Texas school employee defense

Who counts as a non-certified school employee under Chapter 22?

Texas Education Code Chapter 22 sweeps in every district employee, contractor, and shared-services worker with direct student contact — cafeteria, custodial, maintenance, transportation, paraprofessional, security, IT, athletic trainers, food service. The statute is far broader than most district HR offices apply it.

Direct-contact employees — § 22.0834(a)(1)

Any non-certified employee who has or will have direct contact with students is subject to the fingerprint-based criminal-history check. "Direct contact" is interpreted broadly by TEA guidance and by the district hiring offices — it includes anyone whose ordinary work duties bring the person into the same physical space as students for any meaningful period of time, regardless of whether the person has a teaching, supervisory, or care-giving role. Cafeteria workers serving in the lunch line, custodians cleaning during school hours, maintenance technicians performing repairs on occupied campuses, security officers stationed at entrances, and IT staff supporting classroom devices all qualify. The standard is contact, not certification.

Contract and shared-services employees — § 22.085(a)(2)

The same criminal-history-check requirement applies to contract employees and shared-services workers whose duties bring them into direct contact with students. A bus-driver contractor working for a transportation-services provider that contracts with the district is subject to § 22.085 as if the driver were a direct district employee. The same applies to construction-trades contractors working on occupied campuses, food-service vendors operating district cafeterias under contract, security-services contractors providing campus officers, and educational-services providers under shared-services arrangements (multi-district co-ops). The contracting party — the district or shared-services entity — bears responsibility for ensuring the underlying contractor employee's fingerprint check has been completed.

School bus drivers — § 22.0834 layered overlay

Texas school bus drivers face two overlapping criminal-history-check obligations: the general § 22.082 / § 22.085 fingerprint check applicable to all direct-contact employees, and the more specific § 22.0834 review tied to commercial driver license maintenance and the transportation of students. The § 22.0834 layer adds vehicle-operation-related disqualifications — certain DWI convictions, certain reckless-driving convictions, certain hit-and-run offenses — that may not appear on the general § 22.0833 ineligibility list but still bar continued school transportation work. The bus-driver defendant therefore faces a dual-layer disqualification analysis on any moving-violation or alcohol-related charge.

Substitute employees and temporary staff

Substitute teachers (typically non-certified or alternative-certification holders), substitute paraprofessionals, temporary food-service workers brought in during high-demand periods, and seasonal grounds and maintenance staff all fall under Chapter 22 if their duties involve direct student contact. The district's practical enforcement of the fingerprint requirement on short-term substitutes varies by district — some districts use third-party staffing-agency placements that the agency certifies have been pre-screened, while others run the fingerprint check directly at hire even for a one-day substitute. The Chapter 22 statutory requirement applies regardless of the contractual or staffing-agency arrangement.

The breadth of Chapter 22's coverage is the first thing most non-certified school employees do not understand at hire. The fingerprint check is not a one-time event tied to the start of employment — it is the entry point into an ongoing FBI Rap Back monitoring relationship that lasts for the duration of the employment. Every subsequent arrest, anywhere in the United States, generates an automatic notification to the Department of Public Safety and from there to TEA and the employing district. A cafeteria worker arrested in 2026 for an offense that occurred outside Texas can have notice of that arrest arrive in the Frisco ISD HR office within days, without any action on the employee's part and often before the employee has even posted bond.

The Chapter 22 framework also reaches contractor and shared-services workers in a way that surprises many DFW employment lawyers accustomed to private-sector contractor-versus-employee distinctions. A district-cafeteria worker employed by Aramark or Chartwells under a contract with Plano ISD is, for Chapter 22 purposes, treated identically to a direct district employee. The fingerprint requirement attaches; the § 22.0833 ineligibility list applies; an arrest triggers the same notification cascade. The defense strategy for a contractor employee facing criminal charges is therefore identical to the defense strategy for a direct district employee — the only difference is the contractual employer-of-record question for unemployment-benefits and grievance purposes, both of which run downstream of the criminal-court track.

The § 22.0833 ineligibility list — the categorical bar

Tex. Educ. Code § 22.0833 establishes a DPS-maintained list of persons who cannot be employed by a Texas school district in any role with direct student contact. The list is categorical — district discretion is removed for enumerated offenses, and listing follows conviction or, in many cases, deferred adjudication.

The § 22.0833 ineligibility list is the central concept in non-certified school-employee defense. Where the offense falls on the list, the legal analysis collapses to a single binary: was the disposition a "conviction or deferred adjudication" for an enumerated offense, or was it not? District discretion is removed. TEA enforcement is automatic. A district that hires or continues to employ a listed person in a covered role faces sanctions under TEA accountability standards and potential loss of state funding for the position. The list operates as the non-certified-employee analog to SBEC's mandatory § 21.058 certificate revocation for teachers.

The enumerated offenses include (1) offenses requiring sex-offender registration under Code Crim. Proc. ch. 62, which sweeps in indecency with a child (Tex. Penal Code § 21.11), aggravated sexual assault (§ 22.021), sexual assault (§ 22.011), continuous sexual abuse of a young child (§ 21.02), online solicitation of a minor (§ 33.021), and other enumerated sex offenses; (2) capital felonies under Tex. Penal Code §§ 19.03 and 22.04(a)(1); (3) certain assaultive offenses under chapter 22 of the Penal Code involving family violence findings or victims under 14; (4) kidnapping and continuous trafficking under Tex. Penal Code §§ 20.03, 20.04, 20A.02, and 20A.03; and (5) certain delivery-of-controlled-substance offenses to or in proximity to minors under Tex. Health & Safety Code §§ 481.122 and 481.134. The list is updated by the legislature periodically, and the version in force at the time of conviction governs.

The deferred-adjudication treatment under § 22.0833 is the harshest element of the framework. For many enumerated offenses, a deferred adjudication that would not be a "conviction" for most purposes still triggers list placement under § 22.0833. This eliminates one of the central plea-bargaining tools that ordinary criminal defense uses — the deferred adjudication that allows the defendant to avoid a formal conviction while still completing community supervision. For a school employee charged with one of the § 22.0833 enumerated offenses, accepting deferred adjudication produces the same employment-ending outcome as a conviction. The defense strategy must therefore focus on keeping the case off the enumerated list entirely — through pre-trial diversion, dismissal, plea to a non-enumerated reduced charge, or acquittal at trial.

For non-enumerated offenses, by contrast, a deferred adjudication that is successfully completed and followed by an order of non-disclosure under Tex. Gov't Code § 411.0725 can produce a much cleaner outcome. The non-disclosure order seals the record from most private background checks and from many government employers, though it does not seal the record from DPS criminal-history reviews — Tex. Gov't Code § 411.0765 expressly carves out criminal-justice and school-employment background checks as continuing to see non-disclosed records. The practical effect is that a non-disclosure order helps the school employee in future private-sector job applications but does not erase the record for the current district's renewed Chapter 22 check, and the district retains discretion to terminate based on the underlying conduct even where the formal § 22.0833 bar does not apply.

How a district investigation starts and proceeds

A criminal arrest generates a Rap Back notification to TEA and the district within hours of booking. The district's internal investigation typically opens within days. The investigation runs independently of the criminal case and on a much faster timeline, often producing employment consequences before any plea is entered or trial conducted.

The first 72 hours after a Texas school employee's arrest set the tone for every administrative decision that follows. The DPS Rap Back system generates the arrest-notification automatically and pushes it through to TEA and the employing district's human resources office. The district HR director typically receives the notification by the next business day. The next step is internal — HR notifies the immediate supervisor (principal for campus-based employees, department head for district-office staff), the supervisor consults with the district's general counsel or outside legal advisor, and the decision is made whether to place the employee on administrative leave pending investigation. In DFW practice, administrative leave is the near-universal response for any offense involving alleged contact with students, family violence, or sex offenses; for unrelated offenses (a DWI committed off campus on the weekend, a theft charge from a non-school workplace), some districts continue the employee in normal duty pending investigation while others suspend.

The district's internal investigation is conducted under the district's local board policies and is typically led by an HR investigator, a Title IX coordinator (for sex-related allegations), or an external investigative firm retained for the matter. The investigation gathers witness statements from co-workers, students (with parental consent in most cases), and supervisors. It reviews video footage, swipe-card access logs, email, and any other district-maintained records relevant to the allegation. It also reviews the criminal-case records that are publicly available — arrest reports, charging documents, court filings — without coordinating with the criminal-court prosecutor and without any obligation to defer to the criminal-court timeline.

The employee's response options during the district investigation are several. The employee may give a recorded interview to the district investigator — this is generally inadvisable while the criminal case is pending because anything the employee says becomes a statement that can be subpoenaed and used in the criminal trial. The employee may submit a written statement — sometimes useful to lock in a defense theory at an early stage, sometimes risky if the criminal-case strategy is not yet finalized. The employee may decline to participate in the district investigation — this is the standard recommendation while criminal charges are pending, but it carries the cost that the district's investigative findings will be made on a one-sided record that may produce an unfavorable conclusion. The trade-off must be evaluated case-by-case with criminal-defense and employment-side counsel coordinating.

The investigation typically concludes within 30 to 90 days. The investigator produces a report to the superintendent (or designee) recommending one of several outcomes: (1) return to duty with no action; (2) return to duty with a written reprimand or performance improvement plan; (3) demotion or transfer to a non-direct-contact role; (4) termination of employment. The superintendent's decision is communicated to the employee in writing. For non-certified employees, no statewide hearing review is available — the employee's only avenue to contest the decision is the district grievance process under the district's local board policy.

The district grievance process — three levels to the board

Non-certified Texas school employees contest adverse employment decisions through the district grievance process — Level I (principal/supervisor), Level II (superintendent), Level III (board of trustees). There is no SOAH review and no statewide certificate-board appeal. The grievance is the primary forum for employment-side defense.

The Texas school district grievance process for non-certified employees is governed by each district's local board policy series — typically DGBA for employee grievances generally, and overlapping policies that govern terminations and adverse employment actions. The Texas Association of School Boards publishes model policy language used by most Texas districts, with district-specific variations adopted by each board of trustees. The process is administrative, not judicial, and is conducted under the district's rules — not under the Texas Administrative Procedure Act, the Code of Civil Procedure, or any of the framework that governs SBEC contested cases.

Level I is the initial conference, usually held before the principal or immediate supervisor (for campus-based employees) or the department head (for district-office employees). The grievance must be filed in writing within the time period specified by district policy — typically 10 to 15 working days from the date the employee knew or should have known of the adverse action. The conference is informal — there is generally no court reporter, no formal rules of evidence, no right to confront witnesses, and no requirement that the supervisor act under cross-examination. The employee may bring a representative — including counsel — but the representative's role is generally limited to advising the employee rather than examining witnesses or presenting evidence. The supervisor issues a written decision within the time period specified by district policy.

Level II is an appeal to the superintendent or the superintendent's designee (commonly an Associate Superintendent for Human Resources or a Deputy Superintendent). The employee may file Level II within the time period specified by district policy, typically 10 working days after the Level I decision. The Level II conference is somewhat more structured — many districts permit witness testimony, allow document exchange in advance, and produce a written record. Counsel's role expands at Level II; in some districts, counsel may examine witnesses and present opening and closing statements. The superintendent's decision is issued in writing.

Level III is an appeal to the board of trustees. The Level III hearing is the most formal stage of the grievance process and frequently resembles a contested administrative hearing, with witness examination, document submission, and structured argument. In most DFW districts, the board hearing is conducted in closed session under Tex. Gov't Code § 551.074 (personnel-matter exception to open meetings). The board issues a written decision within the time frame specified by district policy. The decision is generally final at the administrative level; the only further review available is limited judicial review in district court for arbitrary-and-capricious action, constitutional violation, or violation of express statutory rights. Texas courts apply a deferential substantial-evidence standard under the local board policy and historically affirm board decisions absent clear error.

Common charge types in DFW school-employee cases

Five charge clusters dominate Texas non-certified school-employee defense: DWI, drug possession, family-violence assault, theft from the district, and allegations involving student contact. Each cluster has a distinct § 22.0833 risk profile and a distinct strategic posture.

DWI is the single most common charge faced by Texas non-certified school employees. A first-offense Class B misdemeanor DWI is not a § 22.0833 enumerated offense and does not, by itself, trigger automatic ineligibility. Where the employee is a bus driver, however, § 22.0834's overlay adds vehicle-operation-related disqualifications that can bar continued school-transportation employment regardless of the criminal disposition. For a non-bus-driver employee, the strategic focus is on pre-trial diversion eligibility, occupational license issuance under Tex. Transp. Code § 521.241, and structuring any plea to avoid felony enhancement that would convert the offense into a § 22.0833 trigger. DWI with a child passenger under Tex. Penal Code § 49.045 is a state-jail felony and presents a significantly higher Chapter 22 exposure profile.

Drug-possession charges fall on a spectrum. Simple marijuana possession under Tex. Health & Safety Code § 481.121, a Class B misdemeanor, is generally not a § 22.0833 enumerated offense. Possession of a controlled substance in Penalty Group 1 under § 481.115 — methamphetamine, cocaine — at felony levels can constitute moral-turpitude conduct under the district's discretionary Chapter 22 analysis even if not on the enumerated list. Delivery offenses, particularly delivery to or near minors under §§ 481.122 and 481.134, are § 22.0833 enumerated offenses with categorical disqualification. The defense strategy on a possession-with-intent-to-deliver charge therefore prioritizes negotiating the case down to a straight possession charge, often with substantial mitigation of the alleged quantity or distribution intent.

Family-violence assault charges create a layered Chapter 22 risk. A Class A misdemeanor assault-family-violence conviction under Tex. Penal Code § 22.01(b)(2) with an affirmative family-violence finding is not itself a § 22.0833 enumerated offense (the enumerated list focuses on student-victim and minor-victim offenses), but it does generate Texas Family Code § 71.004 family-violence protective-order exposure and federal Gun Control Act 18 U.S.C. § 922(g)(9) firearm prohibition. The district employer evaluates the conduct under the discretionary Chapter 22 analysis and frequently terminates regardless of categorical disqualification. Defense strategy aims at avoiding the family-violence finding through plea structuring — sometimes a plea to a non-FV assault, a deferred adjudication without an affirmative finding (where statute permits), or pre-trial diversion that resolves without a plea.

Theft from the district presents both the criminal exposure and an internal-misconduct exposure that operates independently. A bus-driver charged with theft of district fuel, a cafeteria worker charged with theft of meal supplies, a maintenance employee charged with theft of equipment — each faces simultaneous criminal-court exposure under Tex. Penal Code § 31.03 and district investigation under the local code of conduct. The amount-based grading under § 31.03 may produce a Class C or Class B misdemeanor on small amounts (Class C up to $100; Class B $100-$750) that is not a § 22.0833 enumerated offense, but the district's internal-investigation outcome will typically be termination regardless of the criminal disposition. The grievance process becomes the primary defense forum.

Allegations involving student contact — improper relationships, inappropriate communications, alleged misconduct during after-school activities — are the most serious category and the most likely to trigger § 22.0833 categorical disqualification. Most allegations in this cluster fall under offenses requiring sex-offender registration: indecency with a child (Tex. Penal Code § 21.11), aggravated sexual assault (§ 22.021), sexual assault (§ 22.011), continuous sexual abuse of a young child (§ 21.02), online solicitation of a minor (§ 33.021), and similar enumerated offenses. Conviction or deferred adjudication on any of these triggers automatic § 22.0833 listing. Defense strategy must therefore prioritize keeping the case off the enumerated list entirely — through dismissal, acquittal, or plea to a non-enumerated reduced charge where the State will agree to such a resolution.

Federal Title VII overlay on arrest-only records

The federal Equal Employment Opportunity Commission has issued binding guidance restricting employer reliance on arrest-only records (without conviction) as a basis for adverse employment action where doing so produces a disparate impact on protected classes. The framework applies to Texas school districts and creates a federal-law defense against discharge based solely on an unproven arrest.

The federal Equal Employment Opportunity Commission issued Enforcement Guidance 915.002 (April 25, 2012) restricting employer reliance on arrest and conviction records in employment decisions. The guidance is binding on EEOC enforcement and is persuasive (though not strictly binding) on Title VII litigation. Under the guidance, an arrest record alone — without any associated conviction — generally cannot support an adverse employment decision because an arrest does not establish that the underlying conduct occurred. The employer's reliance on a bare arrest record produces disparate-impact concern under Title VII because U.S. Bureau of Justice Statistics data consistently shows arrest rates disproportionately affecting minority populations, particularly African-American and Hispanic populations.

For Texas school district employees facing termination based on a pending arrest before any conviction or plea, the Title VII overlay creates a federal-law defense that operates independently of the district grievance process. The employee may file an EEOC charge alleging that the district's use of the arrest record to support termination constitutes unlawful disparate-impact discrimination under 42 U.S.C. § 2000e-2(k). The employer must demonstrate that the practice is job-related and consistent with business necessity — a showing that requires the district to demonstrate (1) the conduct alleged in the arrest would, if proven, be relevant to the specific job duties; (2) the timing of the arrest relative to the duties is relevant; and (3) no less-discriminatory alternative exists.

For school-cafeteria, custodial, and maintenance positions where the alleged conduct has no direct nexus to job duties — a Saturday-night DWI charged against a Monday-morning cafeteria worker, for example — the district's business-necessity showing is much harder to make. The EEOC has successfully challenged district employment decisions on these grounds; the most prominent recent example is the EEOC's 2014 action against BMW for blanket criminal-history exclusion that produced disparate impact and was not narrowly tailored to job requirements. The framework imported to Texas school-district employment translates: discharge based solely on a pending DWI arrest of a cafeteria worker may not survive Title VII scrutiny if the district cannot articulate the specific job-relatedness of the alleged conduct.

The Texas Workforce Commission unemployment determination operates in parallel with the Title VII analysis. Under Mercer v. Ross, 701 S.W.2d 830 (Tex. 1986), and subsequent TWC decisions, discharge based solely on an arrest — without proof of the underlying conduct — is generally not "misconduct connected with the work" for unemployment-disqualification purposes. The employee is therefore eligible for unemployment benefits during the criminal-case pendency in most arrest-only termination scenarios, providing financial bridge support that allows the employee to fight the criminal case without immediate economic collapse. The TWC determination is not binding on the district's employment decision or on the EEOC investigation, but it is a separate favorable record on the same underlying facts.

Plea structuring for employment preservation

Plea structure in a Texas non-certified school-employee case must balance the criminal-court calculation against the § 22.0833 enumeration analysis, the discretionary district-conduct review, and the federal background-check overlay where federally-funded programs are involved.

The first plea-structuring question is always whether the charged offense is on the § 22.0833 enumerated list. If it is — and a plea to the charged offense would result in either a "conviction" or a "deferred adjudication" qualifying under § 22.0833(a) — then any plea to the charged offense produces automatic categorical disqualification from school employment. The defense strategy must therefore focus on negotiating the charge down to a non-enumerated offense or, where the State will not agree, taking the case to trial. The most common path is to negotiate a reduced charge — for example, an indecency-with-a-child charge under Tex. Penal Code § 21.11 reduced to an assault-bodily-injury misdemeanor under § 22.01(a), removing the sex-offender-registration trigger and therefore the § 22.0833 categorical bar.

For offenses not on the enumerated list, the analysis turns to the discretionary district review. A deferred adjudication under Code Crim. Proc. art. 42A.101, successfully completed and followed by an order of non-disclosure under Tex. Gov't Code § 411.0725, can produce a record that is largely sealed from private-sector employers and that lacks a formal "conviction" finding. The district employer, however, retains visibility into the underlying conduct through the non-disclosure carve-out for school-employment background checks under Tex. Gov't Code § 411.0765. The strategic value of the deferred-adjudication-plus-non-disclosure path is therefore primarily forward-looking — preserving the employee's ability to obtain future non-school employment if the current district position is lost — rather than preserving the current position itself.

Pre-trial diversion produces the cleanest outcome where it is available. A diversion-track resolution generates no plea, no deferred-adjudication finding, no entry of any judgment. Upon successful completion of the diversion program, the case is typically dismissed with a refile bar, and the underlying arrest record becomes eligible for expunction under Code Crim. Proc. art. 55.01(a)(2)(A). An expunged arrest is, by operation of Code Crim. Proc. art. 55.03, treated as having never occurred for nearly all purposes — the employee can legally deny the arrest on most employment applications, and the district itself loses visibility into the record once the expunction order is implemented and DPS purges the arrest from its databases. Pre-trial diversion eligibility varies by jurisdiction; Collin, Denton, Dallas, and Tarrant Counties each operate distinct programs with separate eligibility standards.

For federally-funded program employees — Head Start staff, National School Lunch Program cafeteria workers, federally-funded transportation drivers — the federal-overlay analysis must be added. A plea structure that satisfies the Texas § 22.0833 framework may still produce disqualification under 42 U.S.C. § 9858f (Head Start), 7 C.F.R. § 210.10 (National School Lunch Program), or other federal-program-specific exclusion lists. The defense team must check the specific federal program's exclusion criteria — typically maintained by the U.S. Department of Health and Human Services Office of Inspector General Exclusion Database (LEIE) and the U.S. General Services Administration System for Award Management (SAM.gov) excluded-parties list — before recommending any plea. A plea that resolves the criminal-court case favorably but produces a federal-program exclusion outcome is no win at all.

Unemployment benefits and recovery after a discharge

Texas Workforce Commission unemployment benefits, COBRA continuation coverage, retirement-account considerations, and the future-employment record are all separate but interconnected questions that follow a discharge. The defense plan must address each in the 60 days following an adverse district decision.

The Texas Workforce Commission unemployment determination is the first post-discharge defense step in most cases. The discharged employee files for benefits through the TWC online portal within 14 days of discharge. TWC issues a determination based on the district's separation statement and the employee's response, applying the Tex. Lab. Code § 207.044 "misconduct connected with the work" disqualification standard. For arrests without conviction, for unproven allegations not arising from on-the-job conduct, and for cases where the district's investigation did not produce specific evidence of work-connected misbehavior, TWC frequently finds the discharge non-disqualifying and awards benefits. The award is generally retroactive to the date of discharge, providing financial bridge support during the criminal-case pendency.

COBRA continuation coverage under 29 U.S.C. § 1161 applies to health-insurance coverage for the discharged employee and dependents. The district's plan administrator must provide a COBRA election notice within 44 days of the qualifying event (here, the discharge). The employee has 60 days after the election notice to enroll in COBRA coverage and 45 additional days to make the first premium payment. COBRA coverage continues for 18 months in most cases and 36 months in certain qualifying circumstances. The premium is the full cost of the coverage plus a 2 percent administrative fee — typically several hundred to over a thousand dollars per month for family coverage — and is the employee's responsibility. Many discharged employees underestimate the cost and lose health coverage during the criminal-case pendency.

Texas Teacher Retirement System (TRS) considerations apply differently to non-certified employees than to certified educators. Non-certified school district employees in TRS-covered positions accumulate service credit and contributions under Tex. Gov't Code ch. 824. A discharge does not forfeit the accumulated contributions — the employee can leave the funds in TRS subject to a future return to TRS-covered employment, request a refund of contributions (with applicable tax penalties), or, if vested (typically 5 years of credited service), retain eligibility for a future TRS retirement annuity. Decisions about TRS treatment should be coordinated with a tax advisor and the district's TRS coordinator before any irreversible election is made.

The future-employment record is the longest-term consideration. A criminal-court favorable disposition — dismissal, acquittal, pre-trial diversion completion, deferred adjudication followed by non-disclosure — preserves the employee's ability to seek future Texas school-district employment, sometimes in another district under different management, and frequently in non-school employment. A § 22.0833 categorical disqualification, by contrast, bars Texas school employment statewide. The list is not subject to discretionary district override — there is no "removal-from-list" administrative procedure analogous to the SBEC reinstatement framework for certified educators. The defense focus on keeping the case off the enumerated list is therefore investment in the employee's entire future Texas career, not just the current position.