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.