By Haggerty                                           H.B. No. 3088
         76R1233 KLA-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the process for disciplinary actions taken against
 1-3     Department of Public Safety officers.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 411.007(e), Government Code, is amended
 1-6     to read as follows:
 1-7           (e)  An officer or employee of the department may not be
 1-8     discharged without just cause.  The director shall determine
 1-9     whether an officer or employee is to be discharged.  An [officer
1-10     or] employee ordered discharged may appeal to the commission.  An
1-11     officer ordered discharged, suspended, or demoted may appeal under
1-12     Section 411.0071.  During [, and during] the appeal of a discharge
1-13     the officer or employee shall be suspended without pay.  During the
1-14     appeal of a suspension or demotion an officer remains suspended or
1-15     demoted in accordance with the terms of the suspension or demotion.
1-16     The department may not discharge, suspend, or demote a commissioned
1-17     officer except for the violation of a specific commission rule.  If
1-18     the department discharges, suspends, or demotes an officer, the
1-19     department shall deliver to the officer a written statement giving
1-20     the reasons for the action taken.  The written statement must point
1-21     out each commission rule alleged to have been violated by the
1-22     officer and must describe the alleged acts of the officer that the
1-23     department contends are in violation of the commission rules.  An
1-24     officer commissioned by the department may not be suspended,
 2-1     terminated, or subjected to any form of discrimination by the
 2-2     department because of the refusal of the officer to take a
 2-3     polygraph examination.
 2-4           SECTION 2.  Subchapter A, Chapter 411, Government Code, is
 2-5     amended by adding Section 411.0071 to read as follows:
 2-6           Sec. 411.0071.  APPEAL OF DISCHARGE, SUSPENSION, OR DEMOTION.
 2-7     (a)  An officer ordered discharged, suspended, or demoted may
 2-8     appeal the order of the department to the commission.  Before the
 2-9     appeal is considered by the commission, the officer and the
2-10     department shall arbitrate the dispute in accordance with this
2-11     section and, to the extent consistent with this section, the
2-12     Governmental Dispute Resolution Act, Chapter 2008, as added by
2-13     Chapter 934, Acts of the 75th Legislature, Regular Session, 1997.
2-14           (b)  An appealing officer must submit to the department a
2-15     written notice of the decision to appeal and the basis for the
2-16     appeal on or before the fifth business day after the date the
2-17     department delivers to the officer the written statement giving the
2-18     reasons for the actions taken as required by Section 411.007(e).
2-19           (c)  An appealing officer is entitled to be represented by
2-20     counsel or by another person chosen by the officer at an
2-21     arbitration conducted under this  section.  The appealing officer
2-22     shall pay the costs of representation.
2-23           (d)  The appealing officer and the department shall first
2-24     attempt to agree on the selection of an impartial arbitrator.  If
2-25     the parties do not  agree on the selection of an arbitrator before
2-26     the 11th day after the date the officer submits the written notice
2-27     of appeal to the department, the department shall request a list of
 3-1     seven qualified neutral arbitrators from the State Office of
 3-2     Administrative Hearings.  The appealing officer and the department,
 3-3     or their designees, may agree on one of the arbitrators on the
 3-4     list.  If they do not agree before the sixth business day after the
 3-5     date the list is received, each party or the party's designee shall
 3-6     alternate striking a name from the list.  The person whose name
 3-7     remains after all other names have been struck is the arbitrator.
 3-8           (e)  The appealing officer and the department, or their
 3-9     designees, and the arbitrator shall agree on a date to schedule the
3-10     arbitration hearing.  If the arbitrator cannot schedule the
3-11     arbitration hearing before the 46th calendar day after the date the
3-12     arbitrator is selected, the appealing officer may, not later than
3-13     the second business day after the officer learns of that fact,
3-14     request the selection of a different arbitrator using the procedure
3-15     prescribed by Subsection (d).
3-16           (f)  Chapter 2001 does not apply to the arbitration, but the
3-17     arbitrator has the same duties and powers in conducting the
3-18     arbitration hearing as a state agency conducting a hearing under
3-19     Chapter 2001, including the power to:
3-20                 (1)  issue subpoenas and subpoenas duces tecum for the
3-21     attendance of witnesses and for the production of documentary
3-22     material; and
3-23                 (2)  place witnesses under the rule.
3-24           (g)  The arbitrator shall require witnesses to testify under
3-25     oath.
3-26           (h)  An official stenographic record of an arbitration
3-27     hearing conducted under this section shall be made.  The expense of
 4-1     having the stenographic record made and having one official copy
 4-2     sent to the commission shall be shared equally by the appealing
 4-3     officer and the department.
 4-4           (i)  The parties may agree to an expedited procedure for an
 4-5     arbitration conducted under this section.  Unless otherwise agreed
 4-6     by the parties, in an expedited procedure the arbitrator shall
 4-7     recommend a decision on the appeal not later than the 10th day
 4-8     after the date the arbitration hearing ends or the date the briefs,
 4-9     if any are required by the arbitrator, are due, whichever occurs
4-10     later.
4-11           (j)  If the parties do not agree to an expedited procedure
4-12     for an arbitration conducted under this section, the arbitrator
4-13     shall recommend a decision on the appeal not later than the 30th
4-14     day after the date the arbitration hearing ends or the date the
4-15     briefs, if any are required by the arbitrator, are due, whichever
4-16     occurs later.
4-17           (k)  The arbitrator's fees and expenses shall be shared
4-18     equally by the appealing officer and the department.  The costs of
4-19     a witness are paid by the party who calls the witness.
4-20           (l)  The commission shall make a final determination
4-21     regarding the department's order to discharge, suspend, or demote
4-22     the appealing officer after reviewing:
4-23                 (1)  the order of the department;
4-24                 (2)  the recommendation of the arbitrator;
4-25                 (3)  the stenographic record made and evidence
4-26     presented at the arbitration hearing; and
4-27                 (4)  the briefs filed with the arbitrator, if any.
 5-1           SECTION 3.  This Act takes effect September 1, 1999, and
 5-2     applies only to a discharge, suspension, or demotion for which the
 5-3     written statement required by Section 411.007(e), Government Code,
 5-4     is delivered on or after that date.
 5-5           SECTION 4.  The importance of this legislation and the
 5-6     crowded condition of the calendars in both houses create an
 5-7     emergency and an imperative public necessity that the
 5-8     constitutional rule requiring bills to be read on three several
 5-9     days in each house be suspended, and this rule is hereby suspended.