DFPS conducts record checks in order to
• make risk assessments, family assessments, or other assessments (including assessments related to home studies or child care);
• carry out DFPS policy with respect to applicants, employees, and volunteers; and
• carry out other duties or policies of DFPS.
The records checks that DFPS may include, but are not limited to
• criminal records checks that are authorized by statute;
• CAPS history checks and child abuse and neglect records checks authorized by DFPS policy; and
• driving records checks, as needed.
Those records checks are explained in this section.
DFPS conducts records checks primarily for internal purposes. DFPS conducts records checks for external entities only when
• authorized by law or policy to do so; or
• the entity is legally entitled to confidential child abuse/neglect information.
Pursuant to §40.054 of the Human Resources Code, DFPS "subject to the availability of funds appropriated by the legislature, . . . is entitled to obtain criminal history information from records maintained by:
1. the Department of Public Safety [(DPS)], as prescribed by §411.114, Government Code;
2. another law enforcement agency in this state, subject to the same procedures and limitations prescribed by §411.114, Government Code, as applicable; or
3. federal agencies, as provided by federal law." Human Resources Code, §40.054.
Section 411.114 of the Government Code authorizes DFPS to "charge an organization that requests criminal history record information under subsection (a)(2) a fee in an amount necessary to cover the costs of obtaining the information on the organization's behalf."
Penalties for unauthorized obtainment of, use, disclosure, or release of criminal history information. The Government Code provides that there are criminal penalties for obtaining criminal history information in an unauthorized manner, using the information for an unauthorized purpose, or disclosing or providing a copy of the information to a person who is not entitled to the information. Depending on the circumstances, the penalty is a Class B misdemeanor or felony of the second degree (Texas Government Code §411.085).
The policy in Section 1800 and elsewhere in this handbook on the topic of criminal records checks is provided to enable staff and others to comply with the law and avoid these penalties.
Staff must not obtain criminal records checks, other than FBI checks, through the Licensing Division. Rather, staff must
• use the criminal records check process provided through CAPS, or
• obtain the criminal records from local law enforcement.
CPS October 2005
Section 411.114 of the Government Code states that DFPS is entitled to obtain from DPS criminal history record information maintained by DPS that relates to a person who meets any of the categories in that section. The categories that apply to the child protective services program are listed below.
Texas Government Code §411.114
CPS staff may request a criminal records check only on persons or entities in one of the following categories:
• DFPS staff — See 1820 Record Checks on Applicants, Employees, Interns, and Volunteers.
• Case-related person — A case-related person is:
• a person who is the subject of a report DFPS receives alleging that the person has abused or neglected a child, provided that report has proven to have merit;
• a person providing, at the request of the child's parent, in-home care for a child who is the subject of a report alleging the child has been abused or neglected;
• a relative providing or applying to provide in-home care for a child in the conservatorship of DFPS. See 6600 Case Planning with Relatives and Other Kinship Caregivers;
• other adults living with a relative who is providing or applying to provide in-home care to a child in the conservatorship of DFPS. See 6600 Case Planning with Relatives and Other Kinship Caregivers;
• a person providing or applying to provide adoptive or foster care for a child in the conservatorship of DFPS. See 7000 Foster and Adoptive Home Development and its sub-items;
• other adults living with a person who is providing or applying to provide adoptive or foster care for a child in the conservatorship of DFPS. See 7000 Foster and Adoptive Home Development and its sub-items; and
• a person babysitting for a child who is in the care of DFPS and who is or will be receiving adoptive, foster, or in-home care. See 7000 Foster and Adoptive Home Development and its sub-items.
• Contract-related person — A contract-related person is:
• an employee;
• an applicant for employment; or
• a volunteer or applicant volunteer for a business entity or person that contracts with DFPS to provide direct delivery or protective services to children, if the volunteer's duties or responsibilities include direct contact with children.
• External volunteer agency — See 1144 Criminal Records Check for Authorized Volunteer Organizations.
Limited disclosure of records. Under §411.114 of the Government Code, DFPS may not disclose the criminal records received from DPS (or from another Texas law enforcement agency from which DFPS received criminal history information pursuant to §411.114 of the Government Code) except as authorized (see below for definition of "disclosure").
Concerning the child protective services program, staff may disclose information obtained from criminal records checks only to the following persons/entities:
• the person who is the subject of the criminal history record information;
• an adult residing with a child and the person who is the subject of the criminal record information, if DFPS determines that the release of information to the adult is necessary to ensure the safety or welfare of the child or adult;
• a person or business entity that contracts with DFPS to provide direct delivery of protective services to children and that uses or intends to use the services of the volunteer or employs or is considering employing the person who is the subject of the criminal history record information. See contract-related person above;
• or the purpose of an administrative hearing held by DFPS concerning the person who is the subject of the criminal history record information;
• with the consent of the person who is the subject of the criminal history record information; or
• on court order.
Texas Government Code §411.114
Definition of disclosure. In this context, disclosure is defined as telling a person about the contents of the criminal records check, showing a person a copy (but not giving it to the person or allowing them to make a copy of it), or restating the information in writing or giving him a copy of the restatement.
Releasing a copy of the criminal records check. While staff may disclose the information to specific types of persons as indicated above, staff must not provide a copy of the criminal history information received from DPS to the person or agency to which the information is disclosed or to the person who is the subject of the criminal history.
Texas Government Code §411.085
[DFPS] staff may provide a copy of the criminal records check received from the Texas Department of Public Safety or local law enforcement to the court when the court will accept the material in lieu of ordering adoptive parents to provide their own criminal records check to the court.
DFPS Rules, 40 TAC §700.1502(14)(B)
DFPS obtains FBI checks pursuant to the Human Resources Code, §40.054.
An FBI records check may be indicated only if the person whose background is being checked has lived outside Texas any time during the last three years.
To obtain an FBI check, the worker gives the person whose background is being checked an FBI fingerprint card. The worker asks the person
• to take the card to a law enforcement agency to have his fingerprints recorded, and
• then to return the card to the worker.
After the individual returns the fingerprint card, the worker sends the card and Form 2971-A, Criminal History Check (Investigation of Child Abuse or Neglect), to the Child-Care Licensing Division's criminal history technician at the following address:
Criminal History Technician
Child-Care Licensing Division, Mail Code E-550
P.O. Box 149030
Austin, Texas 78714-9030
The criminal history technician then sends Form 2971-A and the fingerprint card to DPS. DPS sends the fingerprint card to the FBI. When the FBI responds, DPS notifies Child-Care Licensing of the results. Child-Care Licensing notifies the requesting worker. The requesting worker files the results in the paper case file and documents the FBI check on the Records Check window in CAPS. At the worker's option, the worker may also document on the External Documentation window that he has filed the results in the case record.
Workers or other staff may conduct a CAPS history check on a person who is a member of a case to which the worker has access or is otherwise authorized, such as to screen a prospective employee. A CAPS history check is a report of the allegations that are being or have been investigated with respect to each investigation that involves the person on whom the check is being made, the resulting overall disposition for the investigation, the overall role for the person, and related information.
Note: The CAPS history check reflects the case information at the time the check is requested. A history is not kept of the report. Thus, to document what was viewed,
• print a copy of the CAPS history check that was viewed and file it in the paper record; or
• document information from the report in the comments section of the Records Check window.
Overview. The purpose of the central registry records check is to provide information on whether a person is a designated perpetrator, designated victim-perpetrator, or sustained perpetrator of child abuse or neglect. Central registry information may be released only under defined circumstances. See 1181 Child Abuse/Neglect Central Registry; 1280 Reviews by the Office of Consumer Affairs; 1290 Release Hearings; and 1820 Records Checks on Applicants, Employees, Interns, and Volunteers. Under many circumstances, a release hearing must be offered to the person prior to or in conjunction with the release of the central registry information.
Criminal records check. The criminal records check is conducted from the Records Check window and the results are viewed from the Criminal Records Check window. When the staff person views the record(s) returned by DPS, the staff person decides whether it belongs to the person on whom the record was requested.
If the record . . .
Then the worker . . .
does belong to the person on whom the record was requested
documents in the Criminal Records Check window that the record is accepted.
does not belong to the person on whom the record was requested
• documents on the Criminal Records Check window that the record is rejected; and
• enters a comment about why he thinks the record is not about the person on whom it was requested.
CAPS then deletes the criminal record from the system.
Note: Before the deletion of the inapplicable record, the staff person must not print a copy of the record since it does not apply to the person on whom it was requested. Copies of the records which are accepted may be printed as necessary, although there are limitations on to whom this record can be disclosed and/or who can be given a copy of it.
Cross-reference: See Item 1811.2, Limited Disclosure of Records.
Records checks which are accepted and which are conducted on volunteers (to include volunteers or interns associated with DFPS or an external volunteer agency) or on persons for pre-employment purposes may be printed and maintained in paper files because they are to be retained in CAPS only for a limited length of time. As needed to document in a paper format that the person was not found on a criminal records check or that no checks were accepted because they did not belong to the person on whom they were sought, a criminal records check report on the person can be printed after inapplicable records are deleted and maintained in a paper format.
Under certain circumstances, DPS returns to DFPS criminal records check information in a paper format. This occurs when DPS
· indicates that there is an "ID Only Hit"; or
· has information in an "arrests database," which is a separate database from the one that returns information through CAPS.
These paper records will be sent to the staff person that conducted the criminal records check through CAPS. In the context of a case, a worker may document the receipt of these paper records on the Criminal Records Check or External Documentation window.
CAPS history check. These records checks are requested and viewed from the Records Check window and can be printed when the check is viewed.
Driving records check or FBI check. These records checks are conducted by the worker rather than through CAPS. When the worker conducts the check on a person in a case, the worker documents that he conducted the check on the Records Check window.