Texas 2009 - 81st Regular

Texas Senate Bill SB2046 Compare Versions

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1	1	81R32050 SJM-D
2	2	By: Williams S.B. No. 2046
3	3	Substitute the following for S.B. No. 2046:
4	4	By: Patrick C.S.S.B. No. 2046
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to requiring criminal history background checks for
10	10	employees of public institutions of higher education.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subchapter B, Chapter 51, Education Code, is
13	13	amended to read as follows:
14	14	SUBCHAPTER B. CRIMINAL HISTORY BACKGROUND CHECKS FOR POTENTIAL AND
15	15	CURRENT EMPLOYEES [GENERAL PROPERTY DEPOSITS: INVESTMENT AND USES]
16	16	Sec. 51.051. DEFINITIONS. In this subchapter:
17	17	(1) "Criminal history record information" means
18	18	criminal history record information obtained from the Department of
19	19	Public Safety under Subchapter F, Chapter 411, Government Code,
20	20	from the Federal Bureau of Investigation under Section 411.087,
21	21	Government Code, or from a private vendor.
22	22	(2) "Governing board" and "institution of higher
23	23	education" have the meanings assigned by Section 61.003.
24	24	Sec. 51.052. APPLICABILITY. This subchapter does not apply
25	25	to an applicant for employment at or employee of an institution of
26	26	higher education who is or will be a student enrolled in the
27	27	institution during the person's employment. This section does not
28	28	prohibit an institution from conducting a criminal history
29	29	background check of a student applicant for a security-sensitive
30	30	position at the institution.
31	31	Sec. 51.053. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION
32	32	BY INSTITUTION. (a) An institution of higher education shall:
33	33	(1) subscribe to the criminal history clearinghouse as
34	34	provided by Section 411.0845, Government Code; or
35	35	(2) obtain from a private vendor that offers services
36	36	comparable to the criminal history record information services
37	37	offered by the Department of Public Safety all criminal history
38	38	record information required for the institution to comply with
39	39	Sections 51.054 and 51.055.
40	40	(b) An institution may obtain from a law enforcement or
41	41	criminal justice agency any criminal history record information,
42	42	including information contained in a closed criminal investigation
43	43	file, that relates to a specific applicant for employment with or an
44	44	employee of the institution.
45	45	Sec. 51.054. PREEMPLOYMENT CRIMINAL HISTORY BACKGROUND
46	46	CHECKS; RESTRICTIONS ON EMPLOYMENT. (a) An institution of higher
47	47	education shall condition an offer of employment on obtaining
48	48	acceptable criminal history record information under Section
49	49	51.053.
50	50	(b) An institution of higher education shall reject an
51	51	application for employment if:
52	52	(1) the applicant fails to consent to a criminal
53	53	history background check or provide fingerprints necessary to
54	54	obtain criminal history record information; or
55	55	(2) the applicant's criminal history record
56	56	information indicates that the applicant has been convicted of:
57	57	(A) a felony of the second degree, a felony of the
58	58	first degree, or a capital felony under the laws of this state or of
59	59	an equivalent offense under the laws of another jurisdiction; or
60	60	(B) an offense for which registration as a sex
61	61	offender is required under Chapter 62, Code of Criminal Procedure.
62	62	(c) If an applicant's criminal history record information
63	63	indicates that the applicant has been convicted of an offense,
64	64	other than an offense listed under Subsection (b)(2), or arrested
65	65	for any offense, the institution of higher education shall conduct
66	66	an analysis under Section 51.058 to determine whether to employ the
67	67	applicant.
68	68	(d) After an analysis under Section 51.058, an institution
69	69	of higher education may employ an applicant whose criminal history
70	70	record information indicates that the applicant has been convicted
71	71	of a felony, other than an offense listed under Subsection (b)(2),
72	72	only if employment of the applicant is:
73	73	(1) recommended by the person in charge of the
74	74	department or division to which the applicant has applied; and
75	75	(2) approved by the chief executive officer of the
76	76	institution or the officer's designee.
77	77	Sec. 51.055. POST-EMPLOYMENT CRIMINAL HISTORY BACKGROUND
78	78	CHECKS; TERMINATION OF EMPLOYMENT FOR FAILURE TO PROVIDE
79	79	INFORMATION. (a) An institution of higher education shall conduct
80	80	a criminal history background check of an employee on promotion or
81	81	transfer of the employee within the institution if the institution
82	82	has not previously conducted a criminal history background check of
83	83	the employee. An institution may conduct additional criminal
84	84	history background checks as necessary to maintain the integrity of
85	85	the institution's faculty and staff.
86	86	(b) The institution of higher education shall require that
87	87	every employee of the institution provide the identification
88	88	information and fingerprints necessary to conduct a criminal
89	89	history background check. The institution may immediately
90	90	terminate the employment of an employee who fails to provide the
91	91	information or fingerprints.
92	92	Sec. 51.056. FALSIFICATION OF CRIMINAL HISTORY;
93	93	DISCIPLINARY AND OTHER ACTION. (a) An institution of higher
94	94	education shall reject an application for employment if the
95	95	applicant knowingly fails to provide or falsifies criminal history
96	96	record information on an application.
97	97	(b) An institution of higher education may take
98	98	disciplinary action, including termination of employment, against
99	99	an employee if the employee knowingly failed to provide or
100	100	falsified criminal history record information on the employee's
101	101	application for employment, a promotion, or a transfer.
102	102	(c) An institution of higher education may make a decision
103	103	to reject an application for employment under Subsection (a) or
104	104	take disciplinary action against an employee under Subsection (b)
105	105	without conducting an analysis under Section 51.058.
106	106	Sec. 51.057. INFORMATION REQUIRED TO BE REPORTED BY
107	107	APPLICANTS AND EMPLOYEES; DISCIPLINARY ACTION. (a) An institution
108	108	of higher education shall require:
109	109	(1) an applicant for employment to report an arrest
110	110	made after the applicant has submitted the application to the
111	111	institution and before the institution has notified the applicant
112	112	of a decision about employment of the applicant; and
113	113	(2) an employee to report to a supervisor, within 24
114	114	hours of the arrest, charge, or conviction, or at the earliest
115	115	practicable opportunity after that 24-hour period, the employee's
116	116	criminal arrest, charge, or conviction, other than for a
117	117	misdemeanor traffic offense punishable by a fine only.
118	118	(b) A supervisor who receives a report from an employee
119	119	under Subsection (a)(2) shall report the information to the person
120	120	in charge of the department or division to which the employee is
121	121	assigned and to the institution's human resources department.
122	122	(c) An institution of higher education may take
123	123	disciplinary action, including termination of employment, against
124	124	an employee who fails to report as required by Subsection (a)(2).
125	125	(d) An institution of higher education's human resources
126	126	department or, in the case of a faculty member, the provost or
127	127	provost's designee shall conduct an analysis under Section 51.058
128	128	and assist the department or division to which the employee is
129	129	assigned in determining, for an arrest, charge, or conviction
130	130	reported under Subsection (a)(2), the appropriate disciplinary
131	131	action to take against the employee, which may include termination
132	132	of employment.
133	133	(e) An institution of higher education, on learning of an
134	134	arrest, charge, or conviction reported under Subsection (a)(2), may
135	135	immediately suspend with pay the employee pending the outcome of an
136	136	administrative review under Subsection (d).
137	137	Sec. 51.058. ANALYSIS OF CRIMINAL HISTORY RECORD
138	138	INFORMATION AND SUBSEQUENT ACTIONS. (a) Except as provided by
139	139	Section 51.054(b)(2), before rejecting an application for
140	140	employment or taking disciplinary action against an employee on the
141	141	basis of a criminal conviction, an institution of higher education
142	142	must:
143	143	(1) consider the following factors:
144	144	(A) the nature and gravity of the offense;
145	145	(B) the amount of time that has passed since:
146	146	(i) the conviction; and
147	147	(ii) the completion of a sentence imposed
148	148	based on the conviction;
149	149	(C) the nature of the job sought or held;
150	150	(D) the number of convictions; and
151	151	(E) the institution's interest in protecting the
152	152	safety and welfare of its employees, the general public, state
153	153	property, and the integrity of the institution; and
154	154	(2) determine that:
155	155	(A) the conviction is job-related; and
156	156	(B) the rejection of the application or
157	157	disciplinary action against the employee is necessary to properly
158	158	administer the institution.
159	159	(b) Before rejecting an application for employment or
160	160	taking disciplinary action against an employee on the basis of a
161	161	criminal arrest, an institution of higher education must:
162	162	(1) consider the following factors:
163	163	(A) the nature and gravity of the activity
164	164	resulting in the arrest;
165	165	(B) the amount of time that has passed since the
166	166	arrest;
167	167	(C) the nature of the job sought or held;
168	168	(D) the number of arrests;
169	169	(E) the institution's interest in protecting the
170	170	safety and welfare of its employees, the general public, state
171	171	property, and the integrity of the institution;
172	172	(F) an explanation of the arrest by the applicant
173	173	or employee; and
174	174	(G) whether the reason for arrest violates an
175	175	institutional rule, policy, or procedure, regardless of whether the
176	176	arrest resulted in a conviction; and
177	177	(2) determine that:
178	178	(A) the alleged misconduct is job-related;
179	179	(B) the rejection of an application or
180	180	disciplinary action is necessary to properly administer the
181	181	institution; and
182	182	(C) the applicant or employee is likely to have
183	183	engaged in the misconduct that caused the arrest.
184	184	Sec. 51.059. APPEALS; DETERMINATION. (a) An applicant for
185	185	employment may appeal a decision of an institution of higher
186	186	education under this subchapter to refuse to employ the applicant
187	187	only on the basis that the institution discriminated against the
188	188	applicant for an unlawful reason, including the applicant's race,
189	189	color, national origin, religion, sex, disability, or age.
190	190	(b) An applicant alleging unlawful discrimination by the
191	191	institution of higher education must, not later than the 10th
192	192	business day after the date an application is rejected, present
193	193	written data or documentation of the specific actions or basis of
194	194	the allegation to the appropriate institution employee responsible
195	195	for equal employment opportunity or the employee's designee.
196	196	(c) On receiving the data or documentation, the employee
197	197	responsible for equal employment opportunity or the employee's
198	198	designee shall investigate the complaint and issue a written report
199	199	of findings to the chief executive officer of the institution or the
200	200	officer's designee.
201	201	(d) If the chief executive officer or the officer's designee
202	202	approves the report under Subsection (b), the officer or designee
203	203	shall provide a copy of the report to the rejected applicant not
204	204	later than the 14th day after the date the report is approved.
205	205	(e) The governing board of an institution of higher
206	206	education may adopt a separate appeals process under this section
207	207	or may use an existing process regarding employee discipline and
208	208	termination of employment.
209	209	Sec. 51.060. USE AND DESTRUCTION OF CRIMINAL HISTORY RECORD
210	210	INFORMATION. An institution of higher education shall:
211	211	(1) use criminal history record information obtained
212	212	under this subchapter exclusively to verify employability; and
213	213	(2) destroy all criminal history record information
214	214	obtained under this subchapter as soon as practicable, consistent
215	215	with the following:
216	216	(A) for an applicant for employment, after the
217	217	position for which the applicant applied has been filled and the
218	218	applicant that was hired reports for the first day of work; or
219	219	(B) for an employee, after the criminal history
220	220	record information has been analyzed and any resulting
221	221	administrative action has been taken.
222	222	Sec. 51.061. POLICIES. Each governing board of an
223	223	institution of higher education shall adopt policies as necessary
224	224	for the institution to comply with this subchapter.
225	225	SECTION 2. Section 411.081(i), Government Code, is amended
226	226	to read as follows:
227	227	(i) A criminal justice agency may disclose criminal history
228	228	record information that is the subject of an order of nondisclosure
229	229	to the following noncriminal justice agencies or entities only:
230	230	(1) the State Board for Educator Certification;
231	231	(2) a school district, charter school, private school,
232	232	regional education service center, commercial transportation
233	233	company, or education shared service arrangement;
234	234	(3) the Texas Medical Board;
235	235	(4) the Texas School for the Blind and Visually
236	236	Impaired;
237	237	(5) the Board of Law Examiners;
238	238	(6) the State Bar of Texas;
239	239	(7) a district court regarding a petition for name
240	240	change under Subchapter B, Chapter 45, Family Code;
241	241	(8) the Texas School for the Deaf;
242	242	(9) the Department of Family and Protective Services;
243	243	(10) the Texas Youth Commission;
244	244	(11) the Department of Assistive and Rehabilitative
245	245	Services;
246	246	(12) the Department of State Health Services, a local
247	247	mental health service, a local mental retardation authority, or a
248	248	community center providing services to persons with mental illness
249	249	or retardation;
250	250	(13) the Texas Private Security Board;
251	251	(14) a municipal or volunteer fire department;
252	252	(15) the Texas Board of Nursing;
253	253	(16) a safe house providing shelter to children in
254	254	harmful situations;
255	255	(17) a public or nonprofit hospital or hospital
256	256	district;
257	257	(18) the Texas Juvenile Probation Commission;
258	258	(19) the securities commissioner, the banking
259	259	commissioner, the savings and mortgage lending commissioner, or the
260	260	credit union commissioner;
261	261	(20) the Texas State Board of Public Accountancy;
262	262	(21) the Texas Department of Licensing and Regulation;
263	263	(22) the Health and Human Services Commission;
264	264	(23) the Department of Aging and Disability Services;
265	265	[and]
266	266	(24) the Texas Education Agency; and
267	267	(25) an institution of higher education, as defined by
268	268	Section 411.094(a)(1)(A).
269	269	SECTION 3. Section 411.094, Government Code, is amended by
270	270	adding Subsection (f) to read as follows:
271	271	(f) Notwithstanding Subsection (c), an institution of
272	272	higher education, as defined by Subsection (a)(1)(A), is entitled
273	273	to obtain from the department criminal history record information
274	274	maintained by the department that relates to a person who is
275	275	employed by or is an applicant for employment at the institution, to
276	276	the extent the information is necessary for the institution to
277	277	administer the institution's duties under Subchapter B, Chapter 51,
278	278	Education Code.
279	279	SECTION 4. Section 51.215, Education Code, is repealed.
280	280	SECTION 5. As soon as practicable after the effective date
281	281	of this Act, the governing board of a public institution of higher
282	282	education shall adopt policies required by Section 51.061,
283	283	Education Code, as added by this Act.
284	284	SECTION 6. This Act takes effect September 1, 2009.