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.