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89(R) HB 141 - Engrossed version - Bill Text
89R21128 MM-D
By: Manuel, Orr
H.B. No. 141
A BILL TO BE ENTITLED
AN ACT
relating to the adoption of the revised Interstate Compact for the
Placement of Children by the State of Texas; making conforming
changes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN
SECTION 1.01. The heading of Subchapter B, Chapter 162,
Family Code, is amended to read as follows:
SUBCHAPTER B. INTERSTATE COMPACT
FOR
[
ON
] THE PLACEMENT OF
CHILDREN
SECTION 1.02. Subchapter B, Chapter 162, Family Code, is
amended by adding Section 162.1021 to read as follows:
Sec.
162.1021.
ADOPTION OF COMPACT; TEXT. The Interstate
Compact for the Placement of Children is adopted by this state and
entered into with all other jurisdictions in form substantially as
provided by this subchapter.
INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN
ARTICLE I.
PURPOSE
The purpose of this Interstate Compact for the Placement of
Children is to:
A.
Provide a process through which children subject to this
compact are placed in safe and suitable homes in a timely manner.
B.
Facilitate ongoing supervision of a placement, the
delivery of services, and communication between the states.
C.
Provide operating procedures that will ensure that
children are placed in safe and suitable homes in a timely manner.
D.
Provide for the promulgation and enforcement of
administrative rules implementing the provisions of this compact
and regulating the covered activities of the member states.
E.
Provide for uniform data collection and information
sharing between member states under this compact.
F.
Promote coordination between this compact, the
Interstate Compact for Juveniles, the Interstate Compact on
Adoption and Medical Assistance and other compacts affecting the
placement of and which provide services to children otherwise
subject to this compact.
G.
Provide for a state's continuing legal jurisdiction and
responsibility for placement and care of a child that it would have
had if the placement were intrastate.
H.
Provide for the promulgation of guidelines, in
collaboration with Indian tribes, for interstate cases involving
Indian children as is or may be permitted by federal law.
ARTICLE II.
DEFINITIONS
As used in this compact,
A.
"Approved placement" means the public child placing
agency in the receiving state has determined that the placement is
both safe and suitable for the child.
B.
"Assessment" means an evaluation of a prospective
placement by a public child placing agency in the receiving state to
determine if the placement meets the individualized needs of the
child, including but not limited to the child's safety and
stability, health and well-being, and mental, emotional, and
physical development.
An assessment is only applicable to a
placement by a public child placing agency.
C.
"Child" means an individual who has not attained the age
of eighteen (18).
D.
"Certification" means to attest, declare or swear to
before a judge or notary public.
E.
"Default" means the failure of a member state to perform
the obligations or responsibilities imposed upon it by this
compact, the bylaws or rules of the Interstate Commission.
F.
"Home Study" means an evaluation of a home environment
conducted in accordance with the applicable requirements of the
state in which the home is located, and documents the preparation
and the suitability of the placement resource for placement of a
child in accordance with the laws and requirements of the state in
which the home is located.
G.
"Indian tribe" means any Indian tribe, band, nation, or
other organized group or community of Indians recognized as
eligible for services provided to Indians by the Secretary of the
Interior because of their status as Indians, including any Alaskan
native village as defined in section 3 (c) of the Alaska Native
Claims settlement Act at 43 USC §1602(c).
H.
"Interstate Commission for the Placement of Children"
means the commission that is created under Article VIII of this
compact and which is generally referred to as the Interstate
Commission.
I.
"Jurisdiction" means the power and authority of a court
to hear and decide matters.
J.
"Legal Risk Placement" ("Legal Risk Adoption") means a
placement made preliminary to an adoption where the prospective
adoptive parents acknowledge in writing that a child can be ordered
returned to the sending state or the birth mother's state of
residence, if different from the sending state, and a final decree
of adoption shall not be entered in any jurisdiction until all
required consents are obtained or are dispensed with in accordance
with applicable law.
K.
"Member state" means a state that has enacted this
compact.
L.
"Non-custodial parent" means a person who, at the time of
the commencement of court proceedings in the sending state, does
not have sole legal custody of the child or has joint legal custody
of a child, and who is not the subject of allegations or findings of
child abuse or neglect.
M.
"Non-member state" means a state which has not enacted
this compact.
N.
"Notice of residential placement" means information
regarding a placement into a residential facility provided to the
receiving state including, but not limited to the name, date and
place of birth of the child, the identity and address of the parent
or legal guardian, evidence of authority to make the placement, and
the name and address of the facility in which the child will be
placed.
Notice of residential placement shall also include
information regarding a discharge and any unauthorized absence from
the facility.
O.
"Placement" means the act by a public or private child
placing agency intended to arrange for the care or custody of a
child in another state.
P.
"Private child placing agency" means any private
corporation, agency, foundation, institution, or charitable
organization, or any private person or attorney that facilitates,
causes, or is involved in the placement of a child from one state to
another and that is not an instrumentality of the state or acting
under color of state law.
Q.
"Provisional placement" means a determination made by
the public child placing agency in the receiving state that the
proposed placement is safe and suitable, and, to the extent
allowable, the receiving state has temporarily waived its standards
or requirements otherwise applicable to prospective foster or
adoptive parents so as to not delay the placement.
Completion of
the receiving state requirements regarding training for
prospective foster or adoptive parents shall not delay an otherwise
safe and suitable placement.
R.
"Public child placing agency" means any government child
welfare agency or child protection agency or a private entity under
contract with such an agency, regardless of whether they act on
behalf of a state, county, municipality or other governmental unit
and which facilitates, causes, or is involved in the placement of a
child from one state to another.
S.
"Receiving state" means the state to which a child is
sent, brought, or caused to be sent or brought.
T.
"Relative" means someone who is related to the child as a
parent, step- parent, sibling by half or whole blood or by adoption,
grandparent, aunt, uncle, or first cousin or a non-relative with
such significant ties to the child that they may be regarded as
relatives as determined by the court in the sending state.
U.
"Residential Facility" means a facility providing a
level of care that is sufficient to substitute for parental
responsibility or foster care, and is beyond what is needed for
assessment or treatment of an acute condition.
For purposes of the
compact, residential facilities do not include institutions
primarily educational in character, hospitals or other medical
facilities.
V.
"Rule" means a written directive, mandate, standard or
principle issued by the Interstate Commission promulgated pursuant
to Article XI of this compact that is of general applicability and
that implements, interprets or prescribes a policy or provision of
the compact.
"Rule" has the force and effect of an administrative
rule in a member state, and includes the amendment, repeal, or
suspension of an existing rule.
W.
"Sending state" means the state from which the placement
of a child is initiated.
X.
"Service member's permanent duty station" means the
military installation where an active duty Armed Services member is
currently assigned and is physically located under competent orders
that do not specify the duty as temporary.
Y.
"Service member's state of legal residence" means the
state in which the active duty Armed Services member is considered a
resident for tax and voting purposes.
Z.
"State" means a state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, the Northern Marianas Islands and
any other territory of the United States.
AA.
"State court" means a judicial body of a state that is
vested by law with responsibility for adjudicating cases involving
abuse, neglect, deprivation, delinquency or status offenses of
individuals who have not attained the age of eighteen (18).
BB.
"Supervision" means monitoring provided by the
receiving state once a child has been placed in a receiving state
pursuant to this compact.
ARTICLE III.
APPLICABILITY
A.
Except as otherwise provided in Article III, Section B,
this compact shall apply to:
1.
The interstate placement of a child subject to
ongoing court jurisdiction in the sending state, due to allegations
or findings that the child has been abused, neglected, or deprived
as defined by the laws of the sending state, provided, however, that
the placement of such a child into a residential facility shall only
require notice of residential placement to the receiving state
prior to placement.
2.
The interstate placement of a child adjudicated
delinquent or unmanageable based on the laws of the sending state
and subject to ongoing court jurisdiction of the sending state if:
a.
the child is being placed in a residential
facility in another member state and is not covered under another
compact; or
b.
the child is being placed in another member
state and the determination of safety and suitability of the
placement and services required is not provided through another
compact.
3.
The interstate placement of any child by a public
child placing agency or private child placing agency as defined in
this compact as a preliminary step to a possible adoption.
B. The provisions of this compact shall not apply to:
1.
The interstate placement of a child in a custody
proceeding in which a public child placing agency is not a party,
provided, the placement is not intended to effectuate an adoption.
2.
The interstate placement of a child with a
non-relative in a receiving state by a parent with the legal
authority to make such a placement provided, however, that the
placement is not intended to effectuate an adoption.
3.
The interstate placement of a child by one relative
with the lawful authority to make such a placement directly with a
relative in a receiving state.
4.
The placement of a child, not subject to Article
III, Section A, into a residential facility by his parent.
5.
The placement of a child with a non-custodial
parent provided that:
a.
The non-custodial parent proves to the
satisfaction of a court in the sending state a substantial
relationship with the child; and
b.
The court in the sending state makes a written
finding that placement with the non-custodial parent is in the best
interests of the child; and
c.
The court in the sending state dismisses its
jurisdiction in interstate placements in which the public child
placing agency is a party to the proceeding.
6.
A child entering the United States from a foreign
country for the purpose of adoption or leaving the United States to
go to a foreign country for the purpose of adoption in that country.
7.
Cases in which a U.S. citizen child living overseas
with his family, at least one of whom is in the U.S. Armed Services,
and who is stationed overseas, is removed and placed in a state.
8.
The sending of a child by a public child placing
agency or a private child placing agency for a visit as defined by
the rules of the Interstate Commission.
C.
For purposes of determining the applicability of this
compact to the placement of a child with a family in the Armed
Services, the public child placing agency or private child placing
agency may choose the state of the service member's permanent duty
station or the service member's declared legal residence.
D.
Nothing in this compact shall be construed to prohibit
the concurrent application of the provisions of this compact with
other applicable interstate compacts including the Interstate
Compact for Juveniles and the Interstate Compact on Adoption and
Medical Assistance.
The Interstate Commission may in cooperation
with other interstate compact commissions having responsibility
for the interstate movement, placement or transfer of children,
promulgate like rules to ensure the coordination of services,
timely placement of children, and the reduction of unnecessary or
duplicative administrative or procedural requirements.
ARTICLE IV.
JURISDICTION
A.
Except as provided in Article IV, Section H and Article
V, Section B, paragraph two and three concerning private and
independent adoptions, and in interstate placements in which the
public child placing agency is not a party to a custody proceeding,
the sending state shall retain jurisdiction over a child with
respect to all matters of custody and disposition of the child which
it would have had if the child had remained in the sending state.
Such jurisdiction shall also include the power to order the return
of the child to the sending state.
B.
When an issue of child protection or custody is brought
before a court in the receiving state, such court shall confer with
the court of the sending state to determine the most appropriate
forum for adjudication.
C.
In cases that are before courts and subject to this
compact, the taking of testimony for hearings before any judicial
officer may occur in person or by telephone, audio-video
conference, or such other means as approved by the rules of the
Interstate Commission; and Judicial officers may communicate with
other judicial officers and persons involved in the interstate
process as may be permitted by their Canons of Judicial Conduct and
any rules promulgated by the Interstate Commission.
D.
In accordance with its own laws, the court in the sending
state shall have authority to terminate its jurisdiction if:
1.
The child is reunified with the parent in the
receiving state who is the subject of allegations or findings of
abuse or neglect, only with the concurrence of the public child
placing agency in the receiving state; or
2. The child is adopted; or
3.
The child reaches the age of majority under the laws
of the sending state; or
4.
The child achieves legal independence pursuant to
the laws of the sending state; or
5.
A guardianship is created by a court in the
receiving state with the concurrence of the court in the sending
state; or
6.
An Indian tribe has petitioned for and received
jurisdiction from the court in the sending state; or
7.
The public child placing agency of the sending
state requests termination and has obtained the concurrence of the
public child placing agency in the receiving the state.
E.
When a sending state court terminates its jurisdiction,
the receiving state child placing agency shall be notified.
F.
Nothing in this article shall defeat a claim of
jurisdiction by a receiving state court sufficient to deal with an
act of truancy, delinquency, crime or behavior involving a child as
defined by the laws of the receiving state committed by the child in
the receiving state which would be a violation of its laws.
G.
Nothing in this article shall limit the receiving state's
ability to take emergency jurisdiction for the protection of the
child.
H.
The substantive laws of the state in which an adoption
will be finalized shall solely govern all issues relating to the
adoption of the child and the court in which the adoption proceeding
is filed shall have subject matter jurisdiction regarding all
substantive issues relating to the adoption, except:
1.
when the child is a ward of another court that
established jurisdiction over the child prior to the placement; or
2.
when the child is in the legal custody of a public
agency in the sending state; or
3.
when a court in the sending state has otherwise
appropriately assumed jurisdiction over the child, prior to the
submission of the request for approval of placement.
I.
A final decree of adoption shall not be entered in any
jurisdiction until the placement is authorized as an "approved
placement" by the public child placing agency in the receiving
state.
ARTICLE V.
PLACEMENT EVALUATION
A.
Prior to sending, bringing, or causing a child to be sent
or brought into a receiving state, the public child placing agency
shall provide a written request for assessment to the receiving
state.
B.
For placements by a private child placing agency, a child
may be sent or brought, or caused to be sent or brought, into a
receiving state, upon receipt and immediate review of the required
content in a request for approval of a placement in both the sending
and receiving state public child placing agency.
The required
content to accompany a request for approval shall include all of the
following:
1.
A request for approval identifying the child, birth
parent(s), the prospective adoptive parent(s), and the supervising
agency, signed by the person requesting approval; and
2.
The appropriate consents or relinquishments signed
by the birth parents in accordance with the laws of the sending
state, or where permitted the laws of the state where the adoption
will be finalized; and
3.
Certification by a licensed attorney or authorized
agent of a private adoption agency that the consent or
relinquishment is in compliance with the applicable laws of the
sending state, or where permitted the laws of the state where
finalization of the adoption will occur; and
4. A home study; and
5.
An acknowledgment of legal risk signed by the
prospective adoptive parents.
C.
The sending state and the receiving state may request
additional information or documents prior to finalization of an
approved placement, but they may not delay travel by the
prospective adoptive parents with the child if the required content
for approval has been submitted, received and reviewed by the
public child placing agency in both the sending state and the
receiving state.
D.
Approval from the public child placing agency in the
receiving state for a provisional or approved placement is required
as provided for in the rules of the Interstate Commission.
E.
The procedures for making and the request for an
assessment shall contain all information and be in such form as
provided for in the rules of the Interstate Commission.
F.
Upon receipt of a request from the public child placing
agency of the sending state, the receiving state shall initiate an
assessment of the proposed placement to determine its safety and
suitability.
If the proposed placement is a placement with a
relative, the public child placing agency of the sending state may
request a determination for a provisional placement.
G.
The public child placing agency in the receiving state
may request from the public child placing agency or the private
child placing agency in the sending state, and shall be entitled to
receive supporting or additional information necessary to complete
the assessment or approve the placement.
H.
The public child placing agency in the receiving state
shall approve a provisional placement and complete or arrange for
the completion of the assessment within the timeframes established
by the rules of the Interstate Commission.
I.
For a placement by a private child placing agency, the
sending state shall not impose any additional requirements to
complete the home study that are not required by the receiving
state, unless the adoption is finalized in the sending state.
J.
The Interstate Commission may develop uniform standards
for the assessment of the safety and suitability of interstate
placements.
ARTICLE VI. PLACEMENT AUTHORITY
A.
Except as otherwise provided in this Compact, no child
subject to this compact shall be placed into a receiving state until
approval for such placement is obtained.
B.
If the public child placing agency in the receiving state
does not approve the proposed placement then the child shall not be
placed. The receiving state shall provide written documentation of
any such determination in accordance with the rules promulgated by
the Interstate Commission. Such determination is not subject to
judicial review in the sending state.
C.
If the proposed placement is not approved, any interested
party shall have standing to seek an administrative review of the
receiving state's determination.
1.
The administrative review and any further judicial
review associated with the determination shall be conducted in the
receiving state pursuant to its applicable Administrative
Procedures Act.
2.
If a determination not to approve the placement of
the child in the receiving state is overturned upon review, the
placement shall be deemed approved, provided however that all
administrative or judicial remedies have been exhausted or the time
for such remedies has passed.
ARTICLE VII. PLACING AGENCY RESPONSIBILITY
A.
For the interstate placement of a child made by a public
child placing agency or state court:
1.
The public child placing agency in the sending
state shall have financial responsibility for:
a.
the ongoing support and maintenance for the
child during the period of the placement, unless otherwise provided
for in the receiving state; and
b.
as determined by the public child placing
agency in the sending state, services for the child beyond the
public services for which the child is eligible in the receiving
state.
2.
The receiving state shall only have financial
responsibility for:
a.
any assessment conducted by the receiving
state; and
b.
supervision conducted by the receiving state
at the level necessary to support the placement as agreed upon by
the public child placing agencies of the receiving and sending
state.
3.
Nothing in this provision shall prohibit public
child placing agencies in the sending state from entering into
agreements with licensed agencies or persons in the receiving state
to conduct assessments and provide supervision.
B.
For the placement of a child by a private child placing
agency preliminary to a possible adoption, the private child
placing agency shall be:
1.
Legally responsible for the child during the period
of placement as provided for in the law of the sending state until
the finalization of the adoption.
2.
Financially responsible for the child absent a
contractual agreement to the contrary.
C.
The public child placing agency in the receiving state
shall provide timely assessments, as provided for in the rules of
the Interstate Commission.
D.
The public child placing agency in the receiving state
shall provide, or arrange for the provision of, supervision and
services for the child, including timely reports, during the period
of the placement.
E.
Nothing in this compact shall be construed as to limit
the authority of the public child placing agency in the receiving
state from contracting with a licensed agency or person in the
receiving state for an assessment or the provision of supervision
or services for the child or otherwise authorizing the provision of
supervision or services by a licensed agency during the period of
placement.
F.
Each member state shall provide for coordination among
its branches of government concerning the state's participation in,
and compliance with, the compact and Interstate Commission
activities, through the creation of an advisory council or use of an
existing body or board.
G.
Each member state shall establish a central state compact
office, which shall be responsible for state compliance with the
compact and the rules of the Interstate Commission.
H.
The public child placing agency in the sending state
shall oversee compliance with the provisions of the Indian Child
Welfare Act (25 USC 1901 et seq.) for placements subject to the
provisions of this compact, prior to placement.
I.
With the consent of the Interstate Commission, states may
enter into limited agreements that facilitate the timely assessment
and provision of services and supervision of placements under this
compact.
ARTICLE VIII. INTERSTATE COMMISSION FOR THE PLACEMENT OF CHILDREN
The member states hereby establish, by way of this compact, a
commission known as the "Interstate Commission for the Placement of
Children."
The activities of the Interstate Commission are the
formation of public policy and are a discretionary state function.
The Interstate Commission shall:
A.
Be a joint commission of the member states and shall have
the responsibilities, powers and duties set forth herein, and such
additional powers as may be conferred upon it by subsequent
concurrent action of the respective legislatures of the member
states.
B.
Consist of one commissioner from each member state who
shall be appointed by the executive head of the state human services
administration with ultimate responsibility for the child welfare
program. The appointed commissioner shall have the legal authority
to vote on policy related matters governed by this compact binding
the state.
1.
Each member state represented at a meeting of the
Interstate Commission is entitled to one vote.
2.
A majority of the member states shall constitute a
quorum for the transaction of business, unless a larger quorum is
required by the bylaws of the Interstate Commission.
3.
A representative shall not delegate a vote to
another member state.
4.
A representative may delegate voting authority to
another person from their state for a specified meeting.
C.
In addition to the commissioners of each member state,
the Interstate Commission shall include persons who are members of
interested organizations as defined in the bylaws or rules of the
Interstate Commission. Such members shall be ex officio and shall
not be entitled to vote on any matter before the Interstate
Commission.
D.
Establish an executive committee which shall have the
authority to administer the day-to-day operations and
administration of the Interstate Commission. It shall not have the
power to engage in rulemaking.
ARTICLE IX. POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The Interstate Commission shall have the following powers:
A.
To promulgate rules and take all necessary actions to
effect the goals, purposes and obligations as enumerated in this
compact.
B. To provide for dispute resolution among member states.
C.
To issue, upon request of a member state, advisory
opinions concerning the meaning or interpretation of the interstate
compact, its bylaws, rules or actions.
D.
To enforce compliance with this compact or the bylaws or
rules of the Interstate Commission pursuant to Article XII.
E.
Collect standardized data concerning the interstate
placement of children subject to this compact as directed through
its rules which shall specify the data to be collected, the means of
collection and data exchange and reporting requirements.
F.
To establish and maintain offices as may be necessary for
the transacting of its business.
G. To purchase and maintain insurance and bonds.
H.
To hire or contract for services of personnel or
consultants as necessary to carry out its functions under the
compact and establish personnel qualification policies, and rates
of compensation.
I.
To establish and appoint committees and officers
including, but not limited to, an executive committee as required
by Article X.
J.
To accept any and all donations and grants of money,
equipment, supplies, materials, and services, and to receive,
utilize, and dispose thereof.
K.
To lease, purchase, accept contributions or donations
of, or otherwise to own, hold, improve or use any property, real,
personal, or mixed.
L.
To sell, convey, mortgage, pledge, lease, exchange,
abandon, or otherwise dispose of any property, real, personal or
mixed.
M. To establish a budget and make expenditures.
N.
To adopt a seal and bylaws governing the management and
operation of the Interstate Commission.
O.
To report annually to the legislatures, governors, the
judiciary, and state advisory councils of the member states
concerning the activities of the Interstate Commission during the
preceding year. Such reports shall also include any
recommendations that may have been adopted by the Interstate
Commission.
P.
To coordinate and provide education, training and public
awareness regarding the interstate movement of children for
officials involved in such activity.
Q.
To maintain books and records in accordance with the
bylaws of the Interstate Commission.
R.
To perform such functions as may be necessary or
appropriate to achieve the purposes of this compact.
ARTICLE X. ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
A. Bylaws
1.
Within 12 months after the first Interstate
Commission meeting, the Interstate Commission shall adopt bylaws to
govern its conduct as may be necessary or appropriate to carry out
the purposes of the compact.
2.
The Interstate Commission's bylaws and rules shall
establish conditions and procedures under which the Interstate
Commission shall make its information and official records
available to the public for inspection or copying. The Interstate
Commission may exempt from disclosure information or official
records to the extent they would adversely affect personal privacy
rights or proprietary interests.
B. Meetings
1.
The Interstate Commission shall meet at least once
each calendar year. The chairperson may call additional meetings
and, upon the request of a simple majority of the member states
shall call additional meetings.
2.
Public notice shall be given by the Interstate
Commission of all meetings and all meetings shall be open to the
public, except as set forth in the rules or as otherwise provided in
the compact. The Interstate Commission and its committees may
close a meeting, or portion thereof, where it determines by
two-thirds vote that an open meeting would be likely to:
a.
relate solely to the Interstate Commission's
internal personnel practices and procedures; or
b.
disclose matters specifically exempted from
disclosure by federal law; or
c.
disclose financial or commercial information
which is privileged, proprietary or confidential in nature; or
d.
involve accusing a person of a crime, or
formally censuring a person; or
e.
disclose information of a personal nature
where disclosure would constitute a clearly unwarranted invasion of
personal privacy or physically endanger one or more persons; or
f.
disclose investigative records compiled for
law enforcement purposes; or
g.
specifically relate to the Interstate
Commission's participation in a civil action or other legal
proceeding.
3.
For a meeting, or portion of a meeting, closed
pursuant to this provision, the Interstate Commission's legal
counsel or designee shall certify that the meeting may be closed and
shall reference each relevant exemption provision. The Interstate
Commission shall keep minutes which shall fully and clearly
describe all matters discussed in a meeting and shall provide a full
and accurate summary of actions taken, and the reasons therefore,
including a description of the views expressed and the record of a
roll call vote. All documents considered in connection with an
action shall be identified in such minutes. All minutes and
documents of a closed meeting shall remain under seal, subject to
release by a majority vote of the Interstate Commission or by court
order.
4.
The bylaws may provide for meetings of the
Interstate Commission to be conducted by telecommunication or other
electronic communication.
C. Officers and Staff
1.
The Interstate Commission may, through its
executive committee, appoint or retain a staff director for such
period, upon such terms and conditions and for such compensation as
the Interstate Commission may deem appropriate. The staff director
shall serve as secretary to the Interstate Commission, but shall
not have a vote. The staff director may hire and supervise such
other staff as may be authorized by the Interstate Commission.
2.
The Interstate Commission shall elect, from among
its members, a chairperson and a vice chairperson of the executive
committee and other necessary officers, each of whom shall have
such authority and duties as may be specified in the bylaws.
D. Qualified Immunity, Defense and Indemnification
1.
The Interstate Commission's staff director and its
employees shall be immune from suit and liability, either
personally or in their official capacity, for a claim for damage to
or loss of property or personal injury or other civil liability
caused or arising out of or relating to an actual or alleged act,
error, or omission that occurred, or that such person had a
reasonable basis for believing occurred within the scope of
Commission employment, duties, or responsibilities; provided, that
such person shall not be protected from suit or liability for
damage, loss, injury, or liability caused by a criminal act or the
intentional or willful and wanton misconduct of such person.
a.
The liability of the Interstate Commission's
staff director and employees or Interstate Commission
representatives, acting within the scope of such person's
employment or duties for acts, errors, or omissions occurring
within such person's state may not exceed the limits of liability
set forth under the Constitution and laws of that state for state
officials, employees, and agents. The Interstate Commission is
considered to be an instrumentality of the states for the purposes
of any such action. Nothing in this subsection shall be construed
to protect such person from suit or liability for damage, loss,
injury, or liability caused by a criminal act or the intentional or
willful and wanton misconduct of such person.
b.
The Interstate Commission shall defend the
staff director and its employees and, subject to the approval of the
Attorney General or other appropriate legal counsel of the member
state shall defend the commissioner of a member state in a civil
action seeking to impose liability arising out of an actual or
alleged act, error or omission that occurred within the scope of
Interstate Commission employment, duties or responsibilities, or
that the defendant had a reasonable basis for believing occurred
within the scope of Interstate Commission employment, duties, or
responsibilities, provided that the actual or alleged act, error,
or omission did not result from intentional or willful and wanton
misconduct on the part of such person.
c.
To the extent not covered by the state
involved, member state, or the Interstate Commission, the
representatives or employees of the Interstate Commission shall be
held harmless in the amount of a settlement or judgment, including
attorney's fees and costs, obtained against such persons arising
out of an actual or alleged act, error, or omission that occurred
within the scope of Interstate Commission employment, duties, or
responsibilities, or that such persons had a reasonable basis for
believing occurred within the scope of Interstate Commission
employment, duties, or responsibilities, provided that the actual
or alleged act, error, or omission did not result from intentional
or willful and wanton misconduct on the part of such persons.
ARTICLE XI. RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
A.
The Interstate Commission shall promulgate and publish
rules in order to effectively and efficiently achieve the purposes
of the compact.
B.
Rulemaking shall occur pursuant to the criteria set forth
in this article and the bylaws and rules adopted pursuant thereto.
Such rulemaking shall substantially conform to the principles of
the "Model State Administrative Procedures Act," 1981 Act, Uniform
Laws Annotated, Vol. 15, p.1 (2000), or such other administrative
procedure acts as the Interstate Commission deems appropriate
consistent with due process requirements under the United States
Constitution as now or hereafter interpreted by the U. S. Supreme
Court. All rules and amendments shall become binding as of the date
specified, as published with the final version of the rule as
approved by the Interstate Commission.
C.
When promulgating a rule, the Interstate Commission
shall, at a minimum:
1.
Publish the proposed rule's entire text stating the
reason(s) for that proposed rule; and
2.
Allow and invite any and all persons to submit
written data, facts, opinions and arguments, which information
shall be added to the record, and be made publicly available; and
3.
Promulgate a final rule and its effective date, if
appropriate, based on input from state or local officials, or
interested parties.
D.
Rules promulgated by the Interstate Commission shall
have the force and effect of administrative rules and shall be
binding in the compacting states to the extent and in the manner
provided for in this compact.
E.
Not later than 60 days after a rule is promulgated, an
interested person may file a petition in the U.S. District Court for
the District of Columbia or in the Federal District Court where the
Interstate Commission's principal office is located for judicial
review of such rule.
If the court finds that the Interstate
Commission's action is not supported by substantial evidence in the
rulemaking record, the court shall hold the rule unlawful and set it
aside.
F.
If a majority of the legislatures of the member states
rejects a rule, those states may by enactment of a statute or
resolution in the same manner used to adopt the compact cause that
such rule shall have no further force and effect in any member
state.
G.
The existing rules governing the operation of the
Interstate Compact on the Placement of Children superseded by this
act shall be null and void no less than 12, but no more than 24
months after the first meeting of the Interstate Commission created
hereunder, as determined by the members during the first meeting.
H.
Within the first 12 months of operation, the Interstate
Commission shall promulgate rules addressing the following:
1. Transition rules
2. Forms and procedures
3. Time lines
4. Data collection and reporting
5. Rulemaking
6. Visitation
7. Progress reports/supervision
8. Sharing of information/confidentiality
9. Financing of the Interstate Commission
10. Mediation, arbitration and dispute resolution
11. Education, training and technical assistance
12. Enforcement
13. Coordination with other interstate compacts
I.
Upon determination by a majority of the members of the
Interstate Commission that an emergency exists:
1.
The Interstate Commission may promulgate an
emergency rule only if it is required to:
a.
Protect the children covered by this compact
from an imminent threat to their health, safety and well-being; or
b. Prevent loss of federal or state funds; or
c.
Meet a deadline for the promulgation of an
administrative rule required by federal law.
2.
An emergency rule shall become effective
immediately upon adoption, provided that the usual rulemaking
procedures provided hereunder shall be retroactively applied to
said rule as soon as reasonably possible, but no later than 90 days
after the effective date of the emergency rule.
3.
An emergency rule shall be promulgated as provided
for in the rules of the Interstate Commission.
ARTICLE XII.
OVERSIGHT, DISPUTE RESOLUTION, ENFORCEMENT
A. Oversight
1.
The Interstate Commission shall oversee the
administration and operation of the compact.
2.
The executive, legislative and judicial branches of
state government in each member state shall enforce this compact
and the rules of the Interstate Commission and shall take all
actions necessary and appropriate to effectuate the compact's
purposes and intent.
The compact and its rules shall be binding in
the compacting states to the extent and in the manner provided for
in this compact.
3.
All courts shall take judicial notice of the
compact and the rules in any judicial or administrative proceeding
in a member state pertaining to the subject matter of this compact.
4.
The Interstate Commission shall be entitled to
receive service of process in any action in which the validity of a
compact provision or rule is the issue for which a judicial
determination has been sought and shall have standing to intervene
in any proceedings.
Failure to provide service of process to the
Interstate Commission shall render any judgment, order or other
determination, however so captioned or classified, void as to the
Interstate Commission, this compact, its bylaws or rules of the
Interstate Commission.
B. Dispute Resolution
1.
The Interstate Commission shall attempt, upon the
request of a member state, to resolve disputes which are subject to
the compact and which may arise among member states and between
member and non-member states.
2.
The Interstate Commission shall promulgate a rule
providing for both mediation and binding dispute resolution for
disputes among compacting states.
The costs of such mediation or
dispute resolution shall be the responsibility of the parties to
the dispute.
C. Enforcement
1.
If the Interstate Commission determines that a
member state has defaulted in the performance of its obligations or
responsibilities under this compact, its bylaws or rules, the
Interstate Commission may:
a.
Provide remedial training and specific
technical assistance; or
b.
Provide written notice to the defaulting state
and other member states, of the nature of the default and the means
of curing the default.
The Interstate Commission shall specify the
conditions by which the defaulting state must cure its default; or
c.
By majority vote of the members, initiate
against a defaulting member state legal action in the United State
District Court for the District of Columbia or, at the discretion of
the Interstate Commission, in the federal district where the
Interstate Commission has its principal office, to enforce
compliance with the provisions of the compact, its bylaws or rules.
The relief sought may include both injunctive relief and damages.
In the event judicial enforcement is necessary the prevailing party
shall be awarded all costs of such litigation including reasonable
attorney's fees; or
d.
Avail itself of any other remedies available
under state law or the regulation of official or professional
conduct.
ARTICLE XIII.
FINANCING OF THE COMMISSION
A.
The Interstate Commission shall pay, or provide for the
payment of the reasonable expenses of its establishment,
organization and ongoing activities.
B.
The Interstate Commission may levy on and collect an
annual assessment from each member state to cover the cost of the
operations and activities of the Interstate Commission and its
staff which must be in a total amount sufficient to cover the
Interstate Commission's annual budget as approved by its members
each year.
The aggregate annual assessment amount shall be
allocated based upon a formula to be determined by the Interstate
Commission which shall promulgate a rule binding upon all member
states.
C.
The Interstate Commission shall not incur obligations of
any kind prior to securing the funds adequate to meet the same; nor
shall the Interstate Commission pledge the credit of any of the
member states, except by and with the authority of the member state.
D.
The Interstate Commission shall keep accurate accounts
of all receipts and disbursements.
The receipts and disbursements
of the Interstate Commission shall be subject to the audit and
accounting procedures established under its bylaws.
However, all
receipts and disbursements of funds handled by the Interstate
Commission shall be audited yearly by a certified or licensed
public accountant and the report of the audit shall be included in
and become part of the annual report of the Interstate Commission.
ARTICLE XIV.
MEMBER STATES, EFFECTIVE DATE AND AMENDMENT
A. Any state is eligible to become a member state.
B.
The compact shall become effective and binding upon
legislative enactment of the compact into law by no less than 35
states.
The effective date shall be the later of July 1, 2007 or
upon enactment of the compact into law by the 35th state.
Thereafter it shall become effective and binding as to any other
member state upon enactment of the compact into law by that state.
The executive heads of the state human services administration with
ultimate responsibility for the child welfare program of non-member
states or their designees shall be invited to participate in the
activities of the Interstate Commission on a non-voting basis prior
to adoption of the compact by all states.
C.
The Interstate Commission may propose amendments to the
compact for enactment by the member states.
No amendment shall
become effective and binding on the member states unless and until
it is enacted into law by unanimous consent of the member states.
ARTICLE XV.
WITHDRAWAL AND DISSOLUTION
A. Withdrawal
1.
Once effective, the compact shall continue in force
and remain binding upon each and every member state; provided that a
member state may withdraw from the compact specifically repealing
the statute which enacted the compact into law.
2.
Withdrawal from this compact shall be by the
enactment of a statute repealing the same.
The effective date of
withdrawal shall be the effective date of the repeal of the statute.
3.
The withdrawing state shall immediately notify the
president of the Interstate Commission in writing upon the
introduction of legislation repealing this compact in the
withdrawing state.
The Interstate Commission shall then notify the
other member states of the withdrawing state's intent to withdraw.
4.
The withdrawing state is responsible for all
assessments, obligations and liabilities incurred through the
effective date of withdrawal.
5.
Reinstatement following withdrawal of a member
state shall occur upon the withdrawing state reenacting the compact
or upon such later date as determined by the members of the
Interstate Commission.
B. Dissolution of Compact
1.
This compact shall dissolve effective upon the date
of the withdrawal or default of the member state which reduces the
membership in the compact to one member state.
2.
Upon the dissolution of this compact, the compact
becomes null and void and shall be of no further force or effect,
and the business and affairs of the Interstate Commission shall be
concluded and surplus funds shall be distributed in accordance with
the bylaws.
ARTICLE XVI.
SEVERABILITY AND CONSTRUCTION
A.
The provisions of this compact shall be severable, and if
any phrase, clause, sentence or provision is deemed unenforceable,
the remaining provisions of the compact shall be enforceable.
B.
The provisions of this compact shall be liberally
construed to effectuate its purposes.
C.
Nothing in this compact shall be construed to prohibit
the concurrent applicability of other interstate compacts to which
the states are members.
ARTICLE XVII.
BINDING EFFECT OF COMPACT AND OTHER LAWS
A. Other Laws
1.
Nothing herein prevents the enforcement of any
other law of a member state that is not inconsistent with this
compact.
B. Binding Effect of the Compact
1.
All lawful actions of the Interstate Commission,
including all rules and bylaws promulgated by the Interstate
Commission, are binding upon the member states.
2.
All agreements between the Interstate Commission
and the member states are binding in accordance with their terms.
3.
In the event any provision of this compact exceeds
the constitutional limits imposed on the legislature of any member
state, such provision shall be ineffective to the extent of the
conflict with the constitutional provision in question in that
member state.
ARTICLE XVIII.
INDIAN TRIBES
Notwithstanding any other provision in this compact, the
Interstate Commission may promulgate guidelines to permit Indian
tribes to utilize the compact to achieve any or all of the purposes
of the compact as specified in Article I.
The Interstate Commission
shall make reasonable efforts to consult with Indian tribes in
promulgating guidelines to reflect the diverse circumstances of the
various Indian tribes.
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Section 162.101, Family Code, is amended to
read as follows:
Sec. 162.101. DEFINITIONS. In this subchapter:
(1)
"Public child placing agency,"
[
"Appropriate
public authorities,"
] with reference to this state, means the
commissioner of the Department of Family and Protective Services.
(2)
"Public child placing agency
[
"Appropriate
authority
] in the receiving state," with reference to this state,
means the commissioner of the Department of Family and Protective
Services.
(3) "Compact" means the Interstate Compact
for
[
on
]
the Placement of Children.
(4) "Executive head
of the state human services
administration
," with reference to this state, means the governor.
SECTION 2.02. Section 162.103(a), Family Code, is amended
to read as follows:
(a) Financial responsibility for a child placed as provided
in the compact is determined, in the first instance, as provided in
Article
VII
[
V
] of the compact. After partial or complete default
of performance under the provisions of Article
VII
[
V
] assigning
financial responsibility, the commissioner of the Department of
Family and Protective Services may bring suit under Chapter 154 and
may file a complaint with the appropriate prosecuting attorney,
claiming a violation of Section 25.05, Penal Code.
SECTION 2.03. Section 162.104, Family Code, is amended to
read as follows:
Sec. 162.104. APPROVAL OF PLACEMENT. The commissioner of
the Department of Family and Protective Services may not approve
the placement of a child in this state without the concurrence of
the individuals with whom the child is proposed to be placed or the
head of
a residential facility
[
an institution
] with which the
child is proposed to be placed.
SECTION 2.04. Section 162.105, Family Code, is amended to
read as follows:
Sec. 162.105. PLACEMENT IN ANOTHER STATE. A juvenile court
may place a delinquent child in
a residential facility
[
an
institution
] in another state as provided by Article
III
[
VI
] of the
compact. After placement in another state, the court retains
jurisdiction of the child as provided by Article
VII
[
V
] of the
compact.
SECTION 2.05. The heading to Section 162.107, Family Code,
is amended to read as follows:
Sec. 162.107.
OFFENSE
[
OFFENSES
];
PENALTY
[
PENALTIES
].
SECTION 2.06. The following provisions of the Family Code
are repealed:
(1) Section 162.102; and
(2) Section 162.107(b).
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. (a) Except as provided by Subsection (b) of
this section, this Act takes effect on the day on which the
Interstate Compact for the Placement of Children takes effect,
which according to the terms of the compact is the date on which the
compact is enacted into law by the 35th state, as defined by the
compact.
(b) Article 1 of this Act takes effect on the day on which
the Interstate Compact for the Placement of Children is enacted
into law by the 33rd state.