By Bailey H.B. No. 1645
74R5236 MLR-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to municipal civil service.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 143.008(c), Local Government Code, is
1-5 amended to read as follows:
1-6 (c) The commission shall adopt rules that prescribe cause
1-7 for demotion, promotional passover, removal, and <or> suspension of
1-8 a fire fighter or police officer. The rules must comply with the
1-9 grounds for demotion, promotional passover, removal, and suspension
1-10 prescribed by Section 143.051.
1-11 SECTION 2. Section 143.036, Local Government Code, is
1-12 amended by amending Subsections (f) and (g) and adding Subsections
1-13 (i)-(k) to read as follows:
1-14 (f) Unless the department head reasonably believes a person
1-15 has violated a civil service rule <has a valid reason for not
1-16 appointing the person>, the department head shall appoint the
1-17 eligible promotional candidate having the highest grade on the
1-18 eligibility list. If the department head has such a reasonable
1-19 belief regarding <a valid reason for not appointing> the eligible
1-20 promotional candidate having the highest grade, the department head
1-21 shall personally discuss the alleged civil service rules violation
1-22 <reason> with the person being bypassed before appointing another
1-23 person. The department head shall also file the alleged civil
1-24 service rules violation <reason> in writing with the commission and
2-1 shall immediately furnish a copy of that written statement in
2-2 person to the bypassed firefighter or police officer. On
2-3 application of the bypassed eligible promotional candidate, the
2-4 reason the department head did not appoint that person is subject
2-5 to review by the commission under Section 143.0361 or, at the
2-6 request of the bypassed promotional candidate, by an independent
2-7 third party hearing examiner.
2-8 (g) If a person is bypassed and the person does not apply to
2-9 the commission or to an independent third party hearing examiner to
2-10 review the reasons why the person was bypassed, the person's name
2-11 is returned to its place on the eligibility list and shall be
2-12 resubmitted to the department head if a vacancy occurs. If the
2-13 department head refuses three times to appoint a person<, files the
2-14 reasons for the refusals in writing with the commission,> and the
2-15 person each time <commission> does not apply to the commission or
2-16 to an independent third party hearing examiner to review the
2-17 reasons why the person was bypassed <set aside the refusals>, the
2-18 person's name shall be removed from the eligibility list.
2-19 (i) The written statement given to the bypassed firefighter
2-20 or police officer under Subsection (f) must also inform the person
2-21 that if the person wants to appeal to the commission, the person
2-22 must file a written appeal with the commission not later than the
2-23 10th day after the date the person receives a copy of the
2-24 statement.
2-25 (j) The written statement filed with the commission must
2-26 specify each civil service rule alleged to have been violated by
2-27 the bypassed firefighter or police officer and must describe the
3-1 alleged acts that the department head contends are in violation of
3-2 the civil service rules. It is not sufficient for the department
3-3 head merely to refer to provisions of the rules alleged to have
3-4 been violated. If the department head does not specify in the
3-5 written statement the act of the firefighter or police officer that
3-6 allegedly violated the rules, the commission shall immediately
3-7 promote the person retroactive to the date the candidate was
3-8 bypassed.
3-9 (k) On appeal to the commission, the firefighter or police
3-10 officer is entitled to a full and complete public hearing as
3-11 provided by Section 143.0361, and the commission may not on appeal
3-12 sustain the bypassing of a firefighter or police officer without
3-13 that public hearing.
3-14 SECTION 3. Subchapter B, Chapter 143, Local Government Code,
3-15 is amended by adding Section 143.0361 to read as follows:
3-16 Sec. 143.0361. APPEAL OF PROMOTIONAL PASSOVER. (a) If a
3-17 bypassed firefighter or police officer properly appeals a
3-18 promotional passover to the commission under Section 143.036(i),
3-19 the commission shall hold a hearing and render a decision in
3-20 writing not later than the 30th day after the date the commission
3-21 receives notice of appeal. The bypassed person and the commission
3-22 may agree to postpone the hearing for a definite period.
3-23 (b) In a hearing conducted under this section, the
3-24 department head is restricted to the department head's original
3-25 written statement and charges, which may not be amended.
3-26 (c) The commission may deliberate the decision in closed
3-27 session but may not consider evidence that was not presented at the
4-1 hearing. The commission shall vote in open session.
4-2 (d) In its decision, the commission shall state whether the
4-3 firefighter or police officer is:
4-4 (1) removed from the promotional list;
4-5 (2) restored to the person's former position on the
4-6 promotional list; or
4-7 (3) promoted retroactive to the date the person was
4-8 bypassed.
4-9 (e) If the bypassed firefighter or police officer is
4-10 promoted retroactive to the date the person was bypassed, the
4-11 firefighter or police officer is entitled to full compensation for
4-12 the actual pay lost during the period the person was bypassed.
4-13 (f) The commission may uphold the bypassing of a firefighter
4-14 or police officer only for violation of civil service rules and
4-15 only after a finding by the commission of the truth of specific
4-16 charges against the firefighter or police officer.
4-17 SECTION 4. Section 143.051, Local Government Code, is
4-18 amended to read as follows:
4-19 Sec. 143.051. CAUSE FOR DEMOTION, PROMOTIONAL PASSOVER,
4-20 REMOVAL, OR SUSPENSION. A commission rule prescribing cause for
4-21 demotion, promotional passover, removal, or suspension of a fire
4-22 fighter or police officer is not valid unless it involves one or
4-23 more of the following grounds:
4-24 (1) conviction of a felony or other crime involving
4-25 moral turpitude;
4-26 (2) violations of a municipal charter provision;
4-27 (3) acts of incompetency;
5-1 (4) neglect of duty;
5-2 (5) discourtesy to the public or to a fellow employee
5-3 while the fire fighter or police officer is in the line of duty;
5-4 (6) acts showing lack of good moral character;
5-5 (7) drinking intoxicants while on duty or intoxication
5-6 while off duty;
5-7 (8) conduct prejudicial to good order;
5-8 (9) refusal or neglect to pay just debts;
5-9 (10) absence without leave;
5-10 (11) shirking duty or cowardice at fires, if
5-11 applicable; or
5-12 (12) violation of an applicable fire or police
5-13 department rule or special order.
5-14 SECTION 5. Section 143.054, Local Government Code, is
5-15 amended to read as follows:
5-16 Sec. 143.054. DEMOTIONS. (a) The <If the> head of the fire
5-17 or police department may demote <wants> a fire fighter or police
5-18 officer under his supervision or jurisdiction only for a violation
5-19 of a civil service rule <to be involuntarily demoted, the
5-20 department head may recommend in writing to the commission that the
5-21 commission demote the fire fighter or police officer>.
5-22 (b) If the department head demotes a fire fighter or police
5-23 officer, the <The> department head shall, not later than the 120th
5-24 hour after the hour the fire fighter or police officer was demoted,
5-25 file a written statement with the commission stating the reasons
5-26 for the demotion <must include in the recommendation for demotion
5-27 the reasons the department head recommends the demotion and a
6-1 request that the commission order the demotion>. The department
6-2 head must immediately furnish a copy of the written statement
6-3 <recommendation> in person to the demoted <affected> fire fighter
6-4 or police officer.
6-5 (c) The written statement must also inform the demoted
6-6 firefighter or police officer that if the person wants to appeal to
6-7 the commission, the person must file a written appeal with the
6-8 commission not later than the 10th day after the date the person
6-9 received a copy of the statement. <The commission may refuse to
6-10 grant the request for demotion. If the commission believes that
6-11 probable cause exists for ordering the demotion, the commission
6-12 shall give the fire fighter or police officer written notice to
6-13 appear before the commission for a public hearing at a time and
6-14 place specified in the notice. The commission shall give the
6-15 notice before the 10th day before the date the hearing will be
6-16 held.>
6-17 (d) The written statement filed with the commission must
6-18 specify each civil service rule alleged to have been violated by
6-19 the demoted firefighter or police officer and must describe the
6-20 alleged acts that the department head contends are in violation of
6-21 the civil service rules. It is not sufficient for the department
6-22 head merely to refer to provisions of the rules alleged to have
6-23 been violated. If the department head does not specify in the
6-24 written statement the act of the firefighter or police officer that
6-25 allegedly violated the rules, the commission shall immediately
6-26 restore the person to the person's former position or status in the
6-27 department's classified service.
7-1 (e) On an appeal to the commission, the <The> fire fighter
7-2 or police officer is entitled to a full and complete public hearing
7-3 as provided by Section 143.0541, and the commission may not on
7-4 appeal sustain the demotion of <demote> a fire fighter or police
7-5 officer without that public hearing.
7-6 (f) <(e)> A voluntary demotion in which the fire fighter or
7-7 police officer has accepted the terms of the demotion in writing is
7-8 not subject to this section.
7-9 SECTION 6. Subchapter D, Chapter 143, Local Government Code,
7-10 is amended by adding Section 143.0541 to read as follows:
7-11 Sec. 143.0541. APPEAL OF A DEMOTION. (a) If a demoted
7-12 firefighter or police officer properly appeals a demotion to the
7-13 commission under Section 143.054(c), the commission shall hold a
7-14 hearing and render a decision in writing not later than the 30th
7-15 day after the date the commission receives notice of appeal. The
7-16 demoted person and the commission may agree to postpone the hearing
7-17 for a definite period.
7-18 (b) In a hearing conducted under this section, the
7-19 department head is restricted to the department head's original
7-20 written statement and charges, which may not be amended.
7-21 (c) The commission may deliberate the decision in closed
7-22 session but may not consider evidence that was not presented at the
7-23 hearing. The commission shall vote in open session.
7-24 (d) In its decision, the commission shall state whether the
7-25 firefighter or police officer is:
7-26 (1) demoted from the person's former position or
7-27 status in the classified service; or
8-1 (2) restored to the person's former position or status
8-2 in the department's classified service.
8-3 (e) If the demoted firefighter or police officer is restored
8-4 to the position or status from which the person was demoted, the
8-5 firefighter or police officer is entitled to full compensation for
8-6 the actual pay lost during the period the person was demoted.
8-7 (f) The commission may uphold the demotion of a firefighter
8-8 or police officer only for violation of civil service rules and
8-9 only after a finding by the commission of the truth of specific
8-10 charges against the firefighter or police officer.
8-11 SECTION 7. Section 143.057(a), Local Government Code, is
8-12 amended to read as follows:
8-13 (a) In addition to the other notice requirements prescribed
8-14 by this chapter, the letter of disciplinary action issued to a fire
8-15 fighter or police officer must state that in an appeal of an
8-16 indefinite suspension, a suspension, a promotional passover, or a
8-17 <recommended> demotion, the appealing fire fighter or police
8-18 officer may elect to appeal to an independent third party hearing
8-19 examiner instead of to the commission. The letter must also state
8-20 that if the fire fighter or police officer elects to appeal to a
8-21 hearing examiner, the person waives all rights to appeal to a
8-22 district court except as provided by Subsection (j).
8-23 SECTION 8. Section 143.1015(k), Local Government Code, is
8-24 amended to read as follows:
8-25 (k) In an appeal to a hearing examiner, the director may,
8-26 within five working days after the date the hearing examiner is
8-27 chosen, send to the hearing examiner the following:
9-1 (1) the name of the fire fighter or police officer who
9-2 is appealing;
9-3 (2) <the written reasons filed by the department head
9-4 with the commission in the case of a promotional passover or a
9-5 recommended demotion;>
9-6 <(3)> the specific provisions of the rules alleged to
9-7 have been violated <in the case of a suspension>; and
9-8 (3) <(4)> the date and place of the alleged civil
9-9 service violation.
9-10 The director may not send the hearing examiner the department
9-11 head's original written statement. The department head shall
9-12 submit the written statement and charges to the hearing examiner at
9-13 the hearing.
9-14 SECTION 9. Sections 143.1016(a), (e), and (k), Local
9-15 Government Code, are amended to read as follows:
9-16 (a) In addition to the other notice requirements prescribed
9-17 by this chapter, the letter of disciplinary action issued to a fire
9-18 fighter or police officer must state that in an appeal of an
9-19 indefinite suspension, a suspension, a promotional pass over, or a
9-20 <recommended> demotion, the appealing fire fighter or police
9-21 officer may elect to appeal to an independent third party hearing
9-22 examiner instead of to the commission. The letter must also state
9-23 that if the fire fighter or police officer elects to appeal to a
9-24 hearing examiner, the person waives all rights to appeal to a
9-25 district court except as provided by Subsection (j).
9-26 (e) The appeal hearing must begin within 60 days after the
9-27 date the appeal is filed and shall begin as soon as the hearing
10-1 examiner can be scheduled. If the hearing examiner cannot begin
10-2 the hearing within 45 calendar days after the date of selection,
10-3 the fire fighter or police officer may, within two days after
10-4 learning of that fact, call for the selection of a new hearing
10-5 examiner using the procedure prescribed by Subsection (d). If the
10-6 appeal hearing is not begun within 60 days after the date the
10-7 appeal is filed, the indefinite suspension, suspension, promotional
10-8 pass over, or <recommended> demotion is upheld and the appeal is
10-9 withdrawn if the fire fighter or police officer is not ready to
10-10 proceed, and the appeal is sustained if the department head is not
10-11 ready to proceed. In computing the 60-day period, a period of
10-12 delay not to exceed 30 calendar days because of a continuance
10-13 granted at the request of the department head or his representative
10-14 or the fire fighter or police officer or his representative on good
10-15 cause being shown, or because of the unavoidable unavailability of
10-16 the hearing examiner on the date of the hearing, or because of the
10-17 pendency of a motion to consolidate with another hearing as
10-18 provided in Subsection (k) of this section is excluded. In no
10-19 event may a hearing examiner grant a continuance beyond 30 days in
10-20 an indefinite suspension. A hearing examiner may grant a
10-21 continuance beyond the 30-day period upon good cause being shown in
10-22 a disciplinary suspension unless the fire fighter or police officer
10-23 has another disciplinary action pending.
10-24 (k) In an appeal of an indefinite suspension, a suspension,
10-25 a promotional pass over, or a <recommended> demotion, each
10-26 appealing fire fighter or police officer or the appealing fire
10-27 fighter's or police officer's representative shall be entitled to
11-1 the selection of a hearing examiner pursuant to Subsection (d) of
11-2 this section to hear the case. The fire fighter, police officer,
11-3 department head, or a representative of any of those may, within 10
11-4 days of the date they received notice of the appeal, file a motion
11-5 with a copy to the opposing side to consolidate the case with that
11-6 of one or more other fire fighters or police officers where the
11-7 charges arise out of the same incident. The motion to consolidate
11-8 may be agreed to in writing and filed with the director. If a
11-9 motion to consolidate the cases is filed and not agreed to, a
11-10 hearing examiner shall be chosen pursuant to the provisions of
11-11 Subsection (d) of this section to hear the motion. The decision of
11-12 the hearing examiner shall be final and binding as to the issue of
11-13 consolidation. The hearing examiner chosen to hear the motion to
11-14 consolidate shall not hear the case, and the provisions of
11-15 Subsection (d) of this section shall be used to choose the hearing
11-16 examiner with the day the decision is rendered being the equivalent
11-17 of the date the appeal was filed.
11-18 SECTION 10. This Act takes effect September 1, 1995, and
11-19 applies to the demotion or promotional passover of a firefighter or
11-20 police officer on or after that date.
11-21 SECTION 11. 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.