By Nelson                                              S.B. No. 646
         76R2391 AJA-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to provisions governing fire fighters' and police
 1-3     officers' civil service in certain municipalities.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 143.015(a), Local Government Code, is
 1-6     amended to read as follows:
 1-7           (a)  If a fire fighter, [or] police officer, or municipality
 1-8     is dissatisfied with any commission decision, the fire fighter,
 1-9     [or] police officer, or municipality may file a petition in
1-10     district court asking that the decision be set aside.  The petition
1-11     must be filed within 10 days after the date the final commission
1-12     decision:
1-13                 (1)  is sent to the fire fighter or police officer and
1-14     to the department head by certified mail; or
1-15                 (2)  is personally received by:
1-16                       (A)  the fire fighter or police officer or by
1-17     that person's designee, for a petition filed by the fire fighter or
1-18     police officer; or
1-19                       (B)  the department head or by the department
1-20     head's designee, for a petition filed by the municipality.
1-21           SECTION 2.  Section 143.023, Local Government Code, is
1-22     amended to read as follows:
1-23           Sec. 143.023.  ELIGIBILITY FOR BEGINNING POSITION.  (a)  A
1-24     person may not take an entrance examination for a beginning
 2-1     position in the fire or police department unless the person is at
 2-2     least 18 years of age.
 2-3           (b)  [A person may not be certified as eligible for a
 2-4     beginning position in a fire department if the person is 36 years
 2-5     of age or older.]
 2-6           [(c)]  A person who is 45 years of age or older may not be
 2-7     certified for a beginning position in a police or fire department.
 2-8     A person who is 36 years of age or older and under 45 may not be
 2-9     certified as eligible for a beginning position in a police
2-10     department unless the person has at least five years' experience as
2-11     a peace officer or at least five years of military experience.  A
2-12     person who is 36 years of age or older and under 45 may not be
2-13     certified as eligible for a beginning position in a fire department
2-14     unless the person has at least five years' experience as a fire
2-15     fighter, five years of experience as a peace officer, or five years
2-16     of military experience.
2-17           (c) [(d)]  An applicant may not be certified as eligible for
2-18     a beginning position with a fire department unless the applicant
2-19     meets all legal requirements necessary to become eligible for
2-20     future certification by the Commission on Fire Protection Personnel
2-21     Standards and Education.
2-22           (d) [(e)]  An applicant may not be certified as eligible for
2-23     a beginning position with a police department unless the applicant
2-24     meets all legal requirements necessary to become eligible for
2-25     future licensing by the Commission on Law Enforcement Officer
2-26     Standards and Education.
2-27           (e) [(f)]  Each police officer and fire fighter affected by
 3-1     this chapter must be able to read and write English.
 3-2           (f) [(g)]  In addition to meeting the requirements prescribed
 3-3     by this section, an applicant for a beginning position in a police
 3-4     department in a municipality with a population of 1.5 million or
 3-5     more must meet the requirements prescribed by Section 143.105.
 3-6           SECTION 3.  Sections 143.025(a), (b), and (d), Local
 3-7     Government Code, are amended  to read as follows:
 3-8           (a)  The commission shall provide for open, competitive, and
 3-9     free entrance examinations to provide eligibility lists for
3-10     beginning positions in the fire and police departments.  The
3-11     commission may develop and administer an examination in cooperation
3-12     with one or more other commissions created under this chapter.  The
3-13     examinations are open to each person who makes a proper application
3-14     and meets the requirements prescribed by this chapter.
3-15           (b)  An eligibility list for a beginning position in the fire
3-16     or police department may be created only as a result of a
3-17     competitive examination [held in the presence of each applicant for
3-18     the position].  The examination must be based on the person's
3-19     knowledge of and qualifications for fire fighting and work in the
3-20     fire department or for police work and work in the police
3-21     department and must inquire into the applicant's general education
3-22     and mental ability.  A person may not be appointed to the fire or
3-23     police department except as a result of the examination.
3-24           (d)  Examinations for beginning positions in the fire or
3-25     police department may be held at different locations if each
3-26     applicant takes the same examination and is examined in the
3-27     presence of other applicants.
 4-1           SECTION 4.  Section 143.027, Local Government Code, is
 4-2     amended to read as follows:
 4-3           Sec. 143.027.  PROBATIONARY PERIOD.  (a)  A person appointed
 4-4     to a beginning position in the fire [or police] department must
 4-5     serve a probationary period of one year beginning on that person's
 4-6     date of employment as a fire fighter[, police officer,] or academy
 4-7     trainee.
 4-8           (b)  A person appointed to a beginning position in the police
 4-9     department must serve a probationary period of 18 months beginning
4-10     on the latter of the date that person is first licensed as a peace
4-11     officer by the Commission on Law Enforcement Officer Standards and
4-12     Education or that person's date of employment as a police officer
4-13     for the municipality.
4-14           (c) [(b)]  During a fire fighter's or police officer's
4-15     probationary period, the department head shall discharge the person
4-16     and remove the person from the payroll if the person's appointment
4-17     was not regular or was not made in accordance with this chapter or
4-18     the commission rules.
4-19           (d) [(c)]  During a fire fighter's or police officer's
4-20     probationary period, the person may not be prohibited from joining
4-21     or required to join an employee organization.  Joining or not
4-22     joining an employee organization is not a ground for retaining or
4-23     not retaining a fire fighter or police officer serving a
4-24     probationary period.
4-25           (e) [(d)]  A fire fighter or police officer who was appointed
4-26     in substantial compliance with this chapter and who serves the
4-27     entire probationary period automatically becomes a full-fledged
 5-1     civil service employee and has full civil service protection.
 5-2           SECTION 5.  Section 143.045(c), Local Government Code, is
 5-3     amended to read as follows:
 5-4           (c)  Except as otherwise provided by Section 143.116, a fire
 5-5     fighter or police officer who leaves the classified service for any
 5-6     reason is entitled to receive in a lump-sum payment the full amount
 5-7     of the person's salary for accumulated sick leave if the person has
 5-8     accumulated not more than 90 days of sick leave.  If a fire fighter
 5-9     or police officer has accumulated more than 90 working days of sick
5-10     leave, the person's employer may limit payment to the amount that
5-11     the person would have received if the person had been allowed to
5-12     use 90 days of accumulated sick leave during the last six months of
5-13     employment.  The lump-sum payment is computed by compensating the
5-14     fire fighter or police officer for the accumulated time at the
5-15     highest permanent pay classification for which the person was
5-16     eligible during the last six months of employment.  For purposes of
5-17     this subsection, each accumulated working day is considered to be
5-18     an eight-hour day.  The fire fighter or police officer is paid for
5-19     the same period for which the person would have been paid if the
5-20     person had taken the sick leave but does not include additional
5-21     holidays and any sick leave or vacation time that the person might
5-22     have accrued during the 90 days.
5-23           SECTION 6.  Section 143.051, Local Government Code, is
5-24     amended to read as follows:
5-25           Sec. 143.051.  CAUSE FOR REMOVAL OR SUSPENSION.  (a)  A
5-26     commission rule prescribing cause for removal or suspension of a
5-27     fire fighter or police officer is not valid unless it involves one
 6-1     or more of the following grounds:
 6-2                 (1)  conviction of a felony or other crime involving
 6-3     moral turpitude or a grant of deferred adjudication for a felony or
 6-4     other crime  involving moral turpitude;
 6-5                 (2)  violations of a municipal charter provision;
 6-6                 (3)  acts of incompetency;
 6-7                 (4)  neglect of duty;
 6-8                 (5)  discourtesy to the public or to a fellow employee
 6-9     while the fire fighter or police officer is in the line of duty;
6-10                 (6)  acts showing lack of good moral character;
6-11                 (7)  drinking intoxicants while on duty or intoxication
6-12     while off duty;
6-13                 (8)  conduct prejudicial to good order;
6-14                 (9)  refusal or neglect to pay just debts;
6-15                 (10)  absence without leave;
6-16                 (11)  shirking duty or cowardice at fires, if
6-17     applicable; or
6-18                 (12)  violation of an applicable fire or police
6-19     department rule or special order.
6-20           (b)  A fire fighter or police officer indefinitely suspended
6-21     under Subsection (a)(1) does not have the right to appeal the
6-22     indefinite suspension to the commission or to a third party
6-23     independent hearing examiner.
6-24           SECTION 7.  Section 143.057, Local Government Code, is
6-25     amended to read as follows:
6-26           Sec. 143.057.  HEARING EXAMINERS.  (a)  In addition to the
6-27     other notice requirements prescribed by this chapter, the letter of
 7-1     disciplinary action issued to a fire fighter or police officer must
 7-2     state that in an appeal of an indefinite suspension, a suspension,
 7-3     a promotional passover, or a recommended demotion, the appealing
 7-4     fire fighter or police officer may elect to appeal to an
 7-5     independent third party hearing examiner instead of to the
 7-6     commission.  [The letter must also state that if the fire fighter
 7-7     or police officer elects to appeal to a hearing examiner, the
 7-8     person waives all rights to appeal to a district court except as
 7-9     provided by Subsection (j).]
7-10           (b)  To exercise the choice of appealing to a hearing
7-11     examiner, the appealing fire fighter or police officer must submit
7-12     to the director a written request as part of the original notice of
7-13     appeal required under this chapter stating the person's decision to
7-14     appeal to an independent third party hearing examiner.
7-15           (c)  [The hearing examiner's decision is final and binding on
7-16     all parties.  If the fire fighter or police officer decides to
7-17     appeal to an independent third party hearing examiner, the person
7-18     automatically waives all rights to appeal to a district court
7-19     except as provided by Subsection (j).]
7-20           [(d)]  If the appealing fire fighter or police officer
7-21     chooses to appeal to a hearing examiner, the fire fighter or police
7-22     officer and the department head, or their designees, shall first
7-23     attempt to agree on the selection of an impartial hearing examiner.
7-24     If the parties do not agree on the selection of a hearing examiner
7-25     on or within 10 days after the date the appeal is filed, the
7-26     director shall immediately request a list of seven qualified
7-27     neutral arbitrators from the American Arbitration Association or
 8-1     the Federal Mediation and Conciliation Service, or their successors
 8-2     in function, or another organization, agreed on by the fire fighter
 8-3     or police officer and the department head, or their designees, that
 8-4     provides arbitration services.  The fire fighter or police officer
 8-5     and the department head, or their designees, may agree on one of
 8-6     the seven neutral arbitrators on the list.  If they do not agree
 8-7     within five working days after the date they received the list,
 8-8     each party or the party's designee shall alternate striking a name
 8-9     from the list and the name remaining is the hearing examiner.  The
8-10     parties or their designees shall agree on a date for the hearing.
8-11           (d) [(e)]  The appeal hearing shall begin as soon as the
8-12     hearing examiner can be scheduled.  If the hearing examiner cannot
8-13     begin the hearing within 45 calendar days after the date of
8-14     selection, the fire fighter or police officer may, within two days
8-15     after learning of that fact, call for the selection of a new
8-16     hearing examiner using the procedure prescribed by Subsection (c)
8-17     [(d)].
8-18           (e) [(f)]  In each hearing conducted under this section, the
8-19     hearing examiner has the same duties and powers as the commission,
8-20     including the right to issue subpoenas.
8-21           (f) [(g)]  In a hearing conducted under this section, the
8-22     parties may agree to an expedited hearing procedure.  Unless
8-23     otherwise agreed by the parties, in an expedited procedure the
8-24     hearing examiner shall render a decision on the appeal within 10
8-25     days after the date the hearing ended.
8-26           (g) [(h)]  In an appeal that does not involve an expedited
8-27     hearing procedure, the hearing examiner shall make a reasonable
 9-1     effort to render a decision on the appeal within 30 days after the
 9-2     date the hearing ends or the briefs are filed.  The hearing
 9-3     examiner's inability to meet the time requirements imposed by this
 9-4     section does not affect the hearing examiner's jurisdiction, the
 9-5     validity of the disciplinary action, or the hearing examiner's
 9-6     final decision.
 9-7           (h) [(i)]  The hearing examiner's fees and expenses are
 9-8     shared equally by the appealing fire fighter or police officer and
 9-9     by the department.  The costs of a witness are paid by the party
9-10     who calls the witness.
9-11           (i)  A fire fighter, police officer, or municipality may
9-12     appeal a hearing examiner's award to a district court.  [(j)  A
9-13     district court may hear an appeal of a hearing examiner's award
9-14     only on the grounds that the arbitration panel was without
9-15     jurisdiction or exceeded its jurisdiction or that the order was
9-16     procured by fraud, collusion, or other unlawful means.]  An appeal
9-17     must be brought in the district court having jurisdiction in the
9-18     municipality in which the fire or police department is located.
9-19           SECTION 8.  Sections 143.073(a), (b), and (c), Local
9-20     Government Code, are amended to read as follows:
9-21           (a)  A municipality shall provide to a fire fighter or police
9-22     officer a leave of absence for an illness or injury related to the
9-23     person's line of duty.  The leave is with full pay for a period
9-24     commensurate with the nature of the line of duty illness or injury.
9-25     If necessary, the leave shall continue for at least 365 working
9-26     days [one year].
9-27           (b)  At the end of 365 working days [the one-year period],
 10-1    the municipality's governing body may extend the line of duty
 10-2    illness or injury leave at full or reduced pay.  If the fire
 10-3    fighter's or police officer's salary is reduced below 60 percent of
 10-4    the person's regular monthly salary and the municipality has a fire
 10-5    fighter's or police officer's pension fund, the person may retire
 10-6    on pension until able to return to duty.
 10-7          (c)  If pension benefits are not available to a fire fighter
 10-8    or police officer who is temporarily disabled by a line of duty
 10-9    injury or illness and if 365 working days [the year] at full pay
10-10    and any extensions granted by the governing body have expired, the
10-11    fire fighter or police officer may use accumulated sick leave,
10-12    vacation time, and other accrued benefits before the person is
10-13    placed on temporary leave.
10-14          SECTION 9.  Section 143.081(d), Local Government Code, is
10-15    amended to read as follows:
10-16          (d)  If the report of the appointed physician, psychiatrist,
10-17    or psychologist, as appropriate, disagrees with the report of the
10-18    fire fighter's or police officer's personal physician,
10-19    psychiatrist, or psychologist, as appropriate, the commission shall
10-20    appoint a three-member board composed of a physician, a
10-21    psychiatrist, and a psychologist, or any combination, as
10-22    appropriate, to examine the fire fighter or police officer.  The
10-23    board's findings as to the person's fitness for duty is final and
10-24    binding on all parties and may not be appealed [shall determine the
10-25    issue].
10-26          SECTION 10.  Subchapter F, Chapter 143, Local Government
10-27    Code, is amended by adding Section 143.090 to read as follows:
 11-1          Sec. 143.090.  ARREST OR CONVICTION OF FIRE FIGHTER OR POLICE
 11-2    OFFICER.  A fire fighter or police officer shall notify the
 11-3    department employing that person if the person is arrested or
 11-4    convicted of a crime.
 11-5          SECTION 11.  Section 143.129(d), Local Government Code, is
 11-6    amended to read as follows:
 11-7          (d)  If the proposed solution is not acceptable, the fire
 11-8    fighter or police officer may either submit a written request
 11-9    stating the person's decision to appeal to an independent third
11-10    party hearing examiner pursuant to the provisions of Section
11-11    143.057 or file a step III grievance form with the director in
11-12    accordance with Section 143.130.  If the fire fighter or police
11-13    officer fails to timely file a step III grievance form or a written
11-14    request to appeal to a hearing examiner, the solution is considered
11-15    accepted.  Notwithstanding Section 143.057(h)[(i)], if the fire
11-16    fighter or police officer prevails and the hearing examiner upholds
11-17    the grievance in its entirety, the department shall bear the cost
11-18    of the appeal to the hearing examiner.  If the fire fighter or
11-19    police officer fails to prevail and the hearing examiner denies the
11-20    grievance in its entirety, the fire fighter or police officer shall
11-21    bear the cost of the appeal to the hearing examiner.  If neither
11-22    party entirely prevails and the hearing examiner upholds part of
11-23    the grievance and denies part of it, the hearing examiner's fees
11-24    and expenses shall be shared equally by the fire fighter or police
11-25    officer and the department.
11-26          SECTION 12.  (a)  This Act takes effect September 1, 1999.
11-27          (b)  The changes in law made by this Act to Sections 143.015
 12-1    and 143.057, Local Government Code, regarding a municipality's
 12-2    right to appeal apply only to an appeal of a disciplinary action in
 12-3    which the decision of a civil service commission or of an
 12-4    independent third party hearing examiner is rendered on or after
 12-5    the effective date of this Act.  An appeal of a disciplinary action
 12-6    in which the decision of a civil service commission or of an
 12-7    independent third party hearing examiner is rendered before the
 12-8    effective date of this Act is governed by the law as it existed
 12-9    immediately before the effective date of this Act, and that law is
12-10    continued in existence for that purpose.
12-11          (c)  The change in law made by this Act to Section 143.027,
12-12    Local Government Code, applies only to the probationary period for
12-13    a person appointed to a beginning position in a police department
12-14    on or after the effective date of this Act.  The probationary
12-15    period for a person appointed to a beginning position in a police
12-16    department before the effective date of this Act is governed by the
12-17    law as it existed immediately before the effective date of this
12-18    Act, and that law is continued in existence for that purpose.
12-19          (d)  The change in law made by this Act to Section 143.051,
12-20    Local Government Code, applies only to an indefinite suspension
12-21    that occurs on or after the effective date of this Act.  An
12-22    indefinite suspension that occurs before the effective date of this
12-23    Act is governed by the law as it existed immediately before the
12-24    effective date of this Act, and that law is continued in existence
12-25    for that purpose.
12-26          (e)  The change in law made by this Act to Section 143.073,
12-27    Local Government Code, applies to a leave of absence that begins or
 13-1    is in progress on or after the effective date of this Act.
 13-2          (f)  Section 143.090, Local Government Code, as added by this
 13-3    Act, applies only to a fire fighter or police officer who is
 13-4    arrested or convicted of a crime on or after the effective date of
 13-5    this Act.
 13-6          SECTION 13.  The importance of this legislation and the
 13-7    crowded condition of the calendars in both houses create an
 13-8    emergency and an imperative public necessity that the
 13-9    constitutional rule requiring bills to be read on three several
13-10    days in each house be suspended, and this rule is hereby suspended.