Sec. 411.1386. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: COURT CLERK; DEPARTMENT OF AGING AND DISABILITY SERVICES; GUARDIANSHIPS. (a) Except as provided by Subsections (a-1), (a-5), and (a-6), the clerk of the county having venue over a proceeding for the appointment of a guardian under Title 3, Estates Code, shall obtain from the department criminal history record information maintained by the department that relates to:
(1) a private professional guardian;
(2) each person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian;
(3) each person employed by a private professional guardian who will:
(A) have personal contact with a ward or proposed ward;
(B) exercise control over and manage a ward's estate; or
(C) perform any duties with respect to the management of a ward's estate;
(4) each person employed by or volunteering or contracting with a guardianship program to provide guardianship services to a ward of the program on the program's behalf; or
(5) any other person proposed to serve as a guardian under Title 3, Estates Code, including a proposed temporary guardian and a proposed successor guardian, other than an attorney.
(a-1) The Department of Aging and Disability Services shall obtain from the Department of Public Safety criminal history record information maintained by the Department of Public Safety that relates to each individual who is or will be providing guardianship services to a ward of or referred by the Department of Aging and Disability Services, including:
(1) an employee of or an applicant selected for an employment position with the Department of Aging and Disability Services;
(2) a volunteer or an applicant selected to volunteer with the Department of Aging and Disability Services;
(3) an employee of or an applicant selected for an employment position with a business entity or other person that contracts with the Department of Aging and Disability Services to provide guardianship services to a ward referred by the department;
(4) a volunteer or an applicant selected to volunteer with a business entity or person described by Subdivision (3); and
(5) a contractor or an employee of a contractor who provides services to a ward of the Department of Aging and Disability Services under a contract with the estate of the ward.
(a-2) The information in Subsection (a-1) regarding applicants for employment positions must be obtained before an offer of employment, and the information regarding applicant volunteers must be obtained before the person's contact with a ward of or referred by the Department of Aging and Disability Services.
(a-3) The information in Subsection (a-1) regarding employees, contractors, or volunteers providing guardianship services must be obtained annually.
(a-4) The Department of Aging and Disability Services shall provide the information obtained under Subsection (a-1) to:
(1) the clerk of the county having venue over the guardianship proceeding at the request of the court; and
(2) the guardianship certification program of the Judicial Branch Certification Commission at the request of the commission.
(a-5) Not later than the 10th day before the date of the hearing to appoint a guardian, a person may submit to the clerk a copy of the person's criminal history record information required under Subsection (a)(5) that the person obtains from the department not earlier than the 30th day before the date of the hearing.
(a-6) The clerk described by Subsection (a) is not required to obtain criminal history record information for a person who holds a certificate issued under Section 155.102 or a provisional certificate issued under Section 155.103 if the guardianship certification program of the Judicial Branch Certification Commission conducted a criminal history check on the person before issuing or renewing the certificate. The commission shall provide to the clerk at the court's request the criminal history record information that was obtained from the department or the Federal Bureau of Investigation.
(b) Criminal history record information obtained by or provided to a clerk under Subsection (a), (a-5), or (a-6) is for the exclusive use of the court and is privileged and confidential.
(c) Criminal history record information obtained by or provided to a clerk under Subsection (a), (a-5), or (a-6) may not be released or disclosed to any person or agency except on court order or with the consent of the person who is the subject of the information. The clerk may destroy the criminal history record information after the information is used for the purposes authorized by this section.
(d) The criminal history record information obtained under Subsection (a-4) is for the exclusive use of the court or guardianship certification program of the Judicial Branch Certification Commission, as appropriate, and is privileged and confidential. The information may not be released or otherwise disclosed to any person or agency except on court order, with the consent of the person being investigated, or as authorized by Subsection (a-6) or Section 698(a-6), Texas Probate Code. The county clerk or guardianship certification program of the Judicial Branch Certification Commission may destroy the criminal history record information after the information is used for the purposes authorized by this section.
(e) The court, as that term is defined by Section 1002.008, Estates Code, shall use the information obtained or provided under Subsection (a), (a-4)(1), (a-5), or (a-6) only in determining whether to:
(1) appoint, remove, or continue the appointment of a private professional guardian, a guardianship program, or the Department of Aging and Disability Services; or
(2) appoint any other person proposed to serve as a guardian under Title 3, Estates Code, including a proposed temporary guardian and a proposed successor guardian, other than an attorney.
(f) Criminal history record information obtained by the guardianship certification program of the Judicial Branch Certification Commission under Subsection (a-4)(2) may be used for any purpose related to the issuance, denial, renewal, suspension, or revocation of a certificate issued by the commission.
(g) A person commits an offense if the person releases or discloses any information received under this section without the authorization prescribed by Subsection (c) or (d). An offense under this subsection is a Class A misdemeanor.
(h) The county clerk may charge a $10 fee to recover the costs of obtaining criminal history information records authorized by Subsection (a).
(i) This section does not prohibit the Department of Aging and Disability Services from obtaining and using criminal history record information as provided by other law.
Added by Acts 2003, 78th Leg., ch. 296, Sec. 9, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 361 (S.B. 291), Sec. 4, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 511 (S.B. 1057), Sec. 1, eff. June 19, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 42 (S.B. 966), Sec. 2.24, eff. September 1, 2014.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 2.005, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1031 (H.B. 1438), Sec. 36, eff. September 1, 2015.
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