Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

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

CHAPTER 215. TRAINING AND EDUCATIONAL PROVIDERS AND RELATED MATTERS

37 TAC §215.1

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §215.1, Licensing of Training Providers. Subsection (a) is amended to identify the types of training provider credentials. Subsection (b) is amended to identify the requirements for receiving training provider credentials. Subsection (c) is amended to identify the time limits for training provider credentials. Subsection (d) is amended to specify the reapplication time period. Subsection (e) is added to provide for a shorter credentialing period for at risk providers. Subsection (f) is added to specify the renewal requirements for training provider credentials. Subsection (g) is added to reflect the effective date of these changes.

These amendments are necessary to ensure that training provider types and requirements are clear to all entities interested in possessing training provider credentials.

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 additional fiscal implications for 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 clarifying the requirements for receiving training provider credentials.

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 additional cost to small business, individuals, or both as a result of the proposed section.

Comments may be submitted electronically to public.comment@tcleose.state.tx.us or in writing to Mr. Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, 6330 U.S. 290 East, Austin, TX 78723.

The amendment is proposed under Texas Occupations Code, Chapter 1701, §1701.151, General Powers of the 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, Chapter 1701, §1701.251, Training Programs; Instructors, §1701.153, Reports from Agencies and Schools, and §1701.254, Risk Assessment and Inspections.

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

§215.1.Licensing of Training Providers.

(a) The commission may issue licenses or contracts [ ~~credentials~~] to the following training [~~three types of training or education~~] providers:

(1) a licensed law enforcement academy;

(2) a contractual training provider; or

(3) a licensed academic alternative provider.

(b) In order for a training provider to be issued a license or contract, an entity must make application and submit any required fee.

(d) Providers must re-apply, using the current renewal application, at least six months prior to expiration of license or contract.

(e) Renewal for a provider determined by the commission to be at-risk as defined in §215.13 of this chapter may be for a shorter time period.

(f) Provider renewal is dependent upon the commission's evaluation of the training provider's compliance with commission rules and performance of the provider's programs.

(g) The effective date of this section is July 6, 2009.

~~[(b) The commission issues these licenses or contracts for a specified period of time:]~~

~~[(1) five years for a licensed law enforcement academy;]~~

~~[(2) five years for a contractual training provider;]~~

~~[(3) five years for a licensed academic alternative provider; or]~~

~~[(4) for a shorter period as appropriate for a program found to be at risk.]~~

~~[(c) License renewal is dependent upon continued compliance with commission rules and performance, which includes risk assessment.]~~

~~[(d) The effective date of this section is March 1, 2007.]~~

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 March 10, 2009.

TRD-200901016

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 215. TRAINING AND EDUCATIONAL PROVIDERS AND RELATED MATTERS

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes the repeal of and new Title 37, Texas Administrative Code, §215.3, Academy Licensing. The section proposed for repeal addresses the requirements for academy licensing. The proposed repeal of and new rule would clarify the requirements for academy licensing. These requirements include; entities eligible to apply for academy licensure, requirements for license application, requirements of training facilities, requirements of the chief administrator of the sponsoring organization and training coordinator to appear before the Commission, reporting requirements of the training coordinator or agency administrator, courses for which the Commission will award credit, conditions for which the Commission may take disciplinary action, the process for voluntary surrender of an academy license, and effective date.

The proposed action would repeal the current requirements from rule and specify the requirements for academy licensure.

Current §215.3, proposed for repeal, describes the requirements for academy licensure.

Proposed new §215.3, Academy Licensing, would clarify the academy licensing requirements. These changes are to establish consistency, continuity, and uniformity of regulations for training providers.

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

The Commission has determined that for each year of the first five years the repeal and new section are in effect, there will be a positive benefit to the public with a clearer understanding by the law enforcement community as to the requirements for §215.3, Academy Licensing.

The Commission has determined that for each year of the first five years the repeal and new section are in effect, there will be no additional cost to small business, individuals, or both.

37 TAC §215.3

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Law Enforcement Officer Standards and Education or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

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

The repeal as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.3.Academy Licensing.

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 March 10, 2009.

TRD-200901017

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.3

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

The new rule as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.3.Academy Licensing.

(a) A state or any political subdivision of the state may make application to provide law enforcement, corrections, telecommunications, and/or other law enforcement related training. The entity must be based on at least one of the following sponsoring organizations:

(1) a law enforcement agency with a minimum of 75 full-time paid peace officers, county jailers, and/or telecommunicators under current appointment;

(2) an institution recognized by the Texas Higher Education Coordinating Board (THECB); or

(3) a regional planning commission or councils of governments' (COG) board. The commission will issue only one academy license within each regional planning commission or councils of governments' area at any one time.

(b) As part of the application process, the following documents shall be submitted:

(1) a resolution of support from the governing body of the sponsoring organization;

(2) the proposed formal name of the academy, which must not misrepresent the status of the academy or be confusing to law enforcement or to the public;

(3) a proposed startup and operational budget and a proposed course schedule to show that training will be conducted on a continuing basis;

(4) a schedule of tuition and fees that will be charged, if any;

(5) documentation that an advisory board has already been appointed as required by §215.7 of this chapter and §1701.252 of the Texas Occupations Code, including a resume for each board member;

(6) advisory board minutes that show the advisory board has complied with the requirements of §215.7 of this chapter;

(7) the name, PID, and resume of the proposed training coordinator;

(8) documentation that the training coordinator is in compliance with the responsibilities required by law, or rule, to include but not limited to §215.9 of this chapter;

(9) the physical location and a description of the proposed training facility and any satellite sites;

(10) documentation that the academy meets the federal and state accessibility requirements to which its entity is subject and which apply to the academy's function, including course materials, course presentation, and facilities;

(11) documentation of any contract an academy may have as cosponsor with law enforcement agencies and other entities to conduct continuing education classes or basic county corrections training; and

(12) at the request of the executive director the applicant must forward for approval at least one copy of the learning objectives of each course covered by the contract.

(1) a description of existing law enforcement academies in the proposed service area and documentation justifying the need for an additional academy;

(2) what specific training needs are not currently being provided by licensed academies in the regional planning commission or councils of governments' area;

(3) a description of whom the academy will serve, including the identity of each law enforcement agency the academy expects to serve, the number of officers the academy expects to train annually from each agency, and the basis for the academy's expectations;

(4) the number and types of courses that will be offered; and

(5) proof of notification by e-mail to all licensed academies within the regional planning commission or councils of governments' area of their intent to apply for an academy license and what specific training needs the applicant intends to meet.

(d) Upon approval of the application the proposed academy must pass an inspection of its facilities and instructional materials. The inspection shall be conducted by commission staff or by a team of academy coordinators as appointed by the executive director. An academy must have and maintain:

(1) facilities to accommodate the number of students being trained and the types of training being conducted, to include, but not limited to, adequately equipped classrooms, bathrooms, break rooms, and parking areas;

(2) qualified instructors and staff to conduct successful training;

(3) instructional resources to conduct successful training, to include, but not limited to, convenient access to a law enforcement reference library or sufficient number of computers for student and staff use;

(4) access to current and appropriate teaching tools and electronic equipment, including video players, projection equipment, computer hardware, software, and the Internet;

(5) a proprietary interest in or a written contract providing for a firing range suitable for the course of fire required in the current basic peace officer course, with safety rules clearly posted, secure storage and first aid equipment while on the premises; and

(6) a proprietary interest in or a written contract providing for at least one facility to conduct police driving training, to include at least one law enforcement automobile for training.

(e) The chief administrator of the sponsoring organization and the proposed training coordinator must appear before the commissioners to respond to questions prior to action being taken on the application.

(f) Once an academy license is issued, the chief administrator of the sponsoring organization, or the training coordinator, must report in writing to the commission within 30 days:

(1) any change in the chief administrator or training coordinator;

(2) any failure to meet commission rules and standards by the academy, training coordinator, instructors, or advisory board;

(3) when non-compliance with federal or state requirements is discovered; or

(4) any change in academy name, physical location, mailing address, electronic mail address, or telephone number.

(g) The commission will award training credit for any course conducted by a licensed academy as provided by commission rules unless the:

(1) course is not conducted as required by commission rules;

(2) training is not related to a commission license;

(3) advisory board, the academy, the training coordinator, the course coordinator, or the instructor failed to discharge any responsibility required by commission rule; or

(4) credit was claimed by deceitful means.

(h) The commission may suspend an academy license, or the executive director or his designee may issue a written reprimand to the sponsoring organization, if the:

(1) academy or the sponsoring organization fails to comply with commission rules or any law; or

(2) academy has been classified as at risk under §215.13 of this chapter.

(i) The commission may cancel an academy license if it was issued in error or based on false or incorrect information.

(j) The commission may revoke an academy license if the:

(1) academy has been classified as at risk under §215.13 of this chapter for a 12-month period without complying with commission rules;

(2) training coordinator intentionally or knowingly submits a falsified document or a false written statement or representation to the commission; or

(3) academy has not met the needs of the communities and/or agencies that it serves.

(k) An academy may surrender its license at any time or for any reason. To surrender the license, the chief administrator of the sponsoring organization must send written notice, accompanied by the license, to the executive director. The surrender is effective immediately upon receipt by the executive director.

(l) The effective date of this section is July 6, 2009.

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 March 10, 2009.

TRD-200901018

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 215. TRAINING AND EDUCATIONAL PROVIDERS AND RELATED MATTERS

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes the repeal of and new Title 37, Texas Administrative Code, §215.5, Contractual Training. The section proposed for repeal addresses the requirements for contractual training providers. The proposed repeal and new rule would clarify the requirements for contractual training. These requirements include: entities eligible to apply for contractual training, requirements for contract application, requirements of the chief administrator of the sponsoring organization and training coordinator to appear before the commission, reporting requirements of the training coordinator or agency administrator, terms of a contract, courses for which the commission will award credit, provisions for providing distance education, conditions for which the commission may take disciplinary action, provisions for terminating the contract, and effective date.

The proposed action would repeal the current requirements from rule and specify the requirements for contractual training.

Current §215.5, proposed for repeal, describes the requirements for contractual training.

Proposed new §215.5, Contractual Training, would clarify the requirements for a contract. These changes are to establish consistency, continuity, and uniformity of regulations for training providers.

The Commission has determined that for each year of the first five years the repeal and new section are in effect, there will be no additional cost to small business, individuals, or both.

37 TAC §215.5

The repeal as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.5.Contractual Training.

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 March 10, 2009.

TRD-200901020

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.5

The new rule as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.5.Contractual Training.

(a) A law enforcement agency, a law enforcement association, alternative delivery trainer, or proprietary training contractor may make application to conduct training for licensees.

(b) As part of the application process, the following documentation shall be submitted:

(1) documentation that an advisory board has been appointed as provided by §215.7 and Texas Occupations Code, §1701.252, including a resume for each board member;

(2) advisory board minutes that show the advisory board has complied with the requirements of §215.7;

(3) the name, PID, and resume of the proposed training coordinator;

(4) documentation that the training coordinator is in compliance with the responsibilities required by contract, law, or rule, to include but not limited to §215.9;

(5) a schedule of tuition and fees that will be charged, if any;

(6) selection of a training facility and instructional materials that meets inspection requirements identified in §215.3(d), as determined by the commission;

(7) documentation that the training facility meets the federal and state accessibility requirements to which its entity is subject and which apply to the training function, including course materials, course presentation, and facilities; and

(8) at the request of the executive director, the applicant must forward for approval at least one copy of the learning objectives of each course covered by the contract.

(1) the names and description of existing law enforcement training programs in the area;

(2) what specific training needs are to be addressed by the proposed contract; and

(3) the number and types of courses that will be offered during the first quarter of the executed contract.

(d) The chief administrator of the sponsoring organization and the proposed training coordinator must appear before the commissioners to respond to questions prior to action being taken on the application.

(e) Once a contract is issued, the chief administrator of the sponsoring organization, or training coordinator, must report in writing to the commission within 30 days:

(1) any change in chief administrator or training coordinator;

(2) any failure to meet commission rules and standards by the provider, training coordinator, instructors, or advisory board;

(3) any change in provider name, physical location, mailing address, electronic mail address, or telephone number; or

(4) when non-compliance with federal or state requirements is discovered.

(f) A contract is limited to those terms expressly included in the contract or incorporated by reference and is:

(1) in the currently prescribed commission format;

(2) signed by the executive director;

(3) signed by the chief administrator or head of the sponsoring organization; and

(4) signed by the training coordinator responsible for the administration of that training.

(g) A contract may approve the courses and the number of times they will be offered. These contracts are for a stated period of time but may be terminated within 10 days by written notice on the part of either party to the contract. A contract may incorporate by reference a law, rule, or any other document; however, any waiver, exception, or deletion must be expressed.

(h) The commission will award training credit for any course conducted by a contract training provider as provided by commission rules unless:

(1) the training was not conducted in compliance with the contract;

(2) the advisory board, training coordinator or instructor failed to discharge any responsibility required by commission rule; or

(3) the credit was claimed by deceitful means.

(i) A contract to provide distance education courses may be approved if the contractual training provider:

(1) submits a request, for which a recovery fee may be charged, in accordance with the commission's rules or established procedures before the course is offered;

(2) ensures that each course will have one or more sponsors assigned, who shall be responsible both for the conduct of the course and the proctoring of any examination during the course;

(3) ensures that the student, without the use of deceitful means, completes the required coursework, receives a passing grade on any examination or evaluation required by the lesson guide or learning objectives; and

(4) ensures that the student's assigned work is corrected, graded, and reviewed by qualified instructors, and returned to the student via an exchange that provides a personalized student-teacher relationship.

(j) The executive director may suspend a contract for any violation of its terms or of any commission rule or law.

(k) The executive director may terminate a contract if no training is conducted within a calendar year unless the chief administrator has petitioned the executive director for a waiver and the waiver has been granted. Any party may terminate, upon written notice to all other parties, received by the executive director, or the coordinator, or any other named person or office.

(l) The effective date of this section is July 6, 2009.

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 March 10, 2009.

TRD-200901021

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 215. TRAINING AND EDUCATIONAL PROVIDERS AND RELATED MATTERS

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes the repeal of and new Title 37, Texas Administrative Code, §215.6, Academic Alternative Licensing. The section proposed for repeal addresses the requirements for academic alternative licensing. The proposed repeal and new rule would clarify the requirements for academic alternative licensing. These requirements include: entities eligible to apply for academic alternative licensing, requirements for academic alternative licensing, requirements of the dean or chair of the academic program and training coordinator to appear before the commission, reporting requirements of the training coordinator or agency administrator, courses for which the commission will award credit, conditions for which the commission may take disciplinary action, provisions for a voluntary surrender of the license, and effective date.

The proposed action would repeal the current requirements from rule and specify the requirements for academic alternative licensing.

Current §215.6, proposed for repeal, describes the requirements for academic alternative licensing.

Proposed new §215.6, Academic Alternative Licensing, would clarify the requirements for academic alternative licensing. These changes are to establish consistency, continuity, and uniformity of regulations for training providers.

The Commission has determined that for each year of the first five years the repeal and new section are in effect, there will be fiscal implications for state or local governments as a result of administering the proposed repeal and new section.

The Commission has determined that for each year of the first five years the repeal and new section are in effect, there will be no additional cost to small business, individuals, or both.

37 TAC §215.6

The repeal as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.6.Academic Alternative Licensing.

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 March 10, 2009.

TRD-200901022

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.6

The new rule as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.6.Academic Alternative Licensing.

(a) A Texas college or university that is accredited by the Southern Association of Colleges and Schools (SACS) and which has a criminal justice or law enforcement program approved by the Texas Higher Education Coordinating Board (THECB) may make application to conduct training for licensees.

(b) As part of the application process:

(1) documentation of approval from THECB for a criminal justice or law enforcement program;

(2) documentation that an advisory board has been appointed as provided by §215.7 and Texas Occupations Code, §1701.252, including a resume for each board member;

(3) advisory board minutes that show the advisory board has complied with the requirements of §215.7;

(4) the name, PID, and resume of the proposed training coordinator;

(5) documentation that the training coordinator has met the responsibilities required by contract, law, or rule, to include but not limited to §215.9;

(6) an operational budget and a proposed course schedule to show that training will be conducted;

(7) selection of a training facility and instructional materials that meet the inspection requirements identified in §215.3(d), as determined by the commission;

(8) documentation that the program meets the federal and state accessibility requirements to which its entity is subject and which apply to the training function, including course materials, course presentation, and facilities;

(9) documentation of any contractual provision the applicant may have with a licensed academy to provide the sequence courses;

(10) provisions for the Registrar to issue all endorsements; and

(11) at the request of the executive director, the applicant must forward for approval at least one copy of the learning objectives of each alternative course provided.

(1) a description of whom the alternative academic provider will serve and the number of students they expect to train annually;

(2) the basis for these expectations; and

(3) proof of notification by e-mail to all licensed academies within the area of the applicant's intent to apply for an academic alternative provider license.

(d) The dean or chair of the academic program and the proposed training coordinator must appear before the commissioners to respond to questions prior to action being taken on the application.

(e) Once a license is issued, the chief administrator or training coordinator of the academic alternative provider must report in writing to the commission within 30 days:

(1) any change in the dean of the department;

(2) any change in training coordinator;

(3) any failure to meet commission rules and standards by the training coordinator, instructors, or advisory board;

(4) any change in status with SACS and/or THECB;

(5) when non-compliance with federal or state requirements is discovered; or

(6) any change in provider name, physical location, mailing address, electronic mail address, or telephone number.

(f) The commission will award training credit for the academic alternative program when provided by licensed academic alternative providers, unless the:

(1) courses were not conducted in compliance with commission rules;

(2) courses were not conducted in compliance with THECB guidelines;

(3) advisory board, training coordinator, or instructor failed to discharge any responsibility required by rule; or

(4) credit was obtained by deceitful means.

(g) The commission may cancel an academic alternative license if it was issued in error or based on false or incorrect information.

(h) The commission may suspend an academic alternative license, or the executive director or his designee may issue a written reprimand to the dean of the department, if:

(1) the academic alternative provider fails to comply with commission rules or any law; or

(2) the academic alternative provider has been classified as at risk under §215.13 of this chapter.

(i) The commission may revoke an academic alternative license if:

(1) the academic alternative provider has been classified as at risk under §215.13 of this chapter for a 12-month period without complying with commission rules;

(2) the academic alternative provider has lost either SACS accreditation or THECB approval; or

(3) the training coordinator intentionally or knowingly submits a falsified document or a false written statement or representation to the commission.

(j) An academic alternative provider may surrender its license at any time for any reason. To surrender the license, the dean of the department must send written notice, accompanied by the license, to the executive director. The surrender is effective immediately upon receipt by the executive director.

(k) The effective date of this section is July 6, 2009.

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 March 10, 2009.

TRD-200901023

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.7

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §215.7, Training Provider Advisory Boards. Subsection (a) is amended to clarify the composition of the advisory board. Subsection (b) is amended to clarify the requirements of board members. Subsection (c) is amended to identify a board chair. Subsection (d) is amended to make reference to the board chair. Subsection (f) is amended to include academic alternative programs. Subsection (i) is amended to clarify the duties of the board. Subsection (l) is amended to reflect the effective date of these changes.

These amendments are necessary to ensure that the advisory board requirement is clear to all types of training providers.

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 for 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 clarifying the advisory board requirements for all training providers.

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.

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.252, Program and School Requirements; Advisory Board and §1701.052, Eligibility of Public Members.

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

§215.7.Training Provider Advisory Board.

(a) All training providers approved by the commission must establish and maintain an advisory board, as required by the Texas Occupations Code, §1701.252. The [~~To be established, this~~] board must have at least three members who are appointed by the sponsoring organization. Board [~~To be maintained, the active, appointed~~] membership [~~of the board~~] must not fall below a quorum for more than 30 days. A quorum of the advisory board is defined as a minimum of 51% of the voting membership.

(b) The board may have members who are law enforcement personnel; however, one-third of the members must be public members, as defined [~~having the same qualifications, found~~] in the Texas Occupations Code, §1701.052, having the same qualification as any commissioner who is required by law to be a member of the general public. The chief administrator, or head of the sponsoring organization, and the designated training coordinator may only serve as [be] ex-officio, non-voting members.

(c) The chief administrator, or head of the sponsoring organization, may appoint a board chair, [ ~~chairman~~] or the board may elect a board member to serve as the board chair [~~chairman~~]. The board may elect other officers and set its own rules of procedure. A quorum must be present in order to conduct business.

(d) A board must meet at least once each calendar year. More frequent meetings may be called by the board chair [ ~~its chairman~~], the training coordinator, or the person who appoints the board.

(e) A board will keep written minutes of all meetings. These minutes must be retained for at least five years and a copy forwarded to the commission upon request.

(f) Board members will be appointed by the following authority:

(1) for an agency academy, by the chief administrator as defined in §211.1 of this chapter [~~title (relating to definitions)~~];

(2) for a college academy, by the dean or other person who appoints the training coordinator;

(3) for a regional academy, by the head of the council of governments or other sponsoring entity holding the academy license from names submitted by chief administrators from that area; [or]

(4) for a contractual training provider, by the chief administrator; or [.]

(5) for an academic alternative provider, by the dean or other person who appoints the training coordinator.

(g) A member may be removed by the appointing authority.

(h) A board is generally responsible for advising on the development of curricula and any other related duty that may be required by the commission.

(i) The board must, as specific duties:

(1) [~~effectively~~] discharge its responsibilities and otherwise comply with commission rules;

(2) advise on the need to study, evaluate, and identify specific training needs;

(3) advise on the determination of the types, frequency, and location of courses to be offered; [~~and~~]

(4) advise on the establishment of the standards for admission, prerequisites, minimum and maximum class size, attendance, and retention; and [.]

(5) advise on the order of preference among employees or prospective appointees of the sponsoring organization and other persons, if any.

(j) [A board must advise on the establishment of admission standards, and determine the order of preference between employees or prospective appointees of the sponsoring organization and other persons, if any.] No person may be admitted to a training course without meeting the admission standards. The admission standards for licensing courses must be available for review by the commission upon request.

(k) A board may, when discharging its responsibilities, request that a report be made or some other information be provided to them by a training or course coordinator.

(l) The effective date of this section is July 6, 2009 [ ~~December 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 March 10, 2009.

TRD-200901024

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.9

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §215.9, Training Coordinator. Subsection (b) is amended to clarify the responsibilities of the training coordinator. Subsection (c) is amended to allow for petition for a waiver of the training coordinator requirements for a vacant coordinator position. Subsection (d) is amended to allow for petition for a waiver of the full-time paid employee requirement. Subsection (e) is amended to reflect the effective date of these changes.

These amendments are necessary to ensure that the responsibilities of a training coordinator are clear to all types of training providers.

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 clarifying the responsibilities of a training coordinator for all types of training providers.

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.251, Training Programs; Instructors, and §1701.153, Reports from Agencies and Schools.

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

§215.9.Training Coordinator.

(a) A training coordinator must hold a valid instructor license or certificate and must be a full-time paid employee.

(b) The training coordinator must:

(1) ensure compliance with commission rules and guidelines;

(2) prepare, maintain, and submit the following reports within the time frame specified:

(A) reports of training - to be submitted prior to the issuance of any endorsement for a licensing examination for a course leading to a license and within 30 days of completion of each continuing education course;

(B) self-assessment reports as required by the commission;

(D) training calendars-schedules must be available for review or posted on the internet no later than 30 days prior to the beginning of each calendar quarter or academic semester;

(E) any other reports or records as requested by the commission;

(3) be responsible for the administration and conduct of each course, including those conducted at ancillary sites, and specifically:

(A) appointing and supervising qualified instructors;

(B) maintaining course schedules and course files, including lesson plans;

(D) securing and maintaining all facilities necessary to meet the inspection standards of this section;

(E) controlling the discipline and demeanor of each student and instructor during class;

(F) distributing a current version of the Texas Occupations Code, Chapter 1701 and commission rules to all students at the time of admission to any course that may result in the issuance of a license;

(G) distributing learning objectives to all students at the beginning of each course;

(H) ensuring that all learning objectives are taught and evaluated;

(I) proctoring or supervising all examinations to ensure fair, honest results; and

(J) maintaining records of tests and other evaluation instruments for a period of five years.

(4) receive all commission notices on behalf of the training provider and forward each notice to the appointing authority; and

(5) attend or have a designee attend each academy coordinator's workshop conducted by the commission.

~~[(1) prepare, maintain, and submit the following reports within the time frame specified:]~~

[(A) reports training - to be submitted prior to the issuance of any endorsement for a licensing examination for a course leading to a license and within 30 days of completion of each continuing education course;]

~~[(B) self-assessment reports as required by the commission;]~~

~~[(C) a copy of advisory board minutes to be submitted during an on-site evaluation;]~~

~~[(D) training calendars or schedules must be available for review or posted on the Internet no later than 30 days prior to the beginning of each calendar quarter or academic semester;]~~

~~[(E) any other reports or records as requested by the commission;]~~

~~[(2) be responsible for the administration and conduct of each course, including those conducted at ancillary sites, and specifically:]~~

~~[(A) appointing and supervising qualified instructors;]~~

~~[(B) maintaining course schedules and course files, including lesson plans;]~~

~~[(C) securing and maintaining all facilities necessary to meet the inspection standards of this section;]~~

~~[(D) enforcing all admission, attendance, retention, and other standards set by the commission and the advisory board;]~~

[(E) distributing learning objectives to all students at the beginning of each course and ensure that all learning objectives are taught properly and evaluated, that all training is effective, and that no required instruction periods are consumed by matters that are frivolous or unrelated to the scheduled training;]

[(F) distributing a current version of the commission rules and law to all students at the time of application for admission, and ensuring that a review of the rules of the commission pertaining to continuing education for licensees, annual firearms proficiency, reporting responsibilities of individuals, revocation, suspension and voluntary surrender of licenses, proficiency certificates and the law enforcement achievement awards are part of any course that may result in the issuance of a license;]

~~[(G) controlling the discipline and demeanor of each student and instructor during class;]~~

~~[(H) proctoring or supervising all examinations to ensure fair, honest results; and]~~

~~[(I) maintaining records of tests and other evaluation instruments for a period of five years.]~~

~~[(3) receive all commission notices on behalf of the training provider and forward each notice to the appointing authority; and]~~

~~[(4) attend or have a designee attend each academy coordinator's workshop conducted by the commission.]~~

(c) If the position of training coordinator becomes vacant, upon written request from the chief administrator of the training provider the commission may, at the discretion of the executive director, waive the requirements for a period not to exceed six months.

>(d) Upon written request from the chief administrator of a training provider that does not have a full-time paid staff, the commission may, at the discretion of the executive director, waive the requirements in subsection (a) of this section.

[(c) If the position of training coordinator becomes vacant, the commission may, at the discretion of the executive director and upon petition of the chief administrator of the training provider, waive the requirement for a full-time paid and assigned training coordinator for a period not to exceed six months.]

[(d) Upon petition of the chief administrator of a training provider that does not have a full-time paid staff, the commission may, at the discretion of the executive director, waive the requirement for a full-time paid training coordinator.]

(e) The effective date of this section is July 6, 2009 [ ~~March 1, 2007~~].

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 March 10, 2009.

TRD-200901025

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.11

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §215.11, Training Provider Evaluations. Subsection (b) is amended to identify the items used to assess the performance of training providers. Subsection (c) is added to identify the distribution of the evaluation results. Subsection (d) is amended to reflect the effective date of these changes. Subsection (e) is deleted.

These amendments are necessary to ensure that the assessment items are clear to all types of training providers.

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 clarifying the assessment items for all training providers.

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.254, Risk Assessment and Inspections, §1701.153, Reports from Agencies and Schools, and §1701.251, Training Programs; Instructors.

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

§215.11.Training Provider Evaluations.

(a) All training providers shall be evaluated periodically and randomly. Providers with deficiencies will be evaluated more frequently, as determined by the commission.

(b) The commission may use the following information in assessing the performance of training providers:

(1) licensing examination results;

(2) reports from past evaluation records;

(3) self-assessment reports;

(4) on-site evaluations;

(5) reports and evaluations from students, law enforcement agencies, and citizens;

(6) commission records;

(7) course records;

(8) observations by commission staff;

(9) information used as risk assessment factors; and

(10) any other relevant information about performance and practices.

(c) The results of the evaluation will be forwarded to the chief administrator, training coordinator, advisory board chair.

(d) The effective date of this section is July 6, 2009.

~~[(b) All training providers shall submit a self-assessment report each state fiscal year other types of evaluation methods, including, but not limited to, on-site evaluations may be used.]~~

[(c) An evaluation of the training provider will be based upon the current evaluation method(s) used. The results of the evaluation will be forwarded to the chief administrator, training coordinator, advisory board chair and other appropriate persons associated with the training provider.]

~~[(d) The commission uses the following information in assessing the performance of training providers:]~~

~~[(1) licensing examination results;]~~

~~[(2) reports from past evaluation records;]~~

~~[(3) self-assessment reports;]~~

~~[(4) reports and evaluations from students, law enforcement agencies, and citizens;]~~

~~[(5) commission records;]~~

~~[(6) course records;]~~

~~[(7) observations by commission staff;]~~

~~[(8) information used as risk assessment factors; and]~~

~~[(9) any other relevant information about performance and practices.]~~

~~[(e) The effective date of this section is 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 March 10, 2009.

TRD-200901026

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §215.13

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §215.13, Risk Assessment. Subsections (a) - (c) are amended for language clean up. Subsection (d) is amended to identify actions training providers must take after being found at risk. Subsection (e) is amended to identify action taken against training providers found at risk. Subsection (f) is amended to provide notification of at risk status. Subsection (g) is added to reflect the effective date of these changes.

These amendments are necessary to ensure that the risk assessment requirements are clear to all types of training providers.

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 clarifying the risk assessment requirements for all types of training providers.

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

§215.13.Risk Assessment.

(a) A law enforcement academy may be found at risk if:[;]

(1) after January 1, 2003, if the passing rate on a licensing examination for first attempts for any state fiscal year is less than 70 percent of the students attempting the licensing exam;

(2) after September 1, 2009, [if] the passing rate on a licensing exam for first attempts for any three consecutive state fiscal years, beginning with state fiscal year 2007 (September 1, 2006 through August 31, 2007) is less than 80 percent of the students attempting the licensing exam;

(3) [if] commission required learning objectives are not taught;

(4) [if] lesson plans for classes conducted are not on file;

(5) [if] examination and other evaluative scoring documentation is not on file;

(6) [if] the academy files false reports to the commission;

(7) [if] the academy makes repeated errors in reporting;

(8) [if] the academy does not respond to commission requests for information;

(9) [if] the academy does not comply with commission rules or other applicable law;

(10) [if] the academy does not achieve the goals identified in its application for a license;

(11) [if] the academy does not meet the needs of the officers and law enforcement agencies served; or

(12) [if] the commission has received sustained complaints or evaluations from students or the law enforcement community concerning the quality of training or failure to meet training needs for the service area.

(b) A contractual provider may be found at risk if: [;]

(1) the contractor provides licensing courses and fails to comply with the passing rates in subsection (a)(1) of this section; [~~for the same reasons in subsection (a) (1)-(2) if licensing courses or components are provided;~~]

(2) [if] lesson plans for classes conducted are not on file;

(3) [if] examination and other evaluative scoring documentation is not on file;

(4) [if] the provider submits [~~files~~ ] false reports to the commission;

(5) [if] the provider makes repeated errors in reporting;

(6) [if] the provider does not respond to commission requests for information;

(7) [if] the provider does not comply with commission rules or other applicable law;

(8) [if] the provider does not achieve the goals identified in its application for a license or contract;

(9) [if] the provider does not meet the needs of the officers and law enforcement agencies served; or

(10) [if] the commission has received sustained complaints or evaluations from students or the law enforcement community concerning the quality of training or failure to meet training needs for the service area.

(1) after January 1, 2003, if the passing rate on a licensing examination for first attempts for any 3 state fiscal year period is less than 70 percent of the students attempting the licensing exam;

(3) [if] courses are not conducted in compliance with Higher Education Program Guidelines accepted by the commission;

(4) [if] the commission required learning objectives are not taught;

(5) [if] the program submits [~~files~~ ] false reports to the commission;

(6) [if] the program makes repeated errors in reporting;

(7) [if] the program does not respond to commission requests for information;

(8) [if] the program does not comply with commission rules or other applicable law;

(9) [if] the program does not achieve the goals identified in its application for a license or contract;

(10) [if] the program does not meet the needs of the students and law enforcement agencies served; or

(11) [if] the commission has received sustained complaints or evaluations from students or the law enforcement community concerning the quality of education or failure to meet education needs for the service area.

(d) If at risk, the chief administrator of the sponsoring organization, or the training coordinator, must report to the commission in writing within 30 days what steps have been taken to correct deficiencies and on what date they expect to be in compliance. [~~At risk training providers must follow commission directives.~~]

(e) The commission may take action to revoke their license or contract. The commission may choose not to renew a license or contract with a program that has been found to be at risk or the commission may renew the contract for a shorter period than stated in §215.1 of this title. [A training or educational program at risk must notify all students and potential students of their at risk status. The commission may take action to revoke their license or contract. The commission may choose not to renew a license or contract with a program that has been found to be at risk or the commission may renew the contract for a shorter period than stated in §215.1 of this title.]

(f) A training or educational program at risk must notify all students and potential students of their at risk status. [~~The effective date of this section is June 1, 2007.~~]

(g) The effective date of this section is July 6, 2009.

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 March 10, 2009.

TRD-200901027

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 217. LICENSING REQUIREMENTS

37 TAC §217.1

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §217.1, Minimum Standards for Initial Licensure. Subsection (b) is amended to clarify out-of-state convictions. Subsection (c) is amended to clarify felony convictions. Subsection (d) is added to identify factors considered for mitigating circumstances. Subsection (e) is amended to clarify training requirements. Subsection (f) is amended to clarify licensing of elected officials. Subsection (g) is amended to clarify the licensing requirements for sheriffs. Subsection (h) is amended to clarify the licensing requirements for constables. Subsection (i) is amended to clarify the provisional licensing requirements. Subsection (j) is amended to clarify the temporary jailer licensing requirements. Subsection (k) is amended to clarify the cancellation of a license. Subsection (l) is amended to reflect the effective date. Subsections (m), (n), and (o) have been deleted.

These amendments are necessary to clarify licensing requirements and to identify which factors will be considered for mitigating circumstances.

The Commission has determined that for each year of the first five years the section as proposed will be in effect, there will be fiscal implications for 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 identifying which factors will be considered for mitigating circumstances.

The rule amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.253, School Curriculum, §1701.256, Instruction in Weapons Proficiency Required, §1701.301, License Required, §1701.302, Certain Elected Law Enforcement Officers; License Required, §1701.306, Psychological and Physical Examination, §1701.307, Issuance of License, §1701.309, Age Requirement, §1701.310, Appointment of County Jailer; Training Required, and §1701.311, Provisional License for Workforce Shortage.

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

§217.1.Minimum Standards for Initial Licensure.

(a) The commission shall issue a peace officer, jailer, temporary jailer, or public security officer license to an applicant who meets the following standards:

(1) minimum educational requirements:

(A) has passed a general educational development (GED) test indicating high school graduation level;

(B) is a high school graduate; or

(2) for peace officers and public security officers, is 21 years of age, or 18 years of age if the applicant has received an associate's degree or 60 semester hours of credit from an accredited college or university or has received an honorable discharge from the armed forces of the United States after at least two years of active service; for jailers is 18 years of age;

(3) is fingerprinted and is subjected to a search of local, state and U.S. national records and fingerprint files to disclose any criminal record;

(4) community supervision history:

(A) has not ever have been on court-ordered community supervision or probation for any criminal offense above the grade of Class B misdemeanor or a Class B misdemeanor within the last ten years from the date of the court order; but

(B) the commission may approve the application of a person who received probation or court-ordered community supervision for a Class B misdemeanor at least five (5) years prior to application if an agency administrator sufficiently demonstrates in writing with supporting documentation that mitigating circumstances exist with the case and with the individual applying for licensure, and that the public interest would be served by reducing the waiting period;

(5) is not currently charged with any criminal offense for which conviction would be a bar to licensure;

(6) conviction history:

(A) has not ever been convicted of an offense above the grade of a Class B misdemeanor or a Class B misdemeanor within the last ten years; but

(B) the commission may approve the application of a person who was convicted for a Class B misdemeanor at least five (5) years prior to application if an agency administrator sufficiently demonstrates in writing with supporting documentation that mitigating circumstances exist with the case and with the individual applying for licensure, and that the public interest would be served by reducing the waiting period;

(7) has never been convicted of any family violence offense;

(8) is not prohibited by state or federal law from operating a motor vehicle;

(9) is not prohibited by state or federal law from possessing firearms or ammunition;

(10) has been subjected to a background investigation and has been interviewed prior to appointment by representatives of the appointing authority;

(11) has been examined by a physician, selected by the appointing or employing agency, who is licensed by the Texas Medical Board. The physician must be familiar with the duties appropriate to the type of license sought and appointment to be made. The appointee must be declared in writing by that professional within 180 days before the date of appointment by the agency to be:

(A) physically sound and free from any defect which may adversely affect the performance of duty appropriate to the type of license sought;

(B) show no trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test; and

(C) for the purpose of meeting the requirements for initial licensure, an individual's satisfactory medical exam that is conducted as a requirement of a basic licensing course may remain valid for 180 days from the individual's date of graduation from that academy, if accepted by the appointing agency;

(12) has been examined by a psychologist, selected by the appointing or employing agency, who is licensed by the Texas State Board of Examiners of Psychologists. The psychologist must be familiar with the duties appropriate to the type of license sought and appointment to be made. This examination may also be conducted by a psychiatrist. The appointee must be declared in writing by that professional to be in satisfactory psychological and emotional health to serve as the type of officer for which the license is sought within 180 days before the date of appointment by the agency. The examination must be conducted pursuant to professionally recognized standards and methods:

(A) the commission may allow for exceptional circumstances where a licensed physician performs the evaluation of psychological and emotional health. This requires the appointing agency to request in writing and receive approval from the commission, prior to the evaluation being completed;

(B) the examination may be conducted by qualified persons identified by §501.004, Texas Occupations Code. This requires the appointing agency to request in writing and receive approval from the commission, prior to the evaluation being completed; and

(C) for the purpose of meeting the requirements for initial licensure, an individual's satisfactory psychological exam that is conducted as a requirement of a basic licensing course may remain valid for 180 days from the individual's date of graduation from that academy, if accepted by the appointing agency;

(13) has not 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;

(14) has not had a commission license denied by final order or revoked;

(15) is not currently on suspension, or does not have a voluntary surrender of license currently in effect;

(16) meets the minimum training standards and passes the commission licensing examination for each license sought;

(17) has not violated any commission rule or provision of Occupations Code, Chapter 1701; and

(18) is a U.S. citizen.

(b) For the purposes of this section, the commission will construe any court-ordered community supervision, probation or conviction for a criminal offense to be its closest equivalent under the Texas Penal Code classification of offenses if the offense arose from:

(1) another penal provision of Texas law; or

(2) a penal provision of any other state, federal, military or foreign jurisdiction.

(c) A classification of an offense as a felony at the time of conviction will never be changed because Texas law has changed or because the offense would not be a felony under current Texas laws.

(d) In evaluating whether mitigating circumstances exist, the commission will consider the following factors:

(1) the applicant's history of compliance with the terms of community supervision;

(2) the applicant's continuing rehabilitative efforts not required by the terms of community supervision;

(3) the applicant's employment record;

(4) whether the disposition offense contains an element of actual or threatened bodily injury or coercion against another person under the Texas Penal Code or the law of the jurisdiction where the offense occurred;

(5) the required mental state of the disposition offense;

(6) whether the conduct resulting in the arrest resulted in the loss of or damage to property or bodily injury;

(7) the type and amount of restitution made by the applicant;

(8) the applicant's prior community service;

(9) the applicant's present value to the community;

(10) the applicant's post-arrest accomplishments;

(11) the applicant's age at the time of arrest; and

(12) the applicant's prior military history.

(e) A person must successfully complete the minimum training required for the license sought:

(1) training for the peace officer license consists of:

(A) the current basic peace officer course;

(B) a commission recognized, POST developed, basic law enforcement training course, to include:

(i) out of state licensure or certification; and

(ii) submission of the current eligibility application and fee; or

(C) a commission approved academic alternative program, taken through a licensed academic alternative provider, and after September 1, 2003, at least an associate's degree.

(2) training for the jailer license consists of the current basic county corrections course(s);

(3) training for the public security officer license consists of the current basic peace officer course; and

(4) passing any examination required for the license sought while the endorsement remains valid.

(f) The commission shall issue a peace officer or jailer license to any person who is otherwise qualified for that license, even if that person is not subject to the licensing law or rules by virtue of election or appointment to office under the Texas Constitution.

(g) A sheriff who first took office on or after January 1, 1994, must meet the licensing requirements of Texas Occupations Code §1701.302.

(h) A constable taking office after August 30, 1999, must meet the licensing requirements of Texas Local Government Code §86.0021.

(i) The commission may issue a provisional license, consistent with Texas Occupations Code §1701.311, to an agency for a person to be appointed by that agency. An agency must submit all required applications currently prescribed by the commission and all required fees before the individual is appointed. Upon the approval of the application, the commission will issue a provisional license. A provisional license is issued in the name of the applicant; however, it is issued to and shall remain in the possession of the agency. Such a license may neither be transferred by the applicant to another agency, nor transferred by the agency to another applicant. A provisional license may not be reissued and expires:

(1) 12 months from the original appointment date;

(2) on leaving the appointing agency;

(3) on the date the holder fails the peace officer licensing examination for the third time; or

(4) on failure to comply with the terms stipulated in the provisional license approval.

(j) The commission may issue a temporary jailer license, consistent with Texas Occupations Code §1701.310. An agency must submit all required applications currently prescribed by the commission and all required fees before the individual is appointed. Upon the approval of the application, the commission will issue a temporary jailer license. A temporary jailer license expires:

(1) 12 months from the original appointment date;

(2) on completion of training and passing of the jailer licensing examination; or

(3) on the date the holder fails the jailer licensing examination for the third time.

(k) A person who fails to comply with the standards set forth in this section shall not accept the issuance of a license and shall not accept any appointment. If an application for licensure is found to be false or untrue, it is subject to cancellation or recall.

(l) The effective date of this section is July 6, 2009.

[(b) A person who fails to comply with the standards set forth in this section shall not accept the issuance of a license and shall not accept any appointment. If an application for licensure is found to be false or untrue, it is subject to cancellation or recall.]

[(c) For the purposes of this section, the commission will construe any court-ordered community supervision, probation or conviction for a criminal offense to be its closest equivalent under the Texas Penal Code classification of offenses if the offense arose from:]

~~[(1) another penal provision of Texas law; or]~~

~~[(2) a penal provision of any other state, federal, military or foreign jurisdiction.]~~

~~[(d) A classification of an offense as a felony at the time of conviction will never be changed because Texas law has changed or because the offense would not be a felony under current Texas laws.]~~

[(e) An agency must retain records required under this section for a minimum of five years after the licensee's termination date with that agency. These records must be maintained in a format readily accessible to the commission.]

[(f) An agency must report to the commission any failure to appoint an individual in the reported capacity within 30 days of the reported date of appointment. Such report must be made in the currently prescribed commission format for termination.]

~~[(g) A person must successfully complete the minimum training required for the license sought:]~~

~~[(1) training for the peace officer license consists of:]~~

~~[(A) the current basic peace officer course; or]~~

~~[(B) successful completion of a commission recognized, POST developed, basic law enforcement training course, to include:]~~

~~[(i) out of state licensure or certification; and]~~

~~[(ii) submission of the current eligibility application and fee; or]~~

[(C) as an alternative to the current basic peace officer course taken at a licensed academy, the commission may approve an academic alternative program that is part of a degree plan program and consists of the commission-approved transfer curriculum, the commission-approved peace officer sequence courses, and after September 1, 2003, at least an associate's degree;]

~~[(2) training for the jailer license consists of the current basic county corrections course(s);]~~

~~[(3) training for the public security officer license consists of the current basic peace officer course;]~~

~~[(4) passing any examination required for the license sought while the endorsement remains valid, and]~~

[(5) the licensing application must be submitted to the commission by a law enforcement or other appointing agency in the completed application format currently prescribed by the commission for the license sought.]

[(h) The commission shall issue a peace officer or jailer license to any person who is otherwise qualified for that license, even if that person is not subject to the licensing law or rules by virtue of election or appointment to office under the Texas Constitution.]

~~[(i) A sheriff who first took office on or after January 1, 1994, must be licensed by the commission not later than two years after taking office.]~~

~~[(j) A constable taking office after August 30, 1999, must be licensed by the commission not later than 270 days after taking office.]~~

[(k) The commission may issue a provisional license, consistent with Texas Occupations Code 1701.311, to an agency for a person to be appointed by that agency. An agency must submit all required applications currently prescribed by the commission and all required fees before the individual is appointed. Upon the approval of the application, the commission will issue a provisional license.]

[(l) A provisional license is issued in the name of the applicant; however, it is issued to and shall remain in the possession of the agency. Such a license may neither be transferred by the applicant to another agency, nor transferred by the agency to another applicant.]

~~[(m) A provisional license may not be reissued and expires:]~~

~~[(1) 12 months from the original appointment date;]~~

~~[(2) on leaving the appointing agency;]~~

~~[(3) on the date the holder fails the peace officer licensing examination for the third time; or]~~

~~[(4) on failure to comply with the terms stipulated in the provisional license approval.]~~

~~[(n) A temporary jailer license may not be reissued and expires:]~~

~~[(1) 12 months from the original appointment date;]~~

~~[(2) on completion of training and passing of the jailer licensing examination; or]~~

~~[(3) on the date the holder fails the jailer licensing examination for the third time.]~~

~~[(o) The effective date of this section is January 1, 2009.]~~

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 March 11, 2009.

TRD-200901029

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 221. PROFICIENCY CERTIFICATES AND OTHER POST-BASIC LICENSES

37 TAC §221.1

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §221.1, Proficiency Certificate Requirements. Subsection (a) is amended to clarify that all certificates under this chapter are voluntary. Subsection (f) is amended to reflect the effective date of these changes.

These amendments are necessary to clarify that any certificate issued by the Commission is voluntary and granted to those qualified individuals that make application.

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 continuing to grant voluntary proficiency certificates to qualified law enforcement personnel.

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.402, Proficiency Certificates.

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

§221.1.Proficiency Certificate Requirements.

(a) To qualify for any of the voluntary proficiency certificates in this chapter, applicants must meet all the following proficiency requirements:

(1) submit any required application currently prescribed by the commission, requested documentation, and any required fee;

(2) have an active license or appointment for the corresponding certificate (not a requirement for Mental Health Officer Proficiency, Retired Peace Officer and Federal Law Enforcement Officer Firearms Proficiency, Firearms Instructor Proficiency, Firearms Proficiency for Community Supervision Officers, or Instructor Proficiency);

(3) officers licensed after the effective date of this rule must not currently have license(s) under suspension by the commission [~~Commission~~];

(4) meet the continuing education requirements for the previous training cycle; and

(5) for firearms related certificates, not be prohibited by state or federal law or rule from attending training related to firearms or from possessing a firearm.

(b) The commission may refuse an application if:

(1) an applicant has not been reported to the commission as meeting all minimum standards, including any training or testing requirements;

(2) an applicant has not affixed any required signature;

(3) required forms are incomplete;

(4) required documentation is incomplete, illegible, or is not attached; or

(5) an application contains a false assertion by any person.

(c) The commission shall cancel and recall any certificate if the applicant was not qualified for its issue and it was issued:

(1) by mistake of the commission or an agency; or

(2) based on false or incorrect information provided by the agency or applicant.

(d) If an application is found to be false, any license or certificate issued to the appointee by the commission will be subject to cancellation and recall.

(e) Academic degree(s) must be issued by an accredited college or university.

(f) The effective date of this section is July 6, 2009 [ ~~January 1, 2009~~].

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 March 11, 2009.

TRD-200901030

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 223. ENFORCEMENT

37 TAC §223.15

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §223.15, Suspension of License. Subsection (i) is added to identify factors considered for mitigating circumstances. Subsection (j) is amended to clarify the beginning date for a suspension. Subsection (k) is amended to clarify the probation of a suspension. Subsection (l) is amended to clarify terms of probation. Subsection (m) is amended to clarify the length of probation. Subsection (n) is amended to clarify the conditions for extending a suspension. Subsection (o) is amended to clarify requirements for reinstatement. Subsection (p) is amended to clarify the notification responsibilities of the Commission. Subsection (q) is amended to clarify the length of a suspension. Subsection (r) is amended to reflect the effective date of these changes.

These amendments are necessary to identify which factors will be considered for mitigating circumstances.

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.501, Disciplinary Action and §1701.502, Felony Conviction or Placement on Community Supervision.

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

§223.15.Suspension of License.

(a) - (h) (No change.)

(i) In evaluating whether mitigating circumstances exist, the commission will consider the following factors:

(1) the licensee's history of compliance with the terms of community supervision;

(2) the licensee's continuing rehabilitative efforts not required by the terms of community supervision;

(3) the licensee's employment record;

(5) the required mental state of the disposition offense;

(6) whether the conduct resulting in the arrest resulted in the loss of or damage to property or bodily injury;

(7) the type and amount of restitution made by the licensee;

(8) the licensee's prior community service;

(9) the licensee's present value to the community; and

(10) the licensee's post-arrest accomplishments.

(j) [~~(i)~~] A suspension or probation may be ordered to run concurrently or consecutively with any other suspension or probation. The beginning date of a probation must be within the term of suspension. The beginning date of the suspension shall be:

(1) any date agreed to by both parties, which is no earlier than the date of the rule violation;

(2) the date the licensee notifies the commission in writing of the rule violation if the commission later receives a signed waiver of suspension from the licensee that was postmarked within 30 days of its receipt;

(3) the date the commission final order is entered in a contested case or the date it becomes effective, if that order is appealed.

(k) [~~(j)~~] The executive director shall inform the commissioners of any such probation or reprimand no later than at their next regular meeting. If probated either way, a suspension may not be probated for less than six months.

(l) [~~(k)~~] The commission may impose reasonable terms of probation, such as:

(1) continued employment requirements;

(2) special reporting conditions;

(3) special document submission conditions;

(4) voluntary duty requirements;

(5) no further rule or law violations; or

(6) any other reasonable term of probation.

(m) [~~(l)~~] A probated license remains probated until:

(1) the term of suspension has expired;

(2) all other terms of probation have been fulfilled; and

(3) a written request for reinstatement has been received and accepted by the commission from the licensee unless the probation has been revoked by the commission for violation of probation; or

(4) until revoked.

(n) [~~(m)~~] Twelve months may be added to the term of a new suspension for each separate previous violation that has resulted in either a license suspension, a probated suspension, or a written reprimand before the beginning date of the new suspension.

(o) [~~(n)~~] Before reinstatement, the probation of a suspended license may be revoked upon a showing that any of its terms have been violated before the expiration date of the probation regardless of when the petition is filed. Upon revocation, the full term of suspension shall be imposed with credit for any time already served on that suspension.

(p) [~~(o)~~] Once a license has been suspended, the suspension probated, the probation revoked, or the licensee reprimanded, the commission shall 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.

(q) [~~(p)~~] A suspended license remains suspended until:

(1) the term of suspension has expired and the term of court-ordered community supervision has been completed; and

(2) a written request for reinstatement has been received from the licensee and accepted by the commission; or

(3) the remainder of the suspension is probated and the license is reinstated.

(r) [~~(q)~~] The effective date of this section is July 6, 2009 [~~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 March 11, 2009.

TRD-200901031

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §223.16

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §223.16, Suspension of License for Constitutionally Elected Officials. Subsection (i) is added to identify factors considered for mitigating circumstances. Subsection (j) is amended to clarify the beginning date for a suspension. Subsection (k) is amended to clarify the probation of a suspension. Subsection (l) is amended to clarify terms of probation. Subsection (m) is amended to clarify the length of probation. Subsection (n) is amended to clarify the conditions for extending a suspension. Subsection (o) is amended to clarify requirements for reinstatement. Subsection (p) is amended to clarify the notification responsibilities of the commission. Subsection (q) is amended to clarify the length of a suspension. Subsection (r) is added to reflect the effective date of these changes.

These amendments are necessary to identify which factors will be considered for mitigating circumstances.

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

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.501, Disciplinary Action, and §1701.502, Felony Conviction or Placement on Community Supervision.

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

§223.16.Suspension of License for Constitutionally Elected Officials.

(a) Unless revocation is explicitly authorized by law, the commission may suspend any license issued by the commission to a constitutionally elected licensee if the licensee:

(1) violates any provision of these sections;

(2) violates any provision of the Occupations Code, Chapter 1701;

(3) is convicted of a criminal offense;

(4) is charged with the commission of a misdemeanor, adjudication is deferred, and the licensee is placed on community supervision; or

(5) has previously received two written reprimands from the commission.

(b) The commission may suspend a license even though it may have become inactive by some other means, such as:

(1) expiration;

(2) voluntary surrender;

(3) two-year break in service; or

(4) any other means.

(c) If a licensee is charged with the commission of a felony, adjudication is deferred, and the licensee is placed on community supervision, the commission shall immediately suspend any license held for a period of 20 years. The suspension of any license under this subsection is effective immediately when the commission receives a certified copy of a court's judgment and issues notice to the licensee via certified mail that any license held is suspended.

(d) If a judgment and sentence is entered resulting in a misdemeanor conviction above the grade of a Class C misdemeanor, the term of suspension shall be ten years.

(e) The commission may suspend for not less than six months and not more than 24 months the license of a constitutionally elected officer convicted or who receives a deferred adjudication for a Class C misdemeanor that was directly related to the duties and responsibilities of office, after the commission has considered, where applicable, the factors listed in the revocation section.

(f) If the court's judgment or adjudication is deferred for any misdemeanor above the grade of Class C misdemeanor or any family violence offense, and the licensee is then placed on community supervision, the term of suspension shall be equal to the actual time served on community supervision.

(g) If a license can be suspended for a community supervision or misdemeanor conviction, the commissioners may, in their discretion and upon proof of mitigating factors, either:

(1) probate all or part of the suspension term during a probation term of up to twice the maximum suspension term; or

(2) issue a written reprimand in lieu of suspension.

(h) If a license can be suspended for any other reason, the commission, through its executive director may, in its discretion and upon proof of the same mitigating factors, either:

(1) probate all or part of the suspension term during a probation term of up to twice the maximum suspension term; or

(2) issue a written reprimand in lieu of suspension.

(i) In evaluating whether mitigating circumstances exist, the commission will consider the following factors:

(1) the licensee's history of compliance with the terms of community supervision;

(2) the licensee's continuing rehabilitative efforts not required by the terms of community supervision;

(3) the licensee's employment record;

(5) the required mental state of the disposition offense;

(6) whether the conduct resulting in the arrest resulted in the loss of or damage to property or bodily injury;

(7) the type and amount of restitution made by the licensee;

(8) the licensee's prior community service;

(9) the licensee's present value to the community; and

(10) the licensee's post-arrest accomplishments.

(j) A suspension or probation may be ordered to run concurrently or consecutively with any other suspension or probation. The beginning date of a probation must be within the term of suspension. The beginning date of the suspension shall be:

(1) any date agreed to by both parties, which is no earlier than the date of the rule violation;

(3) the date the commission final order is entered in a contested case or the date it becomes effective, if that order is appealed.

(k) The executive director shall inform the commissioners of any such probation or reprimand no later than at their next regular meeting. If probated either way, a suspension may not be probated for less than six months.

(l) The commission may impose reasonable terms of probation, such as:

(1) continued employment requirements;

(2) special reporting conditions;

(3) special document submission conditions;

(4) voluntary duty requirements;

(5) no further rule or law violations; or

(6) any other reasonable term of probation.

(m) A probated license remains probated until:

(1) the term of suspension has expired;

(2) all other terms of probation have been fulfilled; and

(3) a written request for reinstatement has been received and accepted by the commission from the licensee unless the probation has been revoked by the commission for violation of probation; or

(4) until revoked.

(n) Twelve months may be added to the term of a new suspension for each separate previous violation that has resulted in either a license suspension, a probated suspension, or a written reprimand before the beginning date of the new suspension.

(o) Before reinstatement, the probation of a suspended license may be revoked upon a showing that any of its terms have been violated before the expiration date of the probation regardless of when the petition is filed. Upon revocation, the full term of suspension shall be imposed with credit for any time already served on that suspension.

(p) Once a license has been suspended, the suspension probated, the probation revoked, or the licensee reprimanded, the commission shall 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.

(q) A suspended license remains suspended until:

(1) the term of suspension has expired and the term of court-ordered community supervision has been completed; and

(2) a written request for reinstatement has been received from the licensee and accepted by the commission; or

(3) the remainder of the suspension is probated and the license is reinstated.

(r) The effective date of this section is July 6, 2009.

[(i) A suspension or probation may be ordered to run concurrently or consecutively with any other suspension or probation. The beginning date of a probation must be within the term of suspension. The beginning date of the suspension shall be:]

~~[(1) any date agreed to by both parties, which is no earlier than the date of the rule violation;]~~

[(2) the date the licensee notifies the commission in writing of the rule violation if the commission later receives a signed waiver of suspension from the licensee that was postmarked within 30 days of its receipt;]

~~[(3) the date the commission final order is entered in a contested case or the date it becomes effective, if that order is appealed.]~~

[(j) The executive director shall inform the commissioners of any such probation or reprimand no later than at their next regular meeting. If probated either way, a suspension may not be probated for less than six months.]

~~[(k) The commission may impose reasonable terms of probation, such as:]~~

~~[(1) continued employment requirements;]~~

~~[(2) special reporting conditions;]~~

~~[(3) special document submission conditions;]~~

~~[(4) voluntary duty requirements;]~~

~~[(5) no further rule or law violations; or]~~

~~[(6) any other reasonable term of probation.]~~

~~[(l) A probated license remains probated until:]~~

~~[(1) the term of suspension has expired;]~~

~~[(2) all other terms of probation have been fulfilled; and]~~

~~[(3) a written request for reinstatement has been received and accepted by the commission from the licensee unless the probation has been revoked by the commission for violation of probation; or]~~

~~[(4) until revoked.]~~

[(m) Twelve months may be added to the term of a new suspension for each separate previous violation that has resulted in either a license suspension, a probated suspension, or a written reprimand before the beginning date of the new suspension.]

[(n) Before reinstatement, the probation of a suspended license may be revoked upon a showing that any of its terms have been violated before the expiration date of the probation regardless of when the petition is filed. Upon revocation, the full term of suspension shall be imposed with credit for any time already served on that suspension.]

[(o) Once a license has been suspended, the suspension probated, the probation revoked, or the licensee reprimanded, the commission shall 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.]

~~[(p) A suspended license remains suspended until:]~~

~~[(1) the term of suspension has expired and the term of court-ordered community supervision has been completed; and]~~

~~[(2) a written request for reinstatement has been received from the licensee and accepted by the commission; or]~~

~~[(3) the remainder of the suspension is probated and the license is reinstated.]~~

~~[(q) The effective date of this section is September 1, 2004.]~~

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 March 11, 2009.

TRD-200901032

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §223.19

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §223.19, Revocation of License. Subsection (b) is amended to clarify felony convictions for revocation. Subsection (c) is amended to clarify Class B misdemeanors directly related to duties for revocation. Subsection (d) is amended to include Class A misdemeanors and clarify military discharges for revocation. Subsection (e) is amended to clarify that revocation is a permanent disqualification. Subsection (f) is amended to clarify the process for conditional revocation. Subsection (g) is amended to clarify the reinstatement process. Subsection (h) is amended to clarify the notification responsibilities of the Commission. Subsection (i) is amended to clarify the revocation of licenses. Subsection (j) is amended to clarify the date of revocation. Subsection (k) is added to reflect the effective date of these changes. Subsections (l), (m), and (n) have been deleted.

These amendments are necessary to eliminate the disparity that exists regarding prior criminal convictions for new applicants and criminal convictions for incumbent officers.

The Commission has determined that there will be no employment impact for 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 eliminating the disparity that exists regarding prior criminal convictions for new applicants and criminal convictions for incumbent officers.

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.501, Disciplinary Action and §1701.502, Felony Conviction or Placement on Community Supervision.

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 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 person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.

(c) Except as provided by subsection (a) of this section, the commission may revoke the license of a person who is either convicted of a Class B 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.

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

(1) has ever been convicted of, placed on community supervision or had an adjudication of guilt deferred for a Class "A" misdemeanor offense;

(2) 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.

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

(4) 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

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

(e) 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.

(f) 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) 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. If granted, the executive director shall inform the commissioners of such action no later than at their next regular meeting. If denied, the holder of a revoked license may petition the commission for a hearing to determine reinstatement based upon the same proof.

(h) 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.

(i) 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.

(j) 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.

(k) The effective date of this section is July 6, 2009.

~~[(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 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;]~~

~~[(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.]~~

[(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 5, 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 March 11, 2009.

TRD-200901033

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §223.20

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §223.20, Revocation of License for Constitutionally Elected Officials. Subsection (b) is amended to clarify felony convictions for revocation. Subsection (c) is amended to clarify misdemeanors directly related to duties for revocation. Subsection (d) is amended to clarify that revocation is a permanent disqualification. Subsection (e) is amended to clarify the process for conditional revocation. Subsection (f) is amended to clarify the reinstatement process. Subsection (g) is amended to clarify the notification responsibilities of the Commission. Subsection (h) is amended to clarify the revocation of licenses. Subsection (i) is amended to clarify the date of revocation. Subsection (j) is amended to reflect the effective date of these changes. Subsections (k), (l), and (m) have been deleted.

These amendments are necessary to reflect changes from the 80th Legislative Session by House Bill 488 to Texas Occupations Code, §1701.501.

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

The amendment as proposed is in compliance with Texas Occupations Code, Chapter 1701, §1701.501, Disciplinary Action and §1701.502, Felony Conviction or Placement on Community Supervision.

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 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 if:

(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 officer is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.

(c) 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.

(d) 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.

(e) During the direct appeal of any appropriate conviction for a misdemeanor offense that is found to be directly related to the duties and responsibilities of office, a license may be conditionally revoked pending resolution of the appeal. The license will remain revoked unless and until the holder proves that the conviction has been set aside on appeal.

(f) 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. If granted, the executive director shall inform the commissioners of such action no later than at their next regular meeting. If denied, the holder of a revoked license may petition the commission for a hearing to determine reinstatement based upon the same proof.

(g) 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.

(h) 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.

(i) 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.

(j) The effective date of this section is July 6, 2009.

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

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

[(j) 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) 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) 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) The effective date of this section is October 5, 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 March 11, 2009.

TRD-200901034

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

CHAPTER 229. TEXAS PEACE OFFICERS' MEMORIAL

37 TAC §229.3

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §229.3, Specific Eligibility of Deceased Texas Peace Officers. The title will be amended to reflect the title of Texas Government Code, §3105.003. Subsection (a) is amended to reflect changes to the Texas Government Code, §3105.003 and to clarify the eligibility requirements. Subsection (b) is amended to reflect the effective date of these changes.

These amendments are necessary to ensure that the Memorial requirements for eligibility are clear.

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 Memorial requirements for eligibility are clear.

The amendment as proposed is in compliance with Texas Government Code, Chapter 3150, §3105.003, Eligibility for Memorial.

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

§229.3.Specific Eligibility of Memorial [~~Deceased Texas Peace Officers~~].

(a) An officer identified in §229.1 of this chapter [ ~~A deceased Texas peace officer~~] is eligible for inclusion on the memorial if the fatal incident:

(1) was a direct result of a line of duty, on or off duty incident;

(2) was an indirect result but directly attributed to a line of duty, on or off duty incident;

~~[(3) was a direct result of a line of duty, off duty incident; ]~~

~~[(4) was an indirect result of but directly attributed to a lawful line of duty, off duty incident; or]~~

(3) [~~(5)~~] was a direct result of a felonious assault on the [~~Texas peace~~] officer, perpetrated because of the officer's status [~~as a Texas peace officer~~], regardless of duty status.

(b) The effective date of this section is July 6, 2009. [ ~~shall be August 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 March 11, 2009.

TRD-200901039

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §229.5

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §229.5, Determination Standards. Subsections (a), (b), and (d) are amended to reflect changes to the Texas Government Code, §3105.003. Subsection (e) is amended to reflect the effective date of these changes.

These amendments are necessary to ensure that the Commission's rule is in compliance with the statute, which allows eligibility for federal law enforcement officers and municipal, county, or state corrections or detention officers.

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 law enforcement officers, and municipal, county, or state corrections or detention officers are recognized on the Texas Peace Officers' Memorial as authorized by Texas Government Code, §3105.003.

The amendment as proposed is in compliance with Texas Government Code, Chapter 3150, §3105.003, Eligibility for Memorial.

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

§229.5.Determination Standards.

(a) The commission, through its executive director, will receive documents and reports to establish a deceased [ ~~Texas peace~~] officer's eligibility for inclusion on the memorial.

(b) The executive director shall make every effort to confirm the authenticity of documents and information submitted to the commission and shall cause research to be conducted concerning the reported deaths of [~~Texas peace~~] officers.

(d) The commission shall review the recommendations of the executive director concerning names of deceased [~~Texas peace~~] officers for inclusion on the memorial at a regularly scheduled meeting and make its final determination. The commission may waive rules for good cause in making its final determination, and nothing in this chapter shall be interpreted as limiting the commission's authority to determine inclusion or exclusion based on the facts of the incident.

(e) The effective date of this section is July 6, 2009. [ ~~as amended shall be 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 March 11, 2009.

TRD-200901040

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713

37 TAC §229.7

The Texas Commission on Law Enforcement Officer Standards and Education (Commission) proposes an amendment to Title 37, Texas Administrative Code, §229.7, Deaths Not Included. Subsections (a) and (b) are amended to reflect changes to the Texas Government Code, §3105.003. Subsection (c) is amended to reflect the effective date of these changes.

The amendment as proposed is in compliance with Texas Government Code, Chapter 3150, §3105.003, Eligibility for Memorial.

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

§229.7.Deaths Not Included.

(a) An [~~A Texas peace~~] officer whose death is attributed to natural causes, is not eligible for inclusion, except when a medical condition arises out of a specific response to a violation of the law or an emergency situation causing an [~~a Texas peace~~] officer's death, or causing the [ ~~Texas peace~~] officer's death during or after a period of hospitalization following the specific response to the violation of the law or emergency situation.

(b) An [~~A Texas peace~~] officer whose death is attributed to any of the following is not eligible for inclusion:[.]

(1) when caused as a result of or during the [~~Texas peace~~] officer's commission of a crime;

(2) as a direct result of the [~~Texas peace~~] officer's voluntary alcohol or controlled substance abuse; or

(3) when caused by the [~~Texas peace~~] officer's intention to bring about the [~~Texas peace~~] officer's own death.

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 March 11, 2009.

TRD-200901041

Timothy A. Braaten

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

Proposed date of adoption: July 6, 2009

For further information, please call: (512) 936-7713