PART 7. TEXAS COMMISSION ON LAW ENFORCEMENT
CHAPTER 217. ENROLLMENT, LICENSING, APPOINTMENT, AND SEPARATION
The Texas Commission on Law Enforcement (Commission) adopts new 37 Texas Administrative Code §217.9, Refusal by Licensee to Submit to Medical or Psychological Examination, with changes to the proposed text as published in the March 22, 2024, issue of the Texas Register (49 TexReg 1881). The rule will be republished.
This adopted new rule conforms with the addition of Texas Occupations Code §1701.167 made by Senate Bill 1445 (88R). Texas Occupations Code §1701.167 requires a law enforcement agency to report to the Commission a refusal by a licensee to submit to a fitness-for-duty medical or psychological examination. After receiving the report of refusal, the Commission shall issue an order requiring the licensee to show cause for the refusal. If the licensee did not have good cause to refuse the examination, the Commission may suspend indefinitely or otherwise restrict the licensee's license until the licensee submits to the examination. If the licensee did have good cause to refuse the examination, the Commission shall withdraw the request for the examination. This adopted new rule outlines the process for determining whether a licensee had good cause to refuse to submit to a requested fitness-for-duty medical or psychological examination following submission of a report of refusal from a law enforcement agency to the Commission.
The public comment period began on March 22, 2024, and ended on April 29, 2024, at the conclusion of the public meeting of the Commission. The following is a summary of the public comments received and Commission responses.
Comment: Shane Linkous, General Counsel with the State Office of Administrative Hearings (SOAH), commented that SOAH interprets §217.9(a) to require exhaustion of administrative remedies at the local level before reporting the refusal to the Commission.
Response: The Commission agrees.
Comment: Shane Linkous, General Counsel with SOAH, commented that SOAH interprets §217.9(b) to only apply to the Commission's service of the show cause order and not to the service of documents once SOAH has acquired jurisdiction.
Response: The Commission agrees.
Comment: Shane Linkous, General Counsel with SOAH, commented that SOAH interprets the first sentence in adopted §217.9(c) as consistent with Texas Government Code §2001.053 and presumes this subsection is not intended to require a particular venue or method of appearance which may conflict with 1 Texas Administrative Code §§155.403-.405.
Response: The Commission generally agrees. The first sentence in adopted §217.9(c) is taken almost directly from Texas Occupations Code §1701.167(e).
Comment: Shane Linkous, General Counsel with SOAH, commented that SOAH interprets §217.9(d) to mean that the licensee carries the burden of proof at SOAH to establish by a preponderance of the evidence that the licensee had good cause to refuse the requested examination and that the hearing is limited in scope to only the issue of whether good cause exists for the licensee's refusal. The SOAH administrative law judge will issue a proposal for decision to be reviewed for final action by the Commission.
Response: The Commission agrees.
Comment: Shane Linkous, General Counsel with SOAH, suggested adding a provision to address the confidentiality of information relating to the fitness for duty process. SOAH interprets Texas Occupations Code §1701.167(i) to mean that these refusal hearings should be confidential and closed to the public.
Response: The Commission agrees and has added the confidentiality provision as a second sentence to §217.9(c), which states: "Pursuant to Texas Occupations Code §1701.167(i), records relating to a request or order of the commission or a hearing or examination conducted under Texas Occupations Code §1701.167, including, if applicable, the identity of the person notifying the commission that a licensee may not meet the standards required under the adopted agency policy, are confidential."
The new rule is adopted under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority. Texas Occupations Code §1701.151 authorizes the Commission to adopt rules for the administration of Occupations Code Chapter 1701.
The new rule as adopted affects or implements Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority, and §1701.167, Policy Regarding Examination of License Holder or Applicant. No other code, article, or statute is affected by this adoption.
§217.9.Refusal by Licensee to Submit to Medical or Psychological Examination.
(a) After receiving a report of a refusal by a licensee to submit to a requested medical or psychological examination, the commission shall issue a show cause order requiring the licensee to show cause for the refusal at a contested case hearing before SOAH.
(b) The contested case hearing shall be scheduled not later than the 30th day after the date notice of the show cause order is served on the licensee, which shall be provided by personal service or by registered mail, return receipt requested.
(c) The licensee may appear at the contested case hearing in person and by counsel and present evidence to justify the licensee's refusal to submit to the requested examination. Pursuant to Texas Occupations Code §1701.167(i), records relating to a request or order of the commission or a hearing or examination conducted under Texas Occupations Code §1701.167, including, if applicable, the identity of the person notifying the commission that a licensee may not meet the standards required under the adopted agency policy, are confidential.
(d) If it is determined that the licensee did not have good cause to refuse the medical or psychological examination, the commission shall issue an order suspending indefinitely or otherwise restricting the licensee's license until the licensee submits to the requested examination. If it is determined that the licensee did have good cause to refuse the medical or psychological examination, the commission shall issue an order withdrawing the request for the examination.
(e) The commission's order is subject to judicial review under Chapter 2001, Government Code.
(f) The effective date of this section is September 1, 2024.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 20, 2024.
TRD-202402248
Gregory Stevens
Executive Director
Texas Commission on Law Enforcement
Effective date: September 1, 2024
Proposal publication date: March 22, 2024
For further information, please call: (512) 936-7700
The Texas Commission on Law Enforcement (Commission) adopts amended 37 Texas Administrative Code §227.1, Appointing Entity Responsibilities, and new 37 Texas Administrative Code §227.4, Demonstration of Psychological Fitness, and §227.6, Fit for Duty Review, with non-substantive changes to the proposed text as published in the March 22, 2024, issue of the Texas Register (49 TexReg 1882). The rules will be republished.
This adopted amended rule and these adopted new rules conform with the addition of Texas Occupations Code §1701.167 made by Senate Bill 1445 (88R). Texas Occupations Code §1701.167 requires the Commission to adopt standards and procedures for the psychological examination of school marshal applicants, school marshal licensees, and school marshal licensees for whom there is reason to believe a new examination is necessary (fit for duty review) to ensure the individuals are able to perform the duties for which the school marshal license is required. This adopted amended rule and these adopted new rules outline the requirements and processes for the psychological examination of school marshal applicants and renewal applicants as well as the fit for duty psychological examination of school marshal licensees requested by the Commission. There is also a clarification of the reporting requirements for school marshal appointing entities.
The public comment period began on March 22, 2024, and ended on April 29, 2024, at the conclusion of the public meeting of the Commission. No public comments were received regarding the proposed adoption of these rules.
The amended rule and new rules are adopted under Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority. Texas Occupations Code §1701.151 authorizes the Commission to adopt rules for the administration of Occupations Code Chapter 1701.
The amended rule and new rules as adopted affect or implement Texas Occupations Code §1701.151, General Powers of the Commission; Rulemaking Authority, §1701.167, Policy Regarding Examination of License Holder or Applicant, and §1701.260, Training for Holders of License to Carry a Handgun; Certification of Eligibility for Appointment as School Marshal. No other code, article, or statute is affected by this adoption.
§227.1.Appointing Entity Responsibilities.
(a) A school district, open-enrollment charter school, public junior college, or private school shall:
(1) submit and receive approval for an application to appoint a person as a school marshal;
(2) upon authorization, notify the commission using approved format prior to appointment;
(3) report to the commission, within seven days, when a person previously authorized to act as a school marshal is no longer employed with the appointing entity;
(4) report to the commission, within seven days, when a person previously authorized to act as a school marshal is no longer authorized to do so by the appointing entity, commission standards, another state agency, or under other law;
(5) immediately report to the commission a school marshal's violation of any commission standard, including the discharge of a firearm carried under the authorization of this chapter outside of a training environment; and
(6) immediately report to the commission any indication, suspicion, or allegation that a school marshal is no longer psychologically fit to carry out the duties of a school marshal.
(b) An appointing entity shall not appoint or employ an ineligible person as a school marshal.
(c) For five years, the appointing entity must retain documentation that it has met all requirements under law in a format readily accessible to the commission. This requirement does not relieve an appointing entity from retaining all other relevant records not otherwise listed.
(d) The effective date of this section is September 1, 2024.
§227.4.Demonstration of Psychological Fitness.
(a) In order for an individual to enroll in any school marshal licensing training, obtain a school marshal license, or renew or reapply for a school marshal license, they must first demonstrate psychological fitness through a psychological examination.
(b) The psychological examination shall be conducted by a professional selected by the appointing, employing entity. The professional shall be either a psychologist licensed by the Texas State Board of Examiners of Psychologists or a psychiatrist licensed by the Texas Medical Board. The psychologist or psychiatrist must be familiar with the duties of a school marshal.
(c) The examination must be conducted pursuant to professionally recognized standards and methods. The examination process must consist of:
(1) a review of the duties and responsibilities of a school marshal as developed by the commission;
(2) at least two instruments, one which measures personality traits and one which measures psychopathology; and
(3) a face-to-face interview conducted after the instruments have been scored.
(d) The individual must be declared by that professional, on a form prescribed by the commission, to be in satisfactory psychological and emotional health to carry out the duties of a school marshal in an emergency shooting or situation involving an active shooter.
(e) If, after examination, the professional declines to declare the individual as psychologically fit, the individual must report the outcome to the commission on a form prescribed by the commission.
(f) An examination for license renewal or reactivation must be conducted within 90 days of the date of the application for license renewal or reactivation.
(g) The effective date of this section is September 1, 2024.
§227.6.Fit for Duty Review.
(a) When the commission receives a report or other reliable information that a school marshal may no longer be psychologically fit to carry out the duties of a school marshal, the commission may:
(1) issue an emergency suspension order; or
(2) require a fit for duty review upon identifying factors that indicate the licensee may no longer be able to perform the duties of a school marshal safely and effectively.
(b) The commission shall provide written notice of the psychological examination to the license holder not later than the tenth business day before the deadline to submit to the examination. Written notice shall include the reasons for the examination.
(c) The examination shall be conducted by a psychiatrist or psychologist chosen by the licensee.
(d) To facilitate the examination of any licensee, the commission will provide all appropriate documents and available information.
(e) The examining practitioner will provide the commission with a report indicating whether the school marshal is fit for duty. If the school marshal is unfit for duty, the practitioner will include the reasons or an explanation why the individual is unfit for duty.
(f) A second examination may be ordered by the commission if the commission questions the practitioner's report. The examination will be conducted by a psychiatrist or psychologist appointed by the commission. If the report of the appointed practitioner disagrees with the report of the initial practitioner, the final determination as to the school marshal's fitness shall be decided by the Executive Director.
(g) A school marshal who fails a psychological examination shall have their license suspended until the Executive Director orders it reinstated.
(h) Any school marshal ordered to undergo a fit for duty review shall comply with the terms of the order and cooperate fully with the examining practitioner.
(i) The effective date of this section is September 1, 2024.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 20, 2024.
TRD-202402249
Gregory Stevens
Executive Director
Texas Commission on Law Enforcement
Effective date: September 1, 2024
Proposal publication date: March 22, 2024
For further information, please call: (512) 936-7700