88R20669 MAW-F
By: King of Hemphill H.B. No. 4966
A BILL TO BE ENTITLED
AN ACT
relating to law enforcement agency personnel records and the
reporting of separations of license holders to the Texas Commission
on Law Enforcement.
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:
(a) The commission is entitled to access records maintained
under Subchapter J and Sections 1701.303, 1701.306, and 1701.310 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(a), Occupations Code, is
amended to read as follows:
(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 any
statement by the license holder submitted under Section 1701.4525
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:
Sec. 1701.4511. POLICY REGARDING PERSONNEL FILES. (a) The
commission shall adopt a model policy applicable to the maintenance
of personnel files by a law enforcement agency. The policy must:
(1) identify the types of documents that must be
placed in a license holder's personnel file;
(2) specify the purposes for which information in the
file may be disclosed; and
(3) comply with laws applicable to employment records.
(b) A law enforcement agency shall adopt the model policy
described by Subsection (a) or a substantively similar policy.
SECTION 4. Section 1701.452, Occupations Code, is amended
by amending Subsections (a), (b), (c), (d), and (g) and adding
Subsection (c-1) 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 circumstances under which the license holder separated and
indicate the nature of the separation as "retired," "resigned,"
"terminated," or "deceased." The indication of the circumstances
must include whether the separation:
(1) occurred during a pending investigation into the
license holder's conduct;
(2) resulted from a substantiated instance of:
(A) a violation of law, other than a traffic
offense;
(B) a violation of the agency's use of force
policy; or
(C) misconduct; or
(3) related to a violation of any other commission
rule [person resigned, retired, or was terminated]. [For purposes
of this subsection:
[(1) "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) "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.]
(c) The commission by rule may further specify the
circumstances and nature of a separation that must be included in
the report as [constitute honorably discharged, dishonorably
discharged, and generally discharged within the definitions]
provided by Subsection (b).
(c-1) The commission must indicate on any report received
under Subsection (a) whether the license holder submitted a
statement under Section 1701.4525.
(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, Occupations Code, is amended
to read as follows:
Sec. 1701.4525. LICENSE HOLDER STATEMENT REGARDING
[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. The commission shall adopt rules prescribing the
manner in which a license holder may file an amended statement based
on new information.
(b) A statement submitted by a license holder under
Subsection (a) is confidential and not subject to disclosure under
Chapter 552, Government Code, unless the license holder 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].
(c) [(d) A proceeding to contest information in an
employment termination report is a contested case under Chapter
2001, Government Code.
[(e) In a proceeding to contest 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 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.
[(f)] The commission shall adopt rules for the
administration of this section.
[(g) The commission is not considered a party in a
proceeding conducted by the State Office of Administrative Hearings
under this section.]
SECTION 6. Section 1701.454(a), Occupations Code, is
amended to read as follows:
(a) Except as otherwise provided by this subchapter, all
[All] information submitted to the commission under this
subchapter, other than the nature of a license holder's separation
as described by Section 1701.452(b), 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. Section 1701.4521, Occupations Code, is
repealed.
SECTION 8. Not later than December 1, 2023, the Texas
Commission on Law Enforcement shall:
(1) adopt rules necessary to implement the changes in
law made by this Act; and
(2) adopt the model policy required by Section
1701.4511, Occupations Code, as added by this Act.
SECTION 9. Not later than January 1, 2024, each law
enforcement agency in this state shall adopt the policy required by
Section 1701.4511, Occupations Code, as added by this Act.
SECTION 10. The changes in law made by this Act apply only
to the separation or hiring of a license holder that occurs on or
after January 1, 2024. A separation or hiring that occurs before
January 1, 2024, 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 11. This Act takes effect September 1, 2023.