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.