78R4085 BDH-D

By:  Gallego                                                      H.B. No. 909


A BILL TO BE ENTITLED
AN ACT
relating to continuation and functions of the State Board for Educator Certification. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 7.056(a), Education Code, is amended to read as follows: (a) Except as provided by this subsection and Subsection (e), a school campus or district may apply to the commissioner for a waiver of a requirement, restriction, or prohibition imposed by this code or rule of the board or commissioner. A waiver of a requirement related to educator certification under Subchapter B, Chapter 21, is governed by Section 21.059. SECTION 2. Section 21.003(a), Education Code, is amended to read as follows: (a) A person may not be employed as a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, educational diagnostician, or counselor by a school district unless the person holds an appropriate certificate or permit issued as provided by Subchapter B. SECTION 3. Subchapter B, Chapter 21, Education Code, is amended by adding Sections 21.0331, 21.0332, and 21.0341 to read as follows: Sec. 21.0331. INELIGIBILITY TO SERVE ON BOARD; INELIGIBILITY FOR CERTAIN POSITIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (b) A person may not be a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. (c) A person may not be a member of the board and may not be a board employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments, if: (1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of education; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of education. Sec. 21.0332. TRAINING PROGRAM FOR MEMBERS OF BOARD. (a) A person who is appointed and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) the legislation that created the board; (2) the programs operated by the board; (3) the role and functions of the board; (4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority; (5) the current budget for the board; (6) the results of the most recent formal audit of the board; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the public information law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; and (D) other laws relating to public officials, including conflict-of-interest laws; and (8) any applicable ethics policies adopted by the board or the Texas Ethics Commission. (c) A person appointed to the board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program, regardless of whether attendance at the program occurs before or after the person qualifies for office. Sec. 21.0341. REMOVAL FROM BOARD. (a) It is a ground for removal from the board that a member: (1) does not have at the time of taking office the qualifications for office under Section 21.033; (2) except as provided by Subsection (b), does not maintain during service on the board the applicable qualifications for office under Section 21.033; (3) is ineligible for membership under Section 21.0331; (4) cannot, because of illness or disability, discharge the member's duties for a substantial portion of the member's term; or (5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, without an excuse approved by a majority vote of the board. (b) A member of the board appointed under Section 21.033(a)(1) who retires from teaching during the member's term of office is entitled to complete the term. (c) The validity of an action of the board is not affected by the fact that the action was taken when a ground for removal of a board member existed. (d) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists. SECTION 4. Sections 21.035 and 21.036, Education Code, are amended to read as follows: Sec. 21.035. APPLICATION OF SUNSET ACT. The board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this subchapter expires September 1, 2015 [2003]. Sec. 21.036. OFFICERS. (a) The governor [board] shall appoint [elect] one of the board [its] members to serve as presiding officer of the board [for a term of two years]. The presiding officer serves at the pleasure of the governor and is entitled to vote on all matters before the board. (b) The board may elect other officers from among its membership. SECTION 5. Subchapter B, Chapter 21, Education Code, is amended by adding Sections 21.0391, 21.0392, and 21.0401 to read as follows: Sec. 21.0391. EQUAL OPPORTUNITY EMPLOYMENT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. (b) The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the board to avoid the unlawful employment practices described by Chapter 21, Labor Code; and (2) an analysis of the extent to which the composition of the board's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law. (c) The policy statement must be: (1) filed with the governor's office; (2) updated annually; and (3) reviewed by the Commission on Human Rights for compliance with Subsection (b)(1). Sec. 21.0392. STATE EMPLOYEE INCENTIVE INFORMATION. The executive director or the executive director's designee shall provide to board employees information and training on the benefits and methods of participating in the state employee incentive program under Subchapter B, Chapter 2108, Government Code. Sec. 21.0401. COLLECTION OF FINGERPRINTS REQUIRED. The State Board for Educator Certification shall obtain a complete set of fingerprints from: (1) each applicant for a certificate issued under this subchapter; and (2) each applicant for or holder of a teaching permit or provisional certificate issued under this subchapter. SECTION 6. Sections 21.041(b) and (c), Education Code, are amended to read as follows: (b) The board shall propose rules that: (1) provide for the regulation of educators and the general administration of this subchapter in a manner consistent with this subchapter; (2) specify the classes of educator certificates to be issued, including emergency certificates; (3) specify the period for which each class of educator certificate is valid; (4) specify the requirements for the issuance and renewal of an educator certificate; (5) provide for the issuance of an educator certificate to a person who holds a similar certificate issued by another state or foreign country, subject to Section 21.052; (6) provide for special or restricted certification of educators, including certification of instructors of American Sign Language; (7) provide for the investigation of complaints of disciplinary violations, including: (A) a deadline for each action in the investigation of a complaint; (B) notification requirements for each party involved in the complaint; and (C) a method for designating the severity of an alleged violation that allows the board to set priorities for conducting investigations; (8) provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; (9) [(8)] provide for the adoption, amendment, and enforcement of an educator's code of ethics; (10) [(9)] provide for continuing education requirements; and (11) [(10)] provide for certification of persons performing appraisals under Subchapter H. (c) The board shall propose rules [a rule] adopting fees [a fee] for: (1) the issuance and maintenance of each [an] educator certificate, including a provisional certificate, that is adequate to cover the cost of administration of this subchapter, including any amount necessary to cover the cost of obtaining fingerprints under Section 21.0401 or conducting a national criminal background check under Section 22.082; and (2) covering the cost of obtaining fingerprints from or conducting a national criminal background check on a holder of a teaching permit issued under this subchapter. SECTION 7. Subchapter B, Chapter 21, Education Code, is amended by adding Sections 21.0411-21.0414 to read as follows: Sec. 21.0411. DEVELOPMENT OF PROPOSED RULES. (a) This section applies to the process by which the State Board for Educator Certification develops proposed rules for the State Board of Education's consideration under Section 21.042 before the proposed rules are published in the Texas Register and before the State Board for Educator Certification or the State Board of Education complies with the rulemaking requirements of Chapter 2001, Government Code. This section does not affect any duty to comply with the rulemaking requirements of that law. (b) The State Board for Educator Certification shall establish a checklist of methods that, to the extent appropriate, the board will follow to obtain early in the rule development process the advice and opinions of the public and of persons who will be most affected by a proposed rule. The checklist must include methods for identifying persons who will be most affected and for soliciting at a minimum the advice and opinions of the agency, other state agency personnel, educators, school district administrators, and, to the extent appropriate, parents. The checklist may include negotiated rulemaking, informal conferences, advisory committees, and any other appropriate method. (c) A rule proposed by the State Board for Educator Certification and adopted by the State Board of Education may not be challenged on the grounds that the State Board for Educator Certification did not comply with this section. (d) This section does not apply to the proposal of an emergency rule to be adopted in accordance with Section 2001.034, Government Code. Sec. 21.0412. PUBLIC TESTIMONY. The board shall develop and implement policies designed to provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the board. Sec. 21.0413. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION. (a) The board shall develop and implement a policy to encourage the use of: (1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the proposal of board rules; and (2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction. (b) The board's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (c) The board shall designate a trained person to: (1) coordinate the implementation of the policy adopted under Subsection (a); (2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking and alternative dispute resolution; and (3) collect data concerning the effectiveness of those procedures, as implemented by the board. Sec. 21.0414. TECHNOLOGY POLICY. The board shall develop and implement a policy that requires the executive director and board employees to research and propose appropriate technological solutions to improve the board's ability to perform its functions. The technological solutions must: (1) ensure that the public is able to easily find information about the board on the Internet; (2) ensure that persons who want to use the board's services are able to: (A) interact with the board through the Internet; and (B) access any service that can be provided effectively through the Internet; and (3) be cost-effective and developed through the board's planning processes. SECTION 8. Section 21.042, Education Code, is amended to read as follows: Sec. 21.042. APPROVAL OF RULES. (a) The State Board for Educator Certification must submit a written copy of each rule it proposes to adopt to the State Board of Education for review. (b) By a vote of at least two-thirds of the members present and voting, the [The] State Board of Education may: (1) accept or reject a portion of a proposed rule; or (2) reject an entire [a] proposed rule [by a vote of at least two-thirds of the members of the board present and voting]. (c) If the State Board of Education fails to reject a proposal before the 90th day after the date on which it receives the proposal, the proposal takes effect as a rule of the State Board for Educator Certification as provided by Chapter 2001, Government Code. (d) Except as provided by Subsection (b)(1), the [The] State Board of Education may not modify a rule proposed by the State Board for Educator Certification. SECTION 9. Subchapter B, Chapter 21, Education Code, is amended by adding Section 21.0421 to read as follows: Sec. 21.0421. ACCEPTANCE OF GIFTS, GRANTS, AND DONATIONS. (a) The board may solicit and accept gifts, grants, and donations for the purposes of this chapter. (b) Not later than December 31 of each year, the board shall report to the lieutenant governor and the speaker of the house of representatives: (1) the source and amount of each gift, grant, and donation accepted under this section; and (2) the source and amount of each gift, grant, or donation offered to but not accepted by the board. SECTION 10. Subchapter B, Chapter 21, Education Code, is amended by adding Sections 21.0484 and 21.0521 to read as follows: Sec. 21.0484. EXAMINATION RESULTS. (a) Not later than the 30th day after the date a person takes a certification examination under this subchapter, the board shall notify the person of the examination results. (b) If the examination is graded or reviewed by a testing service: (1) the board shall notify the person of the examination results not later than the 14th day after the date the board receives the results from the testing service; and (2) if notice of the examination results will be delayed for longer than 90 days after the examination date, the board shall notify the person of the reason for the delay before the 90th day. (c) The board may require a testing service to notify a person of the results of the person's examination. (d) If requested in writing by a person who fails a certification examination administered under this subchapter, the board shall furnish the person with an analysis of the person's performance on the examination. Sec. 21.0521. PROVISIONAL CERTIFICATE. (a) After a satisfactory review of an applicant's educator credentials, the board may issue a provisional certificate to an applicant who is currently certified or licensed in good standing as an educator in another jurisdiction, including a foreign country, that has certification or licensing requirements that are substantially equivalent to the requirements of this subchapter but who has not passed an examination determined by the board to be similar to and at least as rigorous as the examination prescribed under Section 21.048. (b) A provisional certificate issued under this section is valid for not longer than 12 months from the effective date of the provisional certificate. (c) The board shall issue a standard certificate under this subchapter to the provisional certificate holder if the person is eligible to be certified under Section 21.052. SECTION 11. Sections 21.055(c) and (d), Education Code, are amended to read as follows: (c) Promptly after employing a person under this section, a school district shall send to the board the person's fingerprints and [commissioner] a written statement identifying the person, the person's qualifications as a teacher, and the subject or class the person will teach. The person may teach the subject or class pending action by the board [commissioner]. (d) Not later than the 30th day after the date the board [commissioner] receives the statement under Subsection (c), the board [commissioner] may inform the district in writing that the board [commissioner] finds the person is not qualified to teach. The person may not teach if the board [commissioner] finds the person is not qualified. If the board [commissioner] fails to act within the time prescribed by this subsection, the district may issue to the person a school district teaching permit and the person may teach the subject or class identified in the statement. SECTION 12. Section 21.057(d), Education Code, is amended to read as follows: (d) For purposes of this section, "inappropriately certified or uncertified teacher": (1) includes: (A) an individual serving on an emergency certificate issued under Section 21.041(b)(2); or (B) an individual who does not hold any certificate or permit issued under this chapter and is not employed as specified by Subdivision (2)(E); and (2) does not include an individual: (A) who is a certified teacher assigned to teach a class or classes outside his or her area of certification, as determined by rules proposed by the board in specifying the certificate required for each assignment; (B) serving on a certificate issued due to a hearing impairment under Section 21.048; (C) serving on a certificate issued pursuant to enrollment in an approved alternative certification program under Section 21.049; (D) certified by another state or country and serving on a certificate issued under Section 21.052 or a provisional certificate issued under Section 21.0521; (E) serving on a school district teaching permit issued under Section 21.055; or (F) employed under a waiver granted by the board [commissioner] pursuant to Section 21.059 [7.056]. SECTION 13. Subchapter B, Chapter 21, Education Code, is amended by adding Sections 21.058-21.062 to read as follows: Sec. 21.058. COMPLAINTS. (a) The board shall maintain a file on each written complaint filed with the board. (b) The file must include: (1) the name of the person who filed the complaint; (2) the date the complaint is received by the board; (3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and (6) an explanation of the reason the file was closed, if the board closed the file without taking action other than to investigate the complaint. (c) The board shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the board's policies and procedures relating to complaint investigation and resolution. (d) The board, at least quarterly until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation. Sec. 21.059. WAIVER OF CERTIFICATION REQUIREMENT. A school district may apply to the board for a waiver of a requirement under this subchapter that prohibits a teacher from teaching outside the teacher's area of certification. Sec. 21.060. EXPIRATION OF CERTIFICATES. The board by rule may adopt a system under which certificates issued by the board expire on various dates during the year. For the year in which the certificate expiration date is changed, the board shall prorate certification fees on a monthly basis so that each certificate holder pays only that portion of the fee that is allocable to the number of months during which the certificate is valid. On renewal of the certificate on the new expiration date, the total renewal fee is payable. Sec. 21.061. CERTIFICATE RENEWAL. (a) A person who is otherwise eligible to renew a certificate may renew an unexpired certificate by paying the required renewal fee to the board before the expiration date of the certificate. A person whose certificate has expired may not engage in activities that require a certificate until the certificate has been renewed. (b) A person whose certificate has been expired for 90 days or less may renew the certificate by paying to the board a renewal fee that is equal to one and one-half times the normally required renewal fee. (c) A person whose certificate has been expired for more than 90 days but less than one year may renew the certificate by paying to the board a renewal fee that is equal to two times the normally required renewal fee. (d) A person whose certificate has been expired for one year or more may not renew the certificate. The person may obtain a new certificate by complying with the requirements and procedures, including the examination requirements, for obtaining an original certificate. (e) A person who held a certificate in this state, moved to another state, and currently holds a certificate and has been in practice in the other state for the two years preceding the date of application may obtain a new certificate without reexamination. The person must pay to the board a fee that is equal to two times the normally required renewal fee for the certificate. (f) Not later than the 30th day before the date a person's certificate is scheduled to expire, the board shall send written notice of the impending expiration to the person at the person's last known address according to the records of the board. Sec. 21.062. REVOCATION, MODIFICATION, OR SUSPENSION OF CERTIFICATE. (a) The board shall revoke, suspend, or refuse to renew a certificate or reprimand a certificate holder for a violation of this subchapter or a rule of the board. (b) The board may place on probation a person whose certificate has been suspended. If a certificate suspension is probated, the board may require the person: (1) to report regularly to the board on matters that are the basis of the probation; (2) to limit practice to the areas prescribed by the board; or (3) to continue or review professional education until the person attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. SECTION 14. Section 22.082, Education Code, is amended to read as follows: Sec. 22.082. ACCESS TO CRIMINAL HISTORY RECORDS BY STATE BOARD FOR EDUCATOR CERTIFICATION. The State Board for Educator Certification shall obtain from any law enforcement or criminal justice agency all state and national criminal history record information that relates to an applicant for or holder of a certificate or permit issued under Subchapter B, Chapter 21. The board shall require an applicant to pay any costs related to obtaining criminal history information under this section. SECTION 15. Section 411.090, Government Code, is amended to read as follows: Sec. 411.090. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION AND FINGERPRINTS: STATE BOARD FOR EDUCATOR CERTIFICATION. (a) The State Board for Educator Certification is entitled to obtain from the department any criminal history record information maintained by the department about a person who has applied to the board for a certificate or permit under Subchapter B, Chapter 21, Education Code. (b) Criminal history record information obtained by the board under Subsection (a): (1) may be used for any purpose related to the issuance, denial, suspension, or cancellation of a certificate issued by the board; and (2) may not be released to any person except on court order or with the consent of the applicant for a certificate [; and [(3) shall be destroyed by the board after the information is used for the authorized purposes]. (c) The State Board for Educator Certification may keep on file with the department all fingerprints obtained by the board under Section 21.0401, Education Code. The department shall notify the board of the arrest of any educator who has fingerprints on file with the department. (d) In this section, "educator" has the meaning assigned by Section 5.001, Education Code. SECTION 16. Not later than January 1, 2004, the executive director of the State Board for Educator Certification or the executive director's designee shall prepare the written policy statement required by Section 21.0391, Education Code, as added by this Act. SECTION 17. (a) Not later than January 1, 2004, the State Board for Educator Certification shall propose rules governing the certification of educational diagnosticians. Section 21.003(a), Education Code, as amended by this Act, applies only to the employment of an educational diagnostician by a school district on or after September 1, 2004. (b) Sections 21.0331 and 21.0332, Education Code, as added by this Act, do not affect the entitlement of a person serving as a member of the State Board for Educator Certification immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the person's term. Sections 21.0331 and 21.0332, Education Code, as added by this Act, apply only to a person appointed to the State Board for Educator Certification on or after September 1, 2003. (c) Section 21.0484, Education Code, as added by this Act, applies only to an examination administered under Subchapter B, Chapter 21, Education Code, on or after September 1, 2003. (d) Section 21.058, Education Code, as added by this Act, applies only to a complaint filed with the State Board for Educator Certification on or after September 1, 2003, regardless of whether the conduct or act that is the subject of the complaint occurred or was committed before, on, or after that date. (e) Section 21.061, Education Code, as added by this Act, applies to fees for renewal of a certificate under Subchapter B, Chapter 21, Education Code, that expires on or after September 1, 2003. Fees for renewal of a certificate that expired before that date are governed by the law in effect on the date the certificate expired, and the former law is continued in effect for that purpose. SECTION 18. This Act takes effect September 1, 2003.