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79R6834 YDB-D
By: Turner H.B. No. 3182
A BILL TO BE ENTITLED
AN ACT
relating to due process for certain law enforcement officers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 614, Government Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. LAW ENFORCEMENT OFFICERS' DUE PROCESS ACT
Sec. 614.151. SHORT TITLE. This subchapter may be cited as
the Law Enforcement Officers' Due Process Act.
Sec. 614.152. DEFINITIONS. In this subchapter:
(1) "Law enforcement agency" means a municipal police
department, sheriff's department, or constable's office that
employs, commissions, or appoints a law enforcement officer.
(2) "Law enforcement officer" means a person who:
(A) is a sworn peace officer under Article 2.12,
Code of Criminal Procedure; and
(B) is not:
(i) above the rank of major; or
(ii) the chief of police, the sheriff,
constable, marshal, director, or other highest ranking officer in a
law enforcement agency.
Sec. 614.153. APPLICABILITY. (a) This subchapter applies
only to a law enforcement officer who is employed, commissioned, or
appointed by a law enforcement agency.
(b) This subchapter applies to all law enforcement
disciplinary proceedings in this state that are conducted by a law
enforcement agency.
(c) This subchapter does not supersede an existing meet and
confer agreement or collective bargaining agreement of a
municipality or county.
Sec. 614.154. LIMITATIONS ON POLITICAL ACTIVITY. A law
enforcement officer has the same rights to engage in political
activity as any other person, except that a law enforcement officer
may not engage in political activity while the law enforcement
officer is on duty, in uniform, or acting in an official capacity.
Sec. 614.155. LIMITATIONS ON REMOVAL FROM OFFICE. A law
enforcement agency may not remove without cause a law enforcement
officer employed as a deputy sheriff, deputy, or deputy constable
who:
(1) does not hold a command rank within the law
enforcement agency; and
(2) does not have civil service protection or is not
covered by a collective bargaining agreement.
Sec. 614.156. INVESTIGATION; QUESTIONING. (a) If a law
enforcement officer is under investigation or is subjected to
questioning for any reason that could lead to disciplinary action,
demotion, or dismissal, the administrative investigation or
questioning must be conducted in accordance with this subchapter.
(b) The questioning of a law enforcement officer must in an
administrative investigation:
(1) be conducted at a reasonable hour, preferably at a
time when the officer is on duty unless the investigator believes
that the gravity of the investigation requires immediate
questioning; and
(2) take place at the law enforcement agency
headquarters or at the office of the local troop or police unit in
which the incident allegedly occurred as designated by the
investigator unless otherwise waived in writing by the officer.
(c) The investigator in charge of the administrative
investigation shall inform the law enforcement officer under
investigation of the investigator's name, rank, and command. A
question directed to the officer may not be asked by more than two
investigators.
(d) A formal complaint against a law enforcement officer
that calls for the dismissal or suspension of the officer or other
formal disciplinary action against the officer may not be
prosecuted under a rule of the law enforcement agency unless the
complaint is supported by substantial evidence derived from an
administrative investigation by an authorized member of the agency.
(e) A law enforcement officer under an administrative
investigation must be informed in writing of the nature of the
investigation not less than 72 hours before being questioned.
(f) Interview sessions shall be conducted for reasonable
periods of time and must allow time for the law enforcement officer
to take care of personal necessities and for reasonable rest
periods.
(g) Except on refusal to answer questions pursued in a valid
administrative investigation, a law enforcement officer may not,
during an investigation, be threatened with transfer, dismissal, or
other disciplinary action.
Sec. 614.157. INTERVIEW RECORD REQUIRED. (a) An
investigator shall keep a complete record of all interviews held in
connection with an administrative investigation under this
subchapter on notification that substantial evidence exists for
seeking an administrative sanction of the law enforcement officer.
The record must be written or taped and if taped, transcribed as
soon as practicable.
(b) A copy of the record shall be provided on request to the
law enforcement officer or the officer's counsel at the officer's
expense.
Sec. 614.158. ARREST; RIGHT TO COUNSEL. (a) If a law
enforcement officer under questioning is under arrest or may
reasonably be placed under arrest as a result of the administrative
investigation, the investigator, before the interrogation begins,
shall inform the officer of the officer's rights, including the
reasonable possibility of the officer's arrest.
(b) On request, a law enforcement officer under questioning
has the right to be represented by counsel or another
representative of the officer's choice. If the officer requests
representation, the questioning must be suspended until the time
the officer obtains representation, if reasonably available, and
the counsel or representative must be present at all times during
the questioning unless the officer waives in writing the officer's
right to have the representative present.
Sec. 614.159. ACCESS TO DOCUMENTS. (a) An officer charged
with violating a rule of the law enforcement agency, or the
officer's representative, shall be granted access to transcripts,
records, written statements, written reports, analyses, and video
tapes that are pertinent to the case and that are exculpatory, are
intended to support any disciplinary action, or will be introduced
in an agency hearing on the charges involved.
(b) On demand by a law enforcement officer or the officer's
counsel, the documents described in Subsection (a) must be produced
within 48 hours of the officer's receipt of a written notification
of the charges.
Sec. 614.160. FINDINGS AND RECOMMENDATIONS. At the
conclusion of an administrative investigation of a law enforcement
officer, the investigator in writing shall inform the law
enforcement officer of the investigative findings and any
recommendation for further action.
Sec. 614.161. CONFIDENTIALITY. (a) All records compiled
as a result of any administrative investigation subject to this
subchapter or a contractual disciplinary grievance procedure are
confidential and may not be disclosed or released to the public.
(b) A verbal or written statement made by a law enforcement
officer during the course of an administrative investigation is not
admissible in a criminal proceeding. A report, audio tape
recording, videotape recordings, or notes made by an investigator
may not be shared with anyone who has criminal investigation
authority or who is capable of conducting a criminal investigation.
Sec. 614.162. INVESTIGATION PERIOD; EXTENSION HEARING. (a)
Except as otherwise provided in this section, an administrative
investigation of a law enforcement officer conducted under this
subchapter must be completed not later than the 60th day after the
date the investigation begins.
(b) This section does not supersede any civil service law or
collective bargaining contract which is currently in place.
(c) A law enforcement agency may request an extension to
complete an investigation by convening a three-member board to
conduct a hearing on the requested extension and shall provide
notice of the hearing to the law enforcement officer who is under an
administrative investigation. The officer has the right to attend
the hearing and to present evidence and arguments against the
extension.
(d) At the hearing under Subsection (c), if the board finds
that the law enforcement agency has shown good cause for granting an
extension of time for completion of the administrative
investigation, the board shall grant an extension not to exceed 60
days.
(e) This section may not be construed to:
(1) prohibit the law enforcement officer under
administrative investigation and the law enforcement agency from
entering into a written agreement extending the investigation for
not more than 60 days; or
(2) limit any investigation of alleged criminal
activity.
Sec. 614.163. DISCLOSURE. (a) Unless otherwise required
by this subchapter, a law enforcement agency is not required to
disclose in any civil proceeding a personnel file or internal
affairs investigatory file compiled in connection with a law
enforcement officer under administrative investigation or
subjected to questioning for any reason which could lead to
disciplinary action, demotion, or dismissal.
(b) Subsection (a) does not apply to a proceeding brought by
a citizen against a law enforcement officer alleging that the
officer breached the officer's official duties and that the breach
resulted in injury or other damage to the citizen.
Sec. 614.164. ADVERSE MATERIAL PLACED IN OFFICER'S FILE. A
law enforcement agency may not place any adverse material into the
file of a law enforcement officer except the file kept during the
internal investigation or by the intelligence division unless the
officer has had an opportunity to review, sign, and receive a copy
of the material and comment in writing on the material.
Sec. 614.165. DISCLOSURE OF ASSETS. A law enforcement
officer or any member of the officer's household may not be required
or requested to disclose during an administrative investigation or
questioning under this subchapter any item of personal property,
income, assets, sources of income, debts, or personal or domestic
expenditures unless:
(1) the information is necessary for the conduct of an
investigation on a violation of any federal, state, or local law
related to the performance of the officer's official duties; or
(2) the disclosure is required by state or federal
law.
Sec. 614.166. HEARING REQUIRED ON SUSPENSION OR OTHER
DISCIPLINARY ACTION. (a) A law enforcement officer is entitled to
a hearing if the officer is:
(1) suspended for any reason;
(2) charged with conduct alleged to violate the rules
or general orders of the law enforcement agency that employs the
officer; or
(3) charged with conduct that could lead to any form of
disciplinary action, other than a reprimand, and that may become
part of the officer's permanent personnel record.
(b) A hearing required under Subsection (a) must be
conducted in accordance with this subchapter unless a contractual
disciplinary grievance procedure executed by and between the law
enforcement agency and the bargaining unit for that law enforcement
officer is in effect, in which case the terms of that disciplinary
grievance procedure take precedence and govern the conduct of the
hearing.
Sec. 614.167. HEARING: SCHEDULING; NOTICE. (a) The
hearing for a law enforcement officer entitled to a hearing under
this subchapter must be scheduled within a reasonable period of
time after the date of the alleged incident, but not later than the
30th day after the date an internal investigation is concluded,
unless the hearing is waived in writing by the officer.
(b) The law enforcement officer shall be given written
notice of the time and place of the hearing and the issues involved,
including:
(1) a detailed description of the act the officer is
charged with having committed;
(2) a statement of the rule or order that the act is
alleged to violate; and
(3) a copy of the rule or order.
(c) The charge against the law enforcement officer must:
(1) advise the officer of the alleged facts;
(2) advise the officer that the violation of the rule
constitutes a basis for discipline; and
(3) specify the range of applicable penalties that
could be imposed.
Sec. 614.168. HEARING: PROCEDURE. (a) A law enforcement
agency shall retain the official record of a hearing conducted
under this subchapter, including testimony and exhibits.
(b) A hearing conducted under this subchapter must be
conducted within the law enforcement agency by an impartial board
of three agency officers. The board must include one member who is
of the same rank as the officer being charged. The prosecuting
party and the officer being charged may be represented by legal
counsel and the officer's counsel shall be given an opportunity to
present evidence and arguments related to the issues involved.
(c) If an impartial board cannot be convened by the
investigating agency, a board of three officers from another
jurisdiction shall be convened under the direction of the head law
enforcement officer of the law enforcement agency conducting the
investigation.
(d) An officer of a law enforcement agency appointed to
serve on a board under this section is immune from civil liability
arising from any act or omission arising out of the officer's
service on the board if the member acted in good faith and without
malice in carrying out the member's responsibilities or duties. A
member of the board is presumed to have acted in good faith and
without malice unless proven otherwise.
(e) Evidence with a probative value commonly accepted by
reasonable and prudent persons in the conduct of their affairs
shall be admissible in evidence and given probative effect. The
board conducting the hearing shall give effect to the rules of
privilege recognized by law and may exclude incompetent,
irrelevant, immaterial, and unduly repetitious evidence. All
records and documents that any party desires to use shall be offered
and made a part of the record. Documentary evidence may be received
in the form of copies of excerpts or by incorporation by reference.
(f) Every party has the right of cross-examination of
witnesses who testify and may submit rebuttal evidence.
(g) The board may take notice of judicially cognizable facts
and may take notice of general, technical, or scientific facts
within the board's specialized knowledge. Parties shall be
notified beforehand of the materials noticed by the board. A law
enforcement officer may not be adjudged guilty of any offense
unless the board is satisfied that guilt has been established by
substantial evidence.
Sec. 614.169. EVIDENCE OBTAINED IN VIOLATION OF OFFICER'S
RIGHTS. Evidence may not be obtained, received, or admitted into
evidence in a proceeding of any disciplinary action that violates
any right established by the United States Constitution, the Texas
Constitution, or by this subchapter. The board appointed under
Section 614.168 may not enter any judgment or sustain any
disciplinary action based on evidence obtained in violation of a
law enforcement officer's rights under this subchapter.
Sec. 614.170. WRITTEN DECISION AND FINDINGS OF FACT
DELIVERED TO OFFICER. (a) A decision, order, or action taken
following a hearing under Section 614.168 must be in writing and
accompanied by findings of fact. The findings shall consist of a
concise statement on each issue in the case.
(b) A copy of the decision or order, accompanying findings
and conclusions, and the written action and right of appeal, if any,
shall be delivered or mailed promptly to the law enforcement
officer or to the officer's counsel or representative of record.
Sec. 614.171. PROHIBITED PUNISHMENTS. (a) A law
enforcement officer may not be compelled to work extra duty without
compensation as a penalty for a disciplinary infraction.
(b) A suspension for any period of time provided in a law
enforcement agency's rules may not affect the law enforcement
officer's eligibility for pension, hospitalization, medical and
life insurance coverage, or other benefits specifically protected
under the contract of employment. Suspension may affect time of
pension eligibility by contractual provision or other law.
(c) This subchapter may not be construed to prevent a law
enforcement agency from requiring reimbursement by a suspended law
enforcement officer of the officer's employee contribution to
benefits during the officer's time of suspension.
Sec. 614.172. RETALIATION FOR EXERCISING RIGHTS. A law
enforcement officer may not be assessed a penalty or threatened
with the assessment of a penalty for exercising the officer's
rights under this subchapter.
SECTION 2. The changes in law made by this Act apply only to
an administrative investigation or a disciplinary hearing begun on
or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2005.