By: King of Hemphill H.B. No. 4966
A BILL TO BE ENTITLED
AN ACT
relating to law enforcement agency personnel records and standards
of hiring and separating peace officers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1701.162(a), Occupations Code, is
amended to read as follows:
Sec. 1701.162. RECORDS AND AUDIT REQUIREMENTS. (a) The
commission is entitled to access records maintained under Sections
1701.303, 1701.306, [and] 1701.310, and Subchapter J by an agency
hiring a person to be an officer or county jailer, including records
that relate to age, education, physical standards, citizenship,
experience, and other matters relating to competence and
reliability, as evidence of qualification for licensing of an
officer or county jailer.
SECTION 2. Section 1701.451, Occupations Code, is amended
by amending Subsection (a) to read as follows:
Section 1701.451. PREEMPLOYMENT PROCEDURE. (a) Before a law
enforcement agency may hire a person licensed under this chapter,
the agency must, on a form and in the manner prescribed by the
commission:
(1) obtain the person's written consent for the agency
to review the information required to be reviewed under this
section;
(2) request from the commission and any other
applicable person information required to be reviewed under this
section; and
(3) submit to the commission confirmation that the
agency, to the best of the agency's ability before hiring the
person:
(A) contacted each entity or individual
necessary to obtain the information required to be reviewed under
this section; and
(B) except as provided by Subsection (b),
obtained and reviewed as related to the person, as applicable:
(i) personnel files and other employee
records from each previous law enforcement agency employer,
including the employment application submitted to the previous
employer;
(ii) employment termination reports and
licensee statements on reports maintained by the commission under
this subchapter;
(iii) service records maintained by the
commission;
(iv) proof that the person meets the
minimum qualifications for enrollment in a training program under
Section 1701.251(a);
(v) a military veteran's United States
Department of Defense Form DD-214 or other military discharge
record;
(vi) criminal history record information;
(vii) information on pending warrants as
available through the Texas Crime Information Center and National
Crime Information Center;
(viii) evidence of financial
responsibility as required by Section 601.051, Transportation
Code;
(ix) a driving record from the Department
of Public Safety;
(x) proof of United States citizenship;
[and]
(xi) information on the person's background
from at least three personal references and at least two
professional references.
SECTION 3. Subchapter J, Chapter 1701, Occupations Code, is
amended by adding Section 1701.4511 to read as follows:
Section 1701.4511. PERSONNEL FILE. (a) A law enforcement
agency shall maintain a personnel file on each licensee. The
personnel file must contain any letter, memorandum, or document
relating to:
(1) a commendation, congratulation, or honor bestowed
on the licensee by a member of the public or by the employing agency
for an action, duty, or activity that relates to the person's
official duties;
(2) any misconduct by the licensee if the letter,
memorandum, or document is from the employing agency and if the
misconduct resulted in disciplinary action by the employing agency;
and
(3) the periodic evaluation of the licensee by a
supervisor.
(b) A letter, memorandum, or document relating to alleged
misconduct by the licensee may not be placed in the person's
personnel file if the employing agency determines that there is
insufficient evidence to sustain the charge of misconduct.
(c) A letter, memorandum, or document relating to
disciplinary action taken against the licensee or to alleged
misconduct by the licensee that is placed in the person's personnel
file as provided by Subsection (a)(2) must include a description of
the evidence supporting the disciplinary action or charge alleged
misconduct and a reference to the law, rule, or agency policy
alleged to have been violated. The chief administrator or their
designee:
(1) shall remove the letter, memorandum, or document
relating to disciplinary action or alleged misconduct if other law
requires removal; or
(2) shall, within 30 days after the date of the
inclusion of the letter, memorandum, or document relating to
disciplinary action or alleged misconduct, notify the affected
licensee. The licensee may, on or before the 15th day after the
date of receipt of the notification, file a written response to the
negative letter, memorandum, document, or other notation.
(d) If a negative letter, memorandum, document, or other
notation of negative impact is included in a licensee's personnel
file, the chief administrator or their designee shall, within 30
days after the date of the inclusion, notify the affected licensee.
The licensee may, on or before the 15th day after the date of
receipt of the notification, file a written response to the
negative letter, memorandum, document, or other notation.
(e) The licensee is entitled, on request, to a copy of any
letter, memorandum, or document placed in the person's personnel
file. The law enforcement agency may charge the licensee a
reasonable fee not to exceed actual cost for any copies provided
under this subsection.
(f) The chief administrator or their designee may not
release any information contained in a licensee's personnel file
without first obtaining the person's written permission, unless the
release of the information is required by law.
(g) A law enforcement agency may maintain a confidential
personnel file on a licensee employed by the agency for the agency's
use. Except as provided by Subsection (h), the agency may not
release any information contained in the agency file to any agency
or person requesting information relating to a licensee. The
agency shall refer to the chief administrator or their designee a
person or agency that requests information that is maintained in
the licensee's personnel file.
(h) With the written consent of a licensee, a law
enforcement agency hiring a licensee is entitled to view the
contents of the licensee's personnel file maintained under
Subsection (g) as provided by Section 1701.451.
(i) The commission may adopt rules for the administration of
this section.
SECTION 4. Sections 1701.452(a), (b), (c), (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
honorably discharged, generally discharged, or dishonorably
discharged and, as required by the commission, an explanation of]
the nature and circumstances under which the license holder
separated from the law enforcement agency [person resigned,
retired, or was terminated]. For purposes of this subsection:
(1) The nature of a license holder's separation
indicated in the report may be described as "retired," "resigned,"
"terminated," or "deceased." ["Honorably discharged" means a
license holder who, while in good standing and not 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) The circumstances indicated in the report must
include whether the license holder's separation ["Generally
discharged" means a license holder who]:
(A) occurred during a pending investigation into
the license holder's conduct [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 the result of a substantiated instance of
a violation of the law, other than traffic offenses;
(C) was the result of a substantiated instance of
a violation of a use of force policy of the law enforcement agency;
(D) was the result of a substantiated instance
misconduct; or
(E) was related to a violation of any other
commission rule, regulation, or policy [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].
(c) The commission by rule may further specify the nature
and circumstances that must be included in the report [that
constitute honorably discharged, dishonorably discharged, and
generally discharged within the definitions] provided by
Subsection (b). If the license holder submits a statement on the
report under Section 1701.4525, the commission must indicate on the
report that a statement has been filed.
(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 5. Section 1701.4525(a), Occupations Code, is
amended to read as follows:
Sec. 1701.4525. LICENSEE STATEMENT ON [PETITION FOR
CORRECTION OF] REPORT[; HEARING]. (a) A person who is the subject
of an employment termination report maintained by the commission
under this subchapter may contest information contained in the
report by submitting to the law enforcement agency and to the
commission a written statement [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. A
person who submits a written statement may file an amendment to the
statement after the 30th day after the date the person receives a
copy of the report in a manner prescribed by the commission. The
statement is confidential and is not subject to disclosure under
Chapter 552 unless the person who is the subject of an employment
termination report expressly elects to make the information
available to the public. [On receipt of the petition, the
commission shall refer the petition to the State Office of
Administrative Hearings.]
SECTION 6. Section 1701.454(a), Occupations Code, is
amended to read as follows:
Sec. 1701.454. CONFIDENTIALITY. (a) Except for the nature
of a person's separation under Section 1701.452(b)(1), all [All]
information submitted to the commission under this subchapter is
confidential and is not subject to disclosure under Chapter 552,
Government Code, unless the person resigned or was terminated due
to substantiated incidents of excessive force or violations of the
law other than traffic offenses.
SECTION 7. The following provisions of the Occupations Code
are repealed:
(1) Section 1701.4521; and
(2) Section 1701.4525(d), (e), and (g).
SECTION 8. (a) Not later than December 1, 2023, the Texas
Commission on Law Enforcement shall adopt the rules necessary to
implement Section 1701.4511, Occupations Code, as added by this Act
and Sections 1701.162, 1701.451, 1701.452, and 1701.4525,
Occupations Code, as amended by this Act.
(b) The changes in law made by this Act apply only to the
separation or hiring of a person by a law enforcement agency that
occurs on or after January 1, 2024. The separation or hiring of a
person by a law enforcement agency that occurs before that date 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 9. This Act takes effect September 1, 2023.