85R1843 GCB-D
By: Dale H.B. No. 218
A BILL TO BE ENTITLED
AN ACT
relating to improper relationships between educators and students;
creating a criminal offense and expanding the applicability of an
existing offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 21.12, Penal Code, is amended by
amending Subsection (a) and adding Subsection (e) to read as
follows:
(a) An employee of a public or private primary or secondary
school commits an offense if the employee:
(1) engages in sexual contact, sexual intercourse, or
deviate sexual intercourse with a person who is enrolled in a public
or private primary or secondary school at which the employee works;
(2) holds a position described by Section 21.003(a) or
(b), Education Code, regardless of whether the employee holds the
appropriate certificate, permit, license, or credential for the
position, [a certificate or permit issued as provided by Subchapter
B, Chapter 21, Education Code, or is a person who is required to be
licensed by a state agency as provided by Section 21.003(b),
Education Code,] and engages in sexual contact, sexual intercourse,
or deviate sexual intercourse with a person the employee knows is[:
[(A)] enrolled in a public or private primary or
secondary school other than a school described by Subdivision (1)
[in the same school district as the school at which the employee
works; or
[(B) a student participant in an educational
activity that is sponsored by a school district or a public or
private primary or secondary school, if:
[(i) students enrolled in a public or
private primary or secondary school are the primary participants in
the activity; and
[(ii) the employee provides education
services to those participants]; or
(3) engages in conduct described by Section 33.021,
with a person described by Subdivision (1), or a person the employee
knows is a person described by Subdivision (2) [(2)(A) or (B)],
regardless of the age of that person.
(e) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section.
SECTION 2. Article 42.018(a), Code of Criminal Procedure,
is amended to read as follows:
(a) This article applies only:
(1) to conviction or deferred adjudication granted on
the basis of[:
[(A)] an offense under Title 5, Penal Code,[; or
[(B) an offense on conviction of which a defendant
is required to register as a sex offender under Chapter 62; and
[(2)] if the victim of the offense is under 18 years of
age; or
(2) to an offense for which a conviction or grant of
deferred adjudication requires the defendant to register as a sex
offender under Chapter 62.
SECTION 3. Section 21.006, Education Code, is amended by
amending Subsections (b), (b-1), (c), (e), and (f) and adding
Subsections (c-1) and (i) to read as follows:
(b) In addition to the reporting requirement under Section
261.101, Family Code, the superintendent or director of a school
district, open-enrollment charter school, regional education
service center, or shared services arrangement or the principal of
a school district or open-enrollment charter school campus shall
notify the State Board for Educator Certification if:
(1) an educator employed by or seeking employment by
the district, school, service center, or shared services
arrangement has a criminal record and the district, school, service
center, or shared services arrangement obtained information about
the educator's criminal record by a means other than the criminal
history clearinghouse established under Section 411.0845,
Government Code;
(2) an educator's employment at the district, school,
service center, or shared services arrangement was terminated and
there is [based on] evidence that the educator:
(A) abused or otherwise committed an unlawful act
with a student or minor;
(A-1) was involved in a romantic relationship
with or solicited or engaged in sexual contact with a student or
minor;
(B) possessed, transferred, sold, or distributed
a controlled substance, as defined by Chapter 481, Health and
Safety Code, or by 21 U.S.C. Section 801 et seq.;
(C) illegally transferred, appropriated, or
expended funds or other property of the district, school, service
center, or shared services arrangement;
(D) attempted by fraudulent or unauthorized
means to obtain or alter a professional certificate or license for
the purpose of promotion or additional compensation; or
(E) committed a criminal offense or any part of a
criminal offense on school property or at a school-sponsored event;
(3) the educator resigned and there is evidence that
the educator engaged in misconduct described by Subdivision (2); or
(4) the educator engaged in conduct that violated the
assessment instrument security procedures established under
Section 39.0301.
(b-1) A superintendent or director of a school district or
open-enrollment charter school or a principal of a school district
or open-enrollment charter school campus shall complete an
investigation of an educator that involves [is based on] evidence
that the educator may have engaged in misconduct described by
Subsection (b)(2)(A) or (A-1), despite the educator's resignation
from district or school employment before completion of the
investigation.
(c) The superintendent or director, except as otherwise
provided by Subsection (c-1), or the principal must notify the
State Board for Educator Certification by filing a report with the
board not later than the seventh day after the date the
superintendent, [or] director, or principal knew or should have
known about an educator's [employee's] criminal record under
Subsection (b)(1) or a termination of employment or resignation
following an alleged incident of misconduct described by Subsection
(b). The report must be:
(1) in writing; and
(2) in a form prescribed by the board.
(c-1) A principal of a school district or open-enrollment
charter school campus who files a report under Subsection (c) must
notify the superintendent of the district or the director of the
school, as applicable, about the filing of the report. A
superintendent or director who is notified that a principal
employed by the district or school has filed a report under
Subsection (c) is not required to file a report concerning the
criminal record or alleged incident of misconduct addressed in the
principal's report.
(e) A superintendent, [or] director, or principal who in
good faith and while acting in an official capacity files a report
with the State Board for Educator Certification under this section
is immune from civil or criminal liability that might otherwise be
incurred or imposed.
(f) The State Board for Educator Certification shall
determine whether to impose sanctions against a superintendent,
[or] director, or principal who fails to file a report in violation
of Subsection (c).
(i) A superintendent, director, or principal required to
file a report under Subsection (c) commits an offense if the
superintendent, director, or principal knowingly fails to file the
report by the date required by that subsection. An offense under
this subsection is a Class A misdemeanor, except that the offense is
a state jail felony if it is shown on the trial of the offense that
the superintendent, director, or principal intended to conceal an
educator's criminal record or alleged incident of misconduct.
SECTION 4. Subchapter A, Chapter 21, Education Code, is
amended by adding Section 21.0061 to read as follows:
Sec. 21.0061. NOTICE TO PARENT OR GUARDIAN ABOUT EDUCATOR
MISCONDUCT. (a) The board of trustees or governing body of a
school district, open-enrollment charter school, regional
education service center, or shared services arrangement shall
adopt a policy under which notice is provided to the parent or
guardian of a student with whom an educator is alleged to have
engaged in misconduct described by Section 21.006(b)(2)(A) or (A-1)
informing the parent or guardian:
(1) that the alleged misconduct occurred;
(2) whether the educator was terminated following an
investigation of the alleged misconduct or resigned before
completion of the investigation; and
(3) whether a report was submitted to the State Board
for Educator Certification concerning the alleged misconduct.
(b) The policy required by this section must require that
information specified by Subsection (a)(1) be provided as soon as
feasible after the employing entity becomes aware that alleged
misconduct may have occurred.
SECTION 5. Subchapter A, Chapter 21, Education Code, is
amended by adding Section 21.009 to read as follows:
Sec. 21.009. PRE-EMPLOYMENT AFFIDAVIT. (a) An applicant for
a position described by Section 21.003(a) or (b) with a school
district, open-enrollment charter school, regional education
service center, or shared services arrangement must submit, using a
form adopted by the agency, a pre-employment affidavit disclosing
whether the applicant has ever been charged with, accused of,
adjudicated for, or convicted of having an inappropriate
relationship with a minor.
(b) An applicant who answers affirmatively concerning an
inappropriate relationship with a minor must disclose in the
affidavit all relevant facts pertaining to the charge, accusation,
adjudication, or conviction, including, for a charge or accusation,
whether the charge or accusation was determined to be true or false.
(c) An applicant is not precluded from being employed based
on a disclosed charge or accusation if the employing entity
determines based on the information disclosed in the affidavit that
the charge or accusation was false.
(d) A determination that an employee failed to disclose
information required to be disclosed by an applicant under this
section is grounds for termination of employment.
(e) The State Board for Educator Certification may revoke
the certificate of an administrator if the board determines it is
reasonable to believe that the administrator employed an applicant
for a position described by Section 21.003(a) or (b) despite being
aware that the applicant had been adjudicated for or convicted of
having an inappropriate relationship with a minor.
SECTION 6. Sections 21.054(d) and (e), Education Code, are
amended to read as follows:
(d) Continuing education requirements for a classroom
teacher must provide that not more than 25 percent of the training
required every five years include instruction regarding:
(1) collecting and analyzing information that will
improve effectiveness in the classroom;
(2) recognizing early warning indicators that a
student may be at risk of dropping out of school;
(3) integrating technology into classroom
instruction; [and]
(4) educating diverse student populations, including:
(A) students with disabilities, including mental
health disorders;
(B) students who are educationally
disadvantaged;
(C) students of limited English proficiency; and
(D) students at risk of dropping out of school;
and
(5) understanding appropriate relationships,
boundaries, and communications between educators and students.
(e) Continuing education requirements for a principal must
provide that not more than 25 percent of the training required every
five years include instruction regarding:
(1) effective and efficient management, including:
(A) collecting and analyzing information;
(B) making decisions and managing time; and
(C) supervising student discipline and managing
behavior;
(2) recognizing early warning indicators that a
student may be at risk of dropping out of school;
(3) integrating technology into campus curriculum and
instruction; [and]
(4) educating diverse student populations, including:
(A) students with disabilities, including mental
health disorders;
(B) students who are educationally
disadvantaged;
(C) students of limited English proficiency; and
(D) students at risk of dropping out of school;
and
(5) preventing, recognizing, and reporting any sexual
conduct between an educator and student that is prohibited under
Section 21.12, Penal Code, or for which reporting is required under
Section 21.006.
SECTION 7. The heading to Section 21.058, Education Code,
is amended to read as follows:
Sec. 21.058. REVOCATION OF CERTIFICATE AND TERMINATION OF
EMPLOYMENT BASED ON CONVICTION OF OR DEFERRED ADJUDICATION FOR
CERTAIN OFFENSES.
SECTION 8. Sections 21.058(a) and (b), Education Code, are
amended to read as follows:
(a) The procedures described by Subsections (b) and (c)
apply only[:
[(1)] to conviction or deferred adjudication granted
on the basis of:
(1) 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; or
(2) an offense for which a defendant is required to
register as a sex offender under Chapter 62, Code of Criminal
Procedure.
(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 of or grant of
deferred adjudication to 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 9. Subchapter B, Chapter 21, Education Code, is
amended by adding Section 21.0581 to read as follows:
Sec. 21.0581. REVOCATION FOR ASSISTING PERSON WHO ENGAGED
IN SEXUAL MISCONDUCT OBTAIN EMPLOYMENT. (a) The board may suspend
or revoke a certificate held by a person under this subchapter,
impose other sanctions against the person, or refuse to issue a
certificate to the person under this subchapter if:
(1) the person assists another person in obtaining
employment at a school district or open-enrollment charter school,
other than by the routine transmission of administrative and
personnel files; and
(2) the person knew or should have known that the other
person has previously engaged in sexual misconduct with a minor or
student in violation of the law.
(b) The board may require a school district to revoke or
decline to issue a school district teaching permit under Section
21.055 issued to or requested by a person subject to board action
under Subsection (a).
SECTION 10. Section 21.062(a), Education Code, is amended
to read as follows:
(a) During an investigation by the commissioner of an
educator for an alleged incident of misconduct, the commissioner
may issue a subpoena to compel:
(1) the attendance of a relevant witness; or
(2) the production, for inspection or copying, of
relevant evidence that is located in this state.
SECTION 11. Section 21.355, Education Code, is amended by
amending Subsection (a) and adding Subsections (d) and (e) to read
as follows:
(a) A document evaluating the performance of a teacher or
administrator is confidential and is not subject to disclosure
under Chapter 552, Government Code.
(d) A school district or open-enrollment charter school may
give the agency a document evaluating the performance of a teacher
or administrator employed by the district or school.
(e) Notwithstanding Subsection (a) and except as otherwise
provided by a court order prohibiting disclosure, a document
provided to the agency under Subsection (d) may be used in a
disciplinary proceeding against a teacher or administrator based on
a report submitted under Section 21.006 concerning an alleged
incident of misconduct.
SECTION 12. Subchapter A, Chapter 38, Education Code, is
amended by adding Section 38.027 to read as follows:
Sec. 38.027. ELECTRONIC COMMUNICATION POLICY. (a) In this
section, "electronic communication" means any communication
facilitated by the use of any electronic device, including a
telephone, cellular telephone, computer, computer network,
personal data assistant, or pager. The term includes e-mails, text
messages, instant messages, and any communications made through an
Internet website, including a social media website or a social
networking website.
(b) A school district shall adopt a written policy
concerning electronic communications between a school employee and
a student enrolled in the district.
(c) The policy adopted under this section must include
provisions designed to prevent improper electronic communications
between a school employee and a student.
SECTION 13. Section 39.057(a), Education Code, is amended
to read as follows:
(a) The commissioner may authorize special accreditation
investigations to be conducted:
(1) when excessive numbers of absences of students
eligible to be tested on state assessment instruments are
determined;
(2) when excessive numbers of allowable exemptions
from the required state assessment instruments are determined;
(3) in response to complaints submitted to the agency
with respect to alleged violations of civil rights or other
requirements imposed on the state by federal law or court order;
(4) in response to established compliance reviews of
the district's financial accounting practices and state and federal
program requirements;
(5) when extraordinary numbers of student placements
in disciplinary alternative education programs, other than
placements under Sections 37.006 and 37.007, are determined;
(6) in response to an allegation involving a conflict
between members of the board of trustees or between the board and
the district administration if it appears that the conflict
involves a violation of a role or duty of the board members or the
administration clearly defined by this code;
(7) when excessive numbers of students in special
education programs under Subchapter A, Chapter 29, are assessed
through assessment instruments developed or adopted under Section
39.023(b);
(8) in response to an allegation regarding or an
analysis using a statistical method result indicating a possible
violation of an assessment instrument security procedure
established under Section 39.0301, including for the purpose of
investigating or auditing a school district under that section;
(9) when a significant pattern of decreased academic
performance has developed as a result of the promotion in the
preceding two school years of students who did not perform
satisfactorily as determined by the commissioner under Section
39.0241(a) on assessment instruments administered under Section
39.023(a), (c), or (l);
(10) when excessive numbers of students eligible to
enroll fail to complete an Algebra II course or any other advanced
course as determined by the commissioner;
(11) when resource allocation practices as evaluated
under Section 39.0821 indicate a potential for significant
improvement in resource allocation;
(12) when a disproportionate number of students of a
particular demographic group is graduating with a particular
endorsement under Section 28.025(c-1);
(13) when an excessive number of students is
graduating with a particular endorsement under Section
28.025(c-1);
(14) in response to a complaint submitted to the
agency with respect to alleged inaccurate data that is reported
through the Public Education Information Management System (PEIMS)
or through other reports required by state or federal law or rule or
court order and that is used by the agency to make a determination
relating to public school accountability, including accreditation,
under this chapter; [or]
(15) when a school district for any reason fails to
produce, at the request of the agency, evidence or an investigation
report relating to an educator who is under investigation by the
State Board for Educator Certification; or
(16) as the commissioner otherwise determines
necessary.
SECTION 14. The change in law made by this Act to Section
21.12, Penal Code, applies only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense was committed before that date.
SECTION 15. This Act takes effect September 1, 2017.