Pending Administrative Rules

The following rule proposals were approved by the Private Security Board at its April 22, 2016 public meeting. They are to be published in the Texas Register, and following the public comment period, to be presented to the Public Safety Commission for adoption.

Rule §35.3     Registration Applicant Pre-employment Check

Administrative Rule 35.3 is to be repealed and replaced in response to HB 4030 (84th Leg. Sess.).  The bill renders the current rule’s background check redundant in some cases, as it requires a more substantial background check for applicants under certain conditions.  The department is proposing new language to clarify the bill’s requirements.

(a) Prior to the submission of the required application materials and employment in a regulated capacity, the licensed employer of a registrant applicant, or the licensed employer of an applicant for a security officer commission who wishes to allow the applicant to work in an unarmed capacity while the application is pending, shall exercise due diligence in ensuring that the applicant meets the eligibility provisions of the Act and of this chapter. The exercise of due diligence may be satisfied through the review of the applicant's public criminal history on the department's public website or other commercial website, or by obtaining a criminal history clearance letter from the district and county clerks of the applicant's county of residence. Nothing in this section precludes an employer from using a more stringent method of determining an applicant's eligibility.

(b) The employer must maintain, for at least two years, records documenting the pre-employment check, regardless of the subsequent employment status of the applicant. The failure to maintain such records constitutes prima facie proof of failure to exercise the due diligence required by this section.

(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 under the following conditions:

(1) An application meeting the requirements of §35.21 of this chapter (relating to Registration Applications) has been 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 registration.

(b) The ability to perform a non-commissioned regulated service prior to licensure is conditional on either:

(1) Department notification that a complete application has been received and all of the following:

(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 chapter (relating to Registration Applications), and all of the following:

(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 (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 registration or endorsement 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 registration or endorsement 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 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.

Rule §35.4    Guidelines for Disqualifying Criminal Offenses
Administrative Rule 35.4 is to be amended in response to HB 2299 (84th Leg. Sess.).  The bill repeals Article 42.12(3g) of the Code of Criminal Procedure, effective January 1, 2017.    The bill creates new Article 42A.054 to replace 42.12(3g).  There are no changes to the offenses listed.  Nevertheless, without the amendment any convictions for the listed offenses occurring after January 1, 2017 would arguably not be subject to permanent disqualification under the rule.
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(g) Independently of whether the offense is otherwise described or listed in subsection (c) of this section, a conviction for an offense listed in Texas Code of Criminal Procedure, Articles 42.12 §3g, or 42A.054, or that is a sexually violent offense as defined by Texas Code of Criminal Procedure, Article 62.001, or a conviction for burglary of a habitation, is permanently disqualifying subject to the requirements of Texas Occupations Code, Chapter 53.

Rule §35.21    Registration Applications

Administrative Rule 35.21 is also to be amended in response to HB 4030 (84th Leg. Sess.).  The bill amends Section 1702.230 of the Private Security Act, “Application for Registration or Endorsement.”  Rule 35.21, relating to “Registration Applications,” is based on the requirements of Section 1702.230.  HB 4030 therefore necessitates the updating of Rule 35.21.  Additionally, the requirements of an alien registration card and copy of a current work authorization card are being removed:  the former is only applicable to applicants for a commission; the latter is not a requirement for licensure under Chapter 1702.

(a) It is the responsibility of the licensed company to ensure each employee who is required to register under the Act has submitted to the department a substantially complete an application that meets the requirements of this section has been submitted to the department by or on behalf of any employee who is required to register under the Act. prior to employment in a regulated capacity.  An application must include all items required under subsection (b) of this section in order to comply with the requirements of §1702.230(c) of the Act.

(b) The following items detailed in this subsection must be submitted in the manner prescribed by the department, prior to employment in a regulated capacity:

  (1) The required fee;
  (2) A copy of the applicant's Level II certificate of completion when applicable;
  (3) A copy of the alien registration card if the applicant is not a United States citizen;
  (4) A copy of a current work authorization card if the applicant is a non resident alien;
  (5) (3) Fingerprints in the form and manner approved by the department; and
  (6) (4) The criminal history check fee as provided in this chapter.

(c) As part of the department's criminal history check, additional court documents or related materials may be requested of the applicant. Failure to comply with such a request may result in the rejection of the application as incomplete.

Rule §35.22    Renewal Applications for Registrations and Licenses

Administrative Rule 35.22 is also being amended to remove the requirements of an alien registration card and copy of a current work authorization card, as explained above.

(a) An application for renewal must be submitted in the manner prescribed by the department. The application must include:

  (1) The required fee;
  (2) A copy of the alien registration card if the applicant is not a United States citizen;
  (3) A copy of a current work authorization card if the applicant is a non resident alien;
  (4) (2) Fingerprints in the form and manner approved by the department; and
  (5) (3) The criminal history check fee as provided in this chapter.

(b) A complete renewal application must be submitted prior to expiration for the current registration, endorsement or license to remain in effect pending the approval of the renewal application. If the completed application is not received by the department prior to the expiration date, no regulated services may be performed until a complete renewal application is submitted in compliance with this chapter.

Rule §35.25. Assumed Names; Corporations
Administrative Rule 35.25 was previously approved by the Private Security Board at its July, 2015 but was withdrawn prior to approval by the Public Safety Commission.  It has been revised and is now being reconsidered.  The rule amendments are intended to bring the requirements in line with the statutory requirements relating to the use of assumed names.

(a) All individual applicants doing business under an assumed name shall submit a certificate of assumed name from the county clerk of the county of the applicant's residence in which the applicant either:

(1)  has or will maintain business or professional premises; or
(2)  conducts business or renders a professional service, if the person does not or will not maintain business or professional premises in any county. showing compliance with the assumed name statute.

(b) Corporations and other entities permitted and governed by the Texas Business Organizations Code using an assumed name shall submit a certificate of assumed name from the Texas Secretary of State and the county clerk of the county of the applicant's residence in in which the entity either:

(1)  has or will maintain business or professional premises; or
(2)  conducts business or renders a professional service, if the entity does not or will not maintain business or professional premises in any county., showing compliance with the assumed name statute.

(c) Corporate applicants shall submit a current certificate of existence or a certificate of authority from the Texas Secretary of State.

(d) Licensees may not operate under any name not reflected in current department records as the name under which the licensee will be doing business.

Rule §35.52    Administrative Penalties

Administrative Rule 35.52 is being amended to update the fine schedule to accurately reflect statutory and rule violations.

RECV – Employee records violation

Signed copy of drug-free work policy

$25.00

NDP DT – RECV –testing record violation
No Drug Policy

Refusal to comply with testing rule Failure to establish drug-free workplace policy

$500.00 100.00 per quarter

REG – Registration violation

Failure to submit comply with registration application requirements prior to regulated employment

$200.00 every fourteen days

REGN – Registration violation, ineligible

Enhancement to above violation for employing ineligible individual

$200.00 (additional)

ADV – Advertising Violation

Misrepresentation; deceptive or fraudulent advertisement

$500.00


Rule §35.81    Application for a Security Officer Commission

Administrative Rule 35.81 is being amended to remove the requirement of a current work authorization card, as explained above (see Rule 35.21).

(a) A complete security officer commission application must be submitted on the most current version of the form provided by the department. The application must include:

  (1) The required application fee;
  (2) Fingerprints in form and manner approved by the department;
  (3) The required criminal history check fee;
  (4) A copy of the applicant's Level II certificate of completion;
  (5) A copy of the applicant's Level III certificate of completion;
  (6) Non Texas residents must provide a copy of an identification card issued by the state of the applicant's residence, or other government issued identification card; and
  (7) Non United States citizens must submit a copy of their current alien registration card. Non-resident aliens must also submit a copy of a current work authorization card and documents establishing the right to possess firearms under federal law.

(b) Incomplete applications will not be processed and will be returned for clarification or missing information.

Rule §35.112    Business Records
Administrative Rule 35.112 is to be amended in order to comply with Occupations Code Section 1702.110(b), requiring the board adopt rules to enable an out-of-state license holder to comply with the subsection’s requirement that license holders maintain a physical address in this state.

(a) Licensees shall maintain copies of the records detailed in this section, or otherwise required under this chapter, for two (2) years from the later of the date the related service was provided or the date the contract was completed:

(1) All contracts for regulated service and related documentation reflecting the actual provision of the regulated service; and
(2) Copies of any timesheets, invoices, or scheduling records reflecting the employment dates of any registered employees.

(b) If the company has no physical place of business within the State of Texas , the records shall be maintained:

(1)   At the office of the registered agent within the state of Texas: or
(2)   At any physical location within the state of Texas of an agent or employee of the company.