TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 7. TEXAS COMMISSION ON LAW ENFORCEMENT

CHAPTER 215. TRAINING AND EDUCATIONAL PROVIDERS

37 TAC §215.10

The Texas Commission on Law Enforcement (Commission) proposes new §215.10, concerning Course Instructor Requirements. This new rule sets out course instructor requirements.

This new rule is necessary to set requirements for course instructors. Currently the course instructor is not held accountable for the training class.

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

Mr. Beauchamp has also 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 holding course instructors accountable for the classes that they teach.

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

Comment on the proposal may be submitted electronically to public.comment@tcole.texas.gov or in writing to Mr. Kim Vickers, Executive Director, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, Texas 78723-1035.

The new rule is proposed under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority and §1701.251, Training Programs; Instructors.

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

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

§215.10Course Instructor Requirements

(a) An instructor teaching a course must:

(1) hold a valid instructor license;

(2) certificate; or

(3) be designated, in writing, as a subject matter expert in the course by the training coordinator.

(b) The instructor must:

(1) ensure compliance with commission rules and guidelines;

(2) prepare, maintain, and submit the reports of training within the time frame specified by the Training Coordinator;

(3) be responsible for the administration and conduct of each course taught;

(4) at a minimum, provide a complete lesson plan, clear learning objectives, instructor biography, approved class roster and original sign-in sheet, and course evaluation to the training coordinator for the training file;

(5) enforce all attendance and other standards set by the commission or the training advisory board;

(6) control the discipline and demeanor of each student during class;

(7) distribute or present learning objectives to all students at the beginning of each course;

(8) ensure that all learning objectives are taught and evaluated; and

(9) proctor or supervise examinations to ensure fair, honest results.

(c) The effective date of this section is May 1, 2017.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 6, 2017.

TRD-201700071

Kim Vickers

Executive Director

Texas Commission on Law Enforcement

Earliest possible date of adoption: February 19, 2017

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


CHAPTER 217. ENROLLMENT, LICENSING, APPOINTMENT, AND SEPARATION

37 TAC §217.7

The Texas Commission on Law Enforcement (Commission) proposes the repeal of §217.7, concerning Reporting Appointment and Separation of a Licensee. The repealed section will be replaced with new rule §217.7.

This repeal is necessary to propose a new rule that changes the reporting date of the appointment of a licensee to conform with the reporting requirements for the notice of separation of a licensee. This rewrite also adds a requirement that the Commission records relating to the appointment of a licensee be housed with the chief administrator due to security issues with criminal history records being accessible to individuals not authorized to review these records.

John Beauchamp, General Counsel, has determined that for each year of the first five years the repeal as proposed will be in effect, there may be little to no effect on state or local governments as a result of administering this repeal.

Mr. Beauchamp has also determined that for each year of the first five years, the repeal as proposed will be in effect, there will be a positive benefit to the public by securing confidential records.

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

Comments on the proposal may be submitted electronically to public.comment@tcole.texas.gov or in writing to Mr. Kim Vickers, Executive Director, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, Texas 78723-1035.

The repeal is proposed under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority.

This repeal as proposed is in compliance with Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority.

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

§217.7.Reporting Appointment and Separation of a Licensee.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 6, 2017.

TRD-201700074

Kim Vickers

Executive Director

Texas Commission on Law Enforcement

Earliest possible date of adoption: February 19, 2017

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


37 TAC §217.7

The Texas Commission on Law Enforcement (Commission) proposes new §217.7, concerning Reporting Appointment and Separation of a Licensee. This new rule rewrites the current §217.7 to change the reporting date of the L-1 Appointment of Licensee report from 30 days to 7 days in order to conform with reporting requirements for an F-5 Notice of Separation. This rewrite also adds a requirement that TCOLE records relating to the appointment of an officer be housed with the chief administrator due to security issues with criminal history records being accessible to individuals not authorized to review these records.

This new rule is necessary to move the reporting date of the appointment of a licensee to conform with the reporting requirements for the notice of separation of a licensee. This new rule also adds a requirement that the Commission records relating to the appointment of a licensee be housed with the chief administrator due to security issues with criminal history records being accessible to individuals not authorized to review these records.

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

Mr. Beauchamp has also 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 securing confidential records.

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

Comment on the proposal may be submitted electronically to public.comment@tcole.texas.gov or in writing to Mr. Kim Vickers, Executive Director, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, Texas 78723-1035.

The new rule is proposed under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority; §1701.307, Issuance of Officer or County Jailer License; §1701.3071, Issuance of Telecommunicator License; and §1701.451, Preemployment Request for Employment Termination Report and Submission of Background Check Confirmation Form.

The new rule as proposed is in compliance with Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority; §1701.307, Issuance of Officer or County Jailer License; §1701.3071, Issuance of Telecommunicator License; and §1701.451, Preemployment Request for Employment Termination Report and Submission of Background Check Confirmation Form.

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

§217.7.Reporting Appointment and Separation of a Licensee.

(a) Before a law enforcement agency may appoint a person licensed or seeking a license as a peace officer, county jailer, or telecommunicator the agency head or designee must:

(1) obtain the person's written consent for the agency to view the person's employment records;

(2) obtain a copy of the Person's Service Record (PSR) maintained by the commission;

(3) obtain a completed, signed, and notarized Personal History Statement (PHS);

(4) obtain a Computerized Criminal History (CCH) from TCIC and NCIC;

(5) conduct and document a background investigation;

(6) for peace officers, obtain proof of weapons qualification within the 12 months preceding appointment;

(7) for current licensees, electronically request and obtain the F-5 Return (F5R) from the commission, contact each of the person's previous law enforcement employers, and document the contact on the F5 return;

(8) for a person's initial appointment, or for a licensee with more than 180 days since their last appointment or graduation from the basic peace officer course:

(A) obtain a new declaration of psychological and emotional health (L3 Form);

(B) obtain a new declaration of the lack of any drug dependency or illegal drug use (L2 Form); and

(C) obtain a new declaration of a medical evaluation for peace officers and jailers.

(9) for a person's initial appointment, submit an application for license (L1 Form) and receive an approval of the application before the person discharges any duties related to the license sought; and

(10) for current licensees, submit a Statement of Appointment (L1 Form) within 7 days of the appointment.

(b) When a person licensed by the commission separates from an agency, the agency shall, within 7 days or after any local employment appeals are exhausted:

(1) submit a Separation report (Form F5) to the commission;

(2) provide a copy to the licensee in a manner prescribed by Texas Occupations Code §1701.452.

(c) A law enforcement agency that is given a signed consent form shall make the person's employment records available to a hiring law enforcement agency as authorized by Texas Occupations Code §1701.451.

(d) An agency must retain records kept under this section while the person is appointed and for a minimum of five years after the licensee's separation date with that agency. The records must be maintained under the control of the agency head or designee in a format readily accessible to the commission.

(e) The effective date of this section is May 1, 2017.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 6, 2017.

TRD-201700077

Kim Vickers

Executive Director

Texas Commission on Law Enforcement

Earliest possible date of adoption: February 19, 2017

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


CHAPTER 223. ENFORCEMENT

37 TAC §223.15

The Texas Commission on Law Enforcement (Commission) proposes an amendment to §223.15, concerning License Suspension. Subsection (f)(3) concerning the third time noncompliance provision is being removed to conform with current revocation rule. Subsection (k) reflects the effective date of the change.

This amendment is necessary to conform this rule with the current revocation rule.

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

Mr. Beauchamp has also 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 conforming rules that concern the suspension and revocation of a license.

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

Comment on the proposal may be submitted electronically to public.comment@tcole.texas.gov or in writing to Mr. Kim Vickers, Executive Director, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, Texas 78723-1035.

The amendment is proposed under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority and §1701.501, Disciplinary Action.

The rule amendment as proposed is in compliance with Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority and §1701.501, Disciplinary Action.

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

§223.15.License Suspension.

(a) Unless revocation is required, the commission may suspend a license or certificate for violating any provision of the Texas Occupations Code, Chapter 1701 or commission rule.

(b) The license of a person charged with a felony and placed on community supervision shall be suspended for thirty years.

(c) The license of a person convicted or placed on community supervision for any offense above the grade of Class C misdemeanor may be suspended for 10 years.

(d) A suspension based on a Class A misdemeanor shall be at least 120 days.

(e) A suspension based on a Class B misdemeanor shall be at least 60 days.

(f) The license of a person who fails to comply with legislative continuing education requirements may be suspended:

(1) up to 90 days for first-time noncompliance; and

(2) up to 180 days for second-time noncompliance.[; and]

[(3) one year for third-time noncompliance.]

(g) The commission may suspend the license of a person who has previously received two written reprimands from the commission.

(h) Factors the commission may consider in determining a term of suspension include:

(1) the seriousness of the conduct resulting in the arrest;

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

(3) 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;

(4) the licensee's previous violations of commission statutes or rules;

(5) actual or potential harm to public safety, including personal injury and property damage, resulting from the conduct resulting in the arrest;

(6) aggravating evidence existing in a particular case; and

(7) evidence used in rebuttal to mitigating factors.

(i) A suspension can begin no sooner than the date of the statute or rule violation.

(j) A suspension or probation may be ordered to run concurrently or consecutively with any other suspension or probation.

(k) The effective date of this section is May 1, 2017 [February 1, 2016].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 6, 2017.

TRD-201700072

Kim Vickers

Executive Director

Texas Commission on Law Enforcement

Earliest possible date of adoption: February 19, 2017

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


37 TAC §223.18

The Texas Commission on Law Enforcement (Commission) proposes an amendment to §223.18, concerning Suspension Following Felony Arrest. Subsection (a) is amended to include "through the executive director." Subsection (b)(3) specifies the offenses as those classified under Chapter 39 or section 31.03(f) of the Texas Penal Code. Subsection (c) is removed, eliminating discretionary criteria for felony arrest suspensions. Subsection (d) becomes new subsection (c) and includes a 30-day notification requirement from the Commission. Subsection (e) is eliminated. Subsection (f) becomes the new subsection (d). Subsection (g) becomes new subsection (e) and reflects the effective date of the amended changes.

This amendment is necessary to remove discretionary criteria for felony arrest suspensions from the Executive Director. Thus, such suspensions are ministerial actions executed by the Executive Director on behalf of the Commission.

John Beauchamp, General Counsel, has determined that for each year of the first five years the amendment as proposed will be in effect, there will be little or no effect on state or local governments as a result of administering this amendment.

Mr. Beauchamp has also 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 removing discretionary criteria for felony arrest suspensions.

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

Comments on the proposal may be submitted electronically to public.comment@tcole.texas.gov or in writing to Mr. Kim Vickers, Executive Director, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, Texas 78723-1035.

The amendment is proposed under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority and Texas Government Code §2001.054, Licenses.

The rule amendment as proposed is in compliance with Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority and Texas Government Code §2001.054, Licenses.

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

§223.18.Suspension Following Felony Arrest.

(a) The commission, through the executive director, may suspend the license of a person arrested or indicted for a felony offense which would constitute an immediate peril to the public health, safety or welfare if the person were to remain licensed during the pendency of criminal proceedings.

(b) By virtue of their nature, the following felony arrests constitute immediate peril:

(1) Sexual offenses;

(2) Assaultive offenses; and

(3) Offenses classified under Chapter 39 or section 31.03(f) of the Texas Penal Code. [Offenses directly relating to the duties and responsibilities of any related office held by that person.]

[(c) In determining whether any other felony arrest creates an immediate peril to the public health, safety or welfare, factors the commission may consider include:]

[(1) the seriousness of the conduct resulting in the arrest;]

[(2) the required mental state of the alleged offense;]

[(3) whether the alleged 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;]

[(4) the licensee's previous violations of commission statutes or rules;]

[(5) actual or potential harm to public safety resulting from the conduct resulting in the arrest; and]

[(6) aggravating circumstances existing in a particular case.]

(c) [(d)] If an offense constitutes immediate peril, the commission will notify the person of the summary suspension order and the intention to initiate proceedings within 30 days of the commission's order.

[(e) If a person does not receive notice of the intent to initiate proceedings within 30 days of the commission's order, the person may appeal to the Travis County district court.]

(d) [(f)] A person may request a hearing regarding the summary suspension within 20 days after the summary suspension order is received. Otherwise, the license may be suspended until final disposition of the case.

(e) [(g)] The effective date of this section is May 1, 2017 [February 1, 2016].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 6, 2017.

TRD-201700083

Kim Vickers

Executive Director

Texas Commission on Law Enforcement

Earliest possible date of adoption: February 19, 2017

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