SECTION 153.1109. Noncertified Employees

(a) National criminal history record information review.

(1) This section applies to a person described in the Texas Education Code (TEC), §22.0833, that is, any person who is not a holder of or applicant for Texas educator certification under the TEC, Chapter 21, Subchapter B, and who, after January 1, 2008, is offered employment by a school district or an open-enrollment charter school.

(2) This section also applies to such a person who is offered employment by a shared services arrangement, if the employee's or applicant's duties are or will be performed on school property or at another location where students are regularly present.

(3) Before being employed by a school entity, every person to whom this section applies shall submit fingerprint, photograph, and identification information to the Texas Department of Public Safety (DPS) as required by this section. All information shall be submitted in the form the DPS requires for the purpose of being included in the Clearinghouse.

(b) Submission of required information.

(1) In order that an applicant subject to national criminal history review may submit the required information, the school entity that intends to employ the applicant shall certify the pending employment to the Texas Education Agency (TEA). The TEA shall electronically provide the applicant or the school entity an authorization for submission of fingerprint, photograph, and identification information to the DPS in the form the DPS requires.

(2) Only fingerprint, photograph, and identification information that has been properly authorized by the TEA will be accepted by the DPS and included in the Clearinghouse as required by the TEC, §22.0833.

(c) Fees.

(1) The TEA's fee for review of national criminal history record information shall be the same as that required by the State Board for Educator Certification for such a review and may be collected by any entity authorized to obtain the information necessary for the review, which shall then remit TEA's portion of the fee to the TEA.

(2) A school entity may require an applicant for employment to pay all fees related to obtaining and reviewing the national criminal history record information required by this section.

(d) Employment pending review.

(1) A school entity shall ensure that a person subject to the TEC, §22.0833, submits the required information before that person's employment begins.

(2) After the required information is submitted, the person may begin employment, but that employment is conditional upon the review of that person's criminal history record information by the TEA pursuant to the TEC, §22.0833, and must be terminated if the TEA makes a determination that the employee or applicant is ineligible for employment under the terms of the TEC, §22.085.

(3) In the event that the school entity withdraws its offer of employment or terminates the employee under review, the school entity shall immediately notify the TEA, and no final determination of employability will be made.

(e) Notice of proposed determination of ineligibility for employment.

(1) The TEA shall notify the employee or applicant by certified mail, return receipt requested, if, based on its criminal history record information review, the TEA proposes to make a determination that an employee or applicant for employment is ineligible for employment under the terms of the TEC, §22.085.

(2) The notice shall specify the basis for the proposed determination, including, but not limited to, a description of the criminal charges or convictions involved.

(3) The notice shall state that the determination will be made unless the employee or applicant submits a written response to the TEA, which may include supporting documents or affidavits, within 15 calendar days from the date the notice was mailed, and such response demonstrates to the satisfaction of the TEA that the employee or applicant is eligible for employment under the terms of the TEC, §22.085.

(4) After review of such response, if any, the TEA shall notify the employee or applicant by certified mail, return receipt requested, of its determination and shall notify the school entity by e-mail.

(f) Other school entity obligations.

(1) A school entity shall discharge or refuse to hire an employee or applicant if the school entity obtains information through a criminal history record information review or by notification from the TEA pursuant to the TEC, §22.0833(g), that an employee or applicant for employment has been convicted of an offense covered by the TEC, §22.085.

(2) Pursuant to the TEC, §22.085(e), sanctions may be imposed on the certificate of a certified educator who fails to discharge an employee or fails to refuse to hire an applicant, if the educator knows or should have known that the employee or applicant has been convicted of an offense described in the TEC, §22.085(a).

(3) Each school year the superintendent or chief operating officer of a school entity shall certify to the TEA that the school entity has complied with the TEC, §22.085.

(4) The school entity shall cooperate with the TEA and DPS and its contractors to facilitate the submission of the required information, including assisting in the distribution of notices and authorization forms, if requested to do so by the TEA.

(g) Appeal of the TEA determination. An employee or applicant for employment may appeal the TEA determination that he or she is not eligible for employment pursuant to the TEC, §22.085, according to the procedures described in §153.1115 of this title (relating to Appeal of the TEA Determination), but the employee or applicant is not eligible for employment by a school entity unless the TEA determination is reversed by a final administrative order.

Source Note: The provisions of this §153.1109 adopted to be effective December 30, 2007, 32 TexReg 9626