CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT

Statutes > Texas Statutes > FAMILY CODE > TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP > CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT

FAMILY CODE

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE

PARENT-CHILD RELATIONSHIP

SUBTITLE E. PROTECTION OF THE CHILD

CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 261.001. DEFINITIONS. In this chapter:

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

person:

(A) mental or emotional injury to a child that results in an

observable and material impairment in the child's growth,

development, or psychological functioning;

(B) causing or permitting the child to be in a situation in

which the child sustains a mental or emotional injury that

results in an observable and material impairment in the child's

growth, development, or psychological functioning;

child, or the genuine threat of substantial harm from physical

injury to the child, including an injury that is at variance with

the history or explanation given and excluding an accident or

reasonable discipline by a parent, guardian, or managing or

possessory conservator that does not expose the child to a

substantial risk of harm;

(D) failure to make a reasonable effort to prevent an action by

another person that results in physical injury that results in

substantial harm to the child;

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

physical welfare, including conduct that constitutes the offense

of continuous sexual abuse of young child or children under

Section 21.02, Penal Code, indecency with a child under Section

21.11, Penal Code, sexual assault under Section 22.011, Penal

Code, or aggravated sexual assault under Section 22.021, Penal

Code;

(F) failure to make a reasonable effort to prevent sexual

conduct harmful to a child;

(G) compelling or encouraging the child to engage in sexual

conduct as defined by Section 43.01, Penal Code;

(H) causing, permitting, encouraging, engaging in, or allowing

the photographing, filming, or depicting of the child if the

person knew or should have known that the resulting photograph,

film, or depiction of the child is obscene as defined by Section

43.21, Penal Code, or pornographic;

(I) the current use by a person of a controlled substance as

defined by Chapter 481, Health and Safety Code, in a manner or to

the extent that the use results in physical, mental, or emotional

injury to a child;

(J) causing, expressly permitting, or encouraging a child to use

a controlled substance as defined by Chapter 481, Health and

Safety Code; or

(K) causing, permitting, encouraging, engaging in, or allowing a

sexual performance by a child as defined by Section 43.25, Penal

Code.

(2) "Department" means the Department of Family and Protective

Services.

(3) "Designated agency" means the agency designated by the court

as responsible for the protection of children.

(4) "Neglect" includes:

(A) the leaving of a child in a situation where the child would

be exposed to a substantial risk of physical or mental harm,

without arranging for necessary care for the child, and the

demonstration of an intent not to return by a parent, guardian,

or managing or possessory conservator of the child;

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

(i) placing a child in or failing to remove a child from a

situation that a reasonable person would realize requires

judgment or actions beyond the child's level of maturity,

physical condition, or mental abilities and that results in

bodily injury or a substantial risk of immediate harm to the

child;

(ii) failing to seek, obtain, or follow through with medical

care for a child, with the failure resulting in or presenting a

substantial risk of death, disfigurement, or bodily injury or

with the failure resulting in an observable and material

impairment to the growth, development, or functioning of the

child;

(iii) the failure to provide a child with food, clothing, or

shelter necessary to sustain the life or health of the child,

excluding failure caused primarily by financial inability unless

relief services had been offered and refused;

(iv) placing a child in or failing to remove the child from a

situation in which the child would be exposed to a substantial

risk of sexual conduct harmful to the child; or

(v) placing a child in or failing to remove the child from a

situation in which the child would be exposed to acts or

omissions that constitute abuse under Subdivision (1)(E), (F),

(G), (H), or (K) committed against another child; or

custody, or welfare to permit the child to return to the child's

home without arranging for the necessary care for the child after

the child has been absent from the home for any reason, including

having been in residential placement or having run away.

(5) "Person responsible for a child's care, custody, or welfare"

means a person who traditionally is responsible for a child's

care, custody, or welfare, including:

(A) a parent, guardian, managing or possessory conservator, or

foster parent of the child;

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

Chapter 71;

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

(E) personnel or a volunteer at a public or private child-care

facility that provides services for the child or at a public or

private residential institution or facility where the child

resides.

(6) "Report" means a report that alleged or suspected abuse or

neglect of a child has occurred or may occur.

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

Services.

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

child:

(A) who is born to a mother who during the pregnancy used a

controlled substance, as defined by Chapter 481, Health and

Safety Code, other than a controlled substance legally obtained

by prescription, or alcohol; and

(B) who, after birth as a result of the mother's use of the

controlled substance or alcohol:

(i) experiences observable withdrawal from the alcohol or

controlled substance;

(ii) exhibits observable or harmful effects in the child's

physical appearance or functioning; or

(iii) exhibits the demonstrable presence of alcohol or a

controlled substance in the child's bodily fluids.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 86, eff.

Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, Sec. 10, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 63, eff. Sept. 1,

1997; Acts 1999, 76th Leg., ch. 62, Sec. 19.01(26), eff. Sept. 1,

1999; Acts 2001, 77th Leg., ch. 59, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.11, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.32, eff. September 1, 2007.

Sec. 261.002. CENTRAL REGISTRY. (a) The department shall

establish and maintain in Austin a central registry of reported

cases of child abuse or neglect.

(b) The department may adopt rules necessary to carry out this

section. The rules shall provide for cooperation with local child

service agencies, including hospitals, clinics, and schools, and

cooperation with other states in exchanging reports to effect a

national registration system.

to allow for the exchange of reports of child abuse and neglect

in other states' central registry systems. The department shall

use information obtained under this subsection in performing the

background checks required under Section 42.056, Human Resources

Code. The department shall cooperate with federal agencies and

shall provide information and reports of child abuse and neglect

to the appropriate federal agency that maintains the national

registry for child abuse and neglect, if a national registry

exists.

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

1995.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.12, eff. September 1, 2005.

Sec. 261.003. APPLICATION TO STUDENTS IN SCHOOL FOR DEAF OR

SCHOOL FOR BLIND AND VISUALLY IMPAIRED. This chapter applies to

the investigation of a report of abuse or neglect of a student,

without regard to the age of the student, in the Texas School for

the Deaf or the Texas School for the Blind and Visually Impaired.

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

1995.

Sec. 261.004. STATISTICS OF ABUSE AND NEGLECT OF CHILDREN. (a)

The department shall prepare and disseminate statistics by county

relating to the department's activities under this subtitle and

include the information specified in Subsection (b) in an annual

report available to the public.

(b) The department shall report the following information:

(1) the number of initial phone calls received by the department

alleging abuse and neglect;

(2) the number of children reported to the department as having

been abused and neglected;

(3) the number of reports received by the department alleging

abuse or neglect and assigned by the department for

investigation;

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

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

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

(D) the number who did not receive services from the department

under a state or federal program;

(E) the number who received services, including preventative

services, from the department under a state or federal program;

and

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

preceding year;

(5) the number of families in which the child was not removed,

but the child or family received services from the department;

(6) the number of children who died during the preceding year as

a result of child abuse or neglect;

(7) of the children to whom Subdivision (6) applies, the number

who were in foster care at the time of death;

(8) the number of child protective services workers responsible

for report intake, assessment, or investigation;

(9) the response time by the department with respect to

conducting an initial investigation of a report of child abuse or

neglect;

(10) the response time by the department with respect to

commencing services to families and children for whom an

allegation of abuse or neglect has been made;

(11) the number of children who were returned to their families

or who received family preservation services and who, before the

fifth anniversary of the date of return or receipt, were the

victims of substantiated reports of child abuse or neglect,

including abuse or neglect resulting in the death of the child;

(12) the number of cases pursued by the department in each stage

of the judicial process, including civil and criminal proceedings

and the results of each proceeding; and

(13) the number of children for whom a person was appointed by

the court to represent the best interests of the child and the

average number of out-of-court contacts between the person and

the child.

Subsection (b) for the preceding year in a report to be submitted

to the legislature and the general public not later than February

1 of each year.

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

1997.

SUBCHAPTER B. REPORT OF ABUSE OR NEGLECT; IMMUNITIES

Sec. 261.101. PERSONS REQUIRED TO REPORT; TIME TO REPORT. (a)

A person having cause to believe that a child's physical or

mental health or welfare has been adversely affected by abuse or

neglect by any person shall immediately make a report as provided

by this subchapter.

(b) If a professional has cause to believe that a child has been

abused or neglected or may be abused or neglected, or that a

child is a victim of an offense under Section 21.11, Penal Code,

and the professional has cause to believe that the child has been

abused as defined by Section 261.001 or 261.401, the professional

shall make a report not later than the 48th hour after the hour

the professional first suspects that the child has been or may be

abused or neglected or is a victim of an offense under Section

21.11, Penal Code. A professional may not delegate to or rely on

another person to make the report. In this subsection,

"professional" means an individual who is licensed or certified

by the state or who is an employee of a facility licensed,

certified, or operated by the state and who, in the normal course

of official duties or duties for which a license or certification

is required, has direct contact with children. The term includes

teachers, nurses, doctors, day-care employees, employees of a

clinic or health care facility that provides reproductive

services, juvenile probation officers, and juvenile detention or

correctional officers.

exception to an individual whose personal communications may

otherwise be privileged, including an attorney, a member of the

clergy, a medical practitioner, a social worker, a mental health

professional, and an employee of a clinic or health care facility

that provides reproductive services.

(d) Unless waived in writing by the person making the report,

the identity of an individual making a report under this chapter

is confidential and may be disclosed only:

(1) as provided by Section 261.201; or

(2) to a law enforcement officer for the purposes of conducting

a criminal investigation of the report.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 87, eff.

Sept. 1, 1995; Acts 1997, 75th Leg., ch. 162, Sec. 1, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 575, Sec. 11, eff. Sept. 1,

1997; Acts 1997, 75th Leg., ch. 1022, Sec. 65, eff. Sept. 1,

1997; Acts 1999, 76th Leg., ch. 62, Sec. 6.29, eff. Sept. 1,

1999; Acts 1999, 76th Leg., ch. 1150, Sec. 2, eff. Sept. 1, 1999;

Acts 1999, 76th Leg., ch. 1390, Sec. 21, eff. Sept. 1, 1999; Acts

2001, 77th Leg., ch. 1420, Sec. 5.003, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

949, Sec. 27, eff. September 1, 2005.

Sec. 261.102. MATTERS TO BE REPORTED. A report should reflect

the reporter's belief that a child has been or may be abused or

neglected or has died of abuse or neglect.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 88, eff.

Sept. 1, 1995.

Sec. 261.103. REPORT MADE TO APPROPRIATE AGENCY. (a) Except as

provided by Subsections (b) and (c) and Section 261.405, a report

shall be made to:

(1) any local or state law enforcement agency;

(2) the department;

(3) the state agency that operates, licenses, certifies, or

registers the facility in which the alleged abuse or neglect

occurred; or

(4) the agency designated by the court to be responsible for the

protection of children.

(b) A report may be made to the Texas Youth Commission instead

of the entities listed under Subsection (a) if the report is

based on information provided by a child while under the

supervision of the commission concerning the child's alleged

abuse of another child.

report under Subsection (a)(3) or Section 261.405, must be made

to the department if the alleged or suspected abuse or neglect

involves a person responsible for the care, custody, or welfare

of the child.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 89, eff.

Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1477, Sec. 24, eff.

Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1297, Sec. 46, eff.

Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

213, Sec. 1, eff. September 1, 2005.

Sec. 261.104. CONTENTS OF REPORT. The person making a report

shall identify, if known:

(1) the name and address of the child;

(2) the name and address of the person responsible for the care,

custody, or welfare of the child; and

(3) any other pertinent information concerning the alleged or

suspected abuse or neglect.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 90, eff.

Sept. 1, 1995.

Sec. 261.105. REFERRAL OF REPORT BY DEPARTMENT OR LAW

ENFORCEMENT. (a) All reports received by a local or state law

enforcement agency that allege abuse or neglect by a person

responsible for a child's care, custody, or welfare shall be

referred immediately to the department or the designated agency.

(b) The department or designated agency shall immediately notify

the appropriate state or local law enforcement agency of any

report it receives, other than a report from a law enforcement

agency, that concerns the suspected abuse or neglect of a child

or death of a child from abuse or neglect.

report relates to a child in a facility operated, licensed,

certified, or registered by a state agency, the department shall

refer the report to the agency for investigation.

(c-1) Notwithstanding Subsections (b) and (c), if a report under

this section relates to a child with mental retardation receiving

services in a state supported living center as defined by Section

531.002, Health and Safety Code, or the ICF-MR component of the

Rio Grande State Center, the department shall proceed with the

investigation of the report as provided by Section 261.404.

(d) If the department initiates an investigation and determines

that the abuse or neglect does not involve a person responsible

for the child's care, custody, or welfare, the department shall

refer the report to a law enforcement agency for further

investigation. If the department determines that the abuse or

neglect involves an employee of a public primary or secondary

school, and that the child is a student at the school, the

department shall orally notify the superintendent of the school

district in which the employee is employed about the

investigation.

(e) In cooperation with the department, the Texas Youth

Commission by rule shall adopt guidelines for identifying a

report made to the commission under Section 261.103(b) that is

appropriate to refer to the department or a law enforcement

agency for investigation. Guidelines adopted under this

subsection must require the commission to consider the severity

and immediacy of the alleged abuse or neglect of the child

victim.

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

1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 66, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1477, Sec. 25, eff.

Sept. 1, 1999; Acts 2003, 78th Leg., ch. 374, Sec. 3, eff. June

18, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

284, Sec. 4, eff. June 11, 2009.

Sec. 261.1055. NOTIFICATION OF DISTRICT ATTORNEYS. (a) A

district attorney may inform the department or designated agency

that the district attorney wishes to receive notification of some

or all reports of suspected abuse or neglect of children who were

in the county at the time the report was made or who were in the

county at the time of the alleged abuse or neglect.

(b) If the district attorney makes the notification under this

section, the department or designated agency shall, on receipt of

a report of suspected abuse or neglect, immediately notify the

district attorney as requested and the department or designated

agency shall forward a copy of the reports to the district

attorney on request.

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

1997.

Sec. 261.106. IMMUNITIES. (a) A person acting in good faith

who reports or assists in the investigation of a report of

alleged child abuse or neglect or who testifies or otherwise

participates in a judicial proceeding arising from a report,

petition, or investigation of alleged child abuse or neglect is

immune from civil or criminal liability that might otherwise be

incurred or imposed.

(b) Immunity from civil and criminal liability extends to an

authorized volunteer of the department or a law enforcement

officer who participates at the request of the department in an

investigation of alleged or suspected abuse or neglect or in an

action arising from an investigation if the person was acting in

good faith and in the scope of the person's responsibilities.

child or who acts in bad faith or with malicious purpose in

reporting alleged child abuse or neglect is not immune from civil

or criminal liability.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 91, eff.

Sept. 1, 1995.

Sec. 261.107. FALSE REPORT; CRIMINAL PENALTY; CIVIL PENALTY.

(a) A person commits an offense if, with the intent to deceive,

the person knowingly makes a report as provided in this chapter

that is false. An offense under this subsection is a state jail

felony 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 felony of the third degree.

(b) A finding by a court in a suit affecting the parent-child

relationship that a report made under this chapter before or

during the suit was false or lacking factual foundation may be

grounds for the court to modify an order providing for possession

of or access to the child who was the subject of the report by

restricting further access to the child by the person who made

the report.

responsible for the prosecution of an offense under this section.

(d) The court shall order a person who is convicted of an

offense under Subsection (a) to pay any reasonable attorney's

fees incurred by the person who was falsely accused of abuse or

neglect in any proceeding relating to the false report.

(e) A person who engages in conduct described by Subsection (a)

is liable to the state for a civil penalty of $1,000. The

attorney general shall bring an action to recover a civil penalty

authorized by this subsection.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 92, eff.

Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, Sec. 2, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 68; Acts 1999, 76th

Leg., ch. 62, Sec. 6.30, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.13, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

268, Sec. 1.14(a), eff. September 1, 2005.

Sec. 261.108. FRIVOLOUS CLAIMS AGAINST PERSON REPORTING. (a)

In this section:

(1) "Claim" means an action or claim by a party, including a

plaintiff, counterclaimant, cross-claimant, or third-party

plaintiff, requesting recovery of damages.

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

(b) A court shall award a defendant reasonable attorney's fees

and other expenses related to the defense of a claim filed

against the defendant for damages or other relief arising from

reporting or assisting in the investigation of a report under

this chapter or participating in a judicial proceeding resulting

from the report if:

(1) the court finds that the claim is frivolous, unreasonable,

or without foundation because the defendant is immune from

liability under Section 261.106; and

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

defendant.

time after the filing of a claim, file a written motion stating

that:

(1) the claim is frivolous, unreasonable, or without foundation

because the defendant is immune from liability under Section

261.106; and

(2) the defendant requests the court to award reasonable

attorney's fees and other expenses related to the defense of the

claim.

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

1995.

Sec. 261.109. FAILURE TO REPORT; PENALTY. (a) A person commits

an offense if the person has cause to believe that a child's

physical or mental health or welfare has been or may be adversely

affected by abuse or neglect and knowingly fails to report as

provided in this chapter.

(b) An offense under this section is a Class A misdemeanor,

except that the offense is a state jail felony if it is shown on

the trial of the offense that the child was a person with mental

retardation who resided in a state supported living center, the

ICF-MR component of the Rio Grande State Center, or a facility

licensed under Chapter 252, Health and Safety Code, and the actor

knew that the child had suffered serious bodily injury as a

result of the abuse or neglect.

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

1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

284, Sec. 5, eff. June 11, 2009.

Sec. 261.110. EMPLOYER RETALIATION PROHIBITED. (a) In this

section, "professional" has the meaning assigned by Section

261.101(b).

(b) An employer may not suspend or terminate the employment of,

or otherwise discriminate against, a person who is a professional

and who in good faith:

(1) reports child abuse or neglect to:

(A) the person's supervisor;

(B) an administrator of the facility where the person is

employed;

(D) a law enforcement agency; or

(2) initiates or cooperates with an investigation or proceeding

by a governmental entity relating to an allegation of child abuse

or neglect.

is otherwise discriminated against in violation of this section

may sue for injunctive relief, damages, or both.

(d) A plaintiff who prevails in a suit under this section may

recover:

(1) actual damages, including damages for mental anguish even if

an injury other than mental anguish is not shown;

(2) exemplary damages under Chapter 41, Civil Practice and

Remedies Code, if the employer is a private employer;

(3) court costs; and

(4) reasonable attorney's fees.

(e) In addition to amounts recovered under Subsection (d), a

plaintiff who prevails in a suit under this section is entitled

to:

(1) reinstatement to the person's former position or a position

that is comparable in terms of compensation, benefits, and other

conditions of employment;

(2) reinstatement of any fringe benefits and seniority rights

lost because of the suspension, termination, or discrimination;

and

(3) compensation for wages lost during the period of suspension

or termination.

(f) A public employee who alleges a violation of this section

may sue the employing state or local governmental entity for the

relief provided for by this section. Sovereign immunity is waived

and abolished to the extent of liability created by this section.

A person having a claim under this section may sue a governmental

unit for damages allowed by this section.

(g) In a suit under this section against an employing state or

local governmental entity, a plaintiff may not recover

compensatory damages for future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses in an amount that exceeds:

(1) $50,000, if the employing state or local governmental entity

has fewer than 101 employees in each of 20 or more calendar weeks

in the calendar year in which the suit is filed or in the

preceding year;

(2) $100,000, if the employing state or local governmental

entity has more than 100 and fewer than 201 employees in each of

20 or more calendar weeks in the calendar year in which the suit

is filed or in the preceding year;

(3) $200,000, if the employing state or local governmental

entity has more than 200 and fewer than 501 employees in each of

20 or more calendar weeks in the calendar year in which the suit

is filed or in the preceding year; and

(4) $250,000, if the employing state or local governmental

entity has more than 500 employees in each of 20 or more calendar

weeks in the calendar year in which the suit is filed or in the

preceding year.

(h) If more than one subdivision of Subsection (g) applies to an

employing state or local governmental entity, the amount of

monetary damages that may be recovered from the entity in a suit

brought under this section is governed by the applicable

provision that provides the highest damage award.

(i) A plaintiff suing under this section has the burden of

proof, except that there is a rebuttable presumption that the

plaintiff's employment was suspended or terminated or that the

plaintiff was otherwise discriminated against for reporting abuse

or neglect if the suspension, termination, or discrimination

occurs before the 61st day after the date on which the person

made a report in good faith.

(j) A suit under this section may be brought in a district or

county court of the county in which:

(1) the plaintiff was employed by the defendant; or

(2) the defendant conducts business.

(k) It is an affirmative defense to a suit under Subsection (b)

that an employer would have taken the action against the employee

that forms the basis of the suit based solely on information,

observation, or evidence that is not related to the fact that the

employee reported child abuse or neglect or initiated or

cooperated with an investigation or proceeding relating to an

allegation of child abuse or neglect.

(l) A public employee who has a cause of action under Chapter

554, Government Code, based on conduct described by Subsection

(b) may not bring an action based on that conduct under this

section.

(m) This section does not apply to a person who reports the

person's own abuse or neglect of a child or who initiates or

cooperates with an investigation or proceeding by a governmental

entity relating to an allegation of the person's own abuse or

neglect of a child.

Added by Acts 2001, 77th Leg., ch. 896, Sec. 1, eff. Sept. 1,

2001.

Sec. 261.111. REFUSAL OF PSYCHIATRIC OR PSYCHOLOGICAL TREATMENT

OF CHILD. (a) In this section, "psychotropic drug" means a

substance that is:

(1) used in the diagnosis, treatment, or prevention of a disease

or as a component of a medication; and

(2) intended to have an altering effect on perception, emotion,

or behavior.

(b) The refusal of a parent, guardian, or managing or possessory

conservator of a child to administer or consent to the

administration of a psychotropic drug to the child, or to consent

to any other psychiatric or psychological treatment of the child,

does not by itself constitute neglect of the child unless the

refusal to consent:

(1) presents a substantial risk of death, disfigurement, or

bodily injury to the child; or

(2) has resulted in an observable and material impairment to the

growth, development, or functioning of the child.

Added by Acts 2003, 78th Leg., ch. 1008, Sec. 3, eff. June 20,

2003.

SUBCHAPTER C. CONFIDENTIALITY AND PRIVILEGED COMMUNICATION

Sec. 261.201. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION.

(a) Except as provided by Section 261.203, the following

information is confidential, is not subject to public release

under Chapter 552, Government Code, and may be disclosed only for

purposes consistent with this code and applicable federal or

state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under

this chapter and the identity of the person making the report;

and

(2) except as otherwise provided in this section, the files,

reports, records, communications, audiotapes, videotapes, and

working papers used or developed in an investigation under this

chapter or in providing services as a result of an investigation.

(b) A court may order the disclosure of information that is

confidential under this section if:

(1) a motion has been filed with the court requesting the

release of the information;

(2) a notice of hearing has been served on the investigating

agency and all other interested parties; and

(3) after hearing and an in camera review of the requested

information, the court determines that the disclosure of the

requested information is:

(A) essential to the administration of justice; and

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

(i) a child who is the subject of the report of alleged or

suspected abuse or neglect;

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

or neglect; or

(iii) any other person who participates in an investigation of

reported abuse or neglect or who provides care for the child.

(b-1) On a motion of one of the parties in a contested case

before an administrative law judge relating to the license or

certification of a professional, as defined by Section

261.101(b), or an educator, as defined by Section 5.001,

Education Code, the administrative law judge may order the

disclosure of information that is confidential under this section

that relates to the matter before the administrative law judge

after a hearing for which notice is provided as required by

Subsection (b)(2) and making the review and determination

required by Subsection (b)(3). Before the department may release

information under this subsection, the department must edit the

information to protect the confidentiality of the identity of any

person who makes a report of abuse or neglect.

may order disclosure of information that is confidential under

this section if:

(1) the order is rendered at a hearing for which all parties

have been given notice;

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

(A) essential to the administration of justice; and

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

(i) a child who is the subject of the report of alleged or

suspected abuse or neglect;

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

or neglect; or

(iii) any other person who participates in an investigation of

reported abuse or neglect or who provides care for the child; and

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

open court.

(d) The adoptive parents of a child who was the subject of an

investigation and an adult who was the subject of an

investigation as a child are entitled to examine and make copies

of any report, record, working paper, or other information in the

possession, custody, or control of the state that pertains to the

history of the child. The department may edit the documents to

protect the identity of the biological parents and any other

person whose identity is confidential, unless this information is

already known to the adoptive parents or is readily available

through other sources, including the court records of a suit to

terminate the parent-child relationship under Chapter 161.

(e) Before placing a child who was the subject of an

investigation, the department shall notify the prospective

adoptive parents of their right to examine any report, record,

working paper, or other information in the possession, custody,

or control of the state that pertains to the history of the

child.

(f) The department shall provide prospective adoptive parents an

opportunity to examine information under this section as early as

practicable before placing a child.

(f-1) The department shall provide to a relative or other

individual with whom a child is placed any information the

department considers necessary to ensure that the relative or

other individual is prepared to meet the needs of the child. The

information required by this subsection may include information

related to any abuse or neglect suffered by the child.

(g) Notwithstanding Subsection (b), the department, on request

and subject to department rule, shall provide to the parent,

managing conservator, or other legal representative of a child

who is the subject of reported abuse or neglect information

concerning the reported abuse or neglect that would otherwise be

confidential under this section if the department has edited the

information to protect the confidentiality of the identity of the

person who made the report and any other person whose life or

safety may be endangered by the disclosure.

(h) This section does not apply to an investigation of child

abuse or neglect in a home or facility regulated under Chapter

42, Human Resources Code.

(i) Notwithstanding Subsection (a), the Texas Youth Commission

shall release a report of alleged or suspected abuse or neglect

made under this chapter if:

(1) the report relates to a report of abuse or neglect involving

a child committed to the commission during the period that the

child is committed to the commission; and

(2) the commission is not prohibited by Chapter 552, Government

Code, or other law from disclosing the report.

(j) The Texas Youth Commission shall edit any report disclosed

under Subsection (i) to protect the identity of:

(1) a child who is the subject of the report of alleged or

suspected abuse or neglect;

(2) the person who made the report; and

(3) any other person whose life or safety may be endangered by

the disclosure.

(k) Notwithstanding Subsection (a), an investigating agency,

other than the department or the Texas Youth Commission, on

request, shall provide to the parent, managing conservator, or

other legal representative of a child who is the subject of

reported abuse or neglect, or to the child if the child is at

least 18 years of age, information concerning the reported abuse

or neglect that would otherwise be confidential under this

section. The investigating agency shall withhold information

under this subsection if the parent, managing conservator, or

other legal representative of the child requesting the

information is alleged to have committed the abuse or neglect.

(l) Before a child or a parent, managing conservator, or other

legal representative of a child may inspect or copy a record or

file concerning the child under Subsection (k), the custodian of

the record or file must redact:

(1) any personally identifiable information about a victim or

witness under 18 years of age unless that victim or witness is:

(A) the child who is the subject of the report; or

(B) another child of the parent, managing conservator, or other

legal representative requesting the information;

(2) any information that is excepted from required disclosure

under Chapter 552, Government Code, or other law; and

(3) the identity of the person who made the report.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 93, eff.

Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, Sec. 12, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 69, eff. Sept. 1,

1997; Acts 1999, 76th Leg., ch. 1150, Sec. 3, eff. Sept. 1, 1999;

Acts 1999, 76th Leg., ch. 1390, Sec. 22, eff. Sept. 1, 1999; Acts

2003, 78th Leg., ch. 68, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.15, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

263, Sec. 12, eff. June 8, 2007.

Acts 2009, 81st Leg., R.S., Ch.

713, Sec. 1, eff. June 19, 2009.

Acts 2009, 81st Leg., R.S., Ch.

779, Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1377, Sec. 13, eff. September 1, 2009.

Sec. 261.202. PRIVILEGED COMMUNICATION. In a proceeding

regarding the abuse or neglect of a child, evidence may not be

excluded on the ground of privileged communication except in the

case of communications between an attorney and client.

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

1995.

Sec. 261.203. INFORMATION RELATING TO CHILD FATALITY. (a) Not

later than the fifth day after the date the department receives a

request for information about a child fatality with respect to

which the department is conducting an investigation of alleged

abuse or neglect, the department shall release:

(1) the age and sex of the child;

(2) the date of death;

(3) whether the state was the managing conservator of the child

at the time of the child's death; and

(4) whether the child resided with the child's parent, managing

conservator, guardian, or other person entitled to possession of

the child at the time of the child's death.

(b) If, after a child abuse or neglect investigation is

completed, the department determines a child's death was caused

by abuse or neglect, the department shall promptly release the

following information on request:

(1) the information described by Subsection (a), if not

previously released to the person requesting the information;

(2) for cases in which the child's death occurred while the

child was living with the child's parent, managing conservator,

guardian, or other person entitled to possession of the child:

(A) a summary of any previous reports of abuse or neglect of the

deceased child or another child made while the child was living

with that parent, managing conservator, guardian, or other person

entitled to possession of the child;

(B) the disposition of any report under Paragraph (A);

the department to the child or the child's family as a result of

any report under Paragraph (A); and

(D) the results of any risk or safety assessment completed by

the department relating to the deceased child; and

(3) for a case in which the child's death occurred while the

child was in substitute care with the department or with a

residential child-care provider regulated under Chapter 42, Human

Resources Code, the following information:

(A) the date the substitute care provider with whom the child

was residing at the time of death was licensed or verified;

(B) a summary of any previous reports of abuse or neglect

investigated by the department relating to the substitute care

provider, including the disposition of any investigation

resulting from a report;

action taken by the department regarding a violation; and

(D) records of any training completed by the substitute care

provider while the child was placed with the provider.

required by Subsection (b) before the 11th day after the date the

department receives a request for the information or the date the

investigation of the child fatality is completed, whichever is

later, the department shall inform the person requesting the

information of the date the department will release the

information.

(d) After receiving a request for information required by

Subsection (b), the department shall notify and provide a copy of

the request to the attorney ad litem for the deceased child, if

any.

(e) Before the department releases any information under

Subsection (b), the department shall redact from the records any

information the release of which would:

(1) identify:

(A) the individual who reported the abuse or neglect; or

(B) any other individual other than the deceased child or an

alleged perpetrator of the abuse or neglect;

(2) jeopardize an ongoing criminal investigation or prosecution;

(3) endanger the life or safety of any individual; or

(4) violate other state or federal law.

(f) The executive commissioner of the Health and Human Services

Commission shall adopt rules to implement this section.

Added by Acts 2009, 81st Leg., R.S., Ch.

779, Sec. 2, eff. September 1, 2009.

SUBCHAPTER D. INVESTIGATIONS

Sec. 261.301. INVESTIGATION OF REPORT. (a) With assistance

from the appropriate state or local law enforcement agency as

provided by this section, the department or designated agency

shall make a prompt and thorough investigation of a report of

child abuse or neglect allegedly committed by a person

responsible for a child's care, custody, or welfare. The

investigation shall be conducted without regard to any pending

suit affecting the parent-child relationship.

(b) A state agency shall investigate a report that alleges abuse

or neglect occurred in a facility operated, licensed, certified,

or registered by that agency as provided by Subchapter E. In

conducting an investigation for a facility operated, licensed,

certified, registered, or listed by the department, the

department shall perform the investigation as provided by:

(1) Subchapter E; and

(2) the Human Resources Code.

alleges child abuse or neglect by a person other than a person

responsible for a child's care, custody, or welfare. The

appropriate state or local law enforcement agency shall

investigate that report if the agency determines an investigation

should be conducted.

(d) The department shall by rule assign priorities and prescribe

investigative procedures for investigations based on the severity

and immediacy of the alleged harm to the child. The primary

purpose of the investigation shall be the protection of the

child. The rules must require the department, subject to the

availability of funds, to:

(1) immediately respond to a report of abuse and neglect that

involves circumstances in which the death of the child or

substantial bodily harm to the child would result unless the

department immediately intervenes;

(2) respond within 24 hours to a report of abuse and neglect

that is assigned the highest priority, other than a report

described by Subdivision (1); and

(3) respond within 72 hours to a report of abuse and neglect

that is assigned the second highest priority.

(e) As necessary to provide for the protection of the child, the

department or designated agency shall determine:

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

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

neglect;

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

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

care of the child;

(5) the adequacy of the home environment;

(6) the relationship of the child to the persons responsible for

the care, custody, or welfare of the child; and

(7) all other pertinent data.

(f) An investigation of a report to the department that alleges

that a child has been or may be the victim of conduct that

constitutes a criminal offense that poses an immediate risk of

physical or sexual abuse of a child that could result in the

death of or serious harm to the child shall be conducted jointly

by a peace officer, as defined by Article 2.12, Code of Criminal

Procedure, from the appropriate local law enforcement agency and

the department or the agency responsible for conducting an

investigation under Subchapter E.

(g) The inability or unwillingness of a local law enforcement

agency to conduct a joint investigation under this section does

not constitute grounds to prevent or prohibit the department from

performing its duties under this subtitle. The department shall

document any instance in which a law enforcement agency is unable

or unwilling to conduct a joint investigation under this section.

(h) The department and the appropriate local law enforcement

agency shall conduct an investigation, other than an

investigation under Subchapter E, as provided by this section and

Article 2.27, Code of Criminal Procedure, if the investigation is

of a report that alleges that a child has been or may be the

victim of conduct that constitutes a criminal offense that poses

an immediate risk of physical or sexual abuse of a child that

could result in the death of or serious harm to the child.

Immediately on receipt of a report described by this subsection,

the department shall notify the appropriate local law enforcement

agency of the report.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 94, eff.

Sept. 1, 1995; Acts 1995, 74th Leg., ch. 943, Sec. 2, eff. Sept.

1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 70, eff. Sept. 1,

1997; Acts 1997, 75th Leg., ch. 1137, Sec. 1, eff. Sept. 1, 1997;

Acts 1999, 76th Leg., ch. 1150, Sec. 4, eff. Sept. 1, 1999; Acts

1999, 76th Leg., ch. 1390, Sec. 23, eff. Sept. 1, 1999; Acts

2003, 78th Leg., ch. 867, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.16(a), eff. September 1, 2005.

Sec. 261.3011. JOINT INVESTIGATION GUIDELINES AND TRAINING. (a)

The department shall, in consultation with the appropriate law

enforcement agencies, develop guidelines and protocols for joint

investigations by the department and the law enforcement agency

under Section 261.301. The guidelines and protocols must:

(1) clarify the respective roles of the department and law

enforcement agency in conducting the investigation;

(2) require that mutual child protective services and law

enforcement training and agreements be implemented by both

entities to ensure the integrity and best outcomes of joint

investigations; and

(3) incorporate the use of forensic methods in determining the

occurrence of child abuse and neglect.

(b) The department shall collaborate with law enforcement

agencies to provide to department investigators and law

enforcement officers responsible for investigating reports of

abuse and neglect joint training relating to methods to

effectively conduct joint investigations under Section 261.301.

The training must include information on interviewing techniques,

evidence gathering, and testifying in court for criminal

investigations, as well as instruction on rights provided by the

Fourth Amendment to the United States Constitution.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.17, eff. September 1, 2005.

Sec. 261.3012. COMPLETION OF PAPERWORK. An employee of the

department who responds to a report that is assigned the highest

priority in accordance with department rules adopted under

Section 261.301(d) shall identify, to the extent reasonable under

the circumstances, forms and other paperwork that can be

completed by members of the family of the child who is the

subject of the report. The department employee shall request the

assistance of the child's family members in completing that

documentation but remains responsible for ensuring that the

documentation is completed in an appropriate manner.

Added by Acts 2005, 79th Leg., Ch.

55, Sec. 1, eff. May 17, 2005.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.18, eff. September 1, 2005.

Sec. 261.3015. FLEXIBLE RESPONSE SYSTEM. (a) In assigning

priorities and prescribing investigative procedures based on the

severity and immediacy of the alleged harm to a child under

Section 261.301(d), the department shall establish a flexible

response system to allow the department to make the most

effective use of resources by investigating serious cases of

abuse and neglect and by screening out less serious cases of

abuse and neglect if the department determines, after contacting

a professional or other credible source, that the child's safety

can be assured without further investigation. The department may

administratively close the less serious cases without providing

services or making a referral to another entity for assistance.

(a-1) For purposes of Subsection (a), a case is considered to be

a less serious case of abuse or neglect if the circumstances of

the case do not indicate an immediate risk of abuse or neglect

that could result in the death of or serious harm to the child

who is the subject of the case.

(b) The classification under the flexible response system of a

case may be changed as warranted by the circumstances.

establishing a pilot program in a single department service

region. The department shall study the results of the system in

the region in determining the method by which to implement the

system statewide.

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

1997.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.19(a), eff. September 1, 2005.

Sec. 261.3016. TRAINING OF PERSONNEL RECEIVING REPORTS OF ABUSE

AND NEGLECT. The department shall develop, in cooperation with

local law enforcement officials and the Commission on State

Emergency Communications, a training program for department

personnel who receive reports of abuse and neglect. The training

program must include information on:

(1) the proper methods of screening reports of abuse and

neglect; and

(2) ways to determine the seriousness of a report, including

determining whether a report alleges circumstances that could

result in the death of or serious harm to a child or whether the

report is less serious in nature.

Added by Acts 2005, 79th Leg., Ch.

54, Sec. 1, eff. September 1, 2005.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.20, eff. September 1, 2005.

Sec. 261.302. CONDUCT OF INVESTIGATION. (a) The investigation

may include:

(1) a visit to the child's home, unless the alleged abuse or

neglect can be confirmed or clearly ruled out without a home

visit; and

(2) an interview with and examination of the subject child,

which may include a medical, psychological, or psychiatric

examination.

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

(1) be conducted at any reasonable time and place, including the

child's home or the child's school;

(2) include the presence of persons the department or designated

agency determines are necessary; and

(3) include transporting the child for purposes relating to the

interview or investigation.

(b-1) Before the department may transport a child as provided by

Subsection (b)(3), the department shall attempt to notify the

parent or other person having custody of the child of the

transport.

parents and an interview with and medical, psychological, or

psychiatric examination of any child in the home.

(d) If, before an investigation is completed, the investigating

agency believes that the immediate removal of a child from the

child's home is necessary to protect the child from further abuse

or neglect, the investigating agency shall file a petition or

take other action under Chapter 262 to provide for the temporary

care and protection of the child.

(e) An interview with a child conducted by the department during

the investigation stage shall be audiotaped or videotaped. An

interview with a child alleged to be a victim of physical abuse

or sexual abuse conducted by an investigating agency other than

the department shall be audiotaped or videotaped unless the

investigating agency determines that good cause exists for not

audiotaping or videotaping the interview in accordance with rules

of the agency. Good cause may include, but is not limited to,

such considerations as the age of the child and the nature and

seriousness of the allegations under investigation. Nothing in

this subsection shall be construed as prohibiting the

investigating agency from audiotaping or videotaping an interview

of a child on any case for which such audiotaping or videotaping

is not required under this subsection. The fact that the

investigating agency failed to audiotape or videotape an

interview is admissible at the trial of the offense that is the

subject of the interview.

(f) A person commits an offense if the person is notified of the

time of the transport of a child by the department and the

location from which the transport is initiated and the person is

present at the location when the transport is initiated and

attempts to interfere with the department's investigation. An

offense under this subsection is a Class B misdemeanor. It is an

exception to the application of this subsection that the

department requested the person to be present at the site of the

transport.

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

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 95, eff.

Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, Sec. 13, 14, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 73, eff.

Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.21, eff. September 1, 2005.

Sec. 261.3021. CASEWORK DOCUMENTATION AND MANAGEMENT. Subject

to the appropriation of money for these purposes, the department

shall:

(1) identify critical investigation actions that impact child

safety and require department caseworkers to document those

actions in a child's case file not later than the day after the

action occurs;

(2) identify and develop a comprehensive set of casework quality

indicators that must be reported in real time to support timely

management oversight;

(3) provide department supervisors with access to casework

quality indicators and train department supervisors on the use of

that information in the daily supervision of caseworkers;

(4) develop a case tracking system that notifies department

supervisors and management when a case is not progressing in a

timely manner;

(5) use current data reporting systems to provide department

supervisors and management with easier access to information; and

(6) train department supervisors and management on the use of

data to monitor cases and make decisions.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.22, eff. September 1, 2005.

Sec. 261.3022. CHILD SAFETY CHECK ALERT LIST. (a) Subject to

the availability of funds, the Department of Public Safety of the

State of Texas shall create a child safety check alert list as

part of the Texas Crime Information Center to help locate a

family for purposes of investigating a report of child abuse or

neglect.

(b) If the child safety check alert list is established and the

department is unable to locate a family for purposes of

investigating a report of child abuse or neglect, after the

department has exhausted all means available to the department

for locating the family, the department may seek assistance under

this section from the appropriate county attorney, district

attorney, or criminal district attorney with responsibility for

representing the department as provided by Section 264.009.

district attorney, or criminal district attorney, as applicable,

may file an application with the court requesting the issuance of

an ex parte order requiring the Texas Crime Information Center to

place the members of the family the department is attempting to

locate on a child safety check alert list. The application must

include a summary of:

(1) the report of child abuse or neglect the department is

attempting to investigate; and

(2) the department's efforts to locate the family.

(d) If the court determines after a hearing that the department

has exhausted all means available to the department for locating

the family, the court shall approve the application and order the

appropriate law enforcement agency to notify the Texas Crime

Information Center to place the family on a child safety check

alert list. The alert list must include:

(1) the name of the family member alleged to have abused or

neglected a child according to the report the department is

attempting to investigate;

(2) the name of the child who is the subject o

Find Legal Information

Texas Codes and Statutes

CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT