The following words and terms, when used in this section, §351.503, and §351.505, have the following meanings, unless the context clearly indicates otherwise:
  (1) Abuse--any intentional, knowing, or reckless act or omission by an employee, volunteer, or other individual working under the auspices of a facility that causes or may cause emotional harm or physical injury, whether substantial or not, to or the death of a child the facility serves. Abuse includes both physical and sexual abuse.
  (2) Allegation--a report by a person who believes or has knowledge that a child has been or may be abused, neglected, or exploited in a facility.
  (3) Child--a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.
  (4) Emotional harm--an injury to a child as evidenced by an observable physical, mental, or emotional impairment in the child's psychological growth, development, or functioning.
  (5) Exploitation--the illegal or improper use of a child or of the resources of a child served by a facility for monetary or personal benefit, profit, or gain by an employee, volunteer, or other individual working under the auspices of a facility.
  (6) Facility--an entity licensed, operated, certified, or registered by a state agency that provides care and services to a child, the Texas School for the Deaf, and the Texas School for the Blind and Visually Impaired.
  (7) "Persons who work under the auspices of a facility" include:
    (A) an employee or volunteer of the facility;
    (B) a person under contract with the facility;
    (C) a director, owner, operator, or administrator of a facility;
    (D) anyone who has responsibility for a child in a facility's care;
    (E) anyone who has unsupervised access to a child in a facility's care;
    (F) anyone who regularly or routinely lives at the facility;
    (G) any other person permitted by act or omission to have access to a child in the facility's care; and
    (H) a university or college student working at the facility, including student teachers and interns.
  (8) Intentional, knowing, or reckless--an act or omission is intentional, knowing, or reckless if the person committing it:
    (A) deliberately causes or may cause physical injury or emotional harm, whether substantial or not, to the child;
    (B) knows or should know that physical injury or emotional harm, whether substantial or not, to the child is a likely result of the act or omission; or
    (C) consciously disregards an unjustifiable risk of physical injury or emotional harm, whether substantial or not, to the child.
  (9) Neglect--a negligent act or omission by an employee, volunteer, or other person working under the auspices of a facility, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or substantial physical injury to, or the death of, a child served by the facility.
  (10) Omission--a failure to act.
  (11) Physical injury--any bodily harm, including, but not limited to, scrapes, cuts, welts, and bruises.
  (12) Professional--an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.
  (13) Preponderance of evidence--the greater weight of the evidence, evidence that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
  (14) Report--a report that alleged or suspected abuse, neglect, or exploitation of a child has occurred or may occur.
  (15) Reporter--a person filing a report of alleged abuse, neglect, or exploitation. The "Reporter" may be the victim of the alleged abuse, neglect, or exploitation, a third party filing a report on behalf of the alleged victim, or both.
  (16) Sexual abuse--
    (A) conduct harmful to a child's mental, emotional, or physical welfare;
    (B) conduct that constitutes the offense of indecency with a child under §21.11 of the Penal Code, sexual assault under §22.011 of the Penal Code, or aggravated sexual assault under §22.021 of the Penal Code;
    (C) failure to make a reasonable effort to prevent sexual conduct harmful to a child;
    (D) compelling or encouraging the child to engage in sexual conduct, as defined in §43.01 of the Penal Code;
    (E) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child, if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene, as defined in §43.21 of the Penal Code, or pornographic;
    (F) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child, as defined in §43.25 of the Penal Code.
  (17) State agency--an agency under the umbrella of HHSC that operates, licenses, certifies, or registers a facility in which a child is located; the Texas School for the Blind and Visually Impaired; and the Texas School for the Deaf.
  (18) Substantial emotional harm--an observable physical, mental, or emotional impairment in a child's psychological growth, development, or functioning that is significant enough to require treatment by a medical or mental health professional.
  (19) Substantial physical injury--bodily harm or damage to a child for which a prudent person would conclude that the injury required professional medical attention. These injuries include, but are not limited to, dislocated, fractured, or broken bones; brain damage; subdural hematoma; internal injuries; lacerations requiring stitches; second and third degree burns; poisoning; and concussions.
  (20) Substantial risk--a real and significant possibility or likelihood.

Source Note: The provisions of this §351.501 adopted to be effective January 12, 2003, 28 TexReg 439