By: Bosse H.B. No. 2063 73R2238 MLR-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to civil service systems for county law enforcement 1-3 agencies in certain counties. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 158, Local Government Code, is amended by 1-6 adding Subchapter C to read as follows: 1-7 SUBCHAPTER C. COUNTY LAW ENFORCEMENT AGENCY 1-8 CIVIL SERVICE SYSTEM 1-9 Sec. 158.061. APPLICABILITY. (a) Except for Sections 1-10 158.061-158.063, this subchapter applies only to a county law 1-11 enforcement agency that has voted to create and is under a civil 1-12 service system under this subchapter. 1-13 (b) A county law enforcement agency in a county with a 1-14 population of 2.8 million or more may, in accordance with this 1-15 subchapter, create a civil service system. 1-16 Sec. 158.062. DEFINITIONS. In this subchapter: 1-17 (1) "Agency" means a county law enforcement agency. 1-18 (2) "Commission" means a county law enforcement 1-19 agency's civil service commission that is established to oversee 1-20 and enforce this subchapter for the agency. 1-21 (3) "Employee" means an employee of a county law 1-22 enforcement agency. The term includes a county law enforcement 1-23 officer. 1-24 (4) "Officer" means a county law enforcement officer 2-1 employed or appointed under Article 2.12, Code of Criminal 2-2 Procedure, or other law. 2-3 Sec. 158.063. PETITION AND ELECTION. (a) If at least 20 2-4 percent of the employees of an eligible agency under this 2-5 subchapter sign a petition requesting an election under this 2-6 section and present the petition to the county judge of the 2-7 employing county, the judge shall order an agency election on the 2-8 question of the creation of a civil service system for the agency. 2-9 (b) The county judge shall hold the election after the 15th 2-10 day but on or before the 45th day after the date the petition is 2-11 submitted. The election must be by secret ballot and each employee 2-12 is entitled to vote at the election. 2-13 (c) The ballots for the election shall be printed to provide 2-14 for voting for or against the proposition: "Creation of a civil 2-15 service system." 2-16 (d) The county judge shall canvass the votes and declare the 2-17 result. 2-18 Sec. 158.064. APPOINTMENT OF COMMISSION. (a) If a majority 2-19 of the employees voting at the election approve the creation of a 2-20 civil service system for the agency, the agency head, commissioners 2-21 court, and district attorney shall each appoint one person to serve 2-22 as a member of the civil service commission that administers the 2-23 system. The agency head shall designate one of the members as 2-24 chairman of the commission. 2-25 (b) Each member of the commission is appointed for a term of 2-26 two years. One of the initial members of the commission shall 2-27 serve an initial term of one year to be determined by the initial 3-1 members by lot. 3-2 (c) The appointing authority that appointed a member of the 3-3 commission whose position becomes vacant shall appoint a person to 3-4 serve the unexpired part of the member's term. 3-5 (d) To be eligible for appointment to the commission, a 3-6 person must: 3-7 (1) be at least 25 years old; and 3-8 (2) have resided in the county for the three years 3-9 immediately preceding the date on which the person's term will 3-10 begin. 3-11 Sec. 158.065. POWERS OF COMMISSION. (a) The commission 3-12 shall adopt, publish, and enforce rules regarding: 3-13 (1) selection and classification of employees; 3-14 (2) competitive examinations; 3-15 (3) promotions, seniority, and tenure; 3-16 (4) layoffs and dismissals; 3-17 (5) disciplinary actions; 3-18 (6) grievance procedures; and 3-19 (7) other matters relating to the selection of 3-20 employees and the procedural and substantive rights, advancement, 3-21 benefits, and working conditions of employees. 3-22 (b) The commission may adopt or use as a guide any civil 3-23 service law or rule of the United States, this state, or a 3-24 political subdivision in this state to the extent that the law or 3-25 rule promotes the purposes of this subchapter and is consistent 3-26 with this subchapter and the needs and circumstances of the agency. 3-27 The commission's rules shall provide that an affected employee may 4-1 appeal to the commission a disciplinary action, promotional 4-2 passover, or dismissal from the agency, and that an agency must 4-3 notify an employee by letter of a disciplinary action, promotional 4-4 passover, or dismissal from the agency. 4-5 Sec. 158.066. COMPENSATION AND STAFF. The members of the 4-6 commission serve without compensation, but the commissioners court 4-7 shall reimburse each member for actual and necessary expenses 4-8 incurred in performing the member's duties. The commissioners 4-9 court shall provide the commission with adequate office space and 4-10 sufficient funds to employ an adequate staff and to purchase 4-11 necessary supplies and equipment. 4-12 Sec. 158.067. APPEALS TO AGENCY HEAD. (a) An employee who 4-13 is the subject of a disciplinary action has the right to appeal 4-14 that decision to the agency head not later than the 10th day after 4-15 the date the disciplinary action occurred. 4-16 (b) The appeal to the agency head must be written and must 4-17 state the basis for the appeal. 4-18 (c) The agency head must conduct any investigation or 4-19 hearing and issue a written decision on the employee's appeal 4-20 during the 10-day period after the date the agency head receives 4-21 the employee's written appeal. 4-22 (d) If a hearing is held, the employee has the right to: 4-23 (1) be represented by counsel or another person the 4-24 employee chooses; 4-25 (2) appear personally; 4-26 (3) call witnesses; and 4-27 (4) present evidence. 5-1 (e) The agency head may modify the disciplinary action if 5-2 the agency head finds that the charges are not supported by the 5-3 facts. 5-4 Sec. 158.068. COMMISSION APPEAL PROCEDURE. (a) Except as 5-5 otherwise provided by this subchapter, to appeal to the commission 5-6 a decision of the agency head under Section 158.067 for which an 5-7 appeal or review is provided under this subchapter, the employee 5-8 need only file a written appeal with the commission not later than 5-9 the 10th day after the date of the agency head's written decision. 5-10 (b) The appeal must include a description of the grounds for 5-11 the appeal and a request for a commission hearing. The appeal must 5-12 also contain a statement denying the truth of the charge as made, a 5-13 statement taking exception to the legal sufficiency of the charge, 5-14 a statement alleging that the recommended action does not fit the 5-15 offense or alleged offense, or a combination of these statements. 5-16 (c) The commission must conduct any investigation and 5-17 commence a hearing during the 15-day period after the date the 5-18 commission receives the employee's written appeal. The period may 5-19 be extended for good cause. 5-20 (d) In each hearing, appeal, or review of any kind in which 5-21 the commission performs an adjudicatory function, the affected 5-22 employee is entitled to be represented by counsel or by another 5-23 person the employee chooses. Each commission proceeding shall be 5-24 held in public. 5-25 (e) The commission may administer oaths and may issue 5-26 subpoenas and subpoenas duces tecum for the attendance of witnesses 5-27 and for the production of documentary material. 6-1 (f) The affected employee may request the commission to 6-2 subpoena any books, records, documents, papers, accounts, or 6-3 witnesses that the employee considers pertinent to the case. The 6-4 employee must make the request before the 10th day before the date 6-5 the commission hearing will be held. If the commission does not 6-6 subpoena the material, the commission shall, before the third day 6-7 before the date the hearing will be held, make a written report to 6-8 the employee stating the reason it will not subpoena the requested 6-9 material. This report shall be read into the public record of the 6-10 commission hearing. 6-11 (g) Witnesses may be placed under the rule at the commission 6-12 hearing. 6-13 (h) The commission shall conduct the hearing fairly and 6-14 impartially as prescribed by this subchapter and shall render a 6-15 just and fair decision in writing not later than the 5th day after 6-16 the day the hearing ends. The commission may consider only the 6-17 evidence submitted at the hearing. 6-18 (i) In its decision, the commission may: 6-19 (1) affirm the agency's disciplinary action; 6-20 (2) modify the disciplinary action as appropriate; or 6-21 (3) grant the relief requested by the employee and 6-22 reinstate the employee in the job assignment the employee held 6-23 prior to the disciplinary action without loss of compensation or 6-24 benefits. 6-25 (j) The commission shall maintain a public record of each 6-26 proceeding with copies available at cost. 6-27 Sec. 158.069. APPEAL OF COMMISSION DECISION. (a) An 7-1 employee who, on a final decision by the commission, is demoted, 7-2 suspended, or removed from a position may appeal the decision by 7-3 filing a petition in a district court in the county not later than 7-4 the 30th day after the date of the decision. 7-5 (b) An appeal under this section is by trial de novo, and 7-6 the judgment of the district court is appealable as in other civil 7-7 cases. 7-8 (c) If the district court renders judgment for the 7-9 petitioner, the court may order reinstatement of the employee, 7-10 payment of back pay, or other appropriate relief. 7-11 Sec. 158.070. EX PARTE COMMUNICATIONS. (a) While any 7-12 matter subject to a hearing under this subchapter is pending, a 7-13 person may not, except by giving sworn testimony at the hearing, by 7-14 written briefs or written motions in the case that are also served 7-15 on the opposing party, or as otherwise provided by law, communicate 7-16 with the commission regarding the facts of the matter under 7-17 consideration unless the other party or the party's representative 7-18 is present. 7-19 (b) If the commission or a court of competent jurisdiction 7-20 determines that a person has violated Subsection (a) on behalf of 7-21 and with the knowledge of the employee who filed the appeal or 7-22 request for a review, the appeal or review shall be dismissed. If 7-23 the commission or a court of competent jurisdiction determines that 7-24 a person violated Subsection (a) on behalf of or in favor of the 7-25 agency head or the agency head's representative, the position of 7-26 the employee that filed the appeal or request for a review shall be 7-27 upheld. 8-1 Sec. 158.071. PROCEDURES AFTER FELONY INDICTMENT OR 8-2 MISDEMEANOR COMPLAINT. (a) If an employee is indicted for a 8-3 felony or officially charged with the commission of a Class A or B 8-4 misdemeanor, the agency head may temporarily suspend the person 8-5 with or without pay for a period not to exceed 30 days after the 8-6 date of final disposition of the specified felony indictment or 8-7 misdemeanor complaint. 8-8 (b) The agency head shall notify the suspended employee in 8-9 writing that the person is being temporarily suspended for a 8-10 specific period with or without pay and that the temporary 8-11 suspension is not intended to reflect an opinion on the merits of 8-12 the indictment or complaint. 8-13 (c) An employee indicted for a felony or officially charged 8-14 with the commission of a Class A or B misdemeanor who has also been 8-15 charged by the agency head with a civil service rule violation 8-16 directly related to the indictment or complaint may delay the civil 8-17 service hearing for not more than 30 days after the date of the 8-18 final disposition of the indictment or complaint. 8-19 (d) If the agency head temporarily suspends an employee 8-20 under this section and the employee is not found guilty of the 8-21 indictment or complaint in a court of competent jurisdiction, the 8-22 employee may appeal to the commission for recovery of back pay. 8-23 The commission may: 8-24 (1) award all or part of the back pay, even if the 8-25 employee is a deputy sheriff whose appointment as a deputy was 8-26 revoked under Section 85.003(c); or 8-27 (2) affirm or modify the decision of the agency head. 9-1 (e) Acquittal or dismissal of an indictment or a complaint 9-2 does not mean that an employee has not violated a civil service 9-3 rule and does not negate the charges that may have been or may be 9-4 brought against the employee by the agency head. 9-5 (f) Conviction of a felony is cause for dismissal, and 9-6 conviction of a Class A or B misdemeanor may be cause for 9-7 disciplinary action or dismissal. 9-8 Sec. 158.072. LEAVES OF ABSENCE; RESTRICTION PROHIBITED. 9-9 (a) If a sufficient number of appropriate personnel are available 9-10 to carry out the normal functions of the agency, a county jailer or 9-11 an officer may not be refused a reasonable leave of absence without 9-12 pay to attend a law enforcement officer's school, convention, or 9-13 meeting if the purpose of the school, convention, or meeting is to 9-14 secure a more efficient agency and better working conditions for 9-15 agency personnel. 9-16 (b) A rule that affects a county jailer's or officer's 9-17 constitutional right to appear before or to petition the 9-18 legislature may not be adopted. 9-19 Sec. 158.073. EXEMPTIONS. (a) A person who is an employee 9-20 of an agency on the date that a civil service system is adopted 9-21 under this subchapter in the agency may not be required to take a 9-22 competitive examination or perform any other act under this 9-23 subchapter to maintain the person's employment. 9-24 (b) The agency head may designate as exempt from the civil 9-25 service system: 9-26 (1) the position of chief deputy or assistant; 9-27 (2) one or more positions in the office of the 10-1 agency's legal counsel; and 10-2 (3) additional positions in the agency, in a number to 10-3 be determined by the commission but not to exceed 25, that the 10-4 civil service commission has determined to be administrative or 10-5 supervisory positions. The agency head may not designate as exempt 10-6 any position classified as captain or below. The designation of 10-7 additional exempt positions by the agency head does not diminish 10-8 the number of positions within the classification of captain or 10-9 below. 10-10 (c) At the time a new agency head takes office, an employee 10-11 holding an exempt position under Subsection (b) may be transferred 10-12 to the nonexempt position held by the employee immediately before 10-13 being promoted to an exempt position. A person who was not an 10-14 officer in the agency when appointed to an exempt position may be 10-15 transferred only to an entry level position in accordance with the 10-16 system's civil service rules. 10-17 Sec. 158.074. DISSOLUTION OF SYSTEM. (a) If, after a civil 10-18 service system under this subchapter has been in effect in an 10-19 agency for at least one year, 20 percent of the employees of the 10-20 agency petition the county judge to dissolve the system, the judge 10-21 shall order an election in the agency on the question of the 10-22 dissolution of the civil service system for the agency. 10-23 (b) The county judge shall hold the election after the 15th 10-24 day but on or before the 45th day after the date the petition is 10-25 submitted. The election must be by secret ballot and each employee 10-26 is entitled to vote at the election. 10-27 (c) The ballots for the election shall be printed to provide 11-1 for voting for or against the proposition: "Dissolution of the 11-2 civil service system." 11-3 (d) The county judge shall canvass the votes and declare the 11-4 result. 11-5 (e) If the proposition is approved by a majority of the 11-6 employees voting at the election, the county judge shall declare 11-7 the agency's civil service system dissolved. 11-8 Sec. 158.075. EXCLUSIVITY. A civil service system created 11-9 under this subchapter and in effect applies to the agency to the 11-10 exclusion of a civil service system in that county created under 11-11 Subchapter A or B or another law. 11-12 SECTION 2. (a) The civil service system of a sheriff's 11-13 department in a county with a population of 2.8 million or more 11-14 that was created under Subchapter B, Chapter 158, Local Government 11-15 Code, continues in existence and is now governed by the law in 11-16 Subchapter C, Chapter 158, Local Government Code, as added by this 11-17 Act. The election that was held to create the civil service 11-18 system under Subchapter B of Chapter 158 is considered to have 11-19 created a system under Subchapter C of Chapter 158. A commissioner 11-20 who was appointed to the civil service commission created under 11-21 Subchapter B will continue as a commissioner under Subchapter C, 11-22 and the expiration date of the person's term is not affected by 11-23 this Act. A rule made by the civil service commission under 11-24 Subchapter B that is consistent with Subchapter C continues in 11-25 effect until altered or modified as a rule of the civil service 11-26 commission under Subchapter C. 11-27 (b) The change in law made by Section 158.071, Local 12-1 Government Code, as added by this Act, applies only to an employee 12-2 who is indicted for a felony, charged with the commission of a 12-3 Class A or B misdemeanor, or charged with the violation of a civil 12-4 service rule based on an act classified as a felony or a Class A or 12-5 B misdemeanor on or after the effective date of this Act. An 12-6 employee who is indicted for a felony, charged with a Class A or B 12-7 misdemeanor, or charged with the violation of a civil service rule 12-8 based on an act classified as a felony or a Class A or B 12-9 misdemeanor before that date is covered by the law in effect when 12-10 the employee was indicted or charged, and the former law is 12-11 continued in effect for that purpose. 12-12 (c) The change in law made by this Act does not affect the 12-13 validity of an action taken by a sheriff's department civil service 12-14 commission in a county with a population of 2.8 million or more 12-15 under Subchapter B, Chapter 158, Local Government Code, before the 12-16 effective date of this Act. An action taken by the civil service 12-17 commission under Subchapter B, Chapter 158, Local Government Code, 12-18 before the effective date of this Act is governed by the law in 12-19 effect at the time the action was taken, and the former law is 12-20 continued in effect for that purpose. Any ongoing proceeding under 12-21 consideration by the civil service commission on the effective date 12-22 of this Act continues without a change of status, except that 12-23 procedural actions taken in the case after the effective date of 12-24 this Act are governed by Subchapter C, Chapter 158, Local 12-25 Government Code, as added by this Act. 12-26 SECTION 3. This Act takes effect September 1, 1993. 12-27 SECTION 4. The importance of this legislation and the 13-1 crowded condition of the calendars in both houses create an 13-2 emergency and an imperative public necessity that the 13-3 constitutional rule requiring bills to be read on three several 13-4 days in each house be suspended, and this rule is hereby suspended.