SECTION 361.67. Criminal Background Checks

(a) A contractor must ensure that each employee and volunteer of the contractor who has contact with a DADS ward or with the estate or benefits of a ward:

(1) has not been convicted of any crimes outlined in Texas Estates Code, §1104.353;

(2) is not a person meeting the specifications in Texas Estates Code, §§1104.351 - 1104.357;

(3) does not have charges pending from, has not admitted guilt for, or has not been found guilty of the offenses under the Texas Penal Code in subsection (b) of this section or any like offense under the law of another state or federal law, even if probation was granted, if deferred adjudication was granted on a plea of guilty, or if deferred adjudication was granted on a plea of no contest and no record exists, but the contractor has independent knowledge of these facts; and

(4) does not have an interest that is adverse to a ward of the DADS Guardianship Services Program or any of its contractors under Texas Estates Code, §1055.001, including:

(A) being an actual or potential creditor or debtor of the ward;

(B) being an opposing party to a ward in a lawsuit;

(C) being the guarantor of a ward's promissory note;

(D) having a duty to account to a ward other than the normal duty to account arising from guardianships under its contract; or

(E) having any other financial or other interest adverse to a ward.

(b) To ensure compliance with subsection (a) of this section, DADS obtains criminal history record information (a criminal background check) relating to a prospective employee or volunteer of a contractor who will have access to a DADS ward, the estate of a DADS ward, or the benefits of a ward referred by the DADS Guardianship Services Program. Based on the criminal history record information, DADS notifies the contractor of the prospective employee's or volunteer's eligibility to be employed or to volunteer with a DADS ward. A contractor must not make an offer of employment to a prospective employee or allow a prospective employee or volunteer to have access to a DADS ward, the estate of a DADS ward, or the benefits of a DADS ward referred by the DADS Guardianship Services Program before DADS notifies the contractor of the person's eligibility for employment or volunteering. On an annual basis, DADS obtains criminal history record information related to an employee or volunteer of a contractor who has access to a DADS ward, the estate of a ward, or the benefits of a DADS ward referred by the DADS Guardianship Services Program.

(1) The following offenses under the Texas Penal Code permanently bar an individual from employment or from volunteering with a contractor:

(A) sexual offenses under Chapter 21;

(B) §22.011, Sexual Assault;

(C) §22.02, Aggravated Assault;

(D) §22.021, Aggravated Sexual Assault;

(E) §22.04, Injury to a Child, Elderly Individual, or Disabled Individual;

(F) §22.041, Abandoning or Endangering a Child;

(G) §22.05, Deadly Conduct;

(H) §22.07, Terroristic Threat;

(I) §22.08, Aiding Suicide;

(J) §22.09, Tampering with Consumer Product;

(K) offenses against the family under Title 6;

(L) criminal homicide under Chapter 19;

(M) kidnapping and unlawful restraint under Chapter 20, and trafficking of persons under Chapter 20A;

(N) §28.02, Arson;

(O) robbery under Chapter 29;

(P) burglary and criminal trespass under Chapter 30;

(Q) theft under Chapter 31; and

(R) fraud under Chapter 32.

(2) All other offenses under the Texas Penal Code or the Texas Health and Safety Code, Chapter 481 (Texas Controlled Substances Act) are a bar to employment or volunteering with a contractor but may be waived as described in subsection (c) of this section.

(c) If an employee or volunteer has successfully fulfilled all requirements and conditions imposed by the court for an offense described in subsection (b)(2) of this section and if there are extenuating circumstances that justify the individual's employment or volunteering with the contractor, the contractor may make a written request to the director of the DADS Guardianship Services Program for a waiver of subsection (b)(2) of this section. The director will not waive the requirement for any offense described in subsection (b)(1) of this section. If the Judicial Branch Certification Commission does not approve certification of an employee or volunteer as a guardian based on a criminal history, the contractor may not assign the individual to work in any capacity with a DADS ward.

(d) A contractor must conduct a background check through the National Sex Offenders Registry website on a person who requests an unsupervised visit with a DADS ward. The contractor must maintain documentation of a search query in the ward's file. The contractor may approve an unsupervised visit, regardless of whether the person is listed on the registry, if the contractor determines the unsupervised visit is in the best interest of the ward. If the contractor approves an unsupervised visit with a person who is listed on the registry, the contractor must document the reasons why the visit was approved.

Source Note: The provisions of this §361.67 adopted to be effective September 1, 2006, 31 TexReg 6797; amended to be effective January 20, 2008, 33 TexReg 432; amended to be effective February 9, 2015, 40 TexReg 609; transferred effective March 15, 2022, as published in the February 25, 2022 issue of the Texas Register, 47 TexReg 983