By Uher H.B. No. 1841
76R4505 AJA-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the investigation of Texas Department of Public Safety
1-3 officers and to the appeal of any resulting disciplinary actions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 411.007(e) and (f), Government Code, are
1-6 amended to read as follows:
1-7 (e) An officer or employee of the department may not be
1-8 discharged without just cause. The director shall determine
1-9 whether an officer or employee is to be discharged. A
1-10 noncommissioned [An officer or] employee ordered discharged may
1-11 appeal to the commission. An officer ordered discharged may appeal
1-12 under Section 411.0073. An officer subjected to disciplinary
1-13 action other than discharge may appeal under Section 411.0072.
1-14 During [, and during] the appeal of a discharge the officer or
1-15 employee shall be suspended without pay. During the appeal of a
1-16 disciplinary action involving suspension or demotion of an officer,
1-17 the officer remains suspended or demoted in accordance with the
1-18 terms of the suspension or demotion. The department may not
1-19 discharge or take a disciplinary action against [, suspend, or
1-20 demote] a commissioned officer except for the violation of a
1-21 specific commission rule. Before [If] the department discharges or
1-22 takes a disciplinary action against [, suspends, or demotes] an
1-23 officer, the department shall direct the internal affairs bureau to
1-24 conduct an investigation of the alleged rule violation under
2-1 Section 411.0071 [deliver to the officer a written statement giving
2-2 the reasons for the action taken. The written statement must point
2-3 out each commission rule alleged to have been violated by the
2-4 officer and must describe the alleged acts of the officer that the
2-5 department contends are in violation of the commission rules]. An
2-6 officer commissioned by the department may not be suspended,
2-7 terminated, or subjected to any form of discrimination by the
2-8 department because of the refusal of the officer to take a
2-9 polygraph examination.
2-10 (f) The commission shall establish grades and positions for
2-11 the department. For each grade and position the commission shall
2-12 designate the authority and responsibility within the limits of
2-13 this chapter, set standards of qualifications, and fix
2-14 prerequisites of training, education, and experience. The
2-15 commission shall adopt necessary rules for the appointment,
2-16 promotion, reduction, suspension, and discharge of all employees
2-17 [after hearing before the commission]. [A discharged officer or
2-18 employee is entitled, on application to the commission, to a public
2-19 hearing before the commission, who shall affirm or set aside the
2-20 discharge.] A person inducted into the service of the department
2-21 is on probation for the first one year of service and at any time
2-22 during that period may be discharged [without the public hearing
2-23 provided for by this subsection] if the director, with the advice
2-24 and consent of the commission, finds the person to be unsuitable
2-25 for the work. A discharge of a person during the probationary
2-26 period is not subject to Sections 411.0071 or 411.0073.
2-27 SECTION 2. Subchapter A, Chapter 411, Government Code, is
3-1 amended by adding Sections 411.0071, 411.0072, and 411.0073 to read
3-2 as follows:
3-3 Sec. 411.0071. INTERNAL AFFAIRS INVESTIGATION. (a) This
3-4 section applies only to the department's administrative
3-5 investigation of an officer and does not affect the conduct of a
3-6 criminal investigation by a law enforcement agency of competent
3-7 jurisdiction.
3-8 (b) An allegation that a commissioned officer has violated a
3-9 commission rule shall be investigated by the department's internal
3-10 affairs bureau.
3-11 (c) Before beginning its investigation, the internal affairs
3-12 bureau shall prepare a formal charge instrument setting forth each
3-13 commission rule alleged to have been violated by the officer and
3-14 describing each alleged action of the officer that is claimed to be
3-15 a violation of a commission rule. The bureau shall deliver a copy
3-16 of the charge instrument to the officer as soon as possible unless,
3-17 in the opinion of the director, prompt notification would interfere
3-18 with the conduct of a criminal investigation or would jeopardize
3-19 the health or safety of any person.
3-20 (d) The internal affairs bureau may commence its
3-21 investigation on delivery of the charge instrument, but the officer
3-22 charged may not be required to answer questions or submit a written
3-23 response to the charge instrument during the five days after the
3-24 date the charge instrument is delivered to the officer. Any waiver
3-25 of the officer's rights under this subsection must be in writing.
3-26 (e) If an allegation against an officer involves an alleged
3-27 violation of state or federal penal law, the officer shall be given
4-1 a written advisory of the officer's privilege against
4-2 self-incrimination in accordance with Garrity v. New Jersey, 385
4-3 U.S. 493 (1967). The officer is entitled to adequate notice of the
4-4 date and time when the officer's sworn or unsworn testimony
4-5 concerning the charge is to be compelled and is entitled to have
4-6 legal counsel present during that testimony. Any waiver of the
4-7 officer's rights under this subsection must be in writing.
4-8 (f) The internal affairs bureau has the 28 days after the
4-9 date the charge instrument is delivered to the officer to conduct
4-10 its investigation. The director may extend the period if good
4-11 cause is shown by the bureau. At any time during the
4-12 investigation, the officer has the right to submit sworn or unsworn
4-13 written statements or other evidence and to have those submissions
4-14 included in the investigative file.
4-15 (g) The internal affairs bureau shall prepare a report
4-16 following its investigation that classifies each allegation of the
4-17 charge instrument as sustained, not sustained, unfounded, or
4-18 exonerated and that recommends any disciplinary action the bureau
4-19 considers appropriate. In recommending disciplinary action, the
4-20 bureau shall consider and report all relevant factors, including
4-21 the disciplinary actions imposed in similar cases. The bureau
4-22 shall deliver the report to the officer, the director, and the
4-23 department's legal services division as soon as possible.
4-24 (h) If the bureau recommends discharge, the director shall
4-25 adopt or reject the recommendation based on the director's review
4-26 of the investigative file and consideration of any additional
4-27 evidence or statements submitted by the officer. The director's
5-1 decision is final unless the officer appeals under Section
5-2 411.0073.
5-3 Sec. 411.0072. APPEAL OF DISCIPLINARY ACTION. (a) If the
5-4 internal affairs bureau recommends disciplinary action other than
5-5 discharge, an officer may appeal the classification of the charge
5-6 and the recommended disciplinary action under this section not
5-7 later than the 10th day after the date the officer receives the
5-8 bureau's report under Section 411.0071.
5-9 (b) An appeal under this section may be heard by a
5-10 supervisory officer, with the right of appeal continuing up the
5-11 chain of command, or by a grievance board. The officer has a right
5-12 to legal counsel throughout the appeals process.
5-13 (c) In an appeal under this section, the classification of
5-14 the charge and the disciplinary action recommended shall be
5-15 reviewed de novo. The supervisory officer or grievance board
5-16 hearing the appeal shall sustain any charge supported by a
5-17 preponderance of the credible evidence. For any charge sustained,
5-18 the supervisory officer or grievance board shall determine and
5-19 impose an appropriate disciplinary action based on the evidence and
5-20 testimony in the record, including evidence offered by the officer
5-21 or by the internal affairs bureau of disciplinary actions imposed
5-22 in prior similar cases, or any other evidence supporting a greater
5-23 or lesser disciplinary action than was recommended by the bureau.
5-24 Sec. 411.0073. APPEAL TO STATE OFFICE OF ADMINISTRATIVE
5-25 HEARINGS. (a) If the director adopts a recommendation of the
5-26 internal affairs bureau under Section 411.0071 that an officer be
5-27 discharged, the officer may appeal to the State Office of
6-1 Administrative Hearings. Notwithstanding Section 200l.222, the
6-2 contested case provisions of Chapter 2001 apply to the appeal.
6-3 (b) An officer must request an appeal to the State Office of
6-4 Administrative Hearings not later than the 10th day following the
6-5 date the officer is notified that the director has adopted a
6-6 recommendation of the internal affairs bureau that the officer be
6-7 discharged.
6-8 (c) On application by an officer ordered discharged, a panel
6-9 of three administrative law judges shall conduct a public hearing
6-10 on the matter and render a decision that affirms or sets aside the
6-11 discharge.
6-12 (d) A decision rendered under Subsection (c) is final. The
6-13 department or the officer may obtain judicial review of the
6-14 decision in accordance with Chapter 2001.
6-15 SECTION 3. This Act takes effect September 1, 1999, and
6-16 applies only to a discharge or other disciplinary action involving
6-17 a rule violation alleged to have occurred on or after that date.
6-18 SECTION 4. The importance of this legislation and the
6-19 crowded condition of the calendars in both houses create an
6-20 emergency and an imperative public necessity that the
6-21 constitutional rule requiring bills to be read on three several
6-22 days in each house be suspended, and this rule is hereby suspended.