79R1875 MXM-F
By: Coleman H.B. No. 3364
A BILL TO BE ENTITLED
AN ACT
relating to the creation of a Civilian Oversight Commission and
local district complaint offices; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CIVILIAN OVERSIGHT COMMISSION
SECTION 1.01. Subtitle B, Title 4, Government Code, is
amended by adding Chapter 422 to read as follows:
CHAPTER 422. CIVILIAN OVERSIGHT COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 422.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Civilian Oversight
Commission.
(2) "Commissioner" means a commission member.
(3) "Director" means a district complaint office
director.
(4) "District complaint office" means a civilian
oversight district complaint office established under Section
422.301.
Sec. 422.002. APPLICATION OF SUNSET ACT. The Civilian
Oversight Commission is subject to Chapter 325 (Texas Sunset Act).
Unless continued in existence as provided by that chapter, the
commission is abolished September 1, 2017.
Sec. 422.003. APPLICABILITY. This chapter applies to:
(1) all governmental entities in this state, including
state agencies and local governments of any type;
(2) any business, nonprofit organization, or other
group that acts on behalf of a governmental entity under a contract
with the governmental entity; and
(3) employees of a governmental entity or of a group
described by Subdivision (2).
Sec. 422.004. GOVERNMENTAL AND PRIVATE IMMUNITY WAIVED.
(a) This chapter prevails over any statute providing immunity for a
governmental entity or a person who receives money from a
governmental entity.
(b) This chapter serves as a waiver of any governmental
immunity provided by a statute or other law that conflicts with this
chapter.
Sec. 422.005. CONFLICT OF RULES REGARDING EMPLOYEE
MISCONDUCT AND RECORDS. A commission rule relating to employee
misconduct or records of disciplinary actions or allegations of
misconduct prevails over a conflicting rule adopted by a county or
municipality, including a rule adopted by a county or municipal
civil service commission or county or municipal police civil
service commission.
Sec. 422.006. CONFLICT OF LAWS REGARDING LOCAL DISCIPLINARY
RECORDS. In the event of a conflict between this chapter and
Section 143.1214, Local Government Code, this chapter prevails.
Sec. 422.007. CHOICE OF LAW REGARDING EMPLOYEE COMPLAINTS
OR REPORTS OF ABUSE. (a) This chapter prevails over a statute or
policy relating to government employees or employees of any
business, nonprofit organization, or other group that acts on
behalf of a governmental entity that requires the employees to file
complaints or reports of abuse to superiors or specified
governmental entities before contacting any other governmental or
private investigative body.
(b) This chapter entitles a government employee to file a
complaint with the commission, a district complaint office, or any
investigative body that the employee chooses.
Sec. 422.008. CONFLICT OF LAWS REGARDING INVESTIGATIONS AND
INTERROGATIONS OF GOVERNMENT EMPLOYEES. In the event of a conflict
between this chapter and a statute or bargaining agreement relating
to investigations and interrogations of government employees, this
chapter prevails.
[Sections 422.009-422.050 reserved for expansion]
SUBCHAPTER B. CIVILIAN OVERSIGHT COMMISSION
Sec. 422.051. COMPOSITION. The commission is composed of
three members elected statewide.
Sec. 422.052. ELECTION. The election for commissioners
shall be held on the general election date for state and county
officers under Section 41.002, Election Code.
Sec. 422.053. TERMS. Commissioners serve staggered
six-year terms.
Sec. 422.054. ELIGIBILITY. (a) A commissioner must:
(1) reside in this state;
(2) be registered to vote in this state; and
(3) be at least 30 years of age.
(b) A person may not be a commissioner if the person or a
person related to that person by affinity or consanguinity within
the first degree, as determined by Chapter 573:
(1) has held an elected or appointed government office
in this state in the three-year period preceding the date of the
commissioner's election or appointment;
(2) is associated directly or indirectly with a
municipality or state agency;
(3) has been a government employee in a managerial or
supervisory position who exercised substantial policy discretion
on employment or law enforcement matters in the five-year period
preceding the date of the commissioner's election or appointment;
or
(4) has been a police officer, criminal investigator,
special agent, lawyer, or prosecutorial attorney for a
municipality, county, or state agency in the 10-year period
preceding the date of the commissioner's election or appointment.
(c) A person may not be a commissioner if the person is
directly or indirectly interested in a government stock, bond,
mortgage, security, contract, sale, lease, or grant.
Sec. 422.055. LIMIT ON CERTAIN CAMPAIGN CONTRIBUTIONS. A
person seeking election as a commissioner may receive campaign
contributions only directly from individuals.
Sec. 422.056. OATH OF OFFICE. Before assuming the duties of
office, a commissioner must swear or affirm that the commissioner
meets the eligibility requirements under Sections 422.054 and
422.055.
Sec. 422.057. TRAINING. (a) A person who is elected or
appointed to and qualifies for office as a member of the commission
may not vote, deliberate, or be counted as a member in attendance at
a meeting of the commission until the person completes a training
program that complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter and the commission's programs,
functions, rules, and budget;
(2) the results of the most recent formal audit of the
commission;
(3) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest; and
(4) any applicable ethics policies adopted by the
commission or the Texas Ethics Commission.
(c) A person elected or appointed to the commission is
entitled to reimbursement, as provided by the General
Appropriations Act, for the travel expenses incurred in attending
the training program regardless of whether the attendance at the
program occurs before or after the person qualifies for office.
Sec. 422.058. VACANCY. The governor by appointment shall
fill the unexpired term of a commission vacancy.
Sec. 422.059. PRESIDING OFFICER. At least once every two
years, the commission shall meet in Austin, Texas, and elect a
commissioner to serve as presiding officer.
Sec. 422.060. GROUNDS FOR REMOVAL OF COMMISSIONER. (a) It
is a ground for removal from the commission that a commissioner:
(1) does not have at the time of taking office the
qualifications required by Section 422.054 or 422.055;
(2) does not maintain during service on the commission
the qualifications required by Section 422.054;
(3) cannot, because of illness or disability,
discharge the commissioner's duties for a substantial part of the
commissioner's term; or
(4) is absent from more than half of the regularly
scheduled commission meetings that the commissioner is eligible to
attend during a calendar year without an excuse approved by a
majority vote of the commission.
(b) The validity of an action of the commission is not
affected by the fact that it is taken when a ground for removal of a
commissioner exists.
(c) If a director or commissioner has knowledge that a
potential ground for removal exists, the director or commissioner
shall notify the presiding officer of the commission of the
potential ground. The presiding officer shall then notify the
governor and the attorney general that a potential ground for
removal exists. If the potential ground for removal involves the
presiding officer, the director or commissioner shall notify the
next highest ranking officer of the commission, who shall then
notify the governor and the attorney general that a potential
ground for removal exists.
Sec. 422.061. COMPENSATION; REIMBURSEMENT. (a) A
commissioner shall receive compensation as provided by the General
Appropriations Act.
(b) A commissioner is entitled to reimbursement for actual
and necessary expenses incurred in performing functions as a
commissioner, subject to any applicable limitation on
reimbursement provided by the General Appropriations Act.
Sec. 422.062. MEETINGS. The commission may meet at any
place in the state, as necessary to fulfill commission duties.
Sec. 422.063. GOVERNING PROCEDURES. The commission may
adopt procedures to govern the conduct of its meetings and other
general affairs.
[Sections 422.064-422.100 reserved for expansion]
SUBCHAPTER C. DISTRICT COMPLAINT OFFICE DIRECTORS
AND OTHER PERSONNEL
Sec. 422.101. DIRECTOR. (a) The commission shall hire a
director to manage each district complaint office.
(b) The director must meet the eligibility requirements of
Section 422.054.
(c) The director shall administer the activities of that
director's district complaint office.
Sec. 422.102. SECRETARY. The commission and each director
may employ a secretary. A secretary employed under this section
shall keep correct minutes of all transactions and proceedings of
the commission or the applicable district complaint office, record
each complaint assigned an investigative team under Section
422.352, and perform any other duties required by the commission or
director.
Sec. 422.103. DISTRICT COMPLAINT OFFICE PERSONNEL;
ELIGIBILITY. (a) A director may hire and supervise employees as
necessary to exercise a district complaint office's powers and
duties, including investigative managers and teams.
(b) A full-time employee of a district complaint office may
not be a government officer or be employed by any other governmental
entity. The employee may not engage in any occupation, business, or
personal activity inconsistent with the employee's duties, as
determined by the commission. A violation of this subsection is a
ground for dismissal of the employee.
(c) A person is not eligible for employment by a district
complaint office if the person was an employee of or otherwise
received money from a governmental entity and worked for the
governmental entity in the following fields:
(1) human services;
(2) law enforcement; or
(3) legal professional services.
(d) For the purposes of Subsection (c), experience in the
field of human services, law enforcement, or legal professional
services includes experience as a criminal investigator, special
agent, police officer, lawyer, prosecutorial attorney, or
supervisory or managerial employee who exercised substantial
policy discretion on employment and law enforcement matters in a
governmental entity or in a private business.
(e) A director may establish additional hiring
qualifications for employees.
Sec. 422.104. COMMISSION PERSONNEL. The commission and
directors may hire other employees as necessary to implement this
chapter.
Sec. 422.105. USE OF TEXAS BUILDING AND PROCUREMENT
COMMISSION SERVICES. (a) On the request of the commission's
presiding officer or a director, the Texas Building and Procurement
Commission shall provide to the commission, or applicable district
complaint office, administrative support services necessary to
implement this chapter.
(b) The commission shall reimburse the Texas Building and
Procurement Commission for the services.
Sec. 422.106. USE OF OTHER STATE AGENCY STAFF. (a) On the
request of the commission's presiding officer or a director, a
state agency may provide to the commission, or applicable district
complaint office, any personnel that may assist the commission or
director in implementing this chapter.
(b) The commission shall reimburse the state agency for the
use of the personnel.
Sec. 422.107. DIVISION OF RESPONSIBILITIES. The commission
shall develop and implement policies that clearly separate the
policy-making responsibilities of the commission and the
management responsibilities of district complaint offices, and the
directors and staff of the district complaint offices and
commission.
Sec. 422.108. EXPERTS. An expert contracted with by the
commission or a director may not be a government officer or be
employed by any other governmental entity. The expert may not
engage in any occupation, business, or personal activity
inconsistent with the purpose for which the expert was hired, as
determined by the commission. A violation of this section is a
ground for termination of the contract with the expert.
Sec. 422.109. REMOVAL OF DIRECTOR OR OTHER EMPLOYEE. (a) A
person who is a director or other employee of the commission or a
district complaint office, or an expert hired by the commission or a
district complaint office, may be suspended or removed from the
position if, at a meeting held for that purpose, the commission
finds that the person has:
(1) violated ethical standards;
(2) engaged in other misconduct; or
(3) failed to faithfully and justly execute this
chapter.
(b) The person may request that the notification of removal
or suspension hearing be held as an open meeting under Chapter 551.
(c) A director or other employee removed or suspended under
this section may petition in district court for the removal or
suspension to be set aside.
(d) If the person is indicted or charged with a criminal
offense, the person must be suspended from the person's duties
until the disposition of the charge. Unless the person pleads
guilty or is found guilty, the person shall resume duties at the
time of disposition of the charge. If a director is suspended from
duties until the disposition of the charge, the district complaint
office's managerial staff may appoint a substitute director during
the suspension.
(e) If the person is found guilty or pleads guilty to the
criminal charge:
(1) the director shall hire a replacement to fill the
position; or
(2) the commission shall hire a replacement director
if the person who is found guilty or pleads guilty is a director.
Sec. 422.110. TASK FORCE. (a) As used in this section,
"task force" means a specialized unit of the commission or a
district complaint office.
(b) A director may assign a task force to study issues
relevant to the implementation of this chapter, including policies
and procedures relating to the operation and functions of
governmental entities.
Sec. 422.111. TRACK TREND ASSISTANT. A director may assign
a track trend assistant to track trend stitches on issues such as
racial profiling and other categories of complaints received by the
district complaint office.
[Sections 422.112-422.150 reserved for expansion]
SUBCHAPTER D. GENERAL POWERS AND DUTIES
Sec. 422.151. RULES. The commission may adopt rules to
implement this chapter.
Sec. 422.152. CONTRACTS. (a) The commission may contract
with persons as necessary to implement this chapter.
(b) A director may contract under this section on behalf of
the commission as necessary to operate the director's district
complaint office.
Sec. 422.153. COMMISSION INVESTIGATIONS AND INSPECTIONS.
The commission or a commissioner designated by the commission may
investigate and report on any matter relating to the enforcement
and effect of this chapter, any rule adopted under this chapter, and
whether the chapter and rules are being obeyed.
Sec. 422.154. TRAINING. (a) The commission shall develop:
(1) the training required under Section 422.057; and
(2) training for district complaint offices,
including directors and staff.
(b) In cooperation with directors, the commission shall
establish an introductory and ongoing training program for district
complaint office investigators and investigative teams.
Sec. 422.155. USE OF TECHNOLOGY. The commission shall
implement a policy requiring the commission to use appropriate
technological solutions to improve the commission's ability to
perform its functions. The policy must ensure that the public is
able to interact with the commission using the Internet.
Sec. 422.156. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION PROCEDURES. (a) The commission shall develop
and implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008 for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009 to assist in the resolution of
internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall designate an appropriately trained
person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of the
procedures, as implemented by the commission.
Sec. 422.157. ANNUAL REPORT. The commission shall annually
report to the governor, the lieutenant governor, and the speaker of
the house of representatives. The report must describe the
commission's activities and summarize the actions of the commission
and district complaint offices.
Sec. 422.158. EXTERNAL AUDIT. At least once every two
years, the commission shall initiate an external audit of all
complaints received or acted on in any manner by district complaint
offices.
Sec. 422.159. SHARING OF OFFICIAL INFORMATION; STANDARDS.
(a) On request by the commission's presiding officer or a director,
a governmental entity shall provide to the commission or applicable
district complaint office any information that the commission or
director considers necessary to implement this chapter.
(b) The commission shall develop standards regarding the
sharing of information between the commission, district complaint
offices, governmental entities, and persons who contract with or
partner with governmental entities.
Sec. 422.160. OPEN RECORDS EXCEPTION REGARDING LAW
ENFORCEMENT AND PROSECUTORIAL INFORMATION. Section 552.108 does
not apply to information requested by the commission or a district
complaint office under this chapter.
[Sections 422.161-422.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 422.201. PUBLIC INTEREST INFORMATION. (a) The
commission shall prepare information of public interest describing
the functions of the commission and district complaint offices and
the procedures by which complaints are filed with and resolved by
the commission, the executive director, and district complaint
offices.
(b) The commission shall make the information available to
the public and appropriate governmental entities.
Sec. 422.202. CIVILIAN AND EMPLOYEE COMPLAINTS. (a) A
person may file a written complaint under this chapter against a
governmental entity, an employee of that entity, or a business,
nonprofit organization, or other group that acts on behalf of a
governmental entity under a contract with the governmental entity,
including the employees of the business, nonprofit organization, or
other group.
(b) The person must:
(1) allege in the complaint that the defendant has
engaged in misconduct described by Section 422.251; and
(2) submit the complaint describing the alleged
misconduct to the commission or a district complaint office.
(c) The person who files the complaint is not required to be
the alleged victim.
(d) A complaint filed by a person under this chapter is in
addition to any other remedy available to the person.
Sec. 422.203. STATUTE OF LIMITATIONS. (a) An allegation in
a complaint filed under this chapter must be filed with the
commission or a district complaint office not later than 18 months
after the date of the alleged misconduct.
(b) This section does not apply to alleged misconduct that
is also a crime.
Sec. 422.204. COMPLAINTS SYSTEM. (a) The commission shall
develop a system to promptly and efficiently act on complaints
filed with the commission and district complaint offices. The
commission or district complaint office shall maintain information
regarding parties to a complaint, the subject matter of the
complaint, a summary of the results of the review or investigation
of the complaint, and its disposition.
(b) The commission shall make information available
describing its procedures for complaint investigation and
resolution.
(c) The commission or district complaint office shall
periodically notify the complaint parties in writing of the status
of the complaint until final disposition. The commission or the
district complaint office shall provide the complaint parties a
name, address, and telephone number of an individual to contact in
order to give or obtain information regarding the complaint.
(d) In developing the system under this section, the
commission shall distinguish between those duties the district
complaint office is primarily responsible for and those duties for
which the commission remains primarily responsible.
Sec. 422.205. COMPLAINT FILE. (a) A file for a complaint
for which the commission or a district complaint office was able to
carry out a complete inquiry must contain information collected
from interviews with employees, the public, and other witnesses.
(b) The file must contain the final written report of the
investigator under Section 422.358.
Sec. 422.206. PUBLIC PARTICIPATION. The commission shall
develop and implement policies that provide the public with a
reasonable opportunity to appear before the commission and speak on
any issue under the jurisdiction of the commission.
Sec. 422.207. PUBLIC OUTREACH. (a) The commission shall
engage in community outreach to:
(1) educate the public concerning the purpose of the
commission and district complaint offices and the services
provided; and
(2) respond to comments and questions from the public
concerning issues relevant to the operation of the commission and
district complaint offices.
(b) As part of this public outreach, the commission shall
encourage persons in the public to file a complaint when the person
feels that the person has been a victim of misconduct by a
governmental entity or a business, nonprofit organization, or other
group that acts on behalf of a governmental entity under a contract
with the governmental entity.
(c) A director shall inform the public in the area covered
by that director's district complaint office about the commission,
the district complaint office, and the duties of each entity. The
director shall develop and administer an ongoing program for the
education of the public regarding the district complaint office's
activities.
Sec. 422.208. COMPLAINTS AGAINST COMMISSION OR DISTRICT
COMPLAINT OFFICES; APPEAL. (a) A person may file a complaint
against the commission, a director, an expert hired by a district
complaint office, or an employee of a district complaint office,
only as provided by this section.
(b) The person complaining must file in a district court in
Travis County a petition that includes the particular cause of
objection and the names of the subjects of the complaint.
(c) The district court must give precedence to the petition
ahead of all other causes on the docket of a different nature,
except for a trial in session in the district court.
(d) The district court shall try and determine the petition
in the same manner as other causes in the court. To prevail in the
district court, the petitioner must prove by clear and satisfactory
evidence that the defendant acted unreasonably and unjustly
regarding a complaint filed with the defendant under this chapter.
(e) A party may appeal the result in the district court. An
appellate court must give precedence to the appeal ahead of all
other appeals in that court of a different nature.
[Sections 422.209-422.250 reserved for expansion]
SUBCHAPTER F. ADDITIONAL CIVILIAN OVERSIGHT POWERS AND DUTIES
Sec. 422.251. JURISDICTION FOR CERTAIN COMPLAINTS. The
commission and a district complaint office in the relevant
geographical area have jurisdiction to investigate a complaint that
alleges misconduct involving state laws, rules, policies,
procedures, ethical and community standards, and criminal behavior
relating to:
(1) excessive use of force;
(2) abuse of authority, including the improper use of
powers to threaten, intimidate or otherwise mistreat a member of
the public or a government employee, threats of force, termination
of employment, coercive sanctions, and unlawful acts, searches, and
seizures;
(3) obstruction of justice, including abuse of office,
abuse of official capacity, official oppression, violations of the
civil rights of a person, misuse of official information, bribery,
corrupt influence, and coercion;
(4) neglect of duty;
(5) misrepresentation of the facts relating to
disputed events and circumstances;
(6) occupational, personal, or sexual harassment; or
(7) discourtesy, including rude or obscene gestures or
the use of offensive language, including slurs relating to race,
ethnicity, religion, gender, sexual orientation, disability, age,
or social or economic status.
Sec. 422.252. RIGHTS RELATING TO INVESTIGATION AND REMEDY.
(a) The commission shall protect the right of each person residing
in this state to:
(1) have an independent and proper investigation of
any complaint filed under this chapter; and
(2) receive the proper remedy regarding the complaint.
(b) The commission and each employee of the commission or a
district complaint office must respect the rights of persons who
file complaints and of persons who are being investigated.
Sec. 422.253. RULES REGARDING EQUALITY. (a) The
commission shall adopt rules designed to establish equality under
the law for parties to a complaint under this chapter.
(b) Each director shall ask the commission to adopt rules
that the director considers necessary to establish equality under
the law for parties to a complaint under this chapter.
Sec. 422.254. GENERAL SCOPE OF AUTHORITY. (a) The
commission and directors shall investigate matters considered
relevant to the commission and district complaint offices,
including investigations of patterns of misconduct that arise
during complaint investigations.
(b) The commission and directors shall address relevant
policies, patterns, and practices of governmental entities.
(c) After investigating or addressing matters under this
section, the commission or a director may:
(1) make recommendations;
(2) require and enforce specific actions; and
(3) take legal action when necessary.
Sec. 422.255. INVESTIGATION OF GOVERNMENTAL EMPLOYEES,
INCLUDING FIREFIGHTERS AND POLICE OFFICERS. (a) This chapter
grants the same privileges and protections of any law in this state
relating to investigations and interrogations of government
employees, including Chapter 143, Local Government Code, and
affirms the same privileges and protections to members of the
public at an on-the-scene investigation, including an
investigation of an officer involved in shooting, display of
weapon, or use-of-force incidents.
(b) The district complaint office in the applicable area
shall be notified by the appropriate governmental entity of all
officers involved in a shooting, display of weapon, or use-of-force
incident. The district complaint office must be notified of the
need for an immediate investigation in the same manner and at the
same time as the district attorney.
(c) The subject of an investigation need not be informed of
the investigation during the following special circumstances:
(1) a criminal investigation initiated as a result of
the complaint; or
(2) an investigation in which the disclosure of
information concerning the name of the complainant, investigator,
investigative team, interrogator, or matters under investigation
would hinder the investigation.
(d) A commissioner, a director, or an investigator of a
district complaint office may conduct an interrogation of a
firefighter, police officer, or other government employee based on
a complaint if the complainant does not verify the complaint in
writing before a public officer who is authorized by law to take
statements under oath.
(e) This section does not apply to an on-the-scene
investigation that occurs immediately after an incident being
investigated if the limitations of this section would unreasonably
hinder the essential purpose of the investigation or interrogation.
If the limitation would hinder the investigation or interrogation,
the firefighter, police officer, or other government employee under
investigation must be provided, as soon as practicable, but not
later than the 30th day after the date a complaint is received by
the commission or a district complaint office, a written statement
of the nature of the investigation, the name of each complaining
party, and a copy of the complaint, affidavit, or statement.
Sec. 422.256. RELATION TO OTHER CIVILIAN COMPLAINT BOARDS;
FUNDING. The commission shall investigate and propose measures to
replace existing civilian complaint boards, offices, or
departments in other governmental entities in this state.
Sec. 422.257. SUBPOENAS. (a) A commissioner or a director
may issue a subpoena to compel the attendance of a witness or the
production of documents. The subpoena must relate to a matter under
investigation by the commission or a district complaint office.
(b) If a person refuses to obey a subpoena issued under this
section, the commission or a director may apply to a court for an
order requiring that the person obey the subpoena.
[Sections 422.258-422.300 reserved for expansion]
SUBCHAPTER G. DISTRICT COMPLAINT OFFICES
Sec. 422.301. ESTABLISHMENT OF CIVILIAN OVERSIGHT DISTRICT
COMPLAINT OFFICES; MEETINGS. (a) To exercise its powers under this
chapter, the commission shall establish civilian oversight
district complaint offices throughout the state in counties or
municipalities to investigate complaints filed under this chapter.
(b) When establishing a district complaint office under
this section, the commission shall determine the geographical area
over which the office has jurisdiction.
Sec. 422.302. JURISDICTION FOR CERTAIN COMPLAINTS. A
district complaint office has jurisdiction to investigate a
complaint in its geographical area that alleges misconduct
described by Section 422.251.
Sec. 422.303. DIRECTOR RESPONSIBILITIES. A director shall
increase and maintain the effectiveness, efficiency, reliability,
and accuracy of investigations, reports, court actions, discipline
judgments, and other recommendations related to the director's
district complaint office.
Sec. 422.304. PROCEDURES. (a) A district complaint
office, including the director of that office, shall follow all
rules and procedures established by the commission under this
chapter, including rules that describe:
(1) how investigations are to be conducted;
(2) how recommendations are made;
(3) what actions must be taken; and
(4) the manner in which the public or a government
employee is to be informed of the status of the person's complaint.
(b) A director may establish other procedures for the
director's district complaint office concerning the conduct of
office meetings, investigations, and other general affairs.
(c) A director may establish additional procedures that
describe:
(1) how investigations are to be conducted;
(2) how recommendations are made; and
(3) what actions must be taken.
Sec. 422.305. DISTRICT COMPLAINT OFFICE MEETINGS. A
district complaint office may hold meetings at any place in the area
over which it has jurisdiction. The office may hold meetings as
necessary to carry out its duties.
Sec. 422.306. JURISDICTION FOR OTHER MISCONDUCT. If an
investigation under this chapter uncovers misconduct other than
that described by Section 422.251, the office may refer that part of
the investigation to the appropriate governmental entity for
investigation and action related to the other misconduct.
Sec. 422.307. FORWARDING OF COMPLAINTS TO DISTRICT
COMPLAINT OFFICES. (a) The commission shall forward each
complaint that it receives to the district complaint office with
jurisdiction over the area where the complaint originated.
(b) If a district complaint office receives a complaint that
is not in the area covered by that office, the office shall forward
the complaint to the district complaint office with jurisdiction
over the area where the complaint originated.
(c) If a district complaint office with jurisdiction over
the area where the complaint originated does not exist, the
commission or district complaint office that received the complaint
shall dismiss the complaint and inform the person who made the
complaint of this fact.
Sec. 422.308. DISMISSAL OF COMPLAINT; GROUNDS FOR CLOSING
INVESTIGATION. A district complaint office may dismiss a complaint
and close an investigation without reaching a final determination
when:
(1) the district complaint office is unable to obtain
a primary statement from the person who filed the complaint or the
alleged victim; or
(2) the person who filed the complaint or the alleged
victim asks the office to withdraw the complaint.
Sec. 422.309. ANNUAL REPORTS. Each district complaint
office shall annually report to the commission:
(1) a description of the activities and a summary of
the actions of the district complaint office; and
(2) financial information regarding the district
complaint office's wages and operating expenses.
Sec. 422.310. ADDITIONAL OVERSIGHT OF DISTRICT COMPLAINT
OFFICES; STANDARDS. (a) The commission and directors shall ensure
that investigations by district complaint offices are performed in
accordance with the highest standards practicable.
(b) To meet its duties under Subsection (a), the commission
shall establish and enforce minimum standards and qualifications
for district complaint office directors and other district
personnel determined to be necessary and appropriate.
(c) The director shall enforce standards and qualifications
regarding the investigation of complaints established under this
chapter in the geographical area assigned to that director's
district complaint office.
Sec. 422.311. COMMISSIONER AUTHORITY LIMITED. Except as
delegated or authorized by this chapter, a commissioner has no
authority to individually control or direct the actions of district
complaint offices.
[Sections 422.312-422.350 reserved for expansion]
SUBCHAPTER H. INVESTIGATIVE TEAMS AND INVESTIGATIONS
Sec. 422.351. ASSIGNMENT OF INVESTIGATORS; ELIGIBILITY.
(a) Not later than one day after a district complaint office
receives a complaint over which it has jurisdiction, the director
shall assign an investigative manager to the complaint.
(b) A person may not be assigned as an investigator or
member of an investigative team under this section if the person:
(1) filed the complaint to be investigated; or
(2) has any personal involvement regarding the alleged
misconduct that is the subject of the complaint.
Sec. 422.352. INVESTIGATIVE TEAM COMPOSITION; ASSIGNMENT.
(a) A director shall establish procedures that provide for the
establishment of investigative teams.
(b) A director may assign an investigative team to any
complaint. A director shall assign an investigative team to any
complaint involving:
(1) abuse of authority;
(2) excessive use of force;
(3) serious bodily injury or death;
(4) obstruction of justice; or
(5) misrepresentation of the facts relating to
disputed events and circumstances.
(c) Each investigative team must consist of five district
complaint office employees as follows:
(1) one manager;
(2) one attorney;
(3) one secretary; and
(4) two investigators.
(d) The secretary shall record the case.
(e) The manager shall:
(1) examine carefully each investigative report to
ensure that all possible efforts have been made to resolve the
complaint;
(2) make objective determinations on the merits of
each case; and
(3) recommend disciplinary actions that are fair and
appropriate, if the investigative findings show that misconduct
occurred.
(f) The attorney shall:
(1) review the investigative reports;
(2) advise the team on legal matters; and
(3) initiate court action, if necessary, when approved
by the director.
(g) One investigator will be assigned as lead investigator
responsible for complying with Section 422.353.
Sec. 422.353. INVESTIGATIVE TEAM RESPONSIBILITIES. (a)
The investigator or investigative team shall provide to the person
filing the complaint a copy of the district complaint office's
policies and procedures relating to complaint investigation and
resolution.
(b) The investigative team shall fully investigate the
complaint and recommend actions to the director regarding the
complaint.
(c) The investigative team, by majority vote, may ask the
director to compel the attendance of witnesses and require the
production of records and other materials necessary to investigate
the complaint.
Sec. 422.354. INVESTIGATIVE TEAM FINDINGS. After an
investigation, an investigative team shall notify the director of
the findings and actions recommended by the investigative team and
the basis for the findings and recommendations.
Sec. 422.355. INVESTIGATION SCHEDULE; DUTIES. (a) A
director shall establish a schedule for investigators who will be
assigned to on-the-scene investigations, including an
investigation of an officer involved in shooting, display of
weapon, or use-of-force incidents.
(b) The assigned investigator shall dispatch to the scene
and notify members of the public and other witnesses at the scene of
their rights under this chapter.
Sec. 422.356. RIGHTS OF PERSONS BEING INVESTIGATED. (a) A
person who is the subject of an investigation is entitled to be
informed, on request, of the identities of each investigator
participating in the investigation.
(b) Not later than the 30th day after the date a complaint is
received by the district complaint office responsible for
investigating the complaint, the investigator or investigative
team shall:
(1) provide to the person who is the subject of the
complaint a copy of the district complaint office's policies and
procedures relating to complaint investigation and resolution; and
(2) except as provided by Section 422.255(c), inform
the person in writing of the nature of the complaint.
Sec. 422.357. COOPERATION OF OTHER GOVERNMENTAL ENTITIES
AND RELATED PERSONS. (a) Each person who is a governmental entity
and any business, nonprofit organization, or other group that acts
on behalf of a governmental entity under a contract with the
governmental entity shall:
(1) provide any assistance that a director, an
investigative team, or an investigator of a district complaint
office may reasonably request;
(2) cooperate fully with investigations under this
chapter;
(3) provide investigators upon request records and
other materials necessary for the investigation of complaints under
this chapter; and
(4) ensure that employees appear and respond to
district complaint office investigators regarding complaints filed
under this chapter.
(b) If the director submits to the governmental entity a
finding or recommendation regarding that entity's policies and
practices or a determination regarding an employee of that entity,
the governmental entity shall report to the district complaint
office's complaint officer any action taken in relation to that
finding, recommendation, or determination.
(c) This section does not limit the governmental entity's
authority to discipline its own employees.
(d) This section may not be construed to prevent or hinder
the investigation or prosecution of a person for a violation of law
by a court, a grand jury, an attorney representing the state, or
other authorized officer or entity.
Sec. 422.358. FINAL WRITTEN REPORT. The lead investigator
assigned to a complaint shall make a final written report that
evaluates the available evidence and makes recommendations to the
investigative team as to how the complaint should be resolved. The
investigator shall provide a copy of the report to the team members
and the director.
Sec. 422.359. COMPLAINT DETERMINATIONS AFTER
INVESTIGATION. (a) After an investigation under this chapter, a
director shall make a determination on each complaint that has not
been dismissed under this chapter. Except as provided by
Subsection (b), the determination for each allegation in the
complaint must be:
(1) exonerated;
(2) substantiated;
(3) unfounded; or
(4) unsubstantiated.
(b) The director must determine that "the person complained
about remains unidentified" if the person's identity has not been
discovered after 18 months of investigation.
(c) In this section, a "substantiated" determination means
that a preponderance of the evidence shows that the person who is
the subject of the complaint committed the alleged misconduct.
After making this determination, the director may:
(1) recommend appropriate disciplinary action to the
employer of the person; or
(2) begin legal action against the person.
(d) In this section, an "exonerated" determination means
that a preponderance of the evidence shows that the person who is
the subject of the complaint engaged in the actions alleged in the
complaint but that the actions were not misconduct because the
person's actions were lawful and proper.
(e) In this section, an "unfounded" determination means
that a preponderance of the evidence shows that the person who is
the subject of the complaint did not commit the alleged misconduct.
(f) In this section, an "unsubstantiated" determination
means that the available evidence was insufficient to reach a
determination on a preponderance of the evidence of substantiated,
exonerated, or unfounded.
(g) The director shall notify the person who filed the
complaint and each person who is the subject of the complaint of
the case determination and any further action, including legal
action, to be taken. The director shall also notify the employer of
a person who is the subject of the complaint.
Sec. 422.360. COMPLAINT OFFICER; ENFORCEMENT. (a) The
director shall hire at least one complaint officer.
(b) After a determination is made under this subchapter, the
director shall designate a complaint officer to ensure that the
appropriate discipline and recommendations of the director,
investigative teams, or investigators are administered and
enforced at the location that employs the person who is the subject
of the complaint.
[Sections 422.361-422.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEEDINGS
Sec. 422.401. APPLICABILITY OF SUBCHAPTER. This
subchapter applies only to government employees to which this
chapter applies, as provided by Section 422.003.
Sec. 422.402. COMMISSION ACTION. The commission may
initiate disciplinary action against a government employee
according to rules established by the commission under this
chapter.
Sec. 422.403. RULES REGARDING PENALTIES FOR MISCONDUCT.
(a) The commission shall adopt rules regarding penalties for
misconduct described by Section 422.251, including rules
prescribing cause for removal or suspension of a government
employee.
(b) A commission rule prescribing cause for removal or
suspension of a government employee is not valid unless it involves
one or more of the following grounds:
(1) conviction of a felony or other crime involving
moral turpitude;
(2) violations of a municipal charter provision;
(3) acts of incompetence;
(4) neglect of duty;
(5) discourtesy to the public or to a fellow employee
while the employee is performing governmental duties;
(6) acts showing lack of good moral character;
(7) drinking alcohol while on duty or intoxication
while off duty;
(8) conduct prejudicial to good order;
(9) refusal or neglect to pay just debts;
(10) absence without leave;
(11) shirking duty or cowardice during a fire, if
applicable; or
(12) violation of a rule or order.
Sec. 422.404. ADMINISTRATIVE SANCTIONS. The commission may
impose penalties for misconduct proved under this chapter,
including:
(1) probation;
(2) demotion;
(3) dismissal;
(4) referral of the allegations of ethical misconduct
to the appropriate authority;
(5) loss of pension or other retirement benefits;
(6) suspension from employment;
(7) referral of the allegations, if appropriate, to
civil courts; and
(8) referral of the allegations, if appropriate, to a
grand jury for possible criminal prosecution.
Sec. 422.405. CERTAIN HEARINGS EXAMINER STATUTES NOT
APPLICABLE. Sections 143.057 and 143.1016, Local Government Code,
do not apply to a disciplinary action in a county or municipality
if:
(1) a district complaint office is established in that
county or municipality; and
(2) the district complaint office determines that the
application of Section 143.057 or 143.1016, Local Government Code,
would impair the efficient operation of the commission or the
district complaint office.
Sec. 422.406. BURDEN OF PROOF. An allegation of misconduct
in a disciplinary proceeding under this subchapter must be proved
by a preponderance of the evidence before a sanction may be imposed
under Section 422.404.
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Articles 2.01 and 2.02, Code of Criminal
Procedure, are amended to read as follows:
Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district
attorney shall represent the State in all criminal cases in the
district courts of his district and in appeals therefrom, except in
cases where he has been, before his election, employed adversely,
and except in a criminal case when the State is represented by an
attorney representing the Civilian Oversight Commission, including
a district complaint office under the Civilian Oversight
Commission. When any criminal proceeding is had before an
examining court in his district or before a judge upon habeas
corpus, and he is notified of the same, and is at the time within his
district, he shall represent the State therein, unless prevented by
other official duties, or unless the State is represented by an
attorney representing the Civilian Oversight Commission, including
a district complaint office under the Civilian Oversight
Commission. It shall be the primary duty of all prosecuting
attorneys, including any special prosecutors, not to convict, but
to see that justice is done. They shall not suppress facts or
secrete witnesses capable of establishing the innocence of the
accused.
Art. 2.02. DUTIES OF COUNTY ATTORNEYS. The county attorney
shall attend the terms of court in his county below the grade of
district court, and shall represent the State in all criminal cases
under examination or prosecution in said county; and in the absence
of the district attorney he shall represent the State alone and,
when requested, shall aid the district attorney in the prosecution
of any case in behalf of the State in the district court, except in a
case when the State is represented by an attorney representing the
Civilian Oversight Commission, including a district complaint
office under the Civilian Oversight Commission. The county
attorney [He] shall represent the State in cases he has prosecuted
which are appealed.
SECTION 2.02. Article 2.06, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.06. MAY ADMINISTER OATHS. The following [For the
purpose mentioned in the two preceding Articles, district and
county] attorneys are authorized to administer oaths:
(1) district and county attorneys, for a purpose
mentioned in the two preceding articles; and
(2) attorneys representing the Civilian Oversight
Commission, including a district complaint office under the
Civilian Oversight Commission.
SECTION 2.03. Article 20.02, Code of Criminal Procedure, is
amended by adding Subsection (h) to read as follows:
(h) The Civilian Oversight Commission or a district
complaint office under the Civilian Oversight Commission that is
responsible for investigating the actions or misconduct of a
government employee in relation to the employee's employment may
petition the court for an order permitting disclosure of all
evidence obtained during a grand jury proceeding to assist the
Civilian Oversight Commission and district complaint office in the
performance of their duties. A person who receives information
under this subsection and discloses the information for purposes
other than those permitted by this subsection is subject to
punishment for contempt in the same manner as persons who violate
Subsection (b).
SECTION 2.04. Article 20.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 20.03. ATTORNEY REPRESENTING STATE ENTITLED TO APPEAR.
"The attorney representing the State" means the Attorney General,
district attorney, criminal district attorney, [or] county
attorney, or an attorney representing the Civilian Oversight
Commission, including a district complaint office under the
Civilian Oversight Commission. The attorney representing the
State[,] is entitled to go before the grand jury and inform them of
offenses liable to indictment at any time except when they are
discussing the propriety of finding an indictment or voting upon
the same.
SECTION 2.05. Section 52.092(c), Election Code, is amended
to read as follows:
(c) Statewide offices of the state government shall be
listed in the following order:
(1) governor;
(2) lieutenant governor;
(3) attorney general;
(4) comptroller of public accounts;
(5) commissioner of the General Land Office;
(6) commissioner of agriculture;
(7) railroad commissioner;
(8) chief justice, supreme court;
(9) justice, supreme court;
(10) presiding judge, court of criminal appeals;
(11) judge, court of criminal appeals;
(12) commissioner of the Civilian Oversight
Commission.
SECTION 2.06. Sections 143.1214(a) and (b), Local
Government Code, are amended to read as follows:
(a) The human resources director for the department
promptly shall order that the records of a disciplinary action that
was taken against a fire fighter or police officer be expunged from
each file maintained on the fire fighter or police officer by the
department if the disciplinary action was entirely overturned on
appeal by the commission, an independent third-party hearing
examiner, the Civilian Oversight Commission or a district complaint
office under the Civilian Oversight Commission, or a court of
competent jurisdiction. Documents that must be expunged under this
subsection include all documents that indicate disciplinary action
was recommended or taken against the fire fighter or police
officer, such as the recommendations of a disciplinary committee or
a letter of suspension. This subsection does not apply if the fire
fighter or police officer is charged with using excessive force
that results in a death or injury and the charge is being
investigated by a law enforcement or criminal justice agency other
than the department. This subsection does not require that records
of the internal affairs division be expunged.
(b) The department shall maintain an investigatory file
that relates to a disciplinary action against a fire fighter or
police officer that was overturned on appeal, or any document in the
possession of the department that relates to a charge of misconduct
against a fire fighter or police officer, regardless of whether the
charge is sustained, only in a file created by the department for
the department's use. The department may only release information
in those investigatory files or documents relating to a charge of
misconduct:
(1) to another law enforcement agency or fire
department;
(2) to the office of a district or United States
attorney;
(3) to the Civilian Oversight Commission or a district
complaint office under the Civilian Oversight Commission; or
(4) [(3)] in accordance with Subsection (c).
SECTION 2.07. Section 143.123(f), Local Government Code, is
amended to read as follows:
(f) Before an investigator may interrogate a fire fighter or
police officer who is the subject of an investigation, the
investigator must inform the fire fighter or police officer in
writing of the nature of the investigation and the name of each
person who complained about the fire fighter or police officer
concerning the matters under investigation, unless a criminal
investigation has been initiated as a result of the complaint or
unless the disclosure of information concerning matters under
investigation or concerning the name of the complainant, the
investigator, a member of an investigative team, or the
interrogator would hinder the investigation. An investigator may
not conduct an interrogation of a fire fighter or police officer
based on a complaint by a complainant who is not a peace officer
unless the complainant verifies the complaint in writing before a
public officer who is authorized by law to take statements under
oath or unless the complaint is filed with the Civilian Oversight
Commission or a district complaint office under the Civilian
Oversight Commission. In an investigation authorized under this
subsection, an investigator may interrogate a fire fighter or
police officer about events or conduct reported by a witness who is
not a complainant without disclosing the name of the witness. Not
later than the 48th hour before the hour on which an investigator
begins to interrogate a fire fighter or police officer regarding an
allegation based on a complaint, affidavit, or statement, the
investigator shall give the fire fighter or police officer a copy of
the affidavit, complaint, or statement. An interrogation may be
based on a complaint from an anonymous complainant if the
departmental employee receiving the anonymous complaint certifies
in writing, under oath, that the complaint was anonymous. This
subsection does not apply to an on-the-scene investigation that
occurs immediately after an incident being investigated if the
limitations of this subsection would unreasonably hinder the
essential purpose of the investigation or interrogation. If the
limitation would hinder the investigation or interrogation, the
fire fighter or police officer under investigation must be
furnished, as soon as practicable or not later than the 30th day
after the date a complaint is received by the Civilian Oversight
Commission or a district complaint office under the Civilian
Oversight Commission, a written statement of the nature of the
investigation, the name of each complaining party, and the
complaint, affidavit, or statement.
SECTION 2.08. Section 143.312, Local Government Code, is
amended by amending Subsection (g) and adding Subsection (m) to
read as follows:
(g) Not less than 48 hours before an investigator begins the
initial interrogation of a fire fighter or police officer who is the
subject of an investigation, the investigator must inform the fire
fighter or police officer in writing of the allegations in the
complaint. An investigator may not interrogate a fire fighter or
police officer based on a complaint by a complainant who is not a
fire fighter or police officer unless the complainant verifies the
complaint in writing before a public officer who is authorized by
law to take statements under oath or unless the complaint is filed
with the Civilian Oversight Commission or a district complaint
office under the Civilian Oversight Commission. In an
investigation under this subsection, an investigator may
interrogate a fire fighter or police officer about events or
conduct reported by a witness who is not a complainant without
disclosing the name of the witness. An interrogation may be based
on a complaint from an anonymous complainant if the departmental
employee receiving the anonymous complaint certifies in writing,
under oath, that the complaint was anonymous. This subsection does
not apply to an on-the-scene investigation that occurs immediately
after an incident being investigated, except that the fire fighter
or police officer under investigation must be furnished, as soon as
practicable or not later than the 30th day after the date a
complaint is received by the Civilian Oversight Commission or a
district complaint office under the Civilian Oversight Commission,
a written statement of the allegations in the complaint.
(m) An investigator is not required to inform the fire
fighter or police officer of the name of the person who complained
about the fire fighter or police officer if a criminal
investigation has been initiated as a result of the complaint or the
disclosure of information concerning matters under investigation
or concerning the name of the complainant, the investigator, a
member of an investigative team, or the interrogator would hinder
the investigation.
ARTICLE 3. TRANSITION; EFFECTIVE DATE
SECTION 3.01. The initial election for members of the
Civilian Oversight Commission shall be held as provided by Section
422.052, Government Code, as added by this Act, on November 7, 2006.
The initial commissioners elected under that section shall draw
lots to stagger their terms at two, four, and six years.
SECTION 3.02. Not later than February 1, 2007, the Civilian
Oversight Commission shall establish at least five initial district
complaint offices under Section 422.301, Government Code, as added
by this Act. The initial district complaint offices must be in a
county or municipality with a population of at least one million.
SECTION 3.03. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2005.