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.
6-7 COMMITTEE AMENDMENT NO. 1
6-8 Amend S.B. 695 as follows:
6-9 On page 1, line 11, after the word "under" and before
6-10 "Chapter" insert "Chapter 411, Government Code, or".
6-11 Oakley