July 4, 2017
RE: Senate Bill 7 Relating to Improper Relationships Between Educators and Students
Dear School Administrators:
On May 26, 2017, Governor Greg Abbott signed Senate Bill 7 (SB7) into law. Notably, SB7 amends the Education Code and makes various conforming amendments to provisions in the Code of Criminal Procedure, Government Code and Penal Code. Importantly, SB7 amends and adds to existing laws relating to improper relationships between educators and students. These amendments have potentially adverse consequences for various administrative and other personnel beyond the superintendent. In this advisory we discuss the more significant changes to existing law and how SB7 will affect your school.
Amendments to Education Code
Through SB7 the Texas Legislature amended Sections 21.006, 21.044, 21.054, 21.058, 21.062, 21.355 and 39.057 of the Tex. Ed. Code and added Sections 21.0581, 21.0061, 21.009 and 38.027 to the Tex. Ed. Code. Notably, the Legislature added the following requirements to state law.(1) Pursuant to §21.0581, the State Board of Educator Certification (SBEC) may suspend or revoke an educator’s certification, impose other sanctions against the educator, or refuse to issue a certificate if the educator assists another person in obtaining employment at a school district or open-enrollment charter school and the certificate holder knew that the other person has previously engaged in sexual misconduct with a minor or student in violation of the law. Additionally, the commissioner of education may require a school district to revoke or decline to issue a teaching permit issued to or requested by a person subject to an action by SBEC under §21.0581.
(2) Pursuant to §21.0061, the board of trustees or other governing body is required to adopt a policy for providing a notice to the parent or guardian of a student with whom an educator is alleged to have engaged in an abusive or unlawful misconduct or to have been involved romantically or sexually.
Through the policy, the board must require that the notice:
Through the policy, the board must require that the notice:
(a) Be provided as soon as feasible after the employing entity becomes aware that alleged misconduct may have occurred; and
(b) Inform the parent or guardian:
(i) that the alleged misconduct occurred;
(ii) whether the educator was terminated following an investigation of the alleged misconduct or resigned before completion of the investigation; and
(iii) whether a report was submitted to SBEC concerning the alleged misconduct.
(3) Pursuant to §21.009, individuals seeking the following types of employment are required to submit a pre-employment affidavit disclosing whether the applicant has ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor.
Associate school psychologist
Licensed professional counselor
Marriage and family therapist
Speech language pathologist
Teacher intern or teacher trainee
In the event that an applicant discloses that they were charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor, the applicant must also disclose all relevant facts pertaining to the charge, adjudication, or conviction, including, for a charge, whether the charge was determined to be true or false. If the applicant fails to disclose any required information, the school may use this fact as grounds for termination of employment.
Importantly, under §21.009, SBEC may revoke an administrator’s certification if SBEC determines it is reasonable to believe that the administrator employed an applicant for any of the positions identified above despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor.
(4) Pursuant to §38.027, school districts are required to adopt a written policy concerning electronic communications between an employee and a student that:
(a) Includes provisions designed to prevent improper electronic communications between an employee and a student;
(b) Allows an employee to elect to not disclose to students the employee ’s personal telephone number or e-mail address; and
(c) Includes provisions instructing an employee about the proper method for notifying appropriate local administrators about an incident in which a student engages in improper communications with the employee.
In addition to the new sections of law identified above, the 85th Texas Legislature amended various existing statutes. Significantly, the following laws were changed to include additional and clarifying statutory language.
(5) As amended, §21.006 requires the superintendent (or equivalent) to notify SBEC when an educator’s employment is terminated and there is evidence that the educator abused or otherwise committed an unlawful act with a minor or was involved in a romantic relationship with or solicited or engaged in sexual contact with a student or minor. Additionally, the superintendent (or equivalent) is required to complete an investigation of an educator that involves evidence that the educator may have engaged in the misconduct described above, even if the educator resigns. Whereas before the standard was that the notification to SBEC and the completion of the investigation was to be based on evidence of educator misconduct, now the standard has been lowered to the existence of evidence of educator misconduct. In other words, if evidence (e.g., outcry by student) exists that an educator abused or otherwise committed an unlawful act with a minor or was involved in a romantic relationship with or solicited or engaged in sexual contact with a student or minor, the superintendent (or equivalent) must notify SBEC and complete the investigation of the alleged educator’s misconduct.
Under prior law, campus principals did not have a role in the requirements described above. However, under §21.006, as amended by SB7, a principal is now required to notify the superintendent of an allegation of educator misconduct.
As amended, §21.006 applies immunity from civil or criminal liability to superintendents and principals who in good faith and while acting in an official capacity report to SBEC or communicate with other superintendents, directors, or principals concerning an educator’s criminal record or alleged incident of misconduct.
Under SB7, SBEC is authorized to apply sanctions, including the levy of an administrative penalty, in the event that a superintendent or principal fails to provide the required notice. If an administrative penalty is levied but not paid, SBEC is prohibited from renewing the educator’s certifications until the penalty is paid. Moreover, a superintendent or principal commits a state jail felony if he/she fails to provide the required notice by the required date and if his/her failure occurred with the intent to conceal an educator’s alleged misconduct.
As amended, §21.006 applies to school districts, open-enrollment charter schools, districts of innovation, regional education service centers and shared services arrangements.
(6) As amended, §21.054 requires the continuing education for classroom teachers to now include instructions regarding understanding appropriate relationships, boundaries, and communications.
As amended, §21.054 now requires the continuing education for principals to include instruction regarding preventing, recognizing, and reporting any sexual conduct between an educator and student that is prohibited under §21.12, Penal Code, or for which reporting is required under §21.006 of the Education Code.
(7) As amended, §21.355 allows a school district or charter school to provide an educator’s evaluation to the Texas Education Agency (TEA). However, the document would remain confidential.
(8) As amended, §39.057 authorizes the commissioner of education to conduct a special accreditation investigation of a school district or charter school when the district or charter fails, for any reason, to provide to the TEA, upon request, evidence or the investigative report relating to an educator being investigated by SBEC.
The Legislature also made other conforming changes to the Education Code through SB7.
Changes to Other Codes
Of significance, through SB7 the Texas Legislature amended Section 21.12 of the Penal Code by clarifying that any employee serving in the capacities identified above (see bullet (3)) are subject to the prohibition on improper employee and student relationships, regardless of whether the employee holds the required qualification (e.g., SBEC certification). Also, §21.12 is amended to apply to any employee involved in an improper relationship with a student who the employee knows is enrolled in any public or private primary or secondary school.
The Legislature also amended Subchapter A, Chapter 824 of the Government Code by adding §824.009 under which the Teacher Retirement System of Texas (TRS) may revoke a person’s eligibility for full pension annuity payments if: (a) the person is convicted of sexual misconduct or an improper relationship with a minor student; (b) the offense arises from the person's employment as an educator; or (c) the offense is punishable as a felony. If an educator employed by a school district or charter school is convicted of an offense subject to the amendments of law adopted under SB7, the district or charter must notify TRS of the conviction in writing.
The 85th Texas Legislature also made other conforming changes to the Code of Criminal Procedure, Government Code and Penal Code through SB7.
School districts, open-enrollment charter schools, districts of innovation, regional education service centers and shared services arrangements should amend their board policies to address the new legal requirements adopted under SB7 for electronic communications, parent or guardian notifications, superintendent and principal reporting of educator misconduct, and the completion of the investigation of alleged educator misconduct. Additionally, board members and administrators should modify existing policies and administrative procedures to include additional local requirements to ensure that the various other legal requirements adopted under SB7 are properly addressed. Lastly, central office and campus administrators and staff should be properly trained on the new legal requirements adopted under SB7 and the new board policies and administrative procedures adopted to implement SB7.
Should you have questions concerning Senate Bill 7, particularly amendments to local policy, procedure and the employee handbook, please contact us.
Hoffer & Adelstein, LLP
Joseph E. Hoffer
 This legal requirement does not apply to the routine transmission of administrative and personnel files.
 The Texas Education Agency is required to adopt a standard form for the pre-employment affidavit.
 An applicant is not precluded from employment for disclosing a charge if, based on the information disclosed in the affidavit, the employing entity determines that the charge was false.
 While §38.027 specifically applies to school districts, adopting a §38.027 written electronic communications policy at a charter school will help prevent improper communications between school employees and students.
 As defined under SB7, "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.