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.