Amend CSHB 2730 (Senate committee printing) by adding the
following appropriately numbered ARTICLE to the bill and
renumbering subsequent ARTICLES of the bill accordingly:
ARTICLE ___. CRIMINAL HISTORY BACKGROUND CHECKS FOR CERTAIN
EMPLOYEES OF INSTITUTIONS OF HIGHER EDUCATION
SECTION ___.01. Subchapter B, Chapter 51, Education Code,
is amended to read as follows:
SUBCHAPTER B. CRIMINAL HISTORY BACKGROUND CHECKS FOR POTENTIAL AND
CURRENT EMPLOYEES [GENERAL PROPERTY DEPOSITS: INVESTMENT AND USES]
Sec. 51.051. DEFINITIONS. In this subchapter:
(1) "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 the Federal Bureau of Investigation under
Section 411.087, Government Code.
(2) "Governing board" and "institution of higher
education" have the meanings assigned by Section 61.003.
Sec. 51.052. APPLICABILITY. This subchapter does not apply
to an applicant for employment at or employee of an institution of
higher education who is or will be a student enrolled in the
institution during the person's employment. This section does not
prohibit an institution from conducting a criminal history
background check of a student applicant for a security-sensitive
position at the institution.
Sec. 51.053. ACCESS TO NATIONAL CRIMINAL HISTORY RECORD
INFORMATION BY INSTITUTION. (a) An institution of higher
education shall subscribe to the criminal history clearinghouse as
provided by Section 411.0845, Government Code.
(b) An institution may obtain from a law enforcement or
criminal justice agency any criminal history record information,
including information contained in a closed criminal investigation
file, that relates to a specific applicant for employment with or an
employee of the institution.
Sec. 51.054. PREEMPLOYMENT NATIONAL CRIMINAL HISTORY
BACKGROUND CHECKS; RESTRICTIONS ON EMPLOYMENT. (a) An institution
of higher education shall condition an offer of employment on
obtaining acceptable national criminal history record information
under Section 51.053.
(b) An institution of higher education shall reject an
application for employment if:
(1) the applicant fails to consent to a national
criminal history background check or provide fingerprints
necessary to obtain national criminal history record information;
or
(2) the applicant's national criminal history record
information indicates that the applicant has been convicted of:
(A) a felony of the second degree, a felony of the
first degree, or a capital felony under the laws of this state or of
an equivalent offense under the laws of another jurisdiction; or
(B) an offense for which registration as a sex
offender is required under Chapter 62, Code of Criminal Procedure.
(c) If an applicant's national criminal history record
information indicates that the applicant has been convicted of an
offense, other than an offense listed under Subsection (b)(2), or
arrested for any offense, the institution of higher education shall
conduct an analysis under Section 51.058 to determine whether to
employ the applicant.
(d) After an analysis under Section 51.058, an institution
of higher education may employ an applicant whose national criminal
history record information indicates that the applicant has been
convicted of a felony, other than an offense listed under
Subsection (b)(2), only if employment of the applicant is:
(1) recommended by the person in charge of the
department or division to which the applicant has applied; and
(2) approved by the chief executive officer of the
institution or the officer's designee.
Sec. 51.055. POST-EMPLOYMENT NATIONAL CRIMINAL HISTORY
BACKGROUND CHECKS; TERMINATION OF EMPLOYMENT FOR FAILURE TO PROVIDE
INFORMATION. (a) An institution of higher education shall conduct
a national criminal history background check of an employee on
promotion or transfer of the employee within the institution if the
institution has not previously conducted a national criminal
history background check of the employee. An institution may
conduct additional criminal history background checks as necessary
to maintain the integrity of the institution's faculty and staff.
(b) The institution of higher education shall require that
every employee of the institution provide the identification
information and fingerprints necessary to conduct a national
criminal history background check. The institution may immediately
terminate the employment of an employee who fails to provide the
information or fingerprints.
Sec. 51.056. FALSIFICATION OF CRIMINAL HISTORY;
DISCIPLINARY AND OTHER ACTION. (a) An institution of higher
education shall reject an application for employment if the
applicant knowingly fails to provide or falsifies criminal history
record information on an application.
(b) An institution of higher education may take
disciplinary action, including termination of employment, against
an employee if the employee knowingly failed to provide or
falsified criminal history record information on the employee's
application for employment, a promotion, or a transfer.
(c) An institution of higher education may make a decision
to reject an application for employment under Subsection (a) or
take disciplinary action against an employee under Subsection (b)
without conducting an analysis under Section 51.058.
Sec. 51.057. INFORMATION REQUIRED TO BE REPORTED BY
APPLICANTS AND EMPLOYEES; DISCIPLINARY ACTION. (a) An institution
of higher education shall require:
(1) an applicant for employment to report an arrest
made after the applicant has submitted the application to the
institution and before the institution has notified the applicant
of a decision about employment of the applicant; and
(2) an employee to report to a supervisor, within 24
hours of the arrest, charge, or conviction, or at the earliest
practicable opportunity after that 24-hour period, the employee's
criminal arrest, charge, or conviction, other than for a
misdemeanor traffic offense punishable by a fine only.
(b) A supervisor who receives a report from an employee
under Subsection (a)(2) shall report the information to the person
in charge of the department or division to which the employee is
assigned and to the institution's human resources department.
(c) An institution of higher education may take
disciplinary action, including termination of employment, against
an employee who fails to report as required by Subsection (a)(2).
(d) An institution of higher education's human resources
department or, in the case of a faculty member, the provost or
provost's designee shall conduct an analysis under Section 51.058
and assist the department or division to which the employee is
assigned in determining, for an arrest, charge, or conviction
reported under Subsection (a)(2), the appropriate disciplinary
action to take against the employee, which may include termination
of employment.
(e) An institution of higher education, on learning of an
arrest, charge, or conviction reported under Subsection (a)(2), may
immediately suspend with pay the employee pending the outcome of an
administrative review under Subsection (d).
Sec. 51.058. ANALYSIS OF CRIMINAL HISTORY RECORD
INFORMATION AND SUBSEQUENT ACTIONS. (a) Except as provided by
Section 51.054(b)(2), before rejecting an application for
employment or taking disciplinary action against an employee on the
basis of a criminal conviction, an institution of higher education
must:
(1) consider the following factors:
(A) the nature and gravity of the offense;
(B) the amount of time that has passed since:
(i) the conviction; and
(ii) the completion of a sentence imposed
based on the conviction;
(C) the nature of the job sought or held;
(D) the number of convictions; and
(E) the institution's interest in protecting the
safety and welfare of its employees, the general public, state
property, and the integrity of the institution; and
(2) determine that:
(A) the conviction is job-related; and
(B) the rejection of the application or
disciplinary action against the employee is necessary to properly
administer the institution.
(b) Before rejecting an application for employment or
taking disciplinary action against an employee on the basis of a
criminal arrest, an institution of higher education must:
(1) consider the following factors:
(A) the nature and gravity of the activity
resulting in the arrest;
(B) the amount of time that has passed since the
arrest;
(C) the nature of the job sought or held;
(D) the number of arrests;
(E) the institution's interest in protecting the
safety and welfare of its employees, the general public, state
property, and the integrity of the institution;
(F) an explanation of the arrest by the applicant
or employee; and
(G) whether the reason for arrest violates an
institutional rule, policy, or procedure, regardless of whether the
arrest resulted in a conviction; and
(2) determine that:
(A) the alleged misconduct is job-related;
(B) the rejection of an application or
disciplinary action is necessary to properly administer the
institution; and
(C) the applicant or employee is likely to have
engaged in the misconduct that caused the arrest.
Sec. 51.059. APPEALS; DETERMINATION. (a) An applicant for
employment may appeal a decision of an institution of higher
education under this subchapter to refuse to employ the applicant
only on the basis that the institution discriminated against the
applicant for an unlawful reason, including the applicant's race,
color, national origin, religion, sex, disability, or age.
(b) An applicant alleging unlawful discrimination by the
institution of higher education must, not later than the 10th
business day after the date an application is rejected, present
written data or documentation of the specific actions or basis of
the allegation to the appropriate institution employee responsible
for equal employment opportunity or the employee's designee.
(c) On receiving the data or documentation, the employee
responsible for equal employment opportunity or the employee's
designee shall investigate the complaint and issue a written report
of findings to the chief executive officer of the institution or the
officer's designee.
(d) If the chief executive officer or the officer's designee
approves the report under Subsection (b), the officer or designee
shall provide a copy of the report to the rejected applicant not
later than the 14th day after the date the report is approved.
(e) The governing board of an institution of higher
education may adopt a separate appeals process under this section
or may use an existing process regarding employee discipline and
termination of employment.
Sec. 51.060. USE AND DESTRUCTION OF NATIONAL CRIMINAL
HISTORY RECORD INFORMATION. An institution of higher education
shall:
(1) use national criminal history record information
obtained under this subchapter exclusively to verify
employability; and
(2) destroy all national criminal history record
information obtained under this subchapter as soon as practicable,
consistent with the following:
(A) for an applicant for employment, after the
position for which the applicant applied has been filled and the
applicant that was hired reports for the first day of work; or
(B) for an employee, after the national criminal
history record information has been analyzed and any resulting
administrative action has been taken.
Sec. 51.061. POLICIES. Each governing board of an
institution of higher education shall adopt policies as necessary
for the institution to comply with this subchapter.
Sec. 51.062. NAME-BASED CRIMINAL HISTORY BACKGROUND
CHECKS. (a) An institution of higher education may, in lieu of
obtaining information under Section 51.053, contract with a private
vendor to conduct name-based criminal history background checks on
any current employee for which the institution has not previously
conducted a national criminal history background check for the sole
purpose of verifying continued employability.
(b) An institution of higher education shall destroy
name-based criminal history background check information obtained
under Subsection (a) as soon as practicable after the information
has been analyzed and any resulting administrative action has been
taken.
SECTION ___.02. Section 411.081(i), Government Code, is
amended to read as follows:
(i) A criminal justice agency may disclose criminal history
record information that is the subject of an order of nondisclosure
to the following noncriminal justice agencies or entities only:
(1) the State Board for Educator Certification;
(2) a school district, charter school, private school,
regional education service center, commercial transportation
company, or education shared service arrangement;
(3) the Texas Medical Board;
(4) the Texas School for the Blind and Visually
Impaired;
(5) the Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name
change under Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Youth Commission;
(11) the Department of Assistive and Rehabilitative
Services;
(12) the Department of State Health Services, a local
mental health service, a local mental retardation authority, or a
community center providing services to persons with mental illness
or retardation;
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Texas Board of Nursing;
(16) a safe house providing shelter to children in
harmful situations;
(17) a public or nonprofit hospital or hospital
district;
(18) the Texas Juvenile Probation Commission;
(19) the securities commissioner, the banking
commissioner, the savings and mortgage lending commissioner, or the
credit union commissioner;
(20) the Texas State Board of Public Accountancy;
(21) the Texas Department of Licensing and Regulation;
(22) the Health and Human Services Commission;
(23) the Department of Aging and Disability Services;
[and]
(24) the Texas Education Agency; and
(25) an institution of higher education, as defined by
Section 411.094(a)(1)(A).
SECTION ___.03. Section 411.094, Government Code, is
amended by adding Subsection (f) to read as follows:
(f) Notwithstanding Subsection (c), an institution of
higher education, as defined by Subsection (a)(1)(A), is entitled
to obtain from the department criminal history record information
maintained by the department that relates to a person who is
employed by or is an applicant for employment at the institution, to
the extent the information is necessary for the institution to
administer the institution's duties under Subchapter B, Chapter 51,
Education Code.
SECTION ___.04. Section 51.215, Education Code, is
repealed.
SECTION ___.05. As soon as practicable after the effective
date of this Act, the governing board of a public institution of
higher education shall adopt policies required by Section 51.061,
Education Code, as added by this article.