By: Bettencourt, et al. S.B. No. 7
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(a), Penal Code, is amended 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)(A) or (B),
regardless of the age of that person.
SECTION 2. Article 42.01, Code of Criminal Procedure, is
amended by adding Section 12 to read as follows:
Sec. 12. In addition to the information described by
Section 1, the judgment should reflect affirmative findings entered
pursuant to Article 42.0192.
SECTION 3. Article 42.018(a), Code of Criminal Procedure,
is amended to read as follows:
(a) This article applies only to:
(1) [to] conviction or deferred adjudication
community supervision granted on the basis of an offense for which a
conviction or grant of deferred adjudication community supervision
requires the defendant to register as a sex offender under Chapter
62; or
(2) conviction 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 was [is] under 18
years of age at the time the offense was committed.
SECTION 4. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.0192 to read as follows:
Art. 42.0192. FINDING REGARDING OFFENSE RELATED TO
PERFORMANCE OF PUBLIC SERVICE. (a) In the trial of an offense
described by Section 824.009, Government Code, the judge shall make
an affirmative finding of fact and enter the affirmative finding in
the judgment in the case if the judge determines that the offense
committed was related to the defendant's employment described by
Section 824.009(b), Government Code, while a member of the Teacher
Retirement System of Texas.
(b) A judge who makes the affirmative finding described by
this article shall make the determination and provide the notice
required by Section 824.009(l), Government Code, as applicable.
SECTION 5. Section 21.006, Education Code, is amended by
amending Subsections (b), (b-1), and (c) and adding Subsections
(b-2), (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, district of innovation, open-enrollment charter school,
regional education service center, or shared services arrangement
shall notify the State Board for Educator Certification if:
(1) an educator employed by or seeking employment by
the school district, district of innovation, charter school,
service center, or shared services arrangement has a criminal
record and the school district, district of innovation, charter
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 school district,
district of innovation, charter 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 school district, district
of innovation, charter 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,
district of innovation, [or] open-enrollment charter school,
regional education service center, or shared services arrangement
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.
(b-2) The principal of a school district, district of
innovation, or open-enrollment charter school campus must notify
the superintendent or director of the school district, district of
innovation, or charter school not later than the seventh day after
the date:
(1) of an educator's termination of employment or
resignation following an alleged incident of misconduct described
by Subsection (b); or
(2) the principal knew about an educator's criminal
record under Subsection (b)(1).
(c) The superintendent or director 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 receives a report from a principal under Subsection (b-2)
or otherwise learns [knew] 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) or an employee's criminal record under Subsection
(b)(1).
(c-1) The report under Subsection (c) must be:
(1) in writing; and
(2) in a form prescribed by the board.
(i) A superintendent or director required to file a report
under Subsection (c) commits an offense if the superintendent or
director knowingly fails to file the report by the date required by
that subsection. A principal required to notify a superintendent
or director about an educator's criminal record or alleged incident
of misconduct under Subsection (b-2) commits an offense if the
principal knowingly fails to provide the notice 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 6. Section 21.044(g), Education Code, is amended to
read as follows:
(g) Each educator preparation program must provide
information regarding:
(1) the skills that educators are required to possess,
the responsibilities that educators are required to accept, and the
high expectations for students in this state;
(2) the effect of supply and demand forces on the
educator workforce in this state;
(3) the performance over time of the educator
preparation program;
(4) the importance of building strong classroom
management skills; [and]
(5) the framework in this state for teacher and
principal evaluation, including the procedures followed in
accordance with Subchapter H; and
(6) appropriate relationships, boundaries, and
communications between educators and students.
SECTION 7. 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 of this code.
SECTION 8. 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 PLACEMENT ON DEFERRED
ADJUDICATION COMMUNITY SUPERVISION FOR CERTAIN OFFENSES.
SECTION 9. Sections 21.058(a), (b), (c), (c-1), and (c-2),
Education Code, are amended to read as follows:
(a) The procedures described by Subsections (b) and (c)
apply only:
(1) to conviction of or placement on deferred
adjudication community supervision for an offense for which a
defendant is required to register as a sex offender under Chapter
62, Code of Criminal Procedure; or
(2) to conviction of 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 was [is] under 18
years of age at the time the offense was committed.
(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 or placement
on deferred adjudication community supervision of 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, to the agency, 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.
(c) A school district or open-enrollment charter school
that receives notice under Subsection (b) of the revocation of a
certificate issued under this subchapter shall:
(1) immediately remove the person whose certificate
has been revoked from campus or from an administrative office, as
applicable, to prevent the person from having any contact with a
student; and
(2) if the person is employed under a probationary,
continuing, or term contract under this chapter, with the approval
of the board of trustees or governing body or a designee of the
board or governing body:
(A) suspend the person without pay;
(B) provide the person with written notice that
the person's contract is void as provided by Subsection (c-2); and
(C) terminate the employment of the person as
soon as practicable.
(c-1) If a school district or open-enrollment charter
school becomes aware that a person employed by the district or
school under a probationary, continuing, or term contract under
this chapter has been convicted of or received deferred
adjudication for a felony offense, and the person is not subject to
Subsection (c), the district or school may, with the approval of the
board of trustees or governing body or a designee of the board of
trustees or governing body:
(1) suspend the person without pay;
(2) provide the person with written notice that the
person's contract is void as provided by Subsection (c-2); and
(3) terminate the employment of the person as soon as
practicable.
(c-2) A person's probationary, continuing, or term contract
is void if, with the approval of the board of trustees or governing
body or a designee of the board or governing body, the school
district or open-enrollment charter school takes action under
Subsection (c)(2)(B) or (c-1)(2).
SECTION 10. 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 that the other person has
previously engaged in sexual misconduct with a minor or student in
violation of the law.
(b) The commissioner 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 11. 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 12. Section 21.355, Education Code, is amended by
amending Subsection (a) and adding Subsections (d), (e), and (f) 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 for purposes of
an investigation conducted by the agency.
(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, if permissible under rules of evidence
applicable to a contested case, as provided by Section 2001.081,
Government Code.
(f) A document provided to the agency under Subsection (d)
remains confidential unless the document becomes part of the record
in a contested case under Chapter 2001, Government Code.
SECTION 13. 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:
(1) include provisions designed to prevent improper
electronic communications between a school employee and a student;
(2) allow a school employee to elect to not disclose to
students the employee's personal telephone number or e-mail
address; and
(3) include provisions instructing a school employee
about the proper method for notifying appropriate local
administrators about an incident in which a student engages in
improper communications with the school employee.
SECTION 14. 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 15. Subchapter A, Chapter 824, Government Code, is
amended by adding Section 824.009 to read as follows:
Sec. 824.009. CERTAIN EMPLOYEES AND ANNUITANTS INELIGIBLE
FOR RETIREMENT ANNUITY; RESUMPTION OR RESTORATION OF ELIGIBILITY.
(a) In this section, "qualifying felony" means an offense that is
punishable as a felony under the following sections of the Penal
Code:
(1) Section 21.02 (continuous sexual abuse of young
child or children);
(2) Section 21.12 (improper relationship between
educator and student); or
(3) Section 22.011 (sexual assault) or Section 22.021
(aggravated sexual assault).
(a-1) In this section, a "qualifying felony" includes any
federal offense that contains elements that are substantially
similar to the elements of a felony offense described in Subsection
(a).
(b) This section applies only to a person who is a member or
an annuitant of the retirement system.
(c) Except as provided by Subsection (e), a person is not
eligible to receive a service retirement annuity from the
retirement system if the person is convicted of a qualifying felony
the victim of which is a student.
(d) The retirement system shall suspend payments of an
annuity to a person who is not eligible to receive a service
retirement annuity under Subsection (c), as determined by the
retirement system, on receipt by the retirement system of:
(1) notice of a conviction for a qualifying felony
under Subsection (f) or (l);
(2) notice of a conviction for a qualifying felony
from a district court or district attorney; or
(3) any other information the retirement system
determines by rule is sufficient to establish a conviction for a
qualifying felony.
(e) A person whose conviction is overturned on appeal or who
meets the requirements for innocence under Section 103.001(a)(2),
Civil Practice and Remedies Code:
(1) is entitled to receive an amount equal to the
accrued total of payments and interest earned on the payments
withheld during the suspension period; and
(2) may resume receipt of annuity payments on payment
to the retirement system of an amount equal to the contributions
refunded to the person under Subsection (g).
(f) Not later than the 30th day after the date of a person's
conviction for a qualifying felony, the school at which the person
was employed shall provide written notice of the conviction to the
retirement system. The notice must comply with rules adopted by the
board of trustees under Subsection (k).
(g) A person who is not eligible to receive a service
retirement annuity under Subsection (c) is entitled to a refund of
the person's retirement annuity contributions, including interest
earned on those contributions.
(h) Benefits payable to an alternate payee under Chapter 804
who is recognized by a domestic relations order established before
September 1, 2017, are not affected by a person's ineligibility to
receive a retirement annuity under Subsection (c).
(i) On conviction of a person for a qualifying felony, a
court may, in the interest of justice and in the same manner as in a
divorce proceeding, award half of the service retirement annuity
forfeited by the person as the separate property of an innocent
spouse if the annuity is partitioned or exchanged by written
agreement of the spouses as provided by Subchapter B, Chapter 4,
Family Code. The amount awarded to the innocent spouse may not be
converted to community property.
(j) Ineligibility for a retirement annuity under this
section does not impair a person's right to any other retirement
benefit for which the person is eligible.
(k) The board of trustees of the retirement system shall
adopt rules and procedures to implement this section.
(l) A court shall notify the retirement system of the terms
of a person's conviction of a qualifying felony.
SECTION 16. 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 17. Section 12, Article 42.01, Code of Criminal
Procedure, and Article 42.0192, Code of Criminal Procedure, as
added by this Act, apply only to a judgment of conviction entered on
or after the effective date of this Act.
SECTION 18. Not later than December 31, 2017, the board of
trustees of the Teacher Retirement System of Texas shall adopt the
rules necessary to implement Section 824.009, Government Code, as
added by this Act.
SECTION 19. Section 824.009, Government Code, as added by
this Act, applies only to an offense committed on or after the
effective date of rules adopted in accordance with that section. An
offense committed before that date 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 rules adopted
in accordance with 824.009, Government Code, as added by this Act,
if any element of the offense occurred before that date.
SECTION 20. This Act takes effect September 1, 2017.