Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 3. TEXAS YOUTH COMMISSION

CHAPTER 81. INTERACTION WITH THE PUBLIC

37 TAC §81.81

The Texas Youth Commission proposes new §81.81, concerning Background Checks. The new section will require initial and annual background checks for employees, volunteers, contractors, advocates, ombudsmen, and certain other persons who deliver services to TYC youth or have access to youth records.

Robin McKeever, Chief Financial Officer, has determined that for the first five-year period the new section is in effect, there will be no significant fiscal impact for state or local government as a result of enforcing or administering the new section.

Leticia Peña-Martinez, Deputy Commissioner for Policy and Planning, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be increased protection of TYC youth and youth records due to a more comprehensive system of background checks for any person having contact with youth or access to youth records. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the new section as proposed. No private real property rights are affected by adoption of this rule.

Comments on the proposal may be submitted within 30 days of the publication of this notice to DeAnna Lloyd, Manager of Policy and Accreditation, Texas Youth Commission, P.O. Box 4260, Austin, Texas 78765, or email to deanna.lloyd@tyc.state.tx.us.

The new section is proposed under the Human Resources Code, §61.0357, which requires the commission to conduct national and state criminal history checks and review the employment history for certain persons who work in commission facilities or work with youth or youth records.

The proposed rule affects the Human Resources Code, §61.034.

§81.81.Background Checks.

(a) Policy. The Texas Youth Commission (TYC) reviews criminal histories and employment references for certain persons as required under §61.0357, Texas Human Resources Code.

(b) Applicability. This rule does not apply to:

(1) youth access to a personal attorney, minister, pastor, or religious counselor under §93.11 or §93.17 of this title (relating to Access to Attorneys and Courts and Access to Personal Minister, Pastor, or Religious Counselor);

(2) youth access to visitors under §93.12 of this title (relating to Visitation); or

(3) special event visitors, as defined in this rule.

(c) Definitions. The following terms, as used in this rule, have the following meanings unless the context clearly indicates otherwise:

(1) Advocate--means a person who is employed by or otherwise officially associated with an organization registered with TYC as an advocacy or support group under §81.83 of this title (relating to Advocacy and Support Group Access).

(2) Background Check--consists, at a minimum, of the following:

(A) Criminal History Check--includes national and state criminal history information maintained by the Department of Public Safety; and

(B) Employment Reference Check--includes references from previous and current employers.

(3) Contractor--means a person who is under contract with TYC individually or is an employee or subcontractor of an organization under contract with TYC.

(4) Covered Person--means:

(A) an employee, volunteer, ombudsman, advocate, or contractor, as defined in this rule;

(B) any person not described in paragraph (4)(A) of this subsection who provides direct delivery of services to youth whose current assignment is to a residential placement operated by or under contract with TYC when those services are provided at the request of TYC;

(C) any person not described in paragraph (4)(A) of this subsection who is authorized to have unsupervised access to records of identifiable TYC youth; or

(D) any person who is an applicant for a position described in paragraphs (4)(A) - (C) of this subsection.

(5) Employee--means a person who is employed by TYC.

(6) Ombudsman--means a person who is employed by the Office of Independent Ombudsman of the Texas Youth Commission.

(7) Special Event Visitor--means a person who:

(A) is invited by TYC to participate in a special event for the benefit of youth;

(B) does not participate in more than four special events in any 12-month period;

(D) does not have access to youth records; and

(E) does not meet the definition of advocate, contractor, employee, or ombudsman.

(8) Volunteer--means a person who is registered in a position that renders services for or on behalf of TYC that does not receive compensation in excess of reimbursement for expenses incurred. For purposes of this rule, "volunteer" does not include special event visitors.

(d) General Provisions.

(1) Except as described in paragraph (2) of this subsection, TYC's chief executive officer or his/her designee will:

(A) conduct a background check on each covered person prior to granting the person access to any residential facility operated by or under contract with TYC, youth, or youth records; and

(B) conduct a criminal history check on each covered person at least once per year thereafter.

(2) The TYC chief executive officer or designee may elect to waive the background check:

(A) for a contractor when physical or procedural barriers are in place to prevent the contractor from having contact with or access to TYC youth and the scope of services to be performed does not involve access to youth records;

(B) for a contractor who has an independent legal obligation to protect the confidentiality of youth records and the scope of services to be performed does not involve access to youth;

(C) for a covered person who provides direct delivery of off-site services to youth assigned to residential placements when the person is required to submit to a background check as a condition of professional licensure or employment (e.g., health care specialist referrals); or

(D) for a covered person providing necessary services in an emergency situation when no appropriately screened service providers offering the same or similar service are immediately available and a delay in providing the service would risk significant harm to a youth (e.g., emergency room visits or rape crisis counseling); or

(E) for a covered person providing services in his/her official capacity as an employee of a federal, state, or local governmental entity.

(3) TYC does not assess a fee in connection with the administrative costs incurred in conducting a background check as described in this rule.

(4) As part of the initial national criminal history background check, a covered person must electronically provide a complete set of fingerprints to TYC.

(5) A covered person must provide employment history information in a form and manner determined by TYC.

(6) All criminal history information obtained from the National Crime Information Center (NCIC) or any other state crime information database is confidential and not releasable.

(e) Standards for Evaluating Background Information.

(1) Background check results for covered persons will be evaluated according to standards established in TYC's policies addressing eligibility for employment or assignment in effect at the time the background check is conducted.

(2) When a background check reveals a criminal or employment history that is deemed unacceptable for the position or service to be performed by an employee or volunteer, TYC will deny or terminate employment or enrollment.

(3) When a background check reveals a criminal or employment history that is deemed unacceptable for the position or service to be performed by a contractor, advocate, or ombudsman, TYC will deny the person access to youth, youth information, TYC facilities, or any or all of the preceding. TYC will provide written notice to a contractor, advocate, or ombudsman whose access is denied.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 14, 2008.

TRD-200803579

Richard Nedelkoff

TYC Conservator

Texas Youth Commission

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 424-6475

37 TAC §81.83

The Texas Youth Commission proposes new §81.83, concerning Advocacy and Support Group Access. The new section will establish a system for registering advocacy and support group members who wish to provide on-site information, support, or other services to youth confined in commission facilities.

Robin McKeever, Chief Financial Officer, has determined that there is insufficient data to accurately determine the fiscal implications of enforcing the rule. The anticipated cost for each additional fingerprint-based background check that TYC is required to conduct under this section is approximately $10. The total number of additional fingerprint-based background checks required during the first five-year period the section is in effect is unknown.

Tracy Levins, Director of Administrative Services and Community Relations, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the establishment of an organized system to increase youth access to beneficial services provided by community partners. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the new section as proposed. No private real property rights are affected by adoption of this rule.

The new section is proposed under the Human Resources Code, §61.0386, which provides the commission with the authority to adopt security and privacy procedures for groups that provide on-site information, support, and other services to youth confined in commission facilities.

The proposed rule affects the Human Resources Code, §61.034.

§81.83.Advocacy and Support Group Access.

(a) Policy. The Texas Youth Commission (TYC) allows advocacy and support groups to provide on-site information, support, and other services for youth confined in TYC facilities.

(b) Applicability. This rule does not apply to youth access to a personal attorney, minister, pastor, or religious counselor. See §93.11 of this title (relating to Attorneys and Courts) and §93.17 of this title (relating to Personal Minister, Pastor, or Religious Counselor).

(c) Definitions. The following words and terms, as used in this rule, have the following meanings, unless the context clearly indicates otherwise:

(1) Advocacy or Support Groups--means organizations whose primary functions are to benefit children, inmates, girls and women, persons with mental illness, or victims of sexual assault.

(2) Confined--means placement in a residential facility.

(3) Confidential setting--means a setting that provides for private conversation but is within the line of sight of a TYC staff member who is authorized to provide sole supervision of youth.

(d) Registration Procedures.

(1) An advocacy or support group must register with TYC prior to providing on-site information, support, or other services to confined youth.

(2) In order to register with TYC, an advocacy or support group must provide the following in a form and manner determined by TYC:

(A) copy of articles of incorporation on file with the secretary of state or other official documentation showing the organization's primary purpose;

(B) contact information for local program director(s);

(C) names of all persons employed by or otherwise officially representing the group who would likely seek access to residential facilities under the provisions of this rule; and

(D) if 24-hour access to residential facilities is believed to be necessary to perform the group's primary function, a written justification of the need for such access and the names of individuals representing the group who perform the function for which 24-hour access is requested.

(3) The TYC division director with responsibility over volunteer services or his/her designee will determine whether or not an organization qualifies as an advocacy or support group as defined in this rule, and whether or not 24-hour access, if requested, is necessary to provide the group's primary function.

(4) A determination that an organization does not qualify as an advocacy or support group under this rule, or that a request for 24-hour access has been denied, must be in writing and may be appealed to the TYC chief executive officer or his/her designee. The appeal must be in writing and clearly state the reason the organization should be considered an advocacy or support group under this rule or the reason that denial of 24-hour access would prevent the group from effectively performing its primary function.

(5) A person representing a registered advocacy or support group will not be permitted to provide information, support, or other services to youth in a confidential setting unless and until:

(A) TYC conducts a background check pursuant to §81.81 of this title (relating to Background Checks) and clears the person for such access; and

(B) the person signs appropriate confidentiality agreements concerning youth information and/or records.

(6) A registered advocacy or support group must provide immediate written notification to TYC when a person who is registered with TYC as a representative of the group ceases to represent the group.

(e) General Provisions.

(1) A person who has been granted 24-hour access should provide reasonable advance notice of his/her intention to visit a facility to allow for security and confidentiality arrangements to be made. Lack of advance notice does not constitute grounds for denying entry.

(2) A person who has not been granted 24-hour access may access residential facilities during youth waking hours, and must provide notice at least 24 hours in advance of his/her intention to visit a facility in order for security and confidentiality arrangements to be made. Visits with less than 24-hour advance notice will be accommodated when possible.

(3) The security and confidentiality measures arranged by TYC must not be designed to deny a registered advocacy or support group access to youth.

(4) A person who has been cleared for access and who has provided adequate advance notice, if required, will not be denied access to any residential facility unless, in the judgment of the facility administrator or designee, the circumstances existing at the time of the visit create an unacceptable risk to the safety of youth, staff, or visitors. If, upon arrival at a facility, a representative of an advocacy or support group is denied entry due to unsafe conditions, the facility administrator or designee must provide written justification to the organization within three business days. A youth's current placement in a security unit does not, absent additional factors, constitute an unacceptable safety risk which would prevent access by a registered advocate.

(5) A person who has been cleared for access must present picture identification at the entry point in order to gain access to the facility.

(6) Pursuant to §97.10 of this title (relating to Entry Searches), members of advocacy and support groups are subject to search upon entry to a secure residential facility.

(7) Any registered member of advocacy and support groups who has cause to believe that a youth has been or may be adversely affected by abuse, neglect, or exploitation has a legal obligation to report the matter. The reporting requirement applies without exception to a person whose personal communications may otherwise be privileged. See §93.33 of this title (relating to Alleged Abuse, Neglect, and Exploitation) for more information on reports and investigations of suspected abuse, neglect, or exploitation.

(8) Youth have the right to refuse a visit with an advocate.

(9) Under §81.11 of this title (relating to Complaints from the Public), advocacy and support groups may file complaints regarding the security and privacy procedures arranged by a facility.

(10) Provisions of this rule may not be used to bypass the provisions of §93.12 of this title regarding visitation procedures for family members of TYC youth.

(f) Revocation of Access.

(1) TYC may revoke the access of a representative of a registered advocacy or support group, with written notice, when the person has endangered the safety of youth or security of the facility, or when the person has violated a TYC confidentiality agreement.

(2) Revocation of access may be appealed to TYC's chief executive officer or his/her designee. The appeal must be in writing and clearly state the reason the person's access should not be revoked.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 14, 2008.

TRD-200803580

Richard Nedelkoff

TYC Conservator

Texas Youth Commission

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 424-6475

CHAPTER 85. ADMISSION, PLACEMENT, AND PROGRAM COMPLETION

SUBCHAPTER A. COMMITMENT AND RECEPTION

37 TAC §85.1

The Texas Youth Commission (TYC) proposes an amendment to §85.1, concerning Legal Requirements for Admission. Senate Bill (SB) 103, enacted by the 80th Texas Legislature, requires committing courts to provide certain documents to TYC upon committing a youth to TYC. Section 85.1 will be amended to include any documents listed in SB 103 that are not already present in the rule.

Leticia Peña-Martinez, Deputy Commissioner for Policy and Planning, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be compliance with recently enacted legislation. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the new section as proposed. No private real property rights are affected by adoption of this rule.

The amendment is proposed under the Human Resources Code, §61.0651, which requires committing courts to provide certain documents upon commitment to the commission, and Family Code, §54.04(e), which requires TYC to accept a person properly committed to it by a juvenile court.

The proposed amendment affects the Human Resources Code, §61.034.

§85.1.Legal Requirements for Admission.

(a) [~~Purpose.~~] The purpose of this rule is to establish documentation required and requested by the Texas Youth Commission from each juvenile court committing youth to TYC.

(b) Each youth committed to the Texas Youth Commission (TYC) must be accompanied by legal and supporting documents supplied by the committing court.

(1) certified copy of the Order of Commitment;

(2) immunization records;

(3) Common Application, including the computerized referral and case history for the youth documenting case disposition, contact information for the youth's parents or guardians, the name, address, and telephone number of the court administrator in the committing county, and Title IV-E eligibility screening information; [ ~~CCF-002,~~]

(4) detention [~~Detention~~] order(s) (initial and subsequent) for offense(s) which resulted in commitment to TYC;

(5) for [~~For~~] sentenced offenders, the amount of time spent in detention in connection with the offense for which the youth was sentenced. It is preferable for the detention information to be included in the Order of Commitment; [.]

(6) petition, adjudication, and disposition orders for the youth, including the youth's thumbprint; [~~which prompted the commitment hearing;~~]

(7) if the commitment is the result of revocation of probation, a copy of the conditions of probation and the revocation order;

~~[(7) the judgment which followed adjudication;]~~

(8) any law enforcement incident reports concerning the offense for which the youth is committed;

~~[(8) Texas Department of Public Safety Sex Offender Registration as required by law;]~~

(9) any sex offender registration documentation and information;

(10) [~~(9)~~] birth certificate for all youth;

(11) social security number or social security card, if available;

(12) [~~(10)~~] social history;

(13) [~~(11)~~] education records;

(14) [~~(12)~~] medical and dental records;

(15) [~~(13)~~] any existing psychological and psychiatric reports;

(16) [~~(14)~~] pretrial detention time creditable to the youth's sentence; [~~and~~]

(17) [~~(15)~~] progressive sanctions deviation worksheet if assigned progressive sanctions level does not equal the progressive sanctions guideline level; and[.]

(18) [~~(16)~~] when available, the Victim Impact Statement and/or Victim Information form.

(d) The TYC intake staff shall review the commitment order [ ~~document~~] to determine if, on its face, it meets all requirements of a valid court order before TYC admits [~~receives~~ ] the youth. TYC will not look beyond the document itself for determining its validity. [~~Questions regarding verification of validity should be directed to the legal services department.~~]

(e) - (f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 14, 2008.

TRD-200803581

Richard Nedelkoff

TYC Conservator

Texas Youth Commission

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 424-6475

CHAPTER 105. JUVENILE CORRECTIONAL OFFICERS

37 TAC §105.1

The Texas Youth Commission proposes new §105.1, concerning Juvenile Correctional Officer Training. The new section will comply with provisions enacted during the last legislative session by requiring each Juvenile Correctional Officer (JCO) to receive 300 hours of training prior to independently commencing supervisory duties.

Robin McKeever, Chief Financial Officer, has determined that for the first five-year period the new section is in effect there will be no significant fiscal implications for state or local government as a result of enforcing or administering the new section.

Marty Martin, Director of Training, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be agency compliance with provisions enacted by the 80th Legislature, as well as enhanced JCO job performance due to the additional training. There will be no effect on small businesses or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the new section as proposed. No private real property rights are affected by adoption of this rule.

Comments on the proposal may be submitted within 30 days of the publication of this notice to DeAnna Lloyd, Manager of Policy, Grants, and Accreditation, Texas Youth Commission, P.O. Box 4260, Austin, Texas 78765, or email to deanna.lloyd@tyc.state.tx.us.

The new section is proposed under the Human Resources Code, §61.0356, which provides the commission with the responsibility to ensure each juvenile correctional officer employed by the commission receives at least 300 hours of training prior to independently commencing his or her duties.

The proposed rule affects the Human Resources Code, §61.034.

§105.1.Juvenile Correctional Officer Training.

(a) Policy. Pursuant to Texas Human Resources Code §61.0356, juvenile correctional officers (JCOs) employed by the Texas Youth Commission (TYC) must complete at least 300 hours of training prior to assuming responsibility for sole supervision of youth.

(b) Applicability. This rule applies to JCOs employed by the TYC on a full or part time basis.

(d) Procedures.

(1) Training required for JCO staff prior to assuming sole supervision responsibility consists of at least 300 hours of category-specific modules delivered through:

(A) local training at the facility by agency training staff or adjunct trainers;

(B) pre-service training at TYC's pre-service academy or another designated location; and

(2) Training for JCO staff will include, but is not limited to, modules that provide information and instruction in the following categories:

(A) the juvenile justice system of Texas, including the juvenile correctional facility system;

(B) security procedures;

(D) signs of suicide risks and suicide precautions;

(E) signs and symptoms of the abuse, assault, neglect, and exploitation of a child, including sexual abuse and sexual assault, and the manner in which to report the abuse, assault, neglect, or exploitation of a child;

(F) the neurological, physical, and psychological development of adolescents;

(G) TYC rules and regulations, including rules, regulations, and tactics concerning the use of force;

(H) appropriate restraint techniques;

(I) the Prison Rape Elimination Act of 2003 (42 U.S.C. Section 15601, et seq.);

(J) the rights and responsibilities of children in the custody of the TYC;

(K) interpersonal relationship skills;

(L) the social and cultural lifestyles of children in the custody of the TYC;

(M) first aid and cardiopulmonary resuscitation;

(N) counseling techniques;

(O) conflict resolution and dispute mediation, including de-escalation techniques;

(P) behavior management;

(Q) mental health issues;

(R) employee rights, employment discrimination, and sexual harassment.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 14, 2008.

TRD-200803582

Richard Nedelkoff

TYC Conservator

Texas Youth Commission

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 424-6475

PART 7. TEXAS COMMISSION ON LAW ENFORCEMENT OFFICER STANDARDS AND EDUCATION

CHAPTER 211. ADMINISTRATION

37 TAC §211.1

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to §211.1 concerning Definitions. Amendments to subsection (a) include: adding definitions for commercial training contractor, personal identification number (PID), separation, and TCLEDDS; modifying definitions for ALJ or Administrative law judge, contractual training provider, convicted, killed in the line of duty, proprietary training contractor, reactivate, and reserve; and deleting definitions for hearings examiner, resigned/terminated, and Texas peace officer. Amendments to this rule make it necessary to renumber subsection (a). Subsection (b) is amended to reflect the effective date of these changes.

These changes are necessary in order to allow for more clarity.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be no fiscal impact to state or local governments as a result of administering this section.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be a positive benefit to the public by ensuring that all rules referring to these terms will be more easily understood, allowing for law enforcement professionals to make better-informed decisions when addressing commission issues

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be no anticipated cost to small businesses or individuals as a result of the proposed section.

Comments may be submitted in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, Texas 78723.

The amendment is proposed under Texas Occupations Code, Chapter 1701, §1701.151, General Powers of Commission; Rulemaking Authority, which authorizes the Commission to promulgate rules for administration of this chapter.

The amendment as proposed is in compliance with Texas Occupations Code, §1701.251, Training Programs; Instructors, §1701.312, Disqualification Felony Conviction or Placement on Community Supervision, §1701.316, Reactivation of Peace Officer License, §1701.452, Employment Termination Report, and Code of Criminal Procedure, Art. 55.04, Violation of Expunction Order.

No other code, article, or statute is affected by this proposal.

§211.1.Definitions.

(a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Academic provider--A school, accredited by the Southern Association of Colleges and Schools and the Texas Higher Education Coordinating Board, which has been approved by the commission to provide basic licensing courses.

(2) Academic alternative program--A program for college credit offered by a training provider recognized by the Southern Association of Colleges and Schools and the Higher Texas Education Board, authorized by the commission to conduct preparatory law enforcement training as part of a degree plan program, and consisting of commission-approved curricula.

(3) Accredited college or university--An institution of higher education that is accredited or authorized by the Southern Association of Colleges and Schools, the Middle States Association of Colleges and Schools, the New England Association of Schools and Colleges, the North Central Association of Colleges and Schools, the Northwest Commission on Colleges and Universities, or the Western Association of Schools and Colleges.

(4) Active--A license issued by the commission that meets the current requirements of licensure and training as determined by the Commission.

(5) Agency--A law enforcement unit or other entity, whether public or private, authorized by Texas law to appoint a person licensed or certified by the commission.

(6) Administrative Law Judge (ALJ)--An administrative law judge appointed by the chief administrative law judge of the State Office of Administrative Hearings.

~~[(6) ALJ or Administrative law judge--See "Hearings Examiner" defined below.]~~

(7) Alternative delivery--A learning event characterized by a separation of place or time between the instructor and student, the students, and/or the student and learning resources; and in which the interaction between these is conducted through one or more media.

(8) Appointed--Elected or commissioned by an agency as a peace officer, reserve or otherwise selected or assigned to a position governed by the Occupations Code, Chapter 1701, without regard to pay or employment status.

(9) Background investigation--A pre-employment background investigation that is designed to satisfy:

(A) that an applicant is in compliance with all minimum standards for employment, and

(B) that an applicant is screened out, who, based on their past history or other relevant information, is found to be unsuitable for the position in question.

(i) A review of all previous law enforcement employment, including contacting all former law enforcement employers,

(ii) an investigation looking specifically at a person's dependability; integrity; initiative; situational reasoning ability; self-control; writing skills; reading skills; oral communications skills; interpersonal skills; and physical ability; and

(iii) a report that documents an investigation into an applicant's suitability for licensing and appointment which includes: biographical data; scholastic data; employment data; criminal history data; interviews with references, supervisors, and other people who have knowledge of the person's abilities, skills, and character; and a summary of the investigator's findings and conclusions regarding the applicant's moral character and suitability.

(10) Basic licensing course--Any current commission developed course that is required before an individual may be licensed by the commission.

(11) Basic peace officer course--The current commission developed course(s) required for licensing as a peace officer, taught at a licensed law enforcement academy in accordance with commission requirements.

(12) Certified copy--A true and correct copy of a document or record certified by the custodian of records of the submitting entity.

(13) Chief administrator--The head or designee of a law enforcement agency.

(14) Commercial training contractor--An approved training contractor operating for profit and offering courses based on commission-developed learning objectives.

(15) [~~(14)~~] Commission--The Texas Commission on Law Enforcement Officer Standards and Education.

(16) [~~(15)~~] Commissioned--Has been given the legal power to act as a peace officer or reserve, whether elected, employed, or appointed.

(17) [~~(16)~~] Commissioners--The nine commission members appointed by the governor and, where appropriate, the five ex-officio members.

(18) [~~(17)~~] Contract jail--A correctional facility, operated by a county, municipality or private vendor, operating under a contract with a county or municipality, to house inmates convicted of offenses committed against the laws of another state of the United States, as provided by Texas Government Code, §511.0092.

(19) [~~(18)~~] Contractual training provider--A law enforcement agency, a law enforcement association, [or] alternative delivery trainer, proprietary training contractor, or commercial training contractor that conducts specific education and training under a contract with the commission.

(20) [~~(19)~~] Convicted--Has been adjudged guilty of or has had a judgment of guilt entered in a criminal case that has not been set aside on appeal, regardless of whether:

(A) the sentence is subsequently probated and the person is discharged from probation;

(B) the charging instrument is dismissed and the person is released from all penalties and disabilities resulting from the offense; or

~~[(C) the cause has been made the subject of an expunction order; or]~~

(21) [~~(20)~~] Court-ordered community supervision--Any court-ordered community supervision or probation resulting from a deferred adjudication or conviction by a court of competent jurisdiction. However, this does not include supervision resulting from a pretrial diversion.

(22) [~~(21)~~] Distance education--The enrollment and study with an educational institution, which provides lesson materials prepared in a sequential and logical order for study by students on their own.

(23) [~~(22)~~] Duty ammunition--Ammunition required or permitted by the agency to be carried on duty.

(24) [~~(23)~~] Endorsement--An official document stating that an individual has met the minimum training standards appropriate to the type of examination sought as determined by the Commission.

(25) [~~(24)~~] Executive director--The executive director of the commission or any individual authorized to act on behalf of the executive director.

(26) [~~(25)~~] Experience--Includes each month, or part thereof, served as a peace officer, reserve, jailer, telecommunicator, or federal officer. Credit may, at the discretion of the executive director, be awarded for relevant experience from an out-of-state agency.

(27) [~~(26)~~] Firearms--Any handgun, shotgun, precision rifle, patrol rifle, or fully automatic weapon that is carried by the individual officer in an official capacity.

(28) [~~(27)~~] Firearms proficiency--Successful completion of the annual firearms proficiency requirements.

(29) [~~(28)~~] Field training program--A program intended to facilitate a transition from the academic setting to the performance of the general duties of the appointing agency.

(30) [~~(29)~~] Governing body resolution--A formal expression or action by a governing body authorizing a particular act, transaction, appointment, intention, or decision.

[(30) Hearings examiner--An administrative law judge appointed by the chief administrative law judge of the State Office of Administrative Hearings pursuant to the Texas Government Code, Ch. 2003, or a person appointed by the executive director to conduct administrative hearings for the commission.]

(31) High school diploma--High school diploma is a document issued by a school district or a school accredited by the Texas Private School Accreditation Commission verifying that the recipient has successfully completed the course of study prescribed by the school district and accepted by the Texas Education Agency.

(32) Individual--A human being who has been born and is or was alive.

(33) Jailer--A person employed or appointed as a jailer under the provisions of the Local Government Code, §85.005, or Government Code §511.0092.

(34) Killed in the line of duty--A death thatis the [ ~~Texas peace officer killed as a~~] directly attributed result of a personal injury sustained in the line of duty.

(35) Law--Including, but not limited to, the constitution or a statute of this state, or the United States; a written opinion of a court of record; a municipal ordinance; an order of a county commissioners' court; or a rule authorized by and lawfully adopted under a statute.

(36) Law enforcement academy--A school operated by a governmental entity that has been licensed by the commission, which may provide basic licensing courses and continuing education.

(37) Law enforcement automobile for training--A vehicle equipped to meet the requirements of an authorized emergency vehicle as identified by Transportation Code [~~Secs.~~] §546.003 and §547.702.

(38) Lesson plan--Detailed guides from which an instructor teaches. The plan includes the goals, specific content and subject matter, performance or learning objectives, references, resources, and method of evaluating or testing students.

(39) License--A license required by law or a state agency rule that must be obtained by an individual to engage in a particular business.

(40) Licensee--An individual holding a license issued by the commission.

(41) Line of duty--Any lawful and reasonable action, which a Texas peace officer is required or authorized by rule, condition of employment, or law to perform. The term includes an action by the individual at a social, ceremonial, athletic, or other function to which the individual is assigned by the individual's employer.

(42) Moral character--The propensity on the part of a person to serve the public of the state in a fair, honest, and open manner.

(43) Officer--A peace officer or reserve identified under the provisions of the Occupations Code, §1701.001.

(44) Patrol rifle--Any magazine-fed repeating rifle with iron/open sights or with a frame mounted optical enhancing sighting device, 3 power or less, that is carried by the individual officer in an official capacity.

(45) Peace officer--A person elected, employed, or appointed as a peace officer under the provisions of the Occupations Code, §1701.001. [~~under the Code of Criminal Procedure, Article 2.12, or under other statute.~~]

(46) Personal Identification Number (PID)--A unique computer-generated number assigned to individuals for identification in the commission's electronic database.

(47) [~~(46)~~] Placed on probation--Has received an adjudicated, unadjudicated or deferred adjudication probation for a criminal offense.

(48) [~~(47)~~] POST--State or federal agency with jurisdiction similar to that of the commission, such as a peace officer standards and training agency.

(49) [~~(48)~~] Precision rifle--Any rifle with a frame mounted optical sighting device greater than 3 power that is carried by the individual officer in an official capacity.

(50) [~~(49)~~] Proprietary training contractor--An approved training contractor who has a proprietary interest in the intellectual property delivered. [ ~~operated for a profit.~~]

(51) [~~(50)~~] Public security officer--A person employed or appointed as an armed security officer by this state or a political subdivision of this state. The term does not include a security officer employed by a private security company that contracts with this state or a political subdivision of this state to provide security services for the entity.

(52) [~~(51)~~] Reactivate--To make a license issued by the commission active after at least a two-year break in service and the licensee's failure to complete legislatively required training.

[(52) Resigned/Terminated--an explanation of the circumstances under which the individual resigned (retired, honorably discharged), was terminated (dishonorably discharged, generally discharged), or other (killed in the line of duty, died, or disabled) in accordance with §1701.452.]

(53) Reinstate--To make a license issued by the commission active after disciplinary action or after expiration of a license due to failure to obtain required continuing education.

(54) Renew--Continuation of an active license issued by the commission.

(55) Reserve--A person appointed as a reserve law enforcement officer under the provisions of the Occupations Code, §1701.001. [~~Local Government Code, §85.004, §86.012, §341.012, or §60.0775.~~]

(56) Self-assessment--Completion of the commission created process, which gathers information about a training or education program.

(57) Separation--An explanation of the circumstances under which the person resigned, retired, or was terminated, reported on the form currently prescribed by the commission, in accordance with Occupations Code, §1701.452.

(58) [~~(57)~~] SOAH--The State Office of Administrative Hearings.

(59) [~~(58)~~] Successful completion--A minimum of:

(A) 70 percent or better; or

(B) C or better; or

(60) TCLEDDS--Texas Commission on Law Enforcement Data Distribution System.

(61) [~~(59)~~] Telecommunicator--A dispatcher or other emergency communications specialist appointed under or governed by the provisions of the Occupations Code, Chapter 1701.

[(60) Texas peace officer--For the purposes of eligibility for the Texas Peace Officers' Memorial, an individual who had been elected, employed, or appointed as a peace officer under Texas law; an individual appointed under Texas law as a reserve peace officer, a commissioned deputy game warden, or a corrections officer in a municipal, county, or state penal institution, a federal law enforcement officer or special agent performing duties in this state, including those officers under Article 2.122, Code of Criminal Procedure, or any other officer authorized by Texas law.]

(62) [~~(61)~~] Training coordinator--An individual, appointed by a commission-recognized training provider, who meets the requirements of §215.9.

(63) [~~(62)~~] Training cycle--A 48-month period as established by the commission. Each training cycle is composed of two contiguous 24-month units.

(64) [~~(63)~~] Training hours--Classroom or distance education hours reported in one-hour increments.

(65) [~~(64)~~] Training program--An organized collection of various resources recognized by the commission for providing preparatory or continuing training. This program includes, but is not limited to, learning goals and objectives, academic activities and exercises, lesson plans, exams, skills training, skill assessments, instructional and learning tools, and training requirements.

(66) [~~(65)~~] Training provider--A governmental body, law enforcement association, alternative delivery trainer, or proprietary entity credentialed by the commission to provide preparatory or continuing training for licensees or potential licensees.

(67) [~~(66)~~] Verification (verified)--The confirmation of the correctness, truth, or authenticity of a document, report, or information by sworn affidavit, oath, or deposition.

(b) The effective date of this section is October 1, 2008. [ ~~March 1, 2008.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2008.

TRD-200803514

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 936-7700

CHAPTER 215. TRAINING AND EDUCATIONAL PROVIDERS AND RELATED MATTERS

37 TAC §215.5

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to §215.5, concerning Contractual Training. Subsection (a) will be amended to add commercial training providers. Subsection (j) is amended to reflect the effective date of these changes.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there may be an effect on state or local governments as a result of administering this section. The cost may derive from; conducting a training course, the tuition of the training course and in time spent in training.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be a benefit to the public by including commercial training providers.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there may be a benefit to small businesses as a result of an increase in demand for training courses.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there may be a cost to individuals as a result of the tuition of the training course and in time spent in training.

Comments may be submitted in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, Texas 78723.

This amendment is proposed under Texas Occupations Code, Chapter 1701, §1701.151, General Powers of Commission; Rulemaking Authority, which authorizes the Commission to promulgate rules for administration of this chapter.

The proposed amendment is in compliance with Texas Occupations Code, §1701.151, General Powers of Commission; Rulemaking Authority, and §1701.251, Training Programs; Instructors.

No other code, article, or statute is affected by this proposal.

§215.5.Contractual Training.

(a) The commission may, at the discretion of the executive director, enter into a contract with a law enforcement agency, a law enforcement association, alternative delivery trainer, [or] proprietary training contractor, or commercial training contractor to conduct training for licensees.

(b) - (i) (No change.)

(j) The effective date of this section is October 1, 2008. [ ~~March 1, 2008.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2008.

TRD-200803515

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 936-7700

37 TAC §215.15

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to §215.15, concerning Enrollment Standards and Training Credit. "Training Credit" is deleted from the title. The criteria for receiving training credit are contained in the requirements for each type of training provider. Subsection (c) will be amended by replacing academy licensee to licensed academy. Subsection (d) is amended to reflect the effective date of these changes.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be no fiscal implications to state or local governments as a result of administering the proposed amendment.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be a benefit to the public by the title accurately reflecting the rule text and the ability of a licensed academy to set additional enrollment standards being clarified.

Comments may be submitted in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, Texas 78723.

The proposed amendment is in compliance with Texas Occupations Code, §1701.251, Training Programs; Instructors, and §1701.255, Enrollment Qualifications.

No other code, article, or statute is affected by this proposal.

§215.15.Enrollment Standards [ ~~and Training Credit~~ ].

(a) - (b) (No change.)

(c) The enrollment standards established in this section do not preclude the licensed academy [~~academy licensee~~] from establishing additional requirements or standards for enrollment in law enforcement training programs.

(d) The effective date of this section is October 1, 2008. [ ~~June 1, 2006.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2008.

TRD-200803516

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 936-7700

CHAPTER 221. PROFICIENCY CERTIFICATES AND OTHER POST-BASIC LICENSES

37 TAC §221.31

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to §223.31 concerning Retired Peace Officer Firearms Proficiency. The title is amended to include federal officers in order to reflect the title of Texas Occupations Code §1701.357. Subsection (a) is amended to reflect the retired officers in Texas Occupations Code §1701.357(a)(1). Subsection (b) is amended to reflect the federal officers identified in Texas Occupations Code §1701.357(a)(2) and (3). Subsection (d) is amended to reflect the effective date of these changes.

These amendments are necessary to ensure that the Commission rule is in compliance with the statute, which allows for more honorably retired peace officers and law enforcement officers than previously listed.

The Commission has determined that there will be no fiscal impact to local governments for each year of the first five years the rule will be in effect.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be a positive benefit to the public by ensuring that all eligible peace officers, federal criminal investigators, and qualified retired law enforcement officers are allowed to demonstrate weapons proficiency, as authorized by Texas Occupations Code §1701.357.

The Commission has also determined that there may be a positive economic impact for small businesses. With more people eligible for certification, those businesses offering weapons qualification for concealed-carry licensees may see an increase in business.

The Commission has determined that there will be a monetary and time cost to the individual to achieve this proficiency certificate, however there will be a positive benefit for the individual and the public by allowing more qualified individuals to be armed.

Comments may be submitted in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, Texas 78723.

This section as proposed is in compliance with Texas Occupations Code, §1701.357, Weapons Proficiency for Certain Retired Peace Officers and Federal Law Enforcement Officers

No other code, article, or statute is affected by this proposal.

§221.31.Retired Peace Officer and Federal Law Enforcement Officer Firearms Proficiency.

(a) The head of a state or local law enforcement agency may allow an honorably retired peace officer the opportunity to demonstrate weapons proficiency [~~issue a proficiency certificate to an honorably retired peace officer~~] in accordance with Occupations Code §1701.357 [~~1701.357~~].

(b) The head of a state law enforcement agency may allow an honorably retired federal criminal investigator or a qualified retired law enforcement officer the opportunity to demonstrate weapons proficiency [~~issue a proficiency certificate to an honorably retired special agent from the Federal Bureau of Investigation or Federal Drug Enforcement Agency~~] in accordance with Occupations Code §1701.357 [ ~~1701.357~~].

(d) The effective date of this section is October 1, 2008. [~~March 1, 2008.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2008.

TRD-200803517

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 936-7700

CHAPTER 223. ENFORCEMENT

37 TAC §223.19

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code by amending §223.19, Revocation of License. Subsection (c)(3) is amended to reflect the expunction requirements of state statutes. Subsection (n) is amended to reflect the effective date of these changes.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be no effect on state or local governments as a result of administering this section.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be a positive benefit to the public in that removal of expunction terminology may result in a greater pool of qualified police applicants who can enter into the field of law enforcement.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be no anticipated cost to small business, individuals, or both as a result of the proposed section.

Comments may be submitted in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, Texas 78723.

This section is proposed for amendment under Texas Occupations Code, Chapter 1701, §1701.151, General Powers of Commission; Rulemaking Authority, which authorizes the Commission to promulgate rules for administration of this chapter.

This section as proposed is in compliance with Texas Occupations Code, §1701.151, General Powers of Commission; Rulemaking Authority; §1701.502, Felony Conviction or Placement on Community Supervision; and Code of Criminal Procedure. Art. 55.04, Violation of Expunction Order.

No other code, article, or statute is affected by this proposal.

§223.19.Revocation of License.

(a) The commission shall immediately revoke any license issued by the commission if the licensee is or has been convicted of a felony offense under the laws of this state, another state, or the United States as provided below. The revocation of any license held is effective immediately when the commission receives a certified copy of a court's judgment and issues notice to the licensee that any license held is revoked. Notice of revocation shall be sent via certified U.S. Mail to the address shown on the Texas driver's license record of the licensee and to the address of the agency showing the licensee under current or last appointment.

(b) A deferred adjudication community supervision is not a felony conviction.

(c) A person is convicted of a felony when an adjudication of guilt on a felony offense is entered against that person by a court of competent jurisdiction whether or not:

(1) the sentence is subsequently probated and the person is discharged from community supervision;

(2) the accusation, complaint, information, or indictment against the person is dismissed and the person is released from all penalties and disabilities resulting from the offense; or

~~[(3) the cause has been made the subject of an expunction order; or]~~

(3) [~~(4)~~] the person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.

(d) Except as provided by subsection (a) of this section, the commission may revoke the license of a person who is either convicted of a misdemeanor offense or placed on deferred adjudication community supervision for a misdemeanor or felony offense, if the offense directly relates to the duties and responsibilities of any related office held by that person. In determining whether a criminal offense directly relates to such office, the commission shall, under this subsection, consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purpose for requiring a license for such office;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of such office.

(e) The commission shall revoke any license issued by the commission if the licensee:

(1) is or has been discharged from any military service under less than honorable conditions including specifically;

(A) under other than honorable conditions;

(B) bad conduct;

(D) any other characterization of service indicating bad character.

(2) has made, submitted, caused to be submitted, or filed a false or untruthful report to the commission;

(3) has been found to be in unauthorized possession of any commission licensing examination or portion of a commission licensing examination, or a reasonable facsimile thereof; or

(4) violates any section where revocation is the penalty noted.

(f) Revocation of a license shall permanently disqualify a person from licensing and a license may not be reinstated except when the licensee proves the facts supporting the revocation have been negated, such as:

(1) the felony conviction has been reversed or set aside on direct or collateral appeal, or a pardon based on subsequent proof of innocence has been issued;

(2) the discharge under less than honorable conditions has been upgraded to honorable conditions;

(3) the report alleged to be false or untruthful was found to be truthful; or

(4) the section was not violated.

(g) During the direct appeal of any appropriate conviction, a license may be conditionally revoked pending resolution of the mandatory direct appeal. The license will remain revoked unless and until the holder proves that the conviction has been set aside on appeal.

(h) The holder of any revoked license may informally petition the executive director for reinstatement of that license based upon proof by the licensee that the facts supporting the revocation have been negated.

(i) If granted, the executive director shall inform the commissioners of such action no later than at their next regular meeting.

(j) If denied, the holder of a revoked license may petition the commission for a hearing to determine reinstatement based upon the same proof.

(k) Once a license has been revoked, the commission shall search its files and send, by regular mail, notice of the action to the chief administrator of any agency shown to have the licensee under either current or latest appointment.

(l) The commission may revoke a license even though it has become inactive by some other means, such as:

(1) expiration;

(2) suspension;

(3) voluntary surrender;

(4) two-year break in service; or

(5) any other means.

(m) The date of revocation will be the earliest date that:

(1) a waiver was signed by the holder; or

(2) a final order of revocation was signed by the commissioners.

(n) The effective date of this section is October 1, 2008. [ ~~March 1, 2001.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2008.

TRD-200803518

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 936-7700

37 TAC §223.20

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code by modifying §223.20 Revocation of License for Constitutionally Elected Officials. Subsection (c)(3) is amended to reflect the expunction requirements of state statutes. Subsection (e) is deleted to comply with changes to Occupations Code §1701.501 during the 80th Legislative Session by House Bill 488.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be no anticipated cost to small business or individuals as a result of the proposed section.

Comments may be submitted in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, Texas 78723.

This section as proposed is in compliance with Texas Occupations Code, §1701.501, Disciplinary Action; §1701.502, Felony Conviction or Placement on Community Supervision; and Code of Criminal Procedure, Art. 55.04, Violation of Expunction Order.

No other code, article, or statute is affected by this proposal.

§223.20.Revocation of License for Constitutionally Elected Officials.

(a) The commission shall immediately revoke any license issued by the commission to a constitutionally elected officer if the licensee is or has been convicted of a felony offense under the laws of this state, another state, or the United States as provided below. The revocation of any license held is effective immediately when the commission receives a certified copy of a court's judgment and issues notice to the licensee that any license held is revoked. Notice of revocation shall be sent via certified U.S. mail to the address shown on the Texas driver's license record of the licensee and to the address of the agency showing the licensee under current or last appointment.

(b) A deferred adjudication community supervision is not a felony conviction.

(c) A constitutionally elected officer is convicted of a felony when an adjudication of guilt on a felony offense is entered against that officer by a court of competent jurisdiction regardless of:

(1) the sentence is subsequently probated and the officer is discharged from community supervision;

(2) the accusation, complaint, information, or indictment against the officer is dismissed and the officer is released from all penalties and disabilities resulting from the offense; or

~~[(3) the cause has been made the subject of an expunction order; or]~~

(3) [~~(4)~~] the officer is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.

(d) Except as provided by subsection (a) of this section, the commission may revoke the license of a constitutionally elected officer who is either convicted of a misdemeanor offense or placed on deferred adjudication community supervision for a misdemeanor or felony offense, if the offense directly relates to the duties and responsibilities of any related office held by that officer. In determining whether a criminal offense directly relates to such office, the commission shall, under this subsection, consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purpose for requiring a license for such office;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the officer previously had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of such office.

~~[(e) The commission shall revoke any license issued by the commission if the licensee:]~~

~~[(1) is or has been discharged from any military service under less than honorable conditions including specifically;]~~

~~[(A) under other than honorable conditions;]~~

~~[(B) bad conduct;]~~

~~[(C) dishonorable; or]~~

~~[(D) any other characterization of service indicating bad character.]~~

~~[(2) has made, submitted, caused to be submitted, or filed a false or untruthful report to the commission;]~~

~~[(3) has been found to be in unauthorized possession of any commission licensing examination or portion of a commission licensing examination, or a reasonable facsimile thereof; or]~~

~~[(4) violates any section where revocation is the penalty noted.]~~

(e) [~~(f)~~] Revocation of a license shall permanently disqualify a constitutionally elected officer from licensing, and a license may not be reinstated except when the licensee proves the facts supporting the revocation have been negated, such as:

(1) the felony conviction has been reversed or set aside on direct or collateral appeal, or a pardon based on subsequent proof of innocence has been issued;

(2) the discharge under less than honorable conditions has been upgraded to honorable conditions;

(3) the report alleged to be false or untruthful was found to be truthful; or

(4) the section was not violated.

(f) [~~(g)~~] During the direct appeal of any appropriate conviction, a license may be conditionally revoked pending resolution of the mandatory direct appeal. The license will remain revoked unless and until the holder proves that the conviction has been set aside on appeal.

(g) [~~(h)~~] The holder of any revoked license may informally petition the executive director for reinstatement of that license based upon proof by the licensee that the facts supporting the revocation have been negated.

(h) [~~(i)~~] If granted, the executive director shall inform the commissioners of such action no later than at their next regular meeting.

(i) [~~(j)~~] If denied, the holder of a revoked license may petition the commission for a hearing to determine reinstatement based upon the same proof.

(j) [~~(k)~~] Once a license has been revoked, the commission shall search its files and send, by regular mail, notice of the action to the chief administrator or supervising authority of any agency shown to have the licensee under either current or latest appointment.

(k) [~~(l)~~] The commission may revoke a license even though it has become inactive by some other means, such as:

(1) expiration;

(2) suspension;

(3) voluntary surrender;

(4) two-year break in service; or

(5) any other means.

(l) [~~(m)~~] The date of revocation will be the earliest date that:

(1) a waiver was signed by the holder; or

(2) a final order of revocation was signed by the commissioners.

(m) [~~(n)~~] The effective date of this section is October 1, 2008. [~~March 1, 2001.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2008.

TRD-200803519

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Earliest possible date of adoption: August 24, 2008

For further information, please call: (512) 936-7700