81R6348 JSC-F

By: Coleman H.B. No. 3566

A BILL TO BE ENTITLED

AN ACT

relating to the rights of certain county law enforcement officers.

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

SECTION 1. Section 158.034(a), Local Government Code, is amended to read as follows:

(a) In a county with a population of less than 2.8 million, if a majority of the employees voting at the election approve the creation of a sheriff's department civil service system, the sheriff, commissioners court, and district attorney shall each appoint one person to serve as a member of the civil service commission that administers the system. In a county with a population of 2.8 million or more, if a majority of the employees voting at the election approve the creation of a sheriff's department civil service system, the sheriff, commissioners court, and a bargaining agent elected by the employees of the sheriff's department [district attorney] shall each appoint two persons to serve as members of the civil service commission that administers the system, and the three appointing authorities shall appoint one member by joint action requiring the affirmative vote of each of the authorities.

SECTION 2. Chapter 158, Local Government Code, is amended by adding Subchapter C to read as follows:

SUBCHAPTER C. INVESTIGATION OF COUNTY LAW ENFORCEMENT

OFFICERS IN CERTAIN COUNTIES

Sec. 158.061. APPLICABILITY. This subchapter applies only to a county with a population of 3.3 million or more.

Sec. 158.062. DEFINITIONS. In this subchapter:

(1) "Commission" means a county civil service commission.

(2) "Complainant" means a person claiming to be the victim of misconduct by a county law enforcement officer.

(3) "County law enforcement officer" means a deputy sheriff or other peace officer or a jailer appointed or employed by the department.

(4) "Investigation" means an administrative investigation, conducted by the county or the department, of alleged misconduct by a county law enforcement officer that could result in punitive action against that person.

(5) "Investigator" means an agent or employee of the county or the department who is assigned to conduct an investigation.

(6) "Normally assigned working hours" includes those hours during which a county law enforcement officer is actually at work or at the person's assigned place of work but does not include any time when the person is off duty on authorized leave, including sick leave.

(7) "Punitive action" means a disciplinary suspension, dismissal, demotion in rank, reprimand, or any combination of those actions.

Sec. 158.063. INTERROGATION AND INVESTIGATION OF COUNTY LAW ENFORCEMENT OFFICERS. (a) An investigator may interrogate a county law enforcement officer who is the subject of an investigation only during the officer's normally assigned working hours unless:

(1) the seriousness of the investigation, as determined by the sheriff or the sheriff's designee, requires interrogation at another time; and

(2) the officer is compensated for the interrogation time on an overtime basis.

(b) The sheriff may not consider work time missed from regular duties by a county law enforcement officer due to participation in the conduct of an investigation in determining whether to impose a punitive action or in determining the severity of a punitive action.

(c) An investigator may not interrogate a county law enforcement officer who is the subject of an investigation or conduct any part of the investigation at that person's home without that person's permission.

(d) A person may not be assigned to conduct an investigation if the person is the complainant, the ultimate decision-maker regarding disciplinary action, or a person who has any personal involvement regarding the alleged misconduct. A county law enforcement officer who is the subject of an investigation has the right to inquire and, on inquiry, to be informed of the identities of each investigator participating in an interrogation of the officer.

(e) Before an investigator may interrogate a county law enforcement officer who is the subject of an investigation, the investigator must inform the officer in writing of the nature of the investigation and the name of each person who complained about the officer concerning the matters under investigation. An investigator may not conduct an interrogation of an officer based on a complaint by a complainant who is not a peace officer or a jailer unless the complainant verifies the complaint in writing before a public officer who is authorized by law to take statements under oath. Not later than the 48th hour before the hour on which an investigator begins to interrogate an officer regarding an allegation based on a complaint, affidavit, or statement, the investigator shall give the officer a copy of the affidavit, complaint, or statement. An officer is entitled to and shall be provided with all statements or affidavits received or gathered by the investigative authority from witnesses, deputies, or supervisors during the investigation before the officer's interrogation, if the interrogation is based wholly or partly on those statements. If an employee is not given a statement to which the employee is entitled, that statement, or portion of the statement, may not be used to support any administrative action against or discipline of the officer. If the officer gives a statement, the officer shall be given a copy of that statement. 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 officer under investigation must be furnished, as soon as practicable, a written statement of the nature of the investigation, the name of each complaining party, and the complaint, affidavit, or statement.

(f) An interrogation session of a county law enforcement officer who is the subject of an investigation may not be unreasonably long. In determining reasonableness, the gravity and complexity of the investigation must be considered. The investigators shall allow reasonable interruptions to permit the officer to attend to personal physical necessities.

(g) An officer who is the subject of an interrogation shall be given notice not less than 24 hours before the interrogation is to take place of the time and place of the interrogation. An officer is entitled to have legal counsel or a representative of the officer's employee organization present during any interrogation or interview that the employee is ordered to attend.

(h) An investigator may not threaten a county law enforcement officer who is the subject of an investigation with punitive action during an interrogation. However, an investigator may inform an officer that failure to truthfully answer reasonable questions directly related to the investigation or to fully cooperate in the conduct of the investigation may result in punitive action.

(i) If prior notification of intent to record an interrogation is given to the other party, either the investigator or the county law enforcement officer who is the subject of an interrogation may record the interrogation.

(j) If an investigation does not result in punitive action against a county law enforcement officer other than a reprimand recorded in writing or an adverse finding or determination regarding that person, the reprimand, finding, or determination may not be placed in that person's personnel file unless the officer is first given an opportunity to read and sign the document. If the officer refuses to sign the reprimand, finding, or determination, it may be placed in the personnel file with a notation that the person refused to sign it. An officer may respond in writing to a reprimand, finding, or determination that is placed in the person's personnel file under this subsection by submitting a written response to the sheriff within 10 days after the date the officer is asked to sign the document. The response shall be placed in the personnel file. An officer who receives a punitive action and who elects not to appeal the action may file a written response as prescribed by this subsection within 10 days after the date the person is given written notice of the punitive action from the sheriff.

(k) If the sheriff or any investigator violates any provision of this section while conducting an investigation, the county or department shall reverse any punitive action taken based on the investigation, including a reprimand, and any information obtained during the investigation may not be admitted into evidence in any proceeding against the county law enforcement officer.

Sec. 158.064. ONGOING CRIMINAL INVESTIGATIONS. (a) If the county law enforcement officer is suspected and under investigation for ongoing criminal activity, an investigator shall:

(1) on or before the 180th day after the date the county becomes aware of the suspected criminal activity, notify the sheriff or the sheriff's designee in writing of the pending ongoing criminal investigation;

(2) show good cause for the continued criminal investigation; and

(3) state the approximate time the criminal investigation is likely to be concluded.

(b) The county is not required to comply with the requirements of Section 158.063 until the completion of the criminal investigation. Not later than the fifth day after the date of the completion of the criminal investigation, the county shall comply with the requirements of Section 158.063.

Sec. 158.065. RIGHTS OF COUNTY LAW ENFORCEMENT OFFICERS IN INVESTIGATIONS. (a) In all investigations which arise from complaints from sources other than law enforcement personnel, the complainant must first be given and pass a polygraph examination before the investigation can continue.

(b) A county law enforcement officer may not be required to submit to a polygraph examination, unless the officer has been given written notice not less than 48 hours before the polygraph examination or the officer voluntarily agrees to take the polygraph examination. If the officer voluntarily submits to the polygraph examination, the results of the polygraph examination shall be provided to the officer immediately following conclusion of the exam. The officer is entitled to legal representation prior to, during, and after the polygraph examination.

(c) A county law enforcement officer shall be notified in writing not less than 48 hours before a predisciplinary or disciplinary hearing.

(d) A county law enforcement officer is entitled to request the officer's disciplinary hearing be postponed pending the outcome of a criminal case based on the same conduct.

(e) A predisciplinary or disciplinary hearing may not be held on Saturday, Sunday, or any state or federal holiday. All predisciplinary and disciplinary hearings, or investigative interviews, shall be held during normal business hours.

(f) A county law enforcement officer is entitled to be accompanied by a representative of the officer's choosing at any predisciplinary or disciplinary hearing, or at an investigative interview.

(g) A county law enforcement officer involved in a line-of-duty shooting is entitled to have an attorney present during any investigation by the county.

(h) If a county law enforcement officer is required to give a statement regarding any allegation of misconduct, the investigator may not amend the officer's statement in any way without the officer's permission and signature. If the employee agrees to the amendment, the investigator shall provide the officer with a copy of the amended statement immediately following the amendment.

Sec. 158.066. OUTCOME OF INVESTIGATION. If an investigation reveals the county law enforcement officer has not committed an act of misconduct:

(1) the complaint may not be placed in the officer's file; and

(2) the complaint may not be used against the officer in a subsequent investigation, punitive action proceeding, or disciplinary action.

Sec. 158.067. SANCTIONS FOR VIOLATIONS OF THIS SUBCHAPTER. (a) If a county law enforcement officer who appeals a punitive action or that officer's representative can demonstrate by a preponderance of the evidence the provisions of Section 158.063, 158.064, or 158.065 were violated, the evidence gained as a consequence of the violation shall be permanently excluded from the investigator's file and may not be considered in rendering a decision.

(b) If a county law enforcement officer or that officer's representative is in a dispute with the county regarding evidence obtained during the investigation, before the evidence may be used and before the officer's appeal hearing convenes the commission shall hear supporting arguments from opposing parties. If the commission rules in favor of the officer and finds the county in violation of Section 158.063, 158.064, or 158.065, the commission shall:

(1) order that any information obtained and found in violation of Section 158.063, 158.064, or 158.065 during the investigation be excluded from introduction into evidence in the proceeding against the officer; or

(2) if the commission determines that the violation was knowing or intentional:

(A) reverse the punitive action decision and instruct the county to immediately restore the officer to the employee's prior position; and

(B) order repayment of any lost wages and loss of benefits.

SECTION 3. (a) Section 158.034(a), Local Government Code, as amended by this Act, applies to an appointment or reappointment that occurs on or after the effective date of this Act.

(b) Subchapter C, Chapter 158, Local Government Code, as added by this Act, applies only to an investigation of conduct that occurred on or after the effective date of this Act.

SECTION 4. This Act takes effect September 1, 2009.