Senate Bill 7 pre-employment affidavit

by Joy Baskin

Editor’s note: TEA-adopted forms and a frequently asked questions document created by TASB Legal Services were made available in the Personnel section of the TASB School Law eSource in late October 2017 (see Employment Requirements/Hiring Practices).

Senate Bill 7, effective September 1, 2017, adds new Texas Education Code section 21.009 (in Section 7 of the bill), which requires applicants for certain positions to complete a pre-employment affidavit indicating whether the applicant has ever been charged with or adjudicated of having an inappropriate relationship with a minor.
At this time, no form has been adopted for the affidavit. As the law goes into effect, districts are deciding how to respond.

Senate Bill 7, effective September 1, 2017, adds new Texas Education Code section 21.009 (in Section 7 of the bill), which requires applicants for certain positions to complete a pre-employment affidavit indicating whether the applicant has ever been charged with or adjudicated of having an inappropriate relationship with a minor.
At this time, no form has been adopted for the affidavit. As the law goes into effect, districts are deciding how to respond.
Which applicants are covered? The requirement covers “an applicant” for a position described in Texas Education Code section 21.003(a) and (b), which includes a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, educational diagnostician, school counselor, audiologist, occupational therapist, physical therapist, physician, nurse, school psychologist, licensed professional counselor, marriage and family therapist, social worker, and speech language pathologist.
Which employers are covered? The requirement applies to applicants for positions at a school district, district of innovation, open-enrollment charter school, Education Service Center (ESC), or shared services arrangement.
What is required for the affidavit? The statute requires the affidavit to be a form adopted by Texas Education Agency. If disclosing an inappropriate relationship via the affidavit, the applicant must include the relevant facts pertaining to the charge, adjudication, or conviction, and whether or not the charge was determined to be true or false.
What consequences can flow from a disclosure on an affidavit? A disclosed charge does not preclude employment if the employer can determine that the charge was false based on the information in the affidavit. A failure to disclose information required on the affidavit is grounds for termination. State Board for Educator Certification (SBEC) may revoke an administrator’s certificate if it is reasonable to believe the administrator employed an applicant in a relevant position and was aware that the applicant had been adjudicated for or convicted of an inappropriate relationship with a minor.
What constitutes being charged with an inappropriate relationship for purposes of the affidavit? The terms are not defined further in the new statute. We understand the term charge to refer to a formal criminal charge as documented by a primary charging instrument—a complaint, information, or indictment—under the Texas Code of Criminal Procedure. We infer that the term inappropriate relationship refers to the crime of improper relationship between educator and student in Texas Penal Code section 21.12. SBEC may expand the scope of this term in future rulemaking.
Are districts required to do anything if TEA has not yet adopted a form? With so many unanswered questions about the form and substance of the affidavit, we would not encourage districts to attempt to create a homegrown affidavit. The statute specifically says the affidavit will be a form “adopted by” TEA. A locally adopted form would not suffice. Consequently, districts may decide to take no action at this time. If your district uses the model TASB HR Services application form, it already inquires as to adjudicated offenses and includes a verification that the information is true and accurate and a statement that deliberate falsifications, misrepresentations, or omissions of fact may be grounds for rejection or dismissal from employment.
Some districts may decide to alter their application forms now, in light of the September 1 effective date for Senate Bill 7, to add a question on the application that reflects the substance of the future affidavit. For example, applications for the relevant positions could include the following:
Have you ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor? If so, please state all relevant facts pertaining to the charge, adjudication, or conviction, including, for a charge, whether the charge was determined to be true or false.
As a reminder, falsification or omission of required information on an employment application is cause for dismissal from employment. See TASB Policy DFBB (LOCAL) and Haney v. Dallas Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 028-R2-0110 (Feb. 18, 2010) (upholding termination for failure to fully disclose criminal history as well as the seriousness of the crime).
Once there is a form, will it have to be notarized? Quite likely, yes. Unless a different meaning is apparent from the context of a statute, Texas Government Code section 312.011 (1) defines affidavit as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” In other words, unless TEA indicates otherwise, we believe the affidavit must be notarized. In order for the requirement of notarization not to become a barrier to application for employment, districts may offer applicants the opportunity to have the affidavit notarized for free at the school district office.
Will the form be required for every applicant or just final applicants? The statute says “an applicant” for a listed position must complete the affidavit. Most districts are likely to interpret that to mean all applicants for those positions, and most are likely to include the affidavit among the documents necessary to complete an application, whether by paper or online. Arguably, the consequences of failing to complete the affidavit do not apply to anyone but the hired applicant. Consult with a school attorney before adopting a process that would require or confirm completion by only the final applicant.
As always, if you have questions about this or other topics, we will do our best to assist you at TASB. You can reach TASB Legal Services at 800.580.5345 or You can reach TASB HR Services at 800.580.7782 or


Hurricane Harvey frequently asked questions

Hurricane Harvey left a path of destruction along the Texas Gulf Coast and Houston that will require months or even years of rebuilding and recovery. Nearly 200,000 homes have been damaged or destroyed by the storm and many schools in the storm’s path will require significant clean-up or rebuilding to be functional. Some districts, such as Aransas County ISD, have said they will remain closed indefinitely because of the devastation caused by Hurricane Harvey.
Districts in the impacted area are also dealing with issues related to transportation—floodwaters damaged hundreds of roads and bridges—immediate environmental and public health concerns, such as bacteria and contaminants in floodwaters, and future environmental concerns like mold growth.
TASB has gathered links to various information resources on a Hurricane Harvey Resource Page, and we at HR Services continue to field calls from staff in districts seeking guidance on issues related to the hurricane. Below are some of the most common questions we’ve received, along with answers and guidance from our consultants. We hope you find this information helpful, but remember you can always call (800.580.7782) or email us for additional help.
Q: Can we file a waiver with the Texas Education Agency (TEA) for days our district was closed because of the hurricane and recovery?

A: Yes. TEA issued a “To the Administrator Addressed” letter on August 29 indicating that Commissioner Mike Morath has authorized Missed School Day waivers in the impacted area that would not require the days to be made up at a later date. As of the date of the letter, the disaster declaration area included 58 counties. For those districts set to begin their school year the week of August 28, any scheduled instructional days missed from Monday, August 28 to Friday, September 1 are covered. For districts where the school year had already begun, the prior Friday, August 25 could be included, as well. Districts that remain closed beyond those dates should contact TEA directly to discuss other available options.

(New—9/13/2017) Districts that reduce the number of days of required service of contract employees subject to Texas Education Code (TEC) Chapter 21 without reducing pay must file an additional waiver with the commissioner (see information below regarding paying employees for the closure).

Q: Is our district eligible for Federal Emergency Management Agency (FEMA) reimbursement for the time our staff spend cleaning up after the hurricane?

A: It depends. In their April 2017 Public Assistance Program and Policy Guide, FEMA provides detailed guidance on eligibility for federal assistance, including specific guidance beginning on page 24 of the document for “Eligibility Criteria Based on Type of Employee and Work Performed.” Districts should review the eligibility criteria with local counsel to determine whether their staff time/pay could qualify for reimbursement. The availability of funds for reimbursement after a disaster involves a case-by-case determination by FEMA.
Q: How do we handle paying employees for the time we were closed?

A: There are several issues that need to be considered, such as the length of time the district is closed, the employee’s exemption status under the Fair Labor Standards Act, and district policy (specifically DEA (LOCAL)). A complete discussion of the issues is available in the Texas School Law eSource, Personnel Issues during School Closures.

(New—9/13/2017) Districts that reduce the number of days of required service of contract employees without reducing pay must request that the commissioner authorize such a reduction pursuant to TEC § 21.401(c). Details on requesting this waiver are explained in the September 12, 2017 ”To the Administrator Addressed” letter.

Q: We have employees who were on leave when the storm hit. Do the days we were closed count toward family and medical leave and temporary disability leave?

A: The length of time the district is closed impacts whether the time may be counted as family and medical leave (FML). If the district was closed for less than a week, the time missed would still count as FML for any employee taking leave in increments of one week or more. If the closure was for a full workweek and employees were not expected to report to work, the time does not count against FML entitlement. If the employee is using FML in increments of less than one week, the closure will not count against the employee’s FML unless the employee was otherwise scheduled and expected to work on the day school was closed.
Because temporary disability leave is counted as calendar days, all missed time would count towards the employee’s temporary disability leave.

Q: Our district is open but we have employees who were impacted by the storm and are unable to come to work. Can they use leave?

A: You’ll need to follow the district’s Policy DEC (LOCAL) for employees who miss work because of a disaster. Most policies allow employees to use nondiscretionary personal leave for a family emergency. The definition of “family emergency” in policy typically is disasters or life-threatening situations involving the employee or a member of the employee’s immediate family. As a result, employees may use accumulated state and local sick and personal leave without limit to deal with emergencies resulting from the hurricane that prevent them from working (e.g., roads are impassable, dealing with personal matters, lost housing, dealing with insurance claims). 

Use of leave because their children’s schools or daycare facilities are closed is more complicated. A discussion of this issue is addressed in Personnel Issues during School Closures.

Q: Can a teacher displaced as a result of Harvey substitute for another district until her school reopens?

A: Yes. If the district the teacher has an employment contract with is closed for an extended period of time, the teacher can substitute in another district during the closure. However, the teacher and/or district that hires the teacher as a substitute should notify the original district of the temporary arrangement. 


School districts and military deployments

by Karen Dooley

School districts may have employees who were deployed as a result of Governor Greg Abbott's activation of the National Guard in response to Hurricane Harvey on August 28, 2017. 

Districts with deployed employees should be prepared to provide leave benefits and reinstatement rights appropriately.

Employees may be required to provide the district with a copy of the military duty orders or other documentation to verify benefit entitlement.

Covered duty

Benefits apply to a deployed employee who is a member of the Texas National Guard, Texas State Guard, a reserve component of the US Armed Forces, or a state or federally authorized Urban Search and Rescue Team.

Texas Task Force 1 (TX-TF1) is one of the 28 federal teams under the Federal Emergency Management Agency (FEMA) National Urban Search and Rescue System. It also serves as a statewide urban search and rescue team under direction of the Texas Division of Emergency Management (TDEM). TX-TF1 coordinates the state's swiftwater rescue program and the helicopter search and rescue team that works in conjunction with the Texas Military Department.

Sponsored by the Texas A&M Engineering Extension Service (TEEX) and headquartered in College Station, Texas, TX-TF1 has more than 600 members from 60 organizations throughout Texas. Members consist of firefighters, doctors, nurses, structural engineers, canine handlers, professors, police officers, and many other professionals throughout different fields.

Leave benefits

An employee who is deployed is entitled to receive up to 15 days of paid leave per fiscal year for duty ordered or authorized by proper authority without loss of any accumulated leave with the district. In addition, the employee may elect to use any vacation or state and local sick or personal leave they have accrued prior to military services (TEC §22.003(d)). Use of this leave cannot be required by the district.

Employees that volunteer on their own accord or with other relief organizations are not entitled to the 15 days of paid leave for military service. Any absences would be classified as discretionary personal leave and subject to rules outlined in Policy DEC (LOCAL).

Reemployment and benefits continuation rights

An employee who leaves a position with a district to enter active military service as outlined above, is entitled to be reemployed by the district in the same position held at the time of the order or to a position similar in seniority, status, and pay. An employee who is unable to perform the duties of the position because of disability sustained during military service is entitled to reemployment in a position that the employee can perform and that has like seniority, status, and pay as their former position or the nearest possible seniority, status, and pay.

Employees are permitted to continue health care coverage for themselves and their families for up to 24 months or until the employee is discharged from the military, whichever is less. If the military service lasts for 30 or fewer days, the district must pay the insurance premium at the same level prior to the beginning of leave. If military service is longer than 30 days, the district is not required to continue its contribution to the premium after the first 30 days. Employees wishing to continue coverage after 30 days can be required to pay up to 100 percent of the full premium plus a 2 percent administrative fee.

Additional information is available in the HR Services HR Library in the topic, “Leave for Military Service.” A form for documenting the need for a military leave of absence is also provided.

HR Extras

District closures could lead to unemployment claims

The devastation of Hurricane Harvey has caused destruction and devastation along the Texas coast and into parts of southeast and central Texas resulting in over 160 district closures. While some districts were able to reconvene after a one-day closure, others have not been as fortunate. These closures may trigger unemployment claims by district employees if the districts do not compensate employees during this time off.

An employee out of work during a disastrous weather event such as a hurricane or flood may have a valid unemployment claim. Such claims would be treated as regular unemployment compensation for the standard 26-week period and employees must be able and available to work during this time. Employers in the state, including school districts, would be protected from any charge for claims that extend beyond the regular 26 weeks, if still during a disaster declaration.

More general information about unemployment benefits is available in the HR Library

Special Session recap

The special session adjourned Tuesday, August 15, without the House and Senate coming to agreement on many of the governor’s 20 priorities. While several of the issues identified by the governor related to school districts—including teacher pay increases, creation of a school finance study commission, and prohibition of schools allowing teachers to pay for association dues via paycheck deductions—only one bill passed that really impacted public education: House Bill (HB) 21. It was signed by the governor on Wednesday, August 16.
HB 21 will provide some relief for retired educators by carving out $212 million to help offset hefty TRS-Care premiums during the 2018 and 2019 plan years. The Teacher Retirement System of Texas (TRS) Board of Trustees approved the TRS-Care plan changes at its September 1 board meeting. The bill also will create the Texas Commission on Public School Finance to recommend improvements to the current school finance system or new methods of financing public schools by December 31, 2018. 

Inside HR Services

New administrator appraisal samples

Sample appraisal forms for non-instructional administrator positions are now available in the Employee Performance section of the HR Library. Two sample forms are provided: one for executive level positions and another for the director and coordinator level. The samples provide a framework for developing forms for specific positions and include general responsibilities and skills common to each level. Specialized responsibilities and skills need to be entered for each position. These can be identified using the sample criteria in HR Library or the position job description. 

SB 7 reporting requirements added to HR Library

The following HR Library topics have been updated to incorporate changes as a result of the 85th Regular Session of the Texas Legislature. Senate Bill 7 requirements for reporting educator misconduct and criminal history was added to the following topics:
  • Parent Notification Requirements
  • HR Reporting Requirements
  • Termination of Contract Employees
  • Sexual Harassment of Students by Employees 

Superintendent survey ends soon; District Personnel survey launch this week

Be sure to submit your district’s Superintendent Salary Survey by September 8, if you haven’t yet participated. Contact us at to get your survey password—it’s different than your myTASB login.

Check your e-mail inbox for the District Personnel Salary Survey or download a copy. The annual survey, which includes teacher pay, is due October 6. This year we’ve added several new jobs for districts with more than 10,000 students. Save time filling out the questionnaire by using last year’s submitted survey as reference. Log in to DataCentral and navigate to “My Survey History” on the Salary Surveys page. 

Announcing our brand new Community College Salary Survey

TASB HR Services is bringing more than 30 years of school district salary survey experience to Texas community colleges. New for the 2017–2018 school year, our comprehensive survey covers over 90 common college jobs, as well as faculty pay.
Results data from the survey will be available in DataCentral. Community college subscribers to HR Services have access to the entire online benchmarking database, including school district jobs. Participating non-member colleges will receive a summary report of the results. We will send the survey questionnaire to key HR contacts next week.