Texas 2011 - 82nd Regular

Texas House Bill HB2957 Compare Versions

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1	1	82R24763 MXM-F
2	2	By: J. Davis of Harris, Naishtat H.B. No. 2957
3	3	Substitute the following for H.B. No. 2957:
4	4	By: Beck C.S.H.B. No. 2957
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to due process for certain law enforcement officers.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 614, Government Code, is amended by
12	12	adding Subchapter L to read as follows:
13	13	SUBCHAPTER L. LAW ENFORCEMENT OFFICERS' DUE PROCESS ACT
14	14	Sec. 614.201. SHORT TITLE. This subchapter may be cited as
15	15	the Law Enforcement Officers' Due Process Act.
16	16	Sec. 614.202. DEFINITIONS. In this subchapter:
17	17	(1) "Law enforcement agency" means a municipal police
18	18	department, sheriff's department, or constable's office that
19	19	employs, commissions, or appoints a law enforcement officer.
20	20	(2) "Law enforcement officer" means a person who is a
21	21	sworn peace officer under Article 2.12, Code of Criminal Procedure.
22	22	Sec. 614.203. APPLICABILITY. (a) This subchapter applies
23	23	only to a law enforcement officer who:
24	24	(1) is employed, commissioned, or appointed by a law
25	25	enforcement agency; and
26	26	(2) is not:
27	27	(A) above the rank of major; or
28	28	(B) the chief of police or the sheriff,
29	29	constable, marshal, director, or other highest ranking officer in a
30	30	law enforcement agency.
31	31	(b) This subchapter applies to all law enforcement
32	32	disciplinary proceedings in this state that are conducted by a law
33	33	enforcement agency.
34	34	(c) This subchapter does not apply to a municipal police
35	35	department or a law enforcement officer employed, commissioned, or
36	36	appointed by the department in a municipality with a population of
37	37	1.9 million or more.
38	38	Sec. 614.204. RELATION TO CERTAIN LABOR AGREEMENTS. This
39	39	subchapter does not supersede an existing meet and confer agreement
40	40	or collective bargaining agreement of a municipality or county.
41	41	Sec. 614.205. LIMITATIONS ON POLITICAL ACTIVITY. A law
42	42	enforcement officer has the same rights to engage in political
43	43	activity as any other person, except that a law enforcement officer
44	44	may not engage in political activity while the law enforcement
45	45	officer is on duty, in uniform, or acting in an official capacity.
46	46	Sec. 614.206. LIMITATIONS ON REMOVAL FROM OFFICE. A law
47	47	enforcement agency may not remove without cause a law enforcement
48	48	officer employed as a deputy sheriff, deputy, or deputy constable
49	49	who:
50	50	(1) does not hold a command rank in the law enforcement
51	51	agency; and
52	52	(2) does not have civil service protection or is not
53	53	covered by a collective bargaining agreement.
54	54	Sec. 614.207. INVESTIGATION; QUESTIONING. (a) If a law
55	55	enforcement officer is under investigation or is subjected to
56	56	questioning for any reason that could lead to disciplinary action,
57	57	demotion, or dismissal, the administrative investigation or
58	58	questioning must be conducted in accordance with this subchapter.
59	59	(b) The questioning of a law enforcement officer must in an
60	60	administrative investigation:
61	61	(1) be conducted at a reasonable hour, preferably at a
62	62	time when the officer is on duty unless the investigator believes
63	63	that the gravity of the investigation requires immediate
64	64	questioning; and
65	65	(2) take place at the law enforcement agency
66	66	headquarters or at the office of the local troop or police unit in
67	67	which the incident allegedly occurred as designated by the
68	68	investigator unless otherwise waived in writing by the officer.
69	69	(c) The investigator in charge of the administrative
70	70	investigation shall inform the law enforcement officer under
71	71	investigation of the investigator's name, rank, and command. A
72	72	question directed to the officer may not be asked by more than two
73	73	investigators.
74	74	(d) A formal complaint against a law enforcement officer
75	75	that calls for the dismissal or suspension of the officer or other
76	76	formal disciplinary action against the officer may not be
77	77	prosecuted under a rule of the law enforcement agency unless the
78	78	complaint is supported by substantial evidence derived from an
79	79	administrative investigation by an authorized member of the agency.
80	80	(e) A law enforcement officer under an administrative
81	81	investigation must be informed in writing of the nature of the
82	82	investigation not less than 72 hours before being questioned.
83	83	(f) Interview sessions must be conducted for reasonable
84	84	periods of time and must allow time for the law enforcement officer
85	85	to take care of personal necessities and for reasonable rest
86	86	periods.
87	87	(g) Except on refusal to answer questions in an
88	88	administrative investigation, a law enforcement officer may not,
89	89	during an investigation, be threatened with transfer, dismissal, or
90	90	other disciplinary action.
91	91	Sec. 614.208. INTERVIEW RECORD REQUIRED. (a) An
92	92	investigator shall keep a complete record of all interviews held in
93	93	connection with an administrative investigation under this
94	94	subchapter on notification that substantial evidence exists for
95	95	seeking an administrative sanction of the law enforcement officer.
96	96	The record must be written or electronically recorded and, if
97	97	electronically recorded, transcribed as soon as practicable.
98	98	(b) A copy of the record shall be provided on request to the
99	99	law enforcement officer or the officer's counsel at the officer's
100	100	expense.
101	101	Sec. 614.209. ARREST; RIGHT TO COUNSEL. (a) If a law
102	102	enforcement officer under questioning is under arrest or may
103	103	reasonably be placed under arrest as a result of the administrative
104	104	investigation, the investigator, before the interrogation begins,
105	105	shall inform the officer of the officer's rights, including the
106	106	reasonable possibility of the officer's arrest.
107	107	(b) On request, a law enforcement officer under questioning
108	108	has the right to be represented by counsel or another
109	109	representative of the officer's choice. If the officer requests
110	110	representation, the questioning must be suspended until the time
111	111	the officer obtains representation, if reasonably available, and
112	112	the counsel or representative must be present at all times during
113	113	the questioning unless the officer waives in writing the officer's
114	114	right to have the representative present.
115	115	Sec. 614.210. ACCESS TO DOCUMENTS. (a) An officer charged
116	116	with violating a rule of the law enforcement agency, or the
117	117	officer's representative, shall be granted access to transcripts,
118	118	records, written statements, written reports, analyses, and
119	119	videotapes that are pertinent to the case and that are exculpatory,
120	120	are intended to support any disciplinary action, or will be
121	121	introduced in an agency hearing on the charges involved.
122	122	(b) On demand by a law enforcement officer or the officer's
123	123	counsel, the documents described in Subsection (a) must be produced
124	124	within 48 hours of the officer's receipt of a written notification
125	125	of the charges.
126	126	Sec. 614.211. FINDINGS AND RECOMMENDATIONS. At the
127	127	conclusion of an administrative investigation of a law enforcement
128	128	officer, the investigator in writing shall inform the law
129	129	enforcement officer of the investigative findings and any
130	130	recommendation for further action.
131	131	Sec. 614.212. CONFIDENTIALITY. (a) All records compiled
132	132	as a result of any administrative investigation subject to this
133	133	subchapter or a contractual disciplinary grievance procedure are
134	134	confidential and may not be disclosed or released to the public.
135	135	(b) A verbal or written statement made by a law enforcement
136	136	officer during the course of an administrative investigation is not
137	137	admissible in a criminal proceeding. A report, audiotape
138	138	recording, videotape recording, or notes made by an investigator
139	139	may not be shared with anyone who has criminal investigation
140	140	authority or who is capable of conducting a criminal investigation.
141	141	Sec. 614.213. INVESTIGATION PERIOD; EXTENSION HEARING. (a)
142	142	Except as otherwise provided in this section, an administrative
143	143	investigation of a law enforcement officer conducted under this
144	144	subchapter must be completed not later than the 60th day after the
145	145	date the investigation begins.
146	146	(b) This section does not supersede any civil service law.
147	147	(c) A law enforcement agency may request an extension to
148	148	complete an investigation by convening a three-member board to
149	149	conduct a hearing on the requested extension and shall provide
150	150	notice of the hearing to the law enforcement officer who is under an
151	151	administrative investigation. The officer has the right to attend
152	152	the hearing and to present evidence and arguments against the
153	153	extension.
154	154	(d) At the hearing under Subsection (c), if the board finds
155	155	that the law enforcement agency has shown good cause for granting an
156	156	extension of time for completion of the administrative
157	157	investigation, the board shall grant an extension not to exceed 60
158	158	days.
159	159	(e) This section does not:
160	160	(1) prohibit the law enforcement officer under
161	161	administrative investigation and the law enforcement agency from
162	162	entering into a written agreement extending the investigation for
163	163	not more than 60 days; or
164	164	(2) limit any investigation of alleged criminal
165	165	activity.
166	166	Sec. 614.214. DISCLOSURE. (a) Unless otherwise required
167	167	by this subchapter, a law enforcement agency is not required to
168	168	disclose in any civil proceeding a personnel file or internal
169	169	affairs investigatory file compiled in connection with a law
170	170	enforcement officer under administrative investigation or
171	171	subjected to questioning for any reason that could lead to
172	172	disciplinary action, demotion, or dismissal.
173	173	(b) Subsection (a) does not apply to a proceeding brought by
174	174	a citizen against a law enforcement officer alleging that the
175	175	officer breached the officer's official duties and that the breach
176	176	resulted in injury or other damage to the citizen.
177	177	Sec. 614.215. ADVERSE MATERIAL PLACED IN OFFICER'S FILE. A
178	178	law enforcement agency may not place any adverse material into the
179	179	file of a law enforcement officer except the file kept during the
180	180	internal investigation or by the intelligence division unless the
181	181	officer has had an opportunity to review, sign, and receive a copy
182	182	of the material and comment in writing on the material.
183	183	Sec. 614.216. DISCLOSURE OF ASSETS. A law enforcement
184	184	officer or any member of the officer's household may not be required
185	185	or requested to disclose during an administrative investigation or
186	186	questioning under this subchapter any item of personal property,
187	187	income, assets, sources of income, debts, or personal or domestic
188	188	expenditures unless:
189	189	(1) the information is necessary for the conduct of an
190	190	investigation on a violation of any federal, state, or local law
191	191	related to the performance of the officer's official duties; or
192	192	(2) the disclosure is required by state or federal
193	193	law.
194	194	Sec. 614.217. HEARING REQUIRED ON SUSPENSION OR OTHER
195	195	DISCIPLINARY ACTION. (a) A law enforcement officer is entitled to
196	196	a hearing if the officer is:
197	197	(1) suspended for any reason;
198	198	(2) charged with conduct alleged to violate the rules
199	199	or general orders of the law enforcement agency that employs the
200	200	officer; or
201	201	(3) charged with conduct that could lead to any form of
202	202	disciplinary action, other than a reprimand, and that may become
203	203	part of the officer's permanent personnel record.
204	204	(b) A hearing required under Subsection (a) must be
205	205	conducted in accordance with this subchapter unless a contractual
206	206	disciplinary grievance procedure executed between the law
207	207	enforcement agency and the bargaining unit for that law enforcement
208	208	officer is in effect, in which case the terms of that disciplinary
209	209	grievance procedure take precedence and govern the conduct of the
210	210	hearing.
211	211	Sec. 614.218. HEARING: SCHEDULING; NOTICE. (a) The
212	212	hearing for a law enforcement officer entitled to a hearing under
213	213	this subchapter must be scheduled within a reasonable period of
214	214	time after the date of the alleged incident, but not later than the
215	215	30th day after the date an internal investigation is concluded,
216	216	unless the hearing is waived in writing by the officer.
217	217	(b) The law enforcement officer shall be given written
218	218	notice of the time and place of the hearing and the issues involved,
219	219	including:
220	220	(1) a detailed description of the act the officer is
221	221	charged with having committed;
222	222	(2) a statement of the rule or order that the act is
223	223	alleged to violate; and
224	224	(3) a copy of the rule or order.
225	225	(c) The charge against the law enforcement officer must:
226	226	(1) advise the officer of the alleged facts;
227	227	(2) advise the officer that the violation of the rule
228	228	constitutes a basis for discipline; and
229	229	(3) specify the range of applicable penalties that
230	230	could be imposed.
231	231	Sec. 614.219. HEARING: PROCEDURE. (a) A law enforcement
232	232	agency shall retain the official record of a hearing conducted
233	233	under this subchapter, including testimony and exhibits.
234	234	(b) A hearing conducted under this subchapter must be
235	235	conducted within the law enforcement agency by an impartial board
236	236	of three agency officers. The board must include one member who is
237	237	of the same rank as the officer being charged. The prosecuting
238	238	party and the officer being charged may be represented by legal
239	239	counsel and the officer's counsel shall be given an opportunity to
240	240	present evidence and arguments related to the issues involved.
241	241	(c) If an impartial board cannot be convened by the
242	242	investigating agency, a board of three officers from another
243	243	jurisdiction shall be convened under the direction of the head law
244	244	enforcement officer of the law enforcement agency conducting the
245	245	investigation.
246	246	(d) An officer of a law enforcement agency appointed to
247	247	serve on a board under this section is immune from civil liability
248	248	arising from any act or omission arising out of the officer's
249	249	service on the board if the member acted in good faith and without
250	250	malice in carrying out the member's responsibilities or duties. A
251	251	member of the board is presumed to have acted in good faith and
252	252	without malice unless proven otherwise.
253	253	(e) Evidence with a probative value commonly accepted by
254	254	reasonable and prudent persons in the conduct of their affairs is
255	255	admissible in evidence and given probative effect. The board
256	256	conducting the hearing shall give effect to the rules of privilege
257	257	recognized by law and may exclude incompetent, irrelevant,
258	258	immaterial, and unduly repetitious evidence. All records and
259	259	documents that any party desires to use shall be offered and made a
260	260	part of the record. Documentary evidence may be received in the
261	261	form of copies of excerpts or by incorporation by reference.
262	262	(f) Every party has the right to cross-examine witnesses who
263	263	testify and may submit rebuttal evidence.
264	264	(g) The board may take notice of judicially cognizable facts
265	265	and may take notice of general, technical, or scientific facts
266	266	within the board's specialized knowledge. Parties shall be
267	267	notified beforehand of the materials noticed by the board. A law
268	268	enforcement officer may not be adjudged guilty of any offense
269	269	unless the board is satisfied that guilt has been established by
270	270	substantial evidence.
271	271	Sec. 614.220. EVIDENCE OBTAINED IN VIOLATION OF OFFICER'S
272	272	RIGHTS. Evidence may not be obtained, received, or admitted into
273	273	evidence in a proceeding of any disciplinary action that violates
274	274	any right established by the United States Constitution, the Texas
275	275	Constitution, or this subchapter. The board appointed under
276	276	Section 614.219 may not enter any judgment or sustain any
277	277	disciplinary action based on evidence obtained in violation of a
278	278	law enforcement officer's rights under this subchapter.
279	279	Sec. 614.221. WRITTEN DECISION AND FINDINGS OF FACT
280	280	DELIVERED TO OFFICER. (a) A decision, order, or action taken
281	281	following a hearing conducted under this subchapter must be in
282	282	writing and accompanied by findings of fact. The findings shall
283	283	consist of a concise statement on each issue in the case.
284	284	(b) A copy of the decision or order, accompanying findings
285	285	and conclusions, and the written action and right of appeal, if any,
286	286	shall be delivered or mailed promptly to the law enforcement
287	287	officer or to the officer's counsel or representative of record.
288	288	Sec. 614.222. PROHIBITED PUNISHMENTS. (a) A law
289	289	enforcement officer may not be compelled to work extra duty without
290	290	compensation as a penalty for a disciplinary infraction.
291	291	(b) A suspension for any period of time provided in a law
292	292	enforcement agency's rules may not affect the law enforcement
293	293	officer's eligibility for pension, hospitalization, medical and
294	294	life insurance coverage, or other benefits specifically protected
295	295	under the contract of employment. Suspension may affect time of
296	296	pension eligibility by contract or other law.
297	297	(c) This subchapter does not prevent a law enforcement
298	298	agency from requiring reimbursement by a suspended law enforcement
299	299	officer of the officer's employee contribution to benefits during
300	300	the officer's time of suspension.
301	301	Sec. 614.223. RETALIATION FOR EXERCISING RIGHTS. A law
302	302	enforcement officer may not be assessed a penalty or threatened
303	303	with the assessment of a penalty for exercising the officer's
304	304	rights under this subchapter.
305	305	SECTION 2. The changes in law made by this Act apply only to
306	306	an administrative investigation or a disciplinary hearing begun on
307	307	or after the effective date of this Act.
308	308	SECTION 3. This Act takes effect September 1, 2011.