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.