� |
� |
� |
�
|
AN ACT
|
�
|
relating to criminal history record information for guardianship |
�
|
proceedings and to lists of certain public guardians; providing a |
�
|
criminal penalty. |
�
|
�������BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
�
|
�������SECTION�1.��The heading to Section 697A, Texas Probate Code, |
�
|
is amended to read as follows: |
�
|
�������Sec.�697A.��LIST OF CERTAIN PUBLIC GUARDIANS MAINTAINED BY |
�
|
COUNTY CLERKS OR GUARDIANSHIP CERTIFICATION BOARD. |
�
|
�������SECTION�2.��Subsections (b) and (c), Section 697A, Texas |
�
|
Probate Code, are amended to read as follows: |
�
|
�������(b)��Not later than February 1 of each year, the [The] |
�
|
Department of Aging and Disability Services[, if the department
|
�
|
files an application for and is appointed to serve as guardian for
|
�
|
one or more incapacitated persons residing in the county as
|
�
|
provided by Subchapter E, Chapter 161, Human Resources Code,] shall |
�
|
submit [annually] to the Guardianship Certification Board a |
�
|
statement containing: |
�
|
�������������(1)��the name, address, and telephone number of each |
�
|
department employee who is or will be providing guardianship |
�
|
services to a ward or proposed ward on behalf of the department; and |
�
|
�������������(2)��the name of the county or counties in which each |
�
|
employee named in Subdivision (1) of this subsection is providing |
�
|
or is authorized to provide those services [county clerk the
|
�
|
information required under Subsection (a) of this section for each
|
�
|
department employee who is or will be providing guardianship
|
�
|
services in the county on the department's behalf]. |
�
|
�������(c)��Not later than February 1 of each year, the county clerk |
�
|
shall submit to the Guardianship Certification Board the |
�
|
information received under Subsection (a) of this section during |
�
|
the preceding year. |
�
|
�������SECTION�3.��Section 698, Texas Probate Code, is amended to |
�
|
read as follows: |
�
|
�������Sec.�698.��ACCESS TO CRIMINAL HISTORY RECORDS. �(a)��Except |
�
|
as provided by Subsections (a-1) and (a-5) of this section, the |
�
|
[The] clerk of the county having venue over the proceeding for the |
�
|
appointment of a guardian shall obtain criminal history record |
�
|
information that is maintained by the Department of Public Safety |
�
|
or the Federal Bureau of Investigation identification division |
�
|
relating to: |
�
|
�������������(1)��a private professional guardian; |
�
|
�������������(2)��each person who represents or plans to represent |
�
|
the interests of a ward as a guardian on behalf of the private |
�
|
professional guardian; |
�
|
�������������(3)��each person employed by a private professional |
�
|
guardian who will: |
�
|
�������������������(A)��have personal contact with a ward or proposed |
�
|
ward; |
�
|
�������������������(B)��exercise control over and manage a ward's |
�
|
estate; or |
�
|
�������������������(C)��perform any duties with respect to the |
�
|
management of a ward's estate; |
�
|
�������������(4)��each person employed by or volunteering or |
�
|
contracting with a guardianship program to provide guardianship |
�
|
services to a ward of the program on the program's behalf; or |
�
|
�������������(5)��any other person proposed to serve as a guardian |
�
|
under this chapter, including a proposed temporary guardian and a |
�
|
proposed successor guardian, other than the ward's or proposed |
�
|
ward's family member or an attorney [an employee of the Department
|
�
|
of Aging and Disability Services who is or will be providing
|
�
|
guardianship services to a ward of the department]. |
�
|
�������(a-1)��The Department of Aging and Disability Services shall |
�
|
obtain criminal history record information that is maintained by |
�
|
the Department of Public Safety or the Federal Bureau of |
�
|
Investigation identification division relating to each individual |
�
|
who is or will be providing guardianship services to a ward of or |
�
|
referred by the department, including: |
�
|
�������������(1)��an employee of or an applicant selected for an |
�
|
employment position with the Department of Aging and Disability |
�
|
Services; |
�
|
�������������(2)��a volunteer or an applicant selected to volunteer |
�
|
with the Department of Aging and Disability Services; |
�
|
�������������(3)��an employee of or an applicant selected for an |
�
|
employment position with a business entity or other person that |
�
|
contracts with the Department of Aging and Disability Services to |
�
|
provide guardianship services to a ward referred by the department; |
�
|
and |
�
|
�������������(4)��a volunteer or an applicant selected to volunteer |
�
|
with a business entity or other person described by Subdivision (3) |
�
|
of this subsection. |
�
|
�������(a-2)��The information in Subsection (a-1) of this section |
�
|
regarding applicants for employment positions must be obtained |
�
|
before an offer of employment, and the information regarding |
�
|
applicant volunteers must be obtained before the person's contact |
�
|
with a ward of or referred by the Department of Aging and Disability |
�
|
Services. |
�
|
�������(a-3)��The information in Subsection (a-1) of this section |
�
|
regarding employees or volunteers providing guardianship services |
�
|
must be obtained annually. |
�
|
�������(a-4)��The Department of Aging and Disability Services shall |
�
|
provide the information obtained under Subsection (a-1) of this |
�
|
section to: |
�
|
�������������(1)��the clerk of the county having venue over the |
�
|
guardianship proceeding at the request of the court; and |
�
|
�������������(2)��the Guardianship Certification Board at the |
�
|
request of the board. |
�
|
�������(a-5)��Not later than the 10th day before the date of the |
�
|
hearing to appoint a guardian, a person may submit to the clerk a |
�
|
copy of the person's criminal history record information required |
�
|
under Subsection (a)(5) of this section that the person obtains |
�
|
from the Department of Public Safety or the Federal Bureau of |
�
|
Investigation not earlier than the 30th day before the date of the |
�
|
hearing. |
�
|
�������(b)��The criminal history record information obtained under |
�
|
Subsection (a) or (a-5) of this section is for the exclusive use of |
�
|
the court and is privileged and confidential. The criminal history |
�
|
record information may not be released or otherwise disclosed to |
�
|
any person or agency except on court order or consent of the person |
�
|
being investigated. The county clerk may destroy the criminal |
�
|
history information records after the records are used for the |
�
|
purposes authorized by this section. |
�
|
�������(b-1)��The criminal history record information obtained |
�
|
under Subsection (a-4) of this section is for the exclusive use of |
�
|
the court or Guardianship Certification Board, as appropriate, and |
�
|
is privileged and confidential. The information may not be |
�
|
released or otherwise disclosed to any person or agency except on |
�
|
court order or consent of the person being investigated. The county |
�
|
clerk or Guardianship Certification Board may destroy the criminal |
�
|
history record information after the information is used for the |
�
|
purposes authorized by this section. |
�
|
�������(c)��The court shall use the information obtained under this |
�
|
section only in determining whether to: |
�
|
�������������(1)��appoint, remove, or continue the appointment of a |
�
|
private professional guardian, a guardianship program, or the |
�
|
Department of Aging and Disability Services; or |
�
|
�������������(2)��appoint any other person proposed to serve as a |
�
|
guardian under this chapter, including a proposed temporary |
�
|
guardian and a proposed successor guardian, other than the ward's |
�
|
or proposed ward's family member or an attorney. |
�
|
�������(c-1)��Criminal history record information obtained by the |
�
|
Guardianship Certification Board under Subsection (a-4)(2) of this |
�
|
section may be used for any purpose related to the issuance, denial, |
�
|
renewal, suspension, or revocation of a certificate issued by the |
�
|
board. |
�
|
�������(d)��A person commits an offense if the person releases or |
�
|
discloses any information received under this section without the |
�
|
authorization prescribed by Subsection (b) or (b-1) of this |
�
|
section. An offense under this subsection is a Class A misdemeanor. |
�
|
�������(e)��The clerk may charge a $10 [reasonable] fee [sufficient] |
�
|
to recover the costs of obtaining criminal history information |
�
|
records authorized by Subsection (a) of this section. |
�
|
�������(f)��This section does not prohibit the Department of Aging |
�
|
and Disability Services from obtaining and using criminal history |
�
|
record information as provided by other law. |
�
|
�������SECTION�4.��Section 411.1386, Government Code, is amended to |
�
|
read as follows: |
�
|
�������Sec.�411.1386.��ACCESS TO CRIMINAL HISTORY RECORD |
�
|
INFORMATION: COURT CLERK; DEPARTMENT OF AGING AND DISABILITY |
�
|
SERVICES; GUARDIANSHIPS. (a)��Except as provided by Subsections |
�
|
(a-1) and (a-5), the�[The] clerk of the county having venue over a |
�
|
proceeding for the appointment of a guardian under Chapter XIII |
�
|
[13], Texas Probate Code, shall [is entitled to] obtain from the |
�
|
department criminal history record information maintained by the |
�
|
department that relates to: |
�
|
�������������(1)��a private professional guardian; |
�
|
�������������(2)��each person who represents or plans to represent |
�
|
the interests of a ward as a guardian on behalf of the private |
�
|
professional guardian; [or] |
�
|
�������������(3)��each person employed by a private professional |
�
|
guardian who will: |
�
|
�������������������(A)��have personal contact with a ward or proposed |
�
|
ward; |
�
|
�������������������(B)��exercise control over and manage a ward's |
�
|
estate; or |
�
|
�������������������(C)��perform any duties with respect to the |
�
|
management of a ward's estate; |
�
|
�������������(4)��each person employed by or volunteering or |
�
|
contracting with a guardianship program to provide guardianship |
�
|
services to a ward of the program on the program's behalf; or |
�
|
�������������(5)��any other person proposed to serve as a guardian |
�
|
under Chapter XIII, Texas Probate Code, including a proposed |
�
|
temporary guardian and a proposed successor guardian, other than |
�
|
the ward's or proposed ward's family member or an attorney. |
�
|
�������(a-1)��The Department of Aging and Disability Services shall |
�
|
obtain from the Department of Public Safety criminal history record |
�
|
information maintained by the Department of Public Safety that |
�
|
relates to each individual who is or will be providing guardianship |
�
|
services to a ward of or referred by the Department of Aging and |
�
|
Disability Services, including: |
�
|
�������������(1)��an employee of or an applicant selected for an |
�
|
employment position with the Department of Aging and Disability |
�
|
Services; |
�
|
�������������(2)��a volunteer or an applicant selected to volunteer |
�
|
with the Department of Aging and Disability Services; |
�
|
�������������(3)��an employee of or an applicant selected for an |
�
|
employment position with a business entity or other person that |
�
|
contracts with the Department of Aging and Disability Services to |
�
|
provide guardianship services to a ward referred by the department; |
�
|
and |
�
|
�������������(4)��a volunteer or an applicant selected to volunteer |
�
|
with a business entity or person described by Subdivision (3). |
�
|
�������(a-2)��The information in Subsection (a-1) regarding |
�
|
applicants for employment positions must be obtained before an |
�
|
offer of employment, and the information regarding applicant |
�
|
volunteers must be obtained before the person's contact with a ward |
�
|
of or referred by the Department of Aging and Disability Services. |
�
|
�������(a-3)��The information in Subsection (a-1) regarding |
�
|
employees or volunteers providing guardianship services must be |
�
|
obtained annually. |
�
|
�������(a-4)��The Department of Aging and Disability Services shall |
�
|
provide the information obtained under Subsection (a-1) to: |
�
|
�������������(1)��the clerk of the county having venue over the |
�
|
guardianship proceeding at the request of the court; and |
�
|
�������������(2)��the Guardianship Certification Board at the |
�
|
request of the board. |
�
|
�������(a-5)��Not later than the 10th day before the date of the |
�
|
hearing to appoint a guardian, a person may submit to the clerk a |
�
|
copy of the person's criminal history record information required |
�
|
under Subsection (a)(5) that the person obtains from the department |
�
|
not earlier than the 30th day before the date of the hearing. |
�
|
�������(b)��Criminal history record information obtained by a clerk |
�
|
under Subsection (a) or (a-5)�is for the exclusive use of the court |
�
|
and is privileged and confidential [may be used only in determining
|
�
|
whether to appoint, remove, or continue the appointment of a
|
�
|
private professional guardian]. |
�
|
�������(c)��Criminal history record information obtained by a clerk |
�
|
under Subsection (a) or (a-5)�may not be released or disclosed to |
�
|
any person or agency except on court order or with the consent of |
�
|
the person who is the subject of the information. The clerk may |
�
|
destroy the criminal history record information after the |
�
|
information is used for the purposes authorized by this section. |
�
|
�������(d)��The criminal history record information obtained under |
�
|
Subsection (a-4) is for the exclusive use of the court or |
�
|
Guardianship Certification Board, as appropriate, and is |
�
|
privileged and confidential. The information may not be released |
�
|
or otherwise disclosed to any person or agency except on court order |
�
|
or consent of the person being investigated. The county clerk or |
�
|
Guardianship Certification Board may destroy the criminal history |
�
|
record information after the information is used for the purposes |
�
|
authorized by this section. |
�
|
�������(e)��The court, as that term is defined by Section 601, Texas |
�
|
Probate Code, shall use the information obtained under Subsection |
�
|
(a), (a-4)(1), or (a-5) only in determining whether to: |
�
|
�������������(1)��appoint, remove, or continue the appointment of a |
�
|
private professional guardian, a guardianship program, or the |
�
|
Department of Aging and Disability Services; or |
�
|
�������������(2)��appoint any other person proposed to serve as a |
�
|
guardian under Chapter XIII, Texas Probate Code, including a |
�
|
proposed temporary guardian and a proposed successor guardian, |
�
|
other than the ward's or proposed ward's family member or an |
�
|
attorney. |
�
|
�������(f)��Criminal history record information obtained by the |
�
|
Guardianship Certification Board under Subsection (a-4)(2) may be |
�
|
used for any purpose related to the issuance, denial, renewal, |
�
|
suspension, or revocation of a certificate issued by the board. |
�
|
�������(g)��A person commits an offense if the person releases or |
�
|
discloses any information received under this section without the |
�
|
authorization prescribed by Subsection (c) or (d). An offense |
�
|
under this subsection is a Class A misdemeanor. |
�
|
�������(h)��The county clerk may charge a $10 fee to recover the |
�
|
costs of obtaining criminal history information records authorized |
�
|
by Subsection (a). |
�
|
�������(i)��This section does not prohibit the Department of Aging |
�
|
and Disability Services from obtaining and using criminal history |
�
|
record information as provided by other law. |
�
|
�������SECTION�5.��The change in law made by this Act: |
�
|
�������������(1)��by the amendment of Subsection (a), Section |
�
|
411.1386, Government Code, other than the addition of Subdivision |
�
|
(5) to that subsection, is made to conform to Subsection (a), |
�
|
Section 698, Texas Probate Code, as that section existed |
�
|
immediately before the effective date of this Act; |
�
|
�������������(2)��by the amendment of Subsections (b) and (c), |
�
|
Section 411.1386, Government Code, and the addition of Subsection |
�
|
(e), Section 411.1386, Government Code, other than the addition of |
�
|
Subdivision (2) and the reference to Subdivision (1), Subsection |
�
|
(a-4), and Subsection (a-5), Section 411.1386, Government Code, is |
�
|
made to conform to Subsections (b) and (c), Section 698, Texas |
�
|
Probate Code, as those subsections existed immediately before the |
�
|
effective date of this Act; and |
�
|
�������������(3)��by the addition of Subsection (g), Section |
�
|
411.1386, Government Code, other than the addition of the reference |
�
|
to Subsection (d), Section 411.1386, Government Code, is made to |
�
|
conform to Subsection (d), Section 698, Texas Probate Code, as that |
�
|
subsection existed immediately before the effective date of this |
�
|
Act. |
�
|
�������SECTION�6.��This Act takes effect September 1, 2007. |
�
|
|
�
|
|
� |
� |
� |
� |
______________________________ |
______________________________ |
� |
���President of the Senate |
Speaker of the House����� |
� |
�
|
�������I hereby certify that S.B.�No.�291 passed the Senate on |
�
|
March�28,�2007, by the following vote: Yeas�30, Nays�0; and that |
�
|
the Senate concurred in House amendments on May�15,�2007, by the |
�
|
following vote: Yeas�31, Nays�0. |
�
|
|
� |
� |
______________________________ |
� |
Secretary of the Senate���� |
� |
�
|
�������I hereby certify that S.B.�No.�291 passed the House, with |
�
|
amendments, on May�11,�2007, by the following vote: Yeas�144, |
�
|
Nays�0, two present not voting. |
�
|
|
� |
� |
______________________________ |
� |
Chief Clerk of the House��� |
� |
�
|
|
� |
�
|
Approved: |
�
|
|
�
|
______________________________� |
�
|
������������Date |
�
|
|
�
|
|
�
|
______________________________� |
�
|
����������Governor |