The Field Review - Local

Only 1 Kyle Police Officer Disciplined in 2021

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Only 1 Kyle Police Officer Disciplined in 2021

In Texas, under Chapter 143 of the Local Government Code, members of the Fire Fighters’ and Police Officers’ Civil Service Commission are provided certain rights and privileges.

One of the rights or privileges is related to what types of disciplinary actions are releasable to the public. Under sections 143.051-055 of the same code, a disciplinary action is defined as a removal, suspension, demotion, or uncompensated duty. These types of actions must be made public if requested through the Texas Open Records Act.

The City of Kyle, in its Usual Fashion, Attempts to Have Records Withheld

The initial request for the disciplinary records for the 2021 calendar year, was made on May 15, 2022. On August 11, 2022, the Texas Attorney Generals Office made its ruling. The City of Kyle attempted to have everything withheld from the public. Key parts of the ruling are as follows:

Gov’t Code § 552.022(a)(l). The submitted information consists of a completed internal investigation subject to section 552.022(a)(l) of the Government Code. The city must release the information subject to section 552.022(a)(l) unless it is excepted from disclosure under section 552.l 08 of the Government Code or expressly made confidential under the Act or other law.

Section 552.101 of the Government Code excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.”

Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. Id. §§ 143.051-.055. In cases in which a police department investigates a police officer’s misconduct and takes disciplinmy action against an officer, it is required by section 143.089(a)(2) to place all investigatory records relating to the investigation and disciplinmy action, including background documents such as complaints, witness statements, and documents of like nature from individuals who were not in a supervisory capacity, in the police officer’s civil service file maintained under section 143.089(a). See Abbott v. Corpus Christi, 109 S.W.3d 113,122 (Tex. App.-Austin 2003, no pet.).

All investigatory materials in a case resulting in disciplinary action are “from the employing department” when they are held by or are in the possession of the city because of its investigation into a police officer’s misconduct, and the city must forward them to the civil service commission for placement in the civil service personnel file.

You state the information at issue is contained in the personnel file of the named officer that is maintained under section 143.089(g). However, upon review, we note the information at issue consists of records relating to an investigation of misconduct that resulted in disciplinary action against the officer.

While this information may be kept in the internal file maintained under section l43.089(g), it must also be kept in the civil service personnel file maintained under section 143.089(a). See Local Gov’t Code § 143.089(a)(l),(3).

In this instance, the request was received by the city, which has access to the files maintained under both sections 143.089(a) and 143.089(g). Consequently, the request encompasses both of these files. Therefore, the city may not withhold any portion of the submitted information, which is maintained in the section 143.089(a) file, under section 552.101 of the Government Code in conjunction with section l43.089(g) of the Local Government Code.

In summary, the city must withhold: (1) the CR-3 accident report we have marked under section 552.101 of the Government Code in conjunction with section 550.065(b) of the Transportation Code; (2) the motor vehicle record information we have marked under section 552.130 of the Government Code; and (3) the personal e-mail address we have marked under section 552.137 of the Government Code, unless the owner affirmatively consents to its public disclosure. The city must release the remaining information.

Texas OAG – OR2022-23926

On August 24, 2022, the City of Kyle released the records it had related to disciplinary actions. In this case, only one member of the City of Kyle Police Department received discipline. No non-civil service discipline was identified by the City of Kyle to be considered to be withheld.

1 Kyle Police Officer Suspended for an Accident

On the morning of August 20, 2020, [Kyle Police Officer Lacey Carnes was] involved in a motor vehicle accident while on-duty and while driving a marked police vehicle. [Officer Carnes] struck a civilian’s truck, causing damage to the police vehicle’s passenger side mirror and the driver side mirror of the civilian’s truck. It was observed through [Officer Carnes] in-car camera that [Officer Carnes was] traveling in the inside shoulder of IH-35 North.

[Officer Carnes was] responding to an accident, but due to anther accident, traffic on IH-35 North was extremely congested and almost at a complete standstill. [Officer Carnes was] driving on the inside shoulder at what appeared to be an unsafe speed. AVL records show that [Officer Carnes] traveled at nearly 50 mph. To the left side was the concrete retaining wall and to [Officer Carnes’s] right was a continuous line of stopped vehicles in the left lane on IH-35 North.

After the collision, [Officer Carnes] failed to stop at the scene of the crash. [Officer Carnes] didn’t even begin to slow down until right before [Officer Carnes] came to a stop. Approximately 22 seconds after impact [Officer Carnes] deactivate[d] the siren to [Officer Carnes’s] police vehicle, but continued to travel North at approximately 30 mph. [Officer Carnes] continued to travel for approximately another half mile (approximately 50 seconds) at which time [Officer Carnes] stopped and reattached the mirror of the police vehicle. [Officer Carnes] then continue[d] to travel for approximately another three quarters of a mile at which time [Officer Carnes] stop[ped] again and eventually turn[ed] off [the] body camera and the in-car camera.

After the collision [Officer Carnes] at no tie [made] any attempt to notify dispatch that [Officer Carnes was] involved in an accident, nor did [Officer Carnes] make any attempt to notify [the] supervisor that [Officer Carnes was] involved in an accident as required by department policy. [Officer Carnes] made no attempt to locate the vehicle [Officer Carnes] struck as required by state law, nor did [Officer Carnes] make any attempt to return to the location of the crash as required by law.

Pedro F. Hernandez, Police Captain, Findings memorandum IA 2020-10

Officer Carnes received a three day suspension from February 12, 2021 through February 15, 2021.

In Determining Suspension, Counselings After the Incident Date are Used

The “Notice of Disciplinary Suspension Without Pay Ref IA 2020-10,” indicated Officer Carnes to have the following written or verbal actions:

  • January 7, 2021 – Verbal Counseling – Officer Safety Issue – Building Entry
  • January 7. 2021 – Verbal Counseling – Pursuit – Safety
  • May 20, 2020 – Written Reprimand – Auto/Ped Accident

Hays County District Attorney’s Office was Contacted

[Captain Pedro Hernandez] determined that Officer Lacey Carnes ha[d] violated numerous City of Kyle/Kyle Police Department Polices as well as state law under the Texas Transportation Code.

On September 5, 2020, [Captain Hernandez] spoke with the owner of the vehicle that Officer Carnes struck. She advised that they did not want to see the Officer face any criminal charges. [Captain Hernandez] recorded this interview on [his] department issued body camera.

On September 8, 2020, at approximately 4:53 pm [Captain Hernandez] spoke with First Assistant Hays County District Attorney, Ralph Guerrero.

[Captain Hernandez] reviewed the case with him and explained that the complainant had already decided that they didn’t wish for Officer Carnes to face criminal charges. Guerrero advised that due to that and the fact that our agency does not file charges on all hit and run cases, he was ok with us handling this administration and there was no need to forward a case report to his office for review.

Initially there [were] some questions as to whether Officer Carnes had been dishonest. After interviewing her, the response that she gave were feasible, therefore [Captain Hernandez] could not substantiate the untruthfulness allegations.

It [was Captain Hernandez’s] recommendation that for violating numerous policies and specifically state law, that Officer Carnes receive an indefinite suspension from the Kyle Police Department.

Pedro F. Hernandez Jr. Police Captain, Findings memorandum IA 2020-10

A Couple of Our Other Reads

You may find the story above conflicting with information presented in a Federal Lawsuit filed and served on the City of Kyle.

You may also be interested in reading about our publishing on a prior Kyle Police Union President and the fight to get his job back, which is still an ongoing case in the Hays County Court System.

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