By Bailey                                             H.B. No. 1039
       74R3823 MLR-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to civil service systems for municipal and county law
    1-3  enforcement agencies.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subtitle C, Title 5, Local Government Code, is
    1-6  amended by adding Chapter 176 to read as follows:
    1-7           CHAPTER 176.  MUNICIPAL OR COUNTY LAW ENFORCEMENT
    1-8                      AGENCY CIVIL SERVICE SYSTEM
    1-9        Sec. 176.001.  APPLICABILITY.  (a)  This chapter applies only
   1-10  to a law enforcement agency in which the agency's peace officers
   1-11  are not covered by a civil service system that applies only to:
   1-12              (1)  a law enforcement agency; or
   1-13              (2)  a law enforcement agency and a fire department.
   1-14        (b)  The employees of a municipal or county law enforcement
   1-15  agency may, in accordance with this chapter, create a civil service
   1-16  system for that agency.
   1-17        Sec. 176.002.  DEFINITIONS.  In this chapter:
   1-18              (1)  "Agency" means a municipal or county law
   1-19  enforcement office or agency.
   1-20              (2)  "Commission" means an agency's civil service
   1-21  commission that is established to oversee and enforce this chapter
   1-22  for the agency.
   1-23              (3)  "Employee" means an employee of a municipal or
   1-24  county law enforcement agency.  The term includes a peace officer
    2-1  employed or appointed under Article 2.12, Code of Criminal
    2-2  Procedure, or other law, as well as an employee who is not a peace
    2-3  officer.
    2-4        Sec. 176.003.  PETITION AND ELECTION.  (a)  If at least 20
    2-5  percent of the employees of an eligible agency under this chapter
    2-6  sign a petition requesting an election under this section and
    2-7  present the petition to the governing body of the employing
    2-8  municipality or to the county judge of the employing county, the
    2-9  governing body or the judge shall order an agency election on the
   2-10  question of the creation of a civil service system for the agency.
   2-11        (b)  The election must be held after the 15th day but on or
   2-12  before the 45th day after the date the petition is submitted.  The
   2-13  election must be by secret ballot and each employee is entitled to
   2-14  vote at the election.
   2-15        (c)  The ballots for the election shall be printed to permit
   2-16  voting for or against the proposition:  "Creation of a civil
   2-17  service system."
   2-18        (d)  The governing body or county judge, as applicable, shall
   2-19  canvass the votes and declare the result.
   2-20        Sec. 176.004.  APPOINTMENT OF COMMISSION.  (a)  If a majority
   2-21  of the employees voting at the election approve the creation of a
   2-22  civil service system for the agency, civil service commission is
   2-23  created to administer the system.  The commission consists of three
   2-24  members.  The governing body of the municipality or the
   2-25  commissioners court of the county, as applicable, shall appoint one
   2-26  member.  The chief administrative officer of the municipality or
   2-27  the district attorney, as applicable, shall appoint one member.
    3-1  The head of the agency shall appoint one member.  The head of the
    3-2  agency shall designate one of the three members as the presiding
    3-3  officer of the commission.
    3-4        (b)  Each member of the commission is appointed for a term of
    3-5  two years.  One of the initial members of the commission shall
    3-6  serve an initial term of one year to be determined by the initial
    3-7  members by lot.
    3-8        (c)  The appointing authority that appointed a member of the
    3-9  commission whose position becomes vacant shall appoint a person to
   3-10  serve the unexpired part of the member's term.
   3-11        (d)  To be eligible for appointment to the commission, a
   3-12  person must:
   3-13              (1)  be at least 25 years old; and
   3-14              (2)  have resided in the municipality or the county, as
   3-15  applicable, for the three years immediately preceding the date on
   3-16  which the person's term will begin.
   3-17        Sec. 176.005.  POWERS OF COMMISSION.  (a)  The commission
   3-18  shall adopt, publish, and enforce rules regarding:
   3-19              (1)  selection and classification of employees;
   3-20              (2)  competitive examinations;
   3-21              (3)  promotions, seniority, and tenure;
   3-22              (4)  layoffs and dismissals;
   3-23              (5)  disciplinary actions;
   3-24              (6)  grievance procedures; and
   3-25              (7)  other matters relating to the selection of
   3-26  employees and the procedural and substantive rights, advancement,
   3-27  benefits, and working conditions of employees.
    4-1        (b)  The commission may adopt or use as a guide any civil
    4-2  service law or rule of the United States, this state, or a
    4-3  political subdivision in this state  to the extent that the law or
    4-4  rule promotes the purposes of this chapter and is consistent with
    4-5  this chapter and the needs and circumstances of the agency.  The
    4-6  commission's rules shall provide that an affected employee may
    4-7  appeal to the commission a disciplinary action, promotional
    4-8  passover, or dismissal from the agency and that the agency must
    4-9  notify an employee by letter of a disciplinary action, promotional
   4-10  passover, or dismissal from the agency.
   4-11        Sec. 176.006.  COMPENSATION AND STAFF.  The members of the
   4-12  commission serve without compensation, but the governing body of
   4-13  the municipality or the commissioners court of the county, as
   4-14  applicable, shall reimburse each member for actual and necessary
   4-15  expenses incurred in performing the member's duties.  The governing
   4-16  body or the commissioners court, as applicable,  shall provide the
   4-17  commission with adequate office space and sufficient funds to
   4-18  employ an adequate staff and to purchase necessary supplies and
   4-19  equipment.
   4-20        Sec. 176.007.  APPEALS TO AGENCY HEAD.  (a)  An employee who
   4-21  is the subject of a disciplinary action has the right to appeal
   4-22  that decision to the agency head not later than the 10th day after
   4-23  the date the disciplinary action occurred.
   4-24        (b)  The appeal to the agency head must be written and must
   4-25  state the basis for the appeal.
   4-26        (c)  The agency head must conduct any investigation or
   4-27  hearing and issue a written decision on the employee's appeal
    5-1  during the 10-day period after the date the agency head receives
    5-2  the employee's written appeal.
    5-3        (d)  If a hearing is held, the employee has the right to:
    5-4              (1)  be represented by counsel or another person the
    5-5  employee chooses;
    5-6              (2)  appear personally;
    5-7              (3)  call witnesses; and
    5-8              (4)  present evidence.
    5-9        (e)  The agency head may modify the  disciplinary action if
   5-10  the agency head finds that the charges are not supported by the
   5-11  facts.
   5-12        Sec. 176.008.  COMMISSION APPEAL PROCEDURE.  (a)  Except as
   5-13  otherwise provided by this chapter, to appeal to the commission a
   5-14  decision of the agency head under Section 176.007 for which an
   5-15  appeal or review is provided under this chapter, the employee need
   5-16  only file a written appeal with the commission not later than the
   5-17  10th day after the date of the agency head's written decision.
   5-18        (b)  The appeal must include a description of the grounds for
   5-19  the appeal and a request for a commission hearing.  The appeal must
   5-20  also contain a statement denying the truth of the charge as made, a
   5-21  statement taking exception to the legal sufficiency of the charge,
   5-22  a statement alleging that the recommended action does not fit the
   5-23  offense or alleged offense, or a combination of these statements.
   5-24        (c)  The commission must conduct any investigation and
   5-25  commence a hearing during the 15-day period after the date the
   5-26  commission receives the employee's written appeal.  The period may
   5-27  be extended for good cause.
    6-1        (d)  In each hearing, appeal, or review of any kind in which
    6-2  the commission performs an adjudicatory function, the affected
    6-3  employee is entitled to be represented by counsel or by another
    6-4  person the employee chooses.  Each commission proceeding shall be
    6-5  held in public.
    6-6        (e)  The commission may administer oaths and may issue
    6-7  subpoenas and subpoenas duces tecum for the attendance of witnesses
    6-8  and for the production of documentary material.
    6-9        (f)  The affected employee may request the commission to
   6-10  subpoena any books, records, documents, papers, accounts, or
   6-11  witnesses that the employee considers pertinent to the case.  The
   6-12  employee must make the request before the 10th day before the date
   6-13  the commission hearing will be held.  If the commission does not
   6-14  subpoena the material, the commission shall, before the third day
   6-15  before the date the hearing will be held, make a written report to
   6-16  the employee stating the reason it will not subpoena the requested
   6-17  material.  This report shall be read into the public record of the
   6-18  commission hearing.
   6-19        (g)  Witnesses may be placed under the rule at the commission
   6-20  hearing.
   6-21        (h)  The commission shall conduct the hearing fairly and
   6-22  impartially as prescribed by this chapter and shall render a just
   6-23  and fair decision in writing not later than the fifth day after the
   6-24  date the hearing ends.  The commission may consider only the
   6-25  evidence submitted at the hearing.
   6-26        (i)  In its decision, the commission may:
   6-27              (1)  affirm the agency head's disciplinary action;
    7-1              (2)  modify the disciplinary action as appropriate; or
    7-2              (3)  grant the relief requested by the employee and
    7-3  reinstate the employee in the job assignment the employee held
    7-4  prior to the disciplinary action without loss of compensation or
    7-5  benefits.
    7-6        (j)  The commission shall maintain a public record of each
    7-7  proceeding with copies available at cost.
    7-8        Sec. 176.009.  APPEAL OF COMMISSION DECISION.  (a)  An
    7-9  employee who, on a final decision by the commission, is demoted,
   7-10  suspended, or removed from a position may appeal the decision by
   7-11  filing a petition in a district court in the county not later than
   7-12  the 30th day after the date of the decision.
   7-13        (b)  An appeal under this section is by trial de novo to the
   7-14  extent allowed under the Texas Constitution, and the judgment of
   7-15  the district court is appealable as in other civil cases.
   7-16        (c)  If the district court renders judgment for the
   7-17  petitioner, the court may order reinstatement of the employee,
   7-18  payment of back pay, or other appropriate relief.
   7-19        Sec. 176.010.  EX PARTE COMMUNICATIONS.  (a)  While any
   7-20  matter subject to a hearing under this chapter is pending, a person
   7-21  may not, except by giving sworn testimony at the hearing, by
   7-22  written briefs or written motions in the case that are also served
   7-23  on the opposing party, or as otherwise provided by law, communicate
   7-24  with the commission regarding the facts of the matter under
   7-25  consideration unless the other party or the party's representative
   7-26  is present.
   7-27        (b)  If the commission or a court determines that a person
    8-1  has violated Subsection (a) on behalf of and with the knowledge of
    8-2  the employee who filed the appeal or request for a review, the
    8-3  appeal or review shall be dismissed.  If the commission or a court
    8-4  determines that a person violated Subsection (a) on behalf of or in
    8-5  favor of the agency head or the agency head's representative, the
    8-6  position of the employee that filed the appeal or request for a
    8-7  review shall be upheld.
    8-8        Sec. 176.011.  PROCEDURES AFTER FELONY INDICTMENT OR
    8-9  MISDEMEANOR COMPLAINT.  (a)  If an employee is indicted for a
   8-10  felony or officially charged with the commission of a Class A or B
   8-11  misdemeanor, the agency head may temporarily suspend the person
   8-12  with or without pay for a period not to exceed 30 days after the
   8-13  date of final disposition of the specified felony indictment or
   8-14  misdemeanor complaint.
   8-15        (b)  The agency head shall notify the suspended employee in
   8-16  writing that the person is being temporarily suspended for a
   8-17  specific period with or without pay and that the temporary
   8-18  suspension is not intended to reflect an opinion on the merits of
   8-19  the indictment or complaint.
   8-20        (c)  An employee indicted for a felony or officially charged
   8-21  with the commission of a Class A or B misdemeanor who has also been
   8-22  charged by the agency head with a civil service rule violation
   8-23  directly related to the indictment or complaint may delay the civil
   8-24  service hearing for not more than 30 days after the date of the
   8-25  final disposition of the indictment or complaint.
   8-26        (d)  If the agency head temporarily suspends an employee
   8-27  under this section and the employee is not found guilty of the
    9-1  indictment or complaint in a court, the employee may appeal to the
    9-2  commission for recovery of back pay.  The commission may:
    9-3              (1)  award all or part of the back pay; or
    9-4              (2)  affirm or modify the decision of the agency head.
    9-5        (e)  Acquittal or dismissal of an indictment or a complaint
    9-6  does not mean that an employee has not violated a civil service
    9-7  rule and does not negate the charges that may have been or may be
    9-8  brought against the employee by the agency head.
    9-9        (f)  Conviction of a felony is cause for dismissal, and
   9-10  conviction of a Class A or B misdemeanor may be cause for
   9-11  disciplinary action or dismissal.
   9-12        Sec. 176.012.  EXEMPTIONS.  (a)  A person who is an employee
   9-13  of an agency on the date that a civil service system is adopted
   9-14  under this chapter may not be required to take a competitive
   9-15  examination or perform any other act under this chapter to maintain
   9-16  the person's employment.
   9-17        (b)  The agency head may designate as exempt from the civil
   9-18  service system:
   9-19              (1)  the position of chief deputy or assistant chief
   9-20  deputy to the agency head;
   9-21              (2)  one or more positions in the office of the
   9-22  agency's legal counsel; and
   9-23              (3)  additional positions in the agency, in a number to
   9-24  be determined by the commission but not to exceed five, that the
   9-25  commission has determined to be administrative or supervisory
   9-26  positions.  The agency head may not designate as exempt any
   9-27  position classified as captain or below.  The designation of
   10-1  additional exempt positions by the agency head does not diminish
   10-2  the number of positions within the classification of captain or
   10-3  below.
   10-4        (c)  At the time a new agency head takes office, an employee
   10-5  holding an exempt position under Subsection (b) may be transferred
   10-6  to the nonexempt position held by the employee immediately before
   10-7  being promoted to an exempt position.  A peace officer who was not
   10-8  a peace officer in the agency when appointed to an exempt position
   10-9  may be transferred only to an entry level peace officer position in
  10-10  accordance with the system's civil service rules.
  10-11        Sec. 176.013.  DISSOLUTION OF SYSTEM.  (a)  If, after a civil
  10-12  service system under this chapter has been in effect in an agency
  10-13  for at least one year, 20 percent of the employees of the agency
  10-14  petition the governing body of the municipality or the county judge
  10-15  of the county, as applicable, to dissolve the system, the governing
  10-16  body or judge shall order an election in the agency on the question
  10-17  of the dissolution of the civil service system for the agency.
  10-18        (b)  The election must be held after the 15th day but on or
  10-19  before the 45th day after the date the petition is submitted.  The
  10-20  election must be by secret ballot and each employee is entitled to
  10-21  vote at the election.
  10-22        (c)  The ballots for the election shall be printed to provide
  10-23  for voting for or against the proposition:  "Dissolution of the
  10-24  civil service system."
  10-25        (d)  The governing body or county judge, as applicable, shall
  10-26  canvass the votes and declare the result.
  10-27        (e)  If the proposition is approved by a majority of the
   11-1  employees voting at the election, the agency's civil service system
   11-2  is dissolved.
   11-3        Sec. 176.014.  EXCLUSIVITY.  A civil service system created
   11-4  under this chapter and in effect applies to the agency to the
   11-5  exclusion of a civil service system in that municipality or county
   11-6  created under another law that also covers employees who are not
   11-7  employed by a law enforcement agency or a fire department.
   11-8        SECTION 2.  The change in law made by Section 176.011, Local
   11-9  Government Code, as added by this Act, applies only to an employee
  11-10  who is indicted for a felony, charged with the commission of a
  11-11  Class A or B misdemeanor, or charged with the violation of a civil
  11-12  service rule based on an act classified as a felony or a Class A or
  11-13  B misdemeanor on or after the effective date of this Act.  An
  11-14  employee who is indicted for a felony, charged with a Class A or B
  11-15  misdemeanor, or charged with the violation of a civil service rule
  11-16  based on an act classified as a felony or a Class A or B
  11-17  misdemeanor before that date is covered by the law in effect when
  11-18  the employee was indicted or charged, and the former law is
  11-19  continued in effect for that purpose.
  11-20        SECTION 3.  This Act takes effect September 1, 1995.
  11-21        SECTION 4.  The importance of this legislation and the
  11-22  crowded condition of the calendars in both houses create an
  11-23  emergency and an imperative public necessity that the
  11-24  constitutional rule requiring bills to be read on three several
  11-25  days in each house be suspended, and this rule is hereby suspended.