The Changing Landscape of Texas Educator Professional Conduct

David P. Thompson, Ph.D.

In 2017, the 85th Texas Legislature passed and Governor Abbott signed into law Senate Bill 7 (SB 7), which was comprehensive legislation to address what at the time was a nine consecutive year increase (from 123 in 2008-2009 to 302 in 2016-2017) in the number of investigations opened by the Texas Education Agency (TEA) into educator inappropriate relationships with students and/or minors (IRWSM). To recall, SB 7 in relevant part:

  • Expands the criminal offense of “improper relationship between educator and student” in Tex. Penal Code § 21.12 to include the educator or employee who is or is required to be certified or licensed who engages with a student in sexual contact, sexual intercourse, deviate sexual intercourse, or conduct meeting the definition of online solicitation of a minor where the educator/employee knows that the student is enrolled at another public or private primary or secondary school where the educator is not employed;
  • Revises reporting requirements (see Tex. Educ. Code § 21.006) for superintendents when an educator solicits or engages in an inappropriate relationship with a student or minor, adds reporting requirements for principals for similar relationships, and imposes the possibility of administrative (civil) and criminal penalties for superintendents and/or principals who fail to make these required reports (Tex. Educ. Code § 21.006 [j]);
  • Requires school districts to adopt a policy whereby school officials must notify parents/guardians “as soon as feasible” when an educator is alleged to have engaged in an inappropriate relationship with a student (Tex. Educ. Code § 21.0061);
  • Requires applicants for positions requiring certification or licensure to submit a “pre-employment affidavit” disclosing whether they have ever been “charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor” (Tex. Educ. Code § 21.009);
  • Permits the State Board for Educator Certification (SBEC) to sanction an educator’s certificate or refuse to issue a certificate to a person if “the person assists another person in obtaining employment” and the person so assisting “knew that the person (seeking employment) has previously engaged in sexual misconduct with a minor or student in violation of the law” (Tex. Educ. Code § 21.0581);
  • Expands the Texas Education Commissioner’s subpoena power to compel the attendance of a person in an SBEC investigative proceeding (adding to the Commissioner’s previous power to subpoena documents) (Tex. Educ. Code § 21.062);
  • Requires school districts to adopt a policy addressing electronic communications between school employees and currently-enrolled students (Tex. Educ. Code § 38.027);
  • Permits the Commissioner to authorize special accreditation investigations “when a school district for any reason fails to produce, at the request of the agency, evidence or an investigation report relating to an educator who is under investigation by” SBEC (Tex. Educ. Code § 39.057 [a][15]); and
  • Provides for the ineligibility or forfeiture of retirement benefits of members or annuitants of the retirement system who are convicted of a “qualifying felony” where the victim is a student (Tex. Gov. Code § 824.009).

As is often the case after the passage of major legislation, SBEC has made numerous revisions to the Texas Educators’ Code of Ethics and Standard Practices for Texas Educators (ECE) (19 Texas Admin. Code Chapter 247) and educator discipline rules (19 Texas Admin. Code Chapter 249). The purpose of this article is to summarize relevant changes to the ECE and these rules, many of which relate to Senate Bill 7. This article will first address changes to the ECE. Second, it will highlight revisions to relevant educator discipline rules. Finally, the article will advance conclusions and recommendations.

Educators’ Code of Ethics

As one of the hallmarks of the education profession in Texas, the Texas Educators’ Code of Ethics lays out the conduct expectations for all school district employees in Texas, certified and non-certified (please see your school district policy DH [local], which generally makes the ECE applicable to all district employees). For purposes of state enforcement, the ECE is enforced by SBEC with regard to the certificates of educators. The ECE has three categories of enforceable standards (19 Tex. Admin. Code § 247.2): (1) Professional Ethical Conduct, Practices and Performance; (2) Ethical Conduct Toward Professional Colleagues, and (3) Ethical Conduct Toward Students. Changes to each category of standards are addressed in turn below (strikethrough notes deleted text, underline notes inserted text).

Standard 1 Revisions

Standard 1.2. The educator shall not intentionally, knowingly, or recklessly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage.

When it comes to enforcing the ECE standards, it is much easier for SBEC to demonstrate that an educator acted recklessly than it is to demonstrate that the educator acted intentionally (i.e., acting in such a way that the educator intended or meant to cause a harmful result). In revising Standard 1.2, SBEC noted as much:

This [change] would allow SBEC to discipline educators for misappropriation when the educator was reckless in bookkeeping or in how the educator kept the money or property, as well as when the educator acted intentionally or knowingly to divert the money or property. (43 Tex. Reg. 6839)

Standard 1.11. The educator shall not intentionally, or knowingly, or recklessly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment.

Much as with Standard 1.2, Standard 1.11 brings into the reach of SBEC a greater amount of conduct of the educator who misrepresents his/her employment history, even when the educator is careless about a misrepresentation. Responding to criticism of adopting this lesser standard of culpability, SBEC noted that this change:
…is intended to inspire educators to take extra care in the information they provide school districts and to allow SBEC to discipline educators who make such representations even when there is insufficient evidence that the educator acted knowingly or intentionally. (43 Tex. Reg. 6839)

Standard 1.10. The educator shall be of good moral character and worthy to instruct or supervise the youth of this state.

Please note that this standard has not changed, but in 2018 SBEC added to the definition of the term “unworthy to instruct of supervise the youth of this state” when it provided that “It is a rebuttable presumption that an educator who violates written directives from school administrators regarding the educator's behavior toward a student is unworthy to instruct or to supervise the youth of this state” (19 Tex. Admin. Code § 249.3 [60]). Clearly designed to head off inappropriate educator-student sexual relationships before they occur, SBEC again rejected criticism of this definition by observing that:

An educator’s violation of a [written] directive regarding his behavior towards students shows that the educator received a warning and still could not stop the behavior…that there was no accident, misrepresentation, or simple misinterpretation: an administrator told the educator that his or her behavior was wrong, and the educator still chose to persist in the same inappropriate behavior toward a student. An educator who cannot stop himself or herself from misbehavior with students is an educator who should not be allowed in a classroom. Moreover, an educator who has violated a directive regarding behavior toward a student [may rebut this presumption in a due process hearing before the State Office of Administrative Hearings] (43 Tex. Reg. 6841).

Standard 1.13. The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present.

Again, this standard has not changed, but SBEC in 2018 added a definition of under the influence of alcohol: “A blood alcohol content of .04% or greater and/or lacking the normal use of mental of physical faculties by reason of the introduction of alcohol” (19 Tex. Admin. Code § 247.1 [e][22]). SBEC’s justification for adopting this definition coincides with the legal blood alcohol limit at which a school bus driver or commercial driver is considered intoxicated under “state and federal law,” while also allowing SBEC to consider the presence of “any physical or mental symptoms to allow evidence of such symptoms to suffice to prove a violation of the Educators’ Code of Ethics if evidence of the educator’s blood-alcohol content is not available or admissible” (43 Tex. Reg. 6839).

Standard 1.14. The educator shall not assist another educator, school employee, contractor, or agent in obtaining a new job as an educator or in a school, apart from the routine transmission of administrative and personnel records, if the educator knows or has probable cause to believe that such person engaged in sexual misconduct regarding a student or minor in violation of the law.

As seen from the strikethrough text, SBEC removed this standard based on stakeholder feedback (43 Tex. Reg. 3988). However, this standard was moved to educator discipline rules and is now found in 19 Tex. Admin. Code § 249.15 (b)(13) and remains in full effect.

Standard 2 Revisions

Standard 2.8. The educator shall not intentionally or knowingly subject a colleague to sexual harassment.

Added in 2018, this standard codifies into the ECE what has been prohibited for years by both Title VII and Title IX. In addition, SBEC has defined sexual harassment as “Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature” (19 Tex. Admin. Code § 247.1 [e][17]). Noticeably absent from this definition is any mention of “quid pro quo” or “hostile environment” sexual harassment; SBEC observed that “This provision is intended to address educator-on-educator sexual misconduct and is tailored to exclude concepts such as hostile work environment that can be better addressed by employment law actions…” (43 Tex. Reg. 3988).

Standard 3 Revisions

Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor (19 Tex. Admin. Code 247.2 [3][F]).

Please note that this standard also has not changed, but an addition to the lengthy definition of “solicitation of a romantic relationship” has made this concept all-important. Now included in the 12 part definition is the phrase “violating written directives from school administrators regarding the educator's behavior toward a student” (19 Tex. Admin. Code § 249.3 [60][J]). In other words, just as such a violation presumably renders the educator unworthy to instruct or supervise, so it also presumes (subject to rebuttal) that the educator is soliciting a romantic relationship with a student or minor. Similarly, this addition to the definition of solicitation is designed to head off inappropriate educator-student relationships, particularly before they become sexual in nature.

Educator Discipline Provisions

As noted in the introduction, one of the most important provisions in SB 7 relates to superintendent and principal reporting of, in pertinent part, evidence or allegations of educator inappropriate relationships with students. For superintendents, SBEC has codified the reporting provisions for superintendents and principals of Tex. Educ. Code 21.006 into rule in 19 Tex. Admin. Code § 249.14 (d) and (e), respectively. The superintendent must notify SBEC in writing within seven business days after a certificate holder is terminated or resigned and “there is (or exists) evidence” that or otherwise learns that the educator, in pertinent part, either “sexually abused a student or minor or engaged in any illegal conduct with a student or minor,” or “solicited or engaged in sexual conduct or a romantic relationship with a student or minor” (19 Tex. Admin. Code § 249.14 [d][2]). In addition, the superintendent must make this report if he/she receives from a district principal notification that an educator was terminated or resigned “following an alleged incident of misconduct” noted in the previous sentence. Thus, principals have a statutory and regulatory duty to report to the superintendent this same misconduct within seven business days of the educator’s termination or resignation (19 Tex. Admin. Code § 249.14 [e][1]).

SB 7 made the failure of the superintendent or principal to timely make these required reports punishable in two new ways: (1) the prospect of the imposition of an administrative penalty by SBEC of not less than $500 and not more than $10,000, and (2) the prospect of prosecution as a state jail felony if the failure of the superintendent or principal to make the report is done “with intent to conceal an educator’s…alleged incident of misconduct.” (Tex. Educ. Code § 21.006 [j]). These punishments are in addition to the possibility of a certificate sanction for failing to make these required reports. In 2018, SBEC enacted 19 Tex. Admin. Code § 249.17, which set mandatory minimum sanctions for principals and superintendents who fail to make the required reports noted above. For principals, the mandatory minimum sanction is an inscribed reprimand to the certificate plus a $500 administrative penalty; for superintendents, it is an inscribed reprimand plus a $5,000 administrative penalty. For both categories of school leaders, SBEC may not renew the educator’s certificate until the penalty is paid (if the school leader manages to retain his/her certification).

Conclusions and Recommendations

At least three conclusions can be drawn from the foregoing analysis. First, SB 7 resulted in an immediate increase in the number of IRWSM investigations opened by TEA in 2017-2018, jumping to 429 from the 302 opened in 2016-2017, and the new reporting requirements undoubtedly contributed to this increase. Examining data reported by SBEC at its February 2019 meeting (please see, TEA opened 85 IRWSM investigations during the 1st quarter of FY 2019 (9/1/2018 – 11/30/2019), up 25% from the 68 it opened during the first quarter of FY 2018 (please see Thus, it appears that there will be an 11th consecutive year of an increase in the number of investigations opened.

Second, SBEC has taken the important position that an educator’s violation of a written administrative directive regarding an educator’s behavior toward a student creates the rebuttable presumption that the educator is both unworthy to instruct or supervise and that the educator is soliciting a romantic relationship with a student. This position needs to be communicated to every educator in the state of Texas.

Third, administrative reporting of inappropriate relationships between educators and students has taken center stage as a means to stem the increase in the number of relationships reported and sanctioned, and to make sure that where there is an allegation or evidence that an educator has engaged in such a relationship, the educator is during the pendency of an investigation removed from contact with students.

Finally, as a recommendation, it is crucial that Texas educators receive ongoing and current professional development on educator ethics, professional standards of conduct, the use of electronic communication with students, and the reporting of inappropriate conduct toward students. Based on data publicly available from the Texas Education Agency, even with the 10 consecutive year increase in the number of IRWSM investigations opened, this number still represents .000827, or 8.27 investigations opened per 10,000 certified educators (professional and paraprofessional). Even if one student is subjected to abuse by a Texas educator, that is one student too many. At the same time, the overwhelming majority of Texas educators are “doing it right” every day, and the actions of a few should not be permitted to detract from the integrity of education profession in Texas. Thus, ongoing professional development, along with sound public policy, can reverse the increase in IRWSM and ensure the safety of all Texas students.

David Thompson is Professor of Educational Leadership & Policy Studies at The University of Texas at San Antonio. He is a member of the TASA Higher Education Committee and chaired the TASA Texas Leadership Center Board from 2017-2019.

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