DBAA - EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: CRIMINAL HISTORY AND CREDIT REPORTS

DEFINITIONS

 “Criminal history clearinghouse” (Clearinghouse) means the electronic clearinghouse and subscription service established by the Department of Public Safety (DPS) to provide criminal history record information to persons entitled to receive that information and to provide updates to such information.  A person who is the subject of the criminal history record information requested must consent to the release of the information.

Gov’t Code 411.0845(a), (h)

“Criminal history record information” (CHRI) means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, information, and other formal criminal charges and their dispositions. 

Gov’t Code 411.082(2)

“National criminal history record information” (NCHRI) means criminal history record information obtained from DPS under Government Code Chapter 411, Subchapter F, and the Federal Bureau of Investigation (FBI) under Government Code 411.087. 

Education Code 22.081(2)

CERTIFIED PERSONS

The State Board for Educator Certification (SBEC) shall review the NCHRI of a person who is an applicant for or holder of a certificate and who is employed by or is an applicant for employment by the School. 

Education Code 22.0831(c)

NONCERTIFIED EMPLOYEES

Applicability

This section applies to a person who is not an applicant for or holder of a certificate from SBEC and who, on or after January 1, 2008, is offered employment by:

  1. The school; or
  2. A shared services arrangement, if the employee’s or applicant’s duties are or will be performed on school property or at another location where students are regularly present.

Notices to DPS and TEA

Before or immediately after employing or securing the services of a person subject to this section, the school shall send or ensure that the person sends to DPS information that DPS requires for obtaining NCHRI, which may include fingerprints and photographs.

The school shall provide TEA with the name of a person to whom this section applies.  TEA shall examine the CHRI of the person and notify the school if the person may not be hired or must be discharged under Education Code 22.085.

Criminal History

The school shall obtain all CHRI that relates to a person subject to this section through the Clearinghouse and shall subscribe to the CHRI of that person.  The school may require the person to pay any fees related to obtaining the CHRI.

Education Code 22.0833

SUBSTITUTE TEACHERS

Applicability

This section applies to a person who is a substitute teacher for the School or shared services arrangement.

Notices to DPS and TEA

The School shall send or ensure that a person to whom this section applies sends to DPS information required for obtaining NCHRI, which may include fingerprints and photographs.

The School shall provide TEA with the name of a person to whom this section applies.  TEA shall examine the CHRI and certification records of the person and notify the School if the person:

  1. May not be hired or must be discharged as provided by Education Code 22.085; or
  2. May not be employed as a substitute teacher because the person’s educator certification has been revoked or is suspended. 

Access to Criminal History

The school shall obtain all CHRI that relates to a person to whom this section applies through the Clearinghouse.  The School may require the person to pay any fees related to obtaining the CHRI.

Education Code 22.0836

STUDENT TEACHERS

Applicability

This section applies to a person participating in an internship consisting of student teaching to receive a teaching certificate.

Criminal History

A student teacher may not perform any student teaching until:

  1. The student teacher has provided to the School a driver’s license or another form of identification containing the person’s photograph issued by an entity of the United States government; and
  2. The School has obtained from DPS all CHRI that relates to a student teacher.  The School may also obtain CHRI relating to a student teacher from any other law enforcement agency, criminal justice agency, or private consumer reporting agency.  The School may require a student teacher to pay any costs related to obtaining the CHRI.

Education Code 22.0835

COORDINATION OF EFFORTS

TEA, SBEC, the School, and a shared services arrangement may coordinate as necessary to ensure that criminal history reviews authorized or required under Education Code Chapter 22, Subchapter C are not unnecessarily duplicated.

Education Code 22.0833(h)

ALL OTHER EMPLOYEES

The School shall obtain CHRI that relates to a person who is not subject to an NCHRI review under Education Code Chapter 21, Subchapter C and who is an employee of:

  1. The School; or
  2. A shared services arrangement, if the employee’s duties are performed on school property or at another location where students are regularly present.

The School may obtain the CHRI from:

  1. DPS;
  2. A law enforcement or criminal justice agency; or
  3. A private consumer reporting agency.

Education Code 22.083(a), (a-1), (c); Gov’t Code 411.097

CONFIDENTIALITY OF RECORD

Criminal history record information obtained by the School may not be released or disclosed to any person, other than the individual who is the subject of the information, TEA, or SBEC.

 Gov’t Code 411.097(d)

SBEC NOTIFICATION

A superintendent shall promptly notify SBEC in writing by filing a report with the TEA staff within seven calendar days of the date the superintendent obtains or has knowledge of information indicating that an applicant for or holder of a certificate issued by SBEC has a reported criminal history. 

Education Code 22.087; 19 TAC 249.14(d)(1)  [See also DF]

DISCHARGE OF CONVICTED EMPLOYEES

The School shall discharge or refuse to hire an employee or applicant for employment if the School obtains information through a CHRI review that:

  1. 1.   The employee or applicant has been convicted of:
    1. A felony under Penal Code Title 5;
    2. An offense requiring registration as a sex offender under Code of Criminal Procedure Chapter 62; or
    3. An offense under the laws of another state or federal law that is equivalent to an offense under paragraphs a or b; and
  2. At the time the offense occurred, the victim of the offense was under 18 years of age or was enrolled in a public school.

Exception

However, the School is not required to discharge or refuse to hire an employee or applicant if the person committed an offense under Title 5, Penal Code and:

  1. The date of the offense is more than 30 years before:
    1. June 15, 2007, in the case of a person employed by the School as of that date; or
    2. The date the person’s employment will begin, in the case of a person applying for employment with the School after June 15, 2007; and
  2. The employee or applicant for employment satisfied all terms of the court order entered on conviction.

Certification to SBEC

Each school year, the superintendent shall certify to the Commissioner that the School has complied with the above provisions.

Sanctions

SBEC may impose a sanction on an educator who does not discharge an employee or refuse to hire an applicant if the educator knows or should have known, through a criminal history record information review, that the employee or applicant has been convicted of an offense described above.

Optional Termination

The School may discharge an employee if the School obtains information of the employee’s conviction of a felony or misdemeanor involving moral turpitude that the employee did not disclose to SBEC or to the School.  An employee so discharged is considered to have been discharged for misconduct for the purposes of Labor Code 207.044 (unemployment compensation).

Education Code 22.085  [See DF]

TSBVI DIRECT ACCESS TO DPS RECORDS

The School is entitled to obtain criminal history record information maintained by the Department of Public Safety, the Federal Bureau of Investigation identification division or another law enforcement agency which relates to School employees, professional consultants and applicants for permanent, temporary, or consultative employment, or volunteer positions whose employment, or potential employment, or volunteer position with the School involves direct interactions with, or the opportunity to interact and associate with, the children or youth attending the School.

Criminal history record information obtained by the School under subsection (a) may not be released, or disclosed, to any person except on court order with the consent of the person who is the subject of the criminal history record information, or as provided by subsection (d).

The School shall destroy criminal history record information that relates to a person after the information is used for its authorized purpose.

The School may not provide the applicant, employee, professional consultant, or volunteer, with a copy of the respective criminal history record information obtained from the Department of Public Safety, Federal Bureau of Investigation identification division, or another law enforcement agency. The School may disclose to the applicant, employee, professional consultant, or volunteer, the dates and places of arrest, the offenses, and the dispositions contained in the respective criminal history record information.

The failure, or refusal, to provide a complete set of fingerprints, or a complete name on request, constitutes good cause for dismissal, or refusal to hire, as applicable, with regard to school employees, professional consultants, and applicants for permanent, temporary, or consultative employment, or volunteer positions whose employment, or potential employment, or volunteer position with the School, involves direct interactions with, or the opportunity to interact and associate with, the children, or youth, attending the School.

Government Code 411.098(a)-(e)

EMPLOYEE SELF-REPORTS OF CHARGES AND CONVICTIONS

Each TSBVI employee shall report to the Superintendent within seven days of when the employee becomes aware of any arrest, indictment, conviction, no contest or guilty plea, or other adjudication of the employee for any 1) misdemeanor offense against the person or the family; and 2) any felony offense of which the employee has not previously notified the School or the Superintendent through written notification, records or employment application. See Texas Penal Code, Title V and Title VI

CONSUMER CREDIT REPORTS

Definitions

“Adverse action” includes a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.

“Consumer report” includes any information from a consumer reporting agency that is used or expected to be used as a factor in establishing the person’s eligibility for employment.

“Employment purposes” when used in connection with a consumer report means a report used for the purpose of evaluating a person for employment, promotion, reassignment, or retention as an employee.

15 U.S.C. 1681a

Obtaining Reports

The School may not procure a consumer report for employment purposes unless:

  1. The School has provided the applicant or employee a written disclosure that a consumer report may be obtained for employment purposes; and
  2. The applicant or employee has authorized in writing the procurement of the report.

Adverse Action

Before taking any adverse action based on the report, the School shall provide the applicant or employee a copy of the report and a written description of the person’s rights under the Fair Credit Reporting Act, as prescribed by the Federal Trade Commission.

15 U.S.C. 1681b(b)(2)

Disposal of Records

The School must properly dispose of a consumer report by taking reasonable measures to protect against unauthorized access to or use of the information.

“Dispose” includes discarding or abandoning the consumer report, or selling, donating, or transferring any medium, including computer equipment, upon which the consumer report is stored.

Examples of reasonable measures include:

  1. Burning, pulverizing, or shredding papers containing a consumer report so the information cannot practicably be read or reconstructed;
  2. Destroying or erasing electronic media containing a consumer report so that the information cannot practicably be read or reconstructed; or
  3. After due diligence, entering into and monitoring compliance with a contract with another party engaged in the business of record destruction to dispose of the consumer report.

16 C.F.R. 682.3

Adopted:          5/25/05
Amended:        11/18/05, 11/17/06, 3/28/08
Reviewed:

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