81R7600 SJM-D
By: Williams S.B. No. 2046
A BILL TO BE ENTITLED
AN ACT
relating to requiring criminal history background checks for
employees of public institutions of higher education.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 51, Education Code, is
amended to read as follows:
SUBCHAPTER B. [GENERAL PROPERTY DEPOSITS: INVESTMENT AND USES]
CRIMINAL HISTORY BACKGROUND CHECKS FOR POTENTIAL AND CURRENT
EMPLOYEES
Sec. 51.051. DEFINITIONS. In this subchapter:
(1) "Criminal history record information" means
criminal history record information obtained from the Department of
Public Safety under Subchapter F, Chapter 411, Government Code, or
from 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. ACCESS TO 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. 51.053. PREEMPLOYMENT CRIMINAL HISTORY BACKGROUND
CHECKS; RESTRICTIONS ON EMPLOYMENT. (a) An institution of higher
education shall condition an offer of employment on obtaining
acceptable criminal history record information under Section
51.052.
(b) An institution of higher education shall reject an
application for employment if:
(1) the applicant fails to consent to a criminal
history background check or provide fingerprints necessary to
obtain criminal history record information; or
(2) the applicant's 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 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 51.057 to determine whether to employ the
applicant.
(d) After an analysis under Section 51.057, an institution
of higher education may employ an applicant whose 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. 51.054. POST-EMPLOYMENT CRIMINAL HISTORY BACKGROUND
CHECKS; TERMINATION OF EMPLOYMENT FOR FAILURE TO PROVIDE
INFORMATION. (a) An institution of higher education shall conduct
a criminal history background check of an employee on promotion or
transfer of the employee within the institution. 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 criminal
history background check. The institution may immediately
terminate the employment of an employee who fails to provide the
information or fingerprints.
Sec. 51.055. 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 51.057.
Sec. 51.056. 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 51.057
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. 51.057. ANALYSIS OF CRIMINAL HISTORY RECORD
INFORMATION AND SUBSEQUENT ACTIONS. (a) Except as provided by
Section 51.053(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. 51.058. 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. 51.059. USE AND DESTRUCTION OF CRIMINAL HISTORY RECORD
INFORMATION. An institution of higher education shall:
(1) use criminal history record information obtained
under this subchapter exclusively to verify employability; and
(2) destroy all 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 criminal history
record information has been analyzed and any resulting
administrative action has been taken.
Sec. 51.060. POLICIES. Each governing board of an
institution of higher education shall adopt policies as necessary
for the institution to comply with this subchapter.
SECTION 2. Section 51.215, Education Code, is repealed.
SECTION 3. 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 51.060,
Education Code, as added by this Act.
SECTION 4. This Act takes effect September 1, 2009.