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.

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