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

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

   1. (1) youth access to a personal attorney, minister, pastor, or religious counselor under §93.11 or §93.17 of this title (relating to Access to Attorneys and Courts and Access to Personal Minister, Pastor, or Religious Counselor);
   2. (2) youth access to visitors under §93.12 of this title (relating to Visitation); or
   3. (3) special event visitors, as defined in this rule.

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

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

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

      1. (A) Criminal History Check--includes national and state criminal history information maintained by the Department of Public Safety; and
      2. (B) Employment Reference Check--includes references from previous and current employers.
   3. (3) Contractor--means a person who is under contract with TYC individually or is an employee or subcontractor of an organization under contract with TYC.

   4. (4) Covered Person--means:

      1. (A) an employee, volunteer, ombudsman, advocate, or contractor, as defined in this rule;
      2. (B) any person not described in paragraph (4)(A) of this subsection who provides direct delivery of services to youth whose current assignment is to a residential placement operated by or under contract with TYC when those services are provided at the request of TYC;
      3. (C) any person not described in paragraph (4)(A) of this subsection who is authorized to have unsupervised access to records of identifiable TYC youth; or
      4. (D) any person who is an applicant for a position described in paragraphs (4)(A) - (C) of this subsection.
   5. (5) Employee--means a person who is employed by TYC.
   6. (6) Ombudsman--means a person who is employed by the Office of Independent Ombudsman of the Texas Youth Commission.

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

      1. (A) is invited by TYC to participate in a special event for the benefit of youth;
      2. (B) does not participate in more than four special events in any 12-month period;
      3. (C) does not provide direct delivery of services to youth;
      4. (D) does not have access to youth records; and
      5. (E) does not meet the definition of advocate, contractor, employee, or ombudsman.
   8. (8) Volunteer--means a person who is registered in a position that renders services for or on behalf of TYC that does not receive compensation in excess of reimbursement for expenses incurred. For purposes of this rule, "volunteer" does not include special event visitors.

4. (d) General Provisions.

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

      1. (A) conduct a background check on each covered person prior to granting the person access to any residential facility operated by or under contract with TYC, youth, or youth records; and
      2. (B) conduct a criminal history check on each covered person at least once per year thereafter.

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

      1. (A) for a contractor when physical or procedural barriers are in place to prevent the contractor from having contact with or access to TYC youth and the scope of services to be performed does not involve access to youth records;
      2. (B) for a contractor who has an independent legal obligation to protect the confidentiality of youth records and the scope of services to be performed does not involve access to youth;
      3. (C) for a covered person who provides direct delivery of off-site services to youth assigned to residential placements when the person is required to submit to a background check as a condition of professional licensure or employment (e.g., health care specialist referrals); or
      4. (D) for a covered person providing necessary services in an emergency situation when no appropriately screened service providers offering the same or similar service are immediately available and a delay in providing the service would risk significant harm to a youth (e.g., emergency room visits or rape crisis counseling); or
      5. (E) for a covered person, other than a TYC employee, providing services in his/her official capacity as an employee of a federal, state, or local governmental entity.
   3. (3) TYC does not assess a fee in connection with the administrative costs incurred in conducting a background check as described in this rule.
   4. (4) As part of the initial national criminal history background check, a covered person must electronically provide a complete set of fingerprints to TYC.
   5. (5) A covered person must provide employment history information in a form and manner determined by TYC.
   6. (6) All criminal history information obtained from the National Crime Information Center (NCIC) or any other state crime information database is confidential and not releasable.

5. (e) Standards for Evaluating Background Information.

   1. (1) Background check results for covered persons will be evaluated according to standards established in TYC's policies addressing eligibility for employment or assignment in effect at the time the background check is conducted.
   2. (2) When a background check reveals a criminal or employment history that is deemed unacceptable for the position or service to be performed by an employee or volunteer, TYC will deny or terminate employment or enrollment.
   3. (3) When a background check reveals a criminal or employment history that is deemed unacceptable for the position or service to be performed by a contractor, advocate, or ombudsman, TYC will deny the person access to youth, youth information, TYC facilities, or any or all of the preceding. TYC will provide written notice to a contractor, advocate, or ombudsman whose access is denied.

Source Note:The provisions of this §385.8181 adopted to be effective February 15, 2009, 34 TexReg 854; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639.