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A BILL TO BE ENTITLED
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AN ACT
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relating to due process for certain law enforcement officers. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 614, Government Code, is amended by |
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adding Subchapter L to read as follows: |
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SUBCHAPTER L. LAW ENFORCEMENT OFFICERS' DUE PROCESS ACT |
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Sec. 614.181. SHORT TITLE. This subchapter may be cited as |
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the Law Enforcement Officers' Due Process Act. |
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Sec. 614.1815. DEFINITIONS. In this subchapter: |
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(1) "Law enforcement agency" means a municipal police |
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department, sheriff's department, or constable's office that |
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employs, commissions, or appoints a law enforcement officer. |
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(2) "Law enforcement officer" means a person who: |
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(A) is a sworn peace officer under Article 2.12, |
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Code of Criminal Procedure; and |
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(B) is not: |
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(i) a command rank officer; or |
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(ii) the chief of police or the sheriff, |
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constable, marshal, director, or other highest ranking officer in a |
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law enforcement agency. |
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Sec. 614.182. APPLICABILITY. (a) This subchapter applies |
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only to a law enforcement officer who is employed, commissioned, or |
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appointed by a law enforcement agency. |
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(b) This subchapter applies to all law enforcement |
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disciplinary proceedings in this state that are conducted by a law |
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enforcement agency. |
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(c) This subchapter does not supersede an existing meet and |
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confer agreement or collective bargaining agreement of a |
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municipality or county. |
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Sec. 614.1825. LIMITATIONS ON POLITICAL ACTIVITY. A law |
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enforcement officer has the same rights to engage in political |
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activity as any other person, except that a law enforcement officer |
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may not engage in political activity while the law enforcement |
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officer is on duty, in uniform, or acting in an official capacity. |
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Sec. 614.183. LIMITATIONS ON REMOVAL FROM OFFICE. A law |
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enforcement agency may not remove without cause a law enforcement |
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officer employed as a deputy sheriff, deputy, or deputy constable |
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who: |
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(1) does not hold a command rank within the law |
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enforcement agency; and |
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(2) does not have civil service protection or is not |
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covered by a collective bargaining agreement. |
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Sec. 614.1835. INVESTIGATION; QUESTIONING. (a) If a law |
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enforcement officer is under investigation or is subjected to |
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questioning for any reason that could lead to disciplinary action, |
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demotion, or dismissal, the administrative investigation or |
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questioning must be conducted in accordance with this subchapter. |
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(b) The questioning of a law enforcement officer must in an |
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administrative investigation: |
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(1) be conducted at a reasonable hour, preferably at a |
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time when the officer is on duty unless the investigator believes |
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that the gravity of the investigation requires immediate |
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questioning; and |
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(2) take place at the law enforcement agency |
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headquarters or at the office of the local troop or police unit in |
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which the incident allegedly occurred as designated by the |
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investigator unless otherwise waived in writing by the officer. |
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(c) The investigator in charge of the administrative |
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investigation shall inform the law enforcement officer under |
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investigation of the investigator's name, rank, and command. A |
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question directed to the officer may not be asked by more than two |
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investigators. |
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(d) A formal complaint against a law enforcement officer |
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that calls for the dismissal or suspension of the officer or other |
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formal disciplinary action against the officer may not be |
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prosecuted under a rule of the law enforcement agency unless the |
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complaint is supported by substantial evidence derived from an |
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administrative investigation by an authorized member of the agency. |
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(e) A law enforcement officer under an administrative |
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investigation must be informed in writing of the nature of the |
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investigation not less than 48 hours before being questioned. |
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(f) Interview sessions shall be conducted for reasonable |
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periods of time and must allow time for the law enforcement officer |
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to take care of personal necessities and for reasonable rest |
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periods. |
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(g) Except on refusal to answer questions pursued in a valid |
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administrative investigation, a law enforcement officer may not, |
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during an investigation, be threatened with transfer, dismissal, or |
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other disciplinary action. |
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Sec. 614.184. INTERVIEW RECORD REQUIRED. (a) An |
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investigator shall keep a complete record of all interviews held in |
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connection with an administrative investigation under this |
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subchapter on notification that substantial evidence exists for |
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seeking an administrative sanction of the law enforcement officer. |
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The record must be written or be recorded by audio tape or other |
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electronic audio recording device. |
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(b) A copy of the record shall be provided on request to the |
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law enforcement officer or the officer's counsel at the officer's |
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expense. |
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Sec. 614.1845. ARREST; RIGHT TO COUNSEL. (a) If a law |
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enforcement officer under questioning is under arrest or may |
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reasonably be placed under arrest as a result of the administrative |
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investigation, the investigator, before the interrogation begins, |
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shall inform the officer of the officer's rights, including the |
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reasonable possibility of the officer's arrest. |
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(b) On request, a law enforcement officer under questioning |
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for an alleged criminal act has the right to be represented by |
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counsel or another representative of the officer's choice. If the |
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officer requests representation, the questioning must be suspended |
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until the time the officer obtains representation, if reasonably |
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available, and the counsel or representative must be present at all |
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times during the questioning unless the officer waives in writing |
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the officer's right to have the representative present. |
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Sec. 614.185. ACCESS TO DOCUMENTS. (a) An officer charged |
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with violating an administrative rule of the law enforcement |
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agency, or the officer's representative, shall be granted access to |
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transcripts, records, written statements, written reports, |
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analyses, and videotapes that are pertinent to the case and that are |
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exculpatory, are intended to support any disciplinary action, or |
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will be introduced in an agency hearing on the charges involved. |
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(b) On demand by a law enforcement officer or the officer's |
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counsel, the documents described in Subsection (a) must be produced |
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within 48 hours of the officer's receipt of a written notification |
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of the charges. |
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Sec. 614.1855. FINDINGS AND RECOMMENDATIONS. At the |
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conclusion of an administrative investigation of a law enforcement |
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officer, the investigator in writing shall inform the law |
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enforcement officer of the investigative findings and any |
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recommendation for further action. |
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Sec. 614.186. CONFIDENTIALITY. (a) All records compiled |
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as a result of any administrative investigation subject to this |
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subchapter or a contractual disciplinary grievance procedure are |
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confidential and may not be disclosed or released to the public. |
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(b) A verbal or written statement made by a law enforcement |
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officer during the course of an administrative investigation is not |
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admissible in a criminal proceeding. A report, audiotape |
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recording, videotape recording, or notes made by an investigator |
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may not be shared with anyone who has criminal investigation |
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authority or who is capable of conducting a criminal investigation. |
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Sec. 614.1865. INVESTIGATION PERIOD; EXTENSION HEARING. |
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(a) Except as otherwise provided in this section, an |
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administrative investigation of a law enforcement officer |
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conducted under this subchapter must be completed not later than |
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the 60th day after the date the investigation begins. |
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(b) This section does not supersede any civil service law or |
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collective bargaining contract that is currently in place. |
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(c) A law enforcement agency may request an extension to |
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complete an investigation by convening a three-member board to |
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conduct a hearing on the requested extension and shall provide |
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notice of the hearing to the law enforcement officer who is under an |
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administrative investigation. The officer has the right to attend |
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the hearing and to present evidence and arguments against the |
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extension. |
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(d) At the hearing under Subsection (c), if the board finds |
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that the law enforcement agency has shown good cause for granting an |
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extension of time for completion of the administrative |
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investigation, the board shall grant an extension not to exceed 60 |
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days. |
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(e) This section may not be construed to: |
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(1) prohibit the law enforcement officer under |
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administrative investigation and the law enforcement agency from |
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entering into a written agreement extending the investigation for |
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not more than 60 days; or |
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(2) limit any investigation of alleged criminal |
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activity. |
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Sec. 614.187. DISCLOSURE. (a) Unless otherwise required |
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by this subchapter, a law enforcement agency is not required to |
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disclose in any civil proceeding a personnel file or internal |
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affairs investigatory file compiled in connection with a law |
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enforcement officer under administrative investigation or |
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subjected to questioning for any reason that could lead to |
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disciplinary action, demotion, or dismissal. |
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(b) Subsection (a) does not apply to a proceeding brought by |
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a citizen against a law enforcement officer alleging that the |
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officer breached the officer's official duties and that the breach |
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resulted in injury or other damage to the citizen. |
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Sec. 614.1875. ADVERSE MATERIAL PLACED IN OFFICER'S FILE. |
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A law enforcement agency may not place any adverse material into the |
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file of a law enforcement officer except the file kept during the |
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internal investigation or by the intelligence division unless the |
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officer has had an opportunity to review, sign, and receive a copy |
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of the material and comment in writing on the material. |
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Sec. 614.188. DISCLOSURE OF ASSETS. A law enforcement |
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officer or any member of the officer's household may not be required |
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or requested to disclose during an administrative investigation or |
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questioning under this subchapter any item of personal property, |
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income, assets, sources of income, debts, or personal or domestic |
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expenditures unless: |
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(1) the information is necessary for the conduct of an |
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investigation on a violation of any federal, state, or local law |
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related to the performance of the officer's official duties; or |
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(2) the disclosure is required by state or federal |
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law. |
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Sec. 614.1885. HEARING REQUIRED ON SUSPENSION OR OTHER |
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DISCIPLINARY ACTION. (a) A law enforcement officer is entitled to |
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a hearing if the officer is: |
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(1) suspended for any reason; |
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(2) charged with conduct alleged to violate the rules |
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or general orders of the law enforcement agency that employs the |
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officer; or |
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(3) charged with conduct that could lead to any form of |
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disciplinary action, other than a reprimand, and that may become |
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part of the officer's permanent personnel record. |
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(b) A hearing required under Subsection (a) must be |
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conducted in accordance with this subchapter unless a contractual |
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disciplinary grievance procedure executed by and between the law |
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enforcement agency and the bargaining unit for that law enforcement |
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officer is in effect, in which case the terms of that disciplinary |
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grievance procedure take precedence and govern the conduct of the |
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hearing. |
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Sec. 614.189. HEARING: SCHEDULING; NOTICE. (a) The |
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hearing for a law enforcement officer entitled to a hearing under |
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this subchapter must be scheduled within a reasonable period of |
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time after the date of the alleged incident, but not later than the |
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30th day after the date an internal investigation is concluded, |
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unless the hearing is waived in writing by the officer. |
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(b) The law enforcement officer shall be given written |
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notice of the time and place of the hearing and the issues involved, |
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including: |
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(1) a detailed description of the act the officer is |
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charged with having committed; |
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(2) a statement of the rule or order that the act is |
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alleged to violate; and |
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(3) a copy of the rule or order. |
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(c) The charge against the law enforcement officer must: |
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(1) advise the officer of the alleged facts; |
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(2) advise the officer that the violation of the rule |
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constitutes a basis for discipline; and |
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(3) specify the range of applicable penalties that |
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could be imposed. |
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Sec. 614.1893. HEARING: PROCEDURE. (a) A law enforcement |
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agency shall retain the official record of a hearing conducted |
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under this subchapter, including testimony and exhibits. |
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(b) A hearing conducted under this subchapter must be |
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conducted within the law enforcement agency by an impartial board |
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of three agency officers. The board must include one member who is |
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of the same rank as the officer being charged. The prosecuting |
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party and the officer being charged may be represented by legal |
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counsel and the officer's counsel shall be given an opportunity to |
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present evidence and arguments related to the issues involved. |
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(c) If an impartial board cannot be convened by the |
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investigating agency, a board of three officers from another |
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jurisdiction shall be convened under the direction of the head law |
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enforcement officer of the law enforcement agency conducting the |
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investigation. |
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(d) An officer of a law enforcement agency appointed to |
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serve on a board under this section is immune from civil liability |
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arising from any act or omission arising out of the officer's |
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service on the board if the member acted in good faith and without |
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malice in carrying out the member's responsibilities or duties. A |
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member of the board is presumed to have acted in good faith and |
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without malice unless proven otherwise. |
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(e) Evidence with a probative value commonly accepted by |
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reasonable and prudent persons in the conduct of their affairs |
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shall be admissible in evidence and given probative effect. The |
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board conducting the hearing shall give effect to the rules of |
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privilege recognized by law and may exclude incompetent, |
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irrelevant, immaterial, and unduly repetitious evidence. All |
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records and documents that any party desires to use shall be offered |
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and made a part of the record. Documentary evidence may be received |
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in the form of copies of excerpts or by incorporation by reference. |
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(f) Every party has the right of cross-examination of |
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witnesses who testify and may submit rebuttal evidence. |
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(g) The board may take notice of judicially cognizable facts |
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and may take notice of general, technical, or scientific facts |
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within the board's specialized knowledge. Parties shall be |
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notified beforehand of the materials noticed by the board. A law |
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enforcement officer may not be adjudged guilty of any offense |
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unless the board is satisfied that guilt has been established by |
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substantial evidence. |
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Sec. 614.1895. EVIDENCE OBTAINED IN VIOLATION OF OFFICER'S |
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RIGHTS. Evidence may not be obtained, received, or admitted into |
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evidence in a proceeding of any disciplinary action that violates |
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any right established by the United States Constitution, the Texas |
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Constitution, or this subchapter. The board appointed under |
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Section 614.1893 may not enter any judgment or sustain any |
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disciplinary action based on evidence obtained in violation of a |
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law enforcement officer's rights under this subchapter. |
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Sec. 614.1896. WRITTEN DECISION AND FINDINGS OF FACT |
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DELIVERED TO OFFICER. (a) A decision, order, or action taken |
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following a hearing under Section 614.168 must be in writing and |
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accompanied by findings of fact. The findings shall consist of a |
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concise statement on each issue in the case. |
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(b) A copy of the decision or order, accompanying findings |
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and conclusions, and the written action and right of appeal, if any, |
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shall be delivered or mailed promptly to the law enforcement |
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officer or to the officer's counsel or representative of record. |
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Sec. 614.1897. PROHIBITED PUNISHMENTS. (a) A law |
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enforcement officer may not be compelled to work extra duty without |
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compensation as a penalty for a disciplinary infraction. |
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(b) A suspension for any period of time provided in a law |
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enforcement agency's rules may not affect the law enforcement |
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officer's eligibility for pension, hospitalization, medical and |
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life insurance coverage, or other benefits specifically protected |
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under the contract of employment. Suspension may affect time of |
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pension eligibility by contractual provision or other law. |
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(c) This subchapter may not be construed to prevent a law |
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enforcement agency from requiring reimbursement by a suspended law |
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enforcement officer of the officer's employee contribution to |
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benefits during the officer's time of suspension. |
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Sec. 614.1898. RETALIATION FOR EXERCISING RIGHTS. A law |
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enforcement officer may not be assessed a penalty or threatened |
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with the assessment of a penalty for exercising the officer's |
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rights under this subchapter. |
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SECTION 2. The changes in law made by this Act apply only to |
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an administrative investigation or a disciplinary hearing begun on |
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or after the effective date of this Act. |
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SECTION 3. This Act takes effect September 1, |