The rule action presented in this item will be filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts an amendment to 19 TAC Chapter 153, School District Personnel, Subchapter DD, Criminal History Record Information Review, §153.1101, Definitions, and new 19 TAC §153.1117, School Contractor Employees. The adopted amendment and new section help implement the requirements of the Texas Education Code (TEC), §22.0834, as added by Senate Bill 9, 80th Texas Legislature, 2007, which requires the criminal history record information review of certain contract employees of a school district, open-enrollment charter school, and shared services arrangement.

STATUTORY AUTHORITY:

TEC, §22.0834, as added by Senate Bill 9, 80th Texas Legislature, 2007.

EFFECTIVE DATE:

November 20, 2008.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:

TEC, §22.0834, authorizes the commissioner of education to adopt rules as necessary to implement the criminal history record information review of certain contract employees. The statute requires entities that contract with public schools to obtain criminal history record information for their employees who have continuing contract duties and direct contact with students, but it does not define those terms. In addition, the statute does not address other issues related to what types of contracts and contractors are covered by its requirements.

Due to the uncertainty as to the application and interpretation of the TEC, §22.0834, a stakeholder meeting was held by Texas Education Agency (TEA) staff on February 25, 2008, to discuss the possibility of adopting commissioner's rules to help implement this section. Interested individuals and representatives of associations of construction contractors and subcontractors, school boards, school administrators, school personnel administrators, sports officials, educators, the University Interscholastic League, and other extracurricular organizations appeared and presented comments regarding the potential effects of failing to address the uncertainty regarding the implementation of the TEC, §22.0834. The stakeholders also recommended possible rule language. Although the suggestions for rule proposals differed in some respects, the consensus of the meeting was that a commissioner's rule to help implement the TEC, §22.0834, was needed.

The amendment to 19 TAC §157.1101, Definitions, adds definitions for "continuing duties related to contracted services," "date of employment," "date of securing services," "direct contact with students," and "service contractor." The amendment also states more specifically the criteria for determining which employees and contractors are covered.

New 19 TAC §157.1117, School Contractor Employees, describes in more detail the obligations and responsibilities of school contractors and school entities to obtain the required criminal history record information.

Several revisions were made to the rule action since published as proposed in response to public comments and to incorporate technical corrections. The following changes were made at adoption.

In 19 TAC §153.1101, the definition of "covered contract employee" in paragraph (3) was revised in subparagraph (D) to clarify employment of students. The definition of "date of employment" in paragraph (5) was modified to add subparagraph (C) to further clarify the definition for employees and independent contractors of subcontractors. The definition of "date of securing services" in paragraph (6) was revised to clarify contractor and subcontractor responsibilities. A technical correction was also made in paragraph (6) to clarify the statutory reference.

The definition of "direct contact with students" in paragraph (7) was revised to use the term "substantial opportunity" throughout the definition. Paragraph (7) was also revised to refer to more than one student and to delete the word "individualized" from the last sentence of the definition to clarify that direct contact does not necessarily involve one-on-one interaction with a student. A technical correction was made in paragraph (7) to use the phrase "which might include" rather than "such as." The definition of "service contractor" in paragraph (10) was revised to provide that when conducting an investigation, law enforcement and Department of Family and Protective Services investigators are not service contractors.

In 19 TAC §153.1117, subsection (b)(2), relating to district responsibilities, was revised to clarify that in emergencies a school entity employee may accompany more than one covered contract employee. Subsection (c), relating to contractor responsibilities, was revised in paragraph (1) to clarify that school contractors are responsible for obtaining the required criminal history record information on the covered contract employees of subcontractors on school contracts. Paragraph (4) was revised to clarify that, at the school entity's request, contractors shall furnish the school entity the information necessary for the school entity to obtain criminal history record information on all covered contract employees working on the contract. Paragraph (5) was revised to further clarify school contractor responsibilities.

FISCAL IMPACT:

The TEA has determined that there are no additional fiscal implications to persons or entities required to comply with the adopted rule action because the obligation to obtain the required criminal history record information was imposed by the TEC, §22.0834, not by this rule action. The rule action will reduce the fiscal impact on schools and school contractors by clarifying which school contractors are not subject to a criminal history record information review. The TEA will not incur any costs as a result of the rule action because neither the rules nor the statute requires the TEA to receive or review any of the information that the TEC, §22.0834, requires schools and school contractors to obtain.

In addition, the rule action has no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required. The legislature has determined that the information required by the TEC, §22.0834, is necessary for the health, safety, and welfare of the state. However, if this action were not adopted, it is probable that school districts and school contractors, many of whom are small businesses or microbusinesses, would incur unnecessary fiscal costs because of uncertainty as to the application and interpretation of the TEC, §22.0834. The rule action will minimize the impact on small businesses and microbusinesses to as great an extent as possible consistent with the legislative intent to require that criminal history record information be obtained on all school contractor employees who, as a result of their contract services, may have the opportunity for unsupervised contact with students. Although many of the school contractors who would be affected by the proposed rule action are individuals, they would be acting as independent contractors if they are covered by the TEC, §22.0834, so their savings are addressed with savings estimated for microbusinesses.

It is difficult to calculate the economic savings that will result from the rule action, but it is estimated that as many as 20,000 to 30,000 sports officials, University Interscholastic League judges, and other school contractors who do not have unsupervised interaction with students in the performance for their contract services will not be required to obtain national criminal history record information as a result of the rule action. The cost of obtaining this information would have had to be paid either by school districts or small businesses and/or microbusinesses and/or individual independent contractors. The estimated costs for criminal history record information reviews for these "non-covered" contract employees would be $600,000 for fiscal year 2009 and $200,000 each year for fiscal years 2010-2013. An estimated total savings of $1.4 million over the next five fiscal years is anticipated as a result of the adopted rule action's clarification of contract employees who are not required by statute to obtain criminal history record information reviews.

PUBLIC AND STUDENT BENEFIT:

The public and student benefit anticipated as a result of the rule action will be the implementation of the legislative mandate to obtain national criminal histories on covered school contractor employees, resulting in a safer school environment for both students and educators.

PROCEDURAL AND REPORTING IMPLICATIONS:

The rule action will not have any TEA reporting requirements, as the TEA will not receive or review the required criminal history record information. The TEC, §22.0834, already requires school districts and school contractors to obtain this information and requires the Texas Department of Public Safety to report that which is national criminal history record information through a clearinghouse. The proposed rule action will not add any additional procedural or reporting requirements and will, in fact, reduce those requirements by clarifying which school contractors are not subject to a criminal history record information review.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:

The rule action will not add any additional locally maintained paperwork requirements and should actually decrease procedural and reporting requirements as previously described.

PUBLIC COMMENTS:

The public comment period began May 23, 2008, and ended June 22, 2008. In addition, a timely request for public hearing was filed with the commissioner of education. As provided by the Administrative Procedure Act, a public hearing was held on June 27, 2008, in Austin, Texas, to receive public comment on the proposed amendment to 19 TAC Chapter 153, School District Personnel, Subchapter DD, Criminal History Record Information Review, §153.1101, Definitions, and new 19 TAC §153.1117, School Contractor Employees. A summary of the public comments received during the comment period, including those received at the public hearing, and corresponding agency responses can be found in Attachment IV.

ALTERNATIVES:

None.

OTHER COMMENTS AND RELATED ISSUES:

None.

Staff Members Responsible:

Karen Loonam, Deputy Associate Commissioner, Educator Certification and Standards
Doug Phillips, Director, Investigations
Andrew Allen, Assistant Counsel, Educator Quality and Standards

For additional information, email rules@tea.state.tx.us.

Page last modified on 8/30/2011.