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WITHHOLDING INFORMATION

An attempt by any TSBVI employee to encourage or coerce a child to withhold information from the child’s parent is grounds for discharge or suspension under Education Code 21.104 [ See DFAA and DFAB for probationary contracts] and 21.211 [ See DFBA and DFBB for term contracts].  Education Code 26.008(b)

DISCHARGE OF CONVICTED EMPLOYEES

TSBVI shall discharge an employee if the School obtains information through a criminal history record information (CHRI) review that the employee has been convicted of:

  1. A felony under Penal Code Title 5; or
  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, at the time the offense occurred, the victim of the offense was under 18 years of age or was enrolled in a public school; or
  4. Any other felony that demonstrates that it is more likely than not that the applicant would be a danger to him or herself, an employee, student, or visitor to the campus.

Exception

However, the School is not required to discharge an employee if the person committed any felony under Penal Code Title 5 and:

  1. The date of the offense is more than 30 years before June 15, 2007; and
  2. The employee satisfied all terms of the court order entered on conviction; or

Certification to the Commissioner

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

Sanctions

The State Board for Educator Certification (SBEC) may impose a sanction on an educator who does not discharge an employee if the educator knew that the employee had been adjudicated for or convicted of having an inappropriate relationship with a minor in accordance with Education Code 21.009(e), or should have known, through a criminal history record information review, that the employee has been convicted of an offense referred to above.

SBEC may impose a sanction on a superintendent who falsely or inaccurately certified to the commissioner that TSBVI had complied with Education Code 22.085.  [See Certification to Commissioner, above]

Optional Termination for Failure to Disclose

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

Education Code 22.085; 19 TAC 249.15(b)(12),(13) [See DBAA

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 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.

CERTAIN OFFENSES AGAINST CHILDREN

Mandatory Termination

If the School receives notice that SBEC has revoked the certificate of a person based on conviction for a felony under Penal Code Title 5 or an offense requiring registration as a sex offender under Chapter 62 of the Code of Criminal Procedure, and the victim of the offense was under 18 years of age, the Superintendent shall:

  1. Immediately remove the person whose certificate has been revoked from campus or from an administrative office, as applicable, to prevent the person from having any contact with a student; and
  2. If the person is employed under a probationary or term contract:
  3. Suspend the person without pay;
  4. Provide the person with written notice that the person’s contract is void [see Notice to Employee, below]; and
  5. Terminate the employment of the person as soon as practicable.

Education Code 21.058(a), (c)

Discretionary Termination

If TSBVI becomes aware that a person employed by the School under a probationary or term contract has been convicted of or received deferred adjudication for a felony offense, and the person is not subject to the mandatory termination provision above, the School may:

  1. Suspend the person without pay;
  2. Provide the person with written notice that the person’s contract is void [see Notice to Employee, below]; and
  3. Terminate the employment of the person as soon as practicable.

                       

Education Code 21.058(c-1)

Notice to Employee

A person’s probationary or term contract is void if the Superintendent provides written notice to the person, under the mandatory or discretionary termination provisions above, that the person’s contract is void.  Education Code 21.058(c-2)

Appeals

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 under Education Code 21.058, but the employee may file a grievance if the person believes that the School is using incorrect information about such conviction.

A decision regarding discharge of 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.

INVALID OR EXPIRED CERTIFICATION

A School employee’s probationary or term contract is void if the employee:

  1. Does not hold a valid certificate or permit issued by SBEC;
  2. Fails to fulfill the requirements necessary to renew or extend the employee’s temporary, probationary, or emergency certificate or any other certificate or permit issued under Education Code Chapter 21, Subchapter B; or
  3. Fails to comply with any requirement under Education Code Chapter 22, Subchapter C [criminal history review, see DBAA], if the failure results in suspension or revocation of the employee’s certificate.

Education Code 21.0031(a)

A certificate or permit is not considered to have expired if:

  1. The employee has completed the requirements for renewal of the certificate or permit;
  2. The employee submitted the request for renewal before the expiration date; and
  3. The date the certificate or permit would have expired is before the date SBEC takes action to approve the renewal of the certificate or permit.

Education Code 21.0031(f)

School’s Options

If TSBVI has knowledge that the employee’s contract is void under Education Code 21.0031(a), the Superintendent may:

  1. Terminate the employee;
  2. Suspend the employee with or without pay; or
  3. Retain the employee for the remainder of the school year on an at-will employment basis in a position that does not require a contract under Education Code 21.002, at the employee’s existing rate of pay or at a reduced rate.

The employee is not entitled to the minimum salary prescribed by Education Code 21.402.

Education Code 21.0031(b)

Exception

The School may not terminate or suspend an employee under 21.0031(b) because of the employee’s lack of a valid certificate or permit, or failure to renew or extend a certificate or permit, if:

  1. The employee requests an extension from SBEC to renew, extend, or otherwise validate the employee’s certificate or permit; and
  2. Not later than the tenth day after the date the contract is void, the employee takes necessary measures to renew, extend, or otherwise validate the employee’s certificate or permit, as determined by SBEC.

Education Code 21.0031(b-1)

No Appeal Or Chapter 21 Hearing

The School’s decision under Education Code 21.0031(b) is not subject to appeal under Education Code Chapter 21, and the notice and hearing requirements of this chapter do not apply to the decision.  Education Code 21.0031

Applicability

These void contract provisions do not affect the rights and remedies of a party in an at-will employment relationship and do not apply to a certified teacher assigned to teach a subject for which the teacher is not certified.

Education Code 21.0031; Nunez v. Simms, 341 F.3d 385 (5th Cir. 2003)

REPORT TO SBEC OF EDUCATOR MISCONDUCT

In addition to the reporting requirement under Family Code 261.101[see FFG], the Superintendent must file a written report with SBEC not later than the seventh day after the Superintendent first obtains or has knowledge of information indicating that a certificate holder’s employment at the School was terminated under Education Code 21.006.  [See DH and DHB]

Education Code 21.006; 19 TAC 249.14(d); 19 TAC 249.3(1); Family Code 261.001; 19 TAC 249.3(51)

Report to Superintendent

A Principal shall report the educator’s termination to the Superintendent if the conditions set forth at Education Code 21.006 exist.  [See DP]

falsification of military record

A district may discharge an employee, regardless of whether the employee is employed under an employment contract, if the district determines, based on a reasonable factual basis, that the employee, in obtaining the employee’s employment or any benefit relating to the employee’s employment, falsified or otherwise misrepresented any information regarding the employee’s military record in a manner that would constitute an offense under Penal Code 32.54.

An employment contract entered into by a district with an employee discharged by the employer under Labor Code Chapter 105 is void and unenforceable as against public policy.  [See DF series]

Labor Code Ch. 105

Immunity

If the Superintendent or Principal in good faith and while acting in an official capacity files a report with SBEC, or communicates with another superintendent or principal concerning an educator’s criminal record or alleged misconduct the Superintendent/Principal is immune from civil or criminal liability that might otherwise be incurred or imposed.

Education Code 21.006(e)

Adopted:         3/7/80

Amended:       1/26/90, 9/27/91, 5/26/94, 11/17/95, 5/31/01, 4/1/05, 6/4/08, 4/5/13, 4/4/14, 1/25/19

Reviewed:       1/26/99