SECTION 414.504. Pre-employment and Pre-assignment Clearance

(a) Each facility, local authority, community center, and provider must conduct:

(1) a pre-employment criminal history and registry clearance of all applicants (as defined) for employment; and

(2) a pre-assignment criminal history and registry clearance of all applicants for volunteer status.

(b) A provider that is required to conduct criminal history and registry clearances in accordance with the Texas Health and Safety Code, Chapter 250, must provide evidence of compliance with that law to the facility, local authority, or community center with which it contracts.

(c) For professional clinical interns, a written agreement must exist between the facility, local authority, or community center and the university/college. The written agreement must include:

(1) a statement that responsibility for the care of consumers is retained by the facility, local authority, or community center;

(2) a statement that background checks of professional clinical interns must ensure compliance with subsection (d) of this section; and

(3) a description of how background checks of professional clinical interns will be conducted and funded.

(d) The following individuals may not be employed by, assigned volunteer status at, or serve as a professional clinical intern at, a facility, local authority, community center, or provider:

(1) an individual who has been convicted of any of the criminal offenses listed in subsection (g) of this section;

(2) an individual who has been convicted of a criminal offense that the facility, local authority, community center, or provider has determined to be a contraindication to employment or volunteer status at that entity;

(3) an individual who is listed as revoked in the Nurse Aide Registry; or

(4) an individual who is listed as unemployable in the Employee Misconduct Registry.

(e) The facility, local authority, community center, or provider must inform applicants in writing at the time that application is made of the following:

(1) that a pre-employment/pre-assignment criminal history and registry clearance will be conducted;

(2) the types of criminal offenses for which a conviction would bar employment or volunteer status as required by law;

(3) that conviction of other types of criminal offenses may be considered a contraindication to employment or volunteer status at that entity; and

(4) that being listed as revoked in the Nurse Aide Registry or being listed as unemployable in the Employee Misconduct Registry would bar employment or volunteer status.

(f) An applicant who is not listed as revoked in the Nurse Aide Registry and who is not listed as unemployable in the Employee Misconduct Registry may be employed on a temporary or interim basis pending a criminal history clearance if an emergency exists in which there is a risk to the health and safety of consumers as a result of unfilled positions or in which the operations of the organization are severely impaired as determined by the chief executive officer of the facility, local authority, community center, or provider.

(1) The applicant must furnish the employer with an affidavit stating that the applicant has not been convicted of any of the criminal offenses listed in subsection (g) of this section or any criminal offense that the employer has determined is a contraindication to employment. The affidavit will be kept in the applicant's file. A sample affidavit may be obtained by contacting Human Resource Services, TDMHMR, P.O. Box 12668, Austin, Texas 78711-2668.

(2) Within 72 hours of the time the person is employed on a temporary or interim basis, the facility, local authority, community center, or provider must initiate a criminal history clearance of that person as described in §414.505 of this title (relating to Obtaining or Requesting Criminal History Record Information and Checking Registry).

(3) If the criminal history record information reveals a conviction for any of the criminal offenses listed in subsection (g) of this section or for any criminal offense that the employer has determined is a contraindication to employment, then the facility, local authority, community center, or provider must immediately discharge the person as unemployable.

(4) An applicant may not receive volunteer assignment on a temporary or interim basis pending a criminal history clearance.

(g) Consistent with the Texas Health and Safety Code, §250.006, convictions of criminal offenses which constitute an absolute bar to employment are:

(1) criminal homicide (Penal Code, Chapter 19);

(2) kidnapping and unlawful restraint (Penal Code, Chapter 20);

(3) indecency with a child (Penal Code, §21.11);

(4) sexual assault (Penal Code, §22.011);

(5) aggravated assault (Penal Code, §22.02);

(6) injury to a child, elderly individual, or disabled individual (Penal Code, §22.04);

(7) abandoning or endangering a child (Penal Code, §22.041);

(8) aiding suicide (Penal Code, §22.08);

(9) agreement to abduct from custody (Penal Code, §25.031);

(10) sale or purchase of a child (Penal Code, §25.08);

(11) arson (Penal Code, §28.02);

(12) robbery (Penal Code, §29.02);

(13) aggravated robbery (Penal Code, §29.03);

(14) a conviction under the laws of another state, federal law, or the Uniform Code of Military Justice for an offense containing elements that are substantially similar to the elements of an offense listed under paragraphs (1) - (13) of this subsection; and

(15) a conviction which occurred within the previous five years for:

(A) assault that is punishable as a Class A misdemeanor or as a felony (Penal Code, §22.01);

(B) burglary (Penal Code, §30.02);

(C) theft that is punishable as a felony (Penal Code, Chapter 31);

(D) misapplicateion of fiduciary property or property of a financial institution that is punishable as a Class A misdemeanor or felony (Penal Code, §32.45); or

(E) securing execution of a document by deception that is punishable as a Class A misdemeanor or a felony (Penal Code, §32.46).

Source Note: The provisions of this §414.504 adopted to be effective February 6, 2002, 27 TexReg 749; amended to be effective September 1, 2003, 28 TexReg 6885