S.B. No. 863
                                        AN ACT
    1-1  relating to certain conditions of employment for and investigations
    1-2  of fire fighters and police officers in certain municipalities.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 143, Local Government Code, is amended by
    1-5  adding Subchapter I to read as follows:
    1-6                      SUBCHAPTER I.  FIRE FIGHTER
    1-7                 AND POLICE OFFICER EMPLOYMENT MATTERS
    1-8                       IN CERTAIN MUNICIPALITIES
    1-9        Sec. 143.301.  MUNICIPALITIES COVERED BY SUBCHAPTER.  This
   1-10  subchapter applies only to a municipality with a population of
   1-11  460,000 or more that operates under a city manager form of
   1-12  government.  This subchapter does not apply to a municipality:
   1-13              (1)  that has adopted Chapter 174 (The Fire and Police
   1-14  Employee Relations Act); or
   1-15              (2)  to which Subchapter H applies.
   1-16        Sec. 143.302.  DEFINITIONS.  In this subchapter:
   1-17              (1)  "Association" means an organization in which fire
   1-18  fighters or police officers participate and that exists for the
   1-19  purpose, in whole or in part, of dealing with one or more
   1-20  employers, whether public or private, concerning grievances, labor
   1-21  disputes, wages, rates of pay, hours of employment, or conditions
   1-22  of work affecting public employees.
   1-23              (2)  "Public employer" means any municipality or
   1-24  agency, board, commission, or political subdivision controlled by a
    2-1  municipality that is required to establish the wages, salaries,
    2-2  rates of pay, hours, working conditions, and other terms and
    2-3  conditions of employment of public employees.  The term may
    2-4  include, under appropriate circumstances, a mayor, manager,
    2-5  administrator of a municipality, municipal governing body, director
    2-6  of personnel, or personnel board or one or more other officials,
    2-7  regardless of the name by which they are designated.
    2-8        Sec. 143.303.  GENERAL PROVISIONS RELATING TO AGREEMENTS,
    2-9  RECOGNITION, AND STRIKES.  (a)  A municipality may not be denied
   2-10  local control over wages, salaries, rates of pay, hours of work,
   2-11  other terms and conditions of employment, or other personnel issues
   2-12  on which the public employer and an association that is recognized
   2-13  as the sole and exclusive bargaining agent for all fire fighters or
   2-14  police officers in the municipality agree.  A term or condition on
   2-15  which the public employer and the association do not agree is
   2-16  governed by the applicable statutes, local ordinances, and civil
   2-17  service rules.  An agreement must be reduced to writing.  This
   2-18  subchapter does not require the public employer and the association
   2-19  to meet and confer or reach an agreement on any issue.
   2-20        (b)  A public employer and an association recognized under
   2-21  this subchapter as a sole and exclusive bargaining agent may meet
   2-22  and confer only if the association  does not advocate the illegal
   2-23  right to strike by public employees.
   2-24        (c)  A fire fighter or police officer of a municipality may
   2-25  not engage in a strike or organized work stoppage against this
   2-26  state or a political subdivision of this state.  A fire fighter or
   2-27  police officer who participates in a strike forfeits all civil
    3-1  service rights, reemployment rights, and other rights, benefits, or
    3-2  privileges the fire fighter or police officer enjoys as a result of
    3-3  the person's employment or previous employment with the
    3-4  municipality.  This subsection does not affect the right of a
    3-5  person to cease employment if the person is not acting in concert
    3-6  with other fire fighters or police officers.
    3-7        Sec. 143.304.  RECOGNITION OF FIRE FIGHTERS OR POLICE
    3-8  OFFICERS ASSOCIATION.  (a)  The public employer may recognize an
    3-9  association that submits a petition signed by a majority of the
   3-10  paid fire fighters or police officers in the municipality,
   3-11  excluding the head of the department and assistant department heads
   3-12  in the rank or classification immediately below that of the
   3-13  department head, as the sole and exclusive bargaining agent for all
   3-14  of the covered fire fighters or police officers unless recognition
   3-15  of the association is withdrawn by a majority of the covered fire
   3-16  fighters or police officers.
   3-17        (b)  A question of whether an association is the majority
   3-18  representative of the covered fire fighters or police officers
   3-19  shall be resolved by a fair election conducted according to
   3-20  procedures agreed on by the parties.  If the parties are unable to
   3-21  agree on election procedures, either party may request the American
   3-22  Arbitration Association to conduct the election and to certify the
   3-23  results.  Certification of the results of an election under this
   3-24  subsection resolves the question concerning representation.  The
   3-25  association shall pay the costs of the election, except that if two
   3-26  or more associations seeking recognition as the bargaining agent
   3-27  submit petitions signed by a majority of the covered fire fighters
    4-1  or police officers, the associations shall share equally the costs
    4-2  of the election.
    4-3        (c)  The public employer's manager or chief executive and the
    4-4  police chief or fire chief, as appropriate, shall designate a team
    4-5  to represent the public employer as its sole and exclusive
    4-6  bargaining agent for issues related to the fire department and a
    4-7  separate team to represent the public employer as its sole and
    4-8  exclusive bargaining agent for issues related to the police
    4-9  department.
   4-10        Sec. 143.305.  OPEN RECORDS REQUIRED.  An agreement made
   4-11  under this subchapter is a public record for purposes of Chapter
   4-12  552, Government Code.  The agreement and any document prepared and
   4-13  used by the municipality in connection with the agreement are
   4-14  available to the public under the open records law, Chapter 552,
   4-15  Government Code, only after the agreement is ratified by the
   4-16  municipality's governing body.  This section does not affect the
   4-17  application of Subchapter C, Chapter 552, Government Code, to a
   4-18  document prepared and used by the municipality in connection with
   4-19  the agreement.
   4-20        Sec. 143.306.  ENFORCEABILITY OF AGREEMENT.  (a)  A written
   4-21  agreement made under this subchapter between a public employer and
   4-22  an association is binding on the public employer, the association,
   4-23  and fire fighters or police officers covered by the agreement if:
   4-24              (1)  the municipality's governing body ratifies the
   4-25  agreement by a majority vote; and
   4-26              (2)  the applicable association ratifies the agreement
   4-27  by a majority vote of its members by secret ballot.
    5-1        (b)  An agreement ratified as described by Subsection (a) may
    5-2  establish a procedure by which the parties agree to resolve
    5-3  disputes related to a right, duty, or obligation provided by the
    5-4  agreement, including binding arbitration on interpretation of the
    5-5  agreement.
    5-6        (c)  The district court of the judicial district in which the
    5-7  municipality is located has full authority and jurisdiction on the
    5-8  application of either party aggrieved by an act or omission of the
    5-9  other party related to a right, duty, or obligation provided by a
   5-10  written agreement ratified as described by Subsection (a).  The
   5-11  court may issue proper restraining orders, temporary and permanent
   5-12  injunctions, or any other writ, order, or process, including a
   5-13  contempt order, that is appropriate to enforce the agreement.
   5-14        Sec. 143.307.  AGREEMENT SUPERSEDES CONFLICTING PROVISIONS.
   5-15  (a)  An agreement under this subchapter supersedes a previous
   5-16  statute concerning wages, salaries, rates of pay, hours of work, or
   5-17  other terms and conditions of employment to the extent of any
   5-18  conflict with the statute.
   5-19        (b)  An agreement under this subchapter preempts any contrary
   5-20  statute, executive order, local ordinance, or rule adopted by the
   5-21  state or a political subdivision or agent of the state, including a
   5-22  personnel board, a civil service commission, or a home-rule
   5-23  municipality.
   5-24        (c)  An agreement under this subchapter may not diminish or
   5-25  qualify any right, benefit, or privilege of an employee under this
   5-26  chapter or other law unless approved by a majority vote by secret
   5-27  ballot of the members of the association recognized as a sole and
    6-1  exclusive bargaining agent.
    6-2        Sec. 143.308.  REPEAL OF AGREEMENT BY ELECTORATE.  Not later
    6-3  than the 45th day after the date an agreement is ratified by both
    6-4  the municipality and the association, a petition signed by at least
    6-5  10 percent of the qualified voters of the municipality may be
    6-6  presented to the municipal secretary calling an election for the
    6-7  repeal of the agreement. On receipt of the petition by the
    6-8  municipal secretary, the governing body shall reconsider the
    6-9  agreement and either repeal the agreement or call an election of
   6-10  the qualified voters to determine if they desire to repeal the
   6-11  agreement.  The election shall be called for the next municipal
   6-12  election or a special election called by the governing body for
   6-13  that purpose.  If at the election a majority of the votes are cast
   6-14  in favor of the repeal of the adoption of the agreement, the
   6-15  agreement is void.  The ballot shall be printed to permit voting
   6-16  for or against the proposition:  "Repeal of the adoption of the
   6-17  agreement ratified by the municipality and the        (fire
   6-18  fighters or police officers, as appropriate) association concerning
   6-19  wages, salaries, rates of pay, hours of work, and other terms and
   6-20  conditions of employment."
   6-21        Sec. 143.309.  PROTECTED RIGHTS OF INDIVIDUAL EMPLOYEES.
   6-22  (a)  For the purpose of any disciplinary appeal to the civil
   6-23  service commission or to a hearing examiner, a member of the
   6-24  bargaining unit may choose to be represented by any person of the
   6-25  member's choice or by the association.
   6-26        (b)  An agreement may not interfere with the right of a
   6-27  member of a bargaining unit to pursue allegations of discrimination
    7-1  based on race, creed, color, national origin, religion, age, sex,
    7-2  or disability with the Commission on Human Rights or the Equal
    7-3  Employment Opportunity Commission or to pursue affirmative action
    7-4  litigation.
    7-5        Sec. 143.310.  BINDING INTEREST ARBITRATION.  A municipality
    7-6  may be required to submit to binding interest arbitration only if
    7-7  approved by a majority of those voting in a public referendum
    7-8  conducted in accordance with the municipality's charter.  This
    7-9  subsection does not affect any disciplinary arbitration or
   7-10  arbitration provision in a ratified agreement.
   7-11        Sec. 143.311.  APPOINTMENTS TO CLASSIFICATION IMMEDIATELY
   7-12  BELOW DEPARTMENT HEAD.  Section 143.014(c) does not apply to a
   7-13  municipality to which this subchapter applies.
   7-14        Sec. 143.312.  INVESTIGATION OF FIRE FIGHTERS AND POLICE
   7-15  OFFICERS.  (a)  This section does not apply to a municipality to
   7-16  which Section 143.123 applies.
   7-17        (b)  In this section:
   7-18              (1)  "Complainant" means a person claiming to be the
   7-19  victim of misconduct by a fire fighter or police officer.
   7-20              (2)  "Investigation" means an administrative
   7-21  investigation, conducted by the municipality, of alleged misconduct
   7-22  by a fire fighter or police officer that could result in punitive
   7-23  action against that person.
   7-24              (3)  "Investigator" means an agent or employee of the
   7-25  municipality who is assigned to conduct an investigation.
   7-26              (4)  "Normally assigned working hours" includes those
   7-27  hours during which a fire fighter or police officer is actually at
    8-1  work or at the person's assigned place of work, but does not
    8-2  include any time when the person is off duty on authorized leave,
    8-3  including sick leave.
    8-4              (5)  "Punitive action" means a disciplinary suspension,
    8-5  indefinite suspension, demotion in rank, written reprimand, or any
    8-6  combination of those actions.
    8-7        (c)  An investigator may interrogate a fire fighter or police
    8-8  officer who is the subject of an investigation only during the fire
    8-9  fighter's or police officer's normally assigned working hours
   8-10  unless:
   8-11              (1)  the seriousness of the investigation, as
   8-12  determined by the fire fighter's or police officer's department
   8-13  head or the department head's designee, requires interrogation at
   8-14  another time; and
   8-15              (2)  the fire fighter or police officer is compensated
   8-16  for the interrogation time on an overtime basis.
   8-17        (d)  The department head may not consider work time missed
   8-18  from regular duties by a fire fighter or police officer due to
   8-19  participation in the conduct of an investigation in determining
   8-20  whether to impose a punitive action or in determining the severity
   8-21  of a punitive action.
   8-22        (e)  An investigator may not interrogate a fire fighter or
   8-23  police officer who is the subject of an investigation or conduct
   8-24  any part of the investigation at that person's home without that
   8-25  person's permission.
   8-26        (f)  A person may not be assigned to conduct an investigation
   8-27  if the person is the complainant, the ultimate decision-maker
    9-1  regarding disciplinary action, or a person who has any personal
    9-2  involvement regarding the alleged misconduct.  A fire fighter or
    9-3  police officer who is the subject of an investigation has the right
    9-4  to inquire and, on inquiry, to be informed of the identities of
    9-5  each investigator participating in an interrogation of the fire
    9-6  fighter or police officer.
    9-7        (g)  Not less than 48 hours before an investigator begins the
    9-8  initial interrogation of a fire fighter or police officer who is
    9-9  the subject of an investigation, the investigator must inform the
   9-10  fire fighter or police officer in writing of the allegations in the
   9-11  complaint.  An investigator may not interrogate a fire fighter or
   9-12  police officer based on a complaint by a complainant who is not a
   9-13  fire fighter or police officer unless the complainant verifies the
   9-14  complaint in writing before a public officer who is authorized by
   9-15  law to take statements under oath.  In an investigation under this
   9-16  subsection, an investigator may interrogate a fire fighter or
   9-17  police officer about events or conduct reported by a witness who is
   9-18  not a complainant without disclosing the name of the witness.  An
   9-19  interrogation may be based on a complaint from an anonymous
   9-20  complainant if the departmental employee receiving the anonymous
   9-21  complaint certifies in writing, under oath, that the complaint was
   9-22  anonymous.  This subsection does not apply to an on-the-scene
   9-23  investigation that occurs immediately after an incident being
   9-24  investigated, except that the fire fighter or police officer under
   9-25  investigation must be furnished, as soon as practicable, a written
   9-26  statement of the allegations in the complaint.
   9-27        (h)  An interrogation session of a fire fighter or police
   10-1  officer who is the subject of an investigation may not be
   10-2  unreasonably long.  In determining reasonableness, the gravity and
   10-3  complexity of the investigation must be considered.  The
   10-4  investigators shall allow reasonable interruptions to permit the
   10-5  fire fighter or police officer to attend to personal physical
   10-6  necessities.
   10-7        (i)  An investigator may not threaten a fire fighter or
   10-8  police officer who is the subject of an investigation with punitive
   10-9  action during an interrogation.  An investigator may inform a fire
  10-10  fighter or police officer that failure to answer truthfully
  10-11  reasonable questions directly related to the investigation or to
  10-12  cooperate fully in the conduct of the investigation may result in
  10-13  punitive action.
  10-14        (j)  If prior notification of intent to record an
  10-15  interrogation is given to the other party, either the investigator
  10-16  or the fire fighter or police officer who is the subject of an
  10-17  interrogation may record the interrogation.
  10-18        (k)  If an investigation does not result in punitive action
  10-19  against a fire fighter or police officer but does result in a
  10-20  written reprimand or an adverse finding or determination regarding
  10-21  that person, the reprimand, finding, or determination may not be
  10-22  placed in that person's personnel file unless the fire fighter or
  10-23  police officer is first given an opportunity to read and sign the
  10-24  document.  If the fire fighter or police officer refuses to sign
  10-25  the reprimand, finding, or determination, it may be placed in the
  10-26  personnel file with a notation that the person refused to sign it.
  10-27  A fire fighter or police officer may respond in writing to a
   11-1  reprimand, finding, or determination that is placed in the person's
   11-2  personnel file under this subsection by submitting a written
   11-3  response to the department head not later than the 10th day after
   11-4  the date the fire fighter or police officer is asked to sign the
   11-5  document.  The response shall be placed in the personnel file.  A
   11-6  fire fighter or police officer who receives a punitive action and
   11-7  who elects not to appeal the action may file a written response as
   11-8  prescribed by this subsection not later than the 10th day after the
   11-9  date the person is given written notice of the punitive action from
  11-10  the department head.
  11-11        (l)  A violation of this section may be considered by the
  11-12  commission or hearing examiner during a disciplinary appeal hearing
  11-13  if the violation substantially impaired the fire fighter's or
  11-14  police officer's ability to defend against the allegations of
  11-15  misconduct.
  11-16        Sec. 143.313.  POLYGRAPH EXAMINATIONS.  (a)  This section
  11-17  does not apply to a municipality to which Section 143.124 applies.
  11-18        (b)  A fire fighter or police officer employed by the
  11-19  municipality may not be required to submit to a polygraph
  11-20  examination as part of an internal investigation regarding the
  11-21  conduct of the fire fighter or police officer unless:
  11-22              (1)  the complainant submits to and passes a polygraph
  11-23  examination; or
  11-24              (2)  the fire fighter or police officer is ordered to
  11-25  take an examination under Subsection (f).
  11-26        (c)  Subsection (b) does not apply if the complainant is
  11-27  physically or mentally incapable of being polygraphed.
   12-1        (d)  For the purposes of this section, a person passes a
   12-2  polygraph examination if, in the opinion of the polygraph examiner,
   12-3  no deception is indicated in the examination regarding matters
   12-4  critical to the subject matter under investigation.
   12-5        (e)  The results of a polygraph examination that relate to
   12-6  the complaint under investigation are not admissible in a
   12-7  proceeding before the commission or a hearing examiner.
   12-8        (f)  The head of the employing department may order a fire
   12-9  fighter or police officer to submit to a polygraph examination if
  12-10  the department head:
  12-11              (1)  considers the circumstances to be extraordinary;
  12-12  or
  12-13              (2)  believes that the integrity of a fire fighter, a
  12-14  police officer, or the department is in question.
  12-15        SECTION 2.  The importance of this legislation and the
  12-16  crowded condition of the calendars in both houses create an
  12-17  emergency and an imperative public necessity that the
  12-18  constitutional rule requiring bills to be read on three several
  12-19  days in each house be suspended, and this rule is hereby suspended,
  12-20  and that this Act take effect and be in force from and after its
  12-21  passage, and it is so enacted.