BILL ANALYSIS

C.S.H.B. 4966

By: King, Ken

Homeland Security & Public Safety

Committee Report (Substituted)

BACKGROUND AND PURPOSE

According to the 2022 Texas Law Enforcement Data Landscape report from Texas 2036 and Benchmark Analytics, between 2012 and 2022, at least 1,400 dishonorably discharged peace officers were rehired at another agency in Texas. This report also shows that during that same period thousands more officers with a documented performance or disciplinary problem were rehired. While recent polling from Texas 2036 shows that most Texans trust their local law enforcement, an article published in The Yale Law Journal by Ben Grunwald and John Rappaport shows that so-called "wandering officers" are more likely to engage in misconduct than their peers when they are rehired, which only erodes trust in law enforcement.

As the Texas Commission on Law Enforcement (TCOLE) has recognized, the current F-5 system where agencies report separations to TCOLE by a "discharge" category is deeply flawed and nontransparent. In the 87th Regular Session, the legislature made significant progress on this issue with the passage of S.B. 24, which required stricter pre-employment background checks, including a review of a prospective officer's personnel files at their prior employing agency. However, the flawed F-5 discharge system remains.

According to the Sunset Advisory Commission's 2022 staff report on TCOLE, there are more than 2,800 law enforcement agencies in Texas. Many of these are small and associated with municipalities, counties, school districts, private universities, hospitals, and airports. With so many agencies, there is no guarantee that personnel and employment records will have a sufficiently detailed record of the officer's service, assuming there are records in the first place.

C.S.H.B. 4966 seeks to improve upon the progress made by S.B. 24 in two fundamental ways. First, the bill seeks to require all law enforcement agencies to operate under substantively similar personnel record-keeping standards. Second, the bill seeks to reform the flawed "discharge" reporting system at TCOLE by doing away with the discharge categories in favor of neutral, fact-based descriptions of the nature and relevant circumstances of an officer's separation while also giving the officer the right to file their own statement characterizing their separation.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the Texas Commission on Law Enforcement in SECTIONS 5 and 8 of this bill.

ANALYSIS

C.S.H.B. 4966 amends the Occupations Code to require the Texas Commission on Law Enforcement (TCOLE), not later than December 1, 2023, to adopt a model policy applicable to the maintenance of personnel files by a law enforcement agency. The bill requires the policy to identify the types of documents that must be placed in the personnel file of a person who holds a license issued by TCOLE under statutory provisions governing law enforcement officers, specify the purposes for which information in the file may be disclosed, and comply with laws applicable to employment records. The bill requires each law enforcement agency in Texas, not later than January 1, 2024, to adopt the model policy or a substantively similar policy.

C.S.H.B. 4966 removes provisions authorizing a person who is the subject of an F-5 employment termination report to contest information contained in the report by petitioning for the correction of the report and provisions requiring TCOLE to refer the petition to the State Office of Administrative Hearings for an F-5 hearing on receipt of the petition. The bill provides instead for the person's authority to contest information contained in the report by submitting a written statement to TCOLE and the applicable law enforcement agency and requires TCOLE to adopt rules prescribing the manner in which a license holder may file an amended statement based on new information. The bill makes a statement submitted by a license holder confidential and exempt from disclosure under state public information law unless the license holder expressly elects to make the information available to the public.

C.S.H.B. 4966 removes provisions providing for the designation on an F-5 employment termination report regarding whether the person separating from employment was discharged generally, honorably, or dishonorably and requires instead that the nature of the separation be indicated as "retired," "resigned," "terminated," or "deceased." The bill revises statutory provisions related to the employment termination reports accordingly and further provides the following:

· the circumstances of the separation of employment indicated in the report must include whether the separation:

o occurred during a pending investigation into the license holder's conduct;

o resulted from a substantiated instance of:

§ a violation of law, other than a traffic offense;

§ a violation of the agency's use of force policy; or

§ misconduct; or

o related to a violation of any other TCOLE rule;

· TCOLE by rule may further specify the circumstances and nature of a separation that must be included in the report; and

· TCOLE must indicate on the report whether the license holder submitted a statement seeking to contest information in the report.

The bill subjects the nature of a license holder's separation to disclosure under state public information law.

C.S.H.B. 4966 entitles TCOLE to access records maintained under state law governing law enforcement employment records and preemployment procedure by an agency hiring a person to be a peace officer, reserve law enforcement officer, or county jailer. The bill revises the preemployment procedures for law enforcement agencies to require an agency to submit to TCOLE before hiring a license holder confirmation that the agency, to the best of its ability, obtained and reviewed any statement by the license holder submitted to contest information in an F-5 employment termination report maintained by TCOLE.

C.S.H.B. 4966 requires TCOLE to adopt the rules necessary to implement the bill's provisions not later than December 1, 2023, and establishes that the bill applies only to the separation or hiring of a license holder that occurs on or after January 1, 2024.

C.S.H.B. 4966 repeals Section 1701.4521, Occupations Code, relating to license suspension for a dishonorably discharged license holder who has previously been dishonorably discharged from another law enforcement agency.

EFFECTIVE DATE

September 1, 2023.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 4966 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

The substitute omits the provisions from the introduced that required a law enforcement agency to maintain a personnel file on each license holder and provided for the following with respect to such a file:

· the required contents of a personnel file;

· the evidentiary standard for including items alleging misconduct in a personnel file;

· the inclusion of supporting information for certain items in a personnel file;

· the removal of items from a personnel file if required by other law;

· notification to the license holder regarding the inclusion of negative items in a personnel file and the license holder's authority to file a written response;

· the right of a license holder to receive copies of items in their personnel file;

· restrictions on the release of information contained in a personnel file;

· the maintenance of a separate confidential personnel file for internal agency use; and

· a grant of rulemaking to TCOLE to administer the provisions regarding personnel files.

The substitute requires TCOLE instead to adopt a model policy applicable to the maintenance of personnel files by a law enforcement agency that identifies the types of documents that must be placed in a personnel file, specifies the purposes for which information may be disclosed, and complies with laws applicable to employment records and requires each law enforcement agency to adopt that model policy or a substantially similar policy. Accordingly, the substitute includes provisions not in the introduced establishing deadlines for TCOLE to adopt the model policy and for each agency to adopt an agency policy.

Both the introduced and the substitute provide for the amendment of a statement contesting information contained in an F-5 employment termination report. However, whereas the introduced authorized a person to file an amendment to the statement after the 30th day after the date the person receives a copy of the report in a manner prescribed by TCOLE, the substitute requires TCOLE to adopt rules prescribing the manner in which a license holder may file an amended statement based on new information.