HBA-DMD H.B. 1531 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1531 By: Clark Urban Affairs 3/5/1999 Introduced BACKGROUND AND PURPOSE Currently, there is no procedure to remove complaints from the file of a fire fighter or police officer (officer) which are determined to be groundless. H.B. 1531 requires the chief or head of a fire or police department (department head) to expunge all records, with exceptions, including those records that indicate disciplinary action was recommended or taken against the officer, if the disciplinary action was entirely overturned on appeal by the Fire Fighters' and Police Officers' Civil Service Commission, an independent third-party examiner, or a court of competent jurisdiction. The bill prohibits records from being released to persons or entities other than the officer to whom the record relates or another law enforcement agency or department. However, the bill authorizes a record to be released to a party in a civil or criminal action if the court has determined that the file or part of the file contains information relevant to the action. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter D, Chapter 143, Local Government Code, by adding Section 143.058, as follows: Sec. 143.058. RECORDS RELATED TO DISCIPLINARY ACTIONS OR CHARGES OF MISCONDUCT. (a) Sets forth that this section does not apply to a municipality with a population of 1.5 million or more. (b) Defines "record" as used in this section and Section 143.084 (Civil Service Status and Pension Benefits for Certain Fire Fighters and Police Officers), Local Government Code, as any document, written information, electronically recorded information, or computerized file or information. (c) Requires the chief or head of a fire or police department or that person's equivalent, regardless of the name or title used (department head) to order promptly that the records of a disciplinary action taken against a fire fighter or police officer (officer) be expunged from each file maintained on the officer by that officer's fire or police department (department) provided that the disciplinary action was entirely overturned on appeal by the Fire Fighters' and Police Officers' Civil Service Commission (commission), an independent third-party hearing examiner, or a court of competent jurisdiction. Includes in the records that must be expunged all records that indicate disciplinary action was recommended or taken against the officer, such as the recommendations of a disciplinary committee or a letter of suspension. Sets forth that this subsection does not apply if the officer is charged with using excessive force resulting in a death or injury and the charge is being investigated by a law enforcement or criminal justice agency other than the department. (d) Requires the department to maintain records, only in a file created by the department for the department's use, relating to a disciplinary action against an officer that was overturned on appeal, or any record in the possession of the department relating to a charge of misconduct against an officer, regardless of whether the charge is sustained. Authorizes the department to release only those records relating to a charge of misconduct to another law enforcement agency, fire department, or in accordance with Subsection (e) or Section 143.089(g) or (h), Local Government Code. (e) Authorizes the department head or the department head's designee to forward a record relating to disciplinary action against an officer to the director of fire fighters' and police officers' civil service (director), or the director's designee, to be included in the officer's personnel file maintained under Section 143.089(a)-(f) only if disciplinary action was actually taken against the officer and the record includes at least a brief summary of the facts on which the disciplinary action was based. (f) Provides that the requirements of this section are in addition to the requirements of Section 143.089. Establishes that this section does not prevent an officer from obtaining access to any records maintained by the department on the officer under Section 143.089. SECTION 2. Amends Section 143.089, Local Government Code, by amending Subsection (g) and adding Subsection (h), as follows: (g) Prohibits a department from releasing information in the records, rather than a personnel or department file, on an officer to an agency or person other than the officer to whom the information relates. (h) Authorizes a record maintained under Subsection (g) to be released to a party in a civil or criminal action only if a court of competent jurisdiction has determined that the particular record is relevant to the action and has issued an order setting out the limits on the use of the record, and persons entitled to examine the record, and providing for the return of the record and of any copies made. Authorizes a department head who is a party to the action, or the department head's representative, to stipulate that the file or part of the file is relevant to the action. SECTION 3. Amends Section 143.1214, Local Government Code, as follows: Sec. 143.1214. New Title: RECORDS CONCERNING CHARGES OF MISCONDUCT AND DISCIPLINARY ACTIONS. (a) Requires the department head to order the expunging of the records of a disciplinary action taken against an officer if the disciplinary action was overturned in its entirety on appeal by the commission, an independent third party hearing examiner, or a court of competent jurisdiction. Establishes that records, rather than documents, that must be expunged under this subsection include all records, rather than documents, that indicate disciplinary action was recommended or taken against the officer, such as the recommendation of a disciplinary committee or a letter of suspension. Deletes provisions stating that this subsection does not apply if the disciplinary action was only reduced and not overturned. (b) Requires the department to maintain records, rather than an investigatory document, only in a file created by the department for the department's use, relating to a disciplinary action against an officer that was overturned on appeal, or any record, rather than document, in the possession of the department relating to a charge of misconduct against an officer, whether sustained or not, rather than one the department did sustain. Authorizes the department to release information from such investigatory files only as set out in Subsections (c) and (d), except when releasing information to another law enforcement agency or fire department. Deletes text prohibiting the department from releasing those documents to any agency or other person except another law enforcement agency or fire department. (c) Requires that only those records that set out that discipline was actually received be forwarded by the department head to the personnel file maintained by the director. Requires such records to include a brief summary of the facts on which the discipline was based. Prohibits an investigatory file maintained pursuant to Subsection (b) from being released to any agency or other person except another law enforcement agency or department. (d) Requires that no record that is maintained under Section 143.089(g) in any cause of action, civil or criminal, be released to any party to the action until a court of competent jurisdiction has determined that the particular record is relevant to the action and has issued an order setting out the limits on the use of the record, and persons entitled to examine the record, and providing for the return of the record and of any copies made. Authorizes a department head who is a party to the action, or the department head's representative, to stipulate that the file or part of the file is relevant to the action. (e) Requires that nothing in this section be construed to prevent an officer from having access to any personnel record maintained by the department on the officer under Section 143.089. SECTION 4. Amends Subchapter B, Chapter 614, Government Code, by adding Section 614.024, as follows: Sec. 614.024. RECORDS RELATED TO DISCIPLINARY ACTIONS, COMPLAINTS OR CHARGES OF MISCONDUCT. (a) Sets forth that this section does not apply to a municipality that has adopted Chapter 143 (Municipal Civil Service), Local Government Code. (b) Defines "record" in this section with the meaning assigned in Section 143.058(b). (c) Requires the head of a state agency or the department head to order promptly that the records of a disciplinary action taken against an officer be expunged from each record maintained on the officer by the department if the disciplinary action was entirely overturned on appeal by an entity authorized to consider the appeal or a court of competent jurisdiction. Includes in the records that must be expunged under this subsection all records that indicate disciplinary action was recommended or taken against the officer, such as the recommendations of a disciplinary committee or a letter of suspension. Provides that this subsection does not apply if the officer is charged with using excessive force resulting in a death or injury and the charge is being investigated by a law enforcement or criminal justice agency other than the department. (d) Requires the department or agency to maintain records, only in a file created by the department for the department's use, relating to a disciplinary action against an officer that was overturned on appeal, or any record in the possession of the department that relates to a charge of misconduct against an officer, regardless of whether the charge is sustained. Authorizes the department to only release those records relating to a charge of misconduct to another law enforcement agency or fire department or in accordance with Subsection (e). (e) Authorizes the head of a department or agency or their designee to forward a record relating to disciplinary action against an officer to the custodian of personnel records for the agency or department for inclusion in the officer's personnel file only if disciplinary action was actually taken against the officer, the record shows the disciplinary action taken, and the record includes at least a brief summary of the facts on which the disciplinary action was based. SECTION 5.Effective date: September 1, 1997. Makes application of this Act prospective. SECTION 6.Emergency clause.