1-1 By: Gallegos S.B. No. 270
1-2 (In the Senate - Filed January 19, 1995; January 23, 1995,
1-3 read first time and referred to Committee on Intergovernmental
1-4 Relations; February 22, 1995, reported favorably by the following
1-5 vote: Yeas 8, Nays 3; February 22, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to civil service systems for constable's offices in
1-9 certain counties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Chapter 158, Local Government Code, is amended by
1-12 adding Subchapter C to read as follows:
1-13 SUBCHAPTER C. CONSTABLE'S OFFICE CIVIL SERVICE SYSTEM
1-14 Sec. 158.061. APPLICABILITY. The employees of a constable's
1-15 office in a county with a population of 2.8 million or more may, in
1-16 accordance with this subchapter, create a civil service system for
1-17 that individual constable's office.
1-18 Sec. 158.062. DEFINITIONS. In this subchapter:
1-19 (1) "Commission" means an office's civil service
1-20 commission that is established to oversee and enforce this
1-21 subchapter for the office.
1-22 (2) "Employee" means an employee of a constable's
1-23 office. The term includes a deputy constable.
1-24 (3) "Office" means the constable's office.
1-25 Sec. 158.063. PETITION AND ELECTION. (a) If at least 20
1-26 percent of the employees of an eligible office under this
1-27 subchapter sign a petition requesting an election under this
1-28 section and present the petition to the county judge of the
1-29 employing county, the judge shall order an office election on the
1-30 question of the creation of a civil service system for the office.
1-31 (b) The county judge shall hold the election after the 15th
1-32 day but on or before the 45th day after the date the petition is
1-33 submitted. The election must be by secret ballot and each employee
1-34 is entitled to vote at the election.
1-35 (c) The ballots for the election shall be printed to provide
1-36 for voting for or against the proposition: "Creation of a civil
1-37 service system."
1-38 (d) The county judge shall canvass the votes and declare the
1-39 result.
1-40 Sec. 158.064. APPOINTMENT OF COMMISSION. (a) If a majority
1-41 of the employees voting at the election approve the creation of a
1-42 civil service system for the office, the constable, commissioners
1-43 court, and district attorney shall each appoint one person to serve
1-44 as a member of the civil service commission that administers the
1-45 system. The constable shall designate one of the members as
1-46 presiding officer of the commission.
1-47 (b) Each member of the commission is appointed for a term of
1-48 two years. One of the initial members of the commission shall
1-49 serve an initial term of one year to be determined by the initial
1-50 members by lot.
1-51 (c) The appointing authority that appointed a member of the
1-52 commission whose position becomes vacant shall appoint a person to
1-53 serve the unexpired part of the member's term.
1-54 (d) To be eligible for appointment to the commission, a
1-55 person must:
1-56 (1) be at least 25 years old; and
1-57 (2) have resided in the county for the three years
1-58 immediately preceding the date on which the person's term will
1-59 begin.
1-60 Sec. 158.065. POWERS OF COMMISSION. (a) The commission
1-61 shall adopt, publish, and enforce rules regarding:
1-62 (1) the selection and classification of employees;
1-63 (2) competitive examinations;
1-64 (3) promotions, seniority, and tenure;
1-65 (4) layoffs and dismissals;
1-66 (5) disciplinary actions;
1-67 (6) grievance procedures; and
1-68 (7) other matters relating to the selection of
2-1 employees and the procedural and substantive rights, advancement,
2-2 benefits, and working conditions of employees.
2-3 (b) The commission may adopt or use as a guide any civil
2-4 service law or rule of the United States, this state, or a
2-5 political subdivision in this state to the extent that the law or
2-6 rule promotes the purposes of this subchapter and is consistent
2-7 with this subchapter and the needs and circumstances of the office.
2-8 The commission's rules shall provide that an affected employee may
2-9 appeal to the commission a disciplinary action, promotional
2-10 passover, or dismissal from the office and that the office must
2-11 notify an employee by letter of a disciplinary action, promotional
2-12 passover, or dismissal from the office.
2-13 Sec. 158.066. COMPENSATION AND STAFF. The members of the
2-14 commission serve without compensation, but the commissioners court
2-15 shall reimburse each member for actual and necessary expenses
2-16 incurred in performing the member's duties. The commissioners
2-17 court shall provide the commission with adequate office space and
2-18 sufficient funds to employ an adequate staff and to purchase
2-19 necessary supplies and equipment.
2-20 Sec. 158.067. APPEALS TO CONSTABLE. (a) An employee who is
2-21 the subject of a disciplinary action has the right to appeal that
2-22 decision to the constable not later than the 10th day after the
2-23 date the disciplinary action occurred.
2-24 (b) The appeal to the constable must be written and must
2-25 state the basis for the appeal.
2-26 (c) The constable must conduct any investigation or hearing
2-27 and issue a written decision on the employee's appeal during the
2-28 10-day period after the date the constable receives the employee's
2-29 written appeal.
2-30 (d) If a hearing is held, the employee has the right to:
2-31 (1) be represented by counsel or another person the
2-32 employee chooses;
2-33 (2) appear personally;
2-34 (3) call witnesses; and
2-35 (4) present evidence.
2-36 (e) The constable may modify the disciplinary action if the
2-37 constable finds that the charges are not supported by the facts.
2-38 Sec. 158.068. COMMISSION APPEAL PROCEDURE. (a) Except as
2-39 otherwise provided by this subchapter, to appeal to the commission
2-40 a decision of the constable under Section 158.067 for which an
2-41 appeal or review is provided under this subchapter, the employee
2-42 need only file a written appeal with the commission not later than
2-43 the 10th day after the date of the constable's written decision.
2-44 (b) The appeal must include a description of the grounds for
2-45 the appeal and a request for a commission hearing. The appeal must
2-46 also contain a statement denying the truth of the charge as made, a
2-47 statement taking exception to the legal sufficiency of the charge,
2-48 a statement alleging that the recommended action does not fit the
2-49 offense or alleged offense, or a combination of these statements.
2-50 (c) The commission must conduct any investigation and
2-51 commence a hearing during the 15-day period after the date the
2-52 commission receives the employee's written appeal. The period may
2-53 be extended for good cause.
2-54 (d) In each hearing, appeal, or review of any kind in which
2-55 the commission performs an adjudicatory function, the affected
2-56 employee is entitled to be represented by counsel or by another
2-57 person the employee chooses. Each commission proceeding shall be
2-58 held in public.
2-59 (e) The commission may administer oaths and may issue
2-60 subpoenas and subpoenas duces tecum for the attendance of witnesses
2-61 and for the production of documentary material.
2-62 (f) The affected employee may request the commission to
2-63 subpoena any books, records, documents, papers, accounts, or
2-64 witnesses that the employee considers pertinent to the case. The
2-65 employee must make the request before the 10th day before the date
2-66 the commission hearing will be held. If the commission does not
2-67 subpoena the material, the commission shall, before the third day
2-68 before the date the hearing will be held, make a written report to
2-69 the employee stating the reason it will not subpoena the requested
2-70 material. This report shall be read into the public record of the
3-1 commission hearing.
3-2 (g) Witnesses may be placed under the rule at the commission
3-3 hearing.
3-4 (h) The commission shall conduct the hearing fairly and
3-5 impartially as prescribed by this subchapter and shall render a
3-6 just and fair decision in writing not later than the fifth day
3-7 after the date the hearing ends. The commission may consider only
3-8 the evidence submitted at the hearing.
3-9 (i) In its decision, the commission may:
3-10 (1) affirm the constable's disciplinary action;
3-11 (2) modify the disciplinary action as appropriate; or
3-12 (3) grant the relief requested by the employee and
3-13 reinstate the employee in the job assignment the employee held
3-14 prior to the disciplinary action without loss of compensation or
3-15 benefits.
3-16 (j) The commission shall maintain a public record of each
3-17 proceeding with copies available at cost.
3-18 Sec. 158.069. APPEAL OF COMMISSION DECISION. (a) An
3-19 employee who, on a final decision by the commission, is demoted,
3-20 suspended, or removed from a position may appeal the decision by
3-21 filing a petition in a district court in the county not later than
3-22 the 30th day after the date of the decision.
3-23 (b) An appeal under this section is by trial de novo, and
3-24 the judgment of the district court is appealable as in other civil
3-25 cases.
3-26 (c) If the district court renders judgment for the
3-27 petitioner, the court may order reinstatement of the employee,
3-28 payment of back pay, or other appropriate relief.
3-29 Sec. 158.070. EX PARTE COMMUNICATIONS. (a) While any
3-30 matter subject to a hearing under this subchapter is pending, a
3-31 person may not, except by giving sworn testimony at the hearing, by
3-32 written briefs or written motions in the case that are also served
3-33 on the opposing party, or as otherwise provided by law, communicate
3-34 with the commission regarding the facts of the matter under
3-35 consideration unless the other party or the party's representative
3-36 is present.
3-37 (b) If the commission or a court determines that a person
3-38 has violated Subsection (a) on behalf of and with the knowledge of
3-39 the employee who filed the appeal or request for a review, the
3-40 appeal or review shall be dismissed. If the commission or a court
3-41 determines that a person violated Subsection (a) on behalf of or in
3-42 favor of the constable or the constable's representative, the
3-43 position of the employee that filed the appeal or request for a
3-44 review shall be upheld.
3-45 Sec. 158.071. PROCEDURES AFTER FELONY INDICTMENT OR
3-46 MISDEMEANOR COMPLAINT. (a) If an employee is indicted for a
3-47 felony or officially charged with the commission of a Class A or B
3-48 misdemeanor, the constable may temporarily suspend the person with
3-49 or without pay for a period not to exceed 30 days after the date of
3-50 final disposition of the specified felony indictment or misdemeanor
3-51 complaint.
3-52 (b) The constable shall notify the suspended employee in
3-53 writing that the person is being temporarily suspended for a
3-54 specific period with or without pay and that the temporary
3-55 suspension is not intended to reflect an opinion on the merits of
3-56 the indictment or complaint.
3-57 (c) An employee indicted for a felony or officially charged
3-58 with the commission of a Class A or B misdemeanor who has also been
3-59 charged by the constable with a civil service rule violation
3-60 directly related to the indictment or complaint may delay the civil
3-61 service hearing for not more than 30 days after the date of the
3-62 final disposition of the indictment or complaint.
3-63 (d) If the constable temporarily suspends an employee under
3-64 this section and the employee is not found guilty of the indictment
3-65 or complaint in a court, the employee may appeal to the commission
3-66 for recovery of back pay. The commission may:
3-67 (1) award all or part of the back pay; or
3-68 (2) affirm or modify the decision of the constable.
3-69 (e) Acquittal or dismissal of an indictment or a complaint
3-70 does not mean that an employee has not violated a civil service
4-1 rule and does not negate the charges that may have been or may be
4-2 brought against the employee by the constable.
4-3 (f) Conviction of a felony is cause for dismissal, and
4-4 conviction of a Class A or B misdemeanor may be cause for
4-5 disciplinary action or dismissal.
4-6 Sec. 158.072. EXEMPTIONS. (a) A person who is an employee
4-7 of an office on the date that a civil service system is adopted
4-8 under this subchapter may not be required to take a competitive
4-9 examination or perform any other act under this subchapter to
4-10 maintain the person's employment.
4-11 (b) The constable may designate as exempt from the civil
4-12 service system:
4-13 (1) the position of chief deputy or assistant;
4-14 (2) one or more positions in the office of the
4-15 constable's legal counsel; and
4-16 (3) additional positions in the office, in a number to
4-17 be determined by the commission but not to exceed five, that the
4-18 civil service commission has determined to be administrative or
4-19 supervisory positions. The constable may not designate as exempt
4-20 any position classified as captain or below. The designation of
4-21 additional exempt positions by the constable does not diminish the
4-22 number of positions within the classification of captain or below.
4-23 (c) At the time a new constable takes office, an employee
4-24 holding an exempt position under Subsection (b) may be transferred
4-25 to the nonexempt position held by the employee immediately before
4-26 being promoted to an exempt position. A person who was not a
4-27 deputy constable in the office when appointed to an exempt position
4-28 may be transferred only to an entry-level position in accordance
4-29 with the system's civil service rules.
4-30 Sec. 158.073. DISSOLUTION OF SYSTEM. (a) If, after a civil
4-31 service system under this subchapter has been in effect in an
4-32 office for at least one year, 20 percent of the employees of the
4-33 office petition the county judge to dissolve the system, the judge
4-34 shall order an election in the office on the question of the
4-35 dissolution of the civil service system for the office.
4-36 (b) The county judge shall hold the election after the 15th
4-37 day but on or before the 45th day after the date the petition is
4-38 submitted. The election must be by secret ballot and each employee
4-39 is entitled to vote at the election.
4-40 (c) The ballots for the election shall be printed to provide
4-41 for voting for or against the proposition: "Dissolution of the
4-42 civil service system."
4-43 (d) The county judge shall canvass the votes and declare the
4-44 result.
4-45 (e) If the proposition is approved by a majority of the
4-46 employees voting at the election, the county judge shall declare
4-47 the office's civil service system dissolved.
4-48 Sec. 158.074. EXCLUSIVITY. A civil service system created
4-49 under this subchapter and in effect applies to the office to the
4-50 exclusion of a civil service system in that county created under
4-51 Subchapter A or another law.
4-52 SECTION 2. The change in law made by Section 158.071, Local
4-53 Government Code, as added by this Act, applies only to an employee
4-54 who is indicted for a felony, charged with the commission of a
4-55 Class A or B misdemeanor, or charged with the violation of a civil
4-56 service rule based on an act classified as a felony or a Class A or
4-57 B misdemeanor on or after the effective date of this Act. An
4-58 employee who is indicted for a felony, charged with a Class A or B
4-59 misdemeanor, or charged with the violation of a civil service rule
4-60 based on an act classified as a felony or a Class A or B
4-61 misdemeanor before that date is covered by the law in effect when
4-62 the employee was indicted or charged, and the former law is
4-63 continued in effect for that purpose.
4-64 SECTION 3. This Act takes effect September 1, 1995.
4-65 SECTION 4. The importance of this legislation and the
4-66 crowded condition of the calendars in both houses create an
4-67 emergency and an imperative public necessity that the
4-68 constitutional rule requiring bills to be read on three several
4-69 days in each house be suspended, and this rule is hereby suspended.
4-70 * * * * *