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.