85R21568 MCK-F     By: Frank, Cook, Dale, et al. H.B. No. 3859     Substitute the following for H.B. No. 3859:     By:  Cook C.S.H.B. No. 3859       A BILL TO BE ENTITLED   AN ACT   relating to protection of the rights of conscience for child   welfare services providers.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle D, Title 2, Human Resources Code, is   amended by adding Chapter 45 to read as follows:   CHAPTER 45.  PROTECTION OF RIGHTS OF CONSCIENCE FOR   CHILD WELFARE SERVICES PROVIDERS          Sec. 45.001.  LEGISLATIVE INTENT. It is the intent of the   legislature to maintain a diverse network of service providers that   offer a range of foster capacity options and that accommodate   children from various cultural backgrounds.  To that end, the   legislature expects reasonable accommodations to be made by the   state to allow people of diverse backgrounds and beliefs to be a   part of meeting the needs of children in the child welfare system.     Decisions regarding the placement of children shall continue to be   made in the best interest of the child, including which person is   best able to provide for the child's physical, psychological, and   emotional needs and development.          Sec. 45.002.  DEFINITIONS. In this chapter:                (1)  "Adverse action" means any action that directly or   indirectly adversely affects the person against whom the adverse   action is taken, places the person in a worse position than the   person was in before the adverse action was taken, or is likely to   deter a reasonable person from acting or refusing to act. An adverse   action includes:                      (A)  denying an application for, refusing to   renew, or canceling funding;                      (B)  declining to enter into, refusing to renew,   or canceling a contract;                      (C)  declining to issue, refusing to renew, or   canceling a license;                      (D)  terminating, suspending, demoting, or   reassigning a person; and                      (E)  limiting the ability of a person to engage in   child welfare services.                (2)  "Catchment area" means a geographic service area   for providing child protective services or child welfare services   identified as part of the foster care redesign under Section   264.126, Family Code.                (3)  "Child welfare services" means social services   provided to or on behalf of children, including:                      (A)  assisting abused or neglected children;                      (B)  counseling children or parents;                       (C)  promoting foster parenting;                       (D)  providing foster homes, general residential   operations, residential care, adoptive homes, group homes, or   temporary group shelters for children;                      (E)  recruiting foster parents;                       (F)  placing children in foster homes;                       (G)  licensing foster homes;                       (H)  promoting adoption or recruiting adoptive   parents;                      (I)  assisting adoptions or supporting adoptive   families;                      (J)  performing or assisting home studies;                       (K)  assisting kinship guardianships or kinship   caregivers;                       (L)  providing family preservation services;                       (M)  providing family support services;                       (N)  providing temporary family reunification   services;                      (O)  placing children in adoptive homes; and                      (P)  serving as a foster parent.                (4)  "Child welfare services provider" means a person,   other than a governmental entity, that provides, seeks to provide,   or applies for or receives a contract, subcontract, grant,   subgrant, or cooperative agreement to provide child welfare   services.  The person is not required to be engaged exclusively in   child welfare services to be a child welfare services provider.                (5)  "Governmental entity" means:                      (A)  this state or a municipality or other   political subdivision of this state;                      (B)  any agency of this state or of a municipality   or other political subdivision of this state, including a   department, bureau, board, commission, office, agency, council,   and public institution of higher education; or                      (C)  a single source continuum contractor in this   state.          Sec. 45.003.  APPLICABILITY.  (a)  This chapter applies to   any ordinance, rule, order, decision, practice, or other exercise   of governmental authority.          (b)  This chapter applies to an act of a governmental entity,   in the exercise of governmental authority, granting or refusing to   grant a government benefit to a child welfare services provider.          Sec. 45.004.  CHILD WELFARE SERVICES PROVIDERS PROTECTED.  A   governmental entity or any person that contracts with this state or   operates under governmental authority to refer or place children   for child welfare services may not discriminate or take any adverse   action against a child welfare services provider on the basis,   wholly or partly, that the provider:                (1)  has declined or will decline to provide,   facilitate, or refer a person for child welfare services that   conflict with, or under circumstances that conflict with, the   provider's sincerely held religious beliefs;                (2)  provides or intends to provide children under the   control, care, guardianship, or direction of the provider with a   religious education, including through placing the children in a   private or parochial school or otherwise providing a religious   education in accordance with the laws of this state;                (3)  has declined or will decline to provide,   facilitate, or refer a person for abortions, contraceptives, or   drugs, devices, or services that are potentially   abortion-inducing; or                (4)  refuses to enter into a contract that is   inconsistent with or would in any way interfere with or force a   provider to surrender the rights created by this chapter.          Sec. 45.005.  SECONDARY SERVICES PROVIDERS. (a) A child   welfare services provider may not be required to provide any   service that conflicts with the provider's sincerely held religious   beliefs.          (b)  A governmental entity or any person that operates under   governmental authority to refer or place children for child welfare   services shall:                (1)  ensure that a secondary child welfare services   provider is available in that catchment area to provide a service   described by Subsection (a) to a child; or                (2)  if there is an insufficient number of secondary   services providers willing or available in that catchment area to   provide that service, provide for one or more secondary services   providers in a nearby catchment area.          Sec. 45.006.  PRIVATE RIGHT OF ACTION. A child welfare   services provider may assert an actual or threatened violation of   this chapter as a claim or defense in a judicial or administrative   proceeding and obtain the relief specified in Section 45.007.          Sec. 45.007.  REMEDIES.  (a)  A child welfare services   provider who successfully asserts a claim or defense under this   chapter is entitled to recover:                (1)  declaratory relief under Chapter 37, Civil   Practice and Remedies Code; or                (2)  injunctive relief to prevent the threatened or   continued adverse action.          (b)  A person may not bring an action for declaratory or   injunctive relief against an individual, other than an action   brought against an individual acting in the individual's official   capacity.          Sec. 45.008.  IMMUNITY WAIVED. (a)  Sovereign and   governmental immunity to suit are waived.          (b)  Notwithstanding Subsection (a), this chapter does not   waive or abolish sovereign immunity to suit under the Eleventh   Amendment to the United States Constitution.          Sec. 45.009.  EFFECT ON RIGHTS; CONSTRUCTION OF LAW.  (a)     This chapter may not be construed to authorize a governmental   entity to burden a person's free exercise of religion.          (b)  The protections of religious freedom afforded by this   chapter are in addition to the protections provided under federal   or state law and the constitutions of this state and the United   States.          (c)  This chapter may not be construed to supersede any law   of this state that is equally as protective of religious beliefs as,   or more protective of religious beliefs than, this chapter.          (d)  This chapter may not be considered to narrow the meaning   or application of any other law protecting religious beliefs.          (e)  This chapter may not be construed to prevent law   enforcement officers from exercising duties imposed on the officers   under the Family Code and the Penal Code.          (f)  This chapter may not be construed to allow a child   welfare services provider to decline to provide, facilitate, or   refer a person for child welfare services on the basis of that   person's race, ethnicity, or national origin.          (g)  This chapter may not be construed to allow a child   welfare services provider to deprive a minor of the rights,   including the right to medical care, provided by Chapters 32, 263,   and 266, Family Code.          (h)  This chapter may not be construed to prohibit the   department from:                (1)  exercising its duty as the child's managing   conservator to make decisions in the child's best interest; or                (2)  obtaining necessary child welfare services from an   alternate child welfare services provider.          Sec. 45.010.  INTERPRETATION.  This chapter shall be   liberally construed to effectuate its remedial and deterrent   purposes.          SECTION 2.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2017.