Access to a confidential record under this section does not constitute a waiver of confidentiality.

Added by Acts 1993, 73rd Leg., ch. 651, � 1, eff. Aug. 30, 1993. Amended by Acts 1995, 74th Leg., ch. 303, � 10, eff. Sept. 1, 1995. Renumbered from � 48.0385 and amended by Acts 1999, 76th Leg., ch. 907, � 16, eff. Sept. 1, 1999.

(a) A person, including a guardian and notwithstanding Section 675, Texas Probate Code, may not interfere with:

(1) an investigation by the department or by a protective services agency of alleged abuse, neglect, or exploitation of an elderly or disabled person; or

(b) The department or a protective services agency may petition the appropriate court to enjoin any interference with:

(2) the provision of protective services such as removal of the elderly or disabled person to safer surroundings or safeguarding the person's resources from exploitation.

Added by Acts 1995, 74th Leg., ch. 303, � 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, � 59, eff. Sept. 1, 1997. Renumbered from � 48.103 by Acts 1999, 76th Leg., ch. 907, � 17, eff. Sept. 1, 1999.

A protective services agency shall make reports relating to its provision of protective services as the department or a court may require.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983. Renumbered from � 48.057 by Acts 1999, 76th Leg., ch. 907, � 18, eff. Sept. 1, 1999.

If the department's or state agency's investigation reveals that the elderly or disabled person has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, a copy of the investigation shall be submitted to the appropriate law enforcement agency.

Except as otherwise provided, this subchapter does not apply to a Texas Department of Mental Health and Mental Retardation investigation under Subchapter F or H.

In an investigation the department or state agency, as appropriate, shall determine:

(3) whether services are available from the department, from the state agency, or in the community and how they can be provided;

(4) whether the person, acting alone, would be capable of obtaining needed services and could bear the cost or would be eligible for services from the department or state agency;

(5) whether a caretaker would be willing to provide services or would agree to their provisions;

(a) An elderly or disabled person may receive voluntary protective services if the person requests or consents to receive those services.

(b) The elderly or disabled person who receives protective services shall participate in all decisions regarding his or her welfare, if able to do so.

(c) The least restrictive alternatives should be made available to the elderly or disabled person who receives protective services.

(d) If an elderly or disabled person withdraws or refuses consent, the services may not be provided.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983. Renumbered from � 48.059 by Acts 1999, 76th Leg., ch. 907, � 22, eff. Sept. 1, 1999.

A protective services agency may furnish protective services to an elderly or disabled person with the person's consent or, if the person lacks the capacity to consent, without that person's consent as provided by this chapter.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, � 12, eff. Sept. 1, 1995. Renumbered from � 48.056 by Acts 1999, 76th Leg., ch. 907, � 23, eff. Sept. 1, 1999.

(a) The department may provide direct protective services or contract with protective services agencies for the provisions of those services.

(b) The department shall use existing resources and services of public and private agencies in providing protective services.

(c) The department and law enforcement officials, courts, and agencies shall cooperate when providing protective services.

(d) The responsibilities prescribed by this chapter are exclusive of those designated to other state or federal agencies authorized or required by law to provide protective services to elderly or disabled persons determined to be in the state of abuse, neglect, or exploitation.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 905, � 5, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 303, � 4, eff. Sept. 1, 1995. Renumbered from � 48.021 and amended by Acts 1999, 76th Leg., ch. 907, � 24, eff. Sept. 1, 1999.

If the elderly or disabled person receiving the protective services is determined to be financially able to contribute to the payments for those services, the provider shall receive a reasonable reimbursement from the person's assets.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983. Renumbered from � 48.058 by Acts 1999, 76th Leg., ch. 907, � 25, eff. Sept. 1, 1999.

This chapter does not authorize or require any medical treatment of a person who objects on the grounds that he is an adherent or member of a recognized church or religious denomination the tenets and practice of which may include reliance solely upon spiritual means through prayer for healing.

Added by Acts 1995, 74th Leg., ch. 303, � 14, eff. Sept. 1, 1995. Renumbered from � 48.102 by Acts 1999, 76th Leg., ch. 907, � 11, eff. Sept. 1, 1999.

(a) For purposes of this section, a person lacks the capacity to consent to receive protective services if, because of mental or physical impairment, the person is incapable of understanding the nature of the services offered and agreeing to receive or rejecting protective services.

(b) If the department determines that an elderly or disabled person is suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety, that the person lacks capacity to consent to receive protective services, and that no consent can be obtained, the department may petition the probate or statutory or constitutional county court that has probate jurisdiction in the county in which the elderly or disabled person resides for an emergency order authorizing protective services.

(1) the name, age, and address of the elderly or disabled person who needs protective services;

(4) a medical report signed by a physician stating that the person is suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety and stating that the person is physically or mentally incapable of consenting to services unless the court finds that an immediate danger to the health or safety of the elderly or disabled person exists and there is not sufficient time to obtain the medical report.

(d) On finding that there is reasonable cause to believe that abuse, neglect, or exploitation presents a threat to life or physical safety for the elderly or disabled person and that the elderly or disabled person lacks capacity to consent to services, the court may:

(3) order other available services necessary to remove conditions creating the threat to life or physical safety, including the services of law enforcement officers or emergency medical services personnel.

(e) The emergency order expires at the end of 72 hours from the time of the order unless the 72-hour period ends on a Saturday, Sunday, or legal holiday in which event the order is automatically extended to 4 p.m. on the first succeeding business day. An order may be renewed for not more than 14 additional days. A renewal order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4 p.m. on the first succeeding business day. The court may modify or terminate the emergency order on petition of the department, the incompetent person, or any person interested in his welfare.

(f) Any medical facility or physician treating an elderly or disabled person pursuant to an emergency order under this chapter is not liable for any damages arising from the treatment, except those damages resulting from the negligence of the facility or physician.

(g) The court shall appoint an attorney ad litem to represent the elderly or disabled person in any proceeding brought by the department under this section. A reasonable fee, as determined by the court, shall be paid to the attorney ad litem from the general fund of the county.

(h) If the department cannot obtain an emergency order under this section because the court is closed on a Saturday, Sunday, or legal holiday or after 5 p.m., the department may remove the elderly or disabled person to safer surroundings, authorize medical treatment, or order or provide other available services necessary to remove conditions creating the threat to life or physical safety. The department must obtain an emergency order under this section not later than 4 p.m. on the first succeeding business day after the date on which protective services are provided. If the department does not obtain an emergency order, the department shall cease providing protective services and, if necessary, make arrangements for the immediate return of the person to the place from which the person was removed, to the person's place of residence in the state, or to another suitable place.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, � 4, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 569, � 1, eff. June 18, 1987; Acts 1991, 72nd Leg., ch. 213, �� 2 to 4, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, � 13, eff. Sept. 1, 1995. Renumbered from � 48.061 and amended by Acts 1999, 76th Leg., ch. 907, � 26, eff. Sept. 1, 1999.

(a) The department shall file an application under Section 682 or 875, Texas Probate Code, to be appointed guardian of the person or estate or both of an individual who is a minor, is a conservatee of the department, and, because of a physical or mental condition, will be substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs when the individual becomes an adult. If a less restrictive alternative to guardianship is available for an individual, the department shall pursue the alternative instead of applying for appointment as a guardian.

(b) As a last resort, the department may apply to be appointed guardian of the person or estate of an elderly or disabled person who is found by the department to be in a state of abuse, neglect, or exploitation, and who, because of a physical or mental condition, will be substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs. A representative of the department shall take the oath required by the Texas Probate Code on behalf of the department if the department is appointed guardian. If the department knows that an individual is willing and able to serve as the guardian, the department may inform the court of that individual's willingness and ability.

(c) If appropriate, the department may contract with a political subdivision of this state, a private agency, or another state agency for the provision of guardianship services under this section. The department or a political subdivision of the state or state agency with which the department contracts under this section is not required to post a bond or pay any cost or fee otherwise required by the Texas Probate Code.

(d) If the department is appointed guardian, the department is not liable for funding services provided to the department's ward, including long-term care or burial expenses.

(e) The department may not be required to pay fees associated with the appointment of a guardian ad litem or attorney ad litem.

(f) The department shall file an application with the court to name a successor guardian if the department becomes aware of a qualified and willing individual or guardianship program serving the area in which the ward is located.

Added by Acts 1995, 74th Leg., ch. 303, � 4, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 76, � 8.042, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1039, � 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, �� 52, 53, eff. Sept. 1, 1997. Renumbered from � 48.0215 and amended by Acts 1999, 76th Leg., ch. 907, � 27, eff. Sept. 1, 1999.

(a) Except as provided by Subsection (b), the prosecuting attorney representing the state in criminal cases in the county court shall represent the department in any proceeding under this chapter unless the representation would be a conflict of interest.

(b) In a county having a population of more than 2.8 million, the prosecuting attorney representing the state in civil cases in the county court shall represent the department in any proceeding under this chapter unless the representation would be a conflict of interest.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, � 3, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, � 11, eff. Sept. 1, 1995. Renumbered from � 48.040 by Acts 1999, 76th Leg., ch. 907, � 28, eff. Sept. 1, 1999.

If the elderly or disabled person has a guardian, a written notification of the findings of the investigation shall be sent to the court to which the guardian is accountable.

The department by rule shall adopt definitions of "abuse," "neglect," and "exploitation" to govern an investigation under this subchapter and Subchapter H.

(a) The department shall receive and investigate reports of the abuse, neglect, or exploitation of an individual with a disability 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 person 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 by rule shall define who is "an individual with a disability receiving services."

(c) 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. 303, � 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, � 57, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1281, � 1, eff. Sept. 1, 1997. Renumbered from � 48.081 and amended by Acts 1999, 76th Leg., ch. 907, � 32, eff. Sept. 1, 1999.

On receipt by the department of a report of alleged abuse, neglect, or exploitation under this subchapter, the department shall initiate a prompt and thorough investigation as needed to evaluate the accuracy of the report unless the department, in accordance with rules adopted under this subchapter, determines that the report:

The department shall forward to a state mental health or mental retardation facility, a community center, a mental health authority, a mental retardation authority, or a program providing mental health or mental retardation services under contract with such a facility, community center, or authority:

(1) a copy of any report the department receives relating to alleged or suspected abuse, neglect, or exploitation of an individual receiving services from that facility, community center, authority, or program; and

(a) The department and the Texas Department of Mental Health and Mental Retardation shall develop joint rules to facilitate investigations in state mental health and mental retardation facilities.

(b) The department and the Texas Department of Mental Health and Mental Retardation by joint rules shall establish procedures for resolving disagreements between the department and the Texas Department of Mental Health and Mental Retardation concerning the department's investigation findings.

(c) The department and the Texas Department of Mental Health and Mental Retardation shall develop joint rules to facilitate investigations in community centers, mental health authorities, and mental retardation authorities.

(d) A confirmed investigation finding by the department may not be changed by a superintendent of a state mental health or mental retardation facility, by a director of a community center, or by a mental health authority or mental retardation authority.

(e) The department shall provide by rule for an appeals process by the alleged victim of abuse, neglect, or exploitation under this section.

(f) The department by rule may assign priorities to an investigation conducted by the department under this section. The primary criterion used by the department in assigning a priority must be the risk that a delay in the investigation will impede the collection of evidence.

The department and the Texas Department of Mental Health and Mental Retardation shall jointly develop and implement a single system to track reports and investigations under this section. To facilitate implementation of the system, the department and the Texas Department of Mental Health and Mental Retardation shall use appropriate methods of measuring the number and outcome of reports and investigations under this section.

(a) If the department receives a report under this section relating to an elderly or disabled person in a facility operated, licensed, certified, or registered by a state agency other than the Texas Department of Mental Health and Mental Retardation, the department shall refer the report to that agency.

(b) A state agency that receives a report under this section shall make a thorough investigation promptly after receiving a report that an elderly or disabled person has been or may be abused, neglected, or exploited in a facility operated, licensed, certified, or registered by the agency. The primary purpose of the investigation is the protection of the elderly or disabled person.

(c) Each state agency, other than the Texas Department of Mental Health and Mental Retardation, that operates, licenses, certifies, or registers a facility in which elderly or disabled persons are located shall adopt rules relating to the investigation and resolution of reports received under this section.

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

(e) A state agency that receives a complaint relating to an investigation conducted under this section shall refer the complaint to its governing board or other entity designated to receive such complaints for review and appropriate action.

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.

(a) The department shall adopt a memorandum of understanding with each state agency that operates, licenses, certifies, or registers a facility in which elderly or disabled persons are located that clarifies each agency's responsibility under this chapter.

(b) Not later than the last month of each state fiscal year, the department and the other agencies shall review and update the memorandum.

Added by Acts 1987, 70th Leg., ch. 1052, � 5.01(a), eff. Sept. 1, 1987. Renumbered from � 48.022 and amended by Acts 1999, 76th Leg., ch. 907, � 35, eff. Sept. 1, 1999.

(a) Each state agency, other than the Texas Department of Mental Health and Mental Retardation, that operates, licenses, certifies, or registers a facility in which elderly or disabled persons are located shall compile and maintain statistics on the incidence of abuse, neglect, or exploitation of elderly or disabled persons that occurs in the facilities.

(b) The agency shall make the statistics available to the Health and Human Services Commission on request.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983.

Added by Acts 1981, 67th Leg., p. 2368, ch. 584, � 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, � 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, � 14, eff. Sept. 1, 1995. Renumbered from � 48.084 by Acts 1999, 76th Leg., ch. 907, � 36, eff. Sept. 1, 1999.

(1) "Community center" has the meaning assigned by Section 531.002, Health and Safety Code.

(B) a state-operated community services program operated by the Texas Department of Mental Health and Mental Retardation or a facility of the department.

(3) "Home and community-based services" means the services described by 42 U.S.C. Section 1396n(c) that are provided by a person under a contract with the Texas Department of Mental Health and Mental Retardation.

(4) "Local mental health authority" has the meaning assigned by Section 531.002, Health and Safety Code.

(5) "Local mental retardation authority" has the meaning assigned by Section 531.002, Health and Safety Code.

(6) "Provider" means a person who contracts with the Texas Department of Mental Health and Mental Retardation to provide home and community-based services. The term includes an officer, employee, or agent of the provider, and any person with whom the provider subcontracts for the provision of those services.

(a) The department shall receive and investigate reports of abuse, neglect, or exploitation of an individual receiving home and community-based services from a provider if the provider is or may be the person alleged to have committed the abuse, neglect, or exploitation.

(b) The department shall receive and investigate reports of abuse, neglect, or exploitation of an elderly or disabled individual residing in a residence owned, operated, or controlled by a provider in which the home and community-based services are provided, regardless of whether the individual receives those services, if the provider is or may be the person alleged to have committed the abuse, neglect, or exploitation.

(c) If the provider is a department facility, a local mental health or mental retardation authority, or a community center, Subchapter F also applies.

(a) On receipt by the department of a report of alleged abuse, neglect, or exploitation under this subchapter, the department shall initiate a prompt and thorough investigation as needed to evaluate the accuracy of the report and to assess the need for emergency protective services, unless the department determines, in accordance with rules adopted under Subchapter F, that the report:

(b) On learning that a provider is or may be the person who committed the alleged abuse, neglect, or exploitation, the department shall notify the following persons that the department has initiated an investigation:

(1) the chief executive of the provider and any other personnel of the provider as necessary to facilitate the investigation;

(2) the designated administrator at the Texas Department of Mental Health and Mental Retardation; and

(3) any other governmental entity that the investigator believes should be notified as necessary to assist in the investigation or in the provision of services.

(2) provide complete access to all sites owned, operated, or controlled by the provider; and

(d) The department shall adopt rules for conducting investigations under this subchapter.

(a) The department shall forward to the chief executive of a provider and to the designated administrator at the Texas Department of Mental Health and Mental Retardation:

(b) The allegation report and the investigation report shall be edited to protect the identity of the person who made the report under Section 48.051.

(a) The Texas Department of Mental Health and Mental Retardation is responsible for providing services to an individual receiving home and community support services as necessary to alleviate abuse, neglect, or exploitation if the department determines that the person needs the services because of the failure of a provider to furnish contracted services.

(b) The department may provide emergency services necessary to immediately protect the individual from serious physical harm or death and, if necessary, obtain an emergency order for protective services under Section 48.208.

(c) The department and the Texas Department of Mental Health and Mental Retardation shall develop joint rules governing the provision of services under this section.

The department shall provide services in accordance with Subchapter E to an elderly or disabled individual who does not receive home and community-based services but who lives in a residence owned, operated, or controlled by a provider in which home and community-based services are provided.

(a) At least once each calendar quarter, the Texas Department of Mental Health and Mental Retardation shall provide to the department:

(1) the name and address of each provider who has a contract with the Texas Department of Mental Health and Mental Retardation to provide home and community-based services;

(2) the name and telephone number of the chief executive of each provider described by Subdivision (1); and

(3) the address of each residence owned, operated, or controlled by each provider described by Subdivision (1) in which home and community-based services are provided.

(b) The Texas Department of Mental Health and Mental Retardation shall make available to the department the name and telephone number of each person to notify if an individual receiving home and community-based services needs services to alleviate abuse, neglect, or exploitation.

(1) provide to the Texas Department of Mental Health and Mental Retardation each calendar quarter the provider's business address and telephone number and the name of the provider's chief executive;

(2) provide to the Texas Department of Mental Health and Mental Retardation a telephone number at which the chief executive, or a designated representative, can be reached during normal business hours, if different from the telephone number required by Subdivision (1);

(3) provide to the Texas Department of Mental Health and Mental Retardation each calendar quarter the name, if any, address, and telephone number of any residence owned, operated, or controlled by the provider in which home and community-based services are provided; and

(4) post in a conspicuous location inside any residence owned, operated, or controlled by the provider in which home and community-based services are provided, a sign that states:

(B) the effective date of the provider's contract with the Texas Department of Mental Health and Mental Retardation to provide home and community-based services; and

(C) the name of the legal entity that contracted with the Texas Department of Mental Health and Mental Retardation to provide those services.

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