Office of the Attorney General
Honorable Bob McFarland
Letter Opinion No. 89-074
Dear Senator McFarland:
You request advice about the interpretation of section 21.917 of the Education Code, which was amended by House Bill 1498, 71st Legislature, regular session, to require school districts to obtain criminal history record information relating to applicants for employment. You ask whether junior colleges are subject to the provisions of this statute.
Section 21.917 of the Education Code, as amended by House Bill 1498, provides in part:
(a) A school district shall obtain criminal history record information that relates to an applicant for employment. A district is not required to obtain information under this section, but may do so, if the applicant was initially certified by the State Board of Education in the year preceding the date of the application.
(e) A school district shall notify the commissioner of education of a certified applicant's conviction of any felony or of a misdemeanor involving illegal conduct with a child disclosed in information obtained under this section. The commissioner shall review each report received under this section and, if appropriate, shall take the required action to cancel or suspend the certificate of the employee....
(f) Criminal history record information obtained under this section is privileged information and is for the use of the district and the Central Education Agency only.
Acts 1989, 71st Leg., ch. 774, at 3381. Before section 21.917 of the Education Code was amended, it gave school districts the option of obtaining criminal history information about applicants, but did not require them to do a background check.
Section 130.084 of the Education Code provides as follows for the powers and duties of the board of trustees of junior college districts:
The board of trustees of junior college districts shall be governed in the establishment, management and control of the junior college by the general law governing the establishment, management and control of independent school districts insofar as the general law is applicable.
In many respects, however, the legislature has vested junior college districts with powers and duties that differ from those granted to independent school districts. See, e.g., Educ.Code ss 61.060-61.063 (general control of junior colleges vested in Coordinating Board, Texas College and University System); s 130.003 (state appropriation for public junior colleges). Junior college districts have a different role in the state system of education than independent school districts. Educ.Code s 130.0011. Although the term "school district" has been held to encompass a junior college district for some purposes, whether a particular provision should receive this interpretation depends on the context. See Shepherd v. San Jacinto Junior College Dist., 363 S.W.2d 742 (Tex.1962); Williams v. White, 223 S.W.2d 278 (Tex.Civ.App.--San Antonio 1949, writ ref'd).
On the basis of a prior opinion of this office we have concluded that a junior college district is not a "school district" within section 21.917 of the Education Code. In Attorney General Opinion H-541 (1975), this office determined that chapter 13, subchapter C, Education Code, which applies to public school teachers' employment contracts, did not apply to junior college teachers. The opinion stated as follows:
In our opinion, when the Education Code is viewed as a whole, it is clear that subchapter C applies only to those educational institutions within the jurisdiction of the Central Education Agency.... However, with the exception of certain aspects of vocational and technical programs, neither the commissioner of education nor the State Board of Education exercises control over junior colleges, that control generally being vested in the Coordinating Board, local public junior college districts, and the governing board of each public junior college. Education Code s 61.060.
Attorney General Opinion H-541 at 1. See also Attorney General Opinion H-929 (1977).
Section 130.001 of the Education Code grants the Coordinating Board, Texas College and University System, general control of public junior colleges. The coordinating board is required to develop and recommend minimum standards for appointing faculty to institutions of higher education, which include junior colleges. Educ.Code s 61.057(1)(B); see Educ.Code s 61.003(8) (defining "institution of higher education").
Section 21.917 of the Education Code relates to the employment of teachers who are subject to the supervision and control of the State Board of Education, the Central Education Agency, and the commissioner of education. This provision refers to "certified" applicants. Educ.Code s 21.917(e). Teachers of the elementary and secondary grades are subject to certification requirements established by the State Board of Education. Educ.Code, ss 13.031(c); 13.032(e). A contract to teach in a public school is not binding until the applicant has presented his certificate for filing with the employing school district. Educ.Code s 13.045. The references in section 21.917 to the teacher certification requirements show that it is applicable to public school teachers at the elementary and secondary levels. It does not apply to the employees of junior college districts, and the governing boards of those districts do not have to comply with it.
Very truly yours,
Susan L. Garrison
Assistant Attorney General
Letter Opinion Section