By Lucio                                               S.B. No. 629

         Substitute the following for S.B. No. 629:

         By Clark                                           C.S.S.B. No. 629

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the records of an overturned disciplinary action or a

 1-3     charge of misconduct against certain fire fighters and peace

 1-4     officers.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Subchapter D, Chapter 143, Local Government Code,

 1-7     is amended by adding Section 143.058 to read as follows:

 1-8           Sec. 143.058.  RECORDS RELATED TO DISCIPLINARY ACTIONS OR

 1-9     CHARGES OF MISCONDUCT.  (a)  This section does not apply to a

1-10     municipality with a population of 1.5 million or more.

1-11           (b)  "Record" as used in this Section and Section 143.084

1-12     means any document, written information, electronically recorded

1-13     information, or computerized file or information.

1-14           (c)  The department head shall promptly order that the

1-15     records of a disciplinary action taken against a fire fighter or

1-16     police officer be expunged from each file maintained on the fire

1-17     fighter or police officer by the department if the disciplinary

1-18     action was entirely overturned on appeal by the commission, an

1-19     independent third-party hearing examiner, or a court of competent

1-20     jurisdiction.  Records that must be expunged under this subsection

1-21     include all records that indicate disciplinary action was

1-22     recommended or taken against the fire fighter or police officer,

1-23     such as the recommendations of a disciplinary committee or a letter

1-24     of suspension.  This subsection does not apply if the fire fighter

 2-1     or police officer is charged with using excessive force that

 2-2     resulted in a death or injury and the charge is being investigated

 2-3     by a law enforcement or criminal justice agency other than the

 2-4     department.

 2-5           (d)  The department shall maintain records that relate to a

 2-6     disciplinary action against a fire fighter or police officer that

 2-7     was overturned on appeal, or any record in the possession of the

 2-8     department that relates to a charge of misconduct against a fire

 2-9     fighter or police officer, regardless of whether the charge is

2-10     sustained, only in a file created by the department for the

2-11     department's use.  The department may only release such records

2-12     relating to a charge of misconduct:

2-13                 (1)  to another law enforcement agency or fire

2-14     department; or

2-15                 (2)  in accordance with Subsection (e) or Section

2-16     143.089(g) or (h).

2-17           (e)  The department head or the department head's designee

2-18     may forward a record that relates to disciplinary action against a

2-19     fire fighter or police officer to the director or the director's

2-20     designee for inclusion in the fire fighter's or police officer's

2-21     personnel file maintained under Section 143.089(a)-(f) only if:

2-22                 (1)  disciplinary action was actually taken against the

2-23     fire fighter or police officer;

2-24                 (2)  the record includes at least a brief summary of

2-25     the facts on which the disciplinary action was based.

2-26           (f)  The requirements of this section are in addition to the

2-27     requirements of Section 143.089.  This section does not prevent a

 3-1     fire fighter or police officer from obtaining access to any records

 3-2     maintained by the department on the fire fighter or police officer

 3-3     under Section 143.089.

 3-4           SECTION 2.  Section 143.089, Local Government Code, is

 3-5     amended by amending Subsection (g) and adding Subsection (h) to

 3-6     read as follows:

 3-7           (g)  A fire or police department may maintain records [a

 3-8     personnel file] on a fire fighter or police officer employed by the

 3-9     department for the department's use, but the department may not

3-10     release any information contained in such records [the department

3-11     file] to any agency or person requesting information relating to a

3-12     fire fighter or police officer other than the fire fighter or

3-13     police officer to whom the information relates.  The department

3-14     shall refer to the director or the director's designee a person or

3-15     agency that requests information that is maintained in the fire

3-16     fighter's or police officer's personnel file.

3-17           (h)  A record maintained under Subsection (g) may be released

3-18     to a party in a civil or criminal action only if a court of

3-19     competent jurisdiction has determined that the particular record is

3-20     relevant to the action and has issued an order setting out the

3-21     limits on the use of, and persons entitled to examine, such record,

3-22     and providing for the return of the record and any copies made.  A

3-23     department head who is a party to the action, or the department

3-24     head's representative, may stipulate that the file or part of the

3-25     file is relevant to the action.

3-26           SECTION 3.  Section 143.1214, Local Government Code, is

3-27     amended to read as follows:

 4-1           Sec. 143.1214.  RECORDS CONCERNING CHARGES OF MISCONDUCT AND

 4-2     [OF OVERTURNED] DISCIPLINARY ACTIONS [ACTION OR UNSUSTAINED

 4-3     COMPLAINT].  (a)  The department head promptly shall order that the

 4-4     records of a disciplinary action that was taken against a fire

 4-5     fighter or police officer be expunged from each file maintained on

 4-6     the fire fighter or police officer by the department if the

 4-7     disciplinary action was overturned in its entirety on appeal by the

 4-8     commission, an independent third party hearing examiner, or a court

 4-9     of competent jurisdiction.  Records [Documents] that must be

4-10     expunged under this subsection include all records [documents] that

4-11     indicate disciplinary action was recommended or taken against the

4-12     fire fighter or police officer, such as the recommendations of a

4-13     disciplinary committee or a letter of suspension.  This subsection

4-14     does not apply [if the disciplinary action was only reduced and not

4-15     overturned nor shall this subsection apply] if the fire fighter or

4-16     police officer is charged with excessive force that results in a

4-17     death or injury and the charge is being investigated by a law

4-18     enforcement or criminal justice agency other than the department.

4-19           (b)  The department shall maintain records [an investigatory

4-20     document] that relate[s] to a disciplinary action against a fire

4-21     fighter or police officer that was overturned on appeal, or any

4-22     record [document] in the possession of the department that relates

4-23     to a charge of misconduct against a fire fighter or police officer,

4-24     whether  sustained or not [that the department did not sustain],

4-25     only in a file created by the department for the department's use.

4-26     The department may [not] release information from such

4-27     investigatory files only as set out in Subsections (c) and (d)

 5-1     [those documents to any agency or other person] except that the

 5-2     department may release information from such investigatory files to

 5-3     another law enforcement agency or fire department.

 5-4           (c)  Only records setting out discipline actually received

 5-5     shall be forwarded by the department head to the personnel file

 5-6     maintained by the director.  Such records shall include a brief

 5-7     summary of the facts on which the discipline was based.  An

 5-8     investigatory file maintained pursuant to Subsection (b) shall not

 5-9     be released to any agency or other person except another law

5-10     enforcement agency or department.

5-11           (d)  In any cause of action, civil or criminal, no record

5-12     maintained pursuant to Section 143.089(g) shall be released to any

5-13     party to the action until a court of competent jurisdiction has

5-14     determined that the particular record is relevant to the action and

5-15     has issued an order setting out the limits on the use of, and

5-16     persons entitled to examine, such record, and providing for the

5-17     return of the record and any copies made.  A department head who is

5-18     a party to the action, or the department head's representative, may

5-19     stipulate that the file or part of the file is relevant to the

5-20     action.

5-21           (e)  Nothing in this section shall be construed to prevent a

5-22     fire fighter or police officer from having access to any personnel

5-23     record maintained by the department on the fire fighter or police

5-24     officer pursuant to Section 143.089.

5-25           SECTION 4.  Subchapter B, Chapter 614, Government Code, is

5-26     amended by adding Section 614.024 to read as follows:

5-27           Sec. 614.024.  RECORDS RELATED TO DISCIPLINARY ACTIONS,

 6-1     COMPLAINTS OR CHARGES OF MISCONDUCT.  (a)  This section does not

 6-2     apply to a municipality that has adopted Chapter 143, Local

 6-3     Government Code.

 6-4           (b)  "Record" as used in this Section means any document,

 6-5     written information, electronically recorded information, or

 6-6     computerized file or information.

 6-7           (c)  The head of a state agency or the head of a fire or

 6-8     police department shall promptly order that the records of a

 6-9     disciplinary action taken against a fire fighter or police officer

6-10     be expunged from each record maintained on the fire fighter or

6-11     police officer by the department if the disciplinary action was

6-12     entirely overturned on appeal by an entity authorized to consider

6-13     the appeal or a court of competent jurisdiction.  Records that must

6-14     be expunged under this subsection include all records that indicate

6-15     disciplinary action was recommended or taken against the fire

6-16     fighter or police officer, such as the recommendations of a

6-17     disciplinary committee or a letter of suspension.  This subsection

6-18     does not apply if the fire fighter or police officer is charged

6-19     with using excessive force that resulted in a death or injury and

6-20     the charge is being investigated by a law enforcement or criminal

6-21     justice agency other than the department.

6-22           (d)  The department or agency shall maintain records that

6-23     relate to a disciplinary action against a fire fighter or police

6-24     officer that was overturned on appeal, or any record in the

6-25     possession of the department that relates to a charge of misconduct

6-26     against a fire fighter or police officer, regardless of whether the

6-27     charge is sustained, only in a file created by the department for

 7-1     the department's use.  The department may only release those

 7-2     records relating to a charge of misconduct:

 7-3                 (1)  to another law enforcement agency or fire

 7-4     department; or

 7-5                 (2)  in accordance with subsection (e).

 7-6           (e)  The head of a department or agency or their designee may

 7-7     forward a record that relates to disciplinary action against a fire

 7-8     fighter or police officer to the custodian of personnel records for

 7-9     the agency or department for inclusion in the fire fighter's or

7-10     police officer's personnel file only if:

7-11                 (1)  disciplinary action was actually taken against the

7-12     fire fighter or police officer;

7-13                 (2)  the record shows the disciplinary action taken;

7-14     and

7-15                 (3)  the record includes at least a brief summary of

7-16     the facts on which the disciplinary action was based.

7-17           SECTION 5.  (a)  This Act takes effect September 1, 1997.

7-18           (b)  The change in law made by this Act applies to records

7-19     that exist on the effective date of this Act and to records that

7-20     are made on or after the effective date of this Act.

7-21           SECTION 6.  The importance of this legislation and the

7-22     crowded condition of the calendars in both houses create an

7-23     emergency and an imperative public necessity that the

7-24     constitutional rule requiring bills to be read on three several

7-25     days in each house be suspended, and this rule is hereby suspended.