April 2014 Committee on School Initiatives Item 3

Review of Proposed Amendment to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines,
§249.16, Eligibility of Persons with Criminal Convictions for a Certificate under
Texas Occupations Code, Chapter 53

April 11, 2014

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 action that would amend 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines, §249.16, Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53. The proposed amendment would be necessary as a result of House Bill (HB) 798, 83rd Texas Legislature, Regular Session, 2013, which amended the Texas Occupations Code (TOC), §53.021, to define the types of misdemeanor convictions that may be pursued under the TOC. The proposed amendment to 19 TAC §249.16 would align the requirements to conform with HB 798.

STATUTORY AUTHORITY:  The statutory authority for 19 TAC §249.16 is the Texas Education Code (TEC), §21.041(b)(7) and (8) and §21.060; and Texas Occupations Code, §53.021(a) and (a-1) and §53.025.

EFFECTIVE DATE:  The proposed effective date of the amendment to 19 TAC §249.16 would be May 18, 2014.

PREVIOUS BOARD ACTION:  None.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:  The TEC, §21.060, and the TOC, §53.021, provide the SBEC authority to suspend, revoke, or disqualify the certification of an educator on the basis of a criminal conviction.

In October 2007, an Attorney General opinion was requested by the commissioner of education regarding whether a proposed rule of the SBEC that related to certification eligibility of persons with criminal convictions was "preempted" by the TEC, §21.060. Subsequently, Attorney General Opinion No. GA-0614, issued April 7, 2008, ruled that the two provisions are nonexclusive. As a result, in 2009, 19 TAC §249.16 was amended to include subsection (d) to reflect that grounds under the TOC, Chapter 53, were cumulative of grounds and remedies under the TEC, §21.060.

The 83rd Texas Legislature (2013) enacted HB 798, which modified the TOC, §53.021. This legislation removes a licensing authority's power existing under that provision to sanction or withhold certification for convictions of Class C misdemeanors unless the person is an applicant for or holder of a license that authorizes the person to possess a firearm and the misdemeanor crime was domestic violence as defined by 18 United States Code, §921. Class C misdemeanors are punishable only by a fine not to exceed $500. The following describes the proposed amendment in response to HB 798.

The proposed amendment to 19 TAC §249.16, shown in Attachment II, would add subsection (b) to implement the requirements of HB 798 when exercising authority under the TOC, §53.021. Subsequent subsections would be re-lettered accordingly.

SBOE Review of Proposed SBEC Rules

Under the 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 rule by a vote of at least two-thirds of the members of the SBOE present and voting, but may not modify a rule. The rule takes effect as a rule of the SBEC if the SBOE fails to review the rule contained in this item by May 1, 2014, which is the 90th day after the date the SBOE first received this proposed rule.

FISCAL IMPACT:  The TEA staff has determined that there is no fiscal impact on state and local governments and there are no additional costs to persons or entities required to comply with the proposed amendment. In addition, 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 as a result of the proposed amendment to 19 TAC §249.16 would be aligning the SBEC rule with prevailing statutory authority.

PROCEDURAL AND REPORTING IMPLICATIONS:  The proposed amendment would have no procedural and reporting implications.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:  The proposed amendment would have no locally maintained paperwork requirements.

PUBLIC COMMENTS:  None.

ALTERNATIVES:  None.

OTHER COMMENTS AND RELATED ISSUES:  None.

MOTION TO BE CONSIDERED:  The State Board of Education:

Take no action on the proposed amendment to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines, §249.16, Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53.

Staff Members Responsible:
Michele Moore, Associate Commissioner
Educator Leadership and Quality

Merle Dover, Associate Deputy Counsel
Legal Services

Von Byer, Deputy General Counsel
Legal Services

Attachments:
I. Statutory Citations (PDF, 150KB)
II. Text of Proposed Amendment to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines, §249.16, Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53 (PDF, 15KB)