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