87R21336 JCG-D
By: White, et al. H.B. No. 1396
Substitute the following for H.B. No. 1396:
By: White C.S.H.B. No. 1396
A BILL TO BE ENTITLED
AN ACT
relating to law enforcement agencies and policies and procedures
affecting peace officers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2, Code of Criminal Procedure, is
amended by adding Article 2.1308 to read as follows:
Art. 2.1308. CERTAIN POLICIES REQUIRED. (a) In this
article:
(1) "Law enforcement agency" means an agency of this
state or an agency of a political subdivision of this state
authorized by law to employ peace officers.
(2) "No-knock entry" means a peace officer's entry,
for the purpose of executing a warrant, into a building or other
place without giving notice of the officer's authority or purpose
before entering.
(b) Each law enforcement agency, in consultation with
judges, prosecutors, commissioners courts, governing bodies of
municipalities, and residents located within the agency's
jurisdiction, shall adopt written policies regarding:
(1) the issuance of citations for misdemeanor
offenses, including traffic offenses, that are punishable by fine
only;
(2) the use of a no-knock entry by a peace officer of
the law enforcement agency; and
(3) the intervention by a peace officer of the agency
to stop or prevent another peace officer from using excessive force
against a person suspected of committing an offense.
(c) A policy adopted under this article must:
(1) be approved by a district judge or the judge of a
county court at law in the jurisdiction served by the law
enforcement agency; and
(2) ensure judicial efficiency, law enforcement
efficiency and effectiveness, and community safety.
(d) In addition to the requirements of Subsection (c), the
policy required by Subsection (b)(1) must:
(1) provide a procedure for a peace officer, on a
person's presentation of appropriate identification, to verify the
person's identity and issue a citation to the person; and
(2) comply with Article 14.06 of this code and Section
543.004, Transportation Code.
SECTION 2. Chapter 2, Code of Criminal Procedure, is
amended by adding Article 2.1397 to read as follows:
Art. 2.1397. DUTIES OF LAW ENFORCEMENT AGENCY REGARDING
PEACE OFFICER MISCONDUCT. (a) In this article:
(1) "Commission" means the Texas Commission on Law
Enforcement.
(2) "Law enforcement agency" means an agency of this
state or an agency of a political subdivision of this state
authorized by law to employ peace officers.
(b) The commission by rule shall require each law
enforcement agency to report to the commission:
(1) each substantiated incident of misconduct by a
peace officer employed by the agency, including:
(A) a conviction for a criminal offense committed
in the course of performing the officer's duties;
(B) the use of excessive force against a person
suspected of committing an offense;
(C) conduct that constitutes a felony or a Class
A or B misdemeanor, regardless of whether the criminal offense is
prosecuted;
(D) sexual harassment involving physical contact
or misuse of official capacity;
(E) the misuse of official capacity or
misappropriation of property, including the misuse of a law
enforcement database or criminal records;
(F) an unprofessional relationship with a person
arrested, detained, or otherwise in the custody of the peace
officer or the law enforcement agency;
(G) any false statements made by the officer in
obtaining employment with the law enforcement agency;
(H) tampering with or fabricating physical
evidence of a criminal offense; or
(I) tampering with a governmental record,
including making false statements in the record or altering,
destroying, or concealing the record; and
(2) for each substantiated incident of misconduct
reported under Subdivision (1), whether the agency terminated or
took disciplinary action against the peace officer or permitted the
peace officer to retire or resign in lieu of termination for the
misconduct.
(c) The rules adopted under Subsection (b) must provide for
the manner in which the report is to be submitted to the commission,
including prescribing a form for use in reporting information under
this article.
(d) The commission shall make information reported to the
commission under this article accessible by all law enforcement
agencies in this state.
(e) The commission may make information regarding an
incident of misconduct that is reported to the commission under
this article available to a federal law enforcement agency that is
investigating the incident.
(f) Except as provided by Subsections (d) and (e), a report
submitted to the commission under this article is confidential and
not subject to disclosure under Chapter 552, Government Code.
(g) As soon as practicable after each regularly scheduled
commission meeting, the commission shall make available on its
Internet website a report regarding incidents of misconduct
reported since the commission's previous report under this
subsection. The report must include:
(1) the total number of incidents reported to the
commission under this article and the number reported since the
previous report; and
(2) information regarding:
(A) the most common types of misconduct reported;
(B) disciplinary action taken by the law
enforcement agency, including termination or permitting the peace
officer to retire or resign in lieu of termination; and
(C) any disciplinary action taken by the
commission.
SECTION 3. Subchapter A, Chapter 772, Government Code, is
amended by adding Section 772.0055 to read as follows:
Sec. 772.0055. LIMITATION ON ELIGIBILITY FOR GRANT. (a) In
this section, "law enforcement agency" means an agency of this
state or an agency of a political subdivision of this state
authorized by law to employ peace officers.
(b) Notwithstanding any other law, to be eligible to receive
a grant or other discretionary funding by the governor, a law
enforcement agency must:
(1) consistently report incidents of misconduct as
required by Article 2.1397, Code of Criminal Procedure; and
(2) maintain a current certification, issued by a
credentialing entity designated under Section 1701.165(d),
Occupations Code, certifying that the agency's policies regarding
use of force by peace officers:
(A) comply with all applicable laws; and
(B) prohibit the use of choke holds or other
physical maneuvers to restrict a person's ability to breathe for
purpose of incapacitation, unless the officer is justified in using
deadly force against the person.
(c) For purposes of Subsection (b)(1), on request, the Texas
Commission on Law Enforcement shall provide information to the
governor's office regarding reporting of incidents of misconduct by
a law enforcement agency.
SECTION 4. Subchapter D, Chapter 1701, Occupations Code, is
amended by adding Sections 1701.165, 1701.166, and 1701.167 to read
as follows:
Sec. 1701.165. ADVISORY COMMITTEE ON LAW ENFORCEMENT AGENCY
CREDENTIALING ENTITIES. (a) The commission shall establish an
advisory committee to advise the commission regarding law
enforcement agency credentialing entities.
(b) The advisory committee must include representatives of:
(1) municipal and county law enforcement agencies,
including agencies of varying size and from different areas of this
state;
(2) the Department of Public Safety;
(3) the Texas Department of Criminal Justice; and
(4) entities that operate correctional facilities
under contract with a county or the Texas Department of Criminal
Justice.
(c) The advisory committee shall review entities that
provide credentialing to law enforcement agencies and shall
identify credentialing entities that, at a minimum, establish
standards and processes for reviewing adherence to the standards in
the following aspects of a law enforcement agency's operations:
(1) policies and training regarding use of force and
de-escalation techniques;
(2) performance management tools;
(3) procedures to ensure prompt identification of
peace officers requiring intervention; and
(4) best practices regarding community engagement.
(d) The commission shall designate, for purposes of
certifying that the policies of a law enforcement agency comply
with the requirements of Section 772.0055(b)(2), Government Code,
one or more of the credentialing entities identified by the
advisory committee under Subsection (c).
Sec. 1701.166. COORDINATED RESPONSE PROGRAM MODEL POLICY.
(a) In this section, "coordinated response program" means a
program operated by a law enforcement agency in which a peace
officer and a mental health professional jointly respond to a
report of an alleged offense or other incident involving a person
with a mental impairment, suffering from homelessness, or
experiencing similar circumstances.
(b) The commission, in consultation with the Health and
Human Services Commission and state and local law enforcement
agencies, shall develop and make available to all law enforcement
agencies in this state a model policy and associated training
materials regarding the operation of a coordinated response
program.
(c) In developing the model policy, the commission shall:
(1) survey coordinated response programs implemented
in this state or another state; and
(2) consider the creation of specialized training
programs for officers and mental health professionals
participating in a coordinated response program.
Sec. 1701.167. CERTAIN MODEL POLICIES. (a) In this
section, "no-knock entry" has the meaning assigned by Article
2.1308, Code of Criminal Procedure.
(b) The commission, in consultation with the Bill Blackwood
Law Enforcement Management Institute of Texas and any other
interested parties selected by the commission, shall develop and
make available to all law enforcement agencies in this state model
policies and associated training materials regarding:
(1) the issuance of citations for misdemeanor
offenses, including traffic offenses, that are punishable by fine
only;
(2) the use of a no-knock entry by a peace officer;
(3) the intervention by a peace officer to stop or
prevent another peace officer from using excessive force against a
person suspected of committing an offense;
(4) the prohibition on the use of a choke hold, carotid
artery hold, or similar neck restraint by a peace officer, unless
the officer reasonably believes the restraint is necessary to
prevent serious bodily injury to or the death of the peace officer
or another person; and
(5) the duty of a peace officer acting in an official
capacity to render aid to a person who has suffered serious bodily
injury from the use of force, unless the officer reasonably
believes the provision of aid is likely to cause serious bodily
injury to or the death of the peace officer or another person.
SECTION 5. Section 1701.451(c), Occupations Code, is
amended to read as follows:
(c) If the commission receives from a law enforcement agency
a request that complies with Subsections (a)(1) and (b), the
commission [employee having the responsibility to maintain any
employment termination report regarding the person who is the
subject of the request] shall release the report to the agency.
SECTION 6. Sections 1701.452(a), (b), (d), and (g),
Occupations Code, are amended to read as follows:
(a) The head of a law enforcement agency or the head's
designee shall submit a report to the commission on a form
prescribed by the commission regarding a person licensed under this
chapter [who resigns or retires from employment with the law
enforcement agency, whose appointment with the law enforcement
agency is terminated, or] who separates from the law enforcement
agency for any [other] reason. The report must be submitted by the
head or the designee not later than the seventh business day after
the date the license holder:
(1) [resigns, retires, is terminated, or] separates
from the agency; and
(2) exhausts all administrative appeals available to
the license holder, if applicable.
(b) The head of a law enforcement agency or the head's
designee shall indicate [include] in the report required under
Subsection (a) [a statement on] whether the license holder was
eligible for an honorable discharge or suspected of misconduct,
regardless of whether the license holder was terminated for
misconduct [honorably discharged, generally discharged, or
dishonorably discharged and, as required by the commission, an
explanation of the circumstances under which the person resigned,
retired, or was terminated]. For purposes of this subsection:
(1) "Honorable discharge" ["Honorably discharged"]
means the discharge of a license holder who, while in good standing
and not under suspicion of committing misconduct, is [because of
pending or final disciplinary actions or a documented performance
problem, retired, resigned, or] separated from employment with or
died while employed by a law enforcement agency.
(2) "Misconduct" includes conduct by a license holder
that is criminal conduct, regardless of whether the license holder
was arrested for, charged with, or convicted of an offense
["Generally discharged" means a license holder who:
[(A) was terminated by, retired or resigned from,
or died while in the employ of a law enforcement agency and the
separation was related to a disciplinary investigation of conduct
that is not included in the definition of dishonorably discharged;
or
[(B) was terminated by or retired or resigned
from a law enforcement agency and the separation was for a
documented performance problem and was not because of a reduction
in workforce or an at-will employment decision].
[(3) "Dishonorably discharged" means a license holder
who:
[(A) was terminated by a law enforcement agency
or retired or resigned in lieu of termination by the agency in
relation to allegations of criminal misconduct; or
[(B) was terminated by a law enforcement agency
or retired or resigned in lieu of termination by the agency for
insubordination or untruthfulness.]
(d) The head of the law enforcement agency from which a
license holder [resigns, retires, is terminated, or] separates for
reasons other than death, or the head's designee, shall provide to
the license holder a copy of the report. The report must be provided
to the license holder not later than the seventh business day after
the date the license holder:
(1) [resigns, retires, is terminated, or] separates
from the agency; and
(2) exhausts all administrative appeals available to
the license holder, if applicable.
(g) The head of a law enforcement agency or the head's
designee must submit a report under this section each time a person
licensed under this chapter [resigns, retires, is terminated, or]
separates for any [other] reason from the agency. The report is an
official government document.
SECTION 7. Sections 1701.4525(a), (d), and (e), Occupations
Code, are amended to read as follows:
(a) A person who is the subject of an employment termination
report maintained by the commission under this subchapter may
contest an indication under Section 1701.452(b) that the person was
suspected of misconduct [information] contained in the report by
submitting to the law enforcement agency and to the commission a
written petition on a form prescribed by the commission for a
correction of the report not later than the 30th day after the date
the person receives a copy of the report. On receipt of the
petition, the commission shall refer the petition to the State
Office of Administrative Hearings.
(d) A proceeding to contest an indication of misconduct
[information] in an employment termination report is a contested
case under Chapter 2001, Government Code.
(e) In a proceeding to contest an indication of misconduct
[information] in an employment termination report [for a report
based on alleged misconduct], an administrative law judge shall
determine if the alleged misconduct occurred by a preponderance of
the evidence regardless of whether the person who is the subject of
the report was terminated for the misconduct [or the person
resigned, retired, or separated in lieu of termination]. If the
alleged misconduct is not supported by a preponderance of the
evidence, the administrative law judge shall order the commission
to change the report. The commission shall send the changed report
to the law enforcement agency that prepared the original employment
termination report. The law enforcement agency shall replace the
original employment termination report with the changed report.
SECTION 8. Section 1701.456(b), Occupations Code, is
amended to read as follows:
(b) A law enforcement agency, agency head, or other law
enforcement official is not liable for civil damages for:
(1) a report made by that agency or person if the
report is made in good faith; or
(2) making a person's employment records available to
a hiring law enforcement agency under Section 1701.451(a-1).
SECTION 9. Subchapter J, Chapter 1701, Occupations Code, is
amended by adding Section 1701.459 to read as follows:
Sec. 1701.459. CERTAIN AGREEMENTS RELATED TO EMPLOYMENT
RECORDS PROHIBITED. A person licensed under this chapter may not
enter into an agreement with a law enforcement agency employing the
person under which the agency is prohibited from making the
person's employment records available to another law enforcement
agency under Section 1701.451(a-1).
SECTION 10. Section 1701.501(a), Occupations Code, is
amended to read as follows:
(a) Except as provided by Subsection (d), the commission
shall revoke or suspend a license, place on probation a person whose
license has been suspended, or reprimand a license holder if the
license holder has:
(1) engaged in conduct constituting a felony or a
Class A or B misdemeanor; or
(2) violated [for a violation of]:
(A) [(1)] this chapter;
(B) [(2)] the reporting requirements provided by
Articles 2.132 and 2.134, Code of Criminal Procedure; or
(C) [(3)] a commission rule.
SECTION 11. The following provisions of the Occupations
Code are repealed:
(1) Section 1701.452(c);
(2) Section 1701.4521; and
(3) Section 1701.454.
SECTION 12. Section 772.0055, Government Code, as added by
this Act, applies only to a grant awarded by the office of the
governor on or after September 1, 2022. A grant awarded before
September 1, 2022, is governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose.
SECTION 13. Not later than the 180th day after the date the
Texas Commission on Law Enforcement makes available the model
policies required by Section 1701.167, Occupations Code, as added
by this Act, each law enforcement agency shall adopt the policies
required by Article 2.1308, Code of Criminal Procedure, as added by
this Act.
SECTION 14. (a) Not later than June 1, 2022, the Texas
Commission on Law Enforcement shall:
(1) adopt the rules required by Article 2.1397, Code
of Criminal Procedure, as added by this Act;
(2) publish on the commission's Internet website the
first report required by Article 2.1397(g), Code of Criminal
Procedure, as added by this Act;
(3) establish the advisory committee required by
Section 1701.165, Occupations Code, as added by this Act; and
(4) develop and make available the model policies and
associated training materials required by Sections 1701.166 and
1701.167, Occupations Code, as added by this Act.
(b) Not later than June 1, 2022, the Texas Commission on Law
Enforcement shall designate one or more credentialing entities as
required by Section 1701.165, Occupations Code, as added by this
Act.
SECTION 15. Not later than December 1, 2021, the Texas
Commission on Law Enforcement shall update the form for an
employment termination report as necessary to comply with Section
1701.452, Occupations Code, as amended by this Act.
SECTION 16. The changes in law made by this Act to
Subchapter J, Chapter 1701, Occupations Code, apply only to a
report required to be submitted under Section 1701.452, Occupations
Code, as amended by this Act, regarding a separation of a license
holder that occurs on or after December 1, 2021. A separation that
occurs before December 1, 2021, is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 17. Section 1701.501(a), Occupations Code, as
amended by this Act, applies only to conduct that occurs on or after
the effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
SECTION 18. This Act takes effect September 1, 2021.