80R9011 CAE-D

By: Shapiro S.B. No. 9

A BILL TO BE ENTITLED

AN ACT

relating to the dissemination of criminal history record information for certain purposes, including the certification and employment of educators and other public school employees who engage in certain misconduct.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 21.006, Education Code, is amended by adding Subsection (c-1) to read as follows:

(c-1) On receipt of a report of an alleged incident of misconduct under Subsection (c), the State Board for Educator Certification shall place a notice regarding the alleged incident on the educator's public certification records. If it is determined that the educator has not engaged in the alleged incident of misconduct, the board shall immediately remove the notice from the educator's public certification records.

SECTION 2. Sections 21.058(a) and (b), Education Code, are amended to read as follows:

(a) This section applies only:

(1) to conviction or deferred adjudication of a felony offense under Title 5, Penal Code, or an offense on conviction of which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure; and

(2) if the victim of the offense is under 18 years of age.

(b) Notwithstanding Section 21.041(b)(7), not later than the fifth day after the date the board receives notice under Article 42.018, Code of Criminal Procedure, of the conviction or deferred adjudication of a person who holds a certificate under this subchapter, the board shall:

(1) revoke the certificate held by the person; and

(2) provide to the person and to any school district or open-enrollment charter school employing the person at the time of revocation written notice of:

(A) the revocation; and

(B) the basis for the revocation.

SECTION 3. Subchapter B, Chapter 21, Education Code, is amended by adding Section 21.060 to read as follows:

Sec. 21.060. ELIGIBILITY OF PERSONS RECEIVING DEFERRED ADJUDICATION FOR OR CONVICTED OF CERTAIN OFFENSES. The board may suspend or revoke the certificate or permit held by a person under this subchapter, impose other sanctions against the person, or refuse to issue a certificate or permit to a person under this subchapter if the person has received deferred adjudication for or has been convicted of a felony or misdemeanor offense relating to the duties and responsibilities of the education profession, including:

(1) an offense involving moral turpitude;

(2) an offense involving a form of sexual or physical abuse of a minor or student or other illegal conduct with a minor or student;

(3) a felony offense involving the possession, transfer, sale, distribution, or conspiracy to possess, transfer, sell, or distribute a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.;

(4) an offense involving the illegal transfer, appropriation, or use of school district funds or other district property;

(5) an offense involving an attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license issued under this subchapter;

(6) an offense in which any part of the offense occurs on school district property or at a school-sponsored event; or

(7) two or more offenses committed during a 12-month period that involve public intoxication, operating a motor vehicle while under the influence of alcohol, or disorderly conduct.

SECTION 4. 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 criminal history record information and all records contained in any criminal investigation file that relate [relates] to an applicant for or holder of a certificate issued under Subchapter B, Chapter 21.

SECTION 5. Subchapter C, Chapter 22, Education Code, is amended by adding Section 22.0831 to read as follows:

Sec. 22.0831. NATIONAL CRIMINAL HISTORY RECORD INFORMATION REVIEW. (a) In this section, "national criminal history record information" means criminal history record information obtained from the Department of Public Safety under Subchapter F, Chapter 411, Government Code, and from the Federal Bureau of Investigation under Section 411.087, Government Code.

(b) This section applies to a person who is an employee of or applicant for employment by:

(1) a school district or open-enrollment charter school;

(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; or

(3) an entity that contracts with the district, school, or shared services arrangement to provide services, if:

(A) the employee or applicant has or will have continuing duties related to the contracted services; and

(B) the duties are or will be performed on school property or at another location where students are regularly present.

(c) A person to whom this section applies must submit to a national criminal history record information review and investigation under this section before being employed or serving in a capacity described by Subsection (b).

(d) Before or immediately after employing or securing the services of a person to whom this section applies, a school district, open-enrollment charter school, or shared services arrangement shall send to the agency the person's fingerprints and any other information requested by the agency that is required for obtaining national criminal history record information.

(e) The agency shall review and investigate the person's national criminal history record information and report the results of the review and investigation to the school district, open-enrollment charter school, or shared services arrangement requesting the review.

(f) The agency may obtain from any law enforcement agency or criminal justice agency all criminal history record information that relates to a person to whom this section applies.

(g) The agency, school district, or shared services arrangement may require a person to pay any costs related to obtaining criminal history record information under this section.

(h) The agency may coordinate with the State Board for Educator Certification, school districts, and shared services arrangements as necessary to ensure that criminal history investigations authorized or required under this subchapter are not unnecessarily duplicated.

(i) The commissioner may adopt rules necessary to implement this section.

SECTION 6. Section 22.085, Education Code, is amended to read as follows:

Sec. 22.085. [DISCHARGE OF] EMPLOYEES AND APPLICANTS CONVICTED OF CERTAIN OFFENSES. (a) A school district, open-enrollment charter school, or shared services arrangement shall discharge or refuse to hire an employee or applicant for employment who is subject to a national criminal history record information review under Section 22.0831 if the district, school, or shared services arrangement obtains information that:

(1) the employee or applicant has been convicted of or received deferred adjudication for a felony offense under Title 5, Penal Code, or an offense on conviction of which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure; and

(2) the victim of the offense described by Subdivision (1) is under 18 years of age.

(b) A school district, open-enrollment charter school, or shared services arrangement may not allow a person who is an employee of or applicant for employment by an entity that contracts with the district, school, or shared services arrangement and who is subject to a national criminal history record information review under Section 22.0831 to serve at the district or school or for the shared services arrangement if the district, school, or shared services arrangement obtains information described by Subsection (a) concerning the employee or applicant.

(c) A school district, open-enrollment charter school, private school, regional education service center, or shared services arrangement may discharge an employee if the district or 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 the State Board for Educator Certification or the district, school, service center, or shared services arrangement. An employee discharged under this section is considered to have been discharged for misconduct for purposes of Section 207.044, Labor Code.

SECTION 7. Section 261.103, Family Code, is amended by adding Subsection (d) to read as follows:

(d) In addition to the reports required under Subsection (a), a report shall be made to the State Board for Educator Certification if the alleged or suspected abuse or neglect involves a person responsible for the care, custody, or welfare of the child and that person holds or has applied for a certificate or permit under Subchapter B, Chapter 21, Education Code. The information provided under this subsection is confidential and not subject to discovery or public release under Chapter 552, Government Code.

SECTION 8. Section 411.042, Government Code, is amended by amending Subsections (b) and (g) and adding Subsection (h) to read as follows:

(b) The bureau of identification and records shall:

(1) procure and file for record photographs, pictures, descriptions, fingerprints, measurements, and other pertinent information of all persons arrested for or charged with a criminal offense or convicted of a criminal offense, regardless of whether the conviction is probated;

(2) collect information concerning the number and nature of offenses reported or known to have been committed in the state and the legal steps taken in connection with the offenses, and other information useful in the study of crime and the administration of justice, including a statistical breakdown of those offenses in which family violence was involved;

(3) make ballistic tests of bullets and firearms and chemical analyses of bloodstains, cloth, materials, and other substances for law enforcement officers of the state;

(4) cooperate with identification and crime records bureaus in other states and the United States Department of Justice;

(5) maintain a list of all previous background checks for applicants for any position regulated under Chapter 1702, Occupations Code, who have undergone a criminal history background check under Section 411.119, if the check indicates a Class B misdemeanor or equivalent offense or a greater offense; [and]

(6) collect information concerning the number and nature of protective orders and all other pertinent information about all persons on active protective orders. Information in the law enforcement information system relating to an active protective order shall include:

(A) the name, sex, race, date of birth, personal descriptors, address, and county of residence of the person to whom the order is directed;

(B) any known identifying number of the person to whom the order is directed, including the person's social security number or driver's license number;

(C) the name and county of residence of the person protected by the order;

(D) the residence address and place of employment or business of the person protected by the order, unless that information is excluded from the order under Section 85.007, Family Code;

(E) the child-care facility or school where a child protected by the order normally resides or which the child normally attends, unless that information is excluded from the order under Section 85.007, Family Code;

(F) the relationship or former relationship between the person who is protected by the order and the person to whom the order is directed; and

(G) the date the order expires; and

(7) grant access to criminal history record information in the manner authorized under Subchapter F.

(g) The department may adopt reasonable rules under this section relating to:

(1) law enforcement information systems maintained by the department;

(2) the collection, maintenance, and correction of records;

(3) reports of criminal history information submitted to the department; [and]

(4) active protective orders issued under Chapter 71, Family Code, and reporting procedures that ensure that information relating to the issuance of an active protective order and to the dismissal of an active protective order is reported to the local law enforcement agency at the time of the order's issuance or dismissal and entered by the local law enforcement agency in the state's law enforcement information system; and

(5) a system for providing criminal history record information through the criminal history clearinghouse under Section 411.0845.

(h) The department may contract with private vendors as necessary in implementing this section.

SECTION 9. Sections 411.083(b) and (c), Government Code, are amended to read as follows:

(b) The department shall grant access to criminal history record information to:

(1) criminal justice agencies;

(2) noncriminal justice agencies authorized by federal statute or executive order or by state statute to receive criminal history record information;

(3) the person who is the subject of the criminal history record information;

(4) a person working on a research or statistical project that:

(A) is funded in whole or in part by state funds; or

(B) meets the requirements of Part 22, Title 28, Code of Federal Regulations, and is approved by the department;

(5) an individual or an agency that has a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice under that agreement, if the agreement:

(A) specifically authorizes access to information;

(B) limits the use of information to the purposes for which it is given;

(C) ensures the security and confidentiality of the information; and

(D) provides for sanctions if a requirement imposed under Paragraph (A), (B), or (C) is violated;

(6) an individual or an agency that has a specific agreement with a noncriminal justice agency to provide services related to the use of criminal history record information disseminated under this subchapter, if the agreement:

(A) specifically authorizes access to information;

(B) limits the use of information to the purposes for which it is given;

(C) ensures the security and confidentiality of the information; and

(D) provides for sanctions if a requirement imposed under Paragraph (A), (B), or (C) is violated;

(7) a county or district clerk's office; and

(8) [(7)] the Office of Court Administration of the Texas Judicial System.

(c) The department may disseminate criminal history record information under Subsection (b)(1) only for a criminal justice purpose. The department may disseminate criminal history record information under Subsection (b)(2) only for a purpose specified in the statute or order. The department may disseminate criminal history record information under Subsection (b)(4), (5), or (6) [or (b)(5)] only for a purpose approved by the department and only under rules adopted by the department. The department may disseminate criminal history record information under Subsection (b)(7) [(b)(6)] only to the extent necessary for a county or district clerk to perform a duty imposed by law to collect and report criminal court disposition information. Criminal history record information disseminated to a clerk under Subsection (b)(7) [(b)(6)] may be used by the clerk only to ensure that information reported by the clerk to the department is accurate and complete. The dissemination of information to a clerk under Subsection (b)(7) [(b)(6)] does not affect the authority of the clerk to disclose or use information submitted by the clerk to the department. The department may disseminate criminal history record information under Subsection (b)(8) [(b)(7)] only to the extent necessary for the office of court administration to perform a duty imposed by law to compile court statistics or prepare reports. The office of court administration may disclose criminal history record information obtained from the department under Subsection (b)(8) [(b)(7)] in a statistic compiled by the office or a report prepared by the office, but only in a manner that does not identify the person who is the subject of the information.

SECTION 10. Subchapter F, Chapter 411, Government Code, is amended by adding Section 411.0845 to read as follows:

Sec. 411.0845. CRIMINAL HISTORY CLEARINGHOUSE. (a) The department shall establish an electronic clearinghouse and subscription service to provide criminal history record information to a person entitled to receive criminal history record information under this subchapter.

(b) On receiving a request for criminal history record information from a person entitled to such information under this subchapter, the department shall provide through the electronic clearinghouse:

(1) the criminal history record information reported to the department or the Federal Bureau of Investigation relating to the individual who is the subject of the request; or

(2) a statement that the individual who is the subject of the request does not have any criminal history record information reported to the department or the Federal Bureau of Investigation.

(c) The department shall ensure that the information described by Subsection (b) is provided only to a person otherwise entitled to obtain criminal history record information under this subchapter. Information collected under this section is confidential and is not subject to disclosure under Chapter 552.

(d) A person entitled to receive criminal history record information under this subchapter must provide the department with the following information regarding the person who is the subject of the criminal history record information requested:

(1) the person's full name, date of birth, sex, Texas driver's license number or personal identification certificate number, and social security number;

(2) a recent electronic digital image photograph of the person and a complete set of the person's fingerprints; and

(3) any other information required by the department.

(e) The department shall maintain an Internet website for the administration of the clearinghouse and an electronic subscription service to provide notice of updates to a person entitled to receive criminal history record information under this subchapter. The department shall update clearinghouse records as a result of any change in information discovered by the department. Within 48 hours after the department becomes aware that a person's criminal history record information in a clearinghouse record has changed, the department shall provide the updated information to each subscriber to that specific record.

(f) A person who is the subject of the criminal history record information requested under this section must consent to the release of the information.

(g) The release under this section of any criminal history record information maintained by the Federal Bureau of Investigation is subject to federal law and regulations, federal executive orders, and federal policy.

(h) The department may charge a fee for subscription services to cover the costs of administering this section.

SECTION 11. Section 411.090, Government Code, is amended by adding Subsection (c) to read as follows:

(c) The department shall notify the board of the arrest of any educator, as defined by Section 5.001, Education Code, who has fingerprints on file with the department.

SECTION 12. Subchapter F, Chapter 411, Government Code, is amended by adding Section 411.0901 to read as follows:

Sec. 411.0901. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: TEXAS EDUCATION AGENCY. The Texas Education Agency is entitled to obtain criminal history record information maintained by the department about a person who:

(1) is employed or is an applicant for employment by a school district or open-enrollment charter school;

(2) is employed or is an applicant for employment by 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; or

(3) is employed or is an applicant for employment by an entity that contracts with a school district, open-enrollment charter school, or shared services arrangement if:

(A) the employee or applicant has or will have continuing duties relating to the contracted services; and

(B) the duties are or will be performed on school property or at another location where students are regularly present.

SECTION 13. Section 411.097(b), Government Code, is amended to read as follows:

(b) A school district, charter school, private school, regional education service center, or education shared services arrangement is entitled to obtain from the department[, no more than twice each year,] criminal history record information maintained by the department that the district, school, service center, or shared services arrangement is required or authorized to obtain under Subchapter C, Chapter 22, Education Code, that relates to a person who is a volunteer or employee of the district, school, service center, or shared services arrangement.

SECTION 14. Section 730.007, Transportation Code, is amended by adding Subsection (f) to read as follows:

(f) Personal information obtained by an agency under Section 411.0845, Government Code, in connection with a motor vehicle record may be disclosed as provided by that section.

SECTION 15. Section 21.006(c-1), Education Code, as added by this Act, applies only to a report for misconduct filed with the State Board for Educator Certification on or after September 1, 2007, regardless of whether the conduct or act that is the subject of the report occurred or was committed before, on, or after that date.

SECTION 16. Section 21.058, Education Code, as amended by this Act, applies only to an offense for which a person receives deferred adjudication on or after the effective date of this Act. An offense for which a person receives deferred adjudication before the effective date of this Act is governed by the law in effect at the time the person received deferred adjudication, and the former law is continued in effect for that purpose.

SECTION 17. As soon as practicable after the effective date of this Act, the Texas Education Agency shall, in the manner prescribed by Section 22.0831, Education Code, as added by this Act, begin obtaining national criminal history record information for employees and applicants for employment who are subject to a national criminal history record information review under that section. Not later than September 1, 2009, the agency shall, in the manner prescribed by Section 22.0831, Education Code, as added by this Act, obtain national criminal history record information for each employee and applicant for employment who is subject to a national criminal history record information review under that section.

SECTION 18. As soon as practicable after the effective date of this Act, the Department of Public Safety shall establish a criminal history clearinghouse as required by Section 411.0845, Government Code, as added by this Act.

SECTION 19. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.