81R6348 JSC-F
By: Whitmire S.B. No. 1338
A BILL TO BE ENTITLED
AN ACT
relating to the rights of certain county law enforcement officers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 158.034(a), Local Government Code, is
amended to read as follows:
(a) In a county with a population of less than 2.8 million,
if a majority of the employees voting at the election approve the
creation of a sheriff's department civil service system, the
sheriff, commissioners court, and district attorney shall each
appoint one person to serve as a member of the civil service
commission that administers the system. In a county with a
population of 2.8 million or more, if a majority of the employees
voting at the election approve the creation of a sheriff's
department civil service system, the sheriff, commissioners court,
and a bargaining agent elected by the employees of the sheriff's
department [district attorney] shall each appoint two persons to
serve as members of the civil service commission that administers
the system, and the three appointing authorities shall appoint one
member by joint action requiring the affirmative vote of each of the
authorities.
SECTION 2. Chapter 158, Local Government Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. INVESTIGATION OF COUNTY LAW ENFORCEMENT
OFFICERS IN CERTAIN COUNTIES
Sec. 158.061. APPLICABILITY. This subchapter applies only
to a county with a population of 3.3 million or more.
Sec. 158.062. DEFINITIONS. In this subchapter:
(1) "Commission" means a county civil service
commission.
(2) "Complainant" means a person claiming to be the
victim of misconduct by a county law enforcement officer.
(3) "County law enforcement officer" means a deputy
sheriff or other peace officer or a jailer appointed or employed by
the department.
(4) "Investigation" means an administrative
investigation, conducted by the county or the department, of
alleged misconduct by a county law enforcement officer that could
result in punitive action against that person.
(5) "Investigator" means an agent or employee of the
county or the department who is assigned to conduct an
investigation.
(6) "Normally assigned working hours" includes those
hours during which a county law enforcement officer is actually at
work or at the person's assigned place of work but does not include
any time when the person is off duty on authorized leave, including
sick leave.
(7) "Punitive action" means a disciplinary
suspension, dismissal, demotion in rank, reprimand, or any
combination of those actions.
Sec. 158.063. INTERROGATION AND INVESTIGATION OF COUNTY LAW
ENFORCEMENT OFFICERS. (a) An investigator may interrogate a
county law enforcement officer who is the subject of an
investigation only during the officer's normally assigned working
hours unless:
(1) the seriousness of the investigation, as
determined by the sheriff or the sheriff's designee, requires
interrogation at another time; and
(2) the officer is compensated for the interrogation
time on an overtime basis.
(b) The sheriff may not consider work time missed from
regular duties by a county law enforcement officer due to
participation in the conduct of an investigation in determining
whether to impose a punitive action or in determining the severity
of a punitive action.
(c) An investigator may not interrogate a county law
enforcement officer who is the subject of an investigation or
conduct any part of the investigation at that person's home without
that person's permission.
(d) A person may not be assigned to conduct an investigation
if the person is the complainant, the ultimate decision-maker
regarding disciplinary action, or a person who has any personal
involvement regarding the alleged misconduct. A county law
enforcement officer who is the subject of an investigation has the
right to inquire and, on inquiry, to be informed of the identities
of each investigator participating in an interrogation of the
officer.
(e) Before an investigator may interrogate a county law
enforcement officer who is the subject of an investigation, the
investigator must inform the officer in writing of the nature of the
investigation and the name of each person who complained about the
officer concerning the matters under investigation. An
investigator may not conduct an interrogation of an officer based
on a complaint by a complainant who is not a peace officer or a
jailer unless the complainant verifies the complaint in writing
before a public officer who is authorized by law to take statements
under oath. Not later than the 48th hour before the hour on which an
investigator begins to interrogate an officer regarding an
allegation based on a complaint, affidavit, or statement, the
investigator shall give the officer a copy of the affidavit,
complaint, or statement. An officer is entitled to and shall be
provided with all statements or affidavits received or gathered by
the investigative authority from witnesses, deputies, or
supervisors during the investigation before the officer's
interrogation, if the interrogation is based wholly or partly on
those statements. If an employee is not given a statement to which
the employee is entitled, that statement, or portion of the
statement, may not be used to support any administrative action
against or discipline of the officer. If the officer gives a
statement, the officer shall be given a copy of that statement.
This subsection does not apply to an on-the-scene investigation
that occurs immediately after an incident being investigated if the
limitations of this subsection would unreasonably hinder the
essential purpose of the investigation or interrogation. If the
limitation would hinder the investigation or interrogation, the
officer under investigation must be furnished, as soon as
practicable, a written statement of the nature of the
investigation, the name of each complaining party, and the
complaint, affidavit, or statement.
(f) An interrogation session of a county law enforcement
officer who is the subject of an investigation may not be
unreasonably long. In determining reasonableness, the gravity and
complexity of the investigation must be considered. The
investigators shall allow reasonable interruptions to permit the
officer to attend to personal physical necessities.
(g) An officer who is the subject of an interrogation shall
be given notice not less than 24 hours before the interrogation is
to take place of the time and place of the interrogation. An
officer is entitled to have legal counsel or a representative of the
officer's employee organization present during any interrogation
or interview that the employee is ordered to attend.
(h) An investigator may not threaten a county law
enforcement officer who is the subject of an investigation with
punitive action during an interrogation. However, an investigator
may inform an officer that failure to truthfully answer reasonable
questions directly related to the investigation or to fully
cooperate in the conduct of the investigation may result in
punitive action.
(i) If prior notification of intent to record an
interrogation is given to the other party, either the investigator
or the county law enforcement officer who is the subject of an
interrogation may record the interrogation.
(j) If an investigation does not result in punitive action
against a county law enforcement officer other than a reprimand
recorded in writing or an adverse finding or determination
regarding that person, the reprimand, finding, or determination may
not be placed in that person's personnel file unless the officer is
first given an opportunity to read and sign the document. If the
officer refuses to sign the reprimand, finding, or determination,
it may be placed in the personnel file with a notation that the
person refused to sign it. An officer may respond in writing to a
reprimand, finding, or determination that is placed in the person's
personnel file under this subsection by submitting a written
response to the sheriff within 10 days after the date the officer is
asked to sign the document. The response shall be placed in the
personnel file. An officer who receives a punitive action and who
elects not to appeal the action may file a written response as
prescribed by this subsection within 10 days after the date the
person is given written notice of the punitive action from the
sheriff.
(k) If the sheriff or any investigator violates any
provision of this section while conducting an investigation, the
county or department shall reverse any punitive action taken based
on the investigation, including a reprimand, and any information
obtained during the investigation may not be admitted into evidence
in any proceeding against the county law enforcement officer.
Sec. 158.064. ONGOING CRIMINAL INVESTIGATIONS. (a) If the
county law enforcement officer is suspected and under investigation
for ongoing criminal activity, an investigator shall:
(1) on or before the 180th day after the date the
county becomes aware of the suspected criminal activity, notify the
sheriff or the sheriff's designee in writing of the pending ongoing
criminal investigation;
(2) show good cause for the continued criminal
investigation; and
(3) state the approximate time the criminal
investigation is likely to be concluded.
(b) The county is not required to comply with the
requirements of Section 158.063 until the completion of the
criminal investigation. Not later than the fifth day after the date
of the completion of the criminal investigation, the county shall
comply with the requirements of Section 158.063.
Sec. 158.065. RIGHTS OF COUNTY LAW ENFORCEMENT OFFICERS IN
INVESTIGATIONS. (a) In all investigations which arise from
complaints from sources other than law enforcement personnel, the
complainant must first be given and pass a polygraph examination
before the investigation can continue.
(b) A county law enforcement officer may not be required to
submit to a polygraph examination, unless the officer has been
given written notice not less than 48 hours before the polygraph
examination or the officer voluntarily agrees to take the polygraph
examination. If the officer voluntarily submits to the polygraph
examination, the results of the polygraph examination shall be
provided to the officer immediately following conclusion of the
exam. The officer is entitled to legal representation prior to,
during, and after the polygraph examination.
(c) A county law enforcement officer shall be notified in
writing not less than 48 hours before a predisciplinary or
disciplinary hearing.
(d) A county law enforcement officer is entitled to request
the officer's disciplinary hearing be postponed pending the outcome
of a criminal case based on the same conduct.
(e) A predisciplinary or disciplinary hearing may not be
held on Saturday, Sunday, or any state or federal holiday. All
predisciplinary and disciplinary hearings, or investigative
interviews, shall be held during normal business hours.
(f) A county law enforcement officer is entitled to be
accompanied by a representative of the officer's choosing at any
predisciplinary or disciplinary hearing, or at an investigative
interview.
(g) A county law enforcement officer involved in a
line-of-duty shooting is entitled to have an attorney present
during any investigation by the county.
(h) If a county law enforcement officer is required to give
a statement regarding any allegation of misconduct, the
investigator may not amend the officer's statement in any way
without the officer's permission and signature. If the employee
agrees to the amendment, the investigator shall provide the officer
with a copy of the amended statement immediately following the
amendment.
Sec. 158.066. OUTCOME OF INVESTIGATION. If an
investigation reveals the county law enforcement officer has not
committed an act of misconduct:
(1) the complaint may not be placed in the officer's
file; and
(2) the complaint may not be used against the officer
in a subsequent investigation, punitive action proceeding, or
disciplinary action.
Sec. 158.067. SANCTIONS FOR VIOLATIONS OF THIS SUBCHAPTER.
(a) If a county law enforcement officer who appeals a punitive
action or that officer's representative can demonstrate by a
preponderance of the evidence the provisions of Section 158.063,
158.064, or 158.065 were violated, the evidence gained as a
consequence of the violation shall be permanently excluded from the
investigator's file and may not be considered in rendering a
decision.
(b) If a county law enforcement officer or that officer's
representative is in a dispute with the county regarding evidence
obtained during the investigation, before the evidence may be used
and before the officer's appeal hearing convenes the commission
shall hear supporting arguments from opposing parties. If the
commission rules in favor of the officer and finds the county in
violation of Section 158.063, 158.064, or 158.065, the commission
shall:
(1) order that any information obtained and found in
violation of Section 158.063, 158.064, or 158.065 during the
investigation be excluded from introduction into evidence in the
proceeding against the officer; or
(2) if the commission determines that the violation
was knowing or intentional:
(A) reverse the punitive action decision and
instruct the county to immediately restore the officer to the
employee's prior position; and
(B) order repayment of any lost wages and loss of
benefits.
SECTION 3. (a) Section 158.034(a), Local Government Code,
as amended by this Act, applies to an appointment or reappointment
that occurs on or after the effective date of this Act.
(b) Subchapter C, Chapter 158, Local Government Code, as
added by this Act, applies only to an investigation of conduct that
occurred on or after the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2009.