Pre-employment Affidavit

In response to the continuing perception that educators who have engaged in inappropriate relationships with students remain in Texas public classrooms, the 85th legislature created a requirement that educators complete and submit a pre-employment affidavit stating whether or not they have been subjected to criminal prosecution over an alleged inappropriate relationship with a student or minor.

The new law, codified in Texas Education Code 21.009 http://www.statutes.legis.state.tx.us/Docs/ED/pdf/ED.21.pdf requires that an applicant for a long list of professional positions, including teachers, certified administrators and most other certified professionals submit a pre-employment affidavit disclosing whether the applicant has ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor. The law requires the Texas Education Agency to develop a form to use as the affidavit. In November of 2017 TEA notified public school administrators that the commissioner, in conjunction with the Texas Association of School Boards (TASB), had developed the form. A link to the notice and form can be found at https://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Pre-Employment_Affidavit_for_Educators/.

The form includes definitions of significant legal terms used in the affidavit but it is still possible that some educators may be unsure as to what is required. Therefore, we wanted to provide the following information.

The affidavit must be completed by anyone applying for one of the positions listed in Texas Education Code 21.009, but a district can choose to require anyone to complete the affidavit with the application if it chooses too.

The affidavit requires that the applicant state whether or not they have been subject to “adjudication” “conviction” “charge” for an “inappropriate relationship” as defined on the affidavit form. Adjudication, conviction and charge apply only to a formal criminal prosecution. It does not apply to an administrative investigation done by school officials that did not result in a criminal charge, even if the investigation resulted in negative employment action such as a resignation, non-renewal or termination.

The term “inappropriate relationship” is also defined very specifically in the form as meaning “the crime of improper relationship between educator and student in Texas Penal Code section 21.12 and any other inappropriate relationship as determined by the State Board for Educator Certification.” Penal Code section 21.12 criminalizes sexual intercourse or sexual contact between an educator and any K-12 public education student. So, an “adjudication” “conviction” or “charge” related to Texas Penal Code section 22.12 will require a “Yes” answer and explanation.

The State Board for Educator Certification goes beyond the Penal Code provision, defining an improper relationship more broadly and prohibits even less serious behavior. It appears however, though it is less than completely certain, that since an “adjudication” “conviction” or “charge” is required for a “Yes” answer to be required and since these terms only apply to criminal or other proceedings in a court, a “Yes” answer is only required if there is an act involving a student and teacher that has resulted in formal court proceedings. If there is no criminal charge or other formal criminal prosecution, the proper answer is “I have never been charged with, adjudicated for or convicted of having an inappropriate relationship with a minor.”

In preparing this material, ATPE reached out to representatives of both TASB and TEA. Additional material can be found on the TASB website at www.tasb.org/Services/Legal-Services/TASB-School-Law-eSource/Personnel/documents/required_pre_employment_affidavits_faq.aspx.