TX
Texas House Bill HB1396

Texas 2021 - 87th Regular

Texas House Bill HB1396 Compare Versions

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1-87R21336 JCG-D
2- By: White, et al. H.B. No. 1396
3- Substitute the following for H.B. No. 1396:
4- By: White C.S.H.B. No. 1396
1+87R3270 MAW/JCG-D
2+ By: White H.B. No. 1396
53
64
75 A BILL TO BE ENTITLED
86 AN ACT
97 relating to law enforcement agencies and policies and procedures
108 affecting peace officers.
119 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1210 SECTION 1. Chapter 2, Code of Criminal Procedure, is
13- amended by adding Article 2.1308 to read as follows:
14- Art. 2.1308. CERTAIN POLICIES REQUIRED. (a) In this
15- article:
16- (1) "Law enforcement agency" means an agency of this
17- state or an agency of a political subdivision of this state
18- authorized by law to employ peace officers.
19- (2) "No-knock entry" means a peace officer's entry,
20- for the purpose of executing a warrant, into a building or other
21- place without giving notice of the officer's authority or purpose
22- before entering.
23- (b) Each law enforcement agency, in consultation with
24- judges, prosecutors, commissioners courts, governing bodies of
25- municipalities, and residents located within the agency's
26- jurisdiction, shall adopt written policies regarding:
27- (1) the issuance of citations for misdemeanor
28- offenses, including traffic offenses, that are punishable by fine
29- only;
30- (2) the use of a no-knock entry by a peace officer of
31- the law enforcement agency; and
32- (3) the intervention by a peace officer of the agency
33- to stop or prevent another peace officer from using excessive force
34- against a person suspected of committing an offense.
35- (c) A policy adopted under this article must:
36- (1) be approved by a district judge or the judge of a
37- county court at law in the jurisdiction served by the law
38- enforcement agency; and
39- (2) ensure judicial efficiency, law enforcement
40- efficiency and effectiveness, and community safety.
41- (d) In addition to the requirements of Subsection (c), the
42- policy required by Subsection (b)(1) must:
43- (1) provide a procedure for a peace officer, on a
44- person's presentation of appropriate identification, to verify the
45- person's identity and issue a citation to the person; and
46- (2) comply with Article 14.06 of this code and Section
47- 543.004, Transportation Code.
48- SECTION 2. Chapter 2, Code of Criminal Procedure, is
4911 amended by adding Article 2.1397 to read as follows:
5012 Art. 2.1397. DUTIES OF LAW ENFORCEMENT AGENCY REGARDING
51- PEACE OFFICER MISCONDUCT. (a) In this article:
13+ PEACE OFFICER MISCONDUCT; DATABASE. (a) In this article:
5214 (1) "Commission" means the Texas Commission on Law
5315 Enforcement.
5416 (2) "Law enforcement agency" means an agency of this
5517 state or an agency of a political subdivision of this state
5618 authorized by law to employ peace officers.
57- (b) The commission by rule shall require each law
58- enforcement agency to report to the commission:
59- (1) each substantiated incident of misconduct by a
60- peace officer employed by the agency, including:
61- (A) a conviction for a criminal offense committed
62- in the course of performing the officer's duties;
63- (B) the use of excessive force against a person
64- suspected of committing an offense;
65- (C) conduct that constitutes a felony or a Class
66- A or B misdemeanor, regardless of whether the criminal offense is
67- prosecuted;
68- (D) sexual harassment involving physical contact
69- or misuse of official capacity;
70- (E) the misuse of official capacity or
71- misappropriation of property, including the misuse of a law
72- enforcement database or criminal records;
73- (F) an unprofessional relationship with a person
74- arrested, detained, or otherwise in the custody of the peace
75- officer or the law enforcement agency;
76- (G) any false statements made by the officer in
77- obtaining employment with the law enforcement agency;
78- (H) tampering with or fabricating physical
79- evidence of a criminal offense; or
80- (I) tampering with a governmental record,
81- including making false statements in the record or altering,
82- destroying, or concealing the record; and
83- (2) for each substantiated incident of misconduct
84- reported under Subdivision (1), whether the agency terminated or
85- took disciplinary action against the peace officer or permitted the
86- peace officer to retire or resign in lieu of termination for the
87- misconduct.
88- (c) The rules adopted under Subsection (b) must provide for
89- the manner in which the report is to be submitted to the commission,
90- including prescribing a form for use in reporting information under
91- this article.
92- (d) The commission shall make information reported to the
93- commission under this article accessible by all law enforcement
94- agencies in this state.
95- (e) The commission may make information regarding an
96- incident of misconduct that is reported to the commission under
97- this article available to a federal law enforcement agency that is
98- investigating the incident.
99- (f) Except as provided by Subsections (d) and (e), a report
100- submitted to the commission under this article is confidential and
101- not subject to disclosure under Chapter 552, Government Code.
102- (g) As soon as practicable after each regularly scheduled
103- commission meeting, the commission shall make available on its
104- Internet website a report regarding incidents of misconduct
105- reported since the commission's previous report under this
106- subsection. The report must include:
19+ (b) Each law enforcement agency in this state shall report
20+ to the commission each incident of misconduct by a peace officer
21+ employed by the agency, including:
22+ (1) a conviction for a criminal offense committed in
23+ the course of performing the officer's duties; or
24+ (2) the use of excessive force against a person
25+ suspected of committing an offense.
26+ (c) In reporting an incident of misconduct under Subsection
27+ (b), the law enforcement agency shall also report whether the
28+ agency terminated or took disciplinary action against the peace
29+ officer or permitted the peace officer to retire or resign in lieu
30+ of termination for the misconduct.
31+ (d) The commission shall establish a database for
32+ information reported to the commission under this article.
33+ (e) The commission shall make information in the database
34+ accessible by all law enforcement agencies in this state.
35+ (f) The commission may make information regarding an
36+ incident of misconduct that is maintained in the database available
37+ to a federal law enforcement agency that is investigating the
38+ incident.
39+ (g) Information maintained in the database is confidential
40+ and not subject to disclosure under Chapter 552, Government Code.
41+ (h) Not later than March 1 of each year, the commission
42+ shall make available on its Internet website a report regarding
43+ incidents of misconduct reported during the preceding calendar
44+ year. The report must include:
10745 (1) the total number of incidents reported to the
108- commission under this article and the number reported since the
109- previous report; and
46+ commission under this article during that period; and
11047 (2) information regarding:
11148 (A) the most common types of misconduct reported;
49+ and
11250 (B) disciplinary action taken by the law
11351 enforcement agency, including termination or permitting the peace
114- officer to retire or resign in lieu of termination; and
115- (C) any disciplinary action taken by the
116- commission.
117- SECTION 3. Subchapter A, Chapter 772, Government Code, is
52+ officer to retire or resign in lieu of termination.
53+ (i) A report under Subsection (h) may not include
54+ information identifying a specific peace officer.
55+ SECTION 2. Subchapter A, Chapter 772, Government Code, is
11856 amended by adding Section 772.0055 to read as follows:
11957 Sec. 772.0055. LIMITATION ON ELIGIBILITY FOR GRANT. (a) In
12058 this section, "law enforcement agency" means an agency of this
12159 state or an agency of a political subdivision of this state
12260 authorized by law to employ peace officers.
12361 (b) Notwithstanding any other law, to be eligible to receive
12462 a grant or other discretionary funding by the governor, a law
12563 enforcement agency must:
12664 (1) consistently report incidents of misconduct as
12765 required by Article 2.1397, Code of Criminal Procedure; and
12866 (2) maintain a current certification, issued by a
12967 credentialing entity designated under Section 1701.165(d),
13068 Occupations Code, certifying that the agency's policies regarding
13169 use of force by peace officers:
13270 (A) comply with all applicable laws; and
13371 (B) prohibit the use of choke holds or other
13472 physical maneuvers to restrict a person's ability to breathe for
135- purpose of incapacitation, unless the officer is justified in using
73+ purpose of incapacitation unless the officer is justified in using
13674 deadly force against the person.
13775 (c) For purposes of Subsection (b)(1), on request, the Texas
13876 Commission on Law Enforcement shall provide information to the
13977 governor's office regarding reporting of incidents of misconduct by
14078 a law enforcement agency.
141- SECTION 4. Subchapter D, Chapter 1701, Occupations Code, is
142- amended by adding Sections 1701.165, 1701.166, and 1701.167 to read
143- as follows:
79+ SECTION 3. Subchapter D, Chapter 1701, Occupations Code, is
80+ amended by adding Sections 1701.165 and 1701.166 to read as
81+ follows:
14482 Sec. 1701.165. ADVISORY COMMITTEE ON LAW ENFORCEMENT AGENCY
14583 CREDENTIALING ENTITIES. (a) The commission shall establish an
14684 advisory committee to advise the commission regarding law
14785 enforcement agency credentialing entities.
14886 (b) The advisory committee must include representatives of:
14987 (1) municipal and county law enforcement agencies,
15088 including agencies of varying size and from different areas of this
15189 state;
15290 (2) the Department of Public Safety;
15391 (3) the Texas Department of Criminal Justice; and
15492 (4) entities that operate correctional facilities
15593 under contract with a county or the Texas Department of Criminal
15694 Justice.
15795 (c) The advisory committee shall review entities that
158- provide credentialing to law enforcement agencies and shall
159- identify credentialing entities that, at a minimum, establish
160- standards and processes for reviewing adherence to the standards in
161- the following aspects of a law enforcement agency's operations:
96+ provide credentialing to law enforcement agencies and identify
97+ credentialing entities that, at a minimum, establish standards and
98+ processes for reviewing adherence to the standards in the following
99+ aspects of a law enforcement agency's operations:
162100 (1) policies and training regarding use of force and
163101 de-escalation techniques;
164102 (2) performance management tools;
165103 (3) procedures to ensure prompt identification of
166104 peace officers requiring intervention; and
167105 (4) best practices regarding community engagement.
168106 (d) The commission shall designate, for purposes of
169107 certifying that the policies of a law enforcement agency comply
170108 with the requirements of Section 772.0055(b)(2), Government Code,
171109 one or more of the credentialing entities identified by the
172110 advisory committee under Subsection (c).
173111 Sec. 1701.166. COORDINATED RESPONSE PROGRAM MODEL POLICY.
174112 (a) In this section, "coordinated response program" means a
175113 program operated by a law enforcement agency in which a peace
176114 officer and a mental health professional jointly respond to a
177115 report of an alleged offense or other incident involving a person
178116 with a mental impairment, suffering from homelessness, or
179117 experiencing similar circumstances.
180118 (b) The commission, in consultation with the Health and
181119 Human Services Commission and state and local law enforcement
182120 agencies, shall develop and make available to all law enforcement
183121 agencies in this state a model policy and associated training
184122 materials regarding the operation of a coordinated response
185123 program.
186124 (c) In developing the model policy, the commission shall:
187125 (1) survey coordinated response programs implemented
188126 in this state or another state; and
189127 (2) consider the creation of specialized training
190128 programs for officers and mental health professionals
191129 participating in a coordinated response program.
192- Sec. 1701.167. CERTAIN MODEL POLICIES. (a) In this
193- section, "no-knock entry" has the meaning assigned by Article
194- 2.1308, Code of Criminal Procedure.
195- (b) The commission, in consultation with the Bill Blackwood
196- Law Enforcement Management Institute of Texas and any other
197- interested parties selected by the commission, shall develop and
198- make available to all law enforcement agencies in this state model
199- policies and associated training materials regarding:
200- (1) the issuance of citations for misdemeanor
201- offenses, including traffic offenses, that are punishable by fine
202- only;
203- (2) the use of a no-knock entry by a peace officer;
204- (3) the intervention by a peace officer to stop or
205- prevent another peace officer from using excessive force against a
206- person suspected of committing an offense;
207- (4) the prohibition on the use of a choke hold, carotid
208- artery hold, or similar neck restraint by a peace officer, unless
209- the officer reasonably believes the restraint is necessary to
210- prevent serious bodily injury to or the death of the peace officer
211- or another person; and
212- (5) the duty of a peace officer acting in an official
213- capacity to render aid to a person who has suffered serious bodily
214- injury from the use of force, unless the officer reasonably
215- believes the provision of aid is likely to cause serious bodily
216- injury to or the death of the peace officer or another person.
217- SECTION 5. Section 1701.451(c), Occupations Code, is
218- amended to read as follows:
219- (c) If the commission receives from a law enforcement agency
220- a request that complies with Subsections (a)(1) and (b), the
221- commission [employee having the responsibility to maintain any
222- employment termination report regarding the person who is the
223- subject of the request] shall release the report to the agency.
224- SECTION 6. Sections 1701.452(a), (b), (d), and (g),
225- Occupations Code, are amended to read as follows:
226- (a) The head of a law enforcement agency or the head's
227- designee shall submit a report to the commission on a form
228- prescribed by the commission regarding a person licensed under this
229- chapter [who resigns or retires from employment with the law
230- enforcement agency, whose appointment with the law enforcement
231- agency is terminated, or] who separates from the law enforcement
232- agency for any [other] reason. The report must be submitted by the
233- head or the designee not later than the seventh business day after
234- the date the license holder:
235- (1) [resigns, retires, is terminated, or] separates
236- from the agency; and
237- (2) exhausts all administrative appeals available to
238- the license holder, if applicable.
239- (b) The head of a law enforcement agency or the head's
240- designee shall indicate [include] in the report required under
241- Subsection (a) [a statement on] whether the license holder was
242- eligible for an honorable discharge or suspected of misconduct,
243- regardless of whether the license holder was terminated for
244- misconduct [honorably discharged, generally discharged, or
245- dishonorably discharged and, as required by the commission, an
246- explanation of the circumstances under which the person resigned,
247- retired, or was terminated]. For purposes of this subsection:
248- (1) "Honorable discharge" ["Honorably discharged"]
249- means the discharge of a license holder who, while in good standing
250- and not under suspicion of committing misconduct, is [because of
251- pending or final disciplinary actions or a documented performance
252- problem, retired, resigned, or] separated from employment with or
253- died while employed by a law enforcement agency.
254- (2) "Misconduct" includes conduct by a license holder
255- that is criminal conduct, regardless of whether the license holder
256- was arrested for, charged with, or convicted of an offense
257- ["Generally discharged" means a license holder who:
258- [(A) was terminated by, retired or resigned from,
259- or died while in the employ of a law enforcement agency and the
260- separation was related to a disciplinary investigation of conduct
261- that is not included in the definition of dishonorably discharged;
262- or
263- [(B) was terminated by or retired or resigned
264- from a law enforcement agency and the separation was for a
265- documented performance problem and was not because of a reduction
266- in workforce or an at-will employment decision].
267- [(3) "Dishonorably discharged" means a license holder
268- who:
269- [(A) was terminated by a law enforcement agency
270- or retired or resigned in lieu of termination by the agency in
271- relation to allegations of criminal misconduct; or
272- [(B) was terminated by a law enforcement agency
273- or retired or resigned in lieu of termination by the agency for
274- insubordination or untruthfulness.]
275- (d) The head of the law enforcement agency from which a
276- license holder [resigns, retires, is terminated, or] separates for
277- reasons other than death, or the head's designee, shall provide to
278- the license holder a copy of the report. The report must be provided
279- to the license holder not later than the seventh business day after
280- the date the license holder:
281- (1) [resigns, retires, is terminated, or] separates
282- from the agency; and
283- (2) exhausts all administrative appeals available to
284- the license holder, if applicable.
285- (g) The head of a law enforcement agency or the head's
286- designee must submit a report under this section each time a person
287- licensed under this chapter [resigns, retires, is terminated, or]
288- separates for any [other] reason from the agency. The report is an
289- official government document.
290- SECTION 7. Sections 1701.4525(a), (d), and (e), Occupations
291- Code, are amended to read as follows:
292- (a) A person who is the subject of an employment termination
293- report maintained by the commission under this subchapter may
294- contest an indication under Section 1701.452(b) that the person was
295- suspected of misconduct [information] contained in the report by
296- submitting to the law enforcement agency and to the commission a
297- written petition on a form prescribed by the commission for a
298- correction of the report not later than the 30th day after the date
299- the person receives a copy of the report. On receipt of the
300- petition, the commission shall refer the petition to the State
301- Office of Administrative Hearings.
302- (d) A proceeding to contest an indication of misconduct
303- [information] in an employment termination report is a contested
304- case under Chapter 2001, Government Code.
305- (e) In a proceeding to contest an indication of misconduct
306- [information] in an employment termination report [for a report
307- based on alleged misconduct], an administrative law judge shall
308- determine if the alleged misconduct occurred by a preponderance of
309- the evidence regardless of whether the person who is the subject of
310- the report was terminated for the misconduct [or the person
311- resigned, retired, or separated in lieu of termination]. If the
312- alleged misconduct is not supported by a preponderance of the
313- evidence, the administrative law judge shall order the commission
314- to change the report. The commission shall send the changed report
315- to the law enforcement agency that prepared the original employment
316- termination report. The law enforcement agency shall replace the
317- original employment termination report with the changed report.
318- SECTION 8. Section 1701.456(b), Occupations Code, is
319- amended to read as follows:
320- (b) A law enforcement agency, agency head, or other law
321- enforcement official is not liable for civil damages for:
322- (1) a report made by that agency or person if the
323- report is made in good faith; or
324- (2) making a person's employment records available to
325- a hiring law enforcement agency under Section 1701.451(a-1).
326- SECTION 9. Subchapter J, Chapter 1701, Occupations Code, is
327- amended by adding Section 1701.459 to read as follows:
328- Sec. 1701.459. CERTAIN AGREEMENTS RELATED TO EMPLOYMENT
329- RECORDS PROHIBITED. A person licensed under this chapter may not
330- enter into an agreement with a law enforcement agency employing the
331- person under which the agency is prohibited from making the
332- person's employment records available to another law enforcement
333- agency under Section 1701.451(a-1).
334- SECTION 10. Section 1701.501(a), Occupations Code, is
335- amended to read as follows:
336- (a) Except as provided by Subsection (d), the commission
337- shall revoke or suspend a license, place on probation a person whose
338- license has been suspended, or reprimand a license holder if the
339- license holder has:
340- (1) engaged in conduct constituting a felony or a
341- Class A or B misdemeanor; or
342- (2) violated [for a violation of]:
343- (A) [(1)] this chapter;
344- (B) [(2)] the reporting requirements provided by
345- Articles 2.132 and 2.134, Code of Criminal Procedure; or
346- (C) [(3)] a commission rule.
347- SECTION 11. The following provisions of the Occupations
348- Code are repealed:
349- (1) Section 1701.452(c);
350- (2) Section 1701.4521; and
351- (3) Section 1701.454.
352- SECTION 12. Section 772.0055, Government Code, as added by
130+ SECTION 4. (a) Not later than January 1, 2022, the Texas
131+ Commission on Law Enforcement shall:
132+ (1) establish the database required by Article 2.1397,
133+ Code of Criminal Procedure, as added by this Act;
134+ (2) establish the advisory committee required by
135+ Section 1701.165, Occupations Code, as added by this Act; and
136+ (3) develop and make available the model policy and
137+ associated training materials required by Section 1701.166,
138+ Occupations Code, as added by this Act.
139+ (b) Not later than June 1, 2022, the Texas Commission on Law
140+ Enforcement shall designate one or more credentialing entities as
141+ required by Section 1701.165, Occupations Code, as added by this
142+ Act.
143+ SECTION 5. Section 772.0055, Government Code, as added by
353144 this Act, applies only to a grant awarded by the office of the
354145 governor on or after September 1, 2022. A grant awarded before
355146 September 1, 2022, is governed by the law in effect immediately
356147 before the effective date of this Act, and the former law is
357148 continued in effect for that purpose.
358- SECTION 13. Not later than the 180th day after the date the
359- Texas Commission on Law Enforcement makes available the model
360- policies required by Section 1701.167, Occupations Code, as added
361- by this Act, each law enforcement agency shall adopt the policies
362- required by Article 2.1308, Code of Criminal Procedure, as added by
363- this Act.
364- SECTION 14. (a) Not later than June 1, 2022, the Texas
365- Commission on Law Enforcement shall:
366- (1) adopt the rules required by Article 2.1397, Code
367- of Criminal Procedure, as added by this Act;
368- (2) publish on the commission's Internet website the
369- first report required by Article 2.1397(g), Code of Criminal
370- Procedure, as added by this Act;
371- (3) establish the advisory committee required by
372- Section 1701.165, Occupations Code, as added by this Act; and
373- (4) develop and make available the model policies and
374- associated training materials required by Sections 1701.166 and
375- 1701.167, Occupations Code, as added by this Act.
376- (b) Not later than June 1, 2022, the Texas Commission on Law
377- Enforcement shall designate one or more credentialing entities as
378- required by Section 1701.165, Occupations Code, as added by this
379- Act.
380- SECTION 15. Not later than December 1, 2021, the Texas
381- Commission on Law Enforcement shall update the form for an
382- employment termination report as necessary to comply with Section
383- 1701.452, Occupations Code, as amended by this Act.
384- SECTION 16. The changes in law made by this Act to
385- Subchapter J, Chapter 1701, Occupations Code, apply only to a
386- report required to be submitted under Section 1701.452, Occupations
387- Code, as amended by this Act, regarding a separation of a license
388- holder that occurs on or after December 1, 2021. A separation that
389- occurs before December 1, 2021, is governed by the law in effect
390- immediately before the effective date of this Act, and the former
391- law is continued in effect for that purpose.
392- SECTION 17. Section 1701.501(a), Occupations Code, as
393- amended by this Act, applies only to conduct that occurs on or after
394- the effective date of this Act. Conduct that occurs before the
395- effective date of this Act is governed by the law in effect on the
396- date the conduct occurred, and the former law is continued in effect
397- for that purpose.
398- SECTION 18. This Act takes effect September 1, 2021.
149+ SECTION 6. This Act takes effect September 1, 2021.