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A BILL TO BE ENTITLED
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AN ACT
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relating to the rights of certain county law enforcement officers. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 158.034(a), Local Government Code, is |
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amended to read as follows: |
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(a) In a county with a population of less than 2.8 million, |
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if a majority of the employees voting at the election approve the |
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creation of a sheriff's department civil service system, the |
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sheriff, commissioners court, and district attorney shall each |
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appoint one person to serve as a member of the civil service |
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commission that administers the system. In a county with a |
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population of 2.8 million or more, if a majority of the employees |
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voting at the election approve the creation of a sheriff's |
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department civil service system, the sheriff, commissioners court, |
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and a bargaining agent elected by the employees of the sheriff's |
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department [district attorney] shall each appoint two persons to |
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serve as members of the civil service commission that administers |
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the system, and the three appointing authorities shall appoint one |
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member by joint action requiring the affirmative vote of each of the |
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authorities. |
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SECTION 2. Chapter 158, Local Government Code, is amended |
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by adding Subchapter C to read as follows: |
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SUBCHAPTER C. INVESTIGATION OF COUNTY LAW ENFORCEMENT |
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OFFICERS IN CERTAIN COUNTIES |
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Sec. 158.061. APPLICABILITY. This subchapter applies only |
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to a county with a population of 3.3 million or more. |
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Sec. 158.062. DEFINITIONS. In this subchapter: |
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(1) "Commission" means a county civil service |
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commission. |
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(2) "Complainant" means a person claiming to be the |
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victim of misconduct by a county law enforcement officer. |
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(3) "County law enforcement officer" means a deputy |
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sheriff or other peace officer or a jailer appointed or employed by |
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the department. |
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(4) "Investigation" means an administrative |
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investigation, conducted by the county or the department, of |
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alleged misconduct by a county law enforcement officer that could |
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result in punitive action against that person. |
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(5) "Investigator" means an agent or employee of the |
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county or the department who is assigned to conduct an |
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investigation. |
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(6) "Normally assigned working hours" includes those |
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hours during which a county law enforcement officer is actually at |
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work or at the person's assigned place of work but does not include |
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any time when the person is off duty on authorized leave, including |
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sick leave. |
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(7) "Punitive action" means a disciplinary |
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suspension, dismissal, demotion in rank, reprimand, or any |
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combination of those actions. |
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Sec. 158.063. INTERROGATION AND INVESTIGATION OF COUNTY LAW |
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ENFORCEMENT OFFICERS. (a) An investigator may interrogate a |
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county law enforcement officer who is the subject of an |
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investigation only during the officer's normally assigned working |
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hours unless: |
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(1) the seriousness of the investigation, as |
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determined by the sheriff or the sheriff's designee, requires |
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interrogation at another time; and |
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(2) the officer is compensated for the interrogation |
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time on an overtime basis. |
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(b) The sheriff may not consider work time missed from |
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regular duties by a county law enforcement officer due to |
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participation in the conduct of an investigation in determining |
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whether to impose a punitive action or in determining the severity |
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of a punitive action. |
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(c) An investigator may not interrogate a county law |
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enforcement officer who is the subject of an investigation or |
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conduct any part of the investigation at that person's home without |
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that person's permission. |
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(d) A person may not be assigned to conduct an investigation |
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if the person is the complainant, the ultimate decision-maker |
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regarding disciplinary action, or a person who has any personal |
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involvement regarding the alleged misconduct. A county law |
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enforcement officer who is the subject of an investigation has the |
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right to inquire and, on inquiry, to be informed of the identities |
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of each investigator participating in an interrogation of the |
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officer. |
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(e) Before an investigator may interrogate a county law |
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enforcement officer who is the subject of an investigation, the |
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investigator must inform the officer in writing of the nature of the |
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investigation and the name of each person who complained about the |
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officer concerning the matters under investigation. An |
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investigator may not conduct an interrogation of an officer based |
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on a complaint by a complainant who is not a peace officer or a |
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jailer unless the complainant verifies the complaint in writing |
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before a public officer who is authorized by law to take statements |
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under oath. Not later than the 48th hour before the hour on which an |
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investigator begins to interrogate an officer regarding an |
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allegation based on a complaint, affidavit, or statement, the |
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investigator shall give the officer a copy of the affidavit, |
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complaint, or statement. An officer is entitled to and shall be |
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provided with all statements or affidavits received or gathered by |
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the investigative authority from witnesses, deputies, or |
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supervisors during the investigation before the officer's |
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interrogation, if the interrogation is based wholly or partly on |
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those statements. If an employee is not given a statement to which |
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the employee is entitled, that statement, or portion of the |
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statement, may not be used to support any administrative action |
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against or discipline of the officer. If the officer gives a |
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statement, the officer shall be given a copy of that statement. |
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This subsection does not apply to an on-the-scene investigation |
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that occurs immediately after an incident being investigated if the |
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limitations of this subsection would unreasonably hinder the |
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essential purpose of the investigation or interrogation. If the |
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limitation would hinder the investigation or interrogation, the |
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officer under investigation must be furnished, as soon as |
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practicable, a written statement of the nature of the |
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investigation, the name of each complaining party, and the |
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complaint, affidavit, or statement. |
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(f) An interrogation session of a county law enforcement |
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officer who is the subject of an investigation may not be |
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unreasonably long. In determining reasonableness, the gravity and |
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complexity of the investigation must be considered. The |
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investigators shall allow reasonable interruptions to permit the |
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officer to attend to personal physical necessities. |
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(g) An officer who is the subject of an interrogation shall |
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be given notice not less than 24 hours before the interrogation is |
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to take place of the time and place of the interrogation. An |
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officer is entitled to have legal counsel or a representative of the |
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officer's employee organization present during any interrogation |
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or interview that the employee is ordered to attend. |
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(h) An investigator may not threaten a county law |
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enforcement officer who is the subject of an investigation with |
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punitive action during an interrogation. However, an investigator |
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may inform an officer that failure to truthfully answer reasonable |
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questions directly related to the investigation or to fully |
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cooperate in the conduct of the investigation may result in |
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punitive action. |
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(i) If prior notification of intent to record an |
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interrogation is given to the other party, either the investigator |
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or the county law enforcement officer who is the subject of an |
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interrogation may record the interrogation. |
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(j) If an investigation does not result in punitive action |
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against a county law enforcement officer other than a reprimand |
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recorded in writing or an adverse finding or determination |
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regarding that person, the reprimand, finding, or determination may |
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not be placed in that person's personnel file unless the officer is |
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first given an opportunity to read and sign the document. If the |
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officer refuses to sign the reprimand, finding, or determination, |
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it may be placed in the personnel file with a notation that the |
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person refused to sign it. An officer may respond in writing to a |
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reprimand, finding, or determination that is placed in the person's |
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personnel file under this subsection by submitting a written |
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response to the sheriff within 10 days after the date the officer is |
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asked to sign the document. The response shall be placed in the |
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personnel file. An officer who receives a punitive action and who |
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elects not to appeal the action may file a written response as |
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prescribed by this subsection within 10 days after the date the |
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person is given written notice of the punitive action from the |
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sheriff. |
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(k) If the sheriff or any investigator violates any |
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provision of this section while conducting an investigation, the |
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county or department shall reverse any punitive action taken based |
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on the investigation, including a reprimand, and any information |
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obtained during the investigation may not be admitted into evidence |
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in any proceeding against the county law enforcement officer. |
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Sec. 158.064. ONGOING CRIMINAL INVESTIGATIONS. (a) If the |
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county law enforcement officer is suspected and under investigation |
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for ongoing criminal activity, an investigator shall: |
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(1) on or before the 180th day after the date the |
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county becomes aware of the suspected criminal activity, notify the |
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sheriff or the sheriff's designee in writing of the pending ongoing |
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criminal investigation; |
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(2) show good cause for the continued criminal |
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investigation; and |
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(3) state the approximate time the criminal |
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investigation is likely to be concluded. |
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(b) The county is not required to comply with the |
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requirements of Section 158.063 until the completion of the |
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criminal investigation. Not later than the fifth day after the date |
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of the completion of the criminal investigation, the county shall |
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comply with the requirements of Section 158.063. |
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Sec. 158.065. RIGHTS OF COUNTY LAW ENFORCEMENT OFFICERS IN |
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INVESTIGATIONS. (a) In all investigations which arise from |
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complaints from sources other than law enforcement personnel, the |
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complainant must first be given and pass a polygraph examination |
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before the investigation can continue. |
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(b) A county law enforcement officer may not be required to |
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submit to a polygraph examination, unless the officer has been |
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given written notice not less than 48 hours before the polygraph |
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examination or the officer voluntarily agrees to take the polygraph |
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examination. If the officer voluntarily submits to the polygraph |
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examination, the results of the polygraph examination shall be |
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provided to the officer immediately following conclusion of the |
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exam. The officer is entitled to legal representation prior to, |
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during, and after the polygraph examination. |
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(c) A county law enforcement officer shall be notified in |
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writing not less than 48 hours before a predisciplinary or |
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disciplinary hearing. |
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(d) A county law enforcement officer is entitled to request |
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the officer's disciplinary hearing be postponed pending the outcome |
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of a criminal case based on the same conduct. |
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(e) A predisciplinary or disciplinary hearing may not be |
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held on Saturday, Sunday, or any state or federal holiday. All |
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predisciplinary and disciplinary hearings, or investigative |
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interviews, shall be held during normal business hours. |
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(f) A county law enforcement officer is entitled to be |
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accompanied by a representative of the officer's choosing at any |
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predisciplinary or disciplinary hearing, or at an investigative |
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interview. |
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(g) A county law enforcement officer involved in a |
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line-of-duty shooting is entitled to have an attorney present |
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during any investigation by the county. |
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(h) If a county law enforcement officer is required to give |
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a statement regarding any allegation of misconduct, the |
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investigator may not amend the officer's statement in any way |
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without the officer's permission and signature. If the employee |
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agrees to the amendment, the investigator shall provide the officer |
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with a copy of the amended statement immediately following the |
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amendment. |
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Sec. 158.066. OUTCOME OF INVESTIGATION. If an |
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investigation reveals the county law enforcement officer has not |
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committed an act of misconduct: |
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(1) the complaint may not be placed in the officer's |
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file; and |
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(2) the complaint may not be used against the officer |
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in a subsequent investigation, punitive action proceeding, or |
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disciplinary action. |
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Sec. 158.067. SANCTIONS FOR VIOLATIONS OF THIS SUBCHAPTER. |
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(a) If a county law enforcement officer who appeals a punitive |
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action or that officer's representative can demonstrate by a |
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preponderance of the evidence the provisions of Section 158.063, |
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158.064, or 158.065 were violated, the evidence gained as a |
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consequence of the violation shall be permanently excluded from the |
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investigator's file and may not be considered in rendering a |
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decision. |
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(b) If a county law enforcement officer or that officer's |
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representative is in a dispute with the county regarding evidence |
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obtained during the investigation, before the evidence may be used |
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and before the officer's appeal hearing convenes the commission |
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shall hear supporting arguments from opposing parties. If the |
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commission rules in favor of the officer and finds the county in |
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violation of Section 158.063, 158.064, or 158.065, the commission |
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shall: |
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(1) order that any information obtained and found in |
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violation of Section 158.063, 158.064, or 158.065 during the |
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investigation be excluded from introduction into evidence in the |
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proceeding against the officer; or |
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(2) if the commission determines that the violation |
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was knowing or intentional: |
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(A) reverse the punitive action decision and |
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instruct the county to immediately restore the officer to the |
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employee's prior position; and |
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(B) order repayment of any lost wages and loss of |
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benefits. |
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SECTION 3. (a) Section 158.034(a), Local Government Code, |
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as amended by this Act, applies to an appointment or reappointment |
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that occurs on or after the effective date of this Act. |
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(b) Subchapter C, Chapter 158, Local Government Code, as |
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added by this Act, applies only to an investigation of conduct that |
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occurred on or after the effective date of this Act. |
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SECTION 4. This Act takes effect September 1, 2009. |