(a) A department or facility must request review from TJJD and receive confirmation from TJJD that approval has been granted before:

(1) hiring, contracting with, or otherwise placing a person with a criminal history described by §344.410(a) of this chapter into a position requiring certification; or

(2) seeking optional certification as provided in §344.802 of this chapter for a person with a criminal history described by §344.410(a) of this chapter.

(b) The purpose of the review by TJJD is to determine whether TJJD will deny a certification for the individual due to ineligibility for certification based on the criminal history. TJJD will conduct the review in accordance with this section.

(c) TJJD will first determine if the criminal history offense(s) directly relate to the duties and responsibilities of the position for which certification is required or sought. In making this determination, TJJD will consider:

(1) the nature and seriousness of the crime(s);

(2) the relationship of the crime(s) to the purposes for requiring a certification to engage in the occupation;

(3) the extent to which a certification might offer an opportunity to engage in further criminal activity of the same type as that in which the person was previously involved;

(4) the relationship of the crime(s) to the ability or capacity required to perform the duties and discharge the responsibilities of the position; and

(5) any correlation between the elements of the crime(s) and the duties and responsibilities of the position.

(d) If TJJD determines the criminal history offense(s) do not directly relate to the duties and responsibilities of the position, TJJD will not deny the certification based on the criminal history.

(e) If TJJD determines the criminal history offense(s) directly relate to the duties and responsibilities of the position, TJJD will consider the following in determining whether to deny certification:

(1) the extent and nature of past criminal activity;

(2) the age of the person when each crime was committed;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation and rehabilitative effort while incarcerated or after release;

(6) evidence of the person's compliance with any conditions of probation, community supervision, parole, or mandatory supervision; and

(7) any other evidence of the person's fitness to perform the duties of the position requiring certification, including any letters of recommendation.

(f) The individual to be certified is responsible for providing TJJD with the information required by TJJD to make its decision. Failure to timely provide TJJD with requested information may result in a denial of certification.

(g) In making its determinations under this section, TJJD will not consider an arrest that did not result in a conviction or placement on deferred adjudication.

(h) If TJJD determines that the criminal history will not result in a denial of certification, TJJD will inform the individual and the department or facility, which may then proceed, as appropriate, with hiring, contracting with, or otherwise placing the individual into a position requiring certification or with seeking certification for the individual.

(i) If TJJD determines that the criminal history should result in a certification being denied, TJJD will provide the individual with written notice of the reason for the intended denial and will give the individual at least 30 calendar days to submit any relevant information for consideration. The written notice will comport with the requirements in Section 53.0231, Texas Occupations Code. TJJD will provide a copy of the written notice to the administrative officer of the hiring entity.

(j) Upon receipt of additional information as provided in subsection (i) of this section, TJJD will conduct an additional review in accordance with this section and will provide its final decision to the individual and to the department or facility that requested the initial review.

Source Note: The provisions of this §344.420 adopted to be effective December 30, 2022, 47 TexReg 8045