Texas 2017 - 85th Regular

Texas House Bill HB1981 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R6972 AAF/JCG-D
2	2	By: Johnson of Dallas H.B. No. 1981
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the consideration of criminal history record
8	8	information of applicants for public employment or an occupational
9	9	license.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 656, Government Code, is amended by
12	12	adding Subchapter E to read as follows:
13	13	SUBCHAPTER E. CONSIDERATION OF CRIMINAL HISTORY RECORD INFORMATION
14	14	Sec. 656.151. DEFINITIONS. In this subchapter:
15	15	(1) "Applicant" means a person who has made an oral or
16	16	written application with an employer, or has sent a resume or other
17	17	correspondence to an employer, indicating an interest in
18	18	employment.
19	19	(2) "Criminal history record information" has the
20	20	meaning assigned by Section 411.082.
21	21	(3) "State agency" means an agency in any branch of
22	22	state government.
23	23	Sec. 656.152. CRIMINAL HISTORY ON EMPLOYMENT APPLICATION.
24	24	A state agency may not include a question regarding an applicant's
25	25	criminal history record information on an initial employment
26	26	application form.
27	27	Sec. 656.153. CONFIDENTIALITY OF CRIMINAL HISTORY RECORD
28	28	INFORMATION. Notwithstanding Section 411.0765, an applicant's
29	29	criminal history record information is confidential and may not be
30	30	disclosed by a state agency.
31	31	Sec. 656.154. CONSIDERATION OF CRIMINAL HISTORY RECORD
32	32	INFORMATION. (a) A state agency may inquire into or consider an
33	33	applicant's criminal history record information after the agency
34	34	has determined that the applicant is otherwise qualified and has
35	35	conditionally offered the applicant employment.
36	36	(b) A state agency may not disqualify an applicant from
37	37	employment because of a prior criminal conviction unless:
38	38	(1) the criminal conviction directly relates to the
39	39	employment position sought by the applicant; or
40	40	(2) other law prohibits the applicant from employment
41	41	because of the type of criminal conviction.
42	42	(c) A state agency may not consider in the criminal history
43	43	record information or disqualify an applicant based on:
44	44	(1) an arrest that is not followed by an indictment;
45	45	(2) a conviction that has been sealed, dismissed, or
46	46	expunged; or
47	47	(3) a Class C misdemeanor or other misdemeanor
48	48	punishable by fine only.
49	49	Sec. 656.155. FACTORS IN DETERMINING WHETHER CONVICTION
50	50	RELATES TO EMPLOYMENT POSITION. In determining whether a criminal
51	51	conviction directly relates to an employment position under Section
52	52	656.154(b)(1), the state agency shall consider:
53	53	(1) whether the criminal conviction is directly
54	54	related to the duties and responsibilities of the employment
55	55	position;
56	56	(2) the extent to which employment might offer an
57	57	opportunity to engage in further criminal activity of the same type
58	58	as that for which the person was convicted;
59	59	(3) whether circumstances leading to the conduct for
60	60	which the person was convicted will recur in the employment
61	61	position; and
62	62	(4) the amount of time that has elapsed since the
63	63	applicant's last criminal conviction.
64	64	Sec. 656.156. NOTICE OF INTENT TO DENY EMPLOYMENT. Before
65	65	denying an applicant employment based on the applicant's criminal
66	66	history record information, a state agency must notify the
67	67	applicant in writing of the state agency's intent to deny the
68	68	applicant an employment position because of the applicant's
69	69	criminal history. The state agency must:
70	70	(1) identify the criminal conviction that is the basis
71	71	for the potential denial or disqualification;
72	72	(2) provide to the applicant a copy of the applicant's
73	73	criminal history record information; and
74	74	(3) provide examples of evidence of mitigation or
75	75	rehabilitation that the applicant may voluntarily provide under
76	76	Section 656.157.
77	77	Sec. 656.157. EVIDENCE OF APPLICANT'S REHABILITATION. A
78	78	state agency may not initially disqualify an applicant from an
79	79	employment position because of a criminal conviction directly
80	80	relating to the employment position if, not later than the 10th day
81	81	after the date the state agency notified the applicant under
82	82	Section 656.156 of the state agency's intent to deny employment,
83	83	the applicant provides to the state agency evidence of:
84	84	(1) mitigation or rehabilitation, including evidence
85	85	that:
86	86	(A) at least one year has elapsed since the date
87	87	of the applicant's release from any correctional institution
88	88	without subsequent criminal convictions; and
89	89	(B) the applicant is in compliance with the
90	90	applicant's terms of probation or parole; and
91	91	(2) the applicant's fitness to perform the duties of
92	92	the employment position, including letters of recommendation.
93	93	Sec. 656.158. DENIAL OF EMPLOYMENT. A state agency shall
94	94	consider any information provided under Section 656.157 and make a
95	95	final employment decision based on an individualized assessment of
96	96	the information submitted by the applicant and the factors under
97	97	Section 656.155. A state agency that denies an applicant
98	98	employment after considering that information shall notify the
99	99	applicant in writing of:
100	100	(1) the final denial or disqualification;
101	101	(2) the appeals process established by the Texas
102	102	Workforce Commission under Section 656.161;
103	103	(3) potential eligibility of the applicant for other
104	104	employment; and
105	105	(4) the earliest date on which the applicant may
106	106	reapply for employment.
107	107	Sec. 656.159. HIRING BY CONTRACTOR. A state agency
108	108	entering into an agreement with a contractor shall:
109	109	(1) require the contractor to certify in writing that
110	110	the contractor's consideration of criminal history record
111	111	information in hiring decisions satisfies the requirements of this
112	112	subchapter for state agencies;
113	113	(2) review a contractor's policies for the
114	114	consideration of criminal history record information in hiring for
115	115	consistency with the requirements of this subchapter for state
116	116	agencies; and
117	117	(3) when evaluating a contract, consider the
118	118	contractor's policies for the consideration of criminal history
119	119	record information in hiring among the criteria to award a
120	120	contract.
121	121	Sec. 656.160. RECORDS; REVIEW; COMPLAINTS. (a) A state
122	122	agency shall retain application forms, records of employment,
123	123	communications with applicants, and any other records related to
124	124	this subchapter until at least the third anniversary of the date of
125	125	filling an employment position subject to this subchapter.
126	126	(b) The Texas Workforce Commission shall have access to
127	127	records under Subsection (a) to monitor compliance with this
128	128	subchapter.
129	129	(c) Any person aggrieved by a state agency's violation of
130	130	this subchapter may file a complaint regarding the implementation
131	131	of, compliance with, and impact of this subchapter to the Texas
132	132	Workforce Commission. The Texas Workforce Commission shall keep a
133	133	record of reports made under this subsection.
134	134	(d) The Texas Workforce Commission shall:
135	135	(1) conduct periodic reviews of state agencies to
136	136	assess compliance with this subchapter;
137	137	(2) investigate and review complaints of violations of
138	138	this subchapter; and
139	139	(3) report quarterly on complaints, investigations,
140	140	and reviews.
141	141	Sec. 656.161. APPEAL. The Texas Workforce Commission shall
142	142	establish an appeals process for any complaints or grievances
143	143	concerning a violation of this subchapter.
144	144	Sec. 656.162. STATISTICS AND AUDITS. A state agency shall:
145	145	(1) maintain a record of the number of:
146	146	(A) employment positions, applicants, and
147	147	applicants conditionally offered employment for employment
148	148	positions requiring criminal history record information by the
149	149	state agency; and
150	150	(B) applicants with prior criminal convictions
151	151	who:
152	152	(i) were notified of the state agency's
153	153	intent to deny the applicant employment under Section 656.156;
154	154	(ii) provided evidence of rehabilitation
155	155	under Section 656.157;
156	156	(iii) were notified of the state agency's
157	157	denial of employment under Section 656.158; or
158	158	(iv) were offered employment;
159	159	(2) regularly conduct a confidential, anonymous
160	160	survey of employees in employment positions not requiring criminal
161	161	history record information to determine the number of employees
162	162	with prior convictions; and
163	163	(3) conduct an audit of the state agency's hiring
164	164	practices in an effort to ensure that applicants with prior
165	165	criminal convictions are not unreasonably denied employment.
166	166	Sec. 656.163. EXEMPTIONS. This subchapter does not apply
167	167	to an applicant for a position:
168	168	(1) that involves the provision of services to or care
169	169	of children;
170	170	(2) that requires direct interaction with children; or
171	171	(3) for which consideration of criminal history record
172	172	information is otherwise required by law.
173	173	SECTION 2. Subtitle C, Title 5, Local Government Code, is
174	174	amended by adding Chapter 181 to read as follows:
175	175	CHAPTER 181. CONSIDERATION OF CRIMINAL HISTORY RECORD INFORMATION
176	176	Sec. 181.001. DEFINITIONS. In this chapter:
177	177	(1) "Applicant" means a person who has made an oral or
178	178	written application with an employer, or has sent a resume or other
179	179	correspondence to an employer, indicating an interest in
180	180	employment.
181	181	(2) "Criminal history record information" has the
182	182	meaning assigned by Section 411.082, Government Code.
183	183	(3) "Local government" means a county, municipality,
184	184	or other political subdivision of this state.
185	185	Sec. 181.002. CRIMINAL HISTORY ON EMPLOYMENT APPLICATION.
186	186	A local government may not include a question regarding an
187	187	applicant's criminal history record information on an initial
188	188	employment application form.
189	189	Sec. 181.003. CONFIDENTIALITY OF CRIMINAL HISTORY RECORD
190	190	INFORMATION. Notwithstanding Section 411.0765, Government Code,
191	191	an applicant's criminal history record information is confidential
192	192	and may not be disclosed by a local government.
193	193	Sec. 181.004. CONSIDERATION OF CRIMINAL HISTORY RECORD
194	194	INFORMATION. (a) A local government may inquire into or consider
195	195	an applicant's criminal history record information after the local
196	196	government has determined that the applicant is otherwise qualified
197	197	and has conditionally offered the applicant employment.
198	198	(b) A local government may not disqualify an applicant from
199	199	employment because of a prior criminal conviction unless:
200	200	(1) the criminal conviction directly relates to the
201	201	employment position sought by the applicant; or
202	202	(2) other law prohibits the applicant from employment
203	203	because of the type of criminal conviction.
204	204	(c) A local government may not consider in the criminal
205	205	history record information or disqualify an applicant based on:
206	206	(1) an arrest that is not followed by an indictment;
207	207	(2) a conviction that has been sealed, dismissed, or
208	208	expunged; or
209	209	(3) a Class C misdemeanor or other misdemeanor
210	210	punishable by fine only.
211	211	Sec. 181.005. FACTORS IN DETERMINING WHETHER CONVICTION
212	212	RELATES TO EMPLOYMENT POSITION. In determining whether a criminal
213	213	conviction directly relates to an employment position under Section
214	214	181.004(b)(1), a local government shall consider:
215	215	(1) whether the criminal conviction is directly
216	216	related to the duties and responsibilities of the employment
217	217	position;
218	218	(2) the extent to which employment might offer an
219	219	opportunity to engage in further criminal activity of the same type
220	220	as that for which the person was convicted;
221	221	(3) whether circumstances leading to the conduct for
222	222	which the person was convicted will recur in the employment
223	223	position; and
224	224	(4) the amount of time that has elapsed since the
225	225	applicant's last criminal conviction.
226	226	Sec. 181.006. NOTICE OF INTENT TO DENY EMPLOYMENT. Before
227	227	denying an applicant employment based on the applicant's criminal
228	228	history record information, a local government must notify the
229	229	applicant in writing of the local government's intent to deny the
230	230	applicant employment because of the applicant's criminal history.
231	231	The local government must:
232	232	(1) identify the criminal conviction that is the basis
233	233	for the potential denial or disqualification;
234	234	(2) provide to the applicant a copy of the applicant's
235	235	criminal history record information; and
236	236	(3) provide examples of evidence of mitigation or
237	237	rehabilitation that the applicant may voluntarily provide under
238	238	Section 181.007.
239	239	Sec. 181.007. EVIDENCE OF APPLICANT'S REHABILITATION. A
240	240	local government may not initially disqualify an applicant from an
241	241	employment position because of a criminal conviction directly
242	242	relating to the employment position if, not later than the 10th day
243	243	after the date the local government notified the applicant under
244	244	Section 181.006 of the local government's intent to deny
245	245	employment, the applicant provides to the local government evidence
246	246	of:
247	247	(1) mitigation or rehabilitation, including evidence
248	248	that:
249	249	(A) at least one year has elapsed since the date
250	250	of the applicant's release from any correctional institution
251	251	without subsequent criminal convictions; and
252	252	(B) the applicant is in compliance with the
253	253	applicant's terms of probation or parole; and
254	254	(2) the applicant's fitness to perform the duties of
255	255	the employment position, including letters of recommendation.
256	256	Sec. 181.008. DENIAL OF EMPLOYMENT. A local government
257	257	shall consider any information provided under Section 181.007 and
258	258	make a final employment decision based on an individualized
259	259	assessment of the information submitted by the applicant and the
260	260	factors under Section 181.005. A local government that denies an
261	261	applicant employment after considering that information shall
262	262	notify the applicant in writing of:
263	263	(1) the final denial or disqualification;
264	264	(2) the appeals process established by the Texas
265	265	Workforce Commission under Section 181.011;
266	266	(3) potential eligibility of the applicant for other
267	267	employment; and
268	268	(4) the earliest date on which the applicant may
269	269	reapply for employment.
270	270	Sec. 181.009. HIRING BY CONTRACTOR. A local government
271	271	entering into an agreement with a contractor shall:
272	272	(1) require the contractor to certify in writing that
273	273	the contractor's consideration of criminal history record
274	274	information in hiring decisions satisfies the requirements of this
275	275	chapter for local governments;
276	276	(2) review a contractor's policies for the
277	277	consideration of criminal history record information in hiring for
278	278	consistency with the requirements of this chapter for local
279	279	governments; and
280	280	(3) when evaluating a contract, consider the
281	281	contractor's policies for the consideration of criminal history
282	282	record information in hiring among the criteria to award a
283	283	contract.
284	284	Sec. 181.010. RECORDS; REVIEW; COMPLAINTS. (a) A local
285	285	government shall retain application forms, records of employment,
286	286	communications with applicants, and any other records related to
287	287	this chapter until at least the third anniversary of the date of
288	288	filling an employment position subject to this chapter.
289	289	(b) The Texas Workforce Commission shall have access to
290	290	records under Subsection (a) to monitor compliance with this
291	291	chapter.
292	292	(c) Any person aggrieved by a local government's violation
293	293	of this chapter may file a complaint regarding the implementation
294	294	of, compliance with, and impact of this chapter to the Texas
295	295	Workforce Commission. The Texas Workforce Commission shall keep a
296	296	record of reports made under this subsection.
297	297	(d) The Texas Workforce Commission shall:
298	298	(1) conduct periodic reviews of local governments to
299	299	assess compliance with this chapter;
300	300	(2) investigate and review complaints of violations of
301	301	this chapter; and
302	302	(3) report quarterly on complaints, investigations,
303	303	and reviews.
304	304	Sec. 181.011. APPEAL. The Texas Workforce Commission shall
305	305	establish an appeals process for any complaints or grievances
306	306	concerning a violation of this chapter.
307	307	Sec. 181.012. STATISTICS AND AUDITS. A local government
308	308	shall:
309	309	(1) maintain a record of the number of:
310	310	(A) employment positions, applicants, and
311	311	applicants conditionally offered employment for employment
312	312	positions requiring criminal history record information by the
313	313	local government; and
314	314	(B) applicants with prior criminal convictions
315	315	who:
316	316	(i) were notified of the local government's
317	317	intent to deny the applicant employment under Section 181.006;
318	318	(ii) provided evidence of rehabilitation
319	319	under Section 181.007;
320	320	(iii) were notified of the local
321	321	government's final denial of employment under Section 181.008; or
322	322	(iv) were offered employment;
323	323	(2) regularly conduct a confidential, anonymous
324	324	survey of employees in employment positions not requiring criminal
325	325	history record information to determine the number of employees
326	326	with prior convictions; and
327	327	(3) conduct an audit of the local government's hiring
328	328	practices in an effort to ensure that applicants with prior
329	329	criminal convictions are not unreasonably denied employment.
330	330	Sec. 181.013. EXEMPTIONS. This chapter does not apply to an
331	331	applicant for a position:
332	332	(1) that involves the provision of services to or care
333	333	of children;
334	334	(2) that requires direct interaction with children; or
335	335	(3) for which consideration of criminal history record
336	336	information is otherwise required by law.
337	337	SECTION 3. Subchapter A, Chapter 53, Occupations Code, is
338	338	amended by adding Sections 53.003, 53.004, and 53.005 to read as
339	339	follows:
340	340	Sec. 53.003. CONFIDENTIALITY OF CRIMINAL HISTORY RECORD
341	341	INFORMATION. A state agency that issues a license that obtains in
342	342	connection with the licensing process any criminal history record
343	343	information regarding a license applicant or license holder may not
344	344	disclose or otherwise use the information, except as allowed by
345	345	law.
346	346	Sec. 53.004. CONSIDERATION OF CRIMINAL HISTORY RECORD
347	347	INFORMATION. A state agency that issues a license may not inquire
348	348	into or consider an applicant's criminal history record information
349	349	until after the state agency has determined that the applicant is
350	350	otherwise qualified for the license.
351	351	Sec. 53.005. CRIMINAL HISTORY ON LICENSE APPLICATION.
352	352	Notwithstanding any other law, an application for a license may not
353	353	include a question regarding an applicant's criminal history record
354	354	information.
355	355	SECTION 4. Section 53.021, Occupations Code, is amended by
356	356	amending Subsections (a) and (a-1) and adding Subsection (a-2) to
357	357	read as follows:
358	358	(a) Except as provided by Subsection (b), notwithstanding
359	359	any other law, a [A] licensing authority may not suspend or revoke a
360	360	license, disqualify a person from receiving a license, or deny to a
361	361	person the opportunity to take a licensing examination on the
362	362	grounds that the person has been convicted of an offense, unless the
363	363	offense:
364	364	(1) [an offense that] directly relates to the duties
365	365	and responsibilities of the licensed occupation; or
366	366	(2) by operation of law automatically disqualifies the
367	367	person from obtaining employment in the occupation for which the
368	368	license is required [an offense that does not directly relate to the
369	369	duties and responsibilities of the licensed occupation and that was
370	370	committed less than five years before the date the person applies
371	371	for the license;
372	372	[(3) an offense listed in Article 42A.054, Code of
373	373	Criminal Procedure; or
374	374	[(4) a sexually violent offense, as defined by Article
375	375	62.001, Code of Criminal Procedure].
376	376	(a-1) A licensing authority may not consider a person to
377	377	have been convicted of an offense for purposes of this section if
378	378	the conviction:
379	379	(1) is for an offense punishable by fine only
380	380	[Subsection (a) does not apply to a person who has been convicted
381	381	only of an offense punishable as a Class C misdemeanor] unless:
382	382	(A) [(1)] the person is an applicant for or the
383	383	holder of a license that authorizes the person to possess a firearm;
384	384	and
385	385	(B) [(2)] the offense for which the person was
386	386	convicted is a misdemeanor crime of domestic violence as that term
387	387	is defined by 18 U.S.C. Section 921; or
388	388	(2) has been sealed or expunged.
389	389	(a-2) A licensing authority may not suspend or revoke a
390	390	license, disqualify a person from receiving a license, or deny to a
391	391	person the opportunity to take a licensing examination on the
392	392	grounds that the person has been arrested for an offense.
393	393	SECTION 5. Section 53.051, Occupations Code, is amended to
394	394	read as follows:
395	395	Sec. 53.051. NOTICE OF SUSPENSION OR REVOCATION. A
396	396	licensing authority that suspends or revokes a license [or denies a
397	397	person a license or the opportunity to be examined for a license]
398	398	because of the person's prior conviction of a crime and the
399	399	relationship of the crime to the license shall notify the person in
400	400	writing of:
401	401	(1) the reason for the suspension or [,] revocation[,
402	402	denial, or disqualification];
403	403	(2) the review procedure provided by Section 53.052;
404	404	and
405	405	(3) the earliest date the person may appeal the action
406	406	of the licensing authority.
407	407	SECTION 6. Subchapter C, Chapter 53, Occupations Code, is
408	408	amended by adding Sections 53.053, 53.054, and 53.055 to read as
409	409	follows:
410	410	Sec. 53.053. NOTICE OF INTENT TO DENY LICENSE. Before
411	411	denying an application for a license based on the applicant's
412	412	criminal history record information, a state agency that issues a
413	413	license must notify the applicant in writing of the agency's intent
414	414	to deny the applicant a license because of the applicant's criminal
415	415	history. The state agency must:
416	416	(1) identify the criminal conviction that is the basis
417	417	for the potential denial or disqualification;
418	418	(2) provide to the applicant a copy of the applicant's
419	419	criminal history record information; and
420	420	(3) provide examples of evidence of mitigation or
421	421	rehabilitation that the applicant may voluntarily provide under
422	422	Section 53.054.
423	423	Sec. 53.054. EVIDENCE OF APPLICANT'S REHABILITATION. A
424	424	state agency that issues a license may not initially disqualify an
425	425	applicant for a license because of a criminal conviction directly
426	426	relating to the occupation for which the license is required if, not
427	427	later than the 10th day after the date the agency notified the
428	428	applicant under Section 53.053 of the agency's intent to deny an
429	429	application for a license, the applicant provides to the agency
430	430	evidence of:
431	431	(1) mitigation or rehabilitation, including evidence:
432	432	(A) that at least one year has elapsed since the
433	433	date of the applicant's release from any correctional institution
434	434	without subsequent criminal convictions; and
435	435	(B) that the applicant is in compliance with the
436	436	applicant's terms of probation or parole; and
437	437	(2) the applicant's fitness to perform the duties of
438	438	the occupation, including letters of recommendation.
439	439	Sec. 53.055. DENIAL OF LICENSE. A state agency that issues
440	440	a license shall consider any information provided under Section
441	441	53.054 and make a final licensing decision based on an
442	442	individualized assessment of the information submitted by the
443	443	applicant and the factors under Sections 53.022 and 53.023. A state
444	444	agency that denies a license application after considering that
445	445	information shall notify the applicant in writing of:
446	446	(1) the final denial;
447	447	(2) the review procedure provided by Section 53.052;
448	448	(3) the earliest date on which the person may appeal
449	449	the action of the agency; and
450	450	(4) the earliest date on which the applicant may
451	451	reapply for the license, if applicable.
452	452	SECTION 7. Sections 51.356 and 53.021(c), (d), and (e),
453	453	Occupations Code, are repealed.
454	454	SECTION 8. (a) Subchapter E, Chapter 656, Government Code,
455	455	and Chapter 181, Local Government Code, as added by this Act, apply
456	456	only to an application for employment submitted, or a contract for
457	457	which the solicitation of qualifications, proposals, or other
458	458	similar expressions of interest is published, on or after the
459	459	effective date of this Act.
460	460	(b) The changes in law made by this Act to Chapter 53,
461	461	Occupations Code, apply only to an application for a license or
462	462	other authorization that is filed, or a proceeding to revoke or
463	463	suspend a license or authorization that is commenced, on or after
464	464	the effective date of this Act.
465	465	SECTION 9. This Act takes effect September 1, 2017.