HUMAN RESOURCES CODE
TITLE 2. HUMAN SERVICES AND PROTECTIVE SERVICES IN GENERAL
SUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; CHILD WELFARE AND PROTECTIVE SERVICES
CHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR ELDERLY PERSONS AND PERSONS WITH DISABILITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 48.001. PURPOSE. The purpose of this chapter is to provide for the authority to investigate the abuse, neglect, or exploitation of an elderly person or person with a disability and to provide protective services to that person.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.254, eff. April 2, 2015.
Sec. 48.002. DEFINITIONS. (a) Except as otherwise provided under Section 48.251, in this chapter:
(1) “Elderly person” means a person 65 years of age or older.
(2) “Abuse” means:
(A) the negligent or wilful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to an elderly person or person with a disability by the person’s caretaker, family member, or other individual who has an ongoing relationship with the person; or
(B) sexual abuse of an elderly person or person with a disability, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (indecent exposure) or Chapter 22, Penal Code (assaultive offenses), committed by the person’s caretaker, family member, or other individual who has an ongoing relationship with the person.
(3) “Exploitation” means the illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with an elderly person or person with a disability that involves using, or attempting to use, the resources of the elderly person or person with a disability, including the person’s social security number or other identifying information, for monetary or personal benefit, profit, or gain without the informed consent of the person.
(4) “Neglect” means the failure to provide for one’s self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services.
(5) “Protective services” means the services furnished by the department or by another protective services agency to an elderly person or person with a disability who has been determined to be in a state of abuse, neglect, or exploitation or to a relative or caretaker of an elderly person or person with a disability if the department determines the services are necessary to prevent the elderly person or person with a disability from returning to a state of abuse, neglect, or exploitation. These services may include social casework, case management, and arranging for psychiatric and health evaluation, home care, day care, social services, health care, respite services, and other services consistent with this chapter. The term does not include the services of the department or another protective services agency in conducting an investigation regarding alleged abuse, neglect, or exploitation of an elderly person or person with a disability.
(6) “Protective services agency” means a public or private agency, corporation, board, or organization that provides protective services to elderly persons or persons with disabilities in the state of abuse, neglect, or exploitation.
(7) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 4.465(a)(55), eff. April 2, 2015.
(8) “Person with a disability” means a person with a mental, physical, or intellectual or developmental disability that substantially impairs the person’s ability to provide adequately for the person’s care or protection and who is:
(A) 18 years of age or older; or
(B) under 18 years of age and who has had the disabilities of minority removed.
(9) “Legal holiday” means a state holiday listed in Subchapter B, Chapter 662, Government Code, or an officially declared county holiday.
(10) “Volunteer” means a person who:
(A) performs services for or on behalf of the department under the supervision of a department employee; and
(B) does not receive compensation that exceeds the authorized expenses the person incurs in performing those services.
(11) “Home and community-based services” has the meaning assigned by Section 48.251.
(b) The definitions of “abuse,” “neglect,” “exploitation,” and “an individual receiving services” adopted by the executive commissioner as prescribed by Section 48.251(b) apply to an investigation of abuse, neglect, or exploitation conducted under Subchapter F.
(c) Except as provided by Subsection (b), the executive commissioner by rule may adopt definitions of “abuse,” “neglect,” and “exploitation,” as an alternative to the definitions of those terms under Subsection (a), for purposes of conducting an investigation under this chapter or Chapter 142, Health and Safety Code.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 274, ch. 51, Sec. 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 264, Sec. 16, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 568, Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 1, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(15), 8.041, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 51, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221), Sec. 5, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221), Sec. 6, eff. September 1, 2011.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.255, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.256, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.465(a)(55), eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 860 (S.B. 1880), Sec. 1, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 860 (S.B. 1880), Sec. 2, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1272 (S.B. 760), Sec. 9, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1272 (S.B. 760), Sec. 10, eff. September 1, 2015.
Sec. 48.0021. REFERENCE TO COMMISSION OR EXECUTIVE COMMISSIONER. In this chapter:
(1) a reference to the Health and Human Services Commission means the Department of Family and Protective Services; and
(2) a reference to the executive commissioner means the commissioner of the Department of Family and Protective Services.
Added by Acts 2017, 85th Leg., R.S., Ch. 316 (H.B. 5), Sec. 35, eff. September 1, 2017.
Sec. 48.003. INVESTIGATIONS IN NURSING FACILITIES, ASSISTED LIVING FACILITIES, AND SIMILAR FACILITIES. (a) Except as provided by Subsection (c), this chapter does not apply if the alleged or suspected abuse, neglect, or exploitation occurs in a facility licensed under Chapter 242 or 247, Health and Safety Code.
(b) Alleged or suspected abuse, neglect, or exploitation that occurs in a facility licensed under Chapter 242 or 247, Health and Safety Code, is governed by Chapter 260A, Health and Safety Code, except as otherwise provided by Subsection (c).
(c) Subchapter F applies to an investigation of alleged or suspected abuse, neglect, or exploitation in which a provider of home and community-based services is or may be alleged to have committed the abuse, neglect, or exploitation, regardless of whether the facility in which those services were provided is licensed under Chapter 242 or 247, Health and Safety Code.
Added by Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.085 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 3, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 7 (S.B. 7), Sec. 1.05(l), eff. September 28, 2011.
Acts 2015, 84th Leg., R.S., Ch. 860 (S.B. 1880), Sec. 3, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1272 (S.B. 760), Sec. 11, eff. September 1, 2015.
Sec. 48.004. RISK ASSESSMENT. The executive commissioner by rule shall develop and maintain risk assessment criteria for use by department personnel in determining whether an elderly person or person with a disability is in imminent risk of abuse, neglect, or exploitation or in a state of abuse, neglect, or exploitation and needs protective services. The criteria must:
(1) provide for a comprehensive assessment of the person’s:
(A) environmental, physical, medical, mental health, and financial condition;
(B) social interaction and support; and
(C) need for legal intervention; and
(2) specify the circumstances under which a caseworker must consult with a supervisor regarding a case.
Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.06, eff. September 1, 2005.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.257, eff. April 2, 2015.
Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding Chapter 441, Government Code, or any other law, and subject to the availability of funds, the department shall maintain in an electronic format a summary of all records related to investigations of reports made under Section 48.051 that includes only critical information with respect to those investigations that will enable the department to research the history of a person’s involvement in the investigated cases.
Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.07, eff. September 1, 2005.
Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) Subject to the availability of funds, the department shall develop a community satisfaction survey that solicits information regarding the department’s performance with respect to providing investigative and adult protective services. In each region, the department shall send the survey at least biennially to:
(1) stakeholders in the adult protective services system, including local law enforcement agencies and prosecutors’ offices;
(2) protective services agencies, including nonprofit agencies; and
(3) courts with jurisdiction over probate matters.
(b) The department shall send the results of each region’s survey to:
(1) the region for evaluation by regional and program administrators and implementation of changes necessary to address community concerns;
(2) the presiding judge of the statutory probate courts in that region; and
(3) courts with jurisdiction over probate matters in that region.
(c) The department may not include any confidential information in the results of the survey provided under Subsection (b)(2) or (3) unless ordered by a court.
Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.07, eff. September 1, 2005.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221), Sec. 7, eff. September 1, 2011.
Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The commission, the department, the Department of Aging and Disability Services, the office of independent ombudsman for state supported living centers, and the commission’s office of inspector general shall enter into a memorandum of understanding regarding investigations of alleged abuse, neglect, or exploitation of residents or clients of state supported living centers or the ICF-IID component of the Rio Grande State Center that delineates the responsibilities of each agency and office under this chapter, Chapter 261, Family Code, and Chapter 555, Health and Safety Code, and amend the memorandum of understanding as necessary to reflect changes in those responsibilities. During the negotiation of the memorandum of understanding, the agencies and offices shall jointly determine whether the forensic training received by relevant staff of the Department of Family and Protective Services is adequate. Specifically, the agencies and offices shall assess and, if necessary, develop a plan to enhance the ability of department staff to identify and report incidences that constitute a potential criminal offense. The commission is the final arbiter of any dispute regarding the memorandum of understanding under this section.
Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 25, eff. June 11, 2009.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.258, eff. April 2, 2015.
SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION: IMMUNITIES
Sec. 48.051. REPORT. (a) Except as prescribed by Subsection (b), a person having cause to believe that an elderly person, a person with a disability, or an individual receiving services from a provider as described by Subchapter F is in the state of abuse, neglect, or exploitation shall report the information required by Subsection (d) immediately to the department.
(b) If a person has cause to believe that an elderly person or a person with a disability, other than an individual receiving services from a provider as described by Subchapter F, has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency, the person shall report the information to the state agency that operates, licenses, certifies, or registers the facility for investigation by that agency.
(c) The duty imposed by Subsections (a) and (b) applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, employee or member of a board that licenses or certifies a professional, and mental health professional.
(d) The report may be made orally or in writing. It shall include:
(1) the name, age, and address of the elderly person or person with a disability;
(2) the name and address of any person responsible for the care of the elderly person or person with a disability;
(3) the nature and extent of the condition of the elderly person or person with a disability;
(4) the basis of the reporter’s knowledge; and
(5) any other relevant information.
(e) If a person who makes a report under this section chooses to give self-identifying information, the caseworker who investigates the report shall contact the person if necessary to obtain any additional information required to assist the person who is the subject of the report.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(22), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 8.043, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 6, 15(1), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 54, eff. Sept. 1, 1997. Renumbered from Sec. 48.036 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 205, Sec. 1, eff. May 21, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 2.08, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 26, eff. June 11, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 395 (S.B. 152), Sec. 6, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.259, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 860 (S.B. 1880), Sec. 4, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1272 (S.B. 760), Sec. 12, eff. September 1, 2015.
Sec. 48.052. FAILURE TO REPORT; PENALTY. (a) A person commits an offense if the person has cause to believe that an elderly person or person with a disability has been abused, neglected, or exploited or is in the state of abuse, neglect, or exploitation and knowingly fails to report in accordance with this chapter. An offense under this subsection is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the abused, neglected, or exploited person is a person with an intellectual disability who resided in a state supported living center, the ICF-IID component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the person had suffered serious bodily injury as a result of the abuse, neglect, or exploitation.
(b) This section does not apply if the alleged abuse, neglect, or exploitation occurred in a facility licensed under Chapter 242, Health and Safety Code. Failure to report abuse, neglect, or exploitation that occurs in a facility licensed under that chapter is governed by that chapter.
Added by Acts 1987, 70th Leg., ch. 1052, Sec. 5.03, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(21), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1278, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.0361 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 6, eff. Sept. 1, 1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 27, eff. June 11, 2009.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.260, eff. April 2, 2015.
Sec. 48.053. FALSE REPORT; PENALTY. (a) A person commits an offense if the person knowingly or intentionally reports information as provided in this chapter that the person knows is false or lacks factual foundation.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 1022, Sec. 55, eff. Sept. 1, 1997. Renumbered from Sec. 48.0362 by Acts 1999, 76th Leg., ch. 907, Sec. 7, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221), Sec. 8, eff. September 1, 2011.
Sec. 48.054. IMMUNITY. (a) A person filing a report under this chapter or testifying or otherwise participating in any judicial proceeding arising from a petition, report, or investigation is immune from civil or criminal liability on account of his or her petition, report, testimony, or participation, unless the person acted in bad faith or with a malicious purpose.
(b) A person, including an authorized department volunteer, medical personnel, or law enforcement officer, who at the request of the department participates in an investigation required by this chapter or in an action that results from that investigation is immune from civil or criminal liability for any act or omission relating to that participation if the person acted in good faith and, if applicable, in the course and scope of the person’s assigned responsibilities or duties.
(c) A person who reports the person’s own abuse, neglect, or exploitation of another person or who acts in bad faith or with malicious purpose in reporting alleged abuse, neglect, or exploitation is not immune from civil or criminal liability.
(d) An employer whose employee acts under Subsection (a) or (b) is immune from civil or criminal liability on account of an employee’s report, testimony, or participation in any judicial proceedings arising from a petition, report, or investigation. This subsection does not apply to an employer who is the subject of an investigation.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 8, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 205, Sec. 2, eff. May 21, 2001.
