2005 Texas Human Resources Code CHAPTER 42. REGULATION OF CERTAIN FACILITIES, HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES


HUMAN RESOURCES CODE
CHAPTER 42. REGULATION OF CERTAIN FACILITIES, HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
§ 42.001. PURPOSE. The purpose of this chapter is to protect the health, safety, and well-being of the children of the state who reside in child-care facilities by establishing statewide minimum standards for their safety and protection and by regulating the facilities through a licensing program or by requiring child-care facilities to be regulated by alternative accreditation bodies. It is the policy of the state to ensure the protection of all children under care in child-care facilities and to encourage and assist in the improvement of child-care programs. It is also the intent of the legislature that freedom of religion of all citizens is inviolate. With respect to a school or child-care facility sponsored by a religious organization, nothing in this chapter gives a governmental agency authority to regulate, control, supervise, or in any way be involved in the: (1) form, manner, or content of religious instruction, ministry, teaching, or the curriculum offered by the school or facility; (2) ability of the school or facility to select and supervise qualified personnel, and otherwise control the terms of employment, including the right to employ individuals who share the religious views of the school or facility; (3) internal self-governance and autonomy of the school or facility; or (4) religious environment of the school or facility, such as symbols, art, icons, and scripture. Acts 1979, 66th Leg., p. 2358, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 664, § 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 2, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, § 1, eff. Sept. 1, 2001. § 42.002. DEFINITIONS. In this chapter: (1) "Child" means a person under 18 years of age. (2) "Division" means the division designated by the department to carry out the provisions of this chapter. (3) "Child-care facility" means a facility licensed, certified, or registered by the department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers. (4) "Child-care institution" means a child-care facility that provides care for more than 12 children for 24 hours a day, including facilities known as children's homes, halfway houses, residential treatment centers, emergency shelters, and therapeutic camps. (5) "Foster group home" means a child-care facility that provides care for 7 to 12 children for 24 hours a day. (6) "Foster home" means a child-care facility that provides care for not more than six children for 24 hours a day. (7) "Day-care center" means a child-care facility that provides care for more than 12 children under 14 years of age for less than 24 hours a day. (8) "Group day-care home" means a child-care facility that provides care for 7 to 12 children under 14 years of age for less than 24 hours a day. (9) "Family home" means a home that provides regular care in the caretaker's own residence for not more than six children under 14 years of age, excluding children who are related to the caretaker, and that provides care after school hours for not more than six additional elementary school children, but the total number of children, including children who are related to the caretaker, does not exceed 12 at any given time. The term does not include a home that provides care exclusively for any number of children who are related to the caretaker. (10) "Agency foster group home" means a facility that provides care for seven to 12 children for 24 hours a day, is used only by a licensed child-placing agency, and meets department standards. (11) "Agency foster home" means a facility that provides care for not more than six children for 24 hours a day, is used only by a licensed child-placing agency, and meets department standards. (12) "Child-placing agency" means a person, including an organization, other than the natural parents or guardian of a child who plans for the placement of or places a child in a child-care facility, agency foster home, agency foster group home, or adoptive home. (13) "Facilities" includes child-care facilities and child-placing agencies. (14) "State of Texas" or "state" does not include political subdivisions of the state. (15) "Religious organization" means a church, synagogue, or other religious institution whose purpose is to support and serve the propagation of truly held religious beliefs. (16) "Children who are related to the caretaker" means children who are the children, grandchildren, siblings, great-grandchildren, first cousins, nieces, or nephews of the caretaker, whether by affinity or consanguinity or as the result of a relationship created by court decree. (17) "Regular care" means care that is provided at least four hours a day, three or more days a week, for more than nine consecutive weeks. (18) "Controlling person" means a person who, either alone or in connection with others, has the ability to directly or indirectly influence or direct the management, expenditures, or policies of a residential child-care facility. (19) "Residential child-care facility" means a facility licensed or certified by the department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers. The term includes child-care institutions, child-placing agencies, foster group homes, foster homes, agency foster group homes, and agency foster homes. Acts 1979, 66th Leg., p. 2359, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 2812, ch. 759, § 1, eff. Aug. 31, 1981; Acts 1987, 70th Leg., ch. 1052, § 4.01, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 984, § 1, eff. June 15, 1989; Acts 1997, 75th Leg., ch. 1022, § 23, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 3, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, § 2, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 268, § 1.90, eff. Sept. 1, 2005.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
§ 42.021. DIVISION DESIGNATED. (a) The department may designate a division within the department to carry out responsibilities the department may delegate or assign under this chapter. (b) The commissioner shall appoint as director of a division designated under Subsection (a) a person who meets the qualifications set by the executive commissioner. (c) The department shall employ sufficient personnel and provide training for the personnel to carry out the provisions of this chapter. (d) The commissioner may divide the state into regions for the purpose of administering this chapter. Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1995, 74th Leg., ch. 76, § 8.020, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1063, § 4, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.91, eff. Sept. 1, 2005. § 42.022. STATE ADVISORY COMMITTEE. (a) The State Advisory Committee on Child-Care Administrators and Facilities is appointed by the board on the recommendation of the director. (b) Members of the committee serve for terms of two years expiring on February 1 of each odd-numbered year. (c) The advisory committee is composed of 12 members appointed by the board. The members must have the following qualifications: (1) two must be parents, guardians, or custodians of children who use the facilities; (2) two must be representatives of child advocacy groups; (3) two must be operators of nonprofit child-care facilities that are licensed under this chapter; (4) two must be experts in various professional fields that are relevant to child care and development; (5) two must be members of the general public; and (6) two must be operators of proprietary child-care facilities that are licensed under this chapter. (d) The department shall provide staff necessary for the committee. (e) The committee shall review rules and minimum standards for child-care administrators, child-care facilities, and child-placing agencies promulgated by state agencies, and shall advise the department, the council, and state agencies on problems of child-care administrators, child-care facilities, and child-placing agencies. (f) The committee shall receive and review the annual report of the department. (g) The board, on the recommendation of the director, shall appoint an advisory subcommittee on child-care administration from the membership of the Advisory Committee on Child-Care Administrators and Facilities. The subcommittee shall advise the board on licensing child-care administrators, including the content of the examination administered to license applicants under Section 43.004. The subcommittee on child-care administration shall meet at the same time the committee meets. (h) In making appointments to the committee, the board shall consider whether the committee reflects the race, ethnicity, and age of the residents of this state and whether the committee provides representation of the geographic regions of the state. Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.02, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 76, § 8.021, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 920, § 9, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1063, § 5, eff. Sept. 1, 1997. § 42.023. ANNUAL REPORT. (a) The department shall prepare an annual written report regarding the department's activities under this chapter. (b) The annual report shall include: (1) a report by regions of applications for licensure or certification, of initial licenses issued, denied, or revoked, of licenses issued, denied, suspended or revoked, of emergency closures and injunctions, and of the compliance of state-operated agencies, if such agencies exist, with certification requirements; (2) a summary of the training programs required by the department and their effectiveness; (3) a summary of training and other professional development opportunities offered to facilities' staffs; (4) a report of new administrative procedures, of the number of staff and staff changes, and of plans for the coming year; and (5) a report of trends in licensing violations on a statewide and regional basis and the department's plans to address those trends through the provision of technical assistance. (c) Copies of the annual report shall be available to any state citizen on request. Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 18, § 2, eff. April 3, 1985; Acts 1995, 74th Leg., ch. 76, § 8.022, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1063, § 6, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.92, eff. Sept. 1, 2005. § 42.024. ADMINISTRATIVE PROCEDURE. Chapter 2001, Government Code applies to all procedures under this chapter except where it is contrary to or inconsistent with the provisions of this chapter. Acts 1979, 66th Leg., p. 2361, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
SUBCHAPTER C. REGULATION OF CERTAIN FACILITIES, HOMES, AND AGENCIES
§ 42.041. REQUIRED LICENSE OR ACCREDITATION. (a) No person may operate a child-care facility or child-placing agency without a license issued by the department. (b) This section does not apply to: (1) a state-operated facility; (2) an agency foster home or agency foster group home; (3) a facility that is operated in connection with a shopping center, business, religious organization, or establishment where children are cared for during short periods while parents or persons responsible for the children are attending religious services, shopping, or engaging in other activities on or near the premises, including but not limited to retreats or classes for religious instruction; (4) a school or class for religious instruction that does not last longer than two weeks and is conducted by a religious organization during the summer months; (5) a youth camp licensed by the Texas Department of Health; (6) a facility licensed, operated, certified, or registered by another state agency; (7) an educational facility accredited by the Texas Education Agency or the Southern Association of Colleges and Schools that operates primarily for educational purposes in grades kindergarten and above, an after-school program operated directly by an accredited educational facility, or an after-school program operated by another entity under contract with the educational facility, if the Texas Education Agency or Southern Association of Colleges and Schools has approved the curriculum content of the after-school program operated under the contract; (8) an educational facility that operates solely for educational purposes in grades kindergarten through at least grade two, that does not provide custodial care for more than one hour during the hours before or after the customary school day, and that is a member of an organization that promulgates, publishes, and requires compliance with health, safety, fire, and sanitation standards equal to standards required by state, municipal, and county codes; (9) a kindergarten or preschool educational program that is operated as part of a public school or a private school accredited by the Texas Education Agency, that offers educational programs through grade six, and that does not provide custodial care during the hours before or after the customary school day; (10) a family home, whether registered or listed; (11) an educational facility that is integral to and inseparable from its sponsoring religious organization or an educational facility both of which do not provide custodial care for more than two hours maximum per day, and that offers educational programs for children age five and above in one or more of the following: kindergarten through at least grade three, elementary, or secondary grades; (12) an emergency shelter facility providing shelter to minor mothers who are the sole support of their natural children under Section 32.201, Family Code, unless the facility would otherwise require a license as a child-care facility under this section; (13) a juvenile detention facility certified under Section 51.12, Family Code, or Section 141.042(d), a juvenile facility providing services solely for the Texas Youth Commission, or any other correctional facility for children operated or regulated by another state agency or by a political subdivision of the state; (14) an elementary-age (ages 5-13) recreation program operated by a municipality provided the governing body of the municipality annually adopts standards of care by ordinance after a public hearing for such programs, that such standards are provided to the parents of each program participant, and that the ordinances shall include, at a minimum, staffing ratios, minimum staff qualifications, minimum facility, health, and safety standards, and mechanisms for monitoring and enforcing the adopted local standards; and further provided that parents be informed that the program is not licensed by the state and the program may not be advertised as a child-care facility; or (15) an annual youth camp held in a municipality with a population of more than 1.5 million that operates for not more than three months and that has been operated for at least 10 years by a nonprofit organization that provides care for the homeless. (c) A single license that lists addresses and the appropriate facilities may be issued to a child-care institution that operates noncontiguous facilities that are across the street from, in the same city block as, or on the same property as one another and that are demonstrably a single operation as indicated by patterns of staffing, finance, administrative supervision, and programs. (d) A facility exempt from the provisions of Subsection (a) of this section that desires to receive or participate in federal or state funding shall be required to comply with all other provisions of this chapter and with all regulations promulgated under this chapter. (e) The exemptions provided by Subsection (b) of this section do not affect the authority of local, regional, or state health department officials, the state fire marshal, or local fire prevention officials to inspect child-care facilities. Acts 1979, 66th Leg., p. 2361, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 2812, ch. 759, § 2, 3, eff. Aug. 31, 1981; Acts 1987, 70th Leg., ch. 1052, § 4.03, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 1115, § 2, eff. June 19, 1987; Acts 1995, 74th Leg., ch. 262, § 54, eff. Jan. 1, 1996; Acts 1995, 74th Leg., ch. 847, § 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, § 7.46, eff. Sept. 1, 1997; ; Acts 1997, 75th Leg., ch. 664, § 3, 4, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 2, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, § 3, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 268, § 1.93(a), eff. Sept. 1, 2005. § 42.042. RULES AND STANDARDS. (a) The department shall make rules to carry out the provisions of this chapter. (b) The department shall conduct a comprehensive review of all rules and standards at least every six years. For purposes of this subsection, the six-year period begins on the latest of the date of: (1) the conclusion of the review of the rules and standards; (2) a decision by the department not to revise the rules and standards; (3) a decision by the board not to revise the rules and standards; or (4) board action adopting new standards. (c) The department shall provide a standard procedure for receiving and recording complaints. The executive commissioner shall adopt rules regarding the receipt of anonymous complaints made regarding child-care facilities and family homes to limit the number of anonymous complaints investigated by the department. (d) The department shall provide standard forms for applications and inspection reports. (e) The department shall promulgate minimum standards that apply to licensed child-care facilities and to registered family homes covered by this chapter and that will: (1) promote the health, safety, and welfare of children attending a facility or registered family home; (2) promote safe, comfortable, and healthy physical facilities and registered family homes for children; (3) ensure adequate supervision of children by capable, qualified, and healthy personnel; (4) ensure adequate and healthy food service where food service is offered; (5) prohibit racial discrimination by child-care facilities and registered family homes; (6) require procedures for parental and guardian consultation in the formulation of children's educational and therapeutic programs; and (7) prevent the breakdown of foster care and adoptive placement. (f) In promulgating minimum standards for the provision of child-care services, the department shall recognize the various categories of services, including services for specialized care, the various categories of children and their particular needs, and the differences in the organization and operation of child-care facilities and institutions. Standards for child-care institutions must require an intake study before a child is placed in an institution. The intake study may be conducted at a community mental health and mental retardation center. (g) In promulgating minimum standards the department may recognize and treat differently the types of services provided by the following: (1) registered family homes; (2) child-care facilities, including child-care institutions, foster group homes, foster homes, group day-care homes, and day-care centers; (3) child-placing agencies; (4) agency foster homes; and (5) agency foster group homes. (h) The department shall promulgate minimum standards for child-placing agencies. (h-1) The executive commissioner shall adopt rules governing: (1) the placement and care of children by a child-placing agency, as necessary to ensure the health and safety of those children; (2) the verification and monitoring of agency foster homes, agency foster group homes, and adoptive homes by a child-placing agency; and (3) if appropriate, child-placing agency staffing levels, office locations, and administration. (i) Before adopting minimum standards, the department shall present the proposed standards to the State Advisory Committee on Child-Care Facilities for review and comment, and shall send a copy of the proposed standards to each licensee covered by the proposed standards at least 60 days before the standards take effect to provide the licensee an opportunity to review and to send written suggestions to the committee and the department. (j) The department may waive compliance with a minimum standard in a specific instance if it determines that the economic impact of compliance is sufficiently great to make compliance impractical. (k) The department may not regulate or attempt to regulate or control the content or method of any instruction or curriculum of a school sponsored by a religious organization. (l) In promulgating minimum standards for the regulation of family homes that register with the department, the department must address the minimum qualifications, education, and training required of a person who operates a family home registered with the department . (m) In determining minimum standards relating to staff-to-child ratios, group sizes, or square footage requirements applicable to nonresidential child-care facilities that provide care for less than 24 hours a day, the department shall, within available appropriations, conduct a comprehensive cost-benefit analysis and economic impact study that includes families and licensed child-care providers. (n) Not later than the 60th day before the date the board adopts a revision to the minimum standards for child-care facilities, the department shall present the revision to the appropriate legislative oversight committees that have jurisdiction over child-care facilities for review and comment. (p) The department by rule shall prescribe minimum training standards for an employee of a regulated child-care facility, including the time required for completing the training. The department may not require an employee to repeat required training if the employee has completed the training within the time prescribed by department rule. The department's local offices shall make available at the local office locations a copy of the rules regarding minimum training standards, information enabling the owner or operator of a regulated facility to apply for training funds from other agencies to lower facility costs, and any other materials the department may develop to assist the owner or operator or other entity in providing the training. (q) Each residential child-care facility shall notify the department and the appropriate local law enforcement agency immediately on determining that a child is missing from the facility. Acts 1979, 66th Leg., p. 2362, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.04, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 920, § 10, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, § 24, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1121, § 1, eff. June 19, 1997; Acts 1997, 75th Leg., ch. 1217, § 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1129, § 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 218, § 4, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 268, § 1.94(a), eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 526, § 1, eff. Sept. 1, 2005. § 42.0421. MINIMUM TRAINING STANDARDS. (a) The minimum training standards prescribed by the department under Section 42.042(p) for an employee of a day-care center or group day-care home must include: (1) eight hours of initial training for an employee of a day-care center who has no previous training or employment experience in a regulated child-care facility, to be completed before the employee is given responsibility for a group of children; (2) 15 hours of annual training for each employee of a day-care center or group day-care home, excluding the director, which must include at least six hours of training in one or more of the following areas: (A) child growth and development; (B) guidance and discipline; (C) age-appropriate curriculum; and (D) teacher-child interaction; and (3) 20 hours of annual training for each director of a day-care center or group day-care home, which must include at least six hours of training in one or more of the following areas: (A) child growth and development; (B) guidance and discipline; (C) age-appropriate curriculum; and (D) teacher-child interaction. (b) The minimum training standards prescribed by the department under Section 42.042(p) must require an employee of a licensed day-care center or group day-care home who provides care for children younger than 24 months of age to receive special training regarding the care of those children. The special training must be included as a component of the initial training required by Subsection (a)(1) and as a one-hour component of the annual training required by Subsections (a)(2) and (a)(3). The special training must include information on: (1) recognizing and preventing shaken baby syndrome; (2) preventing sudden infant death syndrome; and (3) understanding early childhood brain development. (c) The department by rule shall require an operator of a registered family home who provides care for a child younger than 24 months of age to complete one hour of annual training on: (1) recognizing and preventing shaken baby syndrome; (2) preventing sudden infant death syndrome; and (3) understanding early childhood brain development. (d) Section 42.042(m) does not apply to the minimum training standards required by this section. Added by Acts 1999, 76th Leg., ch. 1211, § 1, eff. Jan. 1, 2000. Amended by Acts 2001, 77th Leg., ch. 169, § 1, eff. Sept. 1, 2001. § 42.0422. RESTRAINT AND SECLUSION. A person providing services to a resident of a child-care institution, including a state-operated facility that is a residential treatment center or a child-care institution serving children with mental retardation, shall comply with Chapter 322, Health and Safety Code, and the rules adopted under that chapter. Added by Acts 2005, 79th Leg., ch. 698, § 7, eff. Sept. 1, 2005. § 42.0425. ASSESSMENT SERVICES. (a) The department by rule shall regulate assessment services provided by child-care facilities or child-placing agencies. A child-care facility or child-placing agency may not provide assessment services unless specifically authorized by the department. (b) The department by rule shall establish minimum standards for assessment services. The standards must provide that consideration is given to the individual needs of a child, the appropriate place for provision of services, and the factors listed in Section 42.042(e). (c) In this section, "assessment services" means the determination of the placement needs of a child who requires substitute care. Added by Acts 1997, 75th Leg., ch. 1022, § 25, eff. Sept. 1, 1997. § 42.0426. TRAINING OF PERSONNEL. (a) A licensed facility shall provide training for staff members in: (1) the recognition of symptoms of child abuse, neglect, and sexual molestation and the responsibility and procedure of reporting suspected occurrences of child abuse, neglect, and sexual molestation to the department or other appropriate entity; (2) the application of first aid; and (3) the prevention and spread of communicable diseases. (b) A residential child-care facility shall implement a behavior intervention program approved by the department for the benefit of a child served by the facility who needs assistance in managing the child's conduct. The program must include: (1) behavior intervention instruction for staff members who work directly with children served by the facility; and (2) training for all employees regarding the risks associated with the use of prone restraints. Added by Acts 1997, 75th Leg., ch. 1022, § 25, eff. Sept. 1, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 1.95, eff. Sept. 1, 2005. § 42.0427. PARENTAL VISITATION. All areas of a licensed facility must be accessible to a parent of a child who is receiving care at the facility if the parent visits the child during the facility's hours of operation. Added by Acts 1997, 75th Leg., ch. 1022, § 25, eff. Sept. 1, 1997. § 42.043. RULES FOR IMMUNIZATIONS. (a) The department shall make rules for the immunization of children in facilities regulated under this chapter. (b) The department shall require that each child at an appropriate age have a test for tuberculosis and be immunized against diphtheria, tetanus, poliomyelitis, mumps, rubella, rubeola, invasive pneumococcal disease, and hepatitis A and against any other communicable disease as recommended by the Department of State Health Services. The immunization must be effective on the date of first entry into the facility. However, a child may be provisionally admitted if the required immunizations have begun and are completed as rapidly as medically feasible. (c) The Texas Department of Health shall make rules for the provisional admission of children to facilities regulated under this chapter and may modify or delete any of the immunizations listed in Subsection (b) of this section or require additional immunizations as a requirement for admission to a facility. (d) No immunization may be required for admission to a facility regulated under this chapter if a person applying for a child's admission submits one of the following affidavits: (1) an affidavit signed by a licensed physician stating that the immunization poses a significant risk to the health and well-being of the child or a member of the child's family or household; or (2) an affidavit signed by the child's parent or guardian stating that the applicant declines immunization for reasons of conscience, including a religious belief. (d-1) An affidavit submitted under Section (d)(2) must be on a form described by Section 161.0041, Health and Safety Code, and must be submitted not later than the 90th day after the date the affidavit is notarized. (e) Each regulated facility shall keep an individual immunization record for each child admitted, and the records shall be open for inspection by the department at all reasonable times. (f) The Texas Department of Health shall provide the immunizations required by this section to children in areas where there is no local provision of these services. Acts 1979, 66th Leg., p. 2362, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1993, 73rd Leg., ch. 43, § 5, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, § 2.164, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 563, § 1, eff. Sept. 1, 2005. § 42.0431. ENFORCEMENT OF SCREENING REQUIREMENTS RELATING TO VISION, HEARING, AND OTHER SPECIAL SENSES AND COMMUNICATION DISORDERS. (a) The department, after consultation with the Texas Department of Health, shall adopt rules necessary to ensure that children receiving care at a day-care center or group day-care home licensed under this chapter are screened for vision, hearing, and any other special senses or communication disorders in compliance with rules adopted by the Texas Board of Health under Section 36.004, Health and Safety Code. (b) Each day-care center or group day-care home licensed under this chapter shall maintain individual screening records for children attending the facility who are required to be screened, and the department may inspect those records at any reasonable time. The department shall coordinate the monitoring inspections in compliance with protocol agreements adopted between the department and the Texas Department of Health pursuant to Section 42.0442. (c) This section does not apply to a day-care center or group day-care home operating under a certificate issued by the department under Subchapter E. Added by Acts 1999, 76th Leg., ch. 712, § 1, eff. June 18, 1999. § 42.044. INSPECTIONS. (a) An authorized representative of the department may visit a facility regulated under this chapter or a registered family home during operating hours to investigate, inspect, and evaluate. (b) The department shall inspect all licensed or certified facilities at least once a year and may inspect other facilities or registered family homes as necessary. The department shall investigate a listed family home when the department receives a complaint of abuse or neglect of a child, as defined by Section 261.001, Family Code. At least one of the annual visits must be unannounced and all may be unannounced. (c) The department must investigate a facility regulated under this chapter or a registered family home when a complaint is received. The representative of the department must notify the operator of a registered family home or the director or authorized representative of a regulated facility when a complaint is being investigated and report in writing the results of the investigation to the family home's operator or to the regulated facility's director or the director's authorized representative. (d) The department may call on political subdivisions and governmental agencies for assistance within their authorized fields. (e) The department shall periodically conduct inspections of a random sample of agency foster homes and agency foster group homes. The department shall use the inspections to monitor and enforce compliance by a child-placing agency with rules and standards established under Section 42.042. (f) The department shall use an inspection checklist that includes a list of all required items for inspection in conducting a monitoring inspection under this section. Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, § 27, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 4, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, § 5, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 268, § 1.96, eff. Sept. 1, 2005. § 42.0441. INSPECTION RESULTS FOR CERTAIN NONRESIDENTIAL CHILD-CARE FACILITIES. Immediately after completing a monitoring inspection of a licensed day-care center, licensed group day-care home, or registered family home under Section 42.044, the authorized representative of the department shall review the results of the monitoring inspection with a representative of the facility and give the facility an opportunity to respond to the inspection results. Added by Acts 1997, 75th Leg., ch. 253, § 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, § 28, eff. Sept. 1, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 1.97, eff. Sept. 1, 2005. § 42.04411. INSPECTION RESULTS AND EXIT CONFERENCE FOR RESIDENTIAL CHILD-CARE FACILITIES. (a) On completion of an inspection of a residential child-care facility under Section 42.044, the inspector shall hold an exit conference with a representative of the inspected facility. The inspector shall provide to the representative a copy of the inspection checklist used by the inspector. (b) The inspector shall provide the representative an opportunity to communicate regarding potential violations. Added by Acts 2005, 79th Leg., ch. 268, § 1.98, eff. Sept. 1, 2005. § 42.0442. COORDINATION OF INSPECTIONS; ELIMINATION OF DUPLICATIVE INSPECTIONS. (a) The department shall coordinate monitoring inspections of licensed day-care centers, licensed group day-care homes, and registered family homes performed by another state agency to eliminate redundant inspections. (b) The department shall form an interagency task force with the Texas Department of Health, the Texas Department of Human Services, and the Texas Workforce Commission to develop an inspection protocol that will coordinate inspections by those agencies. The protocol must assign the required items for inspection by each agency and facilitate the sharing of inspection data and compliance history. (c) The interagency task force shall establish an inspection checklist based on the inspection protocol developed under Subsection (b). Each state agency that inspects a facility listed in Subsection (a) shall use the inspection checklist in performing an inspection. A state agency shall make a copy of the completed inspection checklist available to the facility at the facility's request to assist the facility in maintaining records. (d) The department shall provide to facilities listed in Subsection (a) information regarding inspections, including who may inspect a facility and the purpose of each type of inspection. Added by Acts 1997, 75th Leg., ch. 253, § 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, § 28, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 169, § 2, eff. Sept. 1, 2001. § 42.0443. INSPECTION INFORMATION DATABASE.
Text of section as added by Acts 1997, 75th Leg., ch. 253, § 1
(a) If feasible using available information systems, the department shall establish a computerized database containing relevant inspection information on licensed day-care centers, licensed group day-care homes, and registered family homes from other state agencies and political subdivisions of the state. (b) The department shall make the data collected by the department available to another state agency or political subdivision of the state for the purpose of administering programs or enforcing laws within the jurisdiction of that agency or subdivision. If feasible using available information systems, the department shall make the data directly available to the Texas Department of Health, the Texas Department of Human Services, and the Texas Workforce Commission through electronic information systems. The department, the Texas Department of Health, the Texas Department of Human Services, and the Texas Workforce Commission shall jointly plan the development of child-care inspection databases that, to the extent feasible, are similar in their design and architecture to promote the sharing of data. (c) The department may provide inspection data on licensed day-care centers, licensed group day-care homes, or registered family homes to the public if the department determines that providing inspection data enhances consumer choice with respect to those facilities. Added by Acts 1997, 75th Leg., ch. 253, § 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, § 28, eff. Sept. 1, 1997. For text of section as added by Acts 2003, 78th Leg., ch. 709, § 1, see § 42.0443, post. § 42.0443. COORDINATION OF FIRE SAFETY AND SANITATION INSPECTIONS.
Text of section as added by Acts 2003, 78th Leg., ch. 709, § 1.
(a) The department may not inspect a licensed day-care center, licensed group day-care home, or registered family home for compliance with the department's fire safety or sanitation standards if the facility, at the time of the department's inspection, provides the department with documentation relating to a current fire safety or sanitation inspection, as applicable, performed by a political subdivision of this state that indicates that the facility is in compliance with the applicable standards of the political subdivision. (b) If the documentation provided under Subsection (a) indicates that the facility was required to take corrective action or that the political subdivision imposed a restriction or condition on the facility, the department shall determine whether the facility took the required corrective action or complied with the restriction or condition. (c) The department may inspect a facility subject to this section for compliance with the department's fire safety or sanitation standards if: (1) the facility does not provide the documentation described by Subsection (a); or (2) the department determines that the facility did not take a corrective action or comply with a restriction or condition described by Subsection (b). (d) Notwithstanding any other provision of this section, the department shall report to the appropriate political subdivision any violation of fire safety or sanitation standards observed by the department at a facility subject to this section. (e) The department shall adopt rules necessary to implement this section. Added by Acts 2003, 78th Leg., ch. 709, § 1, eff. Sept. 1, 2003. For text of section as added by Acts 1997, 75th Leg., ch. 253, § 1, see § 42.0443, ante. § 42.0445. REQUIRED BACKGROUND SEARCH OF CENTRAL REGISTRY OF REPORTED CASES OF CHILD ABUSE OR NEGLECT. (a) Before the department issues or renews a license, registration, or certification under this subchapter, the department shall search the central registry of reported cases of child abuse or neglect established under Section 261.002, Family Code, to determine whether the applicant or the owner or an employee of the facility or family home is listed in the registry as a person who abused or neglected a child. (b) The department may adopt rules to implement this section. Added by Acts 1997, 75th Leg., ch. 1022, § 29, eff. Sept. 1, 1997. § 42.0446. REMOVAL OF CERTAIN INVESTIGATION INFORMATION FROM INTERNET WEBSITE. The executive commissioner shall adopt rules providing a procedure by which the department removes from the department's Internet website information with respect to a child-care facility or registered family home that relates to an anonymous complaint alleging that the facility or family home failed to comply with the department's minimum standards if, at the conclusion of an investigation, the department determines that the complaint is false or lacks factual foundation. Added by Acts 2005, 79th Leg., ch. 526, § 2, eff. Sept. 1, 2005. § 42.0447. FALSE REPORT; CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly or intentionally files a complaint alleging that a child-care facility or registered family home failed to comply with the department's minimum standards and the person knows the allegation is false or lacks factual foundation. (b) 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. Added by Acts 2005, 79th Leg., ch. 526, § 2, eff. Sept. 1, 2005. § 42.045. RECORDS. (a) A person who operates a licensed or certified facility shall maintain individual child development records, individual health records, statistical records, and complete financial records. (b) A person who provides adoption services under a license to operate a child-placing agency shall furnish information required by the department to determine whether adoption related income and disbursements are reasonable, appropriate, and in compliance with the department's minimum standards. (c) If a child-placing agency terminates operation as a child-placing agency, it shall, after giving notice to the department, transfer its files and records concerning adopted children, their biological families, and their adoptive families to the Bureau of Vital Statistics or, after giving notice to the Bureau of Vital Statistics, to a facility licensed by the department to place children for adoption. Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1983, 68th Leg., p. 1782, ch. 342, § 2, eff. Jan. 1, 1984; Acts 1989, 71st Leg., ch. 707, § 1, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1129, § 2, eff. Sept. 1, 1999. § 42.046. APPLICATION FOR LICENSE, LISTING, OR REGISTRATION. (a) An applicant for a license to operate a child-care facility or child-placing agency or for a listing or registration to operate a family home shall submit to the department the appropriate fee prescribed by Section 42.054 and a completed application on a form provided by the department. (b) The department shall supply the applicant the application form and a copy of the appropriate minimum standards, if applicable. (c) After receiving an application, the department shall investigate the applicant and the plan of care for children, if applicable. (d) The department shall complete the investigation and decide on an application within two months after the date the department receives a completed application. (e) The department may deny an application under this section if the applicant: (1) has a residential child-care facility license revoked in another state; or (2) is barred from operating a residential child-care facility in another state. Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 212, § 1, eff. Sept. 1, 1985; Acts 1985, 69th Leg., ch. 239, § 4, eff. Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1022, § 30, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 5, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.99, eff. Sept. 1, 2005. § 42.0461. PUBLIC NOTICE AND HEARING IN CERTAIN COUNTIES: RESIDENTIAL CHILD CARE. (a) Before the department may issue a license, other than a renewal license, or certificate to operate under Subchapter E for the operation or the expansion of the capacity of a foster group home or foster family home that is located in a county with a population of less than 300,000 and that provides child care for 24 hours a day at a location other than the actual residence of a child's primary caretaker or of a child care institution, the applicant for the license, certificate, or expansion shall, at the applicant's expense: (1) conduct a public hearing on the application in accordance with department rules after notifying the department of the date, time, and location of the hearing; and (2) publish notice of the application in a newspaper of general circulation in the community in which the child-care services are proposed to be provided. (b) The notice required by Subsection (a)(2) must be published at least 10 days before the date of the public hearing required by Subsection (a)(1) and must include: (1) the name and address of the applicant; (2) the address at which the child-care services are proposed to be provided; (3) the date, time, and location of the public hearing; (4) the name, address, and telephone number of the department as the licensing authority; and (5) a statement informing the public that a person may submit written comments to the department concerning the application instead of or in addition to appearing at the public hearing. (c) The department shall require a representative of the department to attend the public hearing in an official capacity for the purpose of receiving public comments on the application. (d) Before issuing a license or certificate described by Subsection (a), the department shall consider: (1) the amount of local resources available to support children proposed to be served by the applicant; (2) the impact of the proposed child-care services on the ratio in the local school district of students enrolled in a special education program to students enrolled in a regular education program and the effect, if any, on the children proposed to be served by the applicant; and (3) the impact of the proposed child-care services on the community and the effect on opportunities for social interaction for the children proposed to be served by the applicant. (e) The department may deny the application if the department determines that: (1) the community has insufficient resources to support children proposed to be served by the applicant; (2) granting the application would significantly increase the ratio in the local school district of students enrolled in a special education program to students enrolled in a regular education program and the increase would adversely affect the children proposed to be served by the applicant; or (3) granting the application would have a significant adverse impact on the community and would limit opportunities for social interaction for the children proposed to be served by the applicant. (f) A child-placing agency that proposes to verify an agency foster home or agency foster group home that is located in a county with a population of less than 300,000 that provides child care for 24 hours a day at a location other than the actual residence of a child's primary caretaker shall: (1) comply with the notice and hearing requirements imposed by Subsections (a) and (b); and (2) after conducting the required public hearing, provide the department with information relating to the considerations specified in Subsection (d). (g) The department may prohibit the child-placing agency from verifying the proposed agency foster home or agency foster group home on the same grounds that the department may deny an application under Subsection (e). The department may invalidate the verification of an agency foster home or agency foster group home that was not verified using the procedures required by Subsection (f) on or after September 1, 1997. Added by Acts 1997, 75th Leg., ch. 1022, § 31, eff. Sept. 1, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 1.100, eff. Sept. 1, 2005. § 42.047. CONSULTATIONS. (a) The department shall offer consultation to potential applicants, applicants, and license, listing, registration, and certification holders about meeting and maintaining standards for licensing, listing, registration, and certification and achieving programs of excellence in child care. (b) The department shall offer consultation to prospective and actual users of facilities or homes. Acts 1979, 66th Leg., p. 2364, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 6, eff. Sept. 1, 1997. § 42.048. LICENSING. (a) The department shall issue a license after determining that an applicant has satisfied all requirements. (b) When issuing a license, the department may impose restrictions on a facility, including but not limited to the number of children to be served and the type of children to be served. (c) The department may grant a variance of an individual standard set forth in the applicable standards for good and just cause. (d) A license holder must display a license issued under this chapter in a prominent place at the facility. (e) A license issued under this chapter is not transferable and applies only to the operator and facility location stated in the license application. A change in location or ownership automatically revokes a license. (f) A license must be issued if the department determines that a facility meets all requirements. The evaluation shall be based on one or more visits to the facility and a review of required forms and records. A license is valid until revoked or surrendered. Acts 1979, 66th Leg., p. 2364, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1081, § 1, eff. Sept. 1, 1987. Renumbered from V.T.C.A., Human Resources Code § 42.049 and amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997. § 42.049. LIABILITY INSURANCE REQUIRED. (a) A license holder shall maintain liability insurance coverage in the amount of $300,000 for each occurrence of negligence. An insurance policy or contract required under this section must cover injury to a child that occurs while the child is on the premises of the license holder or in the care of the license holder. (b) A license holder shall file with the department a certificate or other evidence from an insurance company showing that the license holder has an unexpired and uncancelled insurance policy or contract that meets the requirements of this section. (c) Should the license holder for financial reasons or for lack of availability of an underwriter willing to issue a policy be unable to secure the insurance required under Subsection (a) or should the policy limits be exhausted, the license holder shall notify the parent or a person standing in parental relationship to each child for whom the license holder provides care a written notice that the liability coverage is not provided and there will not be a ground for suspension or revocation of the license holder's license under this chapter. The license holder shall also notify the department that the coverage is not provided and provide the reason for same. In no case shall the inability to secure coverage serve to indemnify the license holder for damages due to negligence. (d) The insurance policy or contract shall be maintained at all times in an amount as required by this section. Failure by a license holder to renew the policy or contract or to maintain the policy or contract in the required amount is a ground for suspension or revocation of the license holder's license under this chapter. (e) This section does not apply to a group day-care home or a listed or registered family home. Added by Acts 1993, 73rd Leg., ch. 1002, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1217, § 7, eff. Sept. 1, 1997. Renumbered from V.T.C.A., Human Resources § 42.0491 and amended by Acts 1997 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997. § 42.050. LICENSE RENEWAL. (a) A license holder may apply for a new license in compliance with the requirements of this chapter and the rules promulgated by the department . (b) The application for a new license must be completed and decided on by the department before the expiration of the license under which a facility is operating. (c) The department shall evaluate the application for a new license to determine if all licensing requirements are met. The evaluation may include a specified number of visits to the facility and must include a review of all required forms and records. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997. § 42.0505. RENEWAL OF LICENSE. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required annual fee to the department before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed under the provisions of this section. (b) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the department 1-1/2 times the required annual fee. (c) If the person's license has been expired for longer than 90 days but less than one year, the person may renew the license by paying to the department two times the required annual fee. (d) If the person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license. (e) At least 30 days before the expiration of a person's license, the department shall send written notice of the impending license expiration to the person at the license holder's last known address according to the records of the department. Added by Acts 1997, 75th Leg., ch. 1022, § 26, eff. Sept. 1, 1997. § 42.051. INITIAL LICENSE. (a) The department shall issue an initial license when a facility's plans meet the department's licensing requirements and one of the following situations exists: (1) the facility is not currently operating; (2) the facility has relocated and has made changes in the type of child-care service it provides; or (3) there is a change in ownership of the facility resulting in changes in policy and procedure or in the staff who have direct contact with the children. (b) An initial license is valid for six months from the date it is issued and may be renewed for an additional six months. Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 707, § 2, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.101, eff. Sept. 1, 2005. § 42.052. CERTIFICATION, LISTING, AND REGISTRATION. (a) A state-operated child-care facility or child-placing agency must receive certification of approval from the department. The certification of approval remains valid until revoked or surrendered. (b) To be certified, a facility must comply with the department's rules and standards and any provisions of this chapter that apply to a licensed facility of the same category. The operator of a certified facility must display the certification in a prominent place at the facility. (c) A family home that provides care for compensation for three or fewer children, excluding children who are related to the caretaker, shall list with the department if the home provides regular care in the caretaker's own residence. The home may register with the department. (d) A family home that provides care for four or more children, excluding children who are related to the caretaker, shall register with the department. A family home that provides care exclusively for any number of children who are related to the caretaker is not required to be listed or registered with the department. (e) A registration or listing remains valid until revoked or surrendered. The operator of a registered home must display the registration in a prominent place at the home. (f) To remain listed or registered with the department, a family home must comply with the department's rules and standards, if applicable, and any provision of this chapter that applies to a listed or registered family home. (g) The certification requirements of this section do not apply to a Texas Youth Commission facility, a Texas Juvenile Probation Commission facility, or a facility providing services solely for the Texas Youth Commission. (h) The certification requirements of this section do not apply to a juvenile detention facility certified under Section 51.12, Family Code, or Section 141.042(d). (i) The department shall provide to a listed family home a copy of the listing. A listing must contain a provision that states: "THIS HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS NOT BEEN INSPECTED AND WILL NOT BE INSPECTED." The operator of a listed home is not required to display the listing in a prominent place at the home but shall make the listing available for examination. The department by rule shall provide for a sufficient period to allow operators of family homes to comply with the listing requirement of this section. (j) The operator of a listed family home shall undergo initial and subsequent background and criminal history checks required under Section 42.056. (k) The department shall issue a listing or registration to a family home, as appropriate, in both English and Spanish when the most recent federal census shows that more than one-half of the population in a municipality or in a commissioners precinct in a county in which the family home is located is of Hispanic origin or Spanish-speaking. Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 2813, ch. 759, § 4, eff. Aug. 31, 1981; Acts 1985, 69th Leg., ch. 212, § 2, eff. Sept. 1, 1985; Acts 1985, 69th Leg., ch. 915, § 1, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 1052, § 4.06, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 707, § 3, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, § 8.023, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 262, § 55, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1022, § 32, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 8, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, § 6 to 8, eff. Sept. 1, 2001. § 42.0521. DEPOSIT OF FEES. The fees authorized by this chapter and received by the department shall be deposited in the general revenue fund. Added by Acts 1985, 69th Leg., ch. 239, § 5, eff. Sept. 1, 1985. § 42.0522. PUBLIC ADVERTISING OF FAMILY HOMES. (a) A family home may not place a public advertisement that uses the title "registered family home" or any variation of that phrase unless the home is registered under this chapter. Any public advertisement for a registered family home that uses the title "registered family home" must contain a provision in bold type stating: "THIS HOME IS REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT LICENSED OR REGULARLY INSPECTED." (b) A family home may not place a public advertisement that uses the title "listed family home" or any variation of that phrase unless the home is listed as provided by this chapter. Any public advertisement for a listed family home that uses the title "listed family home" must contain a provision in bold type stating: "THIS HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS NOT BEEN INSPECTED AND WILL NOT BE INSPECTED." Added by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 9, eff. Sept. 1, 1997. § 42.053. AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP HOMES. (a) An agency foster home or agency foster group home is considered part of the child-placing agency that operates the agency foster home or agency foster group home for purposes of licensing. (b) The operator of a licensed agency shall display a copy of the license in a prominent place in the agency foster home or agency foster group home used by the agency. (c) An agency foster home or agency foster group home shall comply with all provisions of this chapter and all department rules and standards that apply to a child-care facility caring for a similar number of children for a similar number of hours each day. (d) The department shall revoke or suspend the license of a child-placing agency if an agency foster home or agency foster group home operated by the licensed agency fails to comply with Subsection (c) of this section. Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.07, eff. Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997. § 42.0535. REQUIRED INFORMATION FOR VERIFICATION. (a) A child-placing agency that seeks to verify an agency home or an agency group home shall request background information about the agency home or group home from a child-placing agency that has previously verified that agency home or agency group home. (b) Notwithstanding Section 261.201, Family Code, a child-placing agency that has verified an agency home or an agency group home is required to release to another child-placing agency background information requested under Subsection (a). (c) A child-placing agency that releases background information under this section is immune from civil and criminal liability for the release of the information. (d) For purposes of this section, background information means the home study under which the agency home or agency group home was verified by the previous child-placing agency and any record of noncompliance with state minimum standards received and the resolution of any such noncompliance by the previous child-placing agency. Added by Acts 1997, 75th Leg., ch. 575, § 36(a), eff. Sept. 1, 1997. § 42.054. FEES. (a) The department shall charge an applicant a nonrefundable application fee of $35 for an initial license to operate a child-care facility or a child-placing agency. (b) The department shall charge each child-care facility a fee of $35 for an initial license. The department shall charge each child-placing agency a fee of $50 for an initial license. (c) The department shall charge each licensed child-care facility an annual license fee in the amount of $35 plus $1 for each child the child-care facility is permitted to serve. The fee is due on the date on which the department issues the child-care facility's initial license and on the anniversary of that date. (d) The department shall charge each licensed child-placing agency an annual license fee of $100. The fee is due on the date on which the department issues the child-placing agency's initial license and on the anniversary of that date. (e) The department shall charge each family home that is listed or registered with the department an annual fee to cover a part of the department's cost in regulating family homes. The amount of the fee is $20 for a listed home or $35 for a registered home. The fee is due on the date on which the department initially lists or registers the home and on the anniversary of that date. (f) If a facility, agency, or home fails to pay the annual fee when due, the license, listing, or registration, as appropriate, is suspended until the fee is paid. (g) The provisions of Subsections (b) through (f) of this section do not apply to: (1) licensed foster homes and licensed foster group homes; (2) nonprofit facilities regulated under this chapter that provided 24-hour care for children in the managing conservatorship of the department during the 12-month period immediately preceding the anniversary date of the facility's license; or (3) facilities operated by a nonprofit corporation or foundation that provides 24-hour residential care and does not charge for the care provided. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 10, 11, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.102, eff. Sept. 1, 2005. § 42.055. SIGN POSTING. (a) Each child-care facility shall post in a location that is conspicuous to all employees and customers a sign that includes: (1) a description of the provisions of the Family Code relating to the duty to report child abuse or neglect; (2) a description of the penalties for violating the reporting provisions of the Family Code; and (3) a brief description of sudden infant death syndrome, shaken-baby syndrome, and childhood diabetes and methods for preventing those phenomena. (b) The department by rule shall determine the design, size, and wording of the sign. (c) The department shall provide the sign to each child-care facility without charge. (d) A person who operates a child-care facility commits an offense if the department provides a sign to the facility as provided by this section and the person intentionally fails to display the sign in the facility as prescribed by this section. An offense under this subsection is a Class C misdemeanor. Added by Acts 1989, 71st Leg., 1st C.S., ch. 20, § 1, eff. Nov. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 7.47, eff. Sept. 1, 1997. Renumbered from V.T.C.A., Human Resources Code § 42.056 and amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 221, § 1, eff. Sept. 1, 2001. § 42.0551. POSTING OF EMPLOYEE LIST. (a) Each day-care center, group day-care home, and family home shall post a list of all current employees at the center or home in accordance with rules adopted by the executive commissioner. (b) The executive commissioner shall adopt rules regarding the size, wording, and placement of the list required under this section. Added by Acts 2005, 79th Leg., ch. 308, § 1, eff. Sept. 1, 2005. § 42.056. REQUIRED BACKGROUND AND CRIMINAL HISTORY CHECKS. (a) In accordance with rules adopted by the department, the director, owner, or operator of a child-care facility or family home shall, when applying to operate a child-care facility or when listing or registering a family home and at least once during each 24 months after receiving a license, listing, registration, or certification of approval, submit to the department for use in conducting background and criminal history checks: (1) the name of the director, owner, and operator of the facility or home, and the name of each person employed at the facility or home; and (2) the name of each person 14 years of age or older who will regularly or frequently be staying or working at the facility or home while children are being provided care. (a-1) In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a residential child-care facility shall submit to the department for use in conducting background and criminal history checks the name of each prospective employee who will provide direct care or have direct access to a child in the residential child-care facility. (b) The department shall conduct background and criminal history checks using: (1) the information provided under Subsections (a) and (a-1); (2) the information made available by the Department of Public Safety under Section 411.114, Government Code, or by the Federal Bureau of Investigation or other criminal justice agency under Section 411.087, Government Code; and (3) the department's records of reported abuse and neglect. (c) The department by rule shall require a child-care facility or registered family home to pay to the department a fee in an amount not to exceed the administrative costs the department incurs in conducting a background and criminal history check under this section. (d) A person described by Subsection (a) or (a-1) may not provide direct care or have direct access to a child in a residential child-care facility before completion of the person's background check and criminal history check. (e) If the residential child-care facility does not receive the results of the background or criminal history check within two working days, the facility may obtain that information for the facility's employee, subcontractor, or volunteer directly from the Department of Public Safety. If the information obtained verifies that the person does not have a criminal record, the facility may allow the person to have unsupervised client contact until the department has performed the department's own criminal history check and notified the facility. (f) As part of a background check under this section, the department shall provide any relevant information available in the department's records regarding a person's previous employment in a residential child-care facility to the person submitting the request. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.103(a), eff. Sept. 1, 2005. § 42.057. DRUG TESTING. (a) Each residential child-care facility shall establish a drug testing policy for employees. A residential child-care facility may adopt the model employee drug testing policy adopted by the executive commissioner under Subsection (b) or may use another employee drug testing policy approved by the executive commissioner. (b) The executive commissioner by rule shall adopt a model employee drug testing policy for use by a residential child-care facility. The policy must be designed to ensure the safety of resident children through appropriate drug testing of employees while protecting the rights of employees. The model policy must require: (1) preemployment drug testing; (2) random, unannounced drug testing of each employee who has direct contact with a child in the care of the facility; (3) drug testing of an employee against whom there is an allegation of drug abuse; and (4) drug testing of an employee whom the department is investigating for the abuse or neglect of a child in the care of the facility, if the allegation of abuse or neglect includes information that provides good cause to suspect drug abuse. (c) The department shall require a drug test of a person who directly cares for or has access to a child in a residential child-care facility within 24 hours after the department receives notice of an allegation that the person has abused drugs. (d) An employee may not provide direct care or have direct access to a child in a residential child-care facility before completion of the employee's initial drug test. (e) A residential child-care facility shall pay any fee or cost associated with performing the drug test for an employee. Added by Acts 2005, 79th Leg., ch. 268, § 1.104(a), eff. Sept. 1, 2005. § 42.058. COMPETITIVE BIDDING OR ADVERTISING RULES. (a) The board may not adopt rules restricting competitive bidding or advertising by a license holder or registration holder except to prohibit false, misleading, or deceptive practices or to prevent a violation of this chapter. (b) In its rules to prohibit false, misleading, or deceptive practices, the board may not include a rule that: (1) restricts the use of any medium for advertising; (2) restricts the use of a license holder's or registration holder's personal appearance or voice in an advertisement; (3) relates to the size or duration of an advertisement by the license holder or registration holder; or (4) restricts the license holder's or registration holder's advertisement under a trade name. Added by Acts 1997, 75th Leg., ch. 1022, § 33, eff. Sept. 1, 1997. § 42.059. REQUIRED AFFIDAVIT FOR APPLICANTS FOR EMPLOYMENT WITH FACILITY OR REGISTERED FAMILY HOME. (a) An applicant for temporary or permanent employment with a licensed facility or registered family home whose employment or potential employment with the facility or home involves direct interactions with or the opportunity to interact and associate with children must execute and submit the following affidavit with the application for employment: STATE OF _____________ COUNTY OF ____________ I swear or affirm under penalty of perjury that I do not now and I have not at any time, either as an adult or as a juvenile: 1. Been convicted of; 2. Pleaded guilty to (whether or not resulting in a conviction); 3. Pleaded nolo contendere or no contest to; 4. Admitted; 5. Had any judgment or order rendered against me (whether by default or otherwise); 6. Entered into any settlement of an action or claim of; 7. Had any license, certification, employment, or volunteer position suspended, revoked, terminated, or adversely affected because of; 8. Resigned under threat of termination of employment or volunteerism for; 9. Had a report of child abuse or neglect made and substantiated against me for; or 10. Have any pending criminal charges against me in this or any other jurisdiction for; Any conduct, matter, or thing (irrespective of formal name thereof) constituting or involving (whether under criminal or civil law of any jurisdiction): 1. Any felony; 2. Rape or other sexual assault; 3. Physical, sexual, emotional abuse and/or neglect of a minor; 4. Incest; 5. Exploitation, including sexual, of a minor; 6. Sexual misconduct with a minor; 7. Molestation of a child; 8. Lewdness or indecent exposure; 9. Lewd and lascivious behavior; 10. Obscene or pornographic literature, photographs, or videos; 11. Assault, battery, or any violent offense involving a minor; 12. Endangerment of a child; 13. Any misdemeanor or other offense classification involving a minor or to which a minor was a witness; 14. Unfitness as a parent or custodian; 15. Removing children from a state or concealing children in violation of a court order; 16. Restrictions or limitations on contact or visitation with children or minors resulting from a court order protecting a child or minor from abuse, neglect, or exploitation; or 17. Any type of child abduction. Except the following (list all incidents, location, description, and date) (if none, write NONE) Signed ________________________ Date _______________. Subscribed and sworn to (or affirmed) before me this ________ day of ________________,____________. Signature of notarial officer ____________________________________. (seal, if any, of notarial officer) My commission expires: ____________ (b) The failure or refusal of the applicant to sign or provide the affidavit constitutes good cause for refusal to hire the applicant. Added by Acts 1997, 75th Leg., ch. 1022, § 33, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1129, § 3, eff. Sept. 1, 1999. § 42.060. CARBON MONOXIDE DETECTORS. (a) In this section, "carbon monoxide detector" means a device that detects and sounds an alarm to indicate the presence of a harmful level of carbon monoxide gas. (b) Except as provided by Subsection (d), each day-care center, group day-care home, and family home must be equipped with carbon monoxide detectors in accordance with department rules. (c) The department by rule shall prescribe requirements regarding the placement, installation, and number of carbon monoxide detectors and maintenance procedures for those detectors. (d) A day-care center is exempt from the carbon monoxide detector requirements prescribed by this section if the day-care center is located in a school facility that is subject to the school facility standards adopted by the commissioner of education under Section 46.008, Education Code, or similar safety standards adopted by the board of a local school district. Added by Acts 2003, 78th Leg., ch. 127, § 1, eff. Sept. 1, 2003. § 42.062. CERTAIN EMPLOYMENT PROHIBITED. A residential child-care facility may not employ in any capacity a person who is not eligible to receive a license or certification for the operation of a residential child-care facility under Section 42.072(g) or who has been denied a license under Section 42.046. Added by Acts 2005, 79th Leg., ch. 268, § 1.105, eff. Sept. 1, 2005. § 42.063. REPORTING OF INCIDENTS AND VIOLATIONS. (a) In this section, "serious incident" means a suspected or actual incident that threatens or impairs the basic health, safety, or well-being of a child. The term includes: (1) the arrest, abuse, neglect, exploitation, running away, attempted suicide, or death of a child; (2) a critical injury of a child; and (3) an illness of a child that requires hospitalization. (b) A person licensed under this chapter shall report to the department each serious incident involving a child who receives services from the person, regardless of whether the department is the managing conservator of the child. (c) An employee of a person described by Subsection (b) shall report suspected abuse or neglect directly to the statewide intake system. (d) An employee or volunteer of a child-care institution, child-placing agency, foster home, or foster group home shall report any serious incident directly to the department if the incident involves a child under the care of the institution, agency, or home. (e) A foster parent shall report any serious incident directly to the department if the incident involves a child under the care of the parent. (f) The executive commissioner by rule shall prescribe: (1) procedures governing reporting required under this section; and (2) the manner in which a report under this section must be provided. (g) The department shall implement this section using existing appropriations. Added by Acts 2005, 79th Leg., ch. 268, § 1.106, eff. Sept. 1, 2005.
SUBCHAPTER D. REMEDIES
§ 42.0705. RANGE OF PENALTIES. The department shall revoke, suspend, or refuse to renew a license or registration, place on probation a person whose license or registration has been suspended, or reprimand a license holder or registration holder for a violation of this chapter or a rule of the board. If a license or registration suspension is probated, the department may require the license holder or registration holder to: (1) report regularly to the department on matters that are the basis of the probation; (2) limit services to the areas prescribed by the department; (3) continue or review professional education until the license holder or registration holder attains a degree of skill satisfactory to the department in those areas that are the basis of the probation; or (4) take corrective action relating to the violation on which the probation is based. Added by Acts 1997, 75th Leg., ch. 1022, § 34, eff. Sept. 1, 1997. § 42.071. SUSPENSION, EVALUATION, OR PROBATION OF LICENSE OR REGISTRATION. (a) The department may suspend the license of a facility or the registration of a family home that has temporarily ceased operation but has definite plans for starting operations again within the time limits of the issued license or registration. (b) The department may suspend a facility's license or a family home's registration for a definite period rather than deny or revoke the license or registration if the department finds repeated noncompliance with standards that do not endanger the health and safety of children. To qualify for license or registration suspension under this subsection, a facility or family home must suspend its operations and show that standards can be met within the suspension period. (c) If the department finds a facility or family home is in repeated noncompliance with standards that do not endanger the health and safety of children, the department may schedule the facility or family home for evaluation or probation rather than suspend or revoke the facility's license or the family home's registration. The department shall provide notice to the facility or family home of the evaluation or probation and of the items of noncompliance not later than the 10th day before the evaluation or probation period begins. The department shall designate a period of not less than 30 days during which the facility or family home will remain under evaluation. During the evaluation or probation period, the facility or family home must correct the items that were in noncompliance and report the corrections to the department for approval. (d) The department shall revoke the license of a facility or the registration of a family home that does not comply with standards at the end of a license or registration suspension. (e) The department may suspend or revoke the license of a facility or the registration of a family home that does not correct items that were in noncompliance or that does not comply with required standards within the applicable evaluation or probation period. Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1983, 68th Leg., p. 111, ch. 23, § 1, eff. Aug. 29, 1983; Acts 1987, 70th Leg., ch. 1081, § 2, eff. Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1022, § 35, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997. § 42.0715. COSTS CHARGED TO FACILITY OR FAMILY HOME. The department may charge a facility or family home for reimbursement of the reasonable cost of services provided by the department in formulating, monitoring, and implementing a corrective action plan for the facility or family home. Added by Acts 1997, 75th Leg., ch. 1022, § 36, eff. Sept. 1, 1997. § 42.072. LICENSE, LISTING, OR REGISTRATION DENIAL, SUSPENSION, OR REVOCATION. (a) The department may suspend, deny, revoke, or refuse to renew the license, listing, registration, or certification of approval of a facility or family home that does not comply with the requirements of this chapter, the standards and rules of the department, or the specific terms of the license, listing, registration, or certification. The department may revoke the probation of a person whose license, listing, or registration is suspended if the person violates a term of the conditions of probation. (b) If the department proposes to take an action under Subsection (a), the person is entitled to a hearing conducted by the State Office of Administrative Hearings. Proceedings for a disciplinary action are governed by the administrative procedure law, Chapter 2001, Government Code. An action under this section, including a revocation of a person's license, is a contested case as defined by Chapter 2001, Government Code, and is subject to judicial review under the substantial evidence rule in accordance with that chapter. Rules of practice adopted by the board under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (c) The department may not issue a license, listing, registration, or certification to a person whose license, listing, registration, or certification is revoked or whose application for a license, listing, registration, or certification is denied for a substantive reason under this chapter before: (1) the fifth anniversary of the date on which the revocation takes effect by department or court order or the decision to deny the application is final, if the facility is a residential child-care facility; or (2) the second anniversary of the date on which the revocation takes effect by department or court order or the decision to deny the application is final, if the facility is not a residential child-care facility. (d) The department by rule may provide for denial of an application or renewal for a licensed facility or for listing or registering a family home or may revoke a facility's license or a family home's listing or registration based on findings of background or criminal history as a result of a background or criminal history check. (e) A person may continue to operate a facility or family home during an appeal of a license, listing, or registration denial or revocation unless the revocation or denial is based on a violation which poses a risk to the health or safety of children. The department shall by rule establish the violations which pose a risk to the health or safety of children. The department shall notify the facility or family home of the violation which poses a risk to health or safety and that the facility or family home may not operate. A person who has been notified by the department that the facility or home may not operate under this section may seek injunctive relief from a district court in Travis County or in the county in which the facility or home is located to allow operation during the pendency of an appeal. The court may grant injunctive relief against the agency's action only if the court finds that the child-care operation does not pose a health or safety risk to children. A court granting injunctive relief under this subsection shall have no other jurisdiction over an appeal of final agency action unless conferred by Chapter 2001, Government Code. (f) The department shall deny an application or renewal for listing or registering a family home or shall revoke a family home's listing or registration if the results of a background or criminal history check conducted by the department under Section 42.056 show that a person has been convicted of an offense under Title 5, or 6, Penal Code, or Chapter 43, Penal Code. (g) Notwithstanding Subsection (c), the department may refuse to issue a license, listing, registration, or certification to: (1) a person whose license or certification for a residential child-care facility was revoked by the department or by court order; (2) a person who was a controlling person of a residential child-care facility at the time conduct occurred that resulted in the revocation of the license or certification of the facility; (3) a person who voluntarily closed a residential child-care facility or relinquished the person's license or certification after: (A) the department took an action under Subsection (a) in relation to the facility or person; or (B) the person received notice that the department intended to take an action under Subsection (a) in relation to the facility or person; or (4) a person who was a controlling person of a residential child-care facility at the time conduct occurred that resulted in the closure of the facility or relinquishment of the license or certification in the manner described by Subdivision (3). Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1983, 68th Leg., p. 111, ch. 23, § 2, eff. Aug. 29, 1983; Acts 1993, 73rd Leg., ch. 977, § 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, § 37, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 13, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, § 11, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 268, § 1.107, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 526, § 3, eff. Sept. 1, 2005. § 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY OR FAMILY HOME. (a) The department shall suspend a facility's license or a family home's listing or registration and order the immediate closing of the facility or family home if: (1) the department finds the facility or family home is operating in violation of the applicable standards prescribed by this chapter; and (2) the violation creates an immediate threat to the health and safety of the children attending or residing in the facility or family home. (b) An order suspending a license, listing, or registration and an order closing a facility or family home under this section is immediately effective on the date on which the holder of the license, listing, or registration receives written notice or on a later date specified in the order. (c) An order is valid for 10 days after the effective date of the order, except that an order relating to a residential child-care facility is valid for 30 days after the effective date of the order. Acts 1979, 66th Leg., p. 2366, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1993, 73rd Leg., ch. 977, § 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, § 38, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 14, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.108, eff. Sept. 1, 2005. § 42.074. INJUNCTIVE RELIEF. (a) When it appears that a person has violated, is violating, or is threatening to violate the licensing, certification, listing, or registration requirements of this chapter or the department's licensing, certification, listing, or registration rules and standards, the department may file a suit in a district court in Travis County or in the county where the facility or family home is located for assessment and recovery of civil penalties under Section 42.075, for injunctive relief, including a temporary restraining order, or for both injunctive relief and civil penalties. (b) The district court shall grant the injunctive relief the facts may warrant. (c) At the department's request, the attorney general or the county or district attorney of the county in which the facility or family home is located shall conduct a suit in the name of the State of Texas for injunctive relief, to recover the civil penalty, or for both injunctive relief and civil penalties as authorized by Subsection (a). (d) Injunctive relief provided by this section is in addition to any other action, proceeding, or remedy authorized by law. It is not necessary to allege or prove in an action filed under this section that an adequate remedy at law does not exist or that substantial or irreparable harm would result from the continued violation. (e) The department is not required to give an appeal bond in an action arising under this section. Acts 1979, 66th Leg., p. 2367, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.09, eff. Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1022, § 39, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 15, eff. Sept. 1, 1997. § 42.075. CIVIL PENALTY. (a) A person is subject to a civil penalty of not less than $50 nor more than $100 for each day of violation and for each act of violation if the person: (1) threatens serious harm to a child in a facility or family home by violating a provision of this chapter or a department rule or standard; (2) violates a provision of this chapter or a department rule or standard three or more times within a 12-month period; or (3) places a public advertisement for an unlicensed facility or an unlisted or unregistered family home. (b) The civil penalty authorized by this section is cumulative and in addition to the criminal penalties and injunctive relief provided by this chapter. Acts 1979, 66th Leg., p. 2367, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 1022, § 40, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 16, eff. Sept. 1, 1997. § 42.076. CRIMINAL PENALTIES. (a) A person who operates a child-care facility or child-placing agency without a license commits a Class B misdemeanor. (b) A person who operates a family home without a required listing or registration commits a Class B misdemeanor. (c) A person who places a public advertisement for an unlicensed facility or an unlisted or unregistered family home commits a Class C misdemeanor. (d) It is not an offense under this section if a professional provides legal or medical services to: (1) a parent who identifies the prospective adoptive parent and places the child for adoption without the assistance of the professional; or (2) a prospective adoptive parent who identifies a parent and receives placement of a child for adoption without assistance of the professional. Acts 1979, 66th Leg., p. 2367, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 915, § 2, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 411, § 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 664, § 5, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, § 41, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 17, eff. Sept. 1, 1997. § 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY HOME. (a) If the department revokes or suspends a facility's license or a family home's listing or registration, the department shall publish notice of this action in a newspaper of general circulation in the county in which the facility or family home is located. The newspaper shall place the notice in the section in which advertisements for day-care services are normally published. (b) If a person who operates a facility or family home that has had its license, listing, or registration revoked or suspended later applies for a new license, listing, or registration to operate the same facility or family home, the department shall charge the person an application fee in an amount necessary to reimburse the department for the cost of the notice relating to that facility or family home. (c) The department shall pay for publication of the notice from funds appropriated to the department for licensing and regulating child-care facilities and for listing, registering, and regulating family homes and from appeal and application fees collected under Subsection (b) and appropriated to the department. (d) A facility or family home that has its license, listing, or registration revoked or suspended shall mail notification of this action by certified mail to the parents or guardian of the child served by the facility or family home. The facility or family home shall mail the notification within five days of the effective date of the revocation or suspension of the license, listing, or registration. (d-1) If the department determines that the license of a residential child-care facility should be revoked or suspended, the facility shall mail notification of the action or proposed action by certified mail to a parent of each child served by the facility, if the person's parental rights have not been terminated, and to the child's managing conservator, as appropriate. The residential child-care facility shall mail the notification not later than the fifth day after the date the facility is notified of the department's determination that revocation or suspension of the license is appropriate. (e) When the most recent federal census shows that more than one-half of the population in a municipality or in a commissioners precinct in a county in which a family home whose listing or registration has been revoked or suspended is located is of Hispanic origin or Spanish-speaking, the department shall publish the notice under Subsection (a) in both English and Spanish. Amended by Acts 1997, 75th Leg., ch. 1022, § 42, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, § 18, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 1.109, eff. Sept. 1, 2005. § 42.078. ADMINISTRATIVE PENALTY. (a) The department may impose an administrative penalty against a facility or family home licensed or registered under this chapter that violates this chapter or a rule or order adopted under this chapter. In addition, the department may impose an administrative penalty against a residential child-care facility or a controlling person of a residential child-care facility if the facility or controlling person: (1) violates a term of a license or registration issued under this chapter; (2) makes a statement about a material fact that the facility or person knows or should know is false: (A) on an application for the issuance or renewal of a license or registration or an attachment to the application; or (B) in response to a matter under investigation; (3) refuses to allow a representative of the department to inspect: (A) a book, record, or file required to be maintained by the facility; or (B) any part of the premises of the facility; (4) purposefully interferes with the work of a representative of the department or the enforcement of this chapter; or (5) fails to pay a penalty assessed under this chapter on or before the date the penalty is due, as determined under this section. (a-1) Nonmonetary, administrative penalties or remedies, including but not limited to corrective action plans, probation, and evaluation periods, shall be imposed when appropriate before monetary penalties. (b) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The penalty for a violation may be in an amount not to exceed the following limits, based on the maximum number of children for whom the facility or family home was authorized to provide care or the number of children under the care of the child-placing agency when the violation occurred: (1) for violations that occur in a facility other than a residential child-care facility:Number of children Maximum amount of penalty 20 or less $ 50 21-40 $ 60 41-60 $ 70 61-80 $ 80 81-100 $100 More than 100 $150 (2) for violations that occur in a residential child-care facility: Number of children Maximum amount of penalty 20 or less $100 21-40 $150 41-60 $200 61-80 $250 81-100 $375 More than 100 $500 (c) In addition to the number of children, the amount of the penalty shall be based on: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (2) the economic harm to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter future violations; (5) efforts to correct the violation; and (6) any other matter that justice may require. (d) Monetary penalties shall not be assessed for violations that are the result of clerical errors. (e) If the department determines that a violation has occurred, the department may issue a recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty. (f) Within 14 days after the date the recommendation is issued, the department shall give written notice of the recommendation to the person owning or operating the facility or family home or to the controlling person, if applicable. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (g) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the department or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (h) If the person accepts the determination and recommended penalty of the department or fails to respond to the notice in a timely manner, the department shall issue an order and impose the recommended penalty. (i) If the person requests a hearing, the department shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and issue a final decision finding that a violation has occurred and imposing a penalty or finding that no violation occurred. (j) The notice of the administrative law judge's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (k) Within 30 days after the date the administrative law judge's order becomes final as provided by Section 2001.144, Government Code, the person shall: (1) pay the amount of the penalty; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or (3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (l) Within the 30-day period, a person who acts under Subsection (k)(3) may: (1) stay enforcement of the penalty by: (A) paying the amount of the penalty to the court for placement in an escrow account; or (B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the department by certified mail. (m) On receipt of a copy of an affidavit under Subsection (l)(2), the department may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (n) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty. (o) Judicial review of the order: (1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and (2) is under the substantial evidence rule. (p) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed. (q) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount. (r) A penalty collected under this section shall be sent to the comptroller for deposit in the general revenue fund. (s) All proceedings under this section are subject to Chapter 2001, Government Code. Added by Acts 1997, 75th Leg., ch. 1022, § 43, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1129, § 4, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 268, § 1.110(a), eff. Sept. 1, 2005.

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