TSBVI DIRECT ACCESS TO DPS RECORDS AND DESTRUCTION
TSBVI 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 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.
Gov’t Code 411.098(a)-(e)
EMPLOYEE SELF-REPORTS OF CHARGES AND CONVICTIONS
Each TSBVI employee shall report to the Superintendent before the next scheduled shift or within seven days (whichever is earlier) 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 contained in Texas Penal Code Title V or Title VI, classified as a crime “against the person” or a crime “against the family”; 2) any felony offense; and 3) any offense whether a misdemeanor or felony which involves either the use of or possession of, or related to, alcohol or any illegal drug.
Failure to make such a report shall be grounds for termination or nonrenewal.
A decision regarding discharge of an employee or refusal to hire an applicant convicted of a felony under Penal Code Title 5, convicted under an offense requiring registration as a sex offender under Code of Criminal Procedure Chapter 62, or convicted of an equivalent offense under the laws of another state or federal law if the victim of the offense was younger than 18 years of age or enrolled in a public school, cannot be appealed, Education Code 21.058, but the employee may file a grievance if the employee believes that the School is using incorrect information about such conviction.
A decision regarding discharge or refusal to hire an employee convicted of a felony other than those listed above may be appealed to the Superintendent. The Superintendent’s decision regarding discharge of a convicted employee may be appealed to the Board. The decision of the Superintendent regarding refusal to hire a convicted applicant is final and may not be appealed to the Board.
CRIMINAL HISTORY REVIEWS
“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, criminal information, convictions, deferred adjudications, probations, and other formal criminal charges and their dispositions. Gov’t Code 411.082(2)
Education Code 22.087; 19 TAC 249.14(d)(1), .3(43) [See also Policy DH, Policy DHB]
“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)
“Request for CHRI” is the processing and entry of a person’s complete set of fingerprints in DPS’s tenprint database and the comparison of those prints to DPS’s latent print database and if authorized the entry into FBI’s tenprint and comparison to the FBI’s latent print database. 37 TAC 27.172
Participation in the Criminal History Clearinghouse
The purpose of the clearinghouse is to:
- Provide authorized entities with the Texas and FBI fingerprint-based criminal history results.
- Provide authorized entities with subscription and notification service to disseminate updated criminal history information.
TSBVI shall only submit a request for CHRI on a person who has authorized the access of their information.
TSBVI may subscribe to a person in the clearinghouse, if the entity has the authority to view the record. Entities shall unsubscribe from a person when it no longer has authority to view a record.
TSBVI shall validate their subscriptions in accordance with DPS policies. “Validation” is a process whereby the subscriber reviews a subscription to determine whether they are still authorized to receive CHRI on that individual and updates the subscription accordingly. Validations are required on a yearly basis.
TSBVI shall maintain compliance with the FBI Criminal Justice Information Services Security Policy. TSBVI shall allow DPS and the FBI to conduct audits of its clearinghouse accounts to prevent any unauthorized access, use, or dissemination of the information.
37 TAC 27.171, .172(8), .174
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)
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 the School or 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.
[For non-certified TSBVI employees or shared services arrangement hired before January 1, 2008, see ALL OTHER EMPLOYEES, below.]:
Information 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 the Texas Education Agency (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.
Employment Pending Review
After the required information is submitted, the person may begin employment, but that employment is conditional upon the review of that person’s CHRI by TEA and must be terminated if TEA makes a determination that the employee or applicant is ineligible for employment.
TSBVI 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; 19 TAC 153.1109(d)
This section applies to a person who is a substitute teacher for the School or shared services arrangement. For purposes of the CHRI review requirements, a “substitute teacher” is a teacher who is on call or on a list of approved substitutes to replace a regular teacher and has no regular or guaranteed hours. A substitute teacher may be certified or noncertified.
Information 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:
- May not be hired or must be discharged as provided by Education Code 22.085; or
- May not be employed as a substitute teacher because the person’s educator certification has been revoked or is suspended.
Employment Pending Review
After the School completes the CHRI background check (Texas-based) and has initiated the NCHRI fingerprint background check (nationwide), the person may begin employment that does not include direct care of students, but that employment is conditional upon the review of that person’s NCHRI.
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, 19 TAC 153.1101(5), .1111(d)
This section applies to a person participating in an internship consisting of student teaching to receive a teaching certificate.
A student teacher may not perform any student teaching until:
- The student teacher has provided 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
- 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, TSBVI, 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
TSBVI 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 the School or a shared services arrangement, if the employee’s duties are performed on school property or at another location where students are regularly present.
TSBVI may obtain the CHRI from:
- A law enforcement or criminal justice agency
- A private consumer reporting agency [see Consumer Credit Reports, below]
Education Code 22.083(a), (a-1); Gov’t Code 411.097
Note: For criminal history record provisions regarding volunteers, see Policy GKG. For provisions on employees of entities that contract with TSBVI, see Policy CJA.
Confidentiality of Record
Criminal history record information obtained by the School, including any identification information that could reveal the identity of a person about whom CHRI is requested and information that directly or indirectly indicates or implies involvement of a person in the criminal justice system:
- Is for the exclusive use of the School; and
- May be disclosed or used by the School only if, and only to the extent, disclosure is authorized or directed by a statute, rule, or order of a court of competent jurisdiction.
For purposes of these confidentiality provisions, “criminal history record” information does not refer to any specific document provided by DPS, but to the information contained, wholly or partly, in a document’s original form or any subsequent form or use.
The School or an individual may not confirm the existence or nonexistence of CHRI to any person who is not eligible to receive the information.
Gov’t Code 411.084
CHRI obtained by the School, in the original form or any subsequent form, may not be released to any person except the individual who is the subject of the information, TEA, or SBEC, or by court order. The CHRI is not subject to disclosure under the Government Code Chapter 552 (Public Information Act).
An employee of TSBVI may request from the School a copy of any CHRI related to that employee that the School has obtained from DPS. The School may charge a fee to provide the information, not to exceed the actual cost of copying the CHRI.
Gov’t Code 411.097 (d), (f)
Destruction of CHRI
TSBVI shall destroy CHRI obtained from DPS on the earlier of:
- The date the information is used for the authorized purpose; or
- The first anniversary of the date the information was originally obtained.
Gov’t Code 411.097(d)(3)
CONFIDENTIALITY OF INFORMATION OBTAINED FROM APPLICANT OR EMPLOYEE
The School may not release information collected about a person in order to obtain CHRI, including the person’s name, address, phone number, social security number, driver’s license number, other identification number, and fingerprint records, except:
- To comply with Government Code Chapter 22, Subchapter C (criminal records);
- By court order; or
- With the consent of the person who is the subject of the information.
In addition, the information is not subject to disclosure under Government Code Chapter 522 (Public Information Act).
TSBVI shall destroy the information not later than the first anniversary of the date the information is received.
Education Code 22.08391
UNAUTHORIZED DISCLOSURE OF CHRI
A person commits a Class B misdemeanor if the person knowingly or intentionally:
- Obtains CHRI in an unauthorized manner, uses the information for an unauthorized purpose, or discloses the information to a person who is not entitled to the information; or
- Violates a DPS rule adopted under Government Code Chapter 411, Subchapter F.
A person commits a second degree felony if the person:
- Obtains, uses, or discloses CHRI for remuneration or for the promise of remuneration; or
- Employs another person to obtain, use, or disclose CHRI for remuneration or for the promise of remuneration.
Gov’t Code 411.085
Refusal to Hire Convicted Applicants
TSBVI shall discharge or refuse to hire an employee or applicant for employment if the School obtains information through a CHRI review that the employee or applicant has been:
- Convicted of or placed on deferred adjudication community supervision for an offense requiring registration as a sex offender under Code of Criminal Procedure Chapter 62; or
- Convicted of:
- A felony under Title 5 Penal Code, if the victim of the offense was under 18 years of age at the time the offense was committed; or
- An offense under the laws of another state or federal law that is equivalent to an offense under item 1 or 2a above; or
- Any other felony that demonstrates that it is more likely than not that the applicant would be a danger to themselves, an employee, or student, or a visitor to the campus.
However, the School is not required to refuse to hire an applicant if the person committed any felony described in the preceding paragraph and:
- The date of the offense is more than 30 years before the date the person’s employment will begin; and
- The applicant for employment satisfied all terms of the court order entered on conviction.
Certification to the Commissioner
Each school year, the Superintendent shall certify to the Commissioner that the School has complied with the provisions described above.
SBEC may impose a sanction on an educator who does not refuse to hire an applicant if the educator knows that the applicant for employment had been adjudicated for or convicted of having an inappropriate relationship with a minor in violation of Education Code 21.009(e) knew or should have known, through a criminal history record information review, that the applicant has been convicted or placed on deferred adjudication community supervision for an offense described above.
SBEC may impose a sanction on a superintendent who falsely or inaccurately certified to the commissioner that the district had complied with Education Code 22.085. [See Certification to Commissioner, above]
Termination for Failure to Disclose
TSBVI 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, 19 TAC 249.15(b)(12)(14) [See Policy DF]
An applicant for a certified or licensed position [see Professional Personnel at Policy DBA(Legal)] with TSBVI, must submit, using a form adopted by TEA, a pre-employment affidavit disclosing whether the applicant has ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor.
An applicant who answers affirmatively concerning an inappropriate relationship with a minor must disclose in the affidavit all relevant facts pertaining to the charge, adjudication, or conviction, including whether the charge was determined to be true or false.
An applicant is not precluded from being employed based on a disclosed charge if the School determines based on the information disclosed in the affidavit that the charge was false.
A determination that an employee failed to disclose required information is grounds for termination of employment.
The State Board for Educator Certification (SBEC) may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant for a position described by Education Code 21.003(a) or (b) despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor.
Education Code 21.009
DO NOT HIRE REGISTRY
TEA shall develop and maintain an internet portal through which required reports may be confidentially and securely filed and TEA makes available:
- The registry of persons who are not eligible to be employed in public schools; and
- Information indicating that a person is under investigation.
Education Code 22.095
TEA shall maintain and make available through its internet portal a registry of persons who are not eligible to be employed by a district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement.
A district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement shall discharge or refuse to hire a person listed on the registry.
The registry must list:
- An employee of an open enrollment charter school determined by TEA under Education Code 22.0832 as a person who would not be eligible for educator certification based on their NCHRI;
- A non-certified person determined by TEA to be not eligible for employment based on the person’s CHRI, as provided by Education Code 22.0833 [see Policy DBAA];
- A person who is not eligible for employment based on CHRI received by TEA under Education Code 21.058(b) indicating that a certified employee is required to register as a sex offender;
- A person whose certification or permit is revoked by SBEC on a finding that the person engaged in misconduct described by Education Code 21.006(b)(2)(A) or (A-1) [see DHB]; and
- A non-certified person who is determined by the commissioner under Education Code 22.094 to have engaged in misconduct described by Education Code 22.093(c)(1)(A) or (B) [see DHC].
Education Code 22.092
COMMERCIAL DRIVER LICENSE DRUG AND ALCOHOL CLEARINGHOUSE
The U.S. Department of Transportation (DOT) operates and maintains a national clearinghouse for records relating to alcohol and controlled substances testing of commercial motor vehicle operators in order to improve compliance with DOT’s alcohol and controlled substances testing program applicable to commercial motor vehicle operators [see DHE] and to enhance the safety of roadways by reducing accidents and injuries involving the misuse of alcohol or use of controlled substances by operators of commercial motor vehicles. 49 U.S.C. 31306a
Pre-employment Query Required
The School must not employ a driver subject to controlled substances and alcohol testing under 49 CFR Part 382 to perform a safety sensitive function without first conducting a pre-employment query of the federal Drug and Alcohol Clearinghouse to obtain information about the driver’s previous test results.
Annual Query Required
The School must conduct a query of the federal Drug and Alcohol Clearinghouse at least once per year for information for all employees subject to controlled substance and alcohol testing under 49 CFR Part 382 to determine whether information exists about those employees.
The School may not allow a driver to perform any safety-sensitive function if the results of a Clearinghouse query demonstrate that the driver has a prohibited test result.
The School must retain for three years a record of each query and all information received in response to each query made under this section.
49 CFR 382.701
CONSUMER CREDIT REPORTS
It is not the policy or practice of TSBVI to consider credit reports for employment purposes. EEOC Dec. 72-1176, 5 FEP 960 (1972) (screening job applicants on basis of credit references has a disproportionate impact on minorities and violates Title VII.)
Amended: 11/18/05, 11/17/06, 3/28/08, 4/3/09, 9/25/09, 4/5/13, 4/4/14, 4/6/18, 1/25/19, 8/6/21