87R21336 JCG-D

By: White, et al. H.B. No. 1396

Substitute the following for H.B. No. 1396:

By: White C.S.H.B. No. 1396

A BILL TO BE ENTITLED

AN ACT

relating to law enforcement agencies and policies and procedures affecting peace officers.

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

SECTION 1. Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.1308 to read as follows:

Art. 2.1308. CERTAIN POLICIES REQUIRED. (a) In this article:

(1) "Law enforcement agency" means an agency of this state or an agency of a political subdivision of this state authorized by law to employ peace officers.

(2) "No-knock entry" means a peace officer's entry, for the purpose of executing a warrant, into a building or other place without giving notice of the officer's authority or purpose before entering.

(b) Each law enforcement agency, in consultation with judges, prosecutors, commissioners courts, governing bodies of municipalities, and residents located within the agency's jurisdiction, shall adopt written policies regarding:

(1) the issuance of citations for misdemeanor offenses, including traffic offenses, that are punishable by fine only;

(2) the use of a no-knock entry by a peace officer of the law enforcement agency; and

(3) the intervention by a peace officer of the agency to stop or prevent another peace officer from using excessive force against a person suspected of committing an offense.

(c) A policy adopted under this article must:

(1) be approved by a district judge or the judge of a county court at law in the jurisdiction served by the law enforcement agency; and

(2) ensure judicial efficiency, law enforcement efficiency and effectiveness, and community safety.

(d) In addition to the requirements of Subsection (c), the policy required by Subsection (b)(1) must:

(1) provide a procedure for a peace officer, on a person's presentation of appropriate identification, to verify the person's identity and issue a citation to the person; and

(2) comply with Article 14.06 of this code and Section 543.004, Transportation Code.

SECTION 2. Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.1397 to read as follows:

Art. 2.1397. DUTIES OF LAW ENFORCEMENT AGENCY REGARDING PEACE OFFICER MISCONDUCT. (a) In this article:

(1) "Commission" means the Texas Commission on Law Enforcement.

(2) "Law enforcement agency" means an agency of this state or an agency of a political subdivision of this state authorized by law to employ peace officers.

(b) The commission by rule shall require each law enforcement agency to report to the commission:

(1) each substantiated incident of misconduct by a peace officer employed by the agency, including:

(A) a conviction for a criminal offense committed in the course of performing the officer's duties;

(B) the use of excessive force against a person suspected of committing an offense;

(C) conduct that constitutes a felony or a Class A or B misdemeanor, regardless of whether the criminal offense is prosecuted;

(D) sexual harassment involving physical contact or misuse of official capacity;

(E) the misuse of official capacity or misappropriation of property, including the misuse of a law enforcement database or criminal records;

(F) an unprofessional relationship with a person arrested, detained, or otherwise in the custody of the peace officer or the law enforcement agency;

(G) any false statements made by the officer in obtaining employment with the law enforcement agency;

(H) tampering with or fabricating physical evidence of a criminal offense; or

(I) tampering with a governmental record, including making false statements in the record or altering, destroying, or concealing the record; and

(2) for each substantiated incident of misconduct reported under Subdivision (1), whether the agency terminated or took disciplinary action against the peace officer or permitted the peace officer to retire or resign in lieu of termination for the misconduct.

(c) The rules adopted under Subsection (b) must provide for the manner in which the report is to be submitted to the commission, including prescribing a form for use in reporting information under this article.

(d) The commission shall make information reported to the commission under this article accessible by all law enforcement agencies in this state.

(e) The commission may make information regarding an incident of misconduct that is reported to the commission under this article available to a federal law enforcement agency that is investigating the incident.

(f) Except as provided by Subsections (d) and (e), a report submitted to the commission under this article is confidential and not subject to disclosure under Chapter 552, Government Code.

(g) As soon as practicable after each regularly scheduled commission meeting, the commission shall make available on its Internet website a report regarding incidents of misconduct reported since the commission's previous report under this subsection. The report must include:

(1) the total number of incidents reported to the commission under this article and the number reported since the previous report; and

(2) information regarding:

(A) the most common types of misconduct reported;

(B) disciplinary action taken by the law enforcement agency, including termination or permitting the peace officer to retire or resign in lieu of termination; and

(C) any disciplinary action taken by the commission.

SECTION 3. Subchapter A, Chapter 772, Government Code, is amended by adding Section 772.0055 to read as follows:

Sec. 772.0055. LIMITATION ON ELIGIBILITY FOR GRANT. (a) In this section, "law enforcement agency" means an agency of this state or an agency of a political subdivision of this state authorized by law to employ peace officers.

(b) Notwithstanding any other law, to be eligible to receive a grant or other discretionary funding by the governor, a law enforcement agency must:

(1) consistently report incidents of misconduct as required by Article 2.1397, Code of Criminal Procedure; and

(2) maintain a current certification, issued by a credentialing entity designated under Section 1701.165(d), Occupations Code, certifying that the agency's policies regarding use of force by peace officers:

(A) comply with all applicable laws; and

(B) prohibit the use of choke holds or other physical maneuvers to restrict a person's ability to breathe for purpose of incapacitation, unless the officer is justified in using deadly force against the person.

(c) For purposes of Subsection (b)(1), on request, the Texas Commission on Law Enforcement shall provide information to the governor's office regarding reporting of incidents of misconduct by a law enforcement agency.

SECTION 4. Subchapter D, Chapter 1701, Occupations Code, is amended by adding Sections 1701.165, 1701.166, and 1701.167 to read as follows:

Sec. 1701.165. ADVISORY COMMITTEE ON LAW ENFORCEMENT AGENCY CREDENTIALING ENTITIES. (a) The commission shall establish an advisory committee to advise the commission regarding law enforcement agency credentialing entities.

(b) The advisory committee must include representatives of:

(1) municipal and county law enforcement agencies, including agencies of varying size and from different areas of this state;

(2) the Department of Public Safety;

(3) the Texas Department of Criminal Justice; and

(4) entities that operate correctional facilities under contract with a county or the Texas Department of Criminal Justice.

(c) The advisory committee shall review entities that provide credentialing to law enforcement agencies and shall identify credentialing entities that, at a minimum, establish standards and processes for reviewing adherence to the standards in the following aspects of a law enforcement agency's operations:

(1) policies and training regarding use of force and de-escalation techniques;

(2) performance management tools;

(3) procedures to ensure prompt identification of peace officers requiring intervention; and

(4) best practices regarding community engagement.

(d) The commission shall designate, for purposes of certifying that the policies of a law enforcement agency comply with the requirements of Section 772.0055(b)(2), Government Code, one or more of the credentialing entities identified by the advisory committee under Subsection (c).

Sec. 1701.166. COORDINATED RESPONSE PROGRAM MODEL POLICY. (a) In this section, "coordinated response program" means a program operated by a law enforcement agency in which a peace officer and a mental health professional jointly respond to a report of an alleged offense or other incident involving a person with a mental impairment, suffering from homelessness, or experiencing similar circumstances.

(b) The commission, in consultation with the Health and Human Services Commission and state and local law enforcement agencies, shall develop and make available to all law enforcement agencies in this state a model policy and associated training materials regarding the operation of a coordinated response program.

(c) In developing the model policy, the commission shall:

(1) survey coordinated response programs implemented in this state or another state; and

(2) consider the creation of specialized training programs for officers and mental health professionals participating in a coordinated response program.

Sec. 1701.167. CERTAIN MODEL POLICIES. (a) In this section, "no-knock entry" has the meaning assigned by Article 2.1308, Code of Criminal Procedure.

(b) The commission, in consultation with the Bill Blackwood Law Enforcement Management Institute of Texas and any other interested parties selected by the commission, shall develop and make available to all law enforcement agencies in this state model policies and associated training materials regarding:

(1) the issuance of citations for misdemeanor offenses, including traffic offenses, that are punishable by fine only;

(2) the use of a no-knock entry by a peace officer;

(3) the intervention by a peace officer to stop or prevent another peace officer from using excessive force against a person suspected of committing an offense;

(4) the prohibition on the use of a choke hold, carotid artery hold, or similar neck restraint by a peace officer, unless the officer reasonably believes the restraint is necessary to prevent serious bodily injury to or the death of the peace officer or another person; and

(5) the duty of a peace officer acting in an official capacity to render aid to a person who has suffered serious bodily injury from the use of force, unless the officer reasonably believes the provision of aid is likely to cause serious bodily injury to or the death of the peace officer or another person.

SECTION 5. Section 1701.451(c), Occupations Code, is amended to read as follows:

(c) If the commission receives from a law enforcement agency a 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 6. Sections 1701.452(a), (b), (d), and (g), Occupations Code, are amended to read as follows:

(a) The head of a law enforcement agency or the head's designee shall submit a report to the commission on a form prescribed by the commission regarding a person licensed under this chapter [who resigns or retires from employment with the law enforcement agency, whose appointment with the law enforcement agency is terminated, or] who separates from the law enforcement agency for any [other] reason. The report must be submitted by the head or the designee not later than the seventh business day after the date the license holder:

(1) [resigns, retires, is terminated, or] separates from the agency; and

(2) exhausts all administrative appeals available to the license holder, if applicable.

(b) The head of a law enforcement agency or the head's designee shall indicate [include] in the report required under Subsection (a) [a statement on] whether the license holder was eligible for an honorable discharge or suspected of misconduct, regardless of whether the license holder was terminated for misconduct [honorably discharged, generally discharged, or dishonorably discharged and, as required by the commission, an explanation of the circumstances under which the person resigned, retired, or was terminated]. For purposes of this subsection:

(1) "Honorable discharge" ["Honorably discharged"] means the discharge of a license holder who, while in good standing and not under suspicion of committing misconduct, is [because of pending or final disciplinary actions or a documented performance problem, retired, resigned, or] separated from employment with or died while employed by a law enforcement agency.

(2) "Misconduct" includes conduct by a license holder that is criminal conduct, regardless of whether the license holder was arrested for, charged with, or convicted of an offense ["Generally discharged" means a license holder who:

[(A) was terminated by, retired or resigned from, or died while in the employ of a law enforcement agency and the separation was related to a disciplinary investigation of conduct that is not included in the definition of dishonorably discharged; or

[(B) was terminated by or retired or resigned from a law enforcement agency and the separation was for a documented performance problem and was not because of a reduction in workforce or an at-will employment decision].

[(3) "Dishonorably discharged" means a license holder who:

[(A) was terminated by a law enforcement agency or retired or resigned in lieu of termination by the agency in relation to allegations of criminal misconduct; or

[(B) was terminated by a law enforcement agency or retired or resigned in lieu of termination by the agency for insubordination or untruthfulness.]

(d) The head of the law enforcement agency from which a license holder [resigns, retires, is terminated, or] separates for reasons other than death, or the head's designee, shall provide to the license holder a copy of the report. The report must be provided to the license holder not later than the seventh business day after the date the license holder:

(1) [resigns, retires, is terminated, or] separates from the agency; and

(2) exhausts all administrative appeals available to the license holder, if applicable.

(g) The head of a law enforcement agency or the head's designee must submit a report under this section each time a person licensed under this chapter [resigns, retires, is terminated, or] separates for any [other] reason from the agency. The report is an official government document.

SECTION 7. Sections 1701.4525(a), (d), and (e), Occupations Code, are amended to read as follows:

(a) A person who is the subject of an employment termination report maintained by the commission under this subchapter may contest an indication under Section 1701.452(b) that the person was suspected of misconduct [information] contained in the report by submitting to the law enforcement agency and to the commission a written petition on a form prescribed by the commission for a correction of the report not later than the 30th day after the date the person receives a copy of the report. On receipt of the petition, the commission shall refer the petition to the State Office of Administrative Hearings.

(d) A proceeding to contest an indication of misconduct [information] in an employment termination report is a contested case under Chapter 2001, Government Code.

(e) In a proceeding to contest an indication of misconduct [information] in an employment termination report [for a report based on alleged misconduct], an administrative law judge shall determine if the alleged misconduct occurred by a preponderance of the evidence regardless of whether the person who is the subject of the report was terminated for the misconduct [or the person resigned, retired, or separated in lieu of termination]. If the alleged misconduct is not supported by a preponderance of the evidence, the administrative law judge shall order the commission to change the report. The commission shall send the changed report to the law enforcement agency that prepared the original employment termination report. The law enforcement agency shall replace the original employment termination report with the changed report.

SECTION 8. Section 1701.456(b), Occupations Code, is amended to read as follows:

(b) A law enforcement agency, agency head, or other law enforcement official is not liable for civil damages for:

(1) a report made by that agency or person if the report is made in good faith; or

(2) making a person's employment records available to a hiring law enforcement agency under Section 1701.451(a-1).

SECTION 9. Subchapter J, Chapter 1701, Occupations Code, is amended by adding Section 1701.459 to read as follows:

Sec. 1701.459. CERTAIN AGREEMENTS RELATED TO EMPLOYMENT RECORDS PROHIBITED. A person licensed under this chapter may not enter into an agreement with a law enforcement agency employing the person under which the agency is prohibited from making the person's employment records available to another law enforcement agency under Section 1701.451(a-1).

SECTION 10. Section 1701.501(a), Occupations Code, is amended to read as follows:

(a) Except as provided by Subsection (d), the commission shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder if the license holder has:

(1) engaged in conduct constituting a felony or a Class A or B misdemeanor; or

(2) violated [for a violation of]:

(A) [(1)] this chapter;

(B) [(2)] the reporting requirements provided by Articles 2.132 and 2.134, Code of Criminal Procedure; or

(C) [(3)] a commission rule.

SECTION 11. The following provisions of the Occupations Code are repealed:

(1) Section 1701.452(c);

(2) Section 1701.4521; and

(3) Section 1701.454.

SECTION 12. Section 772.0055, Government Code, as added by this Act, applies only to a grant awarded by the office of the governor on or after September 1, 2022. A grant awarded before September 1, 2022, is 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 13. Not later than the 180th day after the date the Texas Commission on Law Enforcement makes available the model policies required by Section 1701.167, Occupations Code, as added by this Act, each law enforcement agency shall adopt the policies required by Article 2.1308, Code of Criminal Procedure, as added by this Act.

SECTION 14. (a) Not later than June 1, 2022, the Texas Commission on Law Enforcement shall:

(1) adopt the rules required by Article 2.1397, Code of Criminal Procedure, as added by this Act;

(2) publish on the commission's Internet website the first report required by Article 2.1397(g), Code of Criminal Procedure, as added by this Act;

(3) establish the advisory committee required by Section 1701.165, Occupations Code, as added by this Act; and

(4) develop and make available the model policies and associated training materials required by Sections 1701.166 and 1701.167, Occupations Code, as added by this Act.

(b) Not later than June 1, 2022, the Texas Commission on Law Enforcement shall designate one or more credentialing entities as required by Section 1701.165, Occupations Code, as added by this Act.

SECTION 15. Not later than December 1, 2021, the Texas Commission on Law Enforcement shall update the form for an employment termination report as necessary to comply with Section 1701.452, Occupations Code, as amended by this Act.

SECTION 16. The changes in law made by this Act to Subchapter J, Chapter 1701, Occupations Code, apply only to a report required to be submitted under Section 1701.452, Occupations Code, as amended by this Act, regarding a separation of a license holder that occurs on or after December 1, 2021. A separation that occurs before December 1, 2021, is 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 17. Section 1701.501(a), Occupations Code, as amended by this Act, applies only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before the effective date of this Act is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 18. This Act takes effect September 1, 2021.