Agencies Authorized to Obtain Criminal Record Information
A Closer Look at Texas Government Code Sec. 411.122
This is a resource for lawyers advising their clients and people who have received deferred adjudication in Texas. Although this is a thorough (may be overwhelming) resource, it cannot replace the advice of an expert criminal defense lawyer. The laws related to disclosure of criminal history and background checks is ever changing. So, begin your research here, but I recommend you follow up with a Board Certified Criminal Attorney.
The Government Code permits many Texas agencies to access criminal background information for various reasons. These agencies are entitled, and in some cases required, to obtain information from the Department of Public Safety in order to determine the eligibility of employees, contractors, volunteers, and applicants for those positions.
Required Report on Non-disclosures
The Department of Public Safety is required to keep track of specific information about non-disclosure orders and petitions by the Government Code, and they must report the information to the Texas Legislature. This information includes:
- (1) the number of petitions for nondisclosure of criminal history record information and orders of nondisclosure of criminal history record information received by the department in each of the previous two years;
- (2) the actions taken by the department with respect to the petitions and orders received;
- (3) the costs incurred by the department in taking those actions; and
- (4) the number of persons who are the subject of an order of nondisclosure of criminal history record information and who became the subject of criminal charges for an offense committed after the order was issued.
According to the report to the Lt. Governor of Texas, there were 1,114 petitions in 2012 and 979 in 2013. There were significantly more orders of non-disclosure: 4,414 in 2012 and 4,428 in 2013 for a total of 8,842 orders.
In regards to action taken by the department, there was no action taken for petitions. For orders, “(e)ach order that contained adequate information to be entered into the DPS Computerized Criminal History file was entered into that file, thus restricting the dissemination of those records as required by Section 411.081(d), Texas Government Code. For the orders without adequate information to be entered, follow-up action is initiated with the local reporting agency to determine if the information is available, so that the order can be entered.” The department incurred $79,578 as a result of those actions.
The number of people that became the subject of criminal charges after they had been protected by an order of nondisclosure was 6,446.
General Permission to Use Criminal Information
Depending on the agency, and the purpose for obtaining the information, criminal background history may be used only according to the statute that prescribes its use. These statutes are all found in Chapter 411, Subchapter F, of the Government Code.
The use of criminal history information is governed generally by § 411.084, which provides a baseline for all the agencies listed in the chapter. This section states that information gathered is for the exclusive use of the authorized recipient and may be disclosed only when directed by law or a court. This applies to any identifying information that could directly or indirectly implicate a person’s involvement in the criminal justice system.
Some licensing and regulatory agencies are governed generally under § 411.122 of the Government Code. This section applies only to the entities specifically listed in the section and provides them the ability to obtain criminal record history information about applicants for licenses, license holders, or people that request a determination of eligibility for a license.
- Texas Education Agency
Primary and secondary public schools in Texas are governed by the Texas Education Agency (TEA). The TEA is responsible for accrediting public schools in Texas for grades K-12. The purpose of the TEA is to help schools meet the educational needs of student through leadership, guidance, and resource allocation.
The TEA may use criminal information only for purposes authorized by the education code, and it may not be disclosed to anyone except the person the record is about, the SBEC, a local or regional education entity, or by court order.
The TEA is also permitted to obtain criminal records about an employee or applicant from a commercial transportation company that contracts with the district, school or service center to provide transportation. This also applies to an employee or person seeking employment as an aide on a bus that transports student. All criminal history information must be destroyed on the first anniversary of the date the information was obtained, or the date the information is used for the authorized purpose.
- Education shared service arrangement
An education shared service arrangement exists when there are two or more local education agencies that enter into a contract for the joint performance and administration of a special education program. This program must be approved by the commissioner and is allocated funds based on the services to be provided.
A shared service arrangement may only release criminal record information to the subject of the information, the TEA, the SBEC, the chief personnel officer of a transport company, or by court order. Information gathered must be destroyed by 1 year after the date it was originally obtained, or the date the information is used for the authorized purpose.
- Private schools
Private schools in Texas are governed by a different organization, the Texas Private School Accreditation Commission. Acceptance by this program is often more difficult than for public schools, and qualification is based off of standards based on the school’s goals and objectives, compliance with state and federal statutes and other considerations. Rules governing use of criminal record information are the same as for a shared services arrangement.
- State Board of Educator Certification
The State Board of Educator Certification (SBEC) is the licensing agency that approves public school educators and gives them the authority to govern the standards of professional educators. The rules for the governance of this board are collected and published by the Office of the Secretary of State in the Texas Administrative Code. Teachers in the state of Texas must be approved and certified by the Board before they are allowed into the classroom.
The SBEC may only use criminal record information for a purpose related to the issuance, denial, suspension, or cancellation of a board-issued certificate. It may be released to the subject of the information, the TEA, a local or regional educational entity, or by court order, and it must be destroyed after the information is used.
- Teacher Retirement System of Texas;
The Teacher Retirement System of Texas (TRS) is responsible for providing retirement and related benefits to all employees of the public education institutions in Texas. They are also tasked with administering a health insurance program for retirees and active public school employees. The TRS is permitted to obtain criminal record information for: an employee or applicant with the retirement system; a consultant, contractor, intern, or volunteer; or a subcontractor.
The TRS may only release information on court order, with the consent of the report’s subject, or to a federal agency required by law. The information must be destroyed when it’s use has been completed. The TRS may refuse to hire or terminate an employee that will not provide fingerprints, their true and complete name, or any other information necessary to obtain criminal history information.
- Texas School for the Deaf;
The Texas School for the Deaf (TSD) was established to create an environment for hearing-challenged students to have the opportunity to learn and grow in a culture that optimizes individual potential and maximizes access to language and communication services. Use of criminal information is limited by the same restrictions as applied to the Teacher Retirement System.
- Texas School for the Blind and Visually Impaired;
The Texas School for the Blind and Visually Impaired provides services as a special public school that helps students who are blind, deaf-blind, or otherwise visually impaired, including students with additional disabilities. Other services are available to the parents of children and the professionals who assist them throughout the state. Use of criminal information is limited by the same restrictions as applied to the Teacher Retirement System.
- Board of Law Examiners
The Board of Law examiners is an arm of the Texas Supreme Court that exists for the sole purpose of determining whether applicants are qualified to be admitted to the State Bar of Texas. The Board administers and interprets the Rules that govern admission to the Bar of Texas, which are created by the Supreme Court. The Board members investigate the background of all Bar applicants to determine if they meet the rigorous criteria for membership in the Bar. The BLE must collect and seal all criminal history information following the decision on the applicant.
- State Bar of Texas
The State Bar is an administrative agency of the judicial department of the Texas Government, that is authorized to act on behalf of the Supreme Court of Texas. The purpose of the State Bar is to effectively execute the public responsibilities of the legal profession by aiding courts to carry out the administration of justice, to assist in the advancement of legal services to the public, and to make sure that members of the legal profession are up to the high standards of integrity and competency in their service to the public.
The criminal information gathered by the state bar is confidential and may only be used in a disciplinary action conducted by the state bar, court, or the Board of Disciplinary Appeals. It may also be used with the consent of the subject of the record. Information must be destroyed after a final determination is made in the matter for which the information was used.
- Judicial Branch Certification Commission
The Judicial Branch Certification Commission (JBCC) oversees the certification, registration, and licensing of various court-related services. The Commission was created in 2014, condensing multiple organizations into one larger entity. The Commission provides licenses for court reporters, guardians, process servers, and court interpreters.
The JBCC may use criminal information for any purpose related to the issuance, denial, suspension, revocation, or renewal of a certificate, registration, or license issued by the commission. This information may not be disclosed except with the consent of the report’s subject or by court order. It must be destroyed by the commission after the information is used for the authorized purpose.
- Texas Juvenile Justice Department
The Texas Juvenile Justice Department (TJJD) was commissioned in 2011 to replace previous programs for juvenile offenders. The TJJD seeks to advance public safety by rehabilitating offenders, helping youths by recognizing and matching their needs to specifically designed programs, and providing safe and therapeutic environments.
The TJJD has broad access to the criminal record information of their employees or someone in the care of TJJD. They may release information with the consent of the party, upon court order, for a TJJD hearing or investigation, a board that employs a certification holder, and to an entity or person that intends to employ the person about whom the record pertains. In most cases, the TJJD is permitted to retain records, but they must destroy records of applicants for certification after the person is certified.
- Texas Medical Board
The Texas Medical Board is the regulating agency for physicians in Texas. The TMB is responsible for licensing Texas physicians and making sure patients in the state of Texas have the best health care possible. It also controls the Texas State Board of Acupuncture Examiners and the Texas Physician Assistant Board. The Board uses criminal background information to determine if a person is eligible for licensure, and in making a determination for licensure.
- Texas Board of Nursing
The Texas Board of Nursing (BON) regulates the practice of nursing in Texas. The main functions of the BON are to protect the public from unsafe nursing practices, approve nursing education programs, issue licenses to new graduates and nurse transfers from other states. The BON also enforces the Nursing Practice Act, and sets minimum standards for nursing practice and education. It is responsible for investigating and adjudicating complaints against nurses.
The BON is entitled to gather criminal record information for an applicant or holder of a board-issued license, and when the information relates to a person that is the subject of an investigation into a complaint or formal charge.
- Texas State Board of Pharmacy
The Texas State Board of Pharmacy (TSBP) controls and facilitates pharmaceutical care in Texas by providing rules and regulations for the practice of pharmacy, the operation of pharmacies, and the distribution of prescription drugs. The TSBP issues licenses and registrations for pharmacists, pharmacy technicians, and pharmacies themselves. It is also responsible for the administration of discipline to its licensed members.
The TSBP is subject to the restrictions on criminal history information listed in Health and Human Services Commission
The Health and Human Services Commission (HHSC) oversees the health and human services system in Texas. This system is composed of 5 agencies: the HHSC, Department of Aging and Disability Services, Department of State Health Services, Department of Rehabilitative Services, and the Department of Family and Protective Services. The HHSC provides administrative oversight for health and human services in general, and directly manages some programs.
The HHSC may use criminal information on an applicant for employment to assess their potential as an employee with access to sensitive personal or financial information. This information may not be disclosed unless the information is in a public record when obtained, upon court order, to a criminal justice agency, with the consent of the record’s subject, or the information is needed for a criminal proceeding or hearing.
- Department of State Health Services
The Texas Department of State Health Services (DSHS) is a regulatory agency that promotes health and wellness throughout the State. They are tasked with preventing and preparing for health threats, protecting consumers, promoting recovery, and expanding the use of health information. They are generally subject to the criminal record information limitations found in Mental Health
The DSHS also manages local mental health services and community centers. The mental health and substance abuse division funds providers of mental health and substance abuse services. The providers are divided into mental health authorities and community centers.
- Department of Assistive and Rehabilitative Services
The Department of Assistive and Rehabilitative Services (DARS) manages programs for people with disabilities and children with developmental disabilities. There are four divisions, each with their own programs: Rehabilitation Services, Blind Services, Early Childhood Intervention Services, and Disability Determination Services. The programs are designed to help people with disabilities find jobs, ensure that people with disabilities are able to live independently, and to assist families of children with disabilities.
DARS is may only use criminal history information for purposes of evaluating an applicant for a staff position at an outdoor training program for hearing-disabled children. They may release or disclose that information as described in the Human Resources Code, § 81.013. This information must be destroyed after it has been used for its authorized purpose.
- Department of Aging and Disability Services
The Department of Aging and Disability Services (DADS) exists to administer long-term services to support people as they age, as well as people with physical and mental disabilities. The department provides licenses to and regulates service providers and administers the Texas Guardianship program.
- Department of Family and Protective Services
The Department of Family and Protective Services (DFPS) was created to protect children and elderly or disabled adults. There are 5 programs that make up the DFPS: Adult Protective Services, Child Protective Services, Child Care Licensing, Statewide Intake, and Prevention and Early Intervention. The department works within communities to protect vulnerable people from abuse, neglect, and exploitation. It also monitors children in day-care and foster-care programs.
The DFPS is entitled to use criminal history in a number of ways for purposes of protecting vulnerable parties. The relevant statutory material states:
(3) The Department of Family and Protective Services is entitled to obtain from the department criminal history record information maintained by the department that relates to a person with respect to whom the Department of Family and Protective Services determines obtaining a criminal history record is necessary to ensure the safety or welfare of a child, elderly person, or person with a disability.
(4) Subject to Section 411.087, the Department of Family and Protective Services is entitled to:
(A) obtain through the Federal Bureau of Investigation criminal history record information maintained or indexed by that bureau that pertains to a person described by Subdivision (2) or (3); and
(B) obtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to a person described by Subdivision (2) or (3). Law enforcement entities shall expedite the furnishing of such information to Department of Family and Protective Services workers to ensure prompt criminal background checks for the safety of alleged victims and Department of Family and Protective Services workers.
(5) The Department of Family and Protective Services may not use the authority granted under this section to harass an employee or volunteer. The executive commissioner of the Health and Human Services Commission shall adopt rules to prevent the harassment of an employee or volunteer through the request and use of criminal records.
(6) Criminal history record information obtained by the Department of Family and Protective Services under this subsection may not be released to any person except:
(A) on court order;
(B) with the consent of the person who is the subject of the criminal history record information;
(C) for purposes of an administrative hearing held by the Department of Family and Protective Services concerning the person who is the subject of the criminal history record information; or
(D) as provided by Subdivision (7).
(7) The Department of Family and Protective Services is not prohibited from releasing criminal history record information obtained under this subsection to:
(A) the person who is the subject of the criminal history record information;
(B) a child-care facility, child-placing agency, or family home listed in Subdivision (2) that employs or is considering employing the person who is the subject of the criminal history record information;
(C) a person or business entity described by Subdivision (2)(E) who uses or intends to use the services of the volunteer or employs or is considering employing the person who is the subject of the criminal history record information;
(D) a person or business entity who uses or intends to use the volunteer services of or who employs or is considering employing the person who is the subject of the criminal history record if the release of the record is related to the purpose for which the record was obtained under Subdivision (3);
(E) an adult who resides with an alleged victim of abuse, neglect, or exploitation of a child, elderly person, or person with a disability and who also resides with the alleged perpetrator of that abuse, neglect, or exploitation if:
(i) the alleged perpetrator is the subject of the criminal history record information; and
(ii) the Department of Family and Protective Services determines that the release of information to the adult is necessary to ensure the safety or welfare of the alleged victim or the adult; or
(F) an elderly or disabled person who is an alleged victim of abuse, neglect, or exploitation and who resides with the alleged perpetrator of that abuse, neglect, or exploitation if:
(i) the alleged perpetrator is the subject of the criminal history record information; and
(ii) the Department of Family and Protective Services determines that the release of information to the elderly or disabled person or adult is necessary to ensure the safety or welfare of the elderly or disabled person.
(b) The failure or refusal to provide a complete set of fingerprints or a complete name on request constitutes good cause for dismissal or refusal to hire, as applicable, with regard to a volunteer of or an employee or applicant for permanent or temporary employment with the Department of Family and Protective Services, or a facility, home, business, or other entity, if the volunteer position, employment, or potential employment involves direct interaction with or the opportunity to interact and associate with children.
(c) The Department of Family and Protective Services may charge an organization or person that requests criminal history record information under Subsection (a)(3) a fee in an amount necessary to cover the costs of obtaining the information on the organization’s or person’s behalf. V.T.C.A. Govt. Code §411.114.
- Texas Private Security Board
The Texas Private Security Board is a subdivision of the Department of Public Safety that manages, regulates, and licenses private security personnel in Texas. Criminal history information gathered by the PSB is governed by the general rules of use.
- Municipal or volunteer fire department
Municipal and volunteer fire departments are entitled to gather information regarding the criminal history of applicants for a beginning position. Volunteer firefighting departments are not allowed to keep or retain any criminal information immediately after the determination on suitability has been made.
- Texas State Board of Public Accountancy
Board of Public Accountancy (TSBPA) serves the public by ensuring that certified public accountants are properly educated and competent to perform their duties as public accountants. The Board affects this service by regulating the public accountancy industry through certification and licensing. The Board is allowed to use criminal history information to investigate and determine if an applicant is acceptable candidate to take the CPA examination or to be certified as a CPA under the occupations code.
- Texas Department of Licensing and Regulation
The Texas Department of Licensing and Regulation (TDLR) exists to ensure public safety and customer protection through fair and efficient licensing regulations. The TDLR also seeks to keep licensing fees as low as possible through innovative practices and exceptional customer service. The TDLR is entitled to obtain criminal history information for applicants to the department for any license or certificate, as well as any holder of such license issued by the department.
- Texas Department of Insurance
The Texas Department of Insurance (TDI) functions as part of the United States insurance regulatory framework. This framework is designed to protect policyholders and provide a stake in public interest for the insurance marketplace as a whole. Regulators establish national standards and practices while at the same time maintaining an effective and viable insurance economy.
The TDI must show good cause in order to obtain criminal history information about someone who is an applicant for authorization under an activity regulated by the insurance code or is a corporate officer of an insurance company regulated by the TDI. The TDI may not disclose any information obtained except with the consent of the subject of the record or by a court order. The TDI is required to seal the criminal history information when they have made a determination, and they must deliver the information to the commissioner to be maintained.
- Department of Information Resources
The purpose of the Department of Information Resources (DIR) is to provide technology leadership, solutions, and value to Texas state government, education, and local government entities to enable and facilitate their ability to fulfill their goals.
The DIR is not permitted to obtain criminal record information unless they adopt policies and procedures that provide evidence of a criminal conviction or other relevant information that does not automatically disqualify an individual from employment. The policies must provide that the hiring is based on the following factors:
(1) the specific duties of the position; (2) the number of offenses committed by the individual; (3) the nature and seriousness of each offense; (4) the length of time between the offense and the employment decision; (5) the efforts by the individual at rehabilitation; and (6) the accuracy of the information on the individual’s employment application.
The following entities are entitled to gather and use criminal information in the specific situations listed:
- A county clerk’s office when someone is applying for guardianship of another
- A district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code
- Financial institutions screening employees, contractors, etc.
- Employers screening employees that handle hazardous materials
- A safe house providing shelter to children in harmful situations