BILL ANALYSIS

C.S.H.B. 2957

By: Davis, John

Homeland Security & Public Safety

Committee Report (Substituted)

BACKGROUND AND PURPOSE

Currently, interested parties contend that due process procedures or minimum standards for administrative investigations for law enforcement agencies that do not have a meet and confer or collective bargaining agreement in existence are lacking.  C.S.H.B. 2957 provides due process procedures to ensure that law enforcement officers are not terminated or disciplined without cause.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 2957 amends the Government Code to establish the Law Enforcement Officers' Due Process Act, applicable only to a law enforcement officer who is employed, commissioned, or appointed by a law enforcement agency and who is not above the rank of major or is not the chief of police or the sheriff, constable, marshal, director, or other highest ranking officer in a law enforcement agency, and to all law enforcement disciplinary proceedings in Texas that are conducted by a law enforcement agency.  The bill exempts from its provisions a municipal police department or a law enforcement officer employed, commissioned, or appointed by the department in a municipality with a population of 1.9 million or more.  The bill establishes that its provisions do not supersede an existing meet and confer agreement or collective bargaining agreement of a municipality or county.  The bill grants a law enforcement officer the same rights to engage in political activity as any other person but prohibits the officer from engaging in political activity while the officer is on duty, in uniform, or acting in an official capacity.  The bill prohibits a law enforcement agency from removing without cause a law enforcement officer employed as a deputy sheriff, deputy, or deputy constable who does not hold a command rank in the law enforcement agency and does not have civil service protection or is not covered by a collective bargaining agreement.

C.S.H.B. 2957 requires the administrative investigation or questioning of a law enforcement officer under investigation or subjected to questioning for any reason that could lead to disciplinary action, demotion, or dismissal to be conducted in accordance with the bill's provisions.  The bill sets out the time and place requirements for the questioning of a law enforcement officer in an administrative investigation.  The bill requires the investigator in charge of the administrative investigation to inform the law enforcement officer under investigation of the investigator's name, rank, and command and prohibits a question directed to the officer from being asked by more than two investigators. 

C.S.H.B. 2957 prohibits a formal complaint against a law enforcement officer that calls for the dismissal or suspension of the officer or other formal disciplinary action against the officer from being prosecuted under a rule of the law enforcement agency unless the complaint is supported by substantial evidence derived from an administrative investigation by an authorized member of the agency.  The bill requires a law enforcement officer under an administrative investigation to be informed in writing of the nature of the investigation not less than 72 hours before being questioned.  The bill requires interview sessions to be conducted for reasonable periods of time and to allow time for the law enforcement officer to take care of personal necessities and for reasonable rest periods.  The bill prohibits a law enforcement officer from being threatened with transfer, dismissal, or other disciplinary action during an investigation, except on refusal to answer questions in an administrative investigation.

C.S.H.B. 2957 sets out requirements relating to the interview record. The bill requires a copy of the record to be provided on request to the law enforcement officer or the officer's counsel at the officer's expense.

C.S.H.B. 2957 requires the investigator, if a law enforcement officer under questioning is under arrest or may reasonably be placed under arrest as a result of the administrative investigation, to inform the officer before the interrogation begins of the officer's rights, including the reasonable possibility of the officer's arrest.  The bill grants the law enforcement officer under questioning, on request, the right to be represented by counsel or another representative of the officer's choice.  The bill requires the questioning, if the officer requests representation, to be suspended until the time the officer obtains representation, if reasonably available, and requires the counsel or representative to be present at all times during the questioning unless the officer waives in writing the officer's right to have the representative present.

C.S.H.B. 2957 sets out provisions relating to access to documents for an officer charged with violating a rule of the law enforcement agency, or the officer's representative. The bill requires the investigator, at the conclusion of an administrative investigation of a law enforcement officer, to inform in writing the law enforcement officer of the investigative findings and any recommendation for further action.

C.S.H.B. 2957 makes all records compiled as a result of any administrative investigation subject to the bill's provisions or a contractual disciplinary grievance procedure confidential and prohibits the records from being disclosed or released to the public.  The bill specifies that a verbal or written statement made by a law enforcement officer during the course of an administrative investigation is not admissible in a criminal proceeding and prohibits a report, audiotape recording, videotape recording, or notes made by an investigator from being shared with anyone who has criminal investigation authority or who is capable of conducting a criminal investigation.

C.S.H.B. 2957 sets out provisions relating to the time period for completion of the administrative investigation of a law enforcement officer and provides for an extension of the time for completion of the investigation under certain conditions.

C.S.H.B. 2957 exempts a law enforcement agency from the requirement to disclose in any civil proceeding a personnel file or internal affairs investigatory file compiled in connection with a law enforcement officer under administrative investigation or subjected to questioning for any reason that could lead to disciplinary action, demotion, or dismissal, unless otherwise required by the bill's provisions.  The bill provides that this exemption does not apply to a proceeding brought by a citizen against a law enforcement officer alleging that the officer breached the officer's official duties and that the breach resulted in injury or other damage to the citizen.

C.S.H.B. 2957 prohibits a law enforcement agency from placing any adverse material into the file of a law enforcement officer except the file kept during the internal investigation or by the intelligence division unless the officer has had an opportunity to review, sign, and receive a copy of the material and comment in writing on the material. The bill prohibits a law enforcement officer or any member of the officer's household from being required or requested to disclose during an administrative investigation or questioning under the bill's provisions any item of personal property, income, assets, sources of income, debts, or personal or domestic expenditures unless the information is necessary for the conduct of an investigation on a violation of any federal, state, or local law related to the performance of the officer's official duties or unless the disclosure is required by state or federal law.

C.S.H.B. 2957 entitles a law enforcement officer to a hearing if the officer is suspended for any reason; charged with conduct alleged to violate the rules or general orders of the law enforcement agency that employs the officer; or charged with conduct that could lead to any form of disciplinary action, other than a reprimand, and that may become part of the officer's permanent personnel record.  The bill requires such a hearing to be conducted in accordance with the bill's provisions unless a contractual disciplinary grievance procedure executed between the law enforcement agency and the bargaining unit for that law enforcement officer is in effect, in which case the terms of that disciplinary grievance procedure take precedence and govern the conduct of the hearing. The bill sets out provisions relating to the scheduling of the hearing and notice requirements.  The bill requires the charge against the law enforcement officer to advise the officer of the alleged facts, advise the officer that the violation of the rule constitutes a basis for discipline, and specify the range of applicable penalties that could be imposed.

C.S.H.B. 2957 requires a law enforcement agency to retain the official record of a hearing conducted under the bill's provisions.  The bill sets out provisions relating to the composition of the board before which the hearing is conducted, legal counsel, the nature and record of evidence presented, cross-examination and rebuttal evidence, and judicially cognizable facts and general, technical, or scientific facts within the board's specialized knowledge.  The bill requires parties to be notified beforehand of the materials noticed by the board.  The bill prohibits a law enforcement officer from being adjudged guilty of any offense unless the board is satisfied that guilt has been established by substantial evidence.

C.S.H.B. 2957 prohibits evidence from being obtained, received, or admitted into evidence in a proceeding of any disciplinary action that violates any right established by the United States Constitution, the Texas Constitution, or the bill's provisions.  The bill prohibits the board appointed for a hearing from entering any judgment or sustaining any disciplinary action based on evidence obtained in violation of a law enforcement officer's rights under the bill's provisions. The bill requires a decision, order, or action taken following a hearing conducted under the bill's provisions to be in writing and accompanied by findings of fact and requires the findings to consist of a concise statement on each issue in the case.  The bill requires a copy of the decision or order, accompanying findings and conclusions, and the written action and right of appeal, if any, to be delivered or mailed promptly to the law enforcement officer or to the officer's counsel or representative of record.

C.S.H.B. 2957 prohibits a law enforcement officer from being compelled to work extra duty without compensation as a penalty for a disciplinary infraction.  The bill prohibits a suspension for any period of time provided in a law enforcement agency's rules from affecting the law enforcement officer's eligibility for pension, hospitalization, medical and life insurance coverage, or other benefits specifically protected under the contract of employment and authorizes suspension to affect time of pension eligibility by contract or other law. The bill specifies that its provisions do not prevent a law enforcement agency from requiring reimbursement by a suspended law enforcement officer of the officer's employee contribution to benefits during the officer's time of suspension. The bill prohibits a law enforcement officer from being assessed a penalty or threatened with the assessment of a penalty for exercising the officer's rights under the bill's provisions.  The bill defines "law enforcement agency" and "law enforcement officer."

EFFECTIVE DATE

September 1, 2011.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 2957 differs from the original by making the substitute's provisions apply to a law enforcement officer who is not above the rank of major or is not the chief of police or the sheriff, constable, marshal, director, or other highest ranking officer in a law enforcement agency, whereas the original includes in the definition of "law enforcement officer," for purposes of the original's provisions, a person who is not a command rank officer or the chief of police or the sheriff, constable, marshal, director, or other highest ranking officer in a law enforcement agency.

C.S.H.B. 2957 contains a provision not included in the original exempting from the substitute's provisions a municipal police department or a law enforcement officer employed, commissioned, or appointed by the department in a municipality with a population of 1.9 million or more.

C.S.H.B. 2957 differs from the original by requiring a law enforcement officer under an administrative investigation to be informed of the nature of the investigation not less than 72 hours before being questioned, whereas the original requires such an officer to be informed not less than 48 hours before being questioned.

C.S.H.B. 2957 differs from the original by requiring the record of an interview of a law enforcement officer by an investigator to be written or electronically recorded and, if so recorded, transcribed as soon as practicable, whereas the original requires the record to be written or recorded by audio tape or other electronic audio recording device and does not provide for the transcription of the record.

C.S.H.B. 2957 omits a specification included in the original that the right to counsel of a law enforcement officer under questioning applies with respect to questioning for an alleged criminal act.

C.S.H.B. 2957 differs from the original, in the provision granting a law enforcement officer charged with a violation access to certain documents, by making the provision apply with respect to a violation of a rule of the law enforcement agency, whereas the original makes the provision apply with respect to a violation of an administrative rule of the agency.

C.S.H.B. 2957 differs from the original by specifying that the substitute's provisions relating to an investigation period and an extension hearing do not supersede any civil service law, whereas the original specifies that those provisions do not supersede any civil service law or collective bargaining contract that is currently in place.

C.S.H.B. 2957 differs from the original by making the substitute effective September 1, 2011, whereas the original establishes an effective date of September 1 without specifying a year.  The substitute differs from the original in nonsubstantive ways.