CHAPTER 64. STANDARDS OF OPERATION FOR LOCAL COURT-APPOINTED VOLUNTEER ADVOCATE PROGRAMS

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1 PART 3. OFFICE OF THE ATTORNEY GENERAL CHAPTER 64. STANDARDS OF OPERATION FOR LOCAL COURT-APPOINTED VOLUNTEER ADVOCATE PROGRAMS 1 TAC 64.9, The Office of the Attorney General and its Crime Victim Services Division adopt amendments to Chapter 64, 64.9 and 64.13, concerning Standards of Operation for Local Court-Appointed Volunteer Advocate Programs. The amendments to 64.9 are adopted without changes to the proposed text as published in the October 25, 2013, issue of the Texas Register (38 TexReg 7389) and will not be republished. The amendments to are adopted with changes to the proposed text as published in the October 25, 2013, issue of the Texas Register (38 TexReg 7389) and will be republished. The purpose of the amendments is to update 64.9 and The nature of the positions sought in court appointed volunteer advocate programs necessitates close proximity and interaction with minor children. These amendments are necessary to add clarity to the requirements for contracts and standards of operations for local programs and requirements for volunteer, employee, and director eligibility. Summary of Comments and Agency Response Comments pertaining to 64.13(e)(2) were received from Texas CASA and CASA of Travis County, Inc. Both commenters suggested that 64.13(e)(2) be changed to allow certain felonies, after 10 years, to not be a complete bar for consideration for a volunteer, employee or director position. The OAG agrees and made changes to the proposed subsection as well as additional changes to 64.1(e)(3) - (6) and (8) for clarification regarding other offenses. The amendments are adopted under Texas Family Code , requiring the OAG to contract with a volunteer advocate program that provides advocacy services to abused or neglected children and to adopt rules developing standards for that statewide organization. No other code, article or statute is affected by this adoption Operation of Local Program. (a) Personnel. (1) Volunteers: (A) volunteers must be a minimum of 18 years of age; (B) duties of volunteers may include, but are not limited to, reviewing applicable records, facilitating prompt and thorough review of the case, interviewing appropriate parties in order to make recommendations regarding the child's best interests, attending court hearings, and making

2 written recommendations to the court concerning the outcome that would be in the child's best interest; (C) volunteers may not: (i) take a child home for any period of time; (ii) give therapeutic counseling; (iii) make placement arrangements for a child; (iv) give or lend money or expensive gifts to a child or family; (v) take a child on an overnight outing; or (vi) allow a child to come into contact with someone the volunteer knows or should know has a criminal history involving violence, child abuse, neglect, drugs, or a sex-related offense; (D) a volunteer may on an individual case basis get written permission from the local program for an exception to an action listed under subparagraph (C) of this paragraph. If a request for an exception is made, a volunteer must disclose if anyone who resides with the volunteer or that the child might come in contact with through the volunteer does not meet the background requirements of subsection (e) of this section. A reason for granting or not granting an exception must be documented in the child's case file; (E) volunteers shall not be assigned to more than three cases simultaneously unless the assignment is approved by the local program's executive director and/or caseworker supervisor; (F) a volunteer shall not provide foster care to a child in the managing conservatorship of the Texas Department of Family Protective Services (DFPS) unless the volunteer is related to the child. This prohibition does not apply to: (i) a volunteer with whom a child has been placed with DFPS prior to June 30, 1999; or (ii) a volunteer with whom a child has been placed by an agency or person other than DFPS and the child is not in the managing conservatorship of the DFPS. (G) volunteers may not be assigned to any case in which they are related to any parties. (2) Employees: (A) employees must be a minimum of 18 years of age; (B) if an employee also serves on the board of directors, he or she may not be a voting director. (3) Board of Directors:

3 (A) the board of directors shall have at least nine members, with an executive committee composed of, at a minimum, the offices of president, vice president, secretary, and treasurer; (B) the bylaws of the local program shall include a rotation of directors, as well as term limits for directors and executive committee officers; (C) directors must be at least of 18 years of age; and (D) at least one director from each local program should attend annual training provided by the statewide organization or a national association. (b) Training. (1) Board of Directors: A local program shall provide annual orientation for new directors and ongoing education for incumbent directors which must include information on: (A) the applicable local program's goals, objectives, and methods of operation; (B) current local, statewide and national association services; (C) the court and child welfare system; and (D) program governance. (2) Volunteers and Employees: A local program shall plan and implement a training and development program for employees and volunteers and shall inform employees and volunteers about: (A) the background and needs of children served by the local program; (B) the operation of the court and the child welfare system; and (C) the nature and effect of child abuse and neglect. (3) The training program must consist of at least thirty (30) hours of pre-service training and twelve (12) hours of in-service training per year. (4) Diversity Training: The program shall provide cultural diversity training for volunteers, employees, and directors on an annual basis. (5) Review: All training and training materials for volunteers, directors, and employees are subject to review and revision by the statewide organization. (c) Administrative Matters. (1) Requirements: A local program must:

4 (A) operate under the auspices of state or county government or shall be incorporated as part of a not-for-profit organization; (B) have a maximum volunteer-to-supervisor ratio of 30:1 and a maximum case-to-supervisor ratio of 45:1; and (C) have a mission and purpose statement approved by the statewide organization. (2) Written Documentation: A local program shall have in writing: (A) the local program's goals and objectives with an action plan and timeline for meeting those goals and objectives; (B) a method for evaluating the progress of accomplishing the local program's goals and objectives; (C) a funding plan based on the local program's goals and objectives; (D) personnel policies and procedures; (E) job descriptions for employees, directors and volunteers; (F) procedures for volunteer recruiting, screening, training and appointment to cases; (G) policies for support and supervision of volunteers; (H) a grievance procedure; (I) a media/crisis communication plan; (J) a fidelity bond; (K) accounting procedures; (L) a weapons prohibition policy approved by the statewide organization; and (M) a memorandum of understanding between DFPS, the court with appropriate jurisdiction, and the local program that defines the working relationship between the local program, DFPS, and the court. (3) Equal Employment Opportunity: Local programs shall endeavor to provide equal employment opportunity regardless of race, color, religion, national origin, age, sex (including pregnancy), disability, or other status protected by law, and shall comply with all applicable laws and regulations regarding employment.

5 (4) Inclusive Organization: A local program shall endeavor to be an inclusive organization whose employees, volunteers, and directors reflect the diversity of the children and community it serves in terms of gender, ethnicity, and cultural and socio-economic backgrounds. (5) Liability: Neither the Office of the Attorney General nor the statewide organization will be liable for the actions of local program volunteers, directors or employees. Volunteers, directors and employees of local programs must abide by the conduct, confidentiality, and conflict of interest rules required by subsection (f) of this section and all other laws and regulations governing their conduct and activities. (d) Application Process. (1) Volunteers and Directors: Prospective volunteers and directors must complete a written application, personal interview(s), volunteer status acknowledgment forms, and consent and release forms for appropriate background investigations. (2) Employees: Prospective employees must complete a written application, personal interview(s), employee handbook acknowledgment forms, and consent and release forms for appropriate background investigations. (e) Criminal Background Checks; Barred and Reviewable Offenses. (1) Background Check Resources: All volunteers, employees and directors shall be subject to a criminal background check every 2 years that will include a review of an applicant's criminal history information from: (A) the Texas Crime Information Center maintained by Texas Department of Public Safety; (B) the National Crime Information Center maintained by Federal Bureau of Investigations; (C) the Texas Public Sex Offender Registry maintained by Texas Department of Public Safety; (D) the National Sex Offender Public Website maintained by the United States Department of Justice; and (E) the Child Abuse and Neglect Central Registry maintained by the Texas Department of Family and Protective Services. (2) 10-Year Bar for Certain Felony Offenses: (A) A volunteer, employee, or director whose background check produces a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication or pending charge that includes any grade of felony is in which less than 10 years have passed from the date of the offense is barred from being a volunteer, employee or director.

6 (B) A volunteer, employee, or director whose background check produces a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication or pending charge that includes any grade of felony in which 10 years or more have passed from the date of the offense and the offense is not described under paragraph (3) of this subsection may be reviewed by the local program to determine eligibility for a volunteer, employee or director position. (3) Absolute Bar for Certain Felony or Misdemeanor Offenses: A volunteer, employee, or director whose background check produces a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication or pending charge is barred from being a volunteer, employee or director if the charge is any level of offense under: (A) Chapter 19, Penal Code; (B) Chapter 20, Penal Code; (C) Chapter 20A, Penal Code; (D) Sections 21.02, 21.07, 21.08, 21.11, 21.12, Penal Code; (E) Sections , 22.02, , 22.04, , 22.05, 22.07, 22.11, Penal Code; (F) Chapter 25, Penal Code; (G) Section 28.02, Penal Code; (H) Chapter 29, Penal Code; (I) Section 30.02, Penal Code; (J) Section , Penal Code; (K) Section , Penal Code; (L) Chapter 43, Penal Code; (M) Sections 46.06, 46.09, 46.10, Penal Code; (N) Section 48.02, Penal Code; (O) Sections , 49.05, 49.07, 49.08, Penal Code; (P) Chapter 71, Penal Code; or (Q) any other charge involving violence, child abuse or neglect, assault with family violence, or a sex-related offense.

7 (4) 5-Year Bar for Driving or Boating While Intoxicated: A volunteer, employee, or director whose background check produces a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication or pending charge under Section or 49.06, Penal Code, in which 5 years or more have passed from the date of the offense may be reviewed by the local program to determine eligibility for a volunteer, employee or director position. (5) Other Offenses: A volunteer, employee, or director whose background check produces a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication or pending charge that is not an offense described under paragraph (2), (3), or (4) of this subsection may be considered by the local program to determine eligibility for a volunteer, employee or director position. (6) Pending Charge: If the volunteer, employee, or director has a pending charge described under paragraph (2), (3), or (4) of this subsection, a new review of the applicant may be made if the charge is dismissed or a finding of not guilty or other determination of innocence is entered. (7) Pattern of Offenses: A volunteer, employee, or director whose background check produces information that includes a group of offenses or information that if considered separately would not bar an applicant, may result in the disqualification of a volunteer, employee, or director if it is determined that the offenses constitute a problematic pattern. (8) Contact with Disqualified Individuals: A volunteer, employee, or director shall be barred if the volunteer, employee, or director knowingly or intentionally places a child through the actions of the volunteer, employee, or director in contact with a person whose criminal history involves an offense described under paragraph (2) or (3) of this subsection. (9) Background Checks In Other States: If a volunteer, employee, or director has lived in a state other than Texas within the last seven (7) years, the local program shall also conduct a criminal background check in that state. (10) Driving Record and Insurance: Positions involving driving will also require investigation of the individual's driving record and insurability, and documentation of a current license and satisfactory personal liability insurance. (11) Consent and Release Forms: The refusal to execute consent and release forms necessary to conduct a criminal background check shall disqualify an individual from serving as a volunteer, director, or employee. (f) Confidentiality; Conduct; and Conflicts of Interest. (1) Conduct: (A) all volunteers, directors, and employees shall conduct themselves in a professional manner and may not discriminate again any individual on the grounds of race, color, national origin, religion, sex, age, disability, or other legally protected characteristics;

8 (B) a local program may not retain a volunteer, director, or employee that does not conduct themselves in accordance with the policies of the local program or who has abused or neglected a position of trust. (2) Confidentiality: (A) all volunteers, directors, and employees shall be instructed on what constitutes confidential information; (B) a volunteer, director, or employee may not communicate any confidential information about an individual being served by a local program to a person who is not authorized to know the confidential information. (3) Conflicts of Interest: Each local program must have a written conflict of interest policy that: (A) prohibits any personal, business or financial interest that renders a volunteer, director, or employee unable or potentially unable to perform the duties and responsibilities assigned to that volunteer, director, or employee in an efficient and impartial manner; and (B) prohibits a volunteer, director, or employee from using the position for private gain or acting in manner that creates the appearance of impropriety. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on February 3, TRD Katherine Cary General Counsel Office of the Attorney General Effective date: February 23, 2014 Proposal publication date: October 25, 2013 For further information, please call: (512)