Current through Reg. 49, No. 38; September 20, 2024
(a) Each facility, local authority, community
center, and provider must conduct:
(1) a
pre-employment criminal history and registry clearance of all applicants (as
defined) for employment; and
(2) a
pre-assignment criminal history and registry clearance of all applicants for
volunteer status.
(b) A
provider that is required to conduct criminal history and registry clearances
in accordance with the Texas Health and Safety Code, Chapter 250, must provide
evidence of compliance with that law to the facility, local authority, or
community center with which it contracts.
(c) For professional clinical interns, a
written agreement must exist between the facility, local authority, or
community center and the university/college. The written agreement must
include:
(1) a statement that responsibility
for the care of consumers is retained by the facility, local authority, or
community center;
(2) a statement
that background checks of professional clinical interns must ensure compliance
with subsection (d) of this section; and
(3) a description of how background checks of
professional clinical interns will be conducted and funded.
(d) The following individuals may
not be employed by, assigned volunteer status at, or serve as a professional
clinical intern at, a facility, local authority, community center, or provider:
(1) an individual who has been convicted of
any of the criminal offenses listed in subsection (g) of this
section;
(2) an individual who has
been convicted of a criminal offense that the facility, local authority,
community center, or provider has determined to be a contraindication to
employment or volunteer status at that entity;
(3) an individual who is listed as revoked in
the Nurse Aide Registry; or
(4) an
individual who is listed as unemployable in the Employee Misconduct
Registry.
(e) The
facility, local authority, community center, or provider must inform applicants
in writing at the time that application is made of the following:
(1) that a pre-employment/pre-assignment
criminal history and registry clearance will be conducted;
(2) the types of criminal offenses for which
a conviction would bar employment or volunteer status as required by
law;
(3) that conviction of other
types of criminal offenses may be considered a contraindication to employment
or volunteer status at that entity; and
(4) that being listed as revoked in the Nurse
Aide Registry or being listed as unemployable in the Employee Misconduct
Registry would bar employment or volunteer status.
(f) An applicant who is not listed as revoked
in the Nurse Aide Registry and who is not listed as unemployable in the
Employee Misconduct Registry may be employed on a temporary or interim basis
pending a criminal history clearance if an emergency exists in which there is a
risk to the health and safety of consumers as a result of unfilled positions or
in which the operations of the organization are severely impaired as determined
by the chief executive officer of the facility, local authority, community
center, or provider.
(1) The applicant must
furnish the employer with an affidavit stating that the applicant has not been
convicted of any of the criminal offenses listed in subsection (g) of this
section or any criminal offense that the employer has determined is a
contraindication to employment. The affidavit will be kept in the applicant's
file. A sample affidavit may be obtained by contacting Human Resource Services,
TDMHMR, P.O. Box 12668, Austin, Texas 78711-2668.
(2) Within 72 hours of the time the person is
employed on a temporary or interim basis, the facility, local authority,
community center, or provider must initiate a criminal history clearance of
that person as described in §
414.505
of this title (relating to Obtaining or Requesting Criminal History Record
Information and Checking Registry).
(3) If the criminal history record
information reveals a conviction for any of the criminal offenses listed in
subsection (g) of this section or for any criminal offense that the employer
has determined is a contraindication to employment, then the facility, local
authority, community center, or provider must immediately discharge the person
as unemployable.
(4) An applicant
may not receive volunteer assignment on a temporary or interim basis pending a
criminal history clearance.
(g) Consistent with the Texas Health and
Safety Code, §
250.006,
convictions of criminal offenses which constitute an absolute bar to employment
are:
(1) criminal homicide (Penal Code,
Chapter 19);
(2) kidnapping and
unlawful restraint (Penal Code, Chapter 20);
(3) indecency with a child (Penal Code,
§
21.11);
(4) sexual assault (Penal Code, §
22.011);
(5) aggravated assault (Penal Code, §
22.02);
(6) injury to a child, elderly individual, or
disabled individual (Penal Code, §
22.04);
(7) abandoning or endangering a child (Penal
Code, §
22.041);
(8) aiding suicide (Penal Code, §
22.08);
(9) agreement to abduct from custody (Penal
Code, §
25.031);
(10) sale or purchase of a child (Penal Code,
§
25.08);
(11) arson (Penal Code, §
28.02);
(12) robbery (Penal Code, §
29.02);
(13) aggravated robbery (Penal Code, §
29.03);
(14) a conviction under the laws of another
state, federal law, or the Uniform Code of Military Justice for an offense
containing elements that are substantially similar to the elements of an
offense listed under paragraphs (1) - (13) of this subsection; and
(15) a conviction which occurred within the
previous five years for:
(A) assault that is
punishable as a Class A misdemeanor or as a felony (Penal Code, §
22.01);
(B) burglary (Penal Code, §
30.02);
(C) theft that is punishable as a felony
(Penal Code, Chapter 31);
(D)
misapplicateion of fiduciary property or property of a financial institution
that is punishable as a Class A misdemeanor or felony (Penal Code, §
32.45);
or
(E) securing execution of a
document by deception that is punishable as a Class A misdemeanor or a felony
(Penal Code, §
32.46).
