Texas 2009 - 81st Regular

Texas Senate Bill SB1338 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	81R6348 JSC-F
2	2	By: Whitmire S.B. No. 1338
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the rights of certain county law enforcement officers.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 158.034(a), Local Government Code, is
10	10	amended to read as follows:
11	11	(a) In a county with a population of less than 2.8 million,
12	12	if a majority of the employees voting at the election approve the
13	13	creation of a sheriff's department civil service system, the
14	14	sheriff, commissioners court, and district attorney shall each
15	15	appoint one person to serve as a member of the civil service
16	16	commission that administers the system. In a county with a
17	17	population of 2.8 million or more, if a majority of the employees
18	18	voting at the election approve the creation of a sheriff's
19	19	department civil service system, the sheriff, commissioners court,
20	20	and a bargaining agent elected by the employees of the sheriff's
21	21	department [district attorney] shall each appoint two persons to
22	22	serve as members of the civil service commission that administers
23	23	the system, and the three appointing authorities shall appoint one
24	24	member by joint action requiring the affirmative vote of each of the
25	25	authorities.
26	26	SECTION 2. Chapter 158, Local Government Code, is amended
27	27	by adding Subchapter C to read as follows:
28	28	SUBCHAPTER C. INVESTIGATION OF COUNTY LAW ENFORCEMENT
29	29	OFFICERS IN CERTAIN COUNTIES
30	30	Sec. 158.061. APPLICABILITY. This subchapter applies only
31	31	to a county with a population of 3.3 million or more.
32	32	Sec. 158.062. DEFINITIONS. In this subchapter:
33	33	(1) "Commission" means a county civil service
34	34	commission.
35	35	(2) "Complainant" means a person claiming to be the
36	36	victim of misconduct by a county law enforcement officer.
37	37	(3) "County law enforcement officer" means a deputy
38	38	sheriff or other peace officer or a jailer appointed or employed by
39	39	the department.
40	40	(4) "Investigation" means an administrative
41	41	investigation, conducted by the county or the department, of
42	42	alleged misconduct by a county law enforcement officer that could
43	43	result in punitive action against that person.
44	44	(5) "Investigator" means an agent or employee of the
45	45	county or the department who is assigned to conduct an
46	46	investigation.
47	47	(6) "Normally assigned working hours" includes those
48	48	hours during which a county law enforcement officer is actually at
49	49	work or at the person's assigned place of work but does not include
50	50	any time when the person is off duty on authorized leave, including
51	51	sick leave.
52	52	(7) "Punitive action" means a disciplinary
53	53	suspension, dismissal, demotion in rank, reprimand, or any
54	54	combination of those actions.
55	55	Sec. 158.063. INTERROGATION AND INVESTIGATION OF COUNTY LAW
56	56	ENFORCEMENT OFFICERS. (a) An investigator may interrogate a
57	57	county law enforcement officer who is the subject of an
58	58	investigation only during the officer's normally assigned working
59	59	hours unless:
60	60	(1) the seriousness of the investigation, as
61	61	determined by the sheriff or the sheriff's designee, requires
62	62	interrogation at another time; and
63	63	(2) the officer is compensated for the interrogation
64	64	time on an overtime basis.
65	65	(b) The sheriff may not consider work time missed from
66	66	regular duties by a county law enforcement officer due to
67	67	participation in the conduct of an investigation in determining
68	68	whether to impose a punitive action or in determining the severity
69	69	of a punitive action.
70	70	(c) An investigator may not interrogate a county law
71	71	enforcement officer who is the subject of an investigation or
72	72	conduct any part of the investigation at that person's home without
73	73	that person's permission.
74	74	(d) A person may not be assigned to conduct an investigation
75	75	if the person is the complainant, the ultimate decision-maker
76	76	regarding disciplinary action, or a person who has any personal
77	77	involvement regarding the alleged misconduct. A county law
78	78	enforcement officer who is the subject of an investigation has the
79	79	right to inquire and, on inquiry, to be informed of the identities
80	80	of each investigator participating in an interrogation of the
81	81	officer.
82	82	(e) Before an investigator may interrogate a county law
83	83	enforcement officer who is the subject of an investigation, the
84	84	investigator must inform the officer in writing of the nature of the
85	85	investigation and the name of each person who complained about the
86	86	officer concerning the matters under investigation. An
87	87	investigator may not conduct an interrogation of an officer based
88	88	on a complaint by a complainant who is not a peace officer or a
89	89	jailer unless the complainant verifies the complaint in writing
90	90	before a public officer who is authorized by law to take statements
91	91	under oath. Not later than the 48th hour before the hour on which an
92	92	investigator begins to interrogate an officer regarding an
93	93	allegation based on a complaint, affidavit, or statement, the
94	94	investigator shall give the officer a copy of the affidavit,
95	95	complaint, or statement. An officer is entitled to and shall be
96	96	provided with all statements or affidavits received or gathered by
97	97	the investigative authority from witnesses, deputies, or
98	98	supervisors during the investigation before the officer's
99	99	interrogation, if the interrogation is based wholly or partly on
100	100	those statements. If an employee is not given a statement to which
101	101	the employee is entitled, that statement, or portion of the
102	102	statement, may not be used to support any administrative action
103	103	against or discipline of the officer. If the officer gives a
104	104	statement, the officer shall be given a copy of that statement.
105	105	This subsection does not apply to an on-the-scene investigation
106	106	that occurs immediately after an incident being investigated if the
107	107	limitations of this subsection would unreasonably hinder the
108	108	essential purpose of the investigation or interrogation. If the
109	109	limitation would hinder the investigation or interrogation, the
110	110	officer under investigation must be furnished, as soon as
111	111	practicable, a written statement of the nature of the
112	112	investigation, the name of each complaining party, and the
113	113	complaint, affidavit, or statement.
114	114	(f) An interrogation session of a county law enforcement
115	115	officer who is the subject of an investigation may not be
116	116	unreasonably long. In determining reasonableness, the gravity and
117	117	complexity of the investigation must be considered. The
118	118	investigators shall allow reasonable interruptions to permit the
119	119	officer to attend to personal physical necessities.
120	120	(g) An officer who is the subject of an interrogation shall
121	121	be given notice not less than 24 hours before the interrogation is
122	122	to take place of the time and place of the interrogation. An
123	123	officer is entitled to have legal counsel or a representative of the
124	124	officer's employee organization present during any interrogation
125	125	or interview that the employee is ordered to attend.
126	126	(h) An investigator may not threaten a county law
127	127	enforcement officer who is the subject of an investigation with
128	128	punitive action during an interrogation. However, an investigator
129	129	may inform an officer that failure to truthfully answer reasonable
130	130	questions directly related to the investigation or to fully
131	131	cooperate in the conduct of the investigation may result in
132	132	punitive action.
133	133	(i) If prior notification of intent to record an
134	134	interrogation is given to the other party, either the investigator
135	135	or the county law enforcement officer who is the subject of an
136	136	interrogation may record the interrogation.
137	137	(j) If an investigation does not result in punitive action
138	138	against a county law enforcement officer other than a reprimand
139	139	recorded in writing or an adverse finding or determination
140	140	regarding that person, the reprimand, finding, or determination may
141	141	not be placed in that person's personnel file unless the officer is
142	142	first given an opportunity to read and sign the document. If the
143	143	officer refuses to sign the reprimand, finding, or determination,
144	144	it may be placed in the personnel file with a notation that the
145	145	person refused to sign it. An officer may respond in writing to a
146	146	reprimand, finding, or determination that is placed in the person's
147	147	personnel file under this subsection by submitting a written
148	148	response to the sheriff within 10 days after the date the officer is
149	149	asked to sign the document. The response shall be placed in the
150	150	personnel file. An officer who receives a punitive action and who
151	151	elects not to appeal the action may file a written response as
152	152	prescribed by this subsection within 10 days after the date the
153	153	person is given written notice of the punitive action from the
154	154	sheriff.
155	155	(k) If the sheriff or any investigator violates any
156	156	provision of this section while conducting an investigation, the
157	157	county or department shall reverse any punitive action taken based
158	158	on the investigation, including a reprimand, and any information
159	159	obtained during the investigation may not be admitted into evidence
160	160	in any proceeding against the county law enforcement officer.
161	161	Sec. 158.064. ONGOING CRIMINAL INVESTIGATIONS. (a) If the
162	162	county law enforcement officer is suspected and under investigation
163	163	for ongoing criminal activity, an investigator shall:
164	164	(1) on or before the 180th day after the date the
165	165	county becomes aware of the suspected criminal activity, notify the
166	166	sheriff or the sheriff's designee in writing of the pending ongoing
167	167	criminal investigation;
168	168	(2) show good cause for the continued criminal
169	169	investigation; and
170	170	(3) state the approximate time the criminal
171	171	investigation is likely to be concluded.
172	172	(b) The county is not required to comply with the
173	173	requirements of Section 158.063 until the completion of the
174	174	criminal investigation. Not later than the fifth day after the date
175	175	of the completion of the criminal investigation, the county shall
176	176	comply with the requirements of Section 158.063.
177	177	Sec. 158.065. RIGHTS OF COUNTY LAW ENFORCEMENT OFFICERS IN
178	178	INVESTIGATIONS. (a) In all investigations which arise from
179	179	complaints from sources other than law enforcement personnel, the
180	180	complainant must first be given and pass a polygraph examination
181	181	before the investigation can continue.
182	182	(b) A county law enforcement officer may not be required to
183	183	submit to a polygraph examination, unless the officer has been
184	184	given written notice not less than 48 hours before the polygraph
185	185	examination or the officer voluntarily agrees to take the polygraph
186	186	examination. If the officer voluntarily submits to the polygraph
187	187	examination, the results of the polygraph examination shall be
188	188	provided to the officer immediately following conclusion of the
189	189	exam. The officer is entitled to legal representation prior to,
190	190	during, and after the polygraph examination.
191	191	(c) A county law enforcement officer shall be notified in
192	192	writing not less than 48 hours before a predisciplinary or
193	193	disciplinary hearing.
194	194	(d) A county law enforcement officer is entitled to request
195	195	the officer's disciplinary hearing be postponed pending the outcome
196	196	of a criminal case based on the same conduct.
197	197	(e) A predisciplinary or disciplinary hearing may not be
198	198	held on Saturday, Sunday, or any state or federal holiday. All
199	199	predisciplinary and disciplinary hearings, or investigative
200	200	interviews, shall be held during normal business hours.
201	201	(f) A county law enforcement officer is entitled to be
202	202	accompanied by a representative of the officer's choosing at any
203	203	predisciplinary or disciplinary hearing, or at an investigative
204	204	interview.
205	205	(g) A county law enforcement officer involved in a
206	206	line-of-duty shooting is entitled to have an attorney present
207	207	during any investigation by the county.
208	208	(h) If a county law enforcement officer is required to give
209	209	a statement regarding any allegation of misconduct, the
210	210	investigator may not amend the officer's statement in any way
211	211	without the officer's permission and signature. If the employee
212	212	agrees to the amendment, the investigator shall provide the officer
213	213	with a copy of the amended statement immediately following the
214	214	amendment.
215	215	Sec. 158.066. OUTCOME OF INVESTIGATION. If an
216	216	investigation reveals the county law enforcement officer has not
217	217	committed an act of misconduct:
218	218	(1) the complaint may not be placed in the officer's
219	219	file; and
220	220	(2) the complaint may not be used against the officer
221	221	in a subsequent investigation, punitive action proceeding, or
222	222	disciplinary action.
223	223	Sec. 158.067. SANCTIONS FOR VIOLATIONS OF THIS SUBCHAPTER.
224	224	(a) If a county law enforcement officer who appeals a punitive
225	225	action or that officer's representative can demonstrate by a
226	226	preponderance of the evidence the provisions of Section 158.063,
227	227	158.064, or 158.065 were violated, the evidence gained as a
228	228	consequence of the violation shall be permanently excluded from the
229	229	investigator's file and may not be considered in rendering a
230	230	decision.
231	231	(b) If a county law enforcement officer or that officer's
232	232	representative is in a dispute with the county regarding evidence
233	233	obtained during the investigation, before the evidence may be used
234	234	and before the officer's appeal hearing convenes the commission
235	235	shall hear supporting arguments from opposing parties. If the
236	236	commission rules in favor of the officer and finds the county in
237	237	violation of Section 158.063, 158.064, or 158.065, the commission
238	238	shall:
239	239	(1) order that any information obtained and found in
240	240	violation of Section 158.063, 158.064, or 158.065 during the
241	241	investigation be excluded from introduction into evidence in the
242	242	proceeding against the officer; or
243	243	(2) if the commission determines that the violation
244	244	was knowing or intentional:
245	245	(A) reverse the punitive action decision and
246	246	instruct the county to immediately restore the officer to the
247	247	employee's prior position; and
248	248	(B) order repayment of any lost wages and loss of
249	249	benefits.
250	250	SECTION 3. (a) Section 158.034(a), Local Government Code,
251	251	as amended by this Act, applies to an appointment or reappointment
252	252	that occurs on or after the effective date of this Act.
253	253	(b) Subchapter C, Chapter 158, Local Government Code, as
254	254	added by this Act, applies only to an investigation of conduct that
255	255	occurred on or after the effective date of this Act.
256	256	SECTION 4. This Act takes effect September 1, 2009.