By:  Zaffirini                                         S.B. No. 695
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the personnel records of certain law enforcement
    1-2  officers and fire protection personnel; providing a criminal
    1-3  penalty.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Chapter 614, Government Code, is amended by
    1-6  adding Subchapter E to read as follows:
    1-7    SUBCHAPTER E.  PERSONNEL RECORDS OF CERTAIN LAW ENFORCEMENT AND
    1-8                        FIRE-FIGHTING PERSONNEL
    1-9        Sec. 614.071.  APPLICATION.  This subchapter applies only to
   1-10  a law enforcement or fire protection employee as defined by Section
   1-11  614.072 who is not covered under Chapter 143, Local Government
   1-12  Code, and who is not employed by a municipality with a population
   1-13  of less than 10,000.
   1-14        Sec. 614.072.  DEFINITIONS.  In this subchapter:
   1-15              (1)  "Custodian" means a person designated to maintain
   1-16  employee records and files on law enforcement or fire protection
   1-17  employees.
   1-18              (2)  "Employee record" means any letter, memorandum,
   1-19  photograph, or document maintained by an employer that relates to a
   1-20  law enforcement or fire protection employee.
   1-21              (3)  "Employer" means an agency or political
   1-22  subdivision of the state, or a division of an agency or political
   1-23  subdivision of the state, that employs a law enforcement or fire
   1-24  protection employee covered under this subchapter.
    2-1              (4)  "Law enforcement or fire protection employee"
    2-2  means a peace officer licensed under Section 415.052 or fire
    2-3  protection personnel within the meaning of Section 419.021 employed
    2-4  by an agency or political subdivision of the state.
    2-5        Sec. 614.073.  CUSTODIAN OF EMPLOYEE RECORDS.  (a)  The
    2-6  governor shall designate a state officer or employee to be a
    2-7  custodian who shall maintain a permanent personnel file on each law
    2-8  enforcement or fire protection employee who is employed by an
    2-9  agency of the state.
   2-10        (b)  The governing body of each political subdivision of the
   2-11  state shall designate an officer or employee of the political
   2-12  subdivision to be a custodian who shall maintain a permanent
   2-13  personnel file on each law enforcement or fire protection employee
   2-14  who is employed by the political subdivision.
   2-15        Sec. 614.074.  PERMANENT PERSONNEL FILES.  (a)  A law
   2-16  enforcement or fire protection employee's permanent personnel file
   2-17  must contain any employee record relating to:
   2-18              (1)  a commendation, congratulation, or honor bestowed
   2-19  on the employee by a member of the public or by the employer for an
   2-20  action, duty, or activity that relates to the employee's official
   2-21  duties;
   2-22              (2)  any misconduct by the employee if the employee
   2-23  record is made by the employer and if the misconduct resulted in
   2-24  disciplinary action by the employer;
   2-25              (3)  the periodic evaluation of the employee by a
   2-26  supervisor;
   2-27              (4)  any photograph of the employee maintained by the
    3-1  employer; and
    3-2              (5)  any information pertaining to an investigation of
    3-3  misconduct against a law enforcement or fire protection employee
    3-4  that was pending at the time the employee resigned from the
    3-5  employer.
    3-6        (b)  An employee record relating to alleged misconduct by a
    3-7  law enforcement or fire protection employee may not be placed in
    3-8  the employee's permanent personnel file if the employer or the
    3-9  governing body of the employing entity determines that there is
   3-10  insufficient evidence to sustain the charge of misconduct, except
   3-11  for any information pertaining to an investigation of misconduct
   3-12  against a law enforcement or fire protection employee that was
   3-13  pending at the time the employee resigned from the employer.
   3-14        (c)  An employee record relating to disciplinary action taken
   3-15  against a law enforcement or fire protection employee or to alleged
   3-16  misconduct by the employee that is placed in the employee's
   3-17  permanent personnel file shall be removed from the file if the
   3-18  employer, a court, or an administrative body or hearing examiner of
   3-19  competent jurisdiction determines that:
   3-20              (1)  the disciplinary action was taken without just
   3-21  cause; or
   3-22              (2)  the charge of misconduct was not supported by
   3-23  sufficient evidence.
   3-24        (d)  If a negative employee record or other notation of
   3-25  negative impact is included in a law enforcement or fire protection
   3-26  employee's permanent personnel file, the custodian, not later than
   3-27  the 30th day after the date the record is included, shall notify
    4-1  the affected employee that the record has been included in the
    4-2  file.  The employee may, not later than the 15th day after the date
    4-3  of receipt of the notification, file a written response to the
    4-4  negative employee record.  The custodian shall place the response
    4-5  in the employee's file with the negative record.
    4-6        (e)  A law enforcement or fire protection employee is
    4-7  entitled, on request, to a copy of any employee record placed in
    4-8  the employee's permanent personnel file.  The employer may charge
    4-9  the employee a reasonable fee not to exceed actual cost for copies
   4-10  provided under this subsection.
   4-11        (f)  The custodian or employer may not release an employee
   4-12  record or information that is required to be contained in a law
   4-13  enforcement or fire protection employee's permanent personnel file
   4-14  without first obtaining the employee's written permission, unless
   4-15  the release of the record or information is required by law.  The
   4-16  employer may use a photograph of an employee without the employee's
   4-17  written permission for purposes of identification of the employee
   4-18  by a member of the public.
   4-19        (g)  The custodian shall ensure that employee records
   4-20  required to be included in a law enforcement or fire protection
   4-21  employee's permanent personnel file are placed in the file and that
   4-22  all records required to be excluded from the file are excluded.
   4-23        (h)  The custodian may dispose of the permanent personnel
   4-24  file or an employee record of a former law enforcement or fire
   4-25  protection employee in accordance with the employer's policy and
   4-26  applicable law.
   4-27        (i)  Subsections (b) and (c) do not require an employer or
    5-1  the governing body of an employing entity to make a determination
    5-2  concerning a charge of misconduct or the disciplinary action taken
    5-3  against an employee.
    5-4        Sec. 614.075.  EMPLOYER'S PRIVATE FILES.  (a)  An employer
    5-5  may maintain a private personnel file on a law enforcement or fire
    5-6  protection employee for the employer's use.
    5-7        (b)  The employer may not release information contained in
    5-8  the private file to a person or an entity requesting information
    5-9  relating to the employee.
   5-10        (c)  An employer shall refer to the custodian a person or an
   5-11  entity that requests information relating to the law enforcement or
   5-12  fire protection employee's personnel file.
   5-13        Sec. 614.076.  PENALTY.  (a)  A person commits an offense if
   5-14  the person violates Section 614.074(f) or Section 614.075(b).
   5-15        (b)  An offense under this section is a Class C misdemeanor.
   5-16        SECTION 2.  Section 143.089, Local Government Code, is
   5-17  amended by adding Subsection (h) to read as follows:
   5-18        (h)  Each photograph of a firefighter or police officer in
   5-19  the possession of the employing department or municipality is
   5-20  considered to be part of the personnel file of the firefighter or
   5-21  police officer.  The employing department or municipality may not
   5-22  release a photograph of a firefighter or police officer except as
   5-23  provided by Subsection (f).  The employing department or
   5-24  municipality may use a photograph of a firefighter or police
   5-25  officer without the written permission of the firefighter or police
   5-26  officer for purposes of identification of the firefighter or police
   5-27  officer by a member of the public.
    6-1        SECTION 3.  This Act takes effect September 1, 1995.
    6-2        SECTION 4.  The importance of this legislation and the
    6-3  crowded condition of the calendars in both houses create an
    6-4  emergency and an imperative public necessity that the
    6-5  constitutional rule requiring bills to be read on three several
    6-6  days in each house be suspended, and this rule is hereby suspended.