Can a civilian police review board look at officers' personnel files in Texas?

Plain-English summary

Texas police and fire departments in civil service cities keep two kinds of personnel records. One is the official "civil service file" the civil service director maintains, with strict rules about what goes in and when it can be released. The other, authorized by Local Government Code section 143.089(g), is an internal "department personnel file" that the department keeps "for the department's use." Section 143.089(g) is blunt about confidentiality: the department may not release any information in that file to any outside agency or person, and must refer any such request to the civil service director.

A state representative asked whether a proposed civilian review board, appointed by a home-rule city's governing body and assigned to advise the police chief on disciplinary matters like use of force and officer-involved shootings, could review the section 143.089(g) files. The Attorney General did not answer the question outright. The opinion explained that courts have read "for the department's use" to allow access by a "subsidiary element" of the department or by people in the chain of command, while still forbidding any release outside the department.

So the answer turned on facts the request did not supply. Whether the board could see the files would depend on whether the board is truly part of the department, and on whether its use of the files would be limited to department purposes only. Because the request described the board only in general terms ("exclusively for internal police department purposes") without establishing its status, function, and use limits, the opinion concluded it could not advise whether the board may review the files.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The home-rule city and its proposed review board (what the opinion held): The opinion concluded the answer depends on specific facts: whether the board is part of the department and whether its use of section 143.089(g) files is limited to department purposes. It declined to advise on the question as presented.

Police officers and firefighters (what the opinion described): The opinion described section 143.089(g) files as confidential, with the statute forbidding release to anyone outside the department under any circumstances.

Representative Deshotel and the requestor (what the opinion needed): The opinion explained it could not advise because the request lacked specific information establishing the board's status and function as part of the department and how its use would be limited to department purposes.

Common questions

Can a civilian police review board read officers' internal personnel files in Texas?
The opinion did not decide. It concluded the answer depends on whether the board is genuinely part of the department and limits its use to department purposes.

What does section 143.089(g) actually say about these files?
The opinion described it as letting a department keep an internal personnel file "for the department's use" while barring release of any information in it to anyone outside the department, with outside requests referred to the civil service director.

Who inside a department can use a 143.089(g) file?
The opinion noted that courts have read "the department's use" to include a "subsidiary element" of the department and persons in the chain of command, citing the City of San Antonio civil service decision and Attorney General Opinion JC-0283.

Why couldn't the Attorney General just answer the question?
The opinion explained that the request did not provide the specific facts needed to establish the board's status and function within the department or the limits on its use of the files.

Background and statutory framework

Section 143.089 sets up two personnel files. Subsections (a) through (f) govern the civil service file the director maintains for each firefighter and police officer, including what must and must not be in it, with release allowed only on written consent or as affirmatively required by law. Tex. Loc. Gov't Code Ann. § 143.089 (West 2008); id. § 143.089(a)-(f); id. § 143.089(f); Ealoms v. State, 983 S.W.2d 853, 858 (Tex. App.-Waco 1998, pet. ref'd). Subsection (g) authorizes a separate department personnel file kept "for the department's use," and bars the department from releasing any information in it to any outside agency or person, directing such requests to the director. Id. § 143.089(g).

Courts have read "the department's use" to permit access by a "subsidiary element of the department," while holding that the information is confidential and may not be released to anyone outside the department under any circumstances. City of San Antonio v. Tex. Att'y Gen., 851 S.W.2d 946, 951 (Tex. App.-Austin 1993, writ denied). Other decisions reinforce that a subsection (g) file, if kept, is for the department's use and protected from release, that the nature of the information controls, and that a court may inspect such a file in camera in appropriate proceedings. In re Jobe, 42 S.W.3d 174, 180 (Tex. App.-Amarillo 2001, no pet.); City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561 n.1, 563-65 (Tex. App.-San Antonio 2000, pet. denied). The Public Information Act treats distribution of confidential information as a criminal offense and limits use of confidential information to the purpose for which it was received, treating an advisory-committee member who obtains such information as an officer or employee of the governmental body. Tex. Gov't Code Ann. § 552.352(a) (West 2004); id. § 552.352(a-1)(1); id. § 552.352(a-2).

Applying that framework, the opinion explained that whether a civilian advisory board may view a section 143.089(g) file depends on the board's status and function as part of the department and on whether its use is limited to department purposes, both fact-specific. City of San Antonio, 851 S.W.2d at 951; Tex. Att'y Gen. Op. No. JC-0283 (2000). Because the request did not supply those facts, the opinion declined to advise.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 143.089 (West 2008)
• Tex. Loc. Gov't Code Ann. § 143.089(g) (West 2008)
• Tex. Loc. Gov't Code Ann. § 143.089(a)-(f) (West 2008)
• Tex. Loc. Gov't Code Ann. § 143.089(f)
• Tex. Gov't Code Ann. § 552.352(a) (West 2004)
• Tex. Gov't Code Ann. § 552.352(a-1)(1)
• Tex. Gov't Code Ann. § 552.352(a-2)

Cases and opinions:

• Ealoms v. State, 983 S.W.2d 853, 858 (Tex. App.-Waco 1998, pet. ref'd)
• City of San Antonio v. Tex. Att'y Gen., 851 S.W.2d 946, 951 (Tex. App.-Austin 1993, writ denied)
• In re Jobe, 42 S.W.3d 174, 180 (Tex. App.-Amarillo 2001, no pet.)
• City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561 n.1, 563-65 (Tex. App.-San Antonio 2000, pet. denied)
• Tex. Att'y Gen. Op. No. JC-0283 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0818
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0818.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 19, 2010

The Honorable Joe Deshotel Opinion No. GA-0818
Chair, Committee on Business and Industry
Texas House of Representatives Re: Whether a civilian advisory committee to the
Post Office Box 2910 police chief may review information maintained in
Austin, Texas 78768-2910 a police department personnel file under Local
Government Code, section 143.089(g)
(RQ-0869-GA)

Dear Representative Deshotel:

Local Government Code section 143.089(g) authorizes a fire or police department to "maintain a personnel file on a fire fighter or police officer employed by the department for the department's use" and imposes certain restrictions on disclosure of material in such a file. TEX. LOC. GOV'T CODE ANN. § 143.089(g) (West 2008). You inform us that a home-rule municipality is contemplating establishing a "police civilian review board" (the "Board"), which would be appointed by the municipality's governing body "and assigned to the police chief to serve as an advisory body to the chief in the review of disciplinary matters involving such issues as use of force, official oppression, discharging firearms, infliction of serious bodily injury to another or any other internal investigation assigned and approved by the chief."[1] You ask whether such a Board may review information maintained in a police department personnel file under Texas Local Government Code section 143.089(g). Request Letter at 1.

Section 143.089 provides for two different personnel files. TEX. LOC. GOV'T CODE ANN. § 143.089 (West 2008); Ealoms v. State, 983 S.W.2d 853, 858 (Tex. App.-Waco 1998, pet. ref'd). Subsections (a) through (f) concern the file that a director of a civil service commission must maintain for each fire fighter and police officer (a "civil service file"). TEX. LOC. GOV'T CODE ANN. § 143.089(a)-(f) (West 2008). These subsections further specify information that both must and must not be in such a file. Id. The director may release information in a fire fighter's or police officer's civil service file only with the person's written consent or as otherwise affirmatively required by law. Id. § 143.089(f).

Subsection (g) allows a fire or police department to maintain a personnel file (a "department personnel file") separate from and independent of the civil service file:

A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file.

Id. § 143.089(g) (emphasis added). A member of the department or "a subsidiary element of the department" may use or access a department personnel file "for the department's use." See City of San Antonio v. Tex. Att'y Gen., 851 S.W.2d 946, 951 (Tex. App.-Austin 1993, writ denied) (observing that "[t]here is no suggestion in the statute that [department] 'use' may not include use or physical control by a subsidiary element of the department").[2] However, information in a department personnel file is confidential, "and the statute expressly forbids [its] release to anyone [outside the department] under any circumstances." Id. at 949, 952.[3] Consequently, subsection (g) allows the department or a "subsidiary element of the department" to use a department personnel file, but prohibits its disclosure to others. Id.[4]

Whether members of a civilian advisory board may view a personnel file under section 143.089(g) of the Local Government Code will depend on (1) the Board's status and function as a part of the department and (2) limitations on the board's use of subsection (g) files to department purposes only, which will depend on the specific facts of the Board's appointment. See City of San Antonio, 851 S.W.2d at 951; Tex. Att'y Gen. Op. No. JC-0283 (2000) at 2-3 (department personnel file could be utilized by persons in the "chain of command"). While you state in general terms that the Board would be appointed "exclusively for internal police department purposes," you have not provided specific information establishing the Board's status and function as a part of the department, or how the Board's use of subsection (g) files will be limited to department purposes. See Request Letter at 2. Consequently, we are unable to advise whether a civilian advisory committee may review information maintained in a police department personnel file under Texas Local Government Code section 143.089(g).

SUMMARY

Whether a civilian advisory committee may review information maintained in a police department personnel file under Texas Local Government Code section 143.089(g) will depend on specific facts establishing the committee as part of the department and limiting the committee's use of the files to department purposes only.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Request Letter at 1 (available at http://www.texasattorneygeneral.gov).

[2] See also In re Jobe, 42 S.W.3d 174, 180 (Tex. App.-Amarillo 2001, no pet.) (stating that "a [subsection] (g) file is not required to be maintained, but if one is maintained, it is for the department's use, the material may not be released by the department, and any requests for information will be referred to the director or the director's designee"); City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561 n.1, 563-65 (Tex. App.-San Antonio 2000, pet. denied) (concluding that the nature of information, rather than the identity of the departmental unit that maintains it, determines whether subsection (g) precludes its disclosure).

[3] See also In re Jobe, 42 S.W.3d at 181 (concluding that if a civil court's review power is properly invoked, it may conduct an in camera inspection to determine if information in a subsection (g) file should have been placed in the civil service file); Ealoms, 983 S.W.2d at 859 (stating that department subsection (g) files are "privileged by statute," but may be reviewed in camera by a trial court in a criminal case).

[4] The Public Information Act proscribes the distribution of confidential information as a criminal offense. TEX. GOV'T CODE ANN. § 552.352(a) (West 2004). Section 552.352 also precludes an officer or employee from using confidential information "for a purpose other than the purpose for which the information was received or for a purpose unrelated to the law that permitted the officer or employee to obtain access to the information." Id. § 552.352(a-1)(1). For purposes of subsection (a-1), "a member of an advisory committee to a governmental body who obtains access to confidential information in that capacity is considered to be an officer or employee of the governmental body." Id. § 552.352(a-2).