(a) Pursuant to §1702.230 of the Act, the pre-employment background check of the applicant described in subsection (c) of this section must be conducted when:
  (1) An application meeting the requirements of §35.21 of this title (relating to Individual License Applications) is submitted;
  (2) The department's website does not indicate the application is complete within 48 hours after the submission of the applicant's fingerprints; and
  (3) Regulated services are to be performed by the applicant prior to issuance of the license.
(b) The ability to perform a noncommissioned regulated service prior to licensure is conditional on either:
  (1) Department notification that a complete application has been received and:
    (A) Performance of the pre-employment background check required under subsection (c) of this section;
    (B) The determination that the applicant is not disqualified based on the background check; and
    (C) The employer's retention of the search results in the employee's file, as required by subsection (e) of this section; or
  (2) The absence of notification by the department that a complete application has been received, the passage of 48 hours since submission of the application materials required by §35.21 of this title, and:
    (A) Performance of the pre-employment background check required under subsection (d) of this section;
    (B) The determination that the applicant is not disqualified based on the background check; and
    (C) The employer's retention of the search results in the employee's file, as required by subsection (e) of this section.
(c) For purposes of subsection (b)(1) of this section, the pre-employment background check must at a minimum include the review of either the department's publicly accessible criminal history website or a commercial criminal history website, review of the department's sex offender registry website, and confirmation the applicant is not disqualified for the license based on either the applicant's criminal history or the requirement to register as a sex offender under Chapter 62, Code of Criminal Procedure. Nothing in this subsection precludes an employer from using a more stringent method of determining an applicant's eligibility.
(d) For purposes of subsection (b)(2) of this section, the pre-employment background check must at a minimum include the review of the department's publicly accessible criminal history and sex offender registry website(s), and confirmation the applicant is not disqualified for the license based on either the applicant's criminal history or the requirement to register as a sex offender under Chapter 62, Code of Criminal Procedure. Nothing in this subsection precludes an employer from using a more stringent method of determining an applicant's eligibility.
(e) The employer must maintain written documentation of the pre-employment check for at least two (2) years, regardless of the subsequent employment status of the applicant. The absence of such documentation constitutes a rebuttable presumption that the background check was not conducted.

Source Note: The provisions of this §35.3 adopted to be effective September 15, 2016, 41 TexReg 7121; amended to be effective December 29, 2019, 44 TexReg 8026