HBA-DMD H.B. 1841 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1841 By: Uher Public Safety 4/15/1999 Introduced BACKGROUND AND PURPOSE Currently, the Texas Department of Public Safety (department) investigates complaints of wrongdoing by troopers within the department. Some of the complaints against troopers are filed by officers within the department. In some police departments, most allegations of wrongdoing by police department personnel are investigated by an internal affairs office. H.B. 1841 requires an allegation that a commissioned officer has violated a Public Safety Commission (commission) rule, to be investigated by the department's internal affairs bureau (IAB). This bill requires IAB to prepare a formal charge instrument setting forth each commission rule alleged to have been violated by the officer and describing each alleged action of the officer that is claimed to be a violation of a commission rule and to deliver a copy of the charge instrument to the officer as soon as possible unless, in the opinion of the public safety director (director), prompt notification would interfere with the conduct of a criminal investigation or would jeopardize the health or safety of any person. This bill also provides that IAB has the 28 days after the date the charge instrument is delivered to the officer to conduct its investigation. It requires the director, if IAB recommends discharge, to adopt or reject the recommendation based on the director's review of the investigative file and consideration of any additional evidence or statements submitted by the officer. H.B. 1841 also establishes an appeals process for an officer against whom IAB recommends disciplinary action. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority previously delegated to the Public Safety Commission is modified in SECTION 1 (Section 411.007, Government Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 411.007(e) and (f), Government Code, are amended to read as follows: (e) Authorizes a noncommissioned employee, rather than an officer or employee, who is ordered to be discharged to appeal to the Public Safety Commission (commission). Authorizes an officer who is ordered to be discharged to appeal under Section 411.0073. Authorizes an officer who is subjected to a disciplinary action other than being discharged to appeal under Section 411.0072. Provides that during the appeal of a disciplinary action involving suspension or demotion of an officer, the officer remains suspended or demoted in accordance with the terms of the suspension or demotion. Prohibits the Department of Public Safety (department) from discharging or taking a disciplinary action against, rather than prohibits the department from discharging, suspending, or demoting, a commissioned officer except for the violation of a specific commission rule. Requires the department, before discharging or taking disciplinary action against an officer, to direct the internal affairs bureau (IAB) to conduct an investigation of the alleged rule violation under Section 411.0071. Deletes text requiring the department to deliver a written statement to the officer giving the reasons for the action that is taken, if the department discharges, suspends, or demotes the officer. Deletes text providing that the written statement must point out each commission rule alleged to have been violated by the officer and must describe the alleged acts of the officer that the department contends are in violation of the commission rules. (f) Deletes the provision "after a hearing before the commission" in the requirement of the commission to adopt necessary rules for the appointment, promotion, reduction, suspension, and discharge of all employees. Deletes text entitling a discharged officer or employee, upon applying to the commission, to a public hearing before the commission, which is required to affirm or set aside the discharge. Authorizes a person inducted into the service of the department to be discharged, rather than to be discharged without the public hearing provided for by this subsection, if the public safety director (director), with the advice and consent of the commission, finds the person to be unsuitable for the work, during that person's first year of service. Provides that a discharge of a person during the probationary period is not subject to Sections 411.0071 or 411.0073. Makes conforming changes. SECTION 2. Amends Subchapter A, Chapter 411, Government Code, by adding Sections 411.0071, 411.0072, and 411.0073, as follows: Sec. 411.0071. INTERNAL AFFAIRS INVESTIGATION. (a) Sets forth that this section applies only to the department's administrative investigation of an officer and does not affect the conduct of a criminal investigation by a law enforcement agency of competent jurisdiction. (b) Requires an allegation that a commissioned officer has violated a commission rule to be investigated by the department's IAB. (c) Requires IAB, before beginning its investigation, to prepare a formal charge instrument setting forth each commission rule alleged to have been violated by the officer and describing each alleged action of the officer that is claimed to be a violation of a commission rule. Requires IAB to deliver a copy of the charge instrument to the officer as soon as possible unless, in the opinion of the director, prompt notification would interfere with the conduct of a criminal investigation or would jeopardize the health or safety of any person. (d) Authorizes IAB to commence its investigation on delivery of the charge instrument, but the officer charged is prohibited from being required to answer questions or submit a written response to the charge instrument during the five days after the date the charge instrument is delivered to the officer. Provides that any waiver of the officer's rights under this subsection must be in writing. (e) Requires the officer, if an allegation against an officer involves an alleged violation of state or federal penal law, to be given a written advisory of the officer's privilege against self-incrimination in accordance with Garrity v. New Jersey, 385 U.S. 493 (1967). Entitles the officer to adequate notice of the date and time when the officer's sworn or unsworn testimony concerning the charge is to be compelled and to have legal counsel present during that testimony. Provides that any waiver of the officer's rights under this subsection must be in writing. (f) Provides that IAB has the 28 days after the date the charge instrument is delivered to the officer to conduct its investigation. Authorizes the director to extend the period if good cause is shown by IAB. Provides that at any time during the investigation, the officer has the right to submit sworn or unsworn written statements or other evidence and to have those submissions included in the investigative file. (g) Requires IAB to prepare a report following its investigation that classifies each allegation of the charge instrument as sustained, not sustained, unfounded, or exonerated and that recommends any disciplinary action IAB considers appropriate. Requires IAB, when recommending disciplinary action, to consider and report all relevant factors, including the disciplinary actions imposed in similar cases. Requires IAB to deliver the report to the officer, the director, and the department's legal services division as soon as possible. (h) Requires the director, if IAB recommends discharge, to adopt or reject the recommendation based on the director's review of the investigative file and consideration of any additional evidence or statements submitted by the officer. Sets forth that the director's decision is final unless the officer appeals under Section 411.0073. Sec. 411.0072. APPEAL OF DISCIPLINARY ACTION. (a) Authorizes the officer, if IAB recommends disciplinary action other than discharge, to appeal the classification of the charge and the recommended disciplinary action under this section no later than 10 days after the officer receives IAB's report under Section 411.0071. (b) Authorizes an appeal under this section to be heard by a supervisory officer, with the right of appeal continuing up the chain of command, or by a grievance board. Provides that the officer has a right to legal counsel throughout the appeals process. (c) Requires the classification of the charge and the disciplinary action recommended to be reviewed de novo, in an appeal under this section. Requires the supervisory officer or grievance board hearing the appeal to sustain any charge supported by a preponderance of the credible evidence. Requires the supervisory officer or grievance board, for any charge sustained, to determine and impose an appropriate disciplinary action based on the evidence and testimony in the record, including evidence offered by the officer or by IAB of disciplinary actions imposed in prior similar cases, or any other evidence supporting a greater or lesser disciplinary action than was recommended by IAB. Sec. 411.0073. APPEAL TO STATE OFFICE OF ADMINISTRATIVE HEARINGS. (a) Authorizes the officer, if the director adopts a recommendation of IAB under Section 411.0071 that an officer be discharged to appeal to the State Office of Administrative Hearings. Provides that the contested case provisions of Chapter 2001 (Administrative Procedure), Government Code, apply to the appeal, notwithstanding Section 200l.222 (State Agency Personnel Rules and Practices), Government Code. (b) Provides that an officer must request an appeal to the State Office of Administrative Hearings no later than 10 days following the date the officer is notified that the director has adopted a recommendation of IAB that the officer be discharged. (c) Requires a panel of three administrative law judges, on application by an officer who was ordered to be discharged, to conduct a public hearing on the matter and render a decision that affirms or sets aside the discharge. (d) Sets forth that a decision rendered under Subsection (c) is final. Authorizes the department or the officer to obtain judicial review of the decision in accordance with Chapter 2001. SECTION 3.Effective date: September 1, 1999, and applies only to a discharge or other disciplinary action involving a rule violation alleged to have occurred on or after that date. SECTION 4.Emergency clause.