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.