82R1476 NAJ-F
By: Menendez H.B. No. 43
A BILL TO BE ENTITLED
AN ACT
relating to the investigation of firefighters and police officers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 143, Local Government
Code, is amended by adding Section 143.0511 to read as follows:
Sec. 143.0511. INVESTIGATION OF FIRE FIGHTERS AND POLICE
OFFICERS. (a) This section does not apply to a municipality to
which Section 143.123 or 143.312 applies.
(b) In this section:
(1) "Complainant" means a person claiming to be the
victim of misconduct by a fire fighter or police officer.
(2) "Investigation" means an administrative
investigation, conducted by the municipality, of alleged
misconduct by a fire fighter or police officer that could result in
punitive action against that person.
(3) "Investigator" means an agent or employee of the
municipality who is assigned to conduct an investigation.
(4) "Normally assigned working hours" includes those
hours during which a fire fighter or police 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.
(5) "Punitive action" means a disciplinary
suspension, indefinite suspension, demotion in rank, written
reprimand, or any combination of those actions.
(c) An investigator may interrogate a fire fighter or police
officer who is the subject of an investigation only during the fire
fighter's or police officer's normally assigned working hours
unless:
(1) the seriousness of the investigation, as
determined by the fire fighter's or police officer's department
head or the department head's designee, requires interrogation at
another time; and
(2) the fire fighter or police officer is compensated
for the interrogation time on an overtime basis.
(d) The department head may not consider work time missed
from regular duties by a fire fighter or police 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.
(e) An investigator may not interrogate a fire fighter or
police 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.
(f) 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 fire fighter or
police 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 fire fighter
or police officer.
(g) Not less than 48 hours before an investigator begins the
initial interrogation of a fire fighter or police officer who is the
subject of an investigation, the investigator must inform the fire
fighter or police officer in writing of the allegations in the
complaint. An investigator may not interrogate a fire fighter or
police officer based on a complaint by a complainant who is not a
fire fighter or police officer unless the complainant verifies the
complaint in writing before a public officer who is authorized by
law to take statements under oath. In an investigation under this
subsection, an investigator may interrogate a fire fighter or
police officer about events or conduct reported by a witness who is
not a complainant without disclosing the name of the witness. An
interrogation may be based on a complaint from an anonymous
complainant if the departmental employee receiving the anonymous
complaint certifies in writing, under oath, that the complaint was
anonymous. This subsection does not apply to an on-the-scene
investigation that occurs immediately after an incident being
investigated, except that the fire fighter or police officer under
investigation must be furnished, as soon as practicable, a written
statement of the allegations in the complaint.
(h) An interrogation session of a fire fighter or police
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
fire fighter or police officer to attend to personal physical
necessities.
(i) An investigator may not threaten a fire fighter or
police officer who is the subject of an investigation with punitive
action during an interrogation. An investigator may inform a fire
fighter or police officer that failure to answer truthfully
reasonable questions directly related to the investigation or to
cooperate fully in the conduct of the investigation may result in
punitive action.
(j) If prior notification of intent to record an
interrogation is given to the other party, either the investigator
or the fire fighter or police officer who is the subject of an
interrogation may record the interrogation.
(k) If an investigation does not result in punitive action
against a fire fighter or police officer but does result in a
written reprimand 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 fire fighter or
police officer is first given an opportunity to read and sign the
document. If the fire fighter or police 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.
A fire fighter or police 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 department head not later than the 10th day after
the date the fire fighter or police officer is asked to sign the
document. The response shall be placed in the personnel file. A
fire fighter or police officer who receives a punitive action and
who elects not to appeal the action may file a written response as
prescribed by this subsection not later than the 10th day after the
date the person is given written notice of the punitive action from
the department head.
(l) A violation of this section may be considered by the
commission or hearing examiner during a disciplinary appeal hearing
if the violation substantially impaired the fire fighter's or
police officer's ability to defend against the allegations of
misconduct.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.