Texas 2009 - 81st Regular

Texas House Bill HB2160 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R9568 SLB-D
2	2	By: Turner of Harris H.B. No. 2160
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to due process for certain law enforcement officers.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 614, Government Code, is amended by
10	10	adding Subchapter L to read as follows:
11	11	SUBCHAPTER L. LAW ENFORCEMENT OFFICERS' DUE PROCESS ACT
12	12	Sec. 614.181. SHORT TITLE. This subchapter may be cited as
13	13	the Law Enforcement Officers' Due Process Act.
14	14	Sec. 614.1815. DEFINITIONS. In this subchapter:
15	15	(1) "Law enforcement agency" means a municipal police
16	16	department, sheriff's department, or constable's office that
17	17	employs, commissions, or appoints a law enforcement officer.
18	18	(2) "Law enforcement officer" means a person who:
19	19	(A) is a sworn peace officer under Article 2.12,
20	20	Code of Criminal Procedure; and
21	21	(B) is not:
22	22	(i) above the rank of major; or
23	23	(ii) the chief of police or the sheriff,
24	24	constable, marshal, director, or other highest ranking officer in a
25	25	law enforcement agency.
26	26	Sec. 614.182. APPLICABILITY. (a) This subchapter applies
27	27	only to a law enforcement officer who is employed, commissioned, or
28	28	appointed by a law enforcement agency.
29	29	(b) This subchapter applies to all law enforcement
30	30	disciplinary proceedings in this state that are conducted by a law
31	31	enforcement agency.
32	32	(c) This subchapter does not supersede an existing meet and
33	33	confer agreement or collective bargaining agreement of a
34	34	municipality or county.
35	35	Sec. 614.1825. LIMITATIONS ON POLITICAL ACTIVITY. A law
36	36	enforcement officer has the same rights to engage in political
37	37	activity as any other person, except that a law enforcement officer
38	38	may not engage in political activity while the law enforcement
39	39	officer is on duty, in uniform, or acting in an official capacity.
40	40	Sec. 614.183. LIMITATIONS ON REMOVAL FROM OFFICE. A law
41	41	enforcement agency may not remove without cause a law enforcement
42	42	officer employed as a deputy sheriff, deputy, or deputy constable
43	43	who:
44	44	(1) does not hold a command rank within the law
45	45	enforcement agency; and
46	46	(2) does not have civil service protection or is not
47	47	covered by a collective bargaining agreement.
48	48	Sec. 614.1835. INVESTIGATION; QUESTIONING. (a) If a law
49	49	enforcement officer is under investigation or is subjected to
50	50	questioning for any reason that could lead to disciplinary action,
51	51	demotion, or dismissal, the administrative investigation or
52	52	questioning must be conducted in accordance with this subchapter.
53	53	(b) The questioning of a law enforcement officer must in an
54	54	administrative investigation:
55	55	(1) be conducted at a reasonable hour, preferably at a
56	56	time when the officer is on duty unless the investigator believes
57	57	that the gravity of the investigation requires immediate
58	58	questioning; and
59	59	(2) take place at the law enforcement agency
60	60	headquarters or at the office of the local troop or police unit in
61	61	which the incident allegedly occurred as designated by the
62	62	investigator unless otherwise waived in writing by the officer.
63	63	(c) The investigator in charge of the administrative
64	64	investigation shall inform the law enforcement officer under
65	65	investigation of the investigator's name, rank, and command. A
66	66	question directed to the officer may not be asked by more than two
67	67	investigators.
68	68	(d) A formal complaint against a law enforcement officer
69	69	that calls for the dismissal or suspension of the officer or other
70	70	formal disciplinary action against the officer may not be
71	71	prosecuted under a rule of the law enforcement agency unless the
72	72	complaint is supported by substantial evidence derived from an
73	73	administrative investigation by an authorized member of the agency.
74	74	(e) A law enforcement officer under an administrative
75	75	investigation must be informed in writing of the nature of the
76	76	investigation not less than 72 hours before being questioned.
77	77	(f) Interview sessions shall be conducted for reasonable
78	78	periods of time and must allow time for the law enforcement officer
79	79	to take care of personal necessities and for reasonable rest
80	80	periods.
81	81	(g) Except on refusal to answer questions pursued in a valid
82	82	administrative investigation, a law enforcement officer may not,
83	83	during an investigation, be threatened with transfer, dismissal, or
84	84	other disciplinary action.
85	85	Sec. 614.184. INTERVIEW RECORD REQUIRED. (a) An
86	86	investigator shall keep a complete record of all interviews held in
87	87	connection with an administrative investigation under this
88	88	subchapter on notification that substantial evidence exists for
89	89	seeking an administrative sanction of the law enforcement officer.
90	90	The record must be written or taped and if taped, transcribed as
91	91	soon as practicable.
92	92	(b) A copy of the record shall be provided on request to the
93	93	law enforcement officer or the officer's counsel at the officer's
94	94	expense.
95	95	Sec. 614.1845. ARREST; RIGHT TO COUNSEL. (a) If a law
96	96	enforcement officer under questioning is under arrest or may
97	97	reasonably be placed under arrest as a result of the administrative
98	98	investigation, the investigator, before the interrogation begins,
99	99	shall inform the officer of the officer's rights, including the
100	100	reasonable possibility of the officer's arrest.
101	101	(b) On request, a law enforcement officer under questioning
102	102	has the right to be represented by counsel or another
103	103	representative of the officer's choice. If the officer requests
104	104	representation, the questioning must be suspended until the time
105	105	the officer obtains representation, if reasonably available, and
106	106	the counsel or representative must be present at all times during
107	107	the questioning unless the officer waives in writing the officer's
108	108	right to have the representative present.
109	109	Sec. 614.185. ACCESS TO DOCUMENTS. (a) An officer charged
110	110	with violating a rule of the law enforcement agency, or the
111	111	officer's representative, shall be granted access to transcripts,
112	112	records, written statements, written reports, analyses, and
113	113	videotapes that are pertinent to the case and that are exculpatory,
114	114	are intended to support any disciplinary action, or will be
115	115	introduced in an agency hearing on the charges involved.
116	116	(b) On demand by a law enforcement officer or the officer's
117	117	counsel, the documents described in Subsection (a) must be produced
118	118	within 48 hours of the officer's receipt of a written notification
119	119	of the charges.
120	120	Sec. 614.1855. FINDINGS AND RECOMMENDATIONS. At the
121	121	conclusion of an administrative investigation of a law enforcement
122	122	officer, the investigator in writing shall inform the law
123	123	enforcement officer of the investigative findings and any
124	124	recommendation for further action.
125	125	Sec. 614.186. CONFIDENTIALITY. (a) All records compiled
126	126	as a result of any administrative investigation subject to this
127	127	subchapter or a contractual disciplinary grievance procedure are
128	128	confidential and may not be disclosed or released to the public.
129	129	(b) A verbal or written statement made by a law enforcement
130	130	officer during the course of an administrative investigation is not
131	131	admissible in a criminal proceeding. A report, audiotape
132	132	recording, videotape recording, or notes made by an investigator
133	133	may not be shared with anyone who has criminal investigation
134	134	authority or who is capable of conducting a criminal investigation.
135	135	Sec. 614.1865. INVESTIGATION PERIOD; EXTENSION HEARING.
136	136	(a) Except as otherwise provided in this section, an
137	137	administrative investigation of a law enforcement officer
138	138	conducted under this subchapter must be completed not later than
139	139	the 60th day after the date the investigation begins.
140	140	(b) This section does not supersede any civil service law or
141	141	collective bargaining contract that is currently in place.
142	142	(c) A law enforcement agency may request an extension to
143	143	complete an investigation by convening a three-member board to
144	144	conduct a hearing on the requested extension and shall provide
145	145	notice of the hearing to the law enforcement officer who is under an
146	146	administrative investigation. The officer has the right to attend
147	147	the hearing and to present evidence and arguments against the
148	148	extension.
149	149	(d) At the hearing under Subsection (c), if the board finds
150	150	that the law enforcement agency has shown good cause for granting an
151	151	extension of time for completion of the administrative
152	152	investigation, the board shall grant an extension not to exceed 60
153	153	days.
154	154	(e) This section may not be construed to:
155	155	(1) prohibit the law enforcement officer under
156	156	administrative investigation and the law enforcement agency from
157	157	entering into a written agreement extending the investigation for
158	158	not more than 60 days; or
159	159	(2) limit any investigation of alleged criminal
160	160	activity.
161	161	Sec. 614.187. DISCLOSURE. (a) Unless otherwise required
162	162	by this subchapter, a law enforcement agency is not required to
163	163	disclose in any civil proceeding a personnel file or internal
164	164	affairs investigatory file compiled in connection with a law
165	165	enforcement officer under administrative investigation or
166	166	subjected to questioning for any reason that could lead to
167	167	disciplinary action, demotion, or dismissal.
168	168	(b) Subsection (a) does not apply to a proceeding brought by
169	169	a citizen against a law enforcement officer alleging that the
170	170	officer breached the officer's official duties and that the breach
171	171	resulted in injury or other damage to the citizen.
172	172	Sec. 614.1875. ADVERSE MATERIAL PLACED IN OFFICER'S FILE.
173	173	A law enforcement agency may not place any adverse material into the
174	174	file of a law enforcement officer except the file kept during the
175	175	internal investigation or by the intelligence division unless the
176	176	officer has had an opportunity to review, sign, and receive a copy
177	177	of the material and comment in writing on the material.
178	178	Sec. 614.188. DISCLOSURE OF ASSETS. A law enforcement
179	179	officer or any member of the officer's household may not be required
180	180	or requested to disclose during an administrative investigation or
181	181	questioning under this subchapter any item of personal property,
182	182	income, assets, sources of income, debts, or personal or domestic
183	183	expenditures unless:
184	184	(1) the information is necessary for the conduct of an
185	185	investigation on a violation of any federal, state, or local law
186	186	related to the performance of the officer's official duties; or
187	187	(2) the disclosure is required by state or federal
188	188	law.
189	189	Sec. 614.1885. HEARING REQUIRED ON SUSPENSION OR OTHER
190	190	DISCIPLINARY ACTION. (a) A law enforcement officer is entitled to
191	191	a hearing if the officer is:
192	192	(1) suspended for any reason;
193	193	(2) charged with conduct alleged to violate the rules
194	194	or general orders of the law enforcement agency that employs the
195	195	officer; or
196	196	(3) charged with conduct that could lead to any form of
197	197	disciplinary action, other than a reprimand, and that may become
198	198	part of the officer's permanent personnel record.
199	199	(b) A hearing required under Subsection (a) must be
200	200	conducted in accordance with this subchapter unless a contractual
201	201	disciplinary grievance procedure executed by and between the law
202	202	enforcement agency and the bargaining unit for that law enforcement
203	203	officer is in effect, in which case the terms of that disciplinary
204	204	grievance procedure take precedence and govern the conduct of the
205	205	hearing.
206	206	Sec. 614.189. HEARING: SCHEDULING; NOTICE. (a) The
207	207	hearing for a law enforcement officer entitled to a hearing under
208	208	this subchapter must be scheduled within a reasonable period of
209	209	time after the date of the alleged incident, but not later than the
210	210	30th day after the date an internal investigation is concluded,
211	211	unless the hearing is waived in writing by the officer.
212	212	(b) The law enforcement officer shall be given written
213	213	notice of the time and place of the hearing and the issues involved,
214	214	including:
215	215	(1) a detailed description of the act the officer is
216	216	charged with having committed;
217	217	(2) a statement of the rule or order that the act is
218	218	alleged to violate; and
219	219	(3) a copy of the rule or order.
220	220	(c) The charge against the law enforcement officer must:
221	221	(1) advise the officer of the alleged facts;
222	222	(2) advise the officer that the violation of the rule
223	223	constitutes a basis for discipline; and
224	224	(3) specify the range of applicable penalties that
225	225	could be imposed.
226	226	Sec. 614.1893. HEARING: PROCEDURE. (a) A law enforcement
227	227	agency shall retain the official record of a hearing conducted
228	228	under this subchapter, including testimony and exhibits.
229	229	(b) A hearing conducted under this subchapter must be
230	230	conducted within the law enforcement agency by an impartial board
231	231	of three agency officers. The board must include one member who is
232	232	of the same rank as the officer being charged. The prosecuting
233	233	party and the officer being charged may be represented by legal
234	234	counsel and the officer's counsel shall be given an opportunity to
235	235	present evidence and arguments related to the issues involved.
236	236	(c) If an impartial board cannot be convened by the
237	237	investigating agency, a board of three officers from another
238	238	jurisdiction shall be convened under the direction of the head law
239	239	enforcement officer of the law enforcement agency conducting the
240	240	investigation.
241	241	(d) An officer of a law enforcement agency appointed to
242	242	serve on a board under this section is immune from civil liability
243	243	arising from any act or omission arising out of the officer's
244	244	service on the board if the member acted in good faith and without
245	245	malice in carrying out the member's responsibilities or duties. A
246	246	member of the board is presumed to have acted in good faith and
247	247	without malice unless proven otherwise.
248	248	(e) Evidence with a probative value commonly accepted by
249	249	reasonable and prudent persons in the conduct of their affairs
250	250	shall be admissible in evidence and given probative effect. The
251	251	board conducting the hearing shall give effect to the rules of
252	252	privilege recognized by law and may exclude incompetent,
253	253	irrelevant, immaterial, and unduly repetitious evidence. All
254	254	records and documents that any party desires to use shall be offered
255	255	and made a part of the record. Documentary evidence may be received
256	256	in the form of copies of excerpts or by incorporation by reference.
257	257	(f) Every party has the right of cross-examination of
258	258	witnesses who testify and may submit rebuttal evidence.
259	259	(g) The board may take notice of judicially cognizable facts
260	260	and may take notice of general, technical, or scientific facts
261	261	within the board's specialized knowledge. Parties shall be
262	262	notified beforehand of the materials noticed by the board. A law
263	263	enforcement officer may not be adjudged guilty of any offense
264	264	unless the board is satisfied that guilt has been established by
265	265	substantial evidence.
266	266	Sec. 614.1895. EVIDENCE OBTAINED IN VIOLATION OF OFFICER'S
267	267	RIGHTS. Evidence may not be obtained, received, or admitted into
268	268	evidence in a proceeding of any disciplinary action that violates
269	269	any right established by the United States Constitution, the Texas
270	270	Constitution, or this subchapter. The board appointed under
271	271	Section 614.1893 may not enter any judgment or sustain any
272	272	disciplinary action based on evidence obtained in violation of a
273	273	law enforcement officer's rights under this subchapter.
274	274	Sec. 614.1896. WRITTEN DECISION AND FINDINGS OF FACT
275	275	DELIVERED TO OFFICER. (a) A decision, order, or action taken
276	276	following a hearing under Section 614.168 must be in writing and
277	277	accompanied by findings of fact. The findings shall consist of a
278	278	concise statement on each issue in the case.
279	279	(b) A copy of the decision or order, accompanying findings
280	280	and conclusions, and the written action and right of appeal, if any,
281	281	shall be delivered or mailed promptly to the law enforcement
282	282	officer or to the officer's counsel or representative of record.
283	283	Sec. 614.1897. PROHIBITED PUNISHMENTS. (a) A law
284	284	enforcement officer may not be compelled to work extra duty without
285	285	compensation as a penalty for a disciplinary infraction.
286	286	(b) A suspension for any period of time provided in a law
287	287	enforcement agency's rules may not affect the law enforcement
288	288	officer's eligibility for pension, hospitalization, medical and
289	289	life insurance coverage, or other benefits specifically protected
290	290	under the contract of employment. Suspension may affect time of
291	291	pension eligibility by contractual provision or other law.
292	292	(c) This subchapter may not be construed to prevent a law
293	293	enforcement agency from requiring reimbursement by a suspended law
294	294	enforcement officer of the officer's employee contribution to
295	295	benefits during the officer's time of suspension.
296	296	Sec. 614.1898. RETALIATION FOR EXERCISING RIGHTS. A law
297	297	enforcement officer may not be assessed a penalty or threatened
298	298	with the assessment of a penalty for exercising the officer's
299	299	rights under this subchapter.
300	300	SECTION 2. The changes in law made by this Act apply only to
301	301	an administrative investigation or a disciplinary hearing begun on
302	302	or after the effective date of this Act.
303	303	SECTION 3. This Act takes effect September 1, 2009.