González Bill Makes ICE Detention Facilities Get A State License

The text as introduced · 2,397 words

90R1501 LRM-D

By: González of El Paso
H.B. No. 393

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of residential immigrant detention

facilities; requiring a license; authorizing a fee; providing

administrative and civil penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle G, Title 2, Health and Safety Code, is

amended by adding Chapter 148 to read as follows:

CHAPTER 148. RESIDENTIAL IMMIGRANT DETENTION FACILITIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 148.001. PURPOSE. (a) The purpose of this chapter is

to ensure residential immigrant detention facilities in this state

deliver the highest possible quality of care and for this chapter

and the rules adopted under this chapter to establish minimum

standards for acceptable quality of care for detainees.

(b) For purposes of this chapter, components of quality of

care for detainees include:

(1) humane treatment;

(2) access to medical care;

(3) coordination of services;

(4) safe surroundings; and

(5) professionalism of service providers.

Sec. 148.002. DEFINITIONS. In this chapter:

(1) "Detainee" means an individual housed at a

residential immigrant detention facility while awaiting an

immigration hearing or removal proceeding.

(2) "Residential immigrant detention facility" means

a facility operating under a contract with the United States

Immigration and Customs Enforcement to hold detainees for

immigration hearings or removal proceedings.

SUBCHAPTER B. LICENSING AND REGULATION

Sec. 148.051. LICENSE REQUIRED. A person may not establish

or operate a residential immigrant detention facility in this state

unless the person holds a license issued under this chapter.

Sec. 148.052. LICENSE APPLICATION AND FEE. (a) An

applicant for a license under this chapter must submit to the

commission an application on a form prescribed by the commission.

(b) The application must be accompanied by a nonrefundable

license fee in an amount prescribed by executive commissioner rule.

(c) The commission may provide technical assistance to an

applicant by conducting a pre-inspection of a proposed residential

immigrant detention facility and making recommendations on the

actions necessary to meet standards for licensure.

SUBCHAPTER C. COMMISSION POWERS AND DUTIES

Sec. 148.101. DUTY TO PROTECT. The commission and the

Department of Family and Protective Services shall protect

detainees in a residential immigrant detention facility by:

(1) promoting policies and monitoring conditions to

maximize the physical, mental, and emotional health of each

detainee;

(2) regulating the maintenance and operation of the

facility;

(3) imposing prompt and effective remedies for

violations of this chapter and rules and standards adopted under

this chapter; and

(4) providing the public with information regarding

the operation of residential immigrant detention facilities in this

state.

Sec. 148.102. RULES. (a) The executive commissioner, in

collaboration with the Department of Family and Protective

Services, shall adopt rules to protect detainees in a residential

immigrant detention facility, including rules:

(1) establishing minimum safety, medical, housing,

and other applicable standards necessary for humane conditions and

detainee health and safety; and

(2) requiring an assessment of the condition and

service needs of each detainee.

(b) The executive commissioner, in collaboration with the

Department of Family and Protective Services, by rule shall

prescribe the process for qualifying for a license, license term,

license renewal procedures, requirements for a separate license for

each facility owned or operated by a person, and pre-licensure

inspection requirements.

Sec. 148.103. MINIMUM STANDARDS. (a) The executive

commissioner, in collaboration with the Department of Family and

Protective Services and other appropriate state agencies, shall

adopt minimum standards to protect the health and safety of

detainees.

(b) The standards must require a residential immigrant

detention facility to:

(1) provide each detainee with access to:

(A) daily meals that meet the detainee's

nutritional and special dietary needs;

(B) clean water, functional and sanitary

restroom facilities, and showers;

(C) prescribed medications, medically necessary

eyeglasses, hearing aids, prosthetic devices, mobility aids, and

other assistive devices;

(D) health care practitioners, including

physicians and nurses, for a detainee experiencing an illness or

medical emergency;

(E) necessary vaccinations and medical

screenings on admission to the facility; and

(F) personal hygiene products, including soap,

toothpaste, toothbrush, menstrual hygiene products, and other

necessary items;

(2) maintain:

(A) proper ventilation and climate control to

prevent health risks associated with overcrowding; and

(B) sufficient medical supplies, including first

aid kits, disinfectants, and medications for common illnesses;

(3) provide daily cleaning of detainee living spaces,

including bedding and shared areas; and

(4) conduct regular inspections to monitor pest

control and food safety to prevent health hazards for detainees.

(c) The attorney general may seek injunctive relief or a

civil penalty under Subchapter D for a violation of this section.

(d) If the commission determines after notice and a hearing

a residential immigrant detention facility is operating in

violation of this section, the commission may revoke the facility's

license without further obligation to the facility operator.

Sec. 148.104. INTERACTIVE DASHBOARD. (a) The commission,

in collaboration with the Department of Family and Protective

Services, shall maintain and operate on the commission's Internet

website an interactive dashboard containing information on each

residential immigrant detention facility licensed under this

chapter.

(b) The interactive dashboard must include for each

facility:

(1) the name and physical address;

(2) the detainee population for the preceding

reporting period;

(3) the average daily number of detainees processed,

including admissions, releases, and transfers;

(4) the median length of detainee stay;

(5) the number of detainees housed at the facility who

have been charged with the commission of a criminal offense;

(6) the ethnic demographics of the detainees for the

preceding reporting period; and

(7) deidentified information on each detainee death or

injury.

Sec. 148.105. INSPECTIONS. (a) To ensure compliance with

this chapter:

(1) at least monthly:

(A) an authorized representative of the

commission shall inspect each residential immigrant detention

facility; and

(B) an authorized representative of the

Department of Family and Protective Services shall inspect each

residential immigrant detention facility; and

(2) at other reasonable times as necessary, an

authorized representative of the commission or the Department of

Family and Protective Services may inspect a facility.

(b) The commission, in collaboration with the Department of

Family and Protective Services, shall establish an inspection

checklist to identify the matters subject to inspection based on

the standards adopted under this chapter. An authorized

representative of the commission or the Department of Family and

Protective Services must use the inspection checklist in conducting

an inspection under this section.

(c) The commission, in collaboration with the Department of

Family and Protective Services, shall:

(1) produce a monthly inspection report;

(2) provide the report to each member of the

legislature;

(3) publish the report on the commission's publicly

accessible Internet website; and

(4) publish information from the report on the

commission's interactive dashboard, as required by Section

148.104.

(d) An authorized representative of the commission or the

Department of Family and Protective Services, after a reasonable

attempt to provide notice to the operator of a residential

immigrant detention facility, may enter and inspect the facility

during reasonable hours to investigate conditions, practices, or

other matters as necessary or appropriate to determine whether a

person has violated this chapter or a rule or standard adopted under

this chapter.

(e) The executive commissioner and the Department of Family

and Protective Services may adopt the rules necessary to implement

this section.

SUBCHAPTER D. ENFORCEMENT

Sec. 148.151. ENFORCEMENT. The commission and the

Department of Family and Protective Services shall enforce this

chapter.

Sec. 148.152. RIGHT TO CORRECT. The executive

commissioner, in collaboration with the Department of Family and

Protective Services, shall adopt rules regarding the right of a

residential immigrant detention facility to correct a violation

before a penalty is imposed under this subchapter. The rules must

establish:

(1) procedures to address:

(A) violations that pose an immediate threat to a

detainee's health or safety;

(B) patterns of violation; and

(C) inability to maintain a correction of a

violation;

(2) the evidence required to demonstrate proof of

correction; and

(3) a timeline for the correction process.

Sec. 148.153. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.

(a) The commission, after providing notice and opportunity for a

hearing to the applicant or license holder, may deny, suspend, or

revoke a license if the commission or the Department of Family and

Protective Services finds the applicant or license holder

repeatedly or substantially violated this chapter or a rule,

standard, or order adopted under this chapter.

(b) A proceeding under this section is a contested case

under Chapter 2001, Government Code. Judicial review of the

commission's decision is governed by that chapter.

(c) A court conducting judicial review of a decision under

this section may not order arbitration of the dispute.

Sec. 148.154. INJUNCTION. (a) The commission may petition

a district court for a temporary restraining order to restrain a

continuing violation of the licensing requirements provided by or

rules or standards prescribed under this chapter if the commission

finds that:

(1) the violation creates an immediate threat to the

health and safety of a detainee; or

(2) the residential immigrant detention facility is

operating without a license.

(b) A district court, on petition of the commission and on

the court's finding that a person is violating the licensing

requirements provided by or the rules or standards prescribed under

this chapter, may by injunction:

(1) prohibit a person from continuing the violation;

(2) restrain the establishment or operation of a

residential immigrant detention facility without a license issued

under this chapter; or

(3) grant other injunctive relief warranted by the

facts.

(c) The commission or the Department of Family and

Protective Services may petition a district court for a temporary

restraining order to inspect a residential immigrant detention

facility required to be licensed under this chapter and operating

without a license when entry to the facility is denied. On showing

that entry to the facility was denied, the court shall order the

facility to allow an authorized representative of the commission or

the Department of Family and Protective Services to enter the

facility.

(d) The attorney general or local prosecuting attorney may

institute a suit authorized by this section at the request of the

commission or the Department of Family and Protective Services.

(e) Venue for a suit brought under this section is in the

county in which the residential immigrant detention facility is

located or in Travis County.

Sec. 148.155. ADMINISTRATIVE PENALTY. (a) The commission

may assess an administrative penalty against a person who:

(1) violates this chapter or a rule, standard, or

order adopted under this chapter;

(2) makes a false statement the person knows or should

know is false of a material fact:

(A) on an application for issuance or renewal of

a license or in an attachment to the application; or

(B) with respect to a matter under investigation

by the commission;

(3) refuses to allow an authorized representative of

the commission or the Department of Family and Protective Services

to inspect:

(A) a record a residential immigrant detention

facility is required to maintain; or

(B) any portion of the premises of a residential

immigrant detention facility;

(4) wilfully interferes with the work of an authorized

representative of the commission or of the Department of Family and

Protective Services or the enforcement of this chapter;

(5) wilfully interferes with an authorized

representative of the commission or of the Department of Family and

Protective Services in preserving evidence of a violation of this

chapter or a rule, standard, or order adopted under this chapter; or

(6) fails to pay a penalty assessed under this chapter

on or before the 30th day after the date the assessment of the

penalty becomes final.

(b) The amount of the penalty may not exceed:

(1) $5,000 for each violation that:

(A) represents a pattern of violation resulting

in actual harm or is widespread in scope and results in actual harm;

or

(B) constitutes an immediate threat to the health

or safety of a detainee; or

(2) $1,000 for each other violation.

(c) The executive commissioner by rule shall establish

gradations of penalties based on the relative seriousness and

frequency of violations.

(d) A proceeding to impose an administrative penalty under

this section is a contested case under Chapter 2001, Government

Code.

Sec. 148.156. CIVIL PENALTY. (a) A person who violates

this chapter or a rule adopted under this chapter is liable to this

state for a civil penalty if the commission determines that the

violation threatens the health or safety of a detainee.

(b) A person is liable to this state for a civil penalty if

the person:

(1) violates Section 148.051; or

(2) is determined to be in violation of Section

148.051 and violates any other provision of this chapter or rules or

standards adopted under this chapter.

(c) The amount of a civil penalty under this section may not

be less than $1,000 or more than $10,000 for each act of violation.

Each day of a continuing violation under Subsection (a) or (b)

constitutes a separate ground for recovery.

Sec. 148.157. WHISTLEBLOWER PROTECTION. (a) The

commission shall establish a whistleblower protection program to

allow employees and detainees of a residential immigrant detention

facility operating under this chapter to report, in good faith, any

unsanitary or unsafe conditions, violations of the rules or

standards prescribed under this chapter, or unlawful conduct

without the fear of retaliation.

(b) The executive commissioner shall adopt rules to

establish a process for a person to anonymously report a violation

of this chapter.

(c) A residential immigrant detention facility, and the

facility's operators, contractors, and employees, may not take

adverse action, including termination, demotion, harassment, or

any form of retaliation, against an individual who in good faith

reports a violation under this section.

(d) The attorney general may bring an action to seek

injunctive relief and civil penalties against any residential

immigrant detention facility or the facility's operators,

contractors, or employees found to have retaliated against a

whistleblower in violation of this section.

(e) The executive commissioner shall adopt the rules

necessary to implement this section, including procedures for

receiving and investigating a report of violations.

SECTION 2. (a) Not later than March 1, 2028, the executive

commissioner of the Health and Human Services Commission shall

adopt the rules necessary to implement Chapter 148, Health and

Safety Code, as added by this Act.

(b) Notwithstanding Section 148.051, Health and Safety

Code, as added by this Act, a person is not required to hold a

license under that chapter before September 1, 2028.

SECTION 3. This Act takes effect September 1, 2027.