85R814 GCB-F
By: Bettencourt S.B. No. 1891
A BILL TO BE ENTITLED
AN ACT
relating to a general employment review of persons who apply to
school districts, open-enrollment charter schools, and certain
independent contractors for employment involving direct contact
with students or children; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 21, Education Code, is
amended by adding Section 21.0605 to read as follows:
Sec. 21.0605. ELIGIBILITY OF PERSONS FOUND IN VIOLATION OF
EMPLOYMENT REVIEW REQUIREMENTS. The board may suspend or revoke
the certificate or permit held by a person under this subchapter,
impose other sanctions against the person, or refuse to issue a
certificate or permit to a person under this subchapter if the
person has been assessed a civil penalty under Section 22.074.
SECTION 2. Chapter 22, Education Code, is amended by adding
Subchapter B-1 to read as follows:
SUBCHAPTER B-1. GENERAL EMPLOYMENT REVIEW
Sec. 22.061. DEFINITIONS. In this subchapter:
(1) "Independent contractor" means any entity that
contracts with a school district, open-enrollment charter school,
or shared services arrangement to provide services.
(2) "Sexual misconduct involving a student or child"
includes:
(A) any verbal, nonverbal, written, or
electronic communication that is designed to establish a romantic
or sexual relationship with a student or child;
(B) dating a student or child or soliciting dates
with a student or child;
(C) engaging in sexualized or romantic dialogue
with a student or child;
(D) making sexually suggestive comments to a
student or child;
(E) self-disclosure to a student or child or
physical exposure to a student or child of a sexual, romantic, or
erotic nature; and
(F) any other sexual, indecent, romantic, or
erotic contact with a student or child.
Sec. 22.062. APPLICABILITY. This subchapter applies only
to an applicant who applies for a position with a school district,
open-enrollment charter school, or independent contractor that
involves direct contact with students.
Sec. 22.063. APPLICANT REVIEW REQUIRED. (a) Except as
provided by Section 22.067, a school district, open-enrollment
charter school, or independent contractor may not hire an applicant
unless:
(1) the applicant provides to the district, charter
school, or contractor a completed employment history review
application as required under Section 22.064; and
(2) the district, charter school, or contractor
conducts a review of the applicant as required under Section
22.066.
(b) The requirement under this section for a school
district, open-enrollment charter school, and independent
contractor to obtain and review employment history information is
in addition to complying with the applicable requirements of
Subchapter C relating to obtaining and reviewing criminal history
record information.
Sec. 22.064. EMPLOYMENT HISTORY REVIEW APPLICATION
REQUIRED. A school district, open-enrollment charter school, or
independent contractor shall require an applicant subject to this
subchapter to provide to the district, charter school, or
contractor a completed employment history review application on a
form prescribed by the agency that includes:
(1) a list that includes the name of and the address,
telephone number, and other relevant contact information for:
(A) any current employer of the applicant;
(B) any former employer of the applicant that is
a school district, open-enrollment charter school, or independent
contractor; and
(C) any former employer of the applicant not
included under Paragraph (B) at which the applicant was employed in
a position that involved direct contact with children;
(2) a statement signed by the applicant disclosing
information regarding:
(A) whether the applicant has been the subject of
an investigation by an employer listed under Subdivision (1), state
licensing agency, law enforcement agency, or child protective
services agency involving an allegation that the applicant engaged
in conduct that constitutes child abuse or sexual misconduct
involving a student or child, unless the results of the
investigation resulted in a finding that the allegation was false;
(B) whether the applicant has been disciplined,
discharged, or denied a renewal of an employment contract or has
resigned or otherwise discontinued employment with the employer:
(i) during the period an allegation
described by Paragraph (A) is pending or under investigation; or
(ii) on the basis of a finding or
adjudication that the applicant did engage in child abuse or sexual
misconduct with a student or child; and
(C) whether the applicant has ever had a license,
certificate, or permit suspended or revoked or has surrendered a
license, certificate, or permit:
(i) during the period an allegation
described by Paragraph (A) is pending or under investigation; or
(ii) on the basis of a finding or
adjudication that the applicant did engage in child abuse or sexual
misconduct with a student or child; and
(3) an authorization signed by the applicant
consenting to the disclosure of the information described by
Subdivision (2) and the release of related records by each employer
listed under Subdivision (1).
Sec. 22.065. REQUEST FOR EMPLOYER INFORMATION. (a) A
school district, open-enrollment charter school, or independent
contractor shall submit to each employer listed on an applicant's
employee history review application under Section 22.064:
(1) a copy of the information the applicant is
required to disclose in the statement under Section 22.064(2);
(2) a copy of the authorization provided by the
applicant under Section 22.064(3); and
(3) a request that the employer provide to the
district, charter school, or contractor, on a form prescribed by
the agency:
(A) the dates of the applicant's employment with
the employer; and
(B) any information the employer possesses
regarding the applicant that the applicant is required to disclose
in the statement under Section 22.064(2).
(b) Notwithstanding any other law, an employer that
receives a request for information under Subsection (a) shall
provide the information, including confidential information,
requested on the form prescribed by the agency not later than the
20th day after the date the employer receives the request.
Sec. 22.066. REVIEW OF APPLICANT. (a) A school district,
open-enrollment charter school, or independent contractor shall,
for each applicant subject to this subchapter, conduct a review of:
(1) all materials obtained under Sections 22.064 and
22.065; and
(2) if the applicant is an educator:
(A) the status of the applicant's certificate or
permit; and
(B) any notice of alleged misconduct placed on
the educator's public certification records under Section 21.007.
(b) In addition to conducting the review under Subsection
(a), a school district, open-enrollment charter school, or
independent contractor shall inquire whether the agency has
received notice of any pending criminal charges against the
applicant.
(c) If a school district, open-enrollment charter school,
or independent contractor receives information from an applicant or
employer of an applicant that indicates an affirmative response to
information required to be disclosed in the statement under Section
22.064(2) and the district, charter school, or contractor continues
to consider offering employment to the applicant, the district,
charter school, or contractor shall contact the applicable employer
and request additional information and any related records
concerning the affirmative response.
(d) Notwithstanding any other law, an employer that
receives a request for additional information and related records
under Subsection (c) shall provide the additional information or
related records, including confidential information, not later
than the 60th day after the date the employer receives the request.
(e) If an applicant is hired by a school district,
open-enrollment charter school, or independent contractor, the
review conducted under this section is sufficient provided that the
person remains continuously employed by the district, charter
school, or contractor.
Sec. 22.067. PROVISIONAL EMPLOYMENT. (a) A school
district, open-enrollment charter school, or independent
contractor may hire an applicant on a provisional basis for a period
not to exceed 90 days pending the review of the applicant conducted
under Section 22.066 if:
(1) the applicant has provided a completed employment
history review application, as required under Section 22.064;
(2) the applicant swears or affirms that the applicant
is not disqualified from employment for the position sought; and
(3) the district, charter school, or contractor:
(A) has no knowledge of information regarding the
applicant that would disqualify the applicant from employment for
the position sought; and
(B) requires the applicant to work in the
immediate vicinity of a permanent employee of the district, charter
school, or contractor when in direct contact with students.
Sec. 22.068. SUBSTITUTE EMPLOYEE. (a) In this section,
"substitute employee" does not include a bus driver.
(b) A school district or open-enrollment charter school is
required to conduct a review under Section 22.066 for an applicant
seeking employment as a substitute employee only before the
applicant is initially hired by the district or charter school or
before the applicant is initially placed on the list of approved
substitute employees of the district or charter school. The
initial review under this subsection is sufficient provided that
the substitute employee continues employment with the district or
charter school or remains on the list of approved substitute
employees of the district or charter school.
(c) Each school district or open-enrollment charter school
must independently conduct the review required under Section 22.066
before offering employment to an applicant or before placing an
applicant on the district's or charter school's list of approved
substitute employees. A school district or open-enrollment charter
school may not rely on a review conducted by another school district
or open-enrollment charter school.
(d) An independent contractor that provides staffing of
substitute employees is responsible for conducting the review
required under Section 22.066. A school district or
open-enrollment charter school that contracts for staffing of
substitute employees is not responsible for conducting the review
of a substitute employee employed by an independent contractor.
Sec. 22.069. SPECIFIC REQUIREMENTS REGARDING INDEPENDENT
CONTRACTORS. (a) If an independent contractor intends to assign an
existing employee to a position at a school district or
open-enrollment charter school that involves direct contact with
students, the contractor shall conduct the review required under
Section 22.066 before assigning the employee to the position, and
the employee is considered an applicant subject to this subchapter.
(b) A review conducted by an independent contractor of an
applicant or existing employee is sufficient provided that the
person remains continuously employed by the contractor and
regardless of whether the person is assigned to a position at more
than one school district or open-enrollment charter school.
(c) An independent contractor must maintain a record of each
review conducted under Section 22.066.
(d) At the request of a school district or open-enrollment
charter school receiving services from an independent contractor,
the contractor shall provide the record of the review of any
employee who provides services at the district or charter school.
(e) If an independent contractor employs a person whose
review indicated an affirmative response to information required to
be disclosed in the statement under Section 22.064(2), the
contractor must provide the record of that review to a school
district or open-enrollment charter school before assigning that
person to a position that involves direct contact with students at
the district or charter school.
(f) An independent contractor may not assign an employee to
a school district or open-enrollment charter school if the board of
trustees of the district or governing body of the charter school
objects to the assignment based on the record of the review of the
employee provided under this section.
Sec. 22.070. SUPPRESSION OF INFORMATION PROHIBITED. (a) A
school district, open-enrollment charter school, or independent
contractor may not, after September 1, 2017, enter into an
agreement or contract or take any action regarding information
concerning an allegation, finding, or adjudication of conduct by a
current or former employee that constitutes child abuse or sexual
misconduct involving a student or child that would:
(1) have the effect of suppressing the information;
(2) require the district, charter school, or
contractor to expunge the information from employment records
unless after investigation the information is found to be false; or
(3) prevent the district, charter school, or
contractor from complying with a provision of this subchapter that
requires the disclosure of the information.
(b) A provision in a contract or agreement that violates
this section is void.
Sec. 22.071. EXEMPTION FROM PUBLIC INFORMATION LAW;
AUTHORITY TO REPORT. (a) Information obtained under Section
22.064, 22.065, or 22.066 regarding an applicant subject to this
subchapter is confidential and not subject to disclosure under
Chapter 552, Government Code.
(b) A school district, open-enrollment charter school, or
independent contractor may report information obtained under
Section 22.064, 22.065, or 22.066 regarding an applicant subject to
this subchapter to:
(1) the agency;
(2) the State Board for Educator Certification or
another applicable state licensing or certifying agency or board;
(3) a law enforcement agency;
(4) a child protective services agency; and
(5) another school district, open-enrollment charter
school, or independent contractor.
Sec. 22.072. IMMUNITY FROM PROSECUTION. A person may not be
prosecuted for obtaining or disclosing information regarding an
applicant subject to this subchapter in a manner authorized or
required under this subchapter.
Sec. 22.073. IMMUNITY FROM CIVIL LIABILITY. (a) A person
who obtains or discloses information regarding an applicant subject
to this subchapter in a manner authorized or required under this
subchapter is immune from civil liability for obtaining or
disclosing the information.
(b) This section does not apply to a person who knowingly
provides false information or records.
Sec. 22.074. CIVIL PENALTY; CONTRACTS WITH VIOLATORS
PROHIBITED. (a) A person who wilfully violates this subchapter is
liable for a civil penalty of not less than $500 or more than
$10,000 for each violation. Each day a violation occurs or
continues may be considered a separate violation for purposes of a
civil penalty assessment.
(b) The attorney general shall, on request of the agency, or
may, on the attorney general's own initiative, file suit to collect
the penalty.
(c) A civil penalty collected under this section shall be
deposited in the state treasury to the credit of the general revenue
fund.
(d) The attorney general shall maintain and make publicly
available on the attorney general's Internet website a list of each
independent contractor assessed a civil penalty under this section.
A school district or open-enrollment charter school may not
contract for services with an independent contractor included on
the list under this section.
Sec. 22.075. RULES. The commissioner shall adopt rules as
necessary to administer this subchapter.
Sec. 22.076. EFFECT ON CONDUCTING ADDITIONAL INVESTIGATION
OR DUTY TO REPORT. This subchapter may not be construed to:
(1) prevent a school district, open-enrollment
charter school, or independent contractor from:
(A) conducting any authorized investigation of
an applicant in addition to the review required under Section
22.066; or
(B) requiring an applicant to provide any
additional information or authorizations in connection with a
review required under Section 22.066;
(2) prevent an employer from disclosing information in
addition to information required to be disclosed under Sections
22.065 and 22.066; or
(3) relieve a school district or open-enrollment
charter school, a school administrator of a district or charter
school, or an independent contractor of the legal responsibility to
report:
(A) any suspected incidents of child abuse as
provided by law; or
(B) any suspected incidents of professional
misconduct as provided by law.
SECTION 3. As soon as practicable after the effective date
of this Act:
(1) the Texas Education Agency shall prescribe
standardized forms for applicants to use under Section 22.064,
Education Code, as added by this Act, and for employers to use under
Section 22.065, Education Code, as added by this Act; and
(2) school districts, open-enrollment charter
schools, and independent contractors shall begin conducting
employment reviews as required by Subchapter B-1, Education Code,
as added by this Act.
SECTION 4. This Act takes effect September 1, 2017.