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2005 Texas Human Resources Code CHAPTER 161. DEPARTMENT OF AGING AND DISABILITY SERVICES
HUMAN RESOURCES CODE TITLE 11. AGING, COMMUNITY-BASED, AND LONG-TERM CARE SERVICES CHAPTER 161. DEPARTMENT OF AGING AND DISABILITY SERVICES SUBCHAPTER A. GENERAL PROVISIONS § 161.001. DEFINITIONS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. In this chapter: (1) "Commission" means the Health and Human Services Commission. (2) "Commissioner" means the commissioner of aging and disability services. (3) "Council" means the Aging and Disability Services Council. (4) "Department" means the Department of Aging and Disability Services. (5) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.002. AGENCY. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The department is an agency of the state. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.003. SUNSET PROVISION. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The department is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished and this chapter expires September 1, 2009. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A.SUBCHAPTER B. ADMINISTRATIVE PROVISIONS § 161.021. AGING AND DISABILITY SERVICES COUNCIL. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The Aging and Disability Services Council is created to assist the commissioner in developing rules and policies for the department. (b) The council is composed of nine members of the public appointed by the governor with the advice and consent of the senate. To be eligible for appointment to the council, a person must have demonstrated an interest in and knowledge of issues and available services related to the aging and persons with developmental disabilities or mental retardation. (c) The council shall study and make recommendations to the executive commissioner and the commissioner regarding the management and operation of the department, including policies and rules governing the delivery of services to persons who are served by the department and the rights and duties of persons who are served or regulated by the department. (d) Chapter 551, Government Code, applies to the council. (e) Chapter 2110, Government Code, does not apply to the council. (f) A majority of the members of the council constitute a quorum for the transaction of business. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.022. APPOINTMENTS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees. (b) Appointments to the council shall be made so that each geographic area of the state is represented on the council. Notwithstanding Subsection (a), appointments to the council must reflect the ethnic diversity of this state. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.023. TRAINING PROGRAM FOR COUNCIL MEMBERS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) A person who is appointed as a member of the council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) the legislation that created the department and the council; (2) the programs operated by the department; (3) the role and functions of the department and the council, including detailed information regarding: (A) the division of authority and of responsibility between the commissioner and the executive commissioner; and (B) the advisory responsibilities of the council; (4) the rules of the executive commissioner applicable to the department, with an emphasis on the rules that relate to disciplinary and investigatory authority; (5) the current budget for the department; (6) the results of the most recent formal audit of the department; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the public information law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; and (D) other laws relating to public officials, including conflict-of-interest laws; and (8) any applicable ethics policies adopted by the executive commissioner or the Texas Ethics Commission. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.024. TERMS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) Council members serve for staggered six-year terms with the terms of three members expiring February 1 of each odd-numbered year. (b) A member of the council may not serve more than two consecutive full terms as a council member. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.025. VACANCY. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The governor by appointment shall fill the unexpired term of a vacancy on the council. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.026. PRESIDING OFFICER; OTHER OFFICERS; MEETINGS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The governor shall designate a member of the council as the presiding officer to serve in that capacity at the pleasure of the governor. (b) The members of the council shall elect any other necessary officers. (c) The council shall meet quarterly and at other times at the call of the presiding officer. The council may hold meetings in different areas of the state. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.027. REIMBURSEMENT FOR EXPENSES. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. A council member may not receive compensation for service as a member of the council but is entitled to reimbursement for travel expenses incurred by the member while conducting the business of the council as provided by the General Appropriations Act. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.028. PUBLIC INTEREST INFORMATION AND COMPLAINTS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The commissioner, with the advice of the council, shall prepare information of public interest describing the functions of the department and the procedures by which complaints are filed with and resolved by the department. The commission shall make the information available to the public and appropriate state governmental entities. (b) The executive commissioner by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for directing complaints to the department. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.029. PUBLIC ACCESS AND TESTIMONY. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The commissioner shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commissioner and to speak on any issue under the jurisdiction of the department. (b) The commissioner shall grant an opportunity for a public hearing before the council makes recommendations to the commissioner regarding a substantive rule if a public hearing is requested by: (1) at least 25 persons; (2) a governmental entity; or (3) an association with at least 25 members. (c) The executive commissioner shall consider fully all written and oral submissions about a proposed rule. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.030. POLICYMAKING AND MANAGEMENT RESPONSIBILITIES. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The executive commissioner, with the advice of the council and subject to the approval of the executive commissioner, shall develop and the department shall implement policies that clearly delineate the policymaking responsibilities of the executive commissioner from the management responsibilities of the commission, the commissioner, and the staff of the department. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.031. ANNUAL REPORT. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The commissioner shall file annually with the governor, the presiding officer of each house of the legislature, and the executive commissioner a complete and detailed written report accounting for all funds received and disbursed by the department during the preceding fiscal year. (b) The annual report must be in the form and be reported in the time provided by the General Appropriations Act. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.032. OFFICES. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The department shall maintain its central office in Austin. The department may maintain offices in other areas of the state as necessary. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A.SUBCHAPTER C. PERSONNEL § 161.051. COMMISSIONER. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The executive commissioner shall appoint a commissioner of the department with the approval of the governor. The commissioner is to be selected according to education, training, experience, and demonstrated ability. (b) The commissioner serves at the pleasure of the executive commissioner. (c) Subject to the control of the executive commissioner, the commissioner shall act as the department's chief administrative officer and as a liaison between the department and commission. (d) The commissioner shall administer this chapter under operational policies established by the executive commissioner and in accordance with the memorandum of understanding under Section 531.0055(k), Government Code, between the commissioner and the executive commissioner, as adopted by rule. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.052. PERSONNEL. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The department may employ, compensate, and prescribe the duties of personnel necessary and suitable to administer this chapter. (b) The executive commissioner shall prepare and by rule adopt personnel standards. (c) A personnel position may be filled only by an individual selected and appointed on a nonpartisan merit basis. (d) The commissioner, with the advice of the council, shall develop and the department shall implement policies that clearly define the responsibilities of the staff of the department. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.053. INFORMATION ABOUT QUALIFICATIONS AND STANDARDS OF CONDUCT. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The commissioner or the commissioner's designee shall provide to department employees, as often as necessary, information regarding the requirements for employment under this chapter or rules adopted by the executive commissioner, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state employees. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.054. MERIT PAY. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. Subject to rules adopted by the executive commissioner, the commissioner or the commissioner's designee shall develop a system of annual performance evaluations. All merit pay for department employees must be given under the system established under this section or under rules adopted by the executive commissioner. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.055. CAREER LADDER. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The commissioner or the commissioner's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry-level positions concurrently with any public posting. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.056. EQUAL EMPLOYMENT OPPORTUNITY POLICY. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) Subject to rules adopted by the executive commissioner, the commissioner or the commissioner's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. (b) Unless the following are included in a policy statement adopted by the executive commissioner that is applicable to the department, the policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the department to avoid the unlawful employment practices described by Chapter 21, Labor Code; and (2) an analysis of the extent to which the composition of the department's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law. (c) The policy statement must be: (1) updated annually; (2) reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1); and (3) filed with the governor's office. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.057. STATE EMPLOYEE INCENTIVE PROGRAM. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The commissioner or the commissioner's designee shall provide to department employees information and training on the benefits and methods of participation in the state employee incentive program. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A.SUBCHAPTER D. POWERS AND DUTIES OF DEPARTMENT § 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The department is responsible for administering human services programs for the aging and disabled, including: (1) administering and coordinating programs to provide community-based care and support services to promote independent living for populations that would otherwise be institutionalized; (2) providing institutional care services, including services through convalescent and nursing homes and related institutions under Chapter 242, Health and Safety Code; (3) providing and coordinating programs and services for persons with disabilities, including programs for the treatment, rehabilitation, or benefit of persons with developmental disabilities or mental retardation; (4) operating state facilities for the housing, treatment, rehabilitation, or benefit of persons with disabilities, including state schools for persons with mental retardation; (5) serving as the state unit on aging required by the federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its subsequent amendments, including performing the general functions under Section 101.022 to ensure: (A) implementation of the federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its subsequent amendments, including implementation of services and volunteer opportunities under that Act for older residents of this state through area agencies on aging; (B) advocacy for residents of nursing facilities through the office of the state long-term care ombudsman; (C) fostering of the state and community infrastructure and capacity to serve older residents of this state; and (D) availability of a comprehensive resource for state government and the public on trends related to and services and programs for an aging population; (6) performing all licensing and enforcement activities and functions related to long-term care facilities, including licensing and enforcement activities related to convalescent and nursing homes and related institutions under Chapter 242, Health and Safety Code; (7) performing all licensing and enforcement activities related to assisted living facilities under Chapter 247, Health and Safety Code; (8) performing all licensing and enforcement activities related to intermediate care facilities for persons with mental retardation under Chapter 252, Health and Safety Code; (9) performing all licensing and enforcement activities and functions related to home and community support services agencies under Chapter 142, Health and Safety Code; and (10) serving as guardian of the person or estate, or both, for an incapacitated individual as provided by Subchapter E of this chapter and Chapter XIII, Texas Probate Code. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. Amended by Acts 2005, 79th Leg., ch. 268, § 3.03, eff. Sept. 1, 2005. § 161.072. INFORMATION REGARDING COMPLAINTS. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. (a) The department shall maintain a file on each written complaint filed with the department. The file must include: (1) the name of the person who filed the complaint; (2) the date the complaint is received by the department; (3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and (6) an explanation of the reason the file was closed, if the department closed the file without taking action other than to investigate the complaint. (b) The department shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the executive commissioner's and the department's policies and procedures relating to complaint investigation and resolution. (c) The department, at least quarterly until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.073. RULES. Text of section effective on date the commissioner of aging and disability services is appointed. See Historical and Statutory Notes, post. The executive commissioner may adopt rules reasonably necessary for the department to administer this chapter, consistent with the memorandum of understanding under Section 531.0055(k), Government Code, between the commissioner and the executive commissioner, as adopted by rule. Added by Acts 2003, 78th Leg., ch. 198, § 1.13A. § 161.074. COMPETITIVE GRANT PROGRAM. (a) The department shall establish a competitive grant program that promotes innovation in the delivery of aging and disability services and improves the quality of life for individuals receiving those services. (b) A grant awarded by the department under the program shall be used to: (1) test innovative practices in the provision of aging and disability services; or (2) disseminate information regarding innovative practices being used to provide aging and disability services. (c) The department shall request proposals for the award of a grant under the program. The department shall evaluate the proposals and award a grant based on a proposal's academic soundness, quantifiable effectiveness, and potentially positive impact on the delivery of aging and disability services. (d) A grant awarded under Subsection (b)(1) must be made to an institution of higher education working in cooperation with a private entity that has committed resources to the project described in the proposal. (e) A grant recipient may use grant money received under this section only to pay for activities directly related to the purpose of the grant program as described by Subsection (b) and may not use grant money for fees or advertising. (f) The department shall establish procedures to administer the grant program, including a procedure for the submission of a proposal and a procedure to be used by the department to evaluate a proposal. (g) The department shall enter into a contract that includes performance requirements with each grant recipient. The department shall monitor and enforce the terms of the contract. The contract must authorize the department to recoup grant money from a grant recipient for failure of the grant recipient to comply with the terms of the contract. (h) The department shall post on its website a summary of each grant awarded under this section. (i) The legislature may appropriate money described by Sections 142.0174, 242.0695, 247.0458, and 252.069, Health and Safety Code, including unexpended and unobligated amounts collected during a previous state fiscal biennium, to fund the grant program authorized by this section. Added by Acts 2005, 79th Leg., ch. 786, § 5, eff. Sept. 1, 2005.SUBCHAPTER E. GUARDIANSHIP SERVICES § 161.101. GUARDIANSHIP SERVICES. (a) The department shall file an application under Section 682 or 875, Texas Probate Code, to be appointed guardian of the person or estate, or both, of a minor referred to the department under Section 48.209(a)(1) for guardianship services if the department determines: (1) that the minor, because of a mental or physical condition, will be substantially unable to provide for the minor's own food, clothing, or shelter, to care for the minor's own physical health, or to manage the individual's own financial affairs when the minor becomes an adult; and (2) that a less restrictive alternative to guardianship is not available for the minor. (b) The department shall conduct a thorough assessment of the conditions and circumstances of an elderly or disabled person referred to the department under Section 48.209(a)(2) for guardianship services to determine whether a guardianship is appropriate for the individual. In determining whether a guardianship is appropriate, the department may consider the resources and funds available to meet the needs of the elderly or disabled person. The executive commissioner shall adopt rules for the administration of this subsection. (c) If after conducting an assessment of an elderly or disabled person under Subsection (b) the department determines that a guardianship is appropriate for the elderly or disabled person, the department shall file an application under Section 682 or 875, Texas Probate Code, to be appointed guardian of the person or estate, or both, of the individual. If after conducting the assessment the department determines that a less restrictive alternative to guardianship is available for the elderly or disabled person, the department shall pursue the less restrictive alternative instead of applying for appointment as the person's guardian. (d) The department may not be required by a court to file an application for guardianship, and the department may not be appointed as permanent guardian for any individual unless the department files an application to serve or otherwise agrees to serve as the individual's guardian of the person or estate, or both. (e) A guardianship created for an individual as a result of an application for guardianship filed under Subsection (a) may not take effect before the individual's 18th birthday. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.102. REFERRAL TO GUARDIANSHIP PROGRAM, COURT, OR OTHER PERSON. (a) If the department becomes aware of a guardianship program, private professional guardian, or other person willing and able to provide the guardianship services that would otherwise be provided by the department to an individual referred to the department by the Department of Family and Protective Services under Section 48.209, the department shall refer the individual to that person or program for guardianship services. (b) If requested by a court, the department shall notify the court of any referral made to the department by the Department of Family and Protective Services relating to any individual who is domiciled or found in a county where the requesting court has probate jurisdiction and who may be appropriate for a court-initiated guardianship proceeding under Section 683, Texas Probate Code. In making a referral under this subsection and if requested by the court, the department shall, to the extent allowed by law, provide the court with all relevant information in the department's records relating to the individual. The court, as part of this process, may not require the department to: (1) perform the duties of a guardian ad litem or court investigator as prescribed by Section 683, Texas Probate Code; or (2) gather additional information not contained in the department's records. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.103. CONTRACT FOR GUARDIANSHIP SERVICES. If appropriate, the department may contract with a political subdivision of this state, a guardianship program as defined by Section 601, Texas Probate Code, a private agency, or another state agency for the provision of guardianship services under this section. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.104. QUALITY ASSURANCE PROGRAM. The department shall develop and implement a quality assurance program for guardianship services provided by or on behalf of the department. If the department enters into a contract with a political subdivision, guardianship program, private agency, or other state agency under Section 161.103, the department shall establish a monitoring system as part of the quality assurance program to ensure the quality of guardianship services for which the department contracts under that section. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.105. OATH. A representative of the department shall take the oath required by the Texas Probate Code on behalf of the department if the department is appointed guardian of the person or estate, or both, of a ward under Chapter XIII of that code. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.106. GUARDIANSHIP POWERS AND DUTIES. In serving as guardian of the person or estate, or both, for an incapacitated individual, the department has all the powers granted and duties prescribed to a guardian under Chapter XIII, Texas Probate Code, or any other applicable law. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.107. EXEMPTION FROM GUARDIANSHIP BONDS, CERTAIN COSTS, FEES, AND EXPENSES. (a) The department or a political subdivision of this state or state agency with which the department contracts under Section 161.103 is not required to post a bond or pay any cost or fee associated with a bond otherwise required by the Texas Probate Code in guardianship matters. (b) The department is not required to pay any cost or fee otherwise imposed for court proceedings or other services, including: (1) a filing fee or fee for issuance of service of process imposed by Section 51.317, 51.318(b)(2), or 51.319, Government Code; (2) a court reporter fee imposed by Section 51.601, Government Code; (3) a judicial fund fee imposed by Section 51.702, Government Code; (4) a judge's fee imposed by Section 25.0008 or 25.0029, Government Code; (5) a cost or security fee imposed by Section 12 or 622, Texas Probate Code; or (6) a fee imposed by a county officer under Section 118.011 or 118.052, Local Government Code. (c) The department may not be required to pay fees associated with the appointment of a guardian ad litem or attorney ad litem. (d) A political subdivision of this state or state agency with which the department contracts under Section 161.103 is not required to pay any cost or fee otherwise required by the Texas Probate Code. (e) If the department is appointed guardian, the department is not liable for funding services provided to the department's ward, including long-term care or burial expenses. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.108. SUCCESSOR GUARDIAN. The department shall review each of the department's pending guardianship cases at least annually to determine whether a more suitable person, including a guardianship program or private professional guardian, is willing and able to serve as successor guardian for a ward of the department. If the department becomes aware of any person's willingness and ability to serve as successor guardian, the department shall notify the court in which the guardianship is pending as required by Section 695A, Texas Probate Code. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.109. ACCESS TO RECORDS OR DOCUMENTS. (a) The department shall have access to all of the records and documents concerning an individual referred for guardianship services under this subchapter that are necessary to the performance of the department's duties under this subchapter, including client-identifying information and medical, psychological, educational, or residential information. (b) The department is exempt from the payment of a fee otherwise required or authorized by law to obtain a medical record, including a mental health record, from a hospital or health care provider if the request for a record is made in the course of an assessment for guardianship services conducted by the department. (c) If the department cannot obtain access to a record or document that is necessary to properly perform a duty under this subchapter, the department may petition the probate court or the statutory or constitutional court having probate jurisdiction for access to the record or document. (d) The court with probate jurisdiction shall, on good cause shown, order the person or entity who denied access to a record or document to allow the department to have access to the record or document under the terms and conditions prescribed by the court. (e) A person or entity is entitled to notice of and a hearing on the department's petition for access as described by this section. (f) Access to, or disclosure of, a confidential record or other confidential information under this section does not constitute a waiver of confidentiality for other purposes or as to other persons. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.110. LEGAL REPRESENTATION OF DEPARTMENT. (a) Except as provided by Subsection (b), (c), or (f), the prosecuting attorney representing the state in criminal cases in the county court shall represent the department in any proceeding under this subchapter unless the representation would be a conflict of interest. (b) If the attorney representing the state in criminal cases in the county court is unable to represent the department in an action under this subchapter because of a conflict of interest, the attorney general shall represent the department in the action. (c) If the attorney general is unable to represent the department in an action under this subchapter, the attorney general shall deputize an attorney who has contracted with the department under Subsection (d) or an attorney employed by the department under Subsection (e) to represent the department in the action. (d) Subject to the approval of the attorney general, the department may contract with a private attorney to represent the department in an action under this subchapter. (e) The department may employ attorneys to represent the department in an action under this subchapter. (f) In a county having a population of more than 2.8 million, the prosecuting attorney representing the state in civil cases in the county court shall represent the department in any proceeding under this subchapter unless the representation would be a conflict of interest. If such attorney is unable to represent the department in an action under this subchapter because of a conflict of interest, the attorney general shall represent the department in the action. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.111. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION. (a) All files, reports, records, communications, or working papers used or developed by the department in the performance of duties relating to the assessment for or the provision of guardianship services to an individual referred for guardianship services under this subchapter are confidential and not subject to disclosure under Chapter 552, Government Code. (b) Confidential information may be disclosed only for a purpose consistent with this subchapter, as required by other state or federal law, or as necessary to enable the department to exercise its powers and duties as guardian of the person or estate, or both, of an individual. (c) A court may order disclosure of confidential information only if: (1) a motion is filed with the court requesting release of the information and a hearing on that request; (2) notice of the hearing is served on the department and each interested party; and (3) the court determines after the hearing and an in camera review of the information that disclosure is essential to the administration of justice and will not endanger the life or safety of any individual who: (A) is being assessed by the department for guardianship services under this subchapter; (B) is a ward of the department; or (C) provides services to a ward of the department. (d) The department shall establish a policy and procedures for the exchange of information with another state agency or governmental entity, including a court, with a local guardianship program to which an individual is referred for services, or with any other entity who provides services to a ward of the department, as necessary for the department, state agency, governmental entity, or other entity to properly execute its respective duties and responsibilities to provide guardianship services or other needed services to meet the needs of the ward under this subchapter or other law. An exchange of information under this subsection does not constitute a release for purposes of waiving the confidentiality of the information exchanged. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.112. INDEMNIFICATION FOR LEGAL EXPENSES. If a present or former employee of the department who was involved in activities related to the provision of guardianship services under this subchapter is criminally prosecuted for conduct related to the person's misfeasance or nonfeasance in the course and scope of the person's employment and is found not guilty after a trial or appeal or if the complaint or indictment is dismissed without a plea of guilty or nolo contendere being entered, the department may indemnify the person or the person's estate for the reasonable attorney's fees incurred in defense of the prosecution up to a maximum of $10,000. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005. § 161.113. IMMUNITY. (a) In this section, " volunteer" means a person who: (1) renders services for or on behalf of the department under the supervision of a department employee; and (2) does not receive compensation that exceeds the authorized expenses the person incurs in performing those services. (b) A department employee or an authorized volunteer who performs a department duty or responsibility under this subchapter is immune from civil or criminal liability for any act or omission that relates to the duty or responsibility if the person acted in good faith and within the scope of the person's authority. Added by Acts 2005, 79th Leg., ch. 268, § 3.04, eff. Sept. 1, 2005.
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