85R1843 GCB-D     By: Dale H.B. No. 218       A BILL TO BE ENTITLED   AN ACT   relating to improper relationships between educators and students;   creating a criminal offense and expanding the applicability of an   existing offense.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 21.12, Penal Code, is amended by   amending Subsection (a) and adding Subsection (e) to read as   follows:          (a)  An employee of a public or private primary or secondary   school commits an offense if the employee:                (1)  engages in sexual contact, sexual intercourse, or   deviate sexual intercourse with a person who is enrolled in a public   or private primary or secondary school at which the employee works;                (2)  holds a position described by Section 21.003(a) or   (b), Education Code, regardless of whether the employee holds the   appropriate certificate, permit, license, or credential for the   position, [a certificate or permit issued as provided by Subchapter   B, Chapter 21, Education Code, or is a person who is required to be   licensed by a state agency as provided by Section 21.003(b),   Education Code,] and engages in sexual contact, sexual intercourse,   or deviate sexual intercourse with a person the employee knows is[:                      [(A)]  enrolled in a public or private primary or   secondary school other than a school described by Subdivision (1)    [in the same school district as the school at which the employee   works; or                      [(B)     a student participant in an educational   activity that is sponsored by a school district or a public or   private primary or secondary school, if:                            [(i)     students enrolled in a public or   private primary or secondary school are the primary participants in   the activity; and                            [(ii)     the employee provides education   services to those participants]; or                (3)  engages in conduct described by Section 33.021,   with a person described by Subdivision (1), or a person the employee   knows is a person described by Subdivision (2) [(2)(A) or (B)],   regardless of the age of that person.          (e)  With the consent of the appropriate local county or   district attorney, the attorney general has concurrent   jurisdiction with that consenting local prosecutor to prosecute an   offense under this section.          SECTION 2.  Article 42.018(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  This article applies only:                (1)  to conviction or deferred adjudication granted on   the basis of[:                      [(A)] an offense under Title 5, Penal Code,[; or                      [(B) an offense on conviction of which a defendant   is required to register as a sex offender under Chapter 62; and                [(2)] if the victim of the offense is under 18 years of   age; or                (2)  to an offense for which a conviction or grant of   deferred adjudication requires the defendant to register as a sex   offender under Chapter 62.          SECTION 3.  Section 21.006, Education Code, is amended by   amending Subsections (b), (b-1), (c), (e), and (f) and adding   Subsections (c-1) and (i) to read as follows:          (b)  In addition to the reporting requirement under Section   261.101, Family Code, the superintendent or director of a school   district, open-enrollment charter school, regional education   service center, or shared services arrangement or the principal of   a school district or open-enrollment charter school campus shall   notify the State Board for Educator Certification if:                (1)  an educator employed by or seeking employment by   the district, school, service center, or shared services   arrangement has a criminal record and the district, school, service   center, or shared services arrangement obtained information about   the educator's criminal record by a means other than the criminal   history clearinghouse established under Section 411.0845,   Government Code;                (2)  an educator's employment at the district, school,   service center, or shared services arrangement was terminated and   there is [based on] evidence that the educator:                      (A)  abused or otherwise committed an unlawful act   with a student or minor;                      (A-1)  was involved in a romantic relationship   with or solicited or engaged in sexual contact with a student or   minor;                      (B)  possessed, transferred, sold, or distributed   a controlled substance, as defined by Chapter 481, Health and   Safety Code, or by 21 U.S.C. Section 801 et seq.;                      (C)  illegally transferred, appropriated, or   expended funds or other property of the district, school, service   center, or shared services arrangement;                      (D)  attempted by fraudulent or unauthorized   means to obtain or alter a professional certificate or license for   the purpose of promotion or additional compensation; or                      (E)  committed a criminal offense or any part of a   criminal offense on school property or at a school-sponsored event;                (3)  the educator resigned and there is evidence that   the educator engaged in misconduct described by Subdivision (2); or                (4)  the educator engaged in conduct that violated the   assessment instrument security procedures established under   Section 39.0301.          (b-1)  A superintendent or director of a school district or   open-enrollment charter school or a principal of a school district   or open-enrollment charter school campus shall complete an   investigation of an educator that involves [is based on] evidence   that the educator may have engaged in misconduct described by   Subsection (b)(2)(A) or (A-1), despite the educator's resignation   from district or school employment before completion of the   investigation.          (c)  The superintendent or director, except as otherwise   provided by Subsection (c-1), or the principal must notify the   State Board for Educator Certification by filing a report with the   board not later than the seventh day after the date the   superintendent, [or] director, or principal knew or should have   known about an educator's [employee's] criminal record under   Subsection (b)(1) or a termination of employment or resignation   following an alleged incident of misconduct described by Subsection   (b). The report must be:                (1)  in writing; and                (2)  in a form prescribed by the board.          (c-1)  A principal of a school district or open-enrollment   charter school campus who files a report under Subsection (c) must   notify the superintendent of the district or the director of the   school, as applicable, about the filing of the report. A   superintendent or director who is notified that a principal   employed by the district or school has filed a report under   Subsection (c) is not required to file a report concerning the   criminal record or alleged incident of misconduct addressed in the   principal's report.          (e)  A superintendent, [or] director, or principal who in   good faith and while acting in an official capacity files a report   with the State Board for Educator Certification under this section   is immune from civil or criminal liability that might otherwise be   incurred or imposed.          (f)  The State Board for Educator Certification shall   determine whether to impose sanctions against a superintendent,   [or] director, or principal who fails to file a report in violation   of Subsection (c).          (i)  A superintendent, director, or principal required to   file a report under Subsection (c) commits an offense if the   superintendent, director, or principal knowingly fails to file the   report by the date required by that subsection. An offense under   this subsection is a Class A misdemeanor, except that the offense is   a state jail felony if it is shown on the trial of the offense that   the superintendent, director, or principal intended to conceal an   educator's criminal record or alleged incident of misconduct.          SECTION 4.  Subchapter A, Chapter 21, Education Code, is   amended by adding Section 21.0061 to read as follows:          Sec. 21.0061.  NOTICE TO PARENT OR GUARDIAN ABOUT EDUCATOR   MISCONDUCT. (a) The board of trustees or governing body of a   school district, open-enrollment charter school, regional   education service center, or shared services arrangement shall   adopt a policy under which notice is provided to the parent or   guardian of a student with whom an educator is alleged to have   engaged in misconduct described by Section 21.006(b)(2)(A) or (A-1)   informing the parent or guardian:                (1)  that the alleged misconduct occurred;                (2)  whether the educator was terminated following an   investigation of the alleged misconduct or resigned before   completion of the investigation; and                (3)  whether a report was submitted to the State Board   for Educator Certification concerning the alleged misconduct.          (b)  The policy required by this section must require that   information specified by Subsection (a)(1) be provided as soon as   feasible after the employing entity becomes aware that alleged   misconduct may have occurred.          SECTION 5.  Subchapter A, Chapter 21, Education Code, is   amended by adding Section 21.009 to read as follows:          Sec. 21.009.  PRE-EMPLOYMENT AFFIDAVIT. (a) An applicant for   a position described by Section 21.003(a) or (b) with a school   district, open-enrollment charter school, regional education   service center, or shared services arrangement must submit, using a   form adopted by the agency, a pre-employment affidavit disclosing   whether the applicant has ever been charged with, accused of,   adjudicated for, or convicted of having an inappropriate   relationship with a minor.          (b)  An applicant who answers affirmatively concerning an   inappropriate relationship with a minor must disclose in the   affidavit all relevant facts pertaining to the charge, accusation,   adjudication, or conviction, including, for a charge or accusation,   whether the charge or accusation was determined to be true or false.          (c)  An applicant is not precluded from being employed based   on a disclosed charge or accusation if the employing entity   determines based on the information disclosed in the affidavit that   the charge or accusation was false.          (d)  A determination that an employee failed to disclose   information required to be disclosed by an applicant under this   section is grounds for termination of employment.          (e)  The State Board for Educator Certification may revoke   the certificate of an administrator if the board determines it is   reasonable to believe that the administrator employed an applicant   for a position described by Section 21.003(a) or (b) despite being   aware that the applicant had been adjudicated for or convicted of   having an inappropriate relationship with a minor.          SECTION 6.  Sections 21.054(d) and (e), Education Code, are   amended to read as follows:          (d)  Continuing education requirements for a classroom   teacher must provide that not more than 25 percent of the training   required every five years include instruction regarding:                (1)  collecting and analyzing information that will   improve effectiveness in the classroom;                (2)  recognizing early warning indicators that a   student may be at risk of dropping out of school;                (3)  integrating technology into classroom   instruction; [and]                (4)  educating diverse student populations, including:                      (A)  students with disabilities, including mental   health disorders;                      (B)  students who are educationally   disadvantaged;                      (C)  students of limited English proficiency; and                      (D)  students at risk of dropping out of school;   and                (5)  understanding appropriate relationships,   boundaries, and communications between educators and students.          (e)  Continuing education requirements for a principal must   provide that not more than 25 percent of the training required every   five years include instruction regarding:                (1)  effective and efficient management, including:                      (A)  collecting and analyzing information;                      (B)  making decisions and managing time; and                      (C)  supervising student discipline and managing   behavior;                (2)  recognizing early warning indicators that a   student may be at risk of dropping out of school;                (3)  integrating technology into campus curriculum and   instruction; [and]                (4)  educating diverse student populations, including:                      (A)  students with disabilities, including mental   health disorders;                      (B)  students who are educationally   disadvantaged;                      (C)  students of limited English proficiency; and                      (D)  students at risk of dropping out of school;   and                (5)  preventing, recognizing, and reporting any sexual   conduct between an educator and student that is prohibited under   Section 21.12, Penal Code, or for which reporting is required under   Section 21.006.          SECTION 7.  The heading to Section 21.058, Education Code,   is amended to read as follows:          Sec. 21.058.  REVOCATION OF CERTIFICATE AND TERMINATION OF   EMPLOYMENT BASED ON CONVICTION OF OR DEFERRED ADJUDICATION FOR   CERTAIN OFFENSES.          SECTION 8.  Sections 21.058(a) and (b), Education Code, are   amended to read as follows:          (a)  The procedures described by Subsections (b) and (c)   apply only[:                [(1)]  to conviction or deferred adjudication granted   on the basis of:                (1)  a felony offense under Title 5, Penal Code, [or an   offense on conviction of which a defendant is required to register   as a sex offender under Chapter 62, Code of Criminal Procedure; and                [(2)]  if the victim of the offense is under 18 years of   age; or                (2)  an offense for which a defendant is required to   register as a sex offender under Chapter 62, Code of Criminal   Procedure.          (b)  Notwithstanding Section 21.041(b)(7), not later than   the fifth day after the date the board receives notice under Article   42.018, Code of Criminal Procedure, of the conviction of or grant of   deferred adjudication to a person who holds a certificate under   this subchapter, the board shall:                (1)  revoke the certificate held by the person; and                (2)  provide to the person and to any school district or   open-enrollment charter school employing the person at the time of   revocation written notice of:                      (A)  the revocation; and                      (B)  the basis for the revocation.          SECTION 9.  Subchapter B, Chapter 21, Education Code, is   amended by adding Section 21.0581 to read as follows:          Sec. 21.0581.  REVOCATION FOR ASSISTING PERSON WHO ENGAGED   IN SEXUAL MISCONDUCT OBTAIN EMPLOYMENT. (a)  The board may suspend   or revoke a certificate held by a person under this subchapter,   impose other sanctions against the person, or refuse to issue a   certificate to the person under this subchapter if:                (1)  the person assists another person in obtaining   employment at a school district or open-enrollment charter school,   other than by the routine transmission of administrative and   personnel files; and                (2)  the person knew or should have known that the other   person has previously engaged in sexual misconduct with a minor or   student in violation of the law.          (b)  The board may require a school district to revoke or   decline to issue a school district teaching permit under Section   21.055 issued to or requested by a person subject to board action   under Subsection (a).          SECTION 10.  Section 21.062(a), Education Code, is amended   to read as follows:          (a)  During an investigation by the commissioner of an   educator for an alleged incident of misconduct, the commissioner   may issue a subpoena to compel:                (1)  the attendance of a relevant witness; or                (2)  the production, for inspection or copying, of   relevant evidence that is located in this state.          SECTION 11.  Section 21.355, Education Code, is amended by   amending Subsection (a) and adding Subsections (d) and (e) to read   as follows:          (a)  A document evaluating the performance of a teacher or   administrator is confidential and is not subject to disclosure   under Chapter 552, Government Code.          (d)  A school district or open-enrollment charter school may   give the agency a document evaluating the performance of a teacher   or administrator employed by the district or school.          (e)  Notwithstanding Subsection (a) and except as otherwise   provided by a court order prohibiting disclosure, a document   provided to the agency under Subsection (d) may be used in a   disciplinary proceeding against a teacher or administrator based on   a report submitted under Section 21.006 concerning an alleged   incident of misconduct.          SECTION 12.  Subchapter A, Chapter 38, Education Code, is   amended by adding Section 38.027 to read as follows:          Sec. 38.027.  ELECTRONIC COMMUNICATION POLICY. (a) In this   section, "electronic communication" means any communication   facilitated by the use of any electronic device, including a   telephone, cellular telephone, computer, computer network,   personal data assistant, or pager. The term includes e-mails, text   messages, instant messages, and any communications made through an   Internet website, including a social media website or a social   networking website.          (b)  A school district shall adopt a written policy   concerning electronic communications between a school employee and   a student enrolled in the district.          (c)  The policy adopted under this section must include   provisions designed to prevent improper electronic communications   between a school employee and a student.          SECTION 13.  Section 39.057(a), Education Code, is amended   to read as follows:          (a)  The commissioner may authorize special accreditation   investigations to be conducted:                (1)  when excessive numbers of absences of students   eligible to be tested on state assessment instruments are   determined;                (2)  when excessive numbers of allowable exemptions   from the required state assessment instruments are determined;                (3)  in response to complaints submitted to the agency   with respect to alleged violations of civil rights or other   requirements imposed on the state by federal law or court order;                (4)  in response to established compliance reviews of   the district's financial accounting practices and state and federal   program requirements;                (5)  when extraordinary numbers of student placements   in disciplinary alternative education programs, other than   placements under Sections 37.006 and 37.007, are determined;                (6)  in response to an allegation involving a conflict   between members of the board of trustees or between the board and   the district administration if it appears that the conflict   involves a violation of a role or duty of the board members or the   administration clearly defined by this code;                (7)  when excessive numbers of students in special   education programs under Subchapter A, Chapter 29, are assessed   through assessment instruments developed or adopted under Section   39.023(b);                (8)  in response to an allegation regarding or an   analysis using a statistical method result indicating a possible   violation of an assessment instrument security procedure   established under Section 39.0301, including for the purpose of   investigating or auditing a school district under that section;                (9)  when a significant pattern of decreased academic   performance has developed as a result of the promotion in the   preceding two school years of students who did not perform   satisfactorily as determined by the commissioner under Section   39.0241(a) on assessment instruments administered under Section   39.023(a), (c), or (l);                (10)  when excessive numbers of students eligible to   enroll fail to complete an Algebra II course or any other advanced   course as determined by the commissioner;                (11)  when resource allocation practices as evaluated   under Section 39.0821 indicate a potential for significant   improvement in resource allocation;                (12)  when a disproportionate number of students of a   particular demographic group is graduating with a particular   endorsement under Section 28.025(c-1);                (13)  when an excessive number of students is   graduating with a particular endorsement under Section   28.025(c-1);                (14)  in response to a complaint submitted to the   agency with respect to alleged inaccurate data that is reported   through the Public Education Information Management System (PEIMS)   or through other reports required by state or federal law or rule or   court order and that is used by the agency to make a determination   relating to public school accountability, including accreditation,   under this chapter; [or]                (15)  when a school district for any reason fails to   produce, at the request of the agency, evidence or an investigation   report relating to an educator who is under investigation by the   State Board for Educator Certification; or                (16)  as the commissioner otherwise determines   necessary.          SECTION 14.  The change in law made by this Act to Section   21.12, Penal Code, applies only to an offense committed on or after   the effective date of this Act. An offense committed before the   effective date of this Act is governed by the law in effect on the   date the offense was committed, and the former law is continued in   effect for that purpose. For purposes of this section, an offense   was committed before the effective date of this Act if any element   of the offense was committed before that date.          SECTION 15.  This Act takes effect September 1, 2017.