By: Harper-Brown, Merritt H.B. No. 3389

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas Commission on Law Enforcement Officer Standards and Education.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1701.002, Occupations Code, is amended to read as follows:

Sec. 1701.002. APPLICATION OF SUNSET ACT. The Commission on Law Enforcement Officer Standards and Education is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2021 [2009].

SECTION 2. Section 1701.053, Occupations Code, is amended to read as follows:

Sec. 1701.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a [nonprofit,] cooperative[,] and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b) A person [An officer, employee, or paid consultant of a Texas trade association in the field of law enforcement] may not be a commission member and may not be an employee of the commission employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if:

(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of law enforcement or county corrections; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of law enforcement or county corrections [who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule].

(c) [A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of law enforcement may not be a commission member and may not be an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

[(d)] A person may not be [serve as] a member of the commission or act as the general counsel to the commission or the agency if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the commission's operation.

SECTION 3. Section 1701.056(a), Occupations Code, is amended to read as follows:

(a) It is a ground for removal from the commission that a member:

(1) does not have at the time of taking office [appointment] the qualifications required by Section 1701.051(a) or 1701.052;

(2) does not maintain during service on the commission the qualifications required by Section 1701.051(a) or 1701.052;

(3) is ineligible for membership under [violates a prohibition established by] Section 1701.053;

(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the commission.

SECTION 4. Section 1701.059, Occupations Code, is amended to read as follows:

Sec. 1701.059. TRAINING. (a) A [To be eligible to take office as a member of the commission, a] person who is 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 [must complete at least one course of] a training program that complies with this section.

(b) The training program must [shall] provide the person with information [to a member] regarding:

(1) the legislation that created the commission;

(2) the programs, functions, rules, and budget of the commission [this chapter];

(3) [(2)] the results of the most recent formal audit of [programs operated by] the commission;

(4) [(3)] the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest [role and functions of the commission]; and

[(4) the rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority;]

(5) [the current budget for the commission;

[(6) the results of the most recent formal audit of the commission;

[(7) the requirements of Chapters 551, 552, and 2001, Government Code;

[(8) the requirements of the conflict of interest laws and other laws relating to public officials; and

[(9)] any applicable ethics policies adopted by the commission or the Texas Ethics Commission.

(c) A person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for 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[, as provided by the General Appropriations Act, as if the person were a member of the commission].

SECTION 5. Section 1701.153(b), Occupations Code, is amended to read as follows:

(b) The commission shall furnish each agency and licensed training school with the required reporting forms, including access to electronic submission forms when the system under Section 1701.1523 is established.

SECTION 6. Sections 1701.157(b) and (c), Occupations Code, are amended to read as follows:

(b) To provide the necessary information for an allocation of money under Subsection (a), a [Not later than November 1 of each calendar year, each] local law enforcement agency must [shall] report to the comptroller not later than November 1 of the preceding calendar year:

(1) the number of agency positions described by Subsection (a)(2) reserved as of January 1 of the [that] year the report is due;

(2) the number of agency positions described by Subsection (a)(2) filled as of January 1 of the year the report is due;

(3) the percentage of the money received by the agency under Subsection (a) pursuant to the allocation made by the comptroller on or before March 1 of the year preceding the year in which the report is due that was used by the agency before the date of the allocation made by the comptroller under Subsection (a) on or before March 1 of the year the report is due;

(4) the number of training hours received during the 12-month or approximately 12-month period described by Subdivision (3) that were funded by money received by the agency pursuant to the allocation made by the comptroller on or before March 1 of the year preceding the year in which the report is due; and

(5) that the agency has complied with the requirements of this section regarding the use of any money received by the agency pursuant to the allocation made by the comptroller on or before March 1 of the year preceding the year in which the report is due.

(c) The head of a law enforcement agency shall maintain a complete and detailed [written] record of money received and spent by the agency under this section. Money received under this section is subject to audit by the comptroller. Money spent under this section is subject to audit by the state auditor.

SECTION 7. Subchapter D, Chapter 1701, Occupations Code, is amended by adding Sections 1701.1521, 1701.1522, 1701.1523, 1701.1524, 1701.162, and 1701.163 to read as follows:

Sec. 1701.1521. 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 on the Internet.

Sec. 1701.1522. ALTERNATIVE DISPUTE RESOLUTION. (a) The commission shall develop and implement a policy to encourage the use of:

(1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of commission rules; and

(2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, 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 a 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 those procedures, as implemented by the commission.

Sec. 1701.1523. ELECTRONIC SUBMISSION OF FORMS, DATA, AND DOCUMENTS. The commission by rule shall:

(1) develop and establish a system for the electronic submission of forms, data, and documents required to be submitted to the commission under this chapter; and

(2) once that system is established, require law enforcement agencies to submit to the commission electronically any form, data, or document required to be submitted to the commission under this chapter.

Sec. 1701.1524. RULES RELATING TO CONSEQUENCES OF CRIMINAL CONVICTION OR DEFERRED ADJUDICATION. (a) The commission by rule shall establish guidelines consistent with this chapter that are necessary to comply with Chapter 53 to the extent that chapter applies to persons licensed under this chapter.

(b) In its rules under this section, the commission shall list the offenses for which a conviction would constitute grounds for the commission to take action under Section 53.021 or for which placement on deferred adjudication community supervision would constitute grounds for the commission to take action under this chapter.

Sec. 1701.162. RECORDS AND AUDIT REQUIREMENTS. (a) The commission is entitled to access records maintained under Sections 1701.303, 1701.306, and 1701.310 by an agency hiring a person to be an officer or county jailer, including records that relate to age, education, physical standards, citizenship, experience, and other matters relating to competence and reliability, as evidence of qualification for licensing of an officer or county jailer.

(b) The commission shall audit the records described by Subsection (a) of each law enforcement agency at least once every five years.

(c) The commission by rule shall develop and establish a framework for the audits conducted by the commission under Subsection (b) that:

(1) addresses the types of documents subject to audit;

(2) provides a schedule for additional risk-based inspections based on:

(A) whether there has been a prior violation by the law enforcement agency;

(B) the inspection history of the agency; and

(C) any other factor the commission by rule considers appropriate;

(3) provides timelines for complying with an audit request or correcting a violation found during the audit process; and

(4) establishes sanctions for failing to comply with an audit request or to correct a violation found during the audit process.

Sec. 1701.163. INFORMATION PROVIDED BY COMMISSIONING ENTITIES. (a) This section applies only to an entity authorized by statute or by the constitution to create a law enforcement agency or police department and commission, appoint, or employ officers that first creates a law enforcement agency or police department and first begins to commission, appoint, or employ officers on or after September 1, 2009.

(b) The entity shall submit to the commission on creation of the law enforcement agency or police department information regarding:

(1) the need for the law enforcement agency or police department in the community;

(2) the funding sources for the law enforcement agency or police department;

(3) the physical resources available to officers;

(4) the physical facilities that the law enforcement agency or police department will operate, including descriptions of the evidence room, dispatch area, and public area;

(5) law enforcement policies of the law enforcement agency or police department, including policies on:

(A) use of force;

(B) vehicle pursuit;

(C) professional conduct of officers;

(D) domestic abuse protocols;

(E) response to missing persons;

(F) supervision of part-time officers; and

(G) impartial policing;

(6) the administrative structure of the law enforcement agency or police department;

(7) liability insurance; and

(8) any other information the commission requires by rule.

SECTION 8. Subchapter D, Chapter 1701, Occupations Code, is amended by adding Section 1701.164 to read as follows:

Sec. 1701.164. COLLECTION OF INFORMATION REGARDING RACIAL PROFILING. The commission shall collect and maintain information submitted to the commission under Article 2.134, Code of Criminal Procedure.

SECTION 9. Section 1701.202, Occupations Code, is amended to read as follows:

Sec. 1701.202. COMPLAINTS. (a) The commission by rule shall establish a comprehensive procedure for each phase of the commission's jurisdictional complaint enforcement process, including:

(1) complaint intake;

(2) investigation;

(3) adjudication and relevant hearings;

(4) appeals;

(5) the imposition of sanctions; and

(6) public disclosure.

(b) On request, a license holder may obtain information regarding a complaint made against the license holder under this chapter, including a complete copy of the complaint file. On receipt of a request under this subsection, the commission shall provide the requested information in a timely manner to allow the license holder time to respond to the complaint.

(c) The commission shall ensure that detailed information regarding the commission's complaint enforcement process described by this section is available on any publicly accessible Internet website and in any appropriate printed materials maintained by the commission [provide the commission's policies and procedures relating to complaint investigation and resolution to a person filing a complaint and to each person that is the subject of the complaint].

SECTION 10. Section 1701.203, Occupations Code, is amended to read as follows:

Sec. 1701.203. RECORDS OF COMPLAINTS. (a) The commission shall maintain a system to promptly and efficiently act on complaints filed with the commission. The commission shall maintain [keep an] information [file] about parties to the complaint, [each written complaint filed with the commission that the commission has authority to resolve. The information file must include:

[(1) the date the complaint is received;

[(2) the name of the complainant;

[(3)] the subject matter of the complaint,[;

[(4) a record of each person contacted in relation to the complaint;

[(5)] a summary of the results of the review or investigation of the complaint, and its disposition[; and

[(6) an explanation of the reason that a complaint was closed without action by the commission].

(b) The commission shall make information available describing its procedures for complaint investigation and resolution.

(c) The commission[, at least quarterly and until final disposition of the complaint,] shall periodically notify the parties to the complaint of the status of the complaint until final disposition [unless the notice would jeopardize an undercover investigation].

SECTION 11. Subchapter E, Chapter 1701, Occupations Code, is amended by adding Section 1701.2035 to read as follows:

Sec. 1701.2035. TRACKING AND ANALYSIS OF COMPLAINT AND VIOLATION DATA. (a) The commission shall develop and implement a method for:

(1) tracking complaints filed with the commission through their final disposition, including:

(A) the reason for each complaint;

(B) how each complaint was resolved; and

(C) the subject matter of each complaint that was not within the jurisdiction of the commission and how the commission responded to the complaint; and

(2) tracking and categorizing the sources and types of complaints filed with the commission and of violations of this chapter or a rule adopted under this chapter.

(b) The commission shall analyze the complaint and violation data maintained under Subsection (a) to identify trends and areas that may require additional regulation or enforcement.

SECTION 12. Section 1701.253, Occupations Code, is amended by adding Subsection (k) to read as follows:

(k) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program for officers licensed under this chapter that covers the laws of this state and of the United States pertaining to peace officers.

SECTION 13. Section 1701.254, Occupations Code, is amended by adding Subsection (d) to read as follows:

(d) The commission by rule shall establish a system for placing a training provider on at-risk probationary status. The rules must prescribe:

(1) the criteria to be used by the commission in determining whether to place a training provider on at-risk probationary status;

(2) a procedure and timeline for imposing corrective conditions on a training provider placed on at-risk probationary status and for notifying the provider regarding those conditions; and

(3) a procedure for tracking a training provider's progress toward compliance with any corrective conditions imposed on the provider by the commission under this subsection.

SECTION 14. Section 1701.255(c), Occupations Code, is amended to read as follows:

(c) A person may not enroll in a peace officer training program under Section 1701.251(a) unless the person has received:

(1) a high school diploma;

(2) a high school equivalency certificate [and has completed at least 12 hours at an institution of higher education with at least a 2.0 grade point average on a 4.0 scale]; or

(3) an honorable discharge from the armed forces of the United States after at least 24 months of active duty service.

SECTION 15. Subchapter G, Chapter 1701, Occupations Code, is amended by adding Section 1701.3095 to read as follows:

Sec. 1701.3095. EDUCATION REQUIREMENT. The commission by rule shall require a person who has obtained a high school equivalency certificate (GED) but does not hold a high school diploma to complete at least 12 hours of study at an accredited college or university as a prerequisite to obtaining a license as a peace officer.

SECTION 16. Section 1701.351, Occupations Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) As part of the continuing education programs under Subsection (a), a peace officer must complete a training and education program that covers recent changes to the laws of this state and of the United States pertaining to peace officers.

SECTION 17. Section 1701.352, Occupations Code, is amended by amending Subsection (b) and adding Subsection (g) to read as follows:

(b) The commission shall require a state, county, special district, or municipal agency that appoints or employs peace officers to provide each peace officer with a training program at least once every 48 months that is approved by the commission and consists of:

(1) topics selected by the agency; and

(2) for an officer holding only a basic proficiency certificate, not more than 20 hours of education and training that contain curricula incorporating the learning objectives developed by the commission regarding:

(A) civil rights, racial sensitivity, and cultural diversity; [and]

(B) de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments; and

(C) unless determined by the agency head to be inconsistent with the officer's assigned duties:

(i) the recognition and documentation of cases that involve child abuse or neglect, family violence, and sexual assault; and

(ii) issues concerning sex offender characteristics.

(g) The training and education program on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments under Subsection (b)(2)(B) may not be provided as an online course. The commission shall:

(1) determine best practices for interacting with persons with mental impairments, in consultation with the Bill Blackwood Law Enforcement Management Institute of Texas; and

(2) review the education and training program under Subsection (b)(2)(B) at least once every 24 months.

SECTION 18. Section 1701.402, Occupations Code, is amended by adding Subsections (h) and (i) to read as follows:

(h) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on investigative topics established by the commission under Section 1701.253(b).

(i) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on civil rights, racial sensitivity, and cultural diversity established by the commission under Section 1701.253(c).

SECTION 19. Section 1701.355(a), Occupations Code, is amended to read as follows:

(a) An agency that employs one or more [at least two] peace officers shall designate a firearms proficiency officer and require each peace officer the agency employs to demonstrate weapons proficiency to the firearms proficiency officer at least annually. The agency shall maintain records of the weapons proficiency of the agency's peace officers.

SECTION 20. Sections 1701.451(a), (b), and (c), Occupations Code, are amended to read as follows:

(a) Before a law enforcement agency may hire a person licensed under this chapter, the agency head or the agency head's designee must:

(1) make a [written] request to the commission for any employment termination report regarding the person that is maintained by the commission under this subchapter; and

(2) submit to the commission on the form prescribed by the commission confirmation that the agency:

(A) conducted in the manner prescribed by the commission a criminal background check regarding the person;

(B) obtained the person's written consent on a form prescribed by the commission for the agency to view the person's employment records;

(C) obtained from the commission any service or education records regarding the person maintained by the commission; and

(D) contacted each of the person's previous law enforcement employers.

(b) The commission by rule shall establish a system for verifying an electronically submitted [The written] request required by Subsection (a)(1) [must be on the agency's letterhead and be signed by the agency head or the agency head's designee].

(c) If the commission receives from a law enforcement agency a [written] request that complies with Subsections (a)(1) and (b), the commission employee having the responsibility to maintain any employment termination report regarding the person who is the subject of the request shall release the report to the agency.

SECTION 21. Section 1701.4525, Occupations Code, is amended by adding Subsection (g) to read as follows:

(g) The commission is not considered a party in a proceeding conducted by the State Office of Administrative Hearings under this section.

SECTION 22. Section 1701.453, Occupations Code, is amended to read as follows:

Sec. 1701.453. MAINTENANCE OF REPORTS AND STATEMENTS. The commission shall maintain a copy of each report and [written] statement submitted to the commission under this subchapter until at least the 10th anniversary of the date on which the report or statement is submitted.

SECTION 23. Subchapter K, Chapter 1701, Occupations Code, is amended by adding Section 1701.507 to read as follows:

Sec. 1701.507. ADMINISTRATIVE PENALTIES. (a) In addition to other penalties imposed by law, a person who violates this chapter or a rule adopted under this chapter is subject to an administrative penalty in an amount set by the commission not to exceed $1,000 per day per violation. The administrative penalty shall be assessed in a proceeding conducted in accordance with Chapter 2001, Government Code.

(b) The amount of the penalty shall be based on:

(1) the seriousness of the violation;

(2) the respondent's history of violations;

(3) the amount necessary to deter future violations;

(4) efforts made by the respondent to correct the violation; and

(5) any other matter that justice may require.

(c) The commission by rule shall establish a written enforcement plan that provides notice of the specific ranges of penalties that apply to specific alleged violations and the criteria by which the commission determines the amount of a proposed administrative penalty.

SECTION 24. Subchapter L, Chapter 1701, Occupations Code, is amended by adding Section 1701.554 to read as follows:

Sec. 1701.554. VENUE. Venue for the prosecution of an offense that arises from a violation of this chapter or in connection with the administration of this chapter lies in the county where the offense occurred or in Travis County.

SECTION 25. Article 2.132(b), Code of Criminal Procedure, is amended to read as follows:

(b) Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling. The policy must:

(1) clearly define acts constituting racial profiling;

(2) strictly prohibit peace officers employed by the agency from engaging in racial profiling;

(3) implement a process by which an individual may file a complaint with the agency if the individual believes that a peace officer employed by the agency has engaged in racial profiling with respect to the individual;

(4) provide public education relating to the agency's complaint process;

(5) require appropriate corrective action to be taken against a peace officer employed by the agency who, after an investigation, is shown to have engaged in racial profiling in violation of the agency's policy adopted under this article;

(6) require collection of information relating to traffic stops in which a citation is issued and to arrests resulting from those traffic stops, including information relating to:

(A) the race or ethnicity of the individual detained; [and]

(B) whether a search was conducted and, if so, whether the person detained consented to the search; and

(C) whether the peace officer knew the race or ethnicity of the individual detained before detaining that individual; and

(7) require the agency to submit to the Commission on Law Enforcement Officer Standards and Education, and, if the law enforcement agency is a local law enforcement agency, to the governing body of each county or municipality served by the agency, an annual report of the information collected under Subdivision (6) [if the agency is an agency of a county, municipality, or other political subdivision of the state].

SECTION 26. Article 2.134(b), Code of Criminal Procedure, is amended to read as follows:

(b) A law enforcement agency shall compile and analyze the information contained in each report received by the agency under Article 2.133. Not later than March 1 of each year, each [local] law enforcement agency shall submit a report containing the information compiled during the previous calendar year to the Commission on Law Enforcement Officer Standards and Education and, if the law enforcement agency is a local law enforcement agency, to the governing body of each county or municipality served by the agency [in a manner approved by the agency].

SECTION 27. The following laws are repealed:

(1) Section 1701.051(d), Occupations Code;

(2) Section 1701.156(c), Occupations Code;

(3) Section 1701.315, Occupations Code; and

(4) Section 1701.406, Occupations Code.

SECTION 28. (a) The changes in law made by this Act to Sections 1701.053, 1701.056, and 1701.059, Occupations Code, apply only to a member of the Texas Commission on Law Enforcement Officer Standards and Education appointed on or after the effective date of this Act and do not affect the entitlement of a member serving on the commission immediately before that date to continue to serve and function as a member of the commission for the remainder of the member's term.

(b) Not later than March 1, 2010, the Texas Commission on Law Enforcement Officer Standards and Education shall adopt rules and policies required under:

(1) Sections 1701.202, 1701.254, and 1701.451, Occupations Code, as amended by this Act; and

(2) Sections 1701.1521, 1701.1522, 1701.1523, 1701.1524, and 1701.162, Occupations Code, as added by this Act.

(c) The changes in law made by this Act with respect to conduct that is grounds for the imposition of a disciplinary sanction, including an administrative penalty, apply only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before that date is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

(d) The Commission on Law Enforcement Officer Standards and Education shall modify the training program required by Section 1701.352(b), Occupations Code, as amended by this Act, and ensure that the modified program is available not later than January 1, 2010.

(e) A law enforcement agency affected by the change in law made by this Act to Section 1701.355(a), Occupations Code, shall designate a firearms proficiency officer not later than March 1, 2010. For purposes of this section, a state or local governmental entity that employs one or more peace officers is a law enforcement agency.

(f) The changes in law made by this Act to Section 1701.157(b), Occupations Code, apply to allocations made on or after January 1, 2011. Allocations made before that date are governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 29. Articles 2.132(b) and 2.134(b), Code of Criminal Procedure, as amended by this Act, apply only to a report submitted by a law enforcement agency to the Commission on Law Enforcement Officer Standards and Education or to the governing body of the applicable political subdivision on or after the effective date of this Act. A report submitted before the effective date of this Act is governed by the law in effect when the report was submitted, and that law is continued in effect for that purpose.

SECTION 30. This Act takes effect September 1, 2009.