1-1 By: Luna S.B. No. 1289 1-2 (In the Senate - Filed March 12, 1997; March 18, 1997, read 1-3 first time and referred to Committee on Intergovernmental 1-4 Relations; April 4, 1997, reported favorably, as amended, by the 1-5 following vote: Yeas 9, Nays 2; April 4, 1997, sent to printer.) 1-6 COMMITTEE AMENDMENT NO. 1 By: Lindsay 1-7 Amend S.B. No. 1289 on page 1, strike lines 40 through 42, and 1-8 replace with the following: 1-9 (1) covered by Chapter 143, Local Government Code; 1-10 (2) employed by a municipality with a population of 1-11 less than 10,000; or 1-12 (3) employed by a county. 1-13 A BILL TO BE ENTITLED 1-14 AN ACT 1-15 relating to the personnel records of certain law enforcement 1-16 officers and fire protection personnel; providing a criminal 1-17 penalty. 1-18 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-19 SECTION 1. Chapter 614, Government Code, is amended by 1-20 adding Subchapter E to read as follows: 1-21 SUBCHAPTER E. PERSONNEL RECORDS OF CERTAIN LAW 1-22 ENFORCEMENT AND FIRE PROTECTION PERSONNEL 1-23 Sec. 614.071. DEFINITIONS. In this subchapter: 1-24 (1) "Custodian" means a person designated to maintain 1-25 employee records and files on law enforcement or fire protection 1-26 employees. 1-27 (2) "Employee record" means any letter, memorandum, 1-28 photograph, or document maintained by an employer that relates to a 1-29 law enforcement or fire protection employee. 1-30 (3) "Employer" means an agency or political 1-31 subdivision of the state or a division of an agency or political 1-32 subdivision of the state. 1-33 (4) "Law enforcement or fire protection employee" 1-34 means a peace officer licensed under Section 415.052 or fire 1-35 protection personnel within the meaning of Section 419.021 employed 1-36 by an employer. 1-37 Sec. 614.072. INAPPLICABILITY OF SUBCHAPTER. This 1-38 subchapter does not apply to a law enforcement or fire protection 1-39 employee who is: 1-40 (1) covered by Chapter 143, Local Government Code; or 1-41 (2) employed by a municipality with a population of 1-42 less than 10,000. 1-43 Sec. 614.073. PERMANENT PERSONNEL FILE. (a) A law 1-44 enforcement or fire protection employee's permanent personnel file 1-45 must contain any employee record relating to: 1-46 (1) a commendation, congratulation, or honor bestowed 1-47 on the employee by a member of the public or by the employer for an 1-48 action, duty, or activity that relates to the employee's official 1-49 duties; 1-50 (2) any misconduct by the employee if the employee 1-51 record is made by the employer and if the misconduct resulted in 1-52 disciplinary action by the employer; 1-53 (3) the periodic evaluation of the employee by a 1-54 supervisor; 1-55 (4) any photograph of the employee maintained by the 1-56 employer; and 1-57 (5) any information pertaining to an investigation of 1-58 misconduct against the employee that was pending at the time the 1-59 employee resigned from the employer. 1-60 (b) An employee record relating to alleged misconduct by a 1-61 law enforcement or fire protection employee may not be placed in 1-62 the employee's permanent personnel file if the employer or the 1-63 governing body of the employing entity determines that there is 1-64 insufficient evidence to sustain the charge of misconduct, unless 2-1 the record relates to an investigation of misconduct against a law 2-2 enforcement or fire protection employee that was pending at the 2-3 time the employee resigned from the employer. 2-4 (c) The custodian shall ensure that: 2-5 (1) an employee record required to be included in a 2-6 law enforcement or fire protection employee's permanent personnel 2-7 file is placed in the file; and 2-8 (2) a record required to be excluded from the file is 2-9 excluded. 2-10 Sec. 614.074. REMOVAL OF CERTAIN RECORDS FROM PERMANENT 2-11 FILE. An employee record relating to disciplinary action taken 2-12 against a law enforcement or fire protection employee or to alleged 2-13 misconduct by the employee that is placed in the employee's 2-14 permanent personnel file shall be removed from the file if the 2-15 employer, a court, or an administrative body or hearing examiner of 2-16 competent jurisdiction determines that: 2-17 (1) the disciplinary action was taken without just 2-18 cause; or 2-19 (2) the charge of misconduct was not supported by 2-20 sufficient evidence. 2-21 Sec. 614.075. NOTIFICATION TO EMPLOYEE OF CERTAIN NEGATIVE 2-22 RECORDS; EMPLOYEE RESPONSE. (a) Not later than the 30th day after 2-23 the date a negative employee record or other notation of negative 2-24 effect is placed in a law enforcement or fire protection employee's 2-25 permanent personnel file, the custodian shall notify the affected 2-26 employee that the record has been placed in the file. 2-27 (b) The employee may, not later than the 15th day after the 2-28 date the employee receives the notification, file with the 2-29 custodian a written response to the negative employee record. The 2-30 custodian shall place the response in the employee's file with the 2-31 negative record. 2-32 Sec. 614.076. EMPLOYEE'S RIGHT TO COPY OF RECORD IN 2-33 PERMANENT FILE. A law enforcement or fire protection employee is 2-34 entitled on request to a copy of any employee record placed in the 2-35 employee's permanent personnel file. The employer may charge the 2-36 employee a reasonable fee not to exceed the actual cost for copies 2-37 provided under this section. 2-38 Sec. 614.077. RELEASE OF INFORMATION IN PERMANENT FILE. 2-39 (a) A custodian or employer may not release an employee record or 2-40 information that is required to be contained in a law enforcement 2-41 or fire protection employee's permanent personnel file unless: 2-42 (1) the custodian or employer first obtains the 2-43 employee's written consent; or 2-44 (2) the release of the record or information is 2-45 required by law. 2-46 (b) An employer may use a photograph of a law enforcement or 2-47 fire protection employee without the employee's written consent for 2-48 purposes of identification of the employee by a member of the 2-49 public. 2-50 Sec. 614.078. DISPOSAL OF EMPLOYEE RECORD. A custodian may 2-51 dispose of the permanent personnel file or an employee record of a 2-52 former law enforcement or fire protection employee in accordance 2-53 with the employer's policy and applicable law. 2-54 Sec. 614.079. DETERMINATION CONCERNING CHARGE OF MISCONDUCT 2-55 NOT REQUIRED. Sections 614.073(b) and 614.074 do not require an 2-56 employer or the governing body of an employing entity to make a 2-57 determination concerning a charge of misconduct or a disciplinary 2-58 action taken against an employee. 2-59 Sec. 614.080. PRIVATE PERSONNEL FILE. (a) An employer may 2-60 maintain a private personnel file on a law enforcement or fire 2-61 protection employee for the employer's use. 2-62 (b) The employer may not release information contained in an 2-63 employee's private personnel file to a person requesting 2-64 information relating to the employee. 2-65 Sec. 614.081. REFERRAL OF PERSON REQUESTING INFORMATION 2-66 RELATING TO PERSONNEL FILE. An employer shall refer to the 2-67 custodian a person who requests information relating to a law 2-68 enforcement or fire protection employee's permanent or private 2-69 personnel file. 3-1 Sec. 614.082. PENALTY. (a) A person commits an offense if 3-2 the person violates Section 614.077 or Section 614.080(b). 3-3 (b) An offense under this section is a Class C misdemeanor. 3-4 SECTION 2. Section 143.089, Local Government Code, is 3-5 amended by adding Subsection (h) to read as follows: 3-6 (h) Each photograph of a fire fighter or police officer in 3-7 the possession of the employing department or municipality is 3-8 considered to be part of the personnel file of the fire fighter or 3-9 police officer. The employing department or municipality may not 3-10 release a photograph of a fire fighter or police officer except as 3-11 provided by Subsection (f). The employing department or 3-12 municipality may use a photograph of a fire fighter or police 3-13 officer without the written permission of the fire fighter or 3-14 police officer for purposes of identification of the fire fighter 3-15 or police officer by a member of the public. 3-16 SECTION 3. This Act takes effect September 1, 1997. 3-17 SECTION 4. The importance of this legislation and the 3-18 crowded condition of the calendars in both houses create an 3-19 emergency and an imperative public necessity that the 3-20 constitutional rule requiring bills to be read on three several 3-21 days in each house be suspended, and this rule is hereby suspended. 3-22 * * * * *