LegalTips.ORG - Texas HUMAN RESOURCES CODE

§ 42.001. PURPOSE. The purpose of this chapter is to
protect the health, safety, and well-being of the children of the
state who reside in child-care facilities by establishing statewide
minimum standards for their safety and protection and by regulating
the facilities through a licensing program or by requiring
child-care facilities to be regulated by alternative accreditation
bodies. It is the policy of the state to ensure the protection of
all children under care in child-care facilities and to encourage
and assist in the improvement of child-care programs. It is also
the intent of the legislature that freedom of religion of all
citizens is inviolate. With respect to a school or child-care
facility sponsored by a religious organization, nothing in this
chapter gives a governmental agency authority to regulate, control,
supervise, or in any way be involved in the:
(1) form, manner, or content of religious instruction,
ministry, teaching, or the curriculum offered by the school or
facility;
(2) ability of the school or facility to select and
supervise qualified personnel, and otherwise control the terms of
employment, including the right to employ individuals who share the
religious views of the school or facility;
(3) internal self-governance and autonomy of the
school or facility; or
(4) religious environment of the school or facility,
such as symbols, art, icons, and scripture.

Acts 1979, 66th Leg., p. 2358, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1997, 75th Leg., ch. 664, § 2, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1063, § 2, eff. Sept. 1, 1997;
Acts 2001, 77th Leg., ch. 218, § 1, eff. Sept. 1, 2001.

§ 42.002. DEFINITIONS. In this chapter:
(1) "Child" means a person under 18 years of age.
(2) "Division" means the division designated by the
department to carry out the provisions of this chapter.
(3) "Child-care facility" means a facility licensed,
certified, or registered by the department to provide assessment,
care, training, education, custody, treatment, or supervision for a
child who is not related by blood, marriage, or adoption to the
owner or operator of the facility, for all or part of the 24-hour
day, whether or not the facility is operated for profit or charges
for the services it offers.
(4) "Child-care institution" means a child-care
facility that provides care for more than 12 children for 24 hours a
day, including facilities known as children's homes, halfway
houses, residential treatment centers, emergency shelters, and
therapeutic camps.
(5) "Foster group home" means a child-care facility
that provides care for 7 to 12 children for 24 hours a day.
(6) "Foster home" means a child-care facility that
provides care for not more than six children for 24 hours a day.
(7) "Day-care center" means a child-care facility that
provides care for more than 12 children under 14 years of age for
less than 24 hours a day.
(8) "Group day-care home" means a child-care facility
that provides care for 7 to 12 children under 14 years of age for
less than 24 hours a day.
(9) "Family home" means a home that provides regular
care in the caretaker's own residence for not more than six children
under 14 years of age, excluding children who are related to the
caretaker, and that provides care after school hours for not more
than six additional elementary school children, but the total
number of children, including children who are related to the
caretaker, does not exceed 12 at any given time. The term does not
include a home that provides care exclusively for any number of
children who are related to the caretaker.
(10) "Agency foster group home" means a facility that
provides care for seven to 12 children for 24 hours a day, is used
only by a licensed child-placing agency, and meets department
standards.
(11) "Agency foster home" means a facility that
provides care for not more than six children for 24 hours a day, is
used only by a licensed child-placing agency, and meets department
standards.
(12) "Child-placing agency" means a person, including
an organization, other than the natural parents or guardian of a
child who plans for the placement of or places a child in a
child-care facility, agency foster home, agency foster group home,
or adoptive home.
(13) "Facilities" includes child-care facilities and
child-placing agencies.
(14) "State of Texas" or "state" does not include
political subdivisions of the state.
(15) "Religious organization" means a church,
synagogue, or other religious institution whose purpose is to
support and serve the propagation of truly held religious beliefs.
(16) "Children who are related to the caretaker" means
children who are the children, grandchildren, siblings,
great-grandchildren, first cousins, nieces, or nephews of the
caretaker, whether by affinity or consanguinity or as the result of
a relationship created by court decree.
(17) "Regular care" means care that is provided at
least four hours a day, three or more days a week, for more than nine
consecutive weeks.

Acts 1979, 66th Leg., p. 2359, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1981, 67th Leg., p. 2812, ch. 759, § 1,
eff. Aug. 31, 1981; Acts 1987, 70th Leg., ch. 1052, § 4.01, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 984, § 1, eff. June 15,
1989; Acts 1997, 75th Leg., ch. 1022, § 23, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1063, § 3, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1217, § 1, eff. Sept. 1, 1997; Acts 2001,
77th Leg., ch. 218, § 2, eff. Sept. 1, 2001.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

§ 42.021. DIVISION DESIGNATED. (a) The department may
designate a division within the department to carry out
responsibilities the department may delegate or assign under this
chapter.
(b) The executive director of the department shall appoint
as director of a division designated under Subsection (a) a person
who meets the qualifications set by the board.
(c) The department shall employ sufficient personnel and
provide training for the personnel to carry out the provisions of
this chapter.
(d) The director may divide the state into regions for the
purpose of administering this chapter.

Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1995, 74th Leg., ch. 76, § 8.020, eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1063, § 4, eff. Sept. 1,
1997.

§ 42.022. STATE ADVISORY COMMITTEE. (a) The State
Advisory Committee on Child-Care Administrators and Facilities is
appointed by the board on the recommendation of the director.
(b) Members of the committee serve for terms of two years
expiring on February 1 of each odd-numbered year.
(c) The advisory committee is composed of 12 members
appointed by the board. The members must have the following
qualifications:
(1) two must be parents, guardians, or custodians of
children who use the facilities;
(2) two must be representatives of child advocacy
groups;
(3) two must be operators of nonprofit child-care
facilities that are licensed under this chapter;
(4) two must be experts in various professional fields
that are relevant to child care and development;
(5) two must be members of the general public; and
(6) two must be operators of proprietary child-care
facilities that are licensed under this chapter.
(d) The department shall provide staff necessary for the
committee.
(e) The committee shall review rules and minimum standards
for child-care administrators, child-care facilities, and
child-placing agencies promulgated by state agencies, and shall
advise the department, the council, and state agencies on problems
of child-care administrators, child-care facilities, and
child-placing agencies.
(f) The committee shall receive and review the annual report
of the department.
(g) The board, on the recommendation of the director, shall
appoint an advisory subcommittee on child-care administration from
the membership of the Advisory Committee on Child-Care
Administrators and Facilities. The subcommittee shall advise the
board on licensing child-care administrators, including the
content of the examination administered to license applicants under
Section 43.004. The subcommittee on child-care administration
shall meet at the same time the committee meets.
(h) In making appointments to the committee, the board shall
consider whether the committee reflects the race, ethnicity, and
age of the residents of this state and whether the committee
provides representation of the geographic regions of the state.

Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.02, eff.
Sept. 1, 1987; Acts 1995, 74th Leg., ch. 76, § 8.021, eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 920, § 9, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 1063, § 5, eff. Sept. 1, 1997.

§ 42.023. ANNUAL REPORT. (a) The executive director
shall prepare an annual written report regarding the department's
activities under this chapter.
(b) The annual report shall include:
(1) a report by regions of applications for licensure
or certification, of provisional licenses issued, denied, or
revoked, of licenses issued, denied, suspended or revoked, of
emergency closures and injunctions, and of the compliance of
state-operated agencies with certification requirements;
(2) a summary of the amount and kind of in-service
training and other professional development opportunities provided
for department staff;
(3) a summary of training and other professional
development opportunities offered to facilities' staffs; and
(4) a report of new administrative procedures, of the
number of staff and staff changes, and of plans for the coming year.
(c) Copies of the annual report shall be available to any
state citizen on request.

Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1985, 69th Leg., ch. 18, § 2, eff. April 3,
1985; Acts 1995, 74th Leg., ch. 76, § 8.022, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 1063, § 6, eff. Sept. 1, 1997.

§ 42.024. ADMINISTRATIVE PROCEDURE. Chapter 2001,
Government Code applies to all procedures under this chapter except
where it is contrary to or inconsistent with the provisions of this
chapter.

Acts 1979, 66th Leg., p. 2361, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995.

SUBCHAPTER C. REGULATION OF CERTAIN FACILITIES, HOMES, AND AGENCIES

§ 42.041. REQUIRED LICENSE OR ACCREDITATION. (a) No
person may operate a child-care facility or child-placing agency
without a license issued by the department.
(b) This section does not apply to:
(1) a state-operated facility;
(2) an agency foster home or agency foster group home;
(3) a facility that is operated in connection with a
shopping center, business, religious organization, or
establishment where children are cared for during short periods
while parents or persons responsible for the children are attending
religious services, shopping, or engaging in other activities on or
near the premises, including but not limited to retreats or classes
for religious instruction;
(4) a school or class for religious instruction that
does not last longer than two weeks and is conducted by a religious
organization during the summer months;
(5) a youth camp licensed by the Texas Department of
Health;
(6) a facility licensed, operated, certified, or
registered by another state agency;
(7) an educational facility accredited by the Texas
Education Agency or the Southern Association of Colleges and
Schools that operates primarily for educational purposes in grades
kindergarten and above, an after-school program operated directly
by an accredited educational facility, or an after-school program
operated by another entity under contract with the educational
facility, if the Texas Education Agency or Southern Association of
Colleges and Schools has approved the curriculum content of the
after-school program operated under the contract;
(8) an educational facility that operates solely for
educational purposes in grades kindergarten through at least grade
two, that does not provide custodial care for more than one hour
during the hours before or after the customary school day, and that
is a member of an organization that promulgates, publishes, and
requires compliance with health, safety, fire, and sanitation
standards equal to standards required by state, municipal, and
county codes;
(9) a kindergarten or preschool educational program
that is operated as part of a public school or a private school
accredited by the Texas Education Agency, that offers educational
programs through grade six, and that does not provide custodial
care during the hours before or after the customary school day;
(10) a family home, whether registered or listed;
(11) an educational facility that is integral to and
inseparable from its sponsoring religious organization or an
educational facility both of which do not provide custodial care
for more than two hours maximum per day, and that offers educational
programs for children age five and above in one or more of the
following: kindergarten through at least grade three, elementary,
or secondary grades;
(12) an emergency shelter facility providing shelter
to minor mothers who are the sole support of their natural children
under Section 32.201, Family Code, unless the facility would
otherwise require a license as a child-care facility under this
section;
(13) a juvenile detention facility certified under
Section 51.12, Family Code, or Section 141.042(d), a juvenile
facility providing services solely for the Texas Youth Commission,
or any other correctional facility for children operated or
regulated by another state agency or by a political subdivision of
the state;
(14) an elementary-age (ages 5-13) recreation program
operated by a municipality provided the governing body of the
municipality annually adopts standards of care by ordinance after a
public hearing for such programs, that such standards are provided
to the parents of each program participant, and that the ordinances
shall include, at a minimum, staffing ratios, minimum staff
qualifications, minimum facility, health, and safety standards,
and mechanisms for monitoring and enforcing the adopted local
standards; and further provided that parents be informed that the
program is not licensed by the state and the program may not be
advertised as a child-care facility; or
(15) an annual youth camp held in a municipality with a
population of more than 1.5 million that operates for not more than
three months and that has been operated for at least 10 years by a
nonprofit organization that provides care for the homeless.
(c) A single license that lists addresses and the
appropriate facilities may be issued to a child-care institution
that operates noncontiguous facilities that are nearby and that are
demonstrably a single operation as indicated by patterns of
staffing, finance, administrative supervision, and programs.
(d) A facility exempt from the provisions of Subsection (a)
of this section that desires to receive or participate in federal or
state funding shall be required to comply with all other provisions
of this chapter and with all regulations promulgated under this
chapter.
(e) The exemptions provided by Subsection (b) of this
section do not affect the authority of local, regional, or state
health department officials, the state fire marshal, or local fire
prevention officials to inspect child-care facilities.

Acts 1979, 66th Leg., p. 2361, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1981, 67th Leg., p. 2812, ch. 759, § 2, 3,
eff. Aug. 31, 1981; Acts 1987, 70th Leg., ch. 1052, § 4.03, eff.
Sept. 1, 1987; Acts 1987, 70th Leg., ch. 1115, § 2, eff. June 19,
1987; Acts 1995, 74th Leg., ch. 262, § 54, eff. Jan. 1, 1996;
Acts 1995, 74th Leg., ch. 847, § 1, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 165, § 7.46, eff. Sept. 1, 1997; ; Acts
1997, 75th Leg., ch. 664, § 3, 4, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th
Leg., ch. 1217, § 2, eff. Sept. 1, 1997; Acts 2001, 77th Leg.,
ch. 218, § 3, eff. Sept. 1, 2001.

§ 42.042. RULES AND STANDARDS. (a) The department
shall make rules to carry out the provisions of this chapter.
(b) The department shall conduct a comprehensive review of
all rules and standards at least every six years. For purposes of
this subsection, the six-year period begins on the latest of the
date of:
(1) the conclusion of the review of the rules and
standards;
(2) a decision by the department not to revise the
rules and standards;
(3) a decision by the board not to revise the rules and
standards; or
(4) board action adopting new standards.
(c) The department shall provide a standard procedure for
receiving and recording complaints.
(d) The department shall provide standard forms for
applications and inspection reports.
(e) The department shall promulgate minimum standards that
apply to licensed child-care facilities and to registered family
homes covered by this chapter and that will:
(1) promote the health, safety, and welfare of
children attending a facility or registered family home;
(2) promote safe, comfortable, and healthy physical
facilities and registered family homes for children;
(3) ensure adequate supervision of children by
capable, qualified, and healthy personnel;
(4) ensure adequate and healthy food service where
food service is offered;
(5) prohibit racial discrimination by child-care
facilities and registered family homes;
(6) require procedures for parental and guardian
consultation in the formulation of children's educational and
therapeutic programs; and
(7) prevent the breakdown of foster care and adoptive
placement.
(f) In promulgating minimum standards for the provision of
child-care services, the department shall recognize the various
categories of services, including services for specialized care,
the various categories of children and their particular needs, and
the differences in the organization and operation of child-care
facilities and institutions. Standards for child-care
institutions must require an intake study before a child is placed
in an institution. The intake study may be conducted at a community
mental health and mental retardation center.
(g) In promulgating minimum standards the department may
recognize and treat differently the types of services provided by
the following:
(1) registered family homes;
(2) child-care facilities, including child-care
institutions, foster group homes, foster homes, group day-care
homes, and day-care centers;
(3) child-placing agencies;
(4) agency foster homes; and
(5) agency foster group homes.
(h) The department shall promulgate minimum standards for
child-placing agencies.
(i) Before adopting minimum standards, the department shall
present the proposed standards to the State Advisory Committee on
Child-Care Facilities for review and comment, and shall send a copy
of the proposed standards to each licensee covered by the proposed
standards at least 60 days before the standards take effect to
provide the licensee an opportunity to review and to send written
suggestions to the committee and the department.
(j) The department may waive compliance with a minimum
standard in a specific instance if it determines that the economic
impact of compliance is sufficiently great to make compliance
impractical.
(k) The department may not regulate or attempt to regulate
or control the content or method of any instruction or curriculum of
a school sponsored by a religious organization.
(l) In promulgating minimum standards for the regulation of
family homes that register with the department, the department must
address the minimum qualifications, education, and training
required of a person who operates a family home registered with the
department.
(m) In determining minimum standards relating to
staff-to-child ratios, group sizes, or square footage requirements
applicable to nonresidential child-care facilities that provide
care for less than 24 hours a day, the department shall, within
available appropriations, conduct a comprehensive cost-benefit
analysis and economic impact study that includes families and
licensed child-care providers.
(n) Not later than the 60th day before the date the board
adopts a revision to the minimum standards for child-care
facilities, the department shall present the revision to the
appropriate legislative oversight committees that have
jurisdiction over child-care facilities for review and comment.
(p) The department by rule shall prescribe minimum training
standards for an employee of a regulated child-care facility,
including the time required for completing the training. The
department may not require an employee to repeat required training
if the employee has completed the training within the time
prescribed by department rule. The department's local offices
shall make available at the local office locations a copy of the
rules regarding minimum training standards, information enabling
the owner or operator of a regulated facility to apply for training
funds from other agencies to lower facility costs, and any other
materials the department may develop to assist the owner or
operator or other entity in providing the training.

Acts 1979, 66th Leg., p. 2362, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.04, eff.
Sept. 1, 1987; Acts 1995, 74th Leg., ch. 920, § 10, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1022, § 24, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1121, § 1, eff. June 19, 1997; Acts 1997,
75th Leg., ch. 1217, § 3, eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 1129, § 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg.,
ch. 218, § 4, eff. Sept. 1, 2001.

§ 42.0421. MINIMUM TRAINING STANDARDS. (a) The
minimum training standards prescribed by the department under
Section 42.042(p) for an employee of a day-care center or group
day-care home must include:
(1) eight hours of initial training for an employee of
a day-care center who has no previous training or employment
experience in a regulated child-care facility, to be completed
before the employee is given responsibility for a group of
children;
(2) 15 hours of annual training for each employee of a
day-care center or group day-care home, excluding the director,
which must include at least six hours of training in one or more of
the following areas:
(A) child growth and development;
(B) guidance and discipline;
(C) age-appropriate curriculum; and
(D) teacher-child interaction; and
(3) 20 hours of annual training for each director of a
day-care center or group day-care home, which must include at least
six hours of training in one or more of the following areas:
(A) child growth and development;
(B) guidance and discipline;
(C) age-appropriate curriculum; and
(D) teacher-child interaction.
(b) The minimum training standards prescribed by the
department under Section 42.042(p) must require an employee of a
licensed day-care center or group day-care home who provides care
for children younger than 24 months of age to receive special
training regarding the care of those children. The special
training must be included as a component of the initial training
required by Subsection (a)(1) and as a one-hour component of the
annual training required by Subsections (a)(2) and (a)(3). The
special training must include information on:
(1) recognizing and preventing shaken baby syndrome;
(2) preventing sudden infant death syndrome; and
(3) understanding early childhood brain development.
(c) The department by rule shall require an operator of a
registered family home who provides care for a child younger than 24
months of age to complete one hour of annual training on:
(1) recognizing and preventing shaken baby syndrome;
(2) preventing sudden infant death syndrome; and
(3) understanding early childhood brain development.
(d) Section 42.042(m) does not apply to the minimum training
standards required by this section.

Added by Acts 1999, 76th Leg., ch. 1211, § 1, eff. Jan. 1, 2000.
Amended by Acts 2001, 77th Leg., ch. 169, § 1, eff. Sept. 1,
2001.

§ 42.0425. ASSESSMENT SERVICES. (a) The department by
rule shall regulate assessment services provided by child-care
facilities or child-placing agencies. A child-care facility or
child-placing agency may not provide assessment services unless
specifically authorized by the department.
(b) The department by rule shall establish minimum
standards for assessment services. The standards must provide that
consideration is given to the individual needs of a child, the
appropriate place for provision of services, and the factors listed
in Section 42.042(e).
(c) In this section, "assessment services" means the
determination of the placement needs of a child who requires
substitute care.

Added by Acts 1997, 75th Leg., ch. 1022, § 25, eff. Sept. 1,
1997.

§ 42.0426. TRAINING OF PERSONNEL. A licensed facility
shall provide training for staff members in:
(1) the recognition of symptoms of child abuse,
neglect, and sexual molestation and the responsibility and
procedure of reporting suspected occurrences of child abuse,
neglect, and sexual molestation to the department or other
appropriate entity;
(2) the application of first aid; and
(3) the prevention and spread of communicable
diseases.

Added by Acts 1997, 75th Leg., ch. 1022, § 25, eff. Sept. 1,
1997.

§ 42.0427. PARENTAL VISITATION. All areas of a licensed
facility must be accessible to a parent of a child who is receiving
care at the facility if the parent visits the child during the
facility's hours of operation.

Added by Acts 1997, 75th Leg., ch. 1022, § 25, eff. Sept. 1,
1997.

§ 42.043. RULES FOR IMMUNIZATIONS. (a) The department
shall make rules for the immunization of children in facilities
regulated under this chapter.
(b) The department shall require that each child at an
appropriate age have a test for tuberculosis and be immunized
against diphtheria, tetanus, poliomyelitis, mumps, rubella, and
rubeola and against any other communicable disease as recommended
by the Texas Department of Health. The immunization must be
effective on the date of first entry into the facility. However, a
child may be provisionally admitted if the required immunizations
have begun and are completed as rapidly as medically feasible.
(c) The Texas Department of Health shall make rules for the
provisional admission of children to facilities regulated under
this chapter and may modify or delete any of the immunizations
listed in Subsection (b) of this section or require additional
immunizations as a requirement for admission to a facility.
(d) No immunization may be required for admission to a
facility regulated under this chapter if a person applying for a
child's admission submits one of the following affidavits:
(1) an affidavit signed by a licensed physician
stating that the immunization poses a significant risk to the
health and well-being of the child or a member of the child's family
or household; or
(2) an affidavit signed by the child's parent or
guardian stating that the applicant declines immunization for
reasons of conscience, including a religious belief.
(d-1) An affidavit submitted under Section (d)(2) must be on
a form described by Section 161.0041, Health and Safety Code, and
must be submitted not later than the 90th day after the date the
affidavit is notarized.
(e) Each regulated facility shall keep an individual
immunization record for each child admitted, and the records shall
be open for inspection by the department at all reasonable times.
(f) The Texas Department of Health shall provide the
immunizations required by this section to children in areas where
there is no local provision of these services.

Acts 1979, 66th Leg., p. 2362, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1993, 73rd Leg., ch. 43, § 5, eff. Sept. 1,
1993; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997;
Acts 2003, 78th Leg., ch. 198, § 2.164, eff. Sept. 1, 2003.

§ 42.0431. ENFORCEMENT OF SCREENING REQUIREMENTS
RELATING TO VISION, HEARING, AND OTHER SPECIAL SENSES AND
COMMUNICATION DISORDERS. (a) The department, after consultation
with the Texas Department of Health, shall adopt rules necessary to
ensure that children receiving care at a day-care center or group
day-care home licensed under this chapter are screened for vision,
hearing, and any other special senses or communication disorders in
compliance with rules adopted by the Texas Board of Health under
Section 36.004, Health and Safety Code.
(b) Each day-care center or group day-care home licensed
under this chapter shall maintain individual screening records for
children attending the facility who are required to be screened,
and the department may inspect those records at any reasonable
time. The department shall coordinate the monitoring inspections
in compliance with protocol agreements adopted between the
department and the Texas Department of Health pursuant to Section
42.0442.
(c) This section does not apply to a day-care center or
group day-care home operating under a certificate issued by the
department under Subchapter E.

Added by Acts 1999, 76th Leg., ch. 712, § 1, eff. June 18, 1999.

§ 42.044. INSPECTIONS. (a) An authorized
representative of the department may visit a facility regulated
under this chapter or a registered family home during operating
hours to investigate, inspect, and evaluate.
(b) The department shall inspect all licensed or certified
facilities at least once a year and may inspect other facilities or
registered family homes as necessary. The department shall
investigate a listed family home when the department receives a
complaint of abuse or neglect of a child, as defined by Section
261.001, Family Code. At least one of the annual visits must be
unannounced and all may be unannounced.
(c) The department must investigate a facility regulated
under this chapter or a registered family home when a complaint is
received. The representative of the department must notify the
operator of a registered family home or the director or authorized
representative of a regulated facility when a complaint is being
investigated and report in writing the results of the investigation
to the family home's operator or to the regulated facility's
director or the director's authorized representative.
(d) The department may call on political subdivisions and
governmental agencies for assistance within their authorized
fields.

Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1022, § 27, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1217, § 4, eff. Sept. 1, 1997;
Acts 2001, 77th Leg., ch. 218, § 5, eff. Sept. 1, 2001.

§ 42.0441. INSPECTION RESULTS. Immediately after
completing a monitoring inspection of a licensed day-care center,
licensed group day-care home, or registered family home under
Section 42.044, the authorized representative of the department
shall review the results of the monitoring inspection with a
representative of the facility and give the facility an opportunity
to respond to the inspection results.

Added by Acts 1997, 75th Leg., ch. 253, § 1, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1022, § 28, eff. Sept. 1, 1997.

§ 42.0442. COORDINATION OF INSPECTIONS; ELIMINATION OF
DUPLICATIVE INSPECTIONS. (a) The department shall coordinate
monitoring inspections of licensed day-care centers, licensed
group day-care homes, and registered family homes performed by
another state agency to eliminate redundant inspections.
(b) The department shall form an interagency task force with
the Texas Department of Health, the Texas Department of Human
Services, and the Texas Workforce Commission to develop an
inspection protocol that will coordinate inspections by those
agencies. The protocol must assign the required items for
inspection by each agency and facilitate the sharing of inspection
data and compliance history.
(c) The interagency task force shall establish an
inspection checklist based on the inspection protocol developed
under Subsection (b). Each state agency that inspects a facility
listed in Subsection (a) shall use the inspection checklist in
performing an inspection. A state agency shall make a copy of the
completed inspection checklist available to the facility at the
facility's request to assist the facility in maintaining records.
(d) The department shall provide to facilities listed in
Subsection (a) information regarding inspections, including who
may inspect a facility and the purpose of each type of inspection.

Added by Acts 1997, 75th Leg., ch. 253, § 1, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1022, § 28, eff. Sept. 1, 1997.
Amended by Acts 2001, 77th Leg., ch. 169, § 2, eff. Sept. 1,
2001.

§ 42.0443. INSPECTION INFORMATION DATABASE.

Text of section as added by Acts 1997, 75th Leg., ch. 253, § 1
(a) If feasible using available information systems, the
department shall establish a computerized database containing
relevant inspection information on licensed day-care centers,
licensed group day-care homes, and registered family homes from
other state agencies and political subdivisions of the state.
(b) The department shall make the data collected by the
department available to another state agency or political
subdivision of the state for the purpose of administering programs
or enforcing laws within the jurisdiction of that agency or
subdivision. If feasible using available information systems, the
department shall make the data directly available to the Texas
Department of Health, the Texas Department of Human Services, and
the Texas Workforce Commission through electronic information
systems. The department, the Texas Department of Health, the Texas
Department of Human Services, and the Texas Workforce Commission
shall jointly plan the development of child-care inspection
databases that, to the extent feasible, are similar in their design
and architecture to promote the sharing of data.
(c) The department may provide inspection data on licensed
day-care centers, licensed group day-care homes, or registered
family homes to the public if the department determines that
providing inspection data enhances consumer choice with respect to
those facilities.

Added by Acts 1997, 75th Leg., ch. 253, § 1, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1022, § 28, eff. Sept. 1, 1997.

For text of section as added by Acts 2003, 78th Leg., ch. 709, §
1, see § 42.0443, post.

§ 42.0443. COORDINATION OF FIRE SAFETY AND SANITATION
INSPECTIONS.

Text of section as added by Acts 2003, 78th Leg., ch. 709, § 1.
(a) The department may not inspect a licensed day-care
center, licensed group day-care home, or registered family home for
compliance with the department's fire safety or sanitation
standards if the facility, at the time of the department's
inspection, provides the department with documentation relating to
a current fire safety or sanitation inspection, as applicable,
performed by a political subdivision of this state that indicates
that the facility is in compliance with the applicable standards of
the political subdivision.
(b) If the documentation provided under Subsection (a)
indicates that the facility was required to take corrective action
or that the political subdivision imposed a restriction or
condition on the facility, the department shall determine whether
the facility took the required corrective action or complied with
the restriction or condition.
(c) The department may inspect a facility subject to this
section for compliance with the department's fire safety or
sanitation standards if:
(1) the facility does not provide the documentation
described by Subsection (a); or
(2) the department determines that the facility did
not take a corrective action or comply with a restriction or
condition described by Subsection (b).
(d) Notwithstanding any other provision of this section,
the department shall report to the appropriate political
subdivision any violation of fire safety or sanitation standards
observed by the department at a facility subject to this section.
(e) The department shall adopt rules necessary to implement
this section.

Added by Acts 2003, 78th Leg., ch. 709, § 1, eff. Sept. 1, 2003.

For text of section as added by Acts 1997, 75th Leg., ch. 253, §
1, see § 42.0443, ante.

§ 42.0445. REQUIRED BACKGROUND SEARCH OF CENTRAL
REGISTRY OF REPORTED CASES OF CHILD ABUSE OR NEGLECT. (a) Before
the department issues or renews a license, registration, or
certification under this subchapter, the department shall search
the central registry of reported cases of child abuse or neglect
established under Section 261.002, Family Code, to determine
whether the applicant or the owner or an employee of the facility or
family home is listed in the registry as a person who abused or
neglected a child.
(b) The department may adopt rules to implement this
section.

Added by Acts 1997, 75th Leg., ch. 1022, § 29, eff. Sept. 1,
1997.

§ 42.045. RECORDS. (a) A person who operates a
licensed or certified facility shall maintain individual child
development records, individual health records, statistical
records, and complete financial records.
(b) A person who provides adoption services under a license
to operate a child-placing agency shall furnish information
required by the department to determine whether adoption related
income and disbursements are reasonable, appropriate, and in
compliance with the department's minimum standards.
(c) If a child-placing agency terminates operation as a
child-placing agency, it shall, after giving notice to the
department, transfer its files and records concerning adopted
children, their biological families, and their adoptive families to
the Bureau of Vital Statistics or, after giving notice to the Bureau
of Vital Statistics, to a facility licensed by the department to
place children for adoption.

Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1983, 68th Leg., p. 1782, ch. 342, § 2,
eff. Jan. 1, 1984; Acts 1989, 71st Leg., ch. 707, § 1, eff. Sept.
1, 1989; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 1129, § 2, eff. Sept. 1, 1999.

§ 42.046. APPLICATION FOR LICENSE, LISTING, OR
REGISTRATION. (a) An applicant for a license to operate a
child-care facility or child-placing agency or for a listing or
registration to operate a family home shall submit to the
department the appropriate fee prescribed by Section 42.054 and a
completed application on a form provided by the department.
(b) The department shall supply the applicant the
application form and a copy of the appropriate minimum standards,
if applicable.
(c) After receiving an application, the department shall
investigate the applicant and the plan of care for children, if
applicable.
(d) The department shall complete the investigation and
decide on an application within two months after the date the
department receives a completed application.

Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1985, 69th Leg., ch. 212, § 1, eff. Sept.
1, 1985; Acts 1985, 69th Leg., ch. 239, § 4, eff. Sept. 1, 1985;
Acts 1997, 75th Leg., ch. 1022, § 30, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1217, § 5, eff. Sept. 1, 1997.

§ 42.0461. PUBLIC NOTICE AND HEARING IN CERTAIN
COUNTIES: RESIDENTIAL CHILD CARE. (a) Before the department may
issue a license, other than a renewal license, or certificate to
operate under Subchapter E for the operation or the expansion of
the capacity of a foster group home or foster family home that is
located in a county with a population of less than 300,000 and that
provides child care for 24 hours a day at a location other than the
actual residence of a child's primary caretaker or of a child care
institution, the applicant for the license, certificate, or
expansion shall, at the applicant's expense:
(1) conduct a public hearing on the application in
accordance with department rules after notifying the department of
the date, time, and location of the hearing; and
(2) publish notice of the application in a newspaper
of general circulation in the community in which the child-care
services are proposed to be provided.
(b) The notice required by Subsection (a)(2) must be
published at least 10 days before the date of the public hearing
required by Subsection (a)(1) and must include:
(1) the name and address of the applicant;
(2) the address at which the child-care services are
proposed to be provided;
(3) the date, time, and location of the public
hearing;
(4) the name, address, and telephone number of the
department as the licensing authority; and
(5) a statement informing the public that a person may
submit written comments to the department concerning the
application instead of or in addition to appearing at the public
hearing.
(c) The department shall require a representative of the
department to attend the public hearing in an official capacity for
the purpose of receiving public comments on the application.
(d) Before issuing a license or certificate described by
Subsection (a), the department shall consider:
(1) the amount of local resources available to support
children proposed to be served by the applicant;
(2) the impact of the proposed child-care services on
the ratio in the local school district of students enrolled in a
special education program to students enrolled in a regular
education program and the effect, if any, on the children proposed
to be served by the applicant; and
(3) the impact of the proposed child-care services on
the community and the effect on opportunities for social
interaction for the children proposed to be served by the
applicant.
(e) The department may deny the application if the
department determines that:
(1) the community has insufficient resources to
support children proposed to be served by the applicant;
(2) granting the application would significantly
increase the ratio in the local school district of students
enrolled in a special education program to students enrolled in a
regular education program and the increase would adversely affect
the children proposed to be served by the applicant; or
(3) granting the application would have a significant
adverse impact on the community and would limit opportunities for
social interaction for the children proposed to be served by the
applicant.
(f) A child-placing agency that proposes to verify an agency
home or agency group home that is located in a county with a
population of less than 300,000 that provides child care for 24
hours a day at a location other than the actual residence of a
child's primary caretaker shall:
(1) comply with the notice and hearing requirements
imposed by Subsections (a) and (b); and
(2) after conducting the required public hearing,
provide the department with information relating to the
considerations specified in Subsection (d).
(g) The department may prohibit the child-placing agency
from verifying the proposed agency home or agency group home on the
same grounds that the department may deny an application under
Subsection (e).

Added by Acts 1997, 75th Leg., ch. 1022, § 31, eff. Sept. 1,
1997.

§ 42.047. CONSULTATIONS. (a) The department shall
offer consultation to potential applicants, applicants, and
license, listing, registration, and certification holders about
meeting and maintaining standards for licensing, listing,
registration, and certification and achieving programs of
excellence in child care.
(b) The department shall offer consultation to prospective
and actual users of facilities or homes.

Acts 1979, 66th Leg., p. 2364, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1217, § 6, eff. Sept. 1, 1997.

§ 42.048. LICENSING. (a) The department shall issue a
license after determining that an applicant has satisfied all
requirements.
(b) When issuing a license, the department may impose
restrictions on a facility, including but not limited to the number
of children to be served and the type of children to be served.
(c) The department may grant a variance of an individual
standard set forth in the applicable standards for good and just
cause.
(d) A license holder must display a license issued under
this chapter in a prominent place at the facility.
(e) A license issued under this chapter is not transferable
and applies only to the operator and facility location stated in the
license application. A change in location or ownership
automatically revokes a license.
(f) A license must be issued if the department determines
that a facility meets all requirements. The evaluation shall be
based on one or more visits to the facility and a review of required
forms and records. A license is valid until revoked or surrendered.

Acts 1979, 66th Leg., p. 2364, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1081, § 1, eff. Sept.
1, 1987. Renumbered from V.T.C.A., Human Resources Code §
42.049 and amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff.
Sept. 1, 1997.

§ 42.049. LIABILITY INSURANCE REQUIRED. (a) A license
holder shall maintain liability insurance coverage in the amount of
$300,000 for each occurrence of negligence. An insurance policy or
contract required under this section must cover injury to a child
that occurs while the child is on the premises of the license holder
or in the care of the license holder.
(b) A license holder shall file with the department a
certificate or other evidence from an insurance company showing
that the license holder has an unexpired and uncancelled insurance
policy or contract that meets the requirements of this section.
(c) Should the license holder for financial reasons or for
lack of availability of an underwriter willing to issue a policy be
unable to secure the insurance required under Subsection (a) or
should the policy limits be exhausted, the license holder shall
notify the parent or a person standing in parental relationship to
each child for whom the license holder provides care a written
notice that the liability coverage is not provided and there will
not be a ground for suspension or revocation of the license holder's
license under this chapter. The license holder shall also notify
the department that the coverage is not provided and provide the
reason for same. In no case shall the inability to secure coverage
serve to indemnify the license holder for damages due to
negligence.
(d) The insurance policy or contract shall be maintained at
all times in an amount as required by this section. Failure by a
license holder to renew the policy or contract or to maintain the
policy or contract in the required amount is a ground for suspension
or revocation of the license holder's license under this chapter.
(e) This section does not apply to a group day-care home or a
listed or registered family home.

Added by Acts 1993, 73rd Leg., ch. 1002, § 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1217, § 7, eff. Sept. 1,
1997. Renumbered from V.T.C.A., Human Resources § 42.0491 and
amended by Acts 1997 75th Leg., ch. 1063, § 7, eff. Sept. 1,
1997.

§ 42.050. LICENSE RENEWAL. (a) A license holder may
apply for a new license in compliance with the requirements of this
chapter and the rules promulgated by the department.
(b) The application for a new license must be completed and
decided on by the department before the expiration of the license
under which a facility is operating.
(c) The department shall evaluate the application for a new
license to determine if all licensing requirements are met. The
evaluation may include a specified number of visits to the facility
and must include a review of all required forms and records.

Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1,
1997.

§ 42.0505. RENEWAL OF LICENSE. (a) A person who is
otherwise eligible to renew a license may renew an unexpired
license by paying the required annual fee to the department before
the expiration date of the license. A person whose license has
expired may not engage in activities that require a license until
the license has been renewed under the provisions of this section.
(b) If the person's license has been expired for 90 days or
less, the person may renew the license by paying to the department
1-1/2 times the required annual fee.
(c) If the person's license has been expired for longer than
90 days but less than one year, the person may renew the license by
paying to the department two times the required annual fee.
(d) If the person's license has been expired for one year or
longer, the person may not renew the license. The person may obtain
a new license by complying with the requirements and procedures for
obtaining an original license.
(e) At least 30 days before the expiration of a person's
license, the department shall send written notice of the impending
license expiration to the person at the license holder's last known
address according to the records of the department.

Added by Acts 1997, 75th Leg., ch. 1022, § 26, eff. Sept. 1,
1997.

§ 42.051. PROVISIONAL LICENSE. (a) The department
shall issue a provisional license when a facility's plans meet the
department's licensing requirements and one of the following
situations exists:
(1) the facility is not currently operating;
(2) the facility has relocated and has made changes in
the type of child-care service it provides; or
(3) there is a change in ownership of the facility
resulting in changes in policy and procedure or in the staff who
have direct contact with the children.
(b) A provisional license is valid for six months from the
date it is issued and may be renewed for an additional six months.

Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 707, § 2, eff. Sept.
1, 1989; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997.

§ 42.052. CERTIFICATION, LISTING, AND
REGISTRATION. (a) A state-operated child-care facility or
child-placing agency must receive certification of approval from
the department. The certification of approval remains valid until
revoked or surrendered.
(b) To be certified, a facility must comply with the
department's rules and standards and any provisions of this chapter
that apply to a licensed facility of the same category. The
operator of a certified facility must display the certification in
a prominent place at the facility.
(c) A family home that provides care for compensation for
three or fewer children, excluding children who are related to the
caretaker, shall list with the department if the home provides
regular care in the caretaker's own residence. The home may
register with the department.
(d) A family home that provides care for four or more
children, excluding children who are related to the caretaker,
shall register with the department. A family home that provides
care exclusively for any number of children who are related to the
caretaker is not required to be listed or registered with the
department.
(e) A registration or listing remains valid until revoked or
surrendered. The operator of a registered home must display the
registration in a prominent place at the home.
(f) To remain listed or registered with the department, a
family home must comply with the department's rules and standards,
if applicable, and any provision of this chapter that applies to a
listed or registered family home.
(g) The certification requirements of this section do not
apply to a Texas Youth Commission facility, a Texas Juvenile
Probation Commission facility, or a facility providing services
solely for the Texas Youth Commission.
(h) The certification requirements of this section do not
apply to a juvenile detention facility certified under Section
51.12, Family Code, or Section 141.042(d).
(i) The department shall provide to a listed family home a
copy of the listing. A listing must contain a provision that
states: "THIS HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR
REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY
SERVICES. IT HAS NOT BEEN INSPECTED AND WILL NOT BE INSPECTED."
The operator of a listed home is not required to display the listing
in a prominent place at the home but shall make the listing
available for examination. The department by rule shall provide
for a sufficient period to allow operators of family homes to comply
with the listing requirement of this section.
(j) The operator of a listed family home shall undergo
initial and subsequent background and criminal history checks
required under Section 42.056.
(k) The department shall issue a listing or registration to
a family home, as appropriate, in both English and Spanish when the
most recent federal census shows that more than one-half of the
population in a municipality or in a commissioners precinct in a
county in which the family home is located is of Hispanic origin or
Spanish-speaking.

Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1981, 67th Leg., p. 2813, ch. 759, § 4,
eff. Aug. 31, 1981; Acts 1985, 69th Leg., ch. 212, § 2, eff.
Sept. 1, 1985; Acts 1985, 69th Leg., ch. 915, § 1, eff. Sept. 1,
1985; Acts 1987, 70th Leg., ch. 1052, § 4.06, eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 707, § 3, eff. Sept. 1, 1989;
Acts 1995, 74th Leg., ch. 76, § 8.023, eff. Sept. 1, 1995; Acts
1995, 74th Leg., ch. 262, § 55, eff. Jan. 1, 1996; Acts 1997,
75th Leg., ch. 1022, § 32, eff. Sept. 1, 1997; Acts 1997, 75th
Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th Leg.,
ch. 1217, § 8, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218,
§ 6 to 8, eff. Sept. 1, 2001.

§ 42.0521. DEPOSIT OF FEES. The fees authorized by this
chapter and received by the department shall be deposited in the
general revenue fund.

Added by Acts 1985, 69th Leg., ch. 239, § 5, eff. Sept. 1, 1985.

§ 42.0522. PUBLIC ADVERTISING OF FAMILY HOMES. (a) A
family home may not place a public advertisement that uses the title
"registered family home" or any variation of that phrase unless the
home is registered under this chapter. Any public advertisement
for a registered family home that uses the title "registered family
home" must contain a provision in bold type stating: "THIS HOME IS
REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY
SERVICES BUT IS NOT LICENSED OR REGULARLY INSPECTED."
(b) A family home may not place a public advertisement that
uses the title "listed family home" or any variation of that phrase
unless the home is listed as provided by this chapter. Any public
advertisement for a listed family home that uses the title "listed
family home" must contain a provision in bold type stating: "THIS
HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED WITH
THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS NOT
BEEN INSPECTED AND WILL NOT BE INSPECTED."

Added by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1217, § 9, eff. Sept. 1, 1997.

§ 42.053. AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP
HOMES. (a) An agency foster home or agency foster group home is
considered part of the child-placing agency that operates the
agency foster home or agency foster group home for purposes of
licensing.
(b) The operator of a licensed agency shall display a copy
of the license in a prominent place in the agency foster home or
agency foster group home used by the agency.
(c) An agency foster home or agency foster group home shall
comply with all provisions of this chapter and all department rules
and standards that apply to a child-care facility caring for a
similar number of children for a similar number of hours each day.
(d) The department shall revoke or suspend the license of a
child-placing agency if an agency foster home or agency foster
group home operated by the licensed agency fails to comply with
Subsection (c) of this section.

Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.07, eff.
Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1,
1997.

§ 42.0535. REQUIRED INFORMATION FOR
VERIFICATION. (a) A child-placing agency that seeks to verify an
agency home or an agency group home shall request background
information about the agency home or group home from a
child-placing agency that has previously verified that agency home
or agency group home.
(b) Notwithstanding Section 261.201, Family Code, a
child-placing agency that has verified an agency home or an agency
group home is required to release to another child-placing agency
background information requested under Subsection (a).
(c) A child-placing agency that releases background
information under this section is immune from civil and criminal
liability for the release of the information.
(d) For purposes of this section, background information
means the home study under which the agency home or agency group
home was verified by the previous child-placing agency and any
record of noncompliance with state minimum standards received and
the resolution of any such noncompliance by the previous
child-placing agency.

Added by Acts 1997, 75th Leg., ch. 575, § 36(a), eff. Sept. 1,
1997.

§ 42.054. FEES. (a) The department shall charge an
applicant a nonrefundable application fee of $35 for an initial
license to operate a child-care facility or a child-placing agency.
(b) The department shall charge each child-care facility a
fee of $35 for a provisional license. The department shall charge
each child-placing agency a fee of $50 for a provisional license.
(c) The department shall charge each licensed child-care
facility an annual license fee in the amount of $35 plus $1 for each
child the child-care facility is permitted to serve. The fee is due
on the date on which the department issues the child-care
facility's initial license and on the anniversary of that date.
(d) The department shall charge each licensed child-placing
agency an annual license fee of $100. The fee is due on the date on
which the department issues the child-placing agency's initial
license and on the anniversary of that date.
(e) The department shall charge each family home that is
listed or registered with the department an annual fee to cover a
part of the department's cost in regulating family homes. The
amount of the fee is $20 for a listed home or $35 for a registered
home. The fee is due on the date on which the department initially
lists or registers the home and on the anniversary of that date.
(f) If a facility, agency, or home fails to pay the annual
fee when due, the license, listing, or registration, as
appropriate, is suspended until the fee is paid.
(g) The provisions of Subsections (b) through (f) of this
section do not apply to:
(1) licensed foster homes and licensed foster group
homes;
(2) nonprofit facilities regulated under this chapter
that provided 24-hour care for children in the managing
conservatorship of the department during the 12-month period
immediately preceding the anniversary date of the facility's
license; or
(3) facilities operated by a nonprofit corporation or
foundation that provides 24-hour residential care and does not
charge for the care provided.

Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1217, § 10, 11, eff. Sept. 1,
1997.

§ 42.055. SIGN POSTING. (a) Each child-care facility
shall post in a location that is conspicuous to all employees and
customers a sign that includes:
(1) a description of the provisions of the Family Code
relating to the duty to report child abuse or neglect;
(2) a description of the penalties for violating the
reporting provisions of the Family Code; and
(3) a brief description of sudden infant death
syndrome, shaken-baby syndrome, and childhood diabetes and methods
for preventing those phenomena.
(b) The department by rule shall determine the design, size,
and wording of the sign.
(c) The department shall provide the sign to each child-care
facility without charge.
(d) A person who operates a child-care facility commits an
offense if the department provides a sign to the facility as
provided by this section and the person intentionally fails to
display the sign in the facility as prescribed by this section. An
offense under this subsection is a Class C misdemeanor.

Added by Acts 1989, 71st Leg., 1st C.S., ch. 20, § 1, eff. Nov. 1,
1989. Amended by Acts 1997, 75th Leg., ch. 165, § 7.47, eff.
Sept. 1, 1997. Renumbered from V.T.C.A., Human Resources Code §
42.056 and amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff.
Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 221, § 1,
eff. Sept. 1, 2001.

§ 42.056. REQUIRED BACKGROUND AND CRIMINAL HISTORY
CHECKS. (a) In accordance with rules adopted by the department,
the director, owner, or operator of a child-care facility or family
home shall, when applying to operate a child-care facility or when
listing or registering a family home and at least once during each
24 months after receiving a license, listing, registration, or
certification of approval, submit to the department for use in
conducting background and criminal history checks:
(1) the name of the director, owner, and operator of
the facility or home, and the name of each person employed at the
facility or home; and
(2) the name of each person 14 years of age or older
who will regularly or frequently be staying or working at the
facility or home while children are being provided care.
(b) The department shall conduct background and criminal
history checks using:
(1) the information provided under Subsection (a);
(2) the information made available by the Department
of Public Safety under Section 411.114, Government Code, or by the
Federal Bureau of Investigation or other criminal justice agency
under Section 411.087, Government Code; and
(3) the department's records of reported abuse and
neglect.
(c) The department by rule shall require a child-care
facility or registered family home to pay to the department a fee in
an amount not to exceed the administrative costs the department
incurs in conducting a background and criminal history check under
this section.

Amended by Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1,
1997.

§ 42.058. COMPETITIVE BIDDING OR ADVERTISING
RULES. (a) The board may not adopt rules restricting competitive
bidding or advertising by a license holder or registration holder
except to prohibit false, misleading, or deceptive practices or to
prevent a violation of this chapter.
(b) In its rules to prohibit false, misleading, or deceptive
practices, the board may not include a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the use of a license holder's or
registration holder's personal appearance or voice in an
advertisement;
(3) relates to the size or duration of an
advertisement by the license holder or registration holder; or
(4) restricts the license holder's or registration
holder's advertisement under a trade name.

Added by Acts 1997, 75th Leg., ch. 1022, § 33, eff. Sept. 1,
1997.

§ 42.059. REQUIRED AFFIDAVIT FOR APPLICANTS FOR
EMPLOYMENT WITH FACILITY OR REGISTERED FAMILY HOME. (a) An
applicant for temporary or permanent employment with a licensed
facility or registered family home whose employment or potential
employment with the facility or home involves direct interactions
with or the opportunity to interact and associate with children
must execute and submit the following affidavit with the
application for employment:
STATE OF _____________
COUNTY OF ____________
I swear or affirm under penalty of perjury that I do not now
and I have not at any time, either as an adult or as a juvenile:
1. Been convicted of;
2. Pleaded guilty to (whether or not resulting in a
conviction);
3. Pleaded nolo contendere or no contest to;
4. Admitted;
5. Had any judgment or order rendered against me (whether by
default or otherwise);
6. Entered into any settlement of an action or claim of;
7. Had any license, certification, employment, or volunteer
position suspended, revoked, terminated, or adversely affected
because of;
8. Resigned under threat of termination of employment or
volunteerism for;
9. Had a report of child abuse or neglect made and
substantiated against me for; or
10. Have any pending criminal charges against me in this or
any other jurisdiction for;
Any conduct, matter, or thing (irrespective of formal name
thereof) constituting or involving (whether under criminal or civil
law of any jurisdiction):
1. Any felony;
2. Rape or other sexual assault;
3. Physical, sexual, emotional abuse and/or neglect of a
minor;
4. Incest;
5. Exploitation, including sexual, of a minor;
6. Sexual misconduct with a minor;
7. Molestation of a child;
8. Lewdness or indecent exposure;
9. Lewd and lascivious behavior;
10. Obscene or pornographic literature, photographs, or
videos;
11. Assault, battery, or any violent offense involving a
minor;
12. Endangerment of a child;
13. Any misdemeanor or other offense classification
involving a minor or to which a minor was a witness;
14. Unfitness as a parent or custodian;
15. Removing children from a state or concealing children in
violation of a court order;
16. Restrictions or limitations on contact or visitation with
children or minors resulting from a court order protecting a child
or minor from abuse, neglect, or exploitation; or
17. Any type of child abduction.
Except the following (list all incidents, location,
description, and date) (if none, write NONE)
Signed ________________________
Date _______________.
Subscribed and sworn to (or affirmed) before me this ________
day of ________________,____________.
Signature of notarial officer
____________________________________.
(seal, if any, of notarial officer)
My commission expires: ____________
(b) The failure or refusal of the applicant to sign or
provide the affidavit constitutes good cause for refusal to hire
the applicant.

Added by Acts 1997, 75th Leg., ch. 1022, § 33, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1129, § 3, eff. Sept.
1, 1999.

§ 42.060. CARBON MONOXIDE DETECTORS. (a) In this
section, "carbon monoxide detector" means a device that detects and
sounds an alarm to indicate the presence of a harmful level of
carbon monoxide gas.
(b) Except as provided by Subsection (d), each day-care
center, group day-care home, and family home must be equipped with
carbon monoxide detectors in accordance with department rules.
(c) The department by rule shall prescribe requirements
regarding the placement, installation, and number of carbon
monoxide detectors and maintenance procedures for those detectors.
(d) A day-care center is exempt from the carbon monoxide
detector requirements prescribed by this section if the day-care
center is located in a school facility that is subject to the school
facility standards adopted by the commissioner of education under
Section 46.008, Education Code, or similar safety standards adopted
by the board of a local school district.

Added by Acts 2003, 78th Leg., ch. 127, § 1, eff. Sept. 1, 2003.

SUBCHAPTER D. REMEDIES

§ 42.0705. RANGE OF PENALTIES. The department shall
revoke, suspend, or refuse to renew a license or registration,
place on probation a person whose license or registration has been
suspended, or reprimand a license holder or registration holder for
a violation of this chapter or a rule of the board. If a license or
registration suspension is probated, the department may require the
license holder or registration holder to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit services to the areas prescribed by the
department;
(3) continue or review professional education until
the license holder or registration holder attains a degree of skill
satisfactory to the department in those areas that are the basis of
the probation; or
(4) take corrective action relating to the violation
on which the probation is based.

Added by Acts 1997, 75th Leg., ch. 1022, § 34, eff. Sept. 1,
1997.

§ 42.071. SUSPENSION, EVALUATION, OR PROBATION OF
LICENSE OR REGISTRATION. (a) The department may suspend the
license of a facility or the registration of a family home that has
temporarily ceased operation but has definite plans for starting
operations again within the time limits of the issued license or
registration.
(b) The department may suspend a facility's license or a
family home's registration for a definite period rather than deny
or revoke the license or registration if the department finds
repeated noncompliance with standards that do not endanger the
health and safety of children. To qualify for license or
registration suspension under this subsection, a facility or family
home must suspend its operations and show that standards can be met
within the suspension period.
(c) If the department finds a facility or family home is in
repeated noncompliance with standards that do not endanger the
health and safety of children, the department may schedule the
facility or family home for evaluation or probation rather than
suspend or revoke the facility's license or the family home's
registration. The department shall provide notice to the facility
or family home of the evaluation or probation and of the items of
noncompliance not later than the 10th day before the evaluation or
probation period begins. The department shall designate a period
of not less than 30 days during which the facility or family home
will remain under evaluation. During the evaluation or probation
period, the facility or family home must correct the items that were
in noncompliance and report the corrections to the department for
approval.
(d) The department shall revoke the license of a facility or
the registration of a family home that does not comply with
standards at the end of a license or registration suspension.
(e) The department may suspend or revoke the license of a
facility or the registration of a family home that does not correct
items that were in noncompliance or that does not comply with
required standards within the applicable evaluation or probation
period.

Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1983, 68th Leg., p. 111, ch. 23, § 1, eff.
Aug. 29, 1983; Acts 1987, 70th Leg., ch. 1081, § 2, eff. Sept. 1,
1987; Acts 1997, 75th Leg., ch. 1022, § 35, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997.

§ 42.0715. COSTS CHARGED TO FACILITY OR FAMILY
HOME. The department may charge a facility or family home for
reimbursement of the reasonable cost of services provided by the
department in formulating, monitoring, and implementing a
corrective action plan for the facility or family home.

Added by Acts 1997, 75th Leg., ch. 1022, § 36, eff. Sept. 1,
1997.

§ 42.072. LICENSE, LISTING, OR REGISTRATION DENIAL,
SUSPENSION, OR REVOCATION. (a) The department may suspend, deny,
revoke, or refuse to renew the license, listing, registration, or
certification of approval of a facility or family home that does not
comply with the requirements of this chapter, the standards and
rules of the department, or the specific terms of the license,
listing, registration, or certification. The department may revoke
the probation of a person whose license, listing, or registration
is suspended if the person violates a term of the conditions of
probation.
(b) If the department proposes to take an action under
Subsection (a), the person is entitled to a hearing conducted by the
State Office of Administrative Hearings. Proceedings for a
disciplinary action are governed by the administrative procedure
law, Chapter 2001, Government Code. Rules of practice adopted by
the board under Section 2001.004, Government Code, applicable to
the proceedings for a disciplinary action may not conflict with
rules adopted by the State Office of Administrative Hearings.
(c) A person whose license, listing, registration, or
certification is revoked may not apply for any license, listing,
registration, or certification under this chapter before the second
anniversary of the date on which the revocation takes effect by
department or court order.
(d) The department by rule may provide for denial of an
application or renewal for a licensed facility or for listing or
registering a family home or may revoke a facility's license or a
family home's listing or registration based on findings of
background or criminal history as a result of a background or
criminal history check.
(e) A person may continue to operate a facility or family
home during an appeal of a license, listing, or registration denial
or revocation unless the revocation or denial is based on a
violation which poses a risk to the health or safety of children.
The department shall by rule establish the violations which pose a
risk to the health or safety of children. The department shall
notify the facility or family home of the violation which poses a
risk to health or safety and that the facility or family home may
not operate. A person who has been notified by the department that
the facility or home may not operate under this section may seek
injunctive relief from a district court in Travis County or in the
county in which the facility or home is located to allow operation
during the pendency of an appeal. The court may grant injunctive
relief against the agency's action only if the court finds that the
child-care operation does not pose a health or safety risk to
children. A court granting injunctive relief under this subsection
shall have no other jurisdiction over an appeal of final agency
action unless conferred by Chapter 2001, Government Code.
(f) The department shall deny an application or renewal for
listing or registering a family home or shall revoke a family home's
listing or registration if the results of a background or criminal
history check conducted by the department under Section 42.056 show
that a person has been convicted of an offense under Title 5, or 6,
Penal Code, or Chapter 43, Penal Code.

Acts 1979, 66th Leg., p. 2365, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1983, 68th Leg., p. 111, ch. 23, § 2, eff.
Aug. 29, 1983; Acts 1993, 73rd Leg., ch. 977, § 1, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1022, § 37, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1217, § 13, eff. Sept. 1, 1997; Acts 2001,
77th Leg., ch. 218, § 11, eff. Sept. 1, 2001.

§ 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
OR FAMILY HOME. (a) The department shall suspend a facility's
license or a family home's listing or registration and order the
immediate closing of the facility or family home if:
(1) the department finds the facility or family home
is operating in violation of the applicable standards prescribed by
this chapter; and
(2) the violation creates an immediate threat to the
health and safety of the children attending or residing in the
facility or family home.
(b) An order suspending a license, listing, or registration
and an order closing a facility or family home under this section is
immediately effective on the date on which the holder of the
license, listing, or registration receives written notice or on a
later date specified in the order.
(c) An order is valid for 10 days after the effective date of
the order.

Acts 1979, 66th Leg., p. 2366, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1993, 73rd Leg., ch. 977, § 2, eff. Sept.
1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1022, § 38, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1217, § 14, eff. Sept. 1, 1997.

§ 42.074. INJUNCTIVE RELIEF. (a) When it appears that
a person has violated, is violating, or is threatening to violate
the licensing, certification, listing, or registration
requirements of this chapter or the department's licensing,
certification, listing, or registration rules and standards, the
department may file a suit in a district court in Travis County or
in the county where the facility or family home is located for
assessment and recovery of civil penalties under Section 42.075,
for injunctive relief, including a temporary restraining order, or
for both injunctive relief and civil penalties.
(b) The district court shall grant the injunctive relief the
facts may warrant.
(c) At the department's request, the attorney general or the
county or district attorney of the county in which the facility or
family home is located shall conduct a suit in the name of the State
of Texas for injunctive relief, to recover the civil penalty, or for
both injunctive relief and civil penalties as authorized by
Subsection (a).
(d) Injunctive relief provided by this section is in
addition to any other action, proceeding, or remedy authorized by
law. It is not necessary to allege or prove in an action filed under
this section that an adequate remedy at law does not exist or that
substantial or irreparable harm would result from the continued
violation.
(e) The department is not required to give an appeal bond in
an action arising under this section.

Acts 1979, 66th Leg., p. 2367, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 4.09, eff.
Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1022, § 39, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1217, § 15, eff. Sept. 1, 1997.

§ 42.075. CIVIL PENALTY. (a) A person is subject to a
civil penalty of not less than $50 nor more than $100 for each day of
violation and for each act of violation if the person:
(1) threatens serious harm to a child in a facility or
family home by violating a provision of this chapter or a department
rule or standard;
(2) violates a provision of this chapter or a
department rule or standard three or more times within a 12-month
period; or
(3) places a public advertisement for an unlicensed
facility or an unlisted or unregistered family home.
(b) The civil penalty authorized by this section is
cumulative and in addition to the criminal penalties and injunctive
relief provided by this chapter.

Acts 1979, 66th Leg., p. 2367, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1997, 75th Leg., ch. 1022, § 40, eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1217, § 16, eff. Sept. 1, 1997.

§ 42.076. CRIMINAL PENALTIES. (a) A person who
operates a child-care facility or child-placing agency without a
license commits a Class B misdemeanor.
(b) A person who operates a family home without a required
listing or registration commits a Class B misdemeanor.
(c) A person who places a public advertisement for an
unlicensed facility or an unlisted or unregistered family home
commits a Class C misdemeanor.
(d) It is not an offense under this section if a
professional provides legal or medical services to:
(1) a parent who identifies the prospective adoptive
parent and places the child for adoption without the assistance of
the professional; or
(2) a prospective adoptive parent who identifies a
parent and receives placement of a child for adoption without
assistance of the professional.

Acts 1979, 66th Leg., p. 2367, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1985, 69th Leg., ch. 915, § 2, eff. Sept.
1, 1985; Acts 1995, 74th Leg., ch. 411, § 2, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 664, § 5, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1022, § 41, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997; Acts 1997, 75th
Leg., ch. 1217, § 17, eff. Sept. 1, 1997.

§ 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY
HOME. (a) If the department revokes or suspends a facility's
license or a family home's listing or registration, the department
shall publish notice of this action in a newspaper of general
circulation in the county in which the facility or family home is
located. The newspaper shall place the notice in the section in
which advertisements for day-care services are normally published.
(b) If a person who operates a facility or family home that
has had its license, listing, or registration revoked or suspended
later applies for a new license, listing, or registration to
operate the same facility or family home, the department shall
charge the person an application fee in an amount necessary to
reimburse the department for the cost of the notice relating to that
facility or family home.
(c) The department shall pay for publication of the notice
from funds appropriated to the department for licensing and
regulating child-care facilities and for listing, registering, and
regulating family homes and from appeal and application fees
collected under Subsection (b) and appropriated to the department.
(d) A facility or family home that has its license, listing,
or registration revoked or suspended shall mail notification of
this action by certified mail to the parents or guardian of the
child served by the facility or family home. The facility or family
home shall mail the notification within five days of the effective
date of the revocation or suspension of the license, listing, or
registration.
(e) When the most recent federal census shows that more than
one-half of the population in a municipality or in a commissioners
precinct in a county in which a family home whose listing or
registration has been revoked or suspended is located is of
Hispanic origin or Spanish-speaking, the department shall publish
the notice under Subsection (a) in both English and Spanish.

Amended by Acts 1997, 75th Leg., ch. 1022, § 42, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1063, § 7, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1217, § 18, eff. Sept. 1, 1997.

§ 42.078. ADMINISTRATIVE PENALTY. (a) The department
may impose an administrative penalty against a facility or family
home licensed or registered under this chapter that violates this
chapter or a rule or order adopted under this chapter. Nonmonetary,
administrative penalties or remedies including but not limited to
corrective action plans, probation, and evaluation periods shall be
imposed when appropriate before monetary penalties.
(b) Each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty. The penalty for a
violation may be in an amount not to exceed the following limits,
based on the number of children receiving care at the facility or
family home at the time of the violation: Number of children Maximum amount of penalty
20 or less $20
21-40 $30
41-60 $40
61-80 $50
81-100 $75
More than 100 $100

(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of any prohibited acts,
and the hazard or potential hazard created to the health, safety, or
economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) Monetary penalties shall not be assessed for violations
of clerical errors or standards which do not clearly apprise the
facility or family home of the action required by the standard.
(e) If the executive director determines that a violation
has occurred, the executive director may issue a recommendation on
the imposition of a penalty, including a recommendation on the
amount of the penalty.
(f) Within 14 days after the date the recommendation is
issued, the executive director shall give written notice of the
recommendation to the person owning or operating the facility. The
notice may be given by certified mail. The notice must include a
brief summary of the alleged violation and a statement of the amount
of the recommended penalty and must inform the person that the
person has a right to a hearing on the occurrence of the violation,
the amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(g) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
recommended penalty of the executive director or may make a written
request for a hearing on the occurrence of the violation, the amount
of the penalty, or both the occurrence of the violation and the
amount of the penalty.
(h) If the person accepts the determination and recommended
penalty of the executive director or fails to respond to the notice
in a timely manner, the executive director shall issue an order and
impose the recommended penalty.
(i) If the person requests a hearing, the executive director
shall set a hearing and give notice of the hearing to the person.
The hearing shall be held by an administrative law judge of the
State Office of Administrative Hearings. The administrative law
judge shall make findings of fact and conclusions of law and issue a
final decision finding that a violation has occurred and imposing a
penalty or finding that no violation occurred.
(j) The notice of the administrative law judge's order given
to the person under Chapter 2001, Government Code, must include a
statement of the right of the person to judicial review of the
order.
(k) Within 30 days after the date the administrative law
judge's order becomes final as provided by Section 2001.144,
Government Code, the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(l) Within the 30-day period, a person who acts under
Subsection (k)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the
executive director by certified mail.
(m) On receipt of a copy of an affidavit under Subsection
(l)(2), the executive director may file with the court, within five
days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the amount of the penalty and to
give a supersedeas bond.
(n) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the executive
director may refer the matter to the attorney general for
collection of the amount of the penalty.
(o) Judicial review of the order:
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(p) If the court sustains the occurrence of the violation,
the court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If the
court does not sustain the occurrence of the violation, the court
shall order that no penalty is owed.
(q) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the amount
of the penalty and if that amount is reduced or is not upheld by the
court, the court shall order that the appropriate amount plus
accrued interest be remitted to the person. The rate of the
interest is the rate charged on loans to depository institutions by
the New York Federal Reserve Bank, and the interest shall be paid
for the period beginning on the date the penalty was paid and ending
on the date the penalty is remitted. If the person gave a
supersedeas bond and if the amount of the penalty is not upheld by
the court, the court shall order the release of the bond. If the
person gave a supersedeas bond and if the amount of the penalty is
reduced, the court shall order the release of the bond after the
person pays the amount.
(r) A penalty collected under this section shall be sent to
the comptroller for deposit in the general revenue fund.
(s) All proceedings under this section are subject to
Chapter 2001, Government Code.

Added by Acts 1997, 75th Leg., ch. 1022, § 43, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1129, § 4, eff. Sept.
1, 1999.