Review of Proposed New 19 TAC Chapter 227, Provisions for Educator Preparation Candidates, Subchapter B, Preliminary Evaluation of Certification Eligibility, and Proposed Amendment to 19 TAC Chapter 230, Professional Educator Preparation and Certification, Subchapter N, Certificate Issuance Procedures, §230.436, Schedule of Fees for Certification Services
September 24, 2010
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item provides the State Board of Education (SBOE) an opportunity to review the State Board for Educator Certification (SBEC) rule actions that would propose new 19 TAC Chapter 227, Provisions for Educator Preparation Candidates, Subchapter B, Preliminary Evaluation of Certification Eligibility, and amend 19 TAC Chapter 230, Professional Educator Preparation and Certification, Subchapter N, Certificate Issuance Procedures, §230.436, Schedule of Fees for Certification Services. House Bill (HB) 963, 81st Texas Legislature, 2009, requires state licensing agencies to adopt rules necessary to administer requests for preliminary criminal history evaluations. The proposed new subchapter would provide procedures that allow for administering and responding to requests for preliminary criminal history evaluations. This item also proposes an amendment to 19 TAC §230.436 to provide a nonrefundable fee for a request for preliminary criminal history evaluation as authorized by HB 963.
STATUTORY AUTHORITY: The statutory authority for proposed new 19 TAC Chapter 227, Subchapter B, is the Texas Education Code (TEC), §21.041(b)(1) and (4), and Texas Occupations Code, Chapter 53, Subchapter D. The statutory authority for the proposed amendment to 19 TAC §230.436 is the TEC, §21.041(d), and Texas Occupations Code, §53.105.
EFFECTIVE DATE: The proposed effective date of new 19 TAC Chapter 227, Subchapter B, and the amendment to 19 TAC §230.436 would be October 31, 2010.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: An Attorney General opinion was requested by the commissioner of education regarding several issues related to the preliminary criminal history evaluation required by HB 963, as codified in the Texas Occupations Code, Chapter 53, Subchapter D. Subsequently, the Attorney General Opinion No. GA-0759, issued February 16, 2010, held that the statute grants the SBEC the implied authority to require any information deemed necessary to determine whether a conviction or deferred adjudication set out in a request for preliminary criminal history evaluation renders the requestor ineligible for certification by the SBEC. The opinion further stated that while the evaluation is binding with regard to information that is "reasonably available" to the SBEC, what information is considered to be "reasonably available" is largely a question of fact that must be determined by the SBEC.
Proposed New 19 TAC Chapter 227, Subchapter B, Preliminary Evaluation of Certification Eligibility
Proposed new 19 TAC Chapter 227, Provisions for Educator Preparation Candidates, Subchapter B, Preliminary Evaluation of Certification Eligibility, shown in Attachment II, would establish the procedures for administering and responding to requests for preliminary criminal history evaluation of certification eligibility and limit the effect of the criminal history evaluation to the information that is provided by the requestor. The proposed rule actions reflect input received at the April 29, 2010 stakeholder meeting. Specifically, the proposed new subchapter would include the following.
Proposed new 19 TAC §227.101, Purpose, would identify the purpose of the subchapter in subsection (a). The terms, "criminal history," "ineligibility," "reasonably available," "requestor," and "Texas Education Agency (TEA) staff," would be defined in subsection (b) for purposes of this subchapter. Subsection (c) would identify persons who are eligible to make a request for preliminary criminal history evaluation under proposed new 19 TAC Chapter 227, Subchapter B.
Proposed new 19 TAC §227.103, Application, would establish the procedures that a person must follow to submit a request for preliminary criminal history evaluation. Proposed new subsection (a) would specify that the fee for a request for preliminary criminal history evaluation must be paid before the request is submitted. Proposed new subsection (b) would identify the required contents of a request for preliminary criminal history evaluation. Proposed new subsection (c) would specify that all required documents and information must be included with the request for preliminary criminal history evaluation or the request will not be considered reasonably available. Proposed new subsection (d) would identify the recommended disposition documentation for a conviction or deferred adjudication. Proposed new subsection (e) would specify the permissible methods of transmittal of the application and required documentation to be provided to the TEA staff. Proposed new subsection (f) would identify what constitutes a complete request for preliminary criminal history evaluation and provide that no action will be taken on requests that are incomplete. Proposed new subsection (g) would provide that documents submitted in connection with a request for preliminary criminal history evaluation will not be returned and may be destroyed or retained in accordance with the TEA records retention schedule.
Proposed new 19 TAC §227.105, Preliminary Criminal History Evaluation Letter, would establish the procedures and timeline for the issuance of a preliminary criminal history evaluation letter. Proposed new subsection (a) would provide that within 90 days of receipt of a complete request for preliminary criminal history evaluation, the TEA staff would notify the requestor by e-mail of the TEA's determination with regard to the requestor's potential ineligibility based on the matters described in the request. Proposed new subsection (b) would provide that the preliminary criminal history evaluation letter would be strictly limited to the facts stated on the request for preliminary criminal history evaluation, and that the requestor would still be subject to a full fingerprint-based criminal history evaluation at the time the requestor applies for certification. Proposed new subsection (c) would provide that a favorable preliminary criminal history evaluation letter would not be a guarantee of educator certification, admission to an educator preparation program, or employment as an educator.
Proposed new 19 TAC §227.107, Fee for Request for Preliminary Criminal History Evaluation, would specify in proposed new subsection (a) that the fee for a request for preliminary criminal history evaluation would be established in 19 TAC §230.436, Schedule of Fees for Certification Services. Proposed new subsection (b) would provide that a new fee would be required to reactivate a request if the requestor fails to submit the required documentation within 90 days of receipt by the TEA of the initial fee.
Proposed Amendment to 19 TAC §230.436, Schedule of Fees for Certification Services
This item also presents the proposed amendment to 19 TAC Chapter 230, Professional Educator Preparation and Certification, Subchapter N, Certificate Issuance Procedures, §230.436, Schedule of Fees for Certification Services, shown in Attachment III. The proposed amendment to 19 TAC §230.436 would provide for a request for preliminary criminal history evaluation fee of $150, which, pursuant to Texas Occupations Code, §53.105, TEA staff have determined is sufficient to cover the cost of administration. The proposed amendment would also establish this fee as nonrefundable. It should be noted that an additional fee would apply to the request for preliminary criminal history evaluation fee for the purpose of recovering the cost of the Texas Online Initiative as required by 19 TAC §230.438, E-Pay Supplemental Fee.
SBOE Review of Proposed SBEC Rules
Under TEC, §21.042, the SBEC must submit a written copy of each rule it proposes to adopt to the SBOE for review. The SBOE may reject the proposed rules by a vote of at least two-thirds of the members of the SBOE present and voting.
FISCAL IMPACT: HB 963 requires state licensing agencies to adopt rules necessary to administer requests for preliminary criminal history evaluation. Proposed new 19 TAC Chapter 227, Subchapter B, provides procedures for preliminary criminal history evaluations and the proposed amendment to 19 TAC §230.436 establishes a nonrefundable fee of $150 for a request for preliminary criminal history evaluation. HB 963 specifies that the fee adopted by the licensing agency must be in an amount sufficient to cover the administrative costs for preliminary criminal history evaluation requests. The fiscal implications are based on an estimate of 400 persons per year, which is approximately 1% of the applicants fingerprinted in an average year, submitting a request for preliminary criminal history evaluation. The following fiscal implications are based on costs per request for state government (TEA) and persons (individuals) for fiscal years (FYs) 2011-2015.
There are anticipated fiscal implications for the TEA as a result of enforcing or administering the proposed rule actions. The TEA estimates the total cost at $58,455 in FY 2011, $29,142 in FY 2012, $29,870 in FY 2013, $30,642 in FY 2014, and $31,460 in FY 2015. The total estimated cost includes $11,455 in FY 2011, $12,142 in FY 2012, $12,870 in FY 2013, $13,642 in FY 2014, and $14,460 in FY 2015 for personnel costs. The total estimated cost also includes other operating expenses for the development and maintenance of the system at $47,000 in FY 2011 and $17,000 in each year for FY 2012-FY 2015. The costs are based on two employees spending 10% of their work day on requests for preliminary criminal history evaluations. The increase is based on a .06% increase each year for FY 2012-FY 2015.
The TEA estimates an increase in revenue at $60,000 in each year for FY 2011-FY 2015. The agency would collect a fee per request to defray the cost to complete the preliminary criminal history evaluation.
The TEA estimates the total anticipated economic costs to persons required to comply with the proposed rule actions at $60,000 in each year for FY 2011-FY 2015. The estimate is based on 400 persons requesting a preliminary criminal history evaluation that will be required to pay a fee of $150 for processing by TEA staff.
There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
PUBLIC AND STUDENT BENEFIT: The public and student benefit anticipated would be an increase in the number of educator certification candidates since qualified candidates will not be discouraged from becoming educators due to criminal histories that are not relevant to educator certification.
PROCEDURAL AND REPORTING IMPLICATIONS: Persons enrolled or planning to enroll in a Texas educator preparation program or planning to take a certification examination would follow the procedures established in proposed new 19 TAC Chapter 227, Subchapter B, to submit a request for preliminary criminal history evaluation, which would include a form to be used when an individual makes a request for a preliminary criminal history evaluation.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The TEA staff have determined that there are no locally maintained paperwork requirements to school districts and educators.
PUBLIC COMMENTS: None.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: A stakeholder meeting was held on April 29, 2010 for the purpose of reviewing and seeking input related to proposed new 19 TAC Chapter 227, Subchapter B, and proposed amendment to 19 TAC §230.436. The stakeholders included representatives of educator preparation programs, educator organizations, and school districts.
COMMISSIONER'S RECOMMENDATION: I recommend that the State Board of Education:
Take no action on proposed new 19 TAC Chapter 227, Provisions for Educator Preparation Candidates, Subchapter B, Preliminary Evaluation of Certification Eligibility; and
Take no action on the proposed amendment to 19 TAC Chapter 230, Professional Educator Preparation and Certification, Subchapter N, Certificate Issuance Procedures, §230.436, Schedule of Fees for Certification Services.
Respectfully submitted,
Robert Scott
Commissioner of Education
Staff Members Responsible:
Raymond F. Glynn, Deputy Commissioner
School District Leadership and Educator Quality
Jerel Booker, Associate Commissioner
Educator and Student Policy Initiatives
Karen Loonam, Deputy Associate Commissioner
Educator Certification, Standards, and Investigations
Doug Phillips, Director
Investigations and Fingerprinting
Andrew Allen, Assistant Counsel
Legal Services for Educator Certification, Standards, and
Investigations
Attachments:
I. Statutory Citations
II. Text of Proposed New 19 TAC Chapter 227, Provisions for Educator Preparation Candidates, Subchapter B, Preliminary Evaluation of Certification Eligibility
III. Text of Proposed Amendment to 19 TAC Chapter 230, Professional Educator Preparation and Certification, Subchapter N, Certificate Issuance Procedures, §230.436, Schedule of Fees for Certification Services