By Oakley H.B. No. 1861
75R2637 ESH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the personnel records of certain law enforcement
1-3 officers and fire protection personnel; providing a criminal
1-4 penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 614, Government Code, is amended by
1-7 adding Subchapter E to read as follows:
1-8 SUBCHAPTER E. PERSONNEL RECORDS OF CERTAIN LAW
1-9 ENFORCEMENT AND FIRE PROTECTION PERSONNEL
1-10 Sec. 614.071. DEFINITIONS. In this subchapter:
1-11 (1) "Custodian" means a person designated to maintain
1-12 employee records and files on law enforcement or fire protection
1-13 employees.
1-14 (2) "Employee record" means any letter, memorandum,
1-15 photograph, or document maintained by an employer that relates to a
1-16 law enforcement or fire protection employee.
1-17 (3) "Employer" means an agency or political
1-18 subdivision of the state or a division of an agency or political
1-19 subdivision of the state.
1-20 (4) "Law enforcement or fire protection employee"
1-21 means a peace officer licensed under Section 415.052 or fire
1-22 protection personnel within the meaning of Section 419.021 employed
1-23 by an employer.
1-24 Sec. 614.072. INAPPLICABILITY OF SUBCHAPTER. This
2-1 subchapter does not apply to a law enforcement or fire protection
2-2 employee who is:
2-3 (1) covered by Chapter 143, Local Government Code; or
2-4 (2) employed by a municipality with a population of
2-5 less than 10,000.
2-6 Sec. 614.073. PERMANENT PERSONNEL FILE. (a) A law
2-7 enforcement or fire protection employee's permanent personnel file
2-8 must contain any employee record relating to:
2-9 (1) a commendation, congratulation, or honor bestowed
2-10 on the employee by a member of the public or by the employer for an
2-11 action, duty, or activity that relates to the employee's official
2-12 duties;
2-13 (2) any misconduct by the employee if the employee
2-14 record is made by the employer and if the misconduct resulted in
2-15 disciplinary action by the employer;
2-16 (3) the periodic evaluation of the employee by a
2-17 supervisor;
2-18 (4) any photograph of the employee maintained by the
2-19 employer; and
2-20 (5) any information pertaining to an investigation of
2-21 misconduct against the employee that was pending at the time the
2-22 employee resigned from the employer.
2-23 (b) An employee record relating to alleged misconduct by a
2-24 law enforcement or fire protection employee may not be placed in
2-25 the employee's permanent personnel file if the employer or the
2-26 governing body of the employing entity determines that there is
2-27 insufficient evidence to sustain the charge of misconduct, unless
3-1 the record relates to an investigation of misconduct against a law
3-2 enforcement or fire protection employee that was pending at the
3-3 time the employee resigned from the employer.
3-4 (c) The custodian shall ensure that:
3-5 (1) an employee record required to be included in a
3-6 law enforcement or fire protection employee's permanent personnel
3-7 file is placed in the file; and
3-8 (2) a record required to be excluded from the file is
3-9 excluded.
3-10 Sec. 614.074. REMOVAL OF CERTAIN RECORDS FROM PERMANENT
3-11 FILE. An employee record relating to disciplinary action taken
3-12 against a law enforcement or fire protection employee or to alleged
3-13 misconduct by the employee that is placed in the employee's
3-14 permanent personnel file shall be removed from the file if the
3-15 employer, a court, or an administrative body or hearing examiner of
3-16 competent jurisdiction determines that:
3-17 (1) the disciplinary action was taken without just
3-18 cause; or
3-19 (2) the charge of misconduct was not supported by
3-20 sufficient evidence.
3-21 Sec. 614.075. NOTIFICATION TO EMPLOYEE OF CERTAIN NEGATIVE
3-22 RECORDS; EMPLOYEE RESPONSE. (a) Not later than the 30th day after
3-23 the date a negative employee record or other notation of negative
3-24 effect is placed in a law enforcement or fire protection employee's
3-25 permanent personnel file, the custodian shall notify the affected
3-26 employee that the record has been placed in the file.
3-27 (b) The employee may, not later than the 15th day after the
4-1 date the employee receives the notification, file with the
4-2 custodian a written response to the negative employee record. The
4-3 custodian shall place the response in the employee's file with the
4-4 negative record.
4-5 Sec. 614.076. EMPLOYEE'S RIGHT TO COPY OF RECORD IN
4-6 PERMANENT FILE. A law enforcement or fire protection employee is
4-7 entitled on request to a copy of any employee record placed in the
4-8 employee's permanent personnel file. The employer may charge the
4-9 employee a reasonable fee not to exceed the actual cost for copies
4-10 provided under this section.
4-11 Sec. 614.077. RELEASE OF INFORMATION IN PERMANENT FILE.
4-12 (a) A custodian or employer may not release an employee record or
4-13 information that is required to be contained in a law enforcement
4-14 or fire protection employee's permanent personnel file unless:
4-15 (1) the custodian or employer first obtains the
4-16 employee's written consent; or
4-17 (2) the release of the record or information is
4-18 required by law.
4-19 (b) An employer may use a photograph of a law enforcement or
4-20 fire protection employee without the employee's written consent for
4-21 purposes of identification of the employee by a member of the
4-22 public.
4-23 Sec. 614.078. DISPOSAL OF EMPLOYEE RECORD. A custodian may
4-24 dispose of the permanent personnel file or an employee record of a
4-25 former law enforcement or fire protection employee in accordance
4-26 with the employer's policy and applicable law.
4-27 Sec. 614.079. DETERMINATION CONCERNING CHARGE OF MISCONDUCT
5-1 NOT REQUIRED. Sections 614.073(b) and 614.074 do not require an
5-2 employer or the governing body of an employing entity to make a
5-3 determination concerning a charge of misconduct or a disciplinary
5-4 action taken against an employee.
5-5 Sec. 614.080. PRIVATE PERSONNEL FILE. (a) An employer may
5-6 maintain a private personnel file on a law enforcement or fire
5-7 protection employee for the employer's use.
5-8 (b) The employer may not release information contained in an
5-9 employee's private personnel file to a person requesting
5-10 information relating to the employee.
5-11 Sec. 614.081. REFERRAL OF PERSON REQUESTING INFORMATION
5-12 RELATING TO PERSONNEL FILE. An employer shall refer to the
5-13 custodian a person who requests information relating to a law
5-14 enforcement or fire protection employee's permanent or private
5-15 personnel file.
5-16 Sec. 614.082. PENALTY. (a) A person commits an offense if
5-17 the person violates Section 614.077 or Section 614.080(b).
5-18 (b) An offense under this section is a Class C misdemeanor.
5-19 SECTION 2. Section 143.089, Local Government Code, is
5-20 amended by adding Subsection (h) to read as follows:
5-21 (h) Each photograph of a fire fighter or police officer in
5-22 the possession of the employing department or municipality is
5-23 considered to be part of the personnel file of the fire fighter or
5-24 police officer. The employing department or municipality may not
5-25 release a photograph of a fire fighter or police officer except as
5-26 provided by Subsection (f). The employing department or
5-27 municipality may use a photograph of a fire fighter or police
6-1 officer without the written permission of the fire fighter or
6-2 police officer for purposes of identification of the fire fighter
6-3 or police officer by a member of the public.
6-4 SECTION 3. This Act takes effect September 1, 1997.
6-5 SECTION 4. The importance of this legislation and the
6-6 crowded condition of the calendars in both houses create an
6-7 emergency and an imperative public necessity that the
6-8 constitutional rule requiring bills to be read on three several
6-9 days in each house be suspended, and this rule is hereby suspended.