HB 3 FAQ: Reporting Misconduct and the “Do Not Hire” Registry

Through passage of House Bill (HB) 3, the Texas Legislature continues to prioritize the safety and welfare of Texas students by refining reporting requirements for educator misconduct and creating a “Do Not Hire” registry for individuals ineligible for hire in Texas schools based on misconduct or criminal history. Key legislative changes address the misconduct of non-certified employees working in school entities, such as ISDs and charter schools, and the district’s responsibility for monitoring and using the new registry in the hiring process.

Q: What Key Changes Happened in the 86th Legislature?

A: Effective September 1, 2019, Article 2A of HB 3 requires the following:

• School entities must report certain allegations against non-certified employees to trigger an investigation by the Texas Education Agency (TEA), which now has authority to conduct investigations into non-certified employees.
• TEA must develop a registry of individuals not eligible for employment due to findings of misconduct and school entities must terminate or refuse to hire anyone on the registry once it’s in effect.

Q: What Are the Requirements for Reporting Misconduct?

A: A superintendent or director of schools must make a report to TEA if an educator has a reported criminal history or if educator misconduct results in termination or resignation. The report must be made within seven business days to TEA. With HB 3 updates, no changes were made to the current reporting requirement for certified educators.

As of September 1, 2019, HB 3 requires a report when any non-certified employee resigns or is terminated and there is evidence the employee abused or otherwise committed an unlawful act with a student or minor, was involved in a romantic relationship with a student or minor, or solicited or engaged in sexual contact with a student or minor. The report must be in writing and submitted according to reporting guidelines.

Based on other recent legislation, reporting is not required if a superintendent or director of schools completes an investigation before the certified educator’s resignation or termination and determines the certified educator did not engage in the alleged misconduct of abusing or committing an unlawful act with a student or minor, was not involved in a romantic relationship with a student or minor, or did not engage in sexual conduct with a student or minor. While reporting isn’t required after an investigation finds no misconduct, there are no penalties for a district that reports an allegation of misconduct before an investigation is completed.

Q: What Is the Seven-Day Rule for Reporting?

A: Texas Education Code (TEC) §21.006 requires certain school administrators to report certified educators to the State Board for Educator Certification (SBEC) when the employee resigns or is terminated for misconduct. Specific requirements are:

• Principals are required to report to superintendents within seven business days of an employee resigning or being terminated following an alleged incident of misconduct or knowing about a criminal record.
• Superintendents must report to the commissioner within seven business days after the superintendent received a report from a principal or otherwise knows that the employee has resigned or been terminated due to an alleged incident of misconduct or a reported criminal record.
• The superintendent must complete the investigation of misconduct regardless of the resignation.  
• Regardless of whether an educator resigns or is terminated, an administrator with reporting duties must inform SBEC if an educator engaged in conduct that violated the assessment instrument security procedures established under Texas Education Code § 39.0301.

Failure to report in accordance with requirements could subject the administrator to sanctions by SBEC and to possible criminal liability. Beginning September 1, 2019, reporting requirements expand to include non-certified employees who resign or are terminated due to an alleged incident of certain misconduct.

Q:  Where Does a Superintendent Send Reports for Misconduct?

A: At this time, the law requires some reports of misconduct to be submitted to the commissioner and others to be reported to the SBEC. To simplify the reporting process, schools should send all reports to the TEA Division of Educator Investigations. Reports can be sent by mail or fax, but not email. The division’s contact information can be found in the above link or on the TEA website.

In early 2020, TEA will launch an online portal for reporting incidents of misconduct for both certified and non-certified staff. More information about online reporting will come once TEA establishes the portal.

Q: What Do School Entities Need To Know About the “Do Not Hire” Registry?

A: HB 3 requires TEA to develop a registry of persons ineligible to work in public schools based on misconduct or criminal history [TEC §22.092]. The registry will be available to schools through an internet portal, and any school district, district of innovation, open enrollment charter school, other charter entity, education service center, or shared service arrangement must access the portal to determine if a potential employee is eligible for hire.

The list of individuals on the registry will include:

• Any person who had an SBEC certificate previously revoked for abusing or committing an unlawful act with a student or minor, being involved in a romantic relationship with or soliciting or engaging in sexual contact with a student or minor.
• Any non-certified employee found by the commissioner to have abused or otherwise committed an unlawful act with a student or minor, or have been involved in a romantic relationship with, or solicited or engaged in sexual contact with a student or minor.
• Any person that TEA determines is not eligible for employment or certification due to criminal history.

TEA will investigate reports of misconduct. Placement of individuals on the registry is at the discretion of TEA once an allegation is investigated and adjudicated. Once the registry is active, public and private schools must check the registry before hiring potential employees. TEA advises districts to create procedures to periodically check current employees against the registry to ensure appropriate records are maintained and address any issues with current employees.

Q: Who Will Have Access to the “Do Not Hire” Registry?

A: According to TEA, public and private school entities will have full access to the registry once it is launched in early 2020. The registry will have detailed information for school entities and a public face for parents and community members. Access to the registry for non-school individuals will be limited to name-based checks, while school entities will be able to check employee backgrounds based on specific identifiers in the employee profile.

Q: What Is the Implementation Timeline for the Legislative Requirements for Reporting Misconduct and the “Do Not Hire Registry”?

A: According to TEA, the timeline for implementation is as follows:

• July/August 2019: TEA begins the rulemaking process and development of the registry and reporting portal
• September 2019: Schools begin reporting allegations against non-certified individuals and TEA begins investigation of non-certified individuals; TAC §153 rules proposed
• October 2019: TAC §249 rules proposed at SBEC meeting
• November 2019: TEA continues to work on registry development
• December 2019: TEA provides school entities with training resources for the registry
• January/February 2020: rulemaking process finalized and anticipated launch of the registry and portal

Q: What Should School Entities Do Now To Address HB 3 Requirements?

A: School entities should continue the same investigation and reporting procedures created for certified educators by extending the process to non-certified employees. The seven-day reporting timeline required of principals and superintendents still applies, and reports are required to be sent to TEA. A sample form is available in the HR Library.

Upon launch of the registry in early 2020, school entities should create procedures for checking the registry portal before hiring potential employees. They must also take action to terminate employment of anyone listed on the registry who is currently employed. School entities need to create a system to periodically check current employees against the registry and address any issues that may arise with current employees. TEA has said they’re working to create an electronic method for districts to use to check the portal periodically for current employees.

Updates will be provided as TEA completes the rule-making process for HB 3 changes. More information is available on the TEA HB 3 website.