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78R5884 YDB-F
By: Barrientos S.B. No. 973
A BILL TO BE ENTITLED
AN ACT
relating to firefighter employment in certain political
subdivisions; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 5, Local Government Code, is
amended by adding Chapter 176 to read as follows:
CHAPTER 176. FIREFIGHTERS EMPLOYED BY CERTAIN LOCAL GOVERNMENTS
Sec. 176.001. APPLICABILITY. This chapter does not apply
to:
(1) a municipality with a population of 10,000 or
more; or
(2) a county.
Sec. 176.002. DEFINITIONS. In this chapter:
(1) "Member of a fire department" means an employee of
a fire department who is defined as "fire protection personnel" by
Section 419.021, Government Code.
(2) "Political subdivision" includes:
(A) any special district or other local
government; and
(B) the administrative agency or supervising
local government governing a fire department established by two or
more governmental entities that have entered an interlocal contract
under Chapter 791, Government Code, to obtain fire protection
services.
Sec. 176.003. PAYROLL DEDUCTIONS. (a) The governing body
of a political subdivision may deduct from a member of the fire
department's monthly salary or wages an amount requested in writing
by the member of the fire department in payment of membership dues
to a bona fide employees' association named by the member of the
fire department.
(b) Participation in the payroll deduction program by a
member of the fire department is voluntary.
(c) A member of the fire department's written request must:
(1) be set out in a form prescribed and provided by the
chief financial official of the political subdivision;
(2) state the amount to be deducted each month; and
(3) direct the chief financial official to transfer
the deducted funds to the designated employees' association.
(d) The amount deducted each month may not exceed the amount
stated in the written request. However, the governing body of a
political subdivision may impose and collect an administrative fee
from each participating member of the fire department in addition
to the membership dues withheld. The fee must be in an amount
reasonable and necessary to cover the administrative costs of
collecting, accounting for, and disbursing the membership dues.
(e) A request under this section remains in effect until the
chief financial official receives written notice of revocation in a
form prescribed and provided by the chief financial official and
filed by the member of the fire department.
Sec. 176.004. LONGEVITY PAY. Each member of a fire
department of a political subdivision is entitled to receive, in
addition to all other money paid for services rendered in the
department, longevity pay of $4 a month for each year of service in
the department, not to exceed 25 years.
Sec. 176.005. CLASSIFICATION OF POSITIONS; SALARY
SCHEDULE. (a) Each political subdivision shall:
(1) classify all positions in its fire department; and
(2) specify the duties and prescribe the salary for
each classification.
(b) A member of a fire department who is required to perform
the duties of a particular classification is entitled to be paid the
salary prescribed for that classification during the time the
member performs those duties.
Sec. 176.006. PENALTY. (a) An official of a political
subdivision who is in charge of the fire department or is
responsible for setting the compensation, hours, or other working
conditions provided by this chapter commits an offense if the
official violates this chapter.
(b) An offense under this section is punishable by a fine of
not less than $10 or more than $100.
(c) Each day the official causes or permits a violation of
this chapter to occur is a separate offense.
Sec. 176.007. VACATION DAYS AND HOLIDAYS OF MEMBERS OF FIRE
DEPARTMENT. (a) A member of a fire department in a political
subdivision who has been regularly employed by the department for
at least one year is entitled to the greater of:
(1) 15 vacation days with pay each year; or
(2) the same number of vacation days with pay as is
granted to other employees of the political subdivision with the
same length of service.
(b) The department head or the department head's designee
shall designate the days during which the member may be on vacation.
(c) A member of the fire department is entitled to the same
number of paid holidays, or days of paid leave in lieu of holidays,
as is granted to other employees of the political subdivision.
Sec. 176.008. HOURS OF LABOR AND OVERTIME PAY OF MEMBERS OF
FIRE DEPARTMENT. (a) In this section, "work cycle" means the
period in a posted work schedule starting at the time the cycle
begins and ending at the time the cycle begins to repeat itself. The
cycle may span any number of days not less than seven or more than
28.
(b) A member of a fire department is considered to have
worked overtime and is entitled to be compensated for the overtime
as provided by Subsection (e) if the member:
(1) is not exempt under the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.), as amended;
and
(2) is required or permitted to work more than the
number of hours that bears the same ratio to 212 hours as the number
of days in the work period bears to 28 days.
(c) A member of a fire department is considered to have
worked overtime and is entitled to be compensated for the overtime
as provided by Subsection (e) if the member:
(1) does not fight fires or provide emergency medical
services, including a member who is a mechanic, clerk,
investigator, inspector, fire marshal, fire alarm dispatcher, and
maintenance worker;
(2) is not exempt under the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.), as amended;
and
(3) is required or permitted to average more hours in a
week than the number of hours in a normal work week of the majority
of the employees of the political subdivision other than
firefighters, emergency medical service personnel, and police
officers.
(d) In determining the number of hours worked by a member of
a fire department who is covered by this section and 29 U.S.C.
Section 207(k), as amended:
(1) all hours are counted during which the member of
the fire department is required to remain on call on the employer's
premises or so close to the premises that the member cannot use
those hours effectively for that member's own purposes;
(2) hours during which the member of the fire
department is required to leave a telephone number at which the
member may be reached or is required to remain accessible by radio
or pager are not counted; and
(3) vacation, sick time, holidays, time off in lieu of
holidays, or compensatory time may be excluded as hours worked.
(e) A member of a fire department may be required or
permitted to work overtime. A member of a fire department who is
not exempt under the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.), as amended, and who is required or
permitted to work overtime as provided by Subsection (b) or (c) is
entitled to be paid overtime for the excess hours worked without
regard to the number of hours worked in any one week of a work cycle.
Overtime hours are paid at a rate equal to 1-1/2 times the
compensation paid to the member of the fire department for regular
hours.
(f) Nothing in this section prevents a member of a fire
department from working extra hours when exchanging work hours with
another member of the fire department with the consent of the
department head.
Sec. 176.009. PAYMENT FOR COURT APPEARANCES OF
FIREFIGHTERS. (a) A political subdivision shall pay a member of a
fire department for an appearance as a witness in a criminal case or
a civil suit in which the political subdivision is a party in
interest if the appearance:
(1) is required;
(2) is made on time off; and
(3) is made by the member in the member's capacity as a
member of the fire department.
(b) Payment under this section is at the member's regular
rate of pay.
(c) Payment under this section may be taxed as court costs
in civil suits.
(d) This section does not reduce or prohibit compensation
paid in excess of the regular rate of pay.
SECTION 2. Subtitle C, Title 5, Local Government Code, is
amended by adding Chapter 177 to read as follows:
CHAPTER 177. FIREFIGHTER CIVIL SERVICE
FOR CERTAIN LOCAL GOVERNMENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 177.001. PURPOSE. (a) The purpose of this chapter is
to secure efficient fire departments composed of capable personnel
who are free from political influence and who have permanent
employment tenure as public servants.
(b) The members of the Firefighters' Civil Service
Commission shall administer this chapter in accordance with this
purpose.
Sec. 177.002. ENTITIES AND POLITICAL SUBDIVISIONS COVERED
BY CHAPTER. (a) This chapter applies to a fire department:
(1) that employs one or more persons who are defined as
fire protection personnel by Section 419.021, Government Code;
(2) that provides fire protection services to two or
more governmental entities that have entered an interlocal contract
under Chapter 791, Government Code, to obtain fire protection
services; and
(3) for which this chapter has been adopted in
accordance with Section 177.004.
(b) Except as provided by Subsection (c), this chapter
applies to a political subdivision that:
(1) has a paid fire department; and
(2) has adopted this chapter in accordance with
Section 177.005.
(c) This chapter does not apply to a municipality with a
population of 10,000 or more or to a county.
Sec. 177.003. DEFINITIONS. In this chapter:
(1) "Chief executive" means the chief executive of:
(A) the governing body of the administrative
agency or supervising local government governing a fire department
described by Section 177.002(a); or
(B) any special district or other local
government described by Section 177.002(b).
(2) "Commission" means the Firefighters' Civil Service
Commission.
(3) "Department head" means the chief or head of a fire
department or that person's equivalent, regardless of the name or
title used.
(4) "Director" means the director of the firefighters'
civil service.
(5) "Firefighter" means a member of a fire department
who was appointed in substantial compliance with this chapter or
who is entitled to civil service status under Section 177.006. The
term includes members who perform:
(A) fire suppression;
(B) fire prevention;
(C) fire training;
(D) fire safety education;
(E) fire maintenance;
(F) fire communications;
(G) fire medical emergency technology;
(H) fire photography;
(I) fire administration; or
(J) fire arson investigation.
(6) "Governing body" means the governing body of the
administrative agency or supervising local government governing a
fire department described in Section 177.002(a), or the governing
body for a political subdivision described in Section 177.002(b),
as applicable.
Sec. 177.004. ELECTION TO ADOPT OR REPEAL CHAPTER: FIRE
DEPARTMENT SERVING TWO OR MORE ENTITIES. (a) A fire department to
which this chapter applies under Section 177.002(a) may adopt this
chapter by majority vote of:
(1) its governing body; or
(2) the qualified voters in the governmental entities
served by the fire department, in accordance with this section.
(b) If the governing body of the fire department receives a
petition requesting an election that is signed by a number of
qualified voters of the affected governmental entities served by
the fire department equal to at least 10 percent of the combined
total number of voters of the governmental entities who voted in the
most recent general election, the governing body shall order an
election submitting to the voters of the governmental entities the
question of whether this chapter should be adopted. The election
must be held on the first authorized uniform election date
prescribed by Chapter 41, Election Code, that occurs after the
petition is filed and allows sufficient time to comply with other
requirements of law.
(c) The ballot shall be printed to provide for voting for or
against the proposition: "Adoption of the firefighters' civil
service law." If a majority of the votes received in the election
favor adoption of this chapter, the governing body shall implement
this chapter.
(d) If an election is held under Subsection (b), a petition
for a subsequent election to be held under that subsection may not
be filed for at least one year after the date the previous election
was held. To be valid, a petition for a subsequent election must
contain the signatures of a number of qualified voters of the
affected governmental entities equal to at least 20 percent of the
combined total number of voters who voted in the most recent general
election. Any subsequent election must be held on the first
authorized uniform election date prescribed by Chapter 41, Election
Code, that occurs after the petition is filed and allows sufficient
time to comply with other requirements of law.
(e) If the governing body of a fire department described by
Subsection (a) that has operated under this chapter for at least one
year receives a petition requesting an election to repeal this
chapter that is signed by at least 10 percent of the combined number
of qualified voters of the affected governmental entities, the
governing body shall order an election submitting to the voters the
question of whether this chapter should be repealed. If a majority
of the qualified voters vote to repeal this chapter, this chapter
does not apply to the fire department.
Sec. 177.005. ELECTION BY POLITICAL SUBDIVISION WITH PAID
FIRE DEPARTMENT TO ADOPT OR REPEAL CHAPTER. (a) A political
subdivision to which this chapter applies under Section 177.002(b)
may adopt this chapter by majority vote of:
(1) its governing body; or
(2) the qualified voters in the political subdivision
in accordance with this section.
(b) If the governing body of the political subdivision
receives a petition requesting an election that is signed by a
number of qualified voters of the political subdivision equal to at
least 10 percent of the number of voters who voted in the most
recent general election, the governing body shall order an election
submitting to the voters the question of whether this chapter
should be adopted. The election must be held on the first
authorized uniform election date prescribed by Chapter 41, Election
Code, that occurs after the petition is filed and allows sufficient
time to comply with other requirements of law.
(c) The ballot shall be printed to provide for voting for or
against the proposition: "Adoption of the firefighters' civil
service law." If a majority of the votes received in the election
favor adoption of this chapter, the governing body shall implement
this chapter.
(d) If an election is held under Subsection (b), a petition
for a subsequent election to be held under that subsection may not
be filed for at least one year after the date the previous election
was held. To be valid, a petition for a subsequent election must
contain the signatures of a number of qualified voters of the
political subdivision equal to at least 20 percent of the number of
voters who voted in the most recent general election. Any
subsequent election must be held on the first authorized uniform
election date prescribed by Chapter 41, Election Code, that occurs
after the petition is filed and allows sufficient time to comply
with other requirements of law.
(e) If the governing body of a political subdivision that
has operated under this chapter for at least one year receives a
petition requesting an election to repeal this chapter that is
signed by at least 10 percent of the qualified voters of the
political subdivision, the governing body shall order an election
submitting to the voters the question of whether this chapter
should be repealed. If a majority of the qualified voters vote to
repeal this chapter, this chapter does not apply in that political
subdivision.
Sec. 177.006. STATUS OF EMPLOYEES IF CHAPTER ADOPTED. Each
firefighter serving in a fire department for which this chapter has
been adopted under Section 177.004 or 177.005 has the status of a
civil service employee and is not required to take a competitive
examination to remain in the position the firefighter occupies at
the time of the adoption if the firefighter:
(1) has been in the service of the fire department for
more than six months at the time this chapter is adopted; and
(2) is otherwise entitled to civil service
classification.
Sec. 177.007. IMPLEMENTATION; COMMISSION. (a) On
adoption of this chapter, the Firefighters' Civil Service
Commission is established for the fire department. The chief
executive shall appoint the members of the commission within 60
days after the date this chapter is adopted. Within 30 days after
the first day of the first full fiscal year applicable to the fire
department that begins after the date of the adoption election, the
governing body shall implement this chapter.
(b) The commission consists of three members appointed by
the chief executive and confirmed by the governing body. Members
serve staggered two-year terms with the term of at least one member
expiring each year. If a vacancy occurs or if an appointee fails to
qualify within 10 days after the date of appointment, the chief
executive shall appoint a person to serve for the remainder of the
unexpired term in the same manner as the original appointee.
(c) A person appointed to the commission must:
(1) be of good moral character;
(2) be a United States citizen;
(3) be a resident of a political subdivision served by
the fire department who has resided in the political subdivision
for more than three years;
(4) be over 25 years of age; and
(5) not have held a public office within the preceding
three years.
(d) In making initial appointments, the chief executive
shall designate one member to serve a one-year term and two members
to serve two-year terms.
(e) Initial members shall elect a presiding officer and an
assistant presiding officer within 10 days after the date all
members have qualified. Each January, the members shall elect a
presiding officer and an assistant presiding officer.
(f) The governing body shall provide to the commission
adequate and suitable office space in which to conduct business.
(g) The chief executive commits an offense if the chief
executive knowingly or intentionally fails to appoint the initial
members of the commission within the 60-day period prescribed by
Subsection (a). An offense under this subsection is a misdemeanor
punishable by a fine of not less than $100 or more than $200. Each
day after the 60-day period that the chief executive knowingly or
intentionally fails to make a required appointment constitutes a
separate offense.
(h) The chief executive or another official of the fire
department or a political subdivision commits an offense if the
person knowingly or intentionally refuses to implement this chapter
or attempts to obstruct the enforcement of this chapter. An offense
under this subsection is a misdemeanor punishable by a fine of not
less than $100 or more than $200.
Sec. 177.008. REMOVAL OF COMMISSION MEMBER. (a) If at a
meeting held for that purpose the governing body finds that a
commission member is guilty of misconduct in office, the governing
body may remove the member. The member may request that the meeting
be held as an open hearing in accordance with Chapter 551,
Government Code.
(b) If a commission member is indicted or charged by
information with a criminal offense involving moral turpitude, the
member is automatically suspended from office until the disposition
of the charge. Unless the member pleads guilty or is found to be
guilty, the member shall resume office at the time of disposition of
the charge.
(c) The governing body may appoint a substitute commission
member during a period of suspension. If a member pleads guilty to
or is found to be guilty of a criminal offense involving moral
turpitude, the conviction removes the member from the commission
and the governing body shall appoint a replacement commission
member to serve the remainder of the disqualified member's term of
office.
Sec. 177.009. ADOPTION AND PUBLICATION OF RULES. (a) The
commission shall adopt rules necessary for the proper conduct of
commission business.
(b) The commission may not adopt a rule permitting the
appointment or employment of a person who is:
(1) without good moral character;
(2) physically or mentally unfit; or
(3) incompetent to discharge the duties of the
appointment or employment.
(c) The commission shall adopt rules that prescribe cause
for removal or suspension of a firefighter. The rules must comply
with the grounds for removal prescribed by Section 177.151.
(d) The commission shall publish each rule it adopts and
each classification and seniority list for the fire department.
The rules and lists shall be made available on demand. A rule is
considered to be adopted and sufficiently published if the
commission adopts the rule by majority vote and reduces the rule to
writing. Publication in a newspaper is not required. The governing
body may not act on the rule.
(e) A rule is not valid and binding on the commission until
the commission:
(1) mails a copy of the rule to the fire commissioner,
if the political subdivision has an elected fire commissioner, and
to the department head;
(2) posts a copy of the rule for a seven-day period at
a conspicuous place in the central fire station; and
(3) mails a copy of the rule to each branch fire
station.
(f) The director shall keep copies of all rules for free
distribution to members of the fire department who request copies
and for inspection by any interested person.
Sec. 177.010. COMMISSION INVESTIGATIONS AND INSPECTIONS.
(a) The commission or a commission member designated by the
commission may investigate and report on all matters relating to
the enforcement and effect of this chapter and any rules adopted
under this chapter and shall determine if the chapter and rules are
being obeyed.
(b) During an investigation, the commission or the
commission member may:
(1) administer oaths;
(2) issue subpoenas to compel the attendance of
witnesses and the production of books, papers, documents, and
accounts relating to the investigation; and
(3) depose witnesses residing inside or outside the
state.
(c) A deposition taken in connection with an investigation
under this section must be taken in the manner prescribed by law for
taking a similar deposition in a civil action in federal district
court.
(d) An oath administered or a subpoena issued under this
section has the same force and effect as an oath administered by a
magistrate in the magistrate's judicial capacity.
(e) A person who fails to respond to a subpoena issued under
this section commits an offense punishable as prescribed by Section
177.016.
Sec. 177.011. COMMISSION APPEAL PROCEDURE. (a) Except as
otherwise provided by this chapter, if a firefighter wants to
appeal to the commission an action for which an appeal or review is
provided by this chapter, the firefighter must file an appeal with
the commission within 10 days after the date the action occurred.
(b) The appeal must:
(1) include the basis for the appeal and a request for
a commission hearing; and
(2) contain a statement that:
(A) denies the truth of the charge as made;
(B) takes exception to the legal sufficiency of
the charge;
(C) alleges the recommended action does not fit
the offense or alleged offense; or
(D) combines any of the statements in Paragraphs
(A)-(C).
(c) In each hearing, appeal, or review of any kind in which
the commission performs an adjudicatory function, the affected
firefighter is entitled to be represented by counsel or a person the
firefighter chooses. Each commission proceeding shall be held in
public.
(d) The commission may issue subpoenas and subpoenas duces
tecum for the attendance of witnesses and for the production of
documentary material.
(e) The affected firefighter may request that the
commission subpoena any books, records, documents, papers,
accounts, or witnesses that the firefighter considers pertinent to
the case. The firefighter must make the request before the 10th day
before the date the commission hearing will be held. If the
commission does not subpoena the material, the commission shall,
before the third day before the date the hearing will be held, make
a written report to the firefighter stating the reason the
commission will not subpoena the requested material. This report
shall be read into the public record of the commission hearing.
(f) Witnesses may be placed under the rule at the commission
hearing.
(g) The commission shall conduct the hearing fairly and
impartially as prescribed by this chapter and shall render a just
and fair decision. The commission may consider only the evidence
submitted at the hearing.
(h) The commission shall maintain a public record of each
proceeding with copies available at cost.
Sec. 177.012. DECISIONS AND RECORDS. (a) Each concurring
commission member shall sign a decision issued by the commission.
(b) The commission shall keep records of each hearing or
case that comes before the commission.
(c) Each rule, opinion, directive, decision, or order
issued by the commission must be written and is a public record that
the commission shall retain on file.
Sec. 177.013. DIRECTOR. (a) On adoption of this chapter,
the office of Director of Firefighters' Civil Service is
established for the fire department. The commission shall appoint
the director and may remove the director at any time. The director
shall:
(1) serve as secretary to the commission; and
(2) perform work incidental to the civil service
system as required by the commission.
(b) A person appointed as director must meet each
requirement for appointment to the commission prescribed by Section
177.007(c) except the local residency requirement.
(c) A person appointed as director may be a commission
member, an employee of an affected political subdivision, or
another person.
(d) The governing body shall determine the salary, if any,
to be paid to the director.
Sec. 177.014. APPOINTMENT AND REMOVAL OF DEPARTMENT HEAD.
(a) Unless elected, each department head is appointed by the chief
executive and confirmed by the governing body.
(b) A person appointed as head of a fire department must be
eligible for certification by the Texas Commission on Fire
Protection at the intermediate level or its equivalent as
determined by that commission and must have served as a fully paid
firefighter for at least five years.
(c) Except as provided by Subsection (d), if a person is
removed from the position of department head the person shall be
reinstated in the department and placed in a position with a rank
not lower than that held by the person immediately before
appointment as department head. The person retains all rights of
seniority in the department.
(d) A person serving as department head who is charged with
an offense in violation of civil service rules and is dismissed from
the civil service or discharged from the person's position as
department head has the same rights and privileges to have a hearing
before the commission in the same manner and under the same
conditions as a classified employee. If the commission finds that
the charges are false or unfounded, the person shall immediately be
restored to the same classification that the person held before
appointment as department head. The person has all the rights and
privileges pertaining to the prior position according to seniority
and shall be paid the person's full salary for the time of
suspension.
Sec. 177.015. APPEAL OF COMMISSION DECISION TO DISTRICT
COURT. (a) A firefighter who is dissatisfied with any commission
decision may file a petition in district court asking that the
decision be set aside. The petition must be filed within 10 days
after the date the final commission decision:
(1) is sent to the firefighter by certified mail; or
(2) is personally received by the firefighter or by
the firefighter's designee.
(b) The district court may grant the appropriate legal or
equitable relief necessary to accomplish the purposes of this
chapter. The relief may include reinstatement or promotion with
back pay if an order of suspension, dismissal, or demotion is set
aside.
(c) The court may award reasonable attorney's fees to the
prevailing party and assess court costs against the nonprevailing
party.
(d) If the court finds for the firefighter, the court shall
order the governing body to ensure that lost wages are paid to the
firefighter.
Sec. 177.016. PENALTY FOR VIOLATION OF CHAPTER. (a) A
person commits an offense if the person violates this chapter.
(b) An offense under this section or Section 177.010 is a
misdemeanor punishable by a fine of not less than $10 or more than
$100, confinement in the county jail for not more than 30 days, or
both the fine and confinement.
[Sections 177.017-177.050 reserved for expansion]
SUBCHAPTER B. CLASSIFICATION AND APPOINTMENT
Sec. 177.051. CLASSIFICATION; EXAMINATION REQUIREMENT.
(a) The commission shall provide for the classification of all
firefighters. The governing body shall:
(1) establish the classifications; and
(2) prescribe the number of positions in each
classification.
(b) Except for the department head, each firefighter is
classified as prescribed by this subchapter and has civil service
protection. The failure of the governing body to establish a
position does not result in the loss of civil service benefits by a
person entitled to civil service protection or appointed to the
position in substantial compliance with this chapter.
(c) Except as provided by Section 177.014, an existing
position or classification or a position or classification created
in the future either by name or by increase in salary may be filled
only from an eligibility list that results from an examination held
in accordance with this chapter.
Sec. 177.052. PHYSICAL REQUIREMENTS AND EXAMINATIONS. (a)
The commission shall set the age and physical requirements for
applicants for beginning and promotional positions in accordance
with this chapter. The requirements must be the same for all
applicants.
(b) The commission shall require each applicant for a
beginning or a promotional position to take an appropriate physical
examination. The commission may require each applicant for a
beginning position to take a mental examination. The examination
shall be administered by a physician, psychiatrist, or
psychologist, as appropriate, appointed by the commission. The
fire department shall pay for each examination.
(c) If an applicant is rejected by the physician,
psychiatrist, or psychologist, as appropriate, the applicant may
request another examination by a board of three physicians,
psychiatrists, or psychologists, as appropriate, appointed by the
commission. The applicant must pay for the board examination. The
board's decision is final.
Sec. 177.053. ELIGIBILITY FOR BEGINNING POSITION. (a) A
person may not take an entrance examination for a beginning
position in the fire department unless the person is at least 18
years of age.
(b) An applicant may not be certified as eligible for a
beginning position with a fire department unless the applicant
meets all legal requirements necessary to become eligible for
future certification by the Texas Commission on Fire Protection.
(c) Each firefighter affected by this chapter must be able
to read and write English.
Sec. 177.054. ENTRANCE EXAMINATION NOTICE. (a) Before the
10th day before the date an entrance examination is held, the
commission shall post a notice of the examination in plain view on a
bulletin board located in the main lobby of the governing body's
offices and in the commission's office. The notice must show the
position to be filled or for which the examination is to be held and
the date, time, and place of the examination.
(b) The notice required by Subsection (a) must also state
the period during which the eligibility list created as a result of
the examination will be effective.
Sec. 177.055. ENTRANCE EXAMINATIONS. (a) The commission
shall provide for open, competitive, and free entrance examinations
to provide eligibility lists for beginning positions in the fire
department. The examinations are open to each person who makes a
proper application and meets the requirements prescribed by this
chapter.
(b) An eligibility list for a beginning position in the fire
department may be created only as a result of a competitive
examination held in the presence of each applicant for the
position, except as provided by Subsection (d). The examination
must be based on the applicant's knowledge of and qualifications
for fire fighting and work in the fire department and must inquire
into the applicant's general education and mental ability. A
person may not be appointed to the fire department except as a
result of the examination.
(c) An applicant may not take an examination unless at least
one other applicant taking the examination is present.
(d) Examinations for beginning positions in the fire
department may be held at different locations if each applicant
takes the same examination and is examined in the presence of other
applicants.
(e) An additional five points shall be added to the
examination grade of an applicant who served in the United States
armed forces, received an honorable discharge, and made a passing
grade on the examination.
(f) An applicant may not take the examination for a
particular eligibility list more than once.
(g) The commission shall:
(1) keep each eligibility list for a beginning
position in effect for a period of not less than six months or more
than 12 months, unless the names of all applicants on the list have
been referred to the fire department;
(2) determine the length of the period; and
(3) give new examinations at times the commission
considers necessary to provide required staffing.
(h) The grade to be placed on the eligibility list for each
applicant shall be computed by adding an applicant's points under
Subsection (e), if any, to the applicant's grade on the written
examination. Each applicant's grade on the written examination is
based on a maximum grade of 100 points and is determined entirely by
the correctness of the applicant's answers to the questions. The
minimum passing grade on the examination is 70 points. An applicant
must pass the examination to be placed on an eligibility list.
Sec. 177.056. PROCEDURE FOR FILLING BEGINNING POSITIONS.
(a) When a vacancy occurs in a beginning position in a fire
department, the department head shall request in writing from the
commission the names of suitable persons from the eligibility list.
The director shall certify to the chief executive the names of the
three persons having the highest grades on the eligibility list.
(b) From the three names certified, the chief executive
shall appoint the person having the highest grade unless there is a
valid reason why the person having the second or third highest grade
should be appointed.
(c) If the chief executive does not appoint the person
having the highest grade, the chief executive shall clearly set
forth in writing a good and sufficient reason why the person having
the highest grade was not appointed.
(d) The reason required by Subsection (c) shall be filed
with the commission and a copy provided to the person having the
highest grade. If the chief executive appoints the person having
the third highest grade, a copy of the report shall also be
furnished to the person having the second highest grade.
Sec. 177.057. PROBATIONARY PERIOD. (a) A person appointed
to a beginning position in the fire department must serve a
probationary period of one year beginning on that person's date of
employment as a firefighter.
(b) During a firefighter's probationary period, the
department head shall discharge the firefighter and remove the
firefighter from the payroll if the firefighter's appointment was
not regular or was not made in accordance with this chapter or
commission rules.
(c) During a firefighter's probationary period, the
firefighter may not be prohibited from joining or required to join
an employee organization. Joining or not joining an employee
organization is not a ground for retaining or not retaining a
firefighter serving a probationary period.
(d) A firefighter who was appointed in substantial
compliance with this chapter and who serves the entire probationary
period automatically becomes a civil service employee with full
civil service protection.
Sec. 177.058. CERTAIN ELIGIBILITY PROVISIONS RELATING TO
PROMOTION. (a) A firefighter is not eligible for promotion to the
rank of captain or its equivalent unless the person has at least
four years' actual service in that fire department.
(b) If a person is recalled to active military duty for not
more than 24 months, the two-year service requirements prescribed
by Section 177.060 do not apply and the person is entitled to have
time spent on active military duty considered as duty in the fire
department. If the active military duty exceeds 12 months, the
person on return must serve in the department for 90 days before the
person is eligible to participate in a promotional examination.
This time is considered necessary to bring the person up to date on
equipment and techniques.
Sec. 177.059. PROMOTIONAL EXAMINATION NOTICE. (a) Before
the 90th day before the date a promotional examination is held, the
commission shall post a notice that lists the sources from which the
examination questions will be taken.
(b) Before the 30th day before the date a promotional
examination is held, the commission shall post a notice of the
examination in plain view on a bulletin board located in the main
lobby of the administrative offices of the governing body and in the
commission's office. The notice must show the position to be filled
or for which the examination is to be held and the date, time, and
place of the examination. The commission shall also furnish
sufficient copies of the notice for posting in the stations or
subdepartments in which the position will be filled.
(c) The notice required by Subsection (b) may also include
the name of each source used for the examination, the number of
questions taken from each source, and the chapter used in each
source.
Sec. 177.060. ELIGIBILITY FOR FIRE DEPARTMENT PROMOTIONAL
EXAMINATION. (a) Each promotional examination is open to each
firefighter who at any time has continuously held for at least two
years a position in the classification that is immediately below,
in salary, the classification for which the examination is to be
held.
(b) If the department has adopted a classification plan that
classifies positions on the basis of similarity in duties and
responsibilities, each promotional examination is open to each
firefighter who has continuously held for at least two years a
position at the next lower pay grade, if it exists, in the
classification for which the examination is to be held.
(c) If there are not enough firefighters in the next lower
position with two years' service in that position to provide an
adequate number of persons to take the examination, the commission
may open the examination to persons in that position with less than
two years' service. If there is still an insufficient number, the
commission may open the examination to persons with at least two
years' experience in the second lower position, in salary, to the
position for which the examination is to be held.
(d) A firefighter who previously terminated the
firefighter's employment with the department and is subsequently
reemployed by the same department must again meet the two-year
service requirement for eligibility to take a promotional
examination. In determining if a firefighter has met the two-year
service requirement, a fire department may not consider service in
another fire department.
(e) This section does not prohibit lateral crossover
between classes.
Sec. 177.061. PROMOTIONAL EXAMINATION PROCEDURE. (a) The
commission shall adopt rules governing promotions and shall hold
promotional examinations to provide eligibility lists for each
classification in the fire department. The examinations shall be
held substantially as prescribed by this section.
(b) Each eligible promotional candidate shall be given an
identical examination in the presence of the other eligible
promotional candidates.
(c) The examination must be entirely in writing and may not
in any part consist of an oral interview.
(d) The examination questions must test the knowledge of the
eligible promotional candidates about information and facts and
must be based on:
(1) the duties of the position for which the
examination is held;
(2) material that is of reasonably current publication
and that has been made reasonably available to each member of the
fire department involved in the examination; and
(3) any study course given by the departmental school
of instruction.
(e) The examination questions must be taken from the sources
posted as prescribed by Section 177.059(a). Firefighters may
suggest source materials for the examinations.
(f) The examination questions must be prepared and composed
so that the grading of the examination can be promptly completed
immediately after the examination is over.
(g) The director is responsible for the preparation and
security of each promotional examination. The fairness of the
competitive promotional examination is the responsibility of the
commission, the director, and each employee involved in the
preparation or administration of the examination.
(h) A person commits an offense if the person knowingly or
intentionally:
(1) reveals a part of a promotional examination to an
unauthorized person; or
(2) receives from any person a part of a promotional
examination for unfair personal gain or advantage.
(i) An offense under Subsection (h) is a misdemeanor
punishable by a fine of not less than $1,000, confinement in the
county jail for not more than one year, or both the fine and
confinement.
Sec. 177.062. PROMOTIONAL EXAMINATION GRADES. (a) The
grading of each promotional examination shall begin when one
eligible promotional candidate completes the examination. As the
eligible promotional candidates finish the examination, the
examinations shall be graded at the examination location and in the
presence of any candidate who wants to remain during the grading.
(b) Each firefighter is entitled to receive one point for
each year of seniority in that department, with a maximum of 10
points possible.
(c) The grade that must be placed on the eligibility list
for each firefighter shall be computed by adding the applicant's
points for seniority to the applicant's grade on the written
examination. Each applicant's grade on the written examination is
based on a maximum grade of 100 points and is determined entirely by
the correctness of the applicant's answers to the questions. All
applicants who receive a grade of at least 70 points shall be
determined to have passed the examination. If a tie score occurs,
the commission shall determine a method to break the tie.
(d) Within 24 hours after a promotional examination is held,
the commission shall post the individual raw test scores on a
bulletin board located in the main lobby of the governing body's
offices.
Sec. 177.063. REVIEW AND APPEAL OF PROMOTIONAL EXAMINATION.
(a) On request, each eligible promotional candidate from the fire
department is entitled to examine the person's promotional
examination and answers, the examination grading, and the source
material for the examination. If dissatisfied, the candidate may
appeal, within five business days, to the commission for review in
accordance with this chapter. In computing this period, a
Saturday, Sunday, or legal holiday is not considered a business
day.
(b) The eligible promotional candidate may not remove the
examination or copy a question used in the examination.
Sec. 177.064. PROCEDURE FOR MAKING PROMOTIONAL
APPOINTMENTS. (a) When a vacancy occurs in a nonentry position, the
vacancy shall be filled as prescribed by this section.
(b) If an eligibility list for the position to be filled
exists on the date the vacancy occurs, the director, on request by
the department head, shall certify to the department head the names
of the three persons having the highest grades on that eligibility
list. The director shall certify the names within 10 days after the
date the director is notified of the vacancy. If fewer than three
names remain on the eligibility list or if only one or two eligible
promotional candidates passed the promotional examination, each
name on the list must be submitted to the department head.
(c) The director shall submit names from an existing
eligibility list to the department head until the vacancy is filled
or the list is exhausted.
(d) If an eligibility list does not exist on the date a
vacancy occurs or a new position is created, the commission shall
hold an examination to create a new eligibility list within 90 days
after the date the vacancy occurs or a new position is created.
(e) If an eligibility list exists on the date a vacancy
occurs, the department head shall fill the vacancy by permanent
appointment from the names on the eligibility list furnished by the
director within 60 days after the date the vacancy occurs. If an
eligibility list does not exist, the department head shall fill the
vacancy by permanent appointment from names on an eligibility list
that the commission shall provide within 90 days after the date the
vacancy occurs.
(f) Unless the department head has a valid reason for not
appointing the person, the department head shall appoint the
eligible promotional candidate having the highest grade on the
eligibility list.
(g) A department head that has a valid reason for not
appointing the eligible promotional candidate having the highest
grade shall personally discuss the reason with the person being
bypassed before appointing another person. The department head
shall also file the reason in writing with the commission. On
application of the bypassed eligible promotional candidate, the
reason the department head did not appoint that person is subject to
review by the commission.
(h) If a person is bypassed, the person's name is returned
to its place on the eligibility list and shall be resubmitted to the
department head if a vacancy occurs.
(i) A person's name shall be removed from the eligibility
list if:
(1) the department head:
(A) refuses three times to appoint the person;
and
(B) files the reasons for the refusals in writing
with the commission; and
(2) the commission does not set aside the refusals.
(j) Each promotional eligibility list remains in existence
for one year after the date on which the written examination is
given, unless exhausted. At the expiration of the one-year period,
the eligibility list expires and a new examination may be held.
Sec. 177.065. RECORD OF CERTIFICATION AND APPOINTMENT. (a)
When a person is certified and appointed to a position in the fire
department, the director shall:
(1) forward the appointed person's record to the
department head;
(2) forward a copy of the record to the chief
executive; and
(3) retain a copy in the civil service files.
(b) The record must contain:
(1) the date notice of examination for the position
was posted;
(2) the date the appointed person took the
examination;
(3) the name of each person who conducted the
examination;
(4) the relative position of the appointed person on
the eligibility list;
(5) the date the appointed person took the physical
examination, the name of the examining physician, and whether the
person was accepted or rejected;
(6) the date the request to fill the vacancy was made;
(7) the date the appointed person was notified to
report for duty; and
(8) the date the appointed person's pay is to start.
(c) If the director intentionally fails to comply with this
section, the commission shall immediately remove the director from
office.
(d) The director's failure to comply with this section does
not affect the civil service status of an employee.
Sec. 177.066. TEMPORARY DUTIES IN HIGHER CLASSIFICATION.
(a) The department head may designate a person from the next lower
classification to temporarily fill a position in a higher
classification.
(b) A person designated under Subsection (a) is entitled to
the base salary of the higher position plus the person's own
longevity or seniority pay, educational incentive pay, and
certification pay during the time the person performs the duties.
(c) The temporary performance of the duties of a higher
position by a person who has not been promoted as prescribed by this
chapter may not be construed as a promotion.
[Sections 177.067-177.100 reserved for expansion]
SUBCHAPTER C. COMPENSATION
Sec. 177.101. SALARY. (a) Except as provided by Section
177.066, all firefighters in the same classification are entitled
to the same base salary.
(b) In addition to the base salary, each firefighter is
entitled to each of the following types of pay, if applicable:
(1) longevity or seniority pay;
(2) educational incentive pay as authorized by Section
177.103;
(3) assignment pay as authorized by Section 177.102;
and
(4) certification pay as authorized by Section
177.103.
Sec. 177.102. ASSIGNMENT PAY. (a) A governing body may
authorize assignment pay for firefighters who perform specialized
functions.
(b) The assignment pay is in an amount and is payable under
conditions set by enactment of the governing body and is in addition
to the regular pay received by members of the fire department.
(c) If the enactment applies equally to each person who
meets the criteria established by the enactment, the enactment may:
(1) provide for payment to each firefighter who meets
training or education criteria for an assignment; or
(2) set criteria that provide for payment only to a
firefighter in a special assignment.
(d) The head of the fire department is not eligible for the
assignment pay authorized by this section.
Sec. 177.103. CERTIFICATION AND EDUCATIONAL INCENTIVE PAY.
(a) If each firefighter in a political subdivision is afforded an
opportunity to qualify for certification, the governing body may
authorize certification pay to those firefighters who meet the
requirements for certification set by the Texas Commission on Fire
Protection.
(b) If the criteria for educational incentive pay are
clearly established, in writing, and are applied equally to each
firefighter who meets the criteria, the governing body may
authorize educational incentive pay for each firefighter who has
successfully completed courses at an accredited college or
university.
(c) The certification pay and educational incentive pay are
in addition to a firefighter's regular pay.
Sec. 177.104. ACCUMULATION AND PAYMENT OF SICK
LEAVE. (a) A permanent or temporary firefighter is allowed sick
leave with pay accumulated at the rate of 1-1/4 full working days
for each full month employed in a calendar year for a total of 15
working days to a person's credit each 12 months.
(b) A firefighter may accumulate sick leave without limit
and may use the leave if unable to work because of a bona fide
illness. If an ill firefighter exhausts the sick leave and can
conclusively prove that the illness was incurred in the performance
of duties, an extension of sick leave shall be granted.
(c) A firefighter who leaves the classified service for any
reason is entitled to receive in a lump-sum payment the full amount
of the person's salary for accumulated sick leave if the person has
accumulated not more than 90 days of sick leave. If a firefighter
has accumulated more than 90 days of sick leave, the person's
employer may limit payment to the amount that the person would have
received if the person had been allowed to use 90 days of
accumulated sick leave during the last six months of employment.
The lump-sum payment is computed by compensating the person for the
accumulated time at the highest permanent pay classification for
which the person was eligible during the last six months of
employment. The person is paid for the same period for which the
person would have been paid if the person had taken the sick leave
but does not include additional holidays and any sick leave or
vacation time that the person might have accrued during the 90 days.
(d) To facilitate the settlement of the accounts of deceased
firefighters, all unpaid compensation, including all accumulated
sick leave, due at the time of death to an active firefighter who
dies as a result of a line-of-duty injury or illness shall be paid
to the persons in the first applicable category in the following
order of priority:
(1) to the beneficiary or beneficiaries the
firefighter designated in writing to receive the compensation and
filed with the commission before the firefighter's death;
(2) to the firefighter's widow or widower;
(3) to the firefighter's child or children and to the
descendants of a deceased child, by representation;
(4) to the firefighter's parents or to their
survivors; or
(5) to the properly appointed legal representative of
the firefighter's estate, or in the absence of a representative, to
the person determined to be entitled to the payment under the law of
descent and distribution.
(e) Payment of compensation to a person in a category in
accordance with Subsection (d) is a bar to recovery by a person in
another category.
Sec. 177.105. VACATIONS. (a) Each firefighter is entitled
to earn a minimum of 15 working days' vacation leave with pay in
each year.
(b) In computing the length of time a firefighter may be
absent from work on vacation leave, only those calendar days during
which the person would be required to work if not on vacation may be
counted as vacation days.
(c) Unless approved by the governing body, a firefighter may
not accumulate vacation leave from year to year.
[Sections 177.106-177.150 reserved for expansion]
SUBCHAPTER D. DISCIPLINARY ACTIONS
Sec. 177.151. CAUSE FOR REMOVAL OR SUSPENSION. A
commission rule prescribing cause for removal or suspension of a
firefighter is not valid unless it involves one or more of the
following grounds:
(1) conviction of a felony or other crime involving
moral turpitude;
(2) acts of incompetency;
(3) neglect of duty;
(4) discourtesy to the public or to a fellow employee
while the firefighter is in the line of duty;
(5) acts showing lack of good moral character;
(6) drinking intoxicants while on duty or intoxication
while off duty;
(7) conduct prejudicial to good order;
(8) refusal or neglect to pay just debts;
(9) absence without leave;
(10) shirking duty or cowardice at fires, if
applicable; or
(11) violation of an applicable fire rule or special
order.
Sec. 177.152. DISCIPLINARY SUSPENSIONS. (a) The head of
the fire department may suspend a firefighter under the department
head's supervision or jurisdiction for the violation of a civil
service rule. The suspension may be for a reasonable period not to
exceed 15 calendar days or for an indefinite period. An indefinite
suspension is equivalent to dismissal from the department.
(b) If the department head suspends a firefighter, the
department head shall:
(1) file a written statement with the commission
giving the reasons for the suspension within 120 hours after the
hour of suspension; and
(2) immediately deliver a copy of the statement in
person to the suspended firefighter.
(c) The copy of the written statement must inform the
suspended firefighter that if the person wants to appeal to the
commission, the person must file a written appeal with the
commission within 10 days after the date the person receives the
copy of the statement.
(d) The written statement filed by the department head with
the commission must point out each civil service rule alleged to
have been violated by the suspended firefighter and must describe
the alleged acts of the person that the department head contends are
in violation of the civil service rules. It is not sufficient for
the department head merely to refer to the provisions of the rules
alleged to have been violated.
(e) If the department head does not specifically point out
in the written statement the act or acts of the firefighter that
allegedly violated the civil service rules, the commission shall
promptly reinstate the person.
(f) If offered by the department head, the firefighter may
agree in writing to voluntarily accept, with no right of appeal, a
suspension of 16 to 90 calendar days for the violation of a civil
service rule. The firefighter must accept the offer within five
working days after the date the offer is made. If the person
refuses the offer and wants to appeal to the commission, the person
must file a written appeal with the commission within 15 days after
the date the person receives the copy of the written statement of
suspension.
(g) In the original written statement and charges and in any
hearing conducted under this chapter, the department head may not
complain of an act that occurred earlier than the 180th day
preceding the date the department head suspends the firefighter. If
the act is allegedly related to criminal activity, including the
violation of a federal, state, or local law for which the
firefighter is subject to a criminal penalty, the department head:
(1) may not complain of an act that is discovered
earlier than the 180th day preceding the date the department head
suspends the firefighter; and
(2) must allege that the act complained of is related
to criminal activity.
Sec. 177.153. APPEAL OF DISCIPLINARY SUSPENSION. (a) If a
suspended firefighter appeals the suspension to the commission, the
commission shall hold a hearing and render a decision in writing
within 30 days after the date it receives notice of appeal. The
suspended person and the commission may agree to postpone the
hearing for a definite period.
(b) In a hearing conducted under this section, the
department head is restricted to the department head's original
written statement and charges, which may not be amended.
(c) The commission may deliberate the decision in closed
session but may not consider evidence that was not presented at the
hearing. The commission shall vote in open session.
(d) In its decision, the commission shall state whether the
suspended firefighter is:
(1) permanently dismissed from the fire department;
(2) temporarily suspended from the department; or
(3) restored to the person's former position or status
in the department's classified service.
(e) If the commission finds that the period of disciplinary
suspension should be reduced, the commission may order a reduction
in the period of suspension. If the suspended firefighter is
restored to the position or class of service from which the person
was suspended, the firefighter is entitled to:
(1) full compensation for the actual time lost as a
result of the suspension at the rate of pay provided for the
position or class of service from which the person was suspended;
and
(2) restoration of or credit for any other benefits
lost as a result of the suspension, including sick leave, vacation
leave, and service credit in a retirement system.
(f) Standard payroll deductions, if any, for retirement and
other benefits restored as provided by Subsection (c) shall be made
from the compensation paid, and the political subdivision or
subdivisions shall make the standard corresponding contributions,
if any, to the retirement system or other applicable benefit
systems.
(g) The commission may suspend or dismiss a firefighter only
for violation of civil service rules and only after a finding by the
commission of the truth of specific charges against the
firefighter.
Sec. 177.154. DEMOTIONS. (a) If the head of the fire
department wants a firefighter under the department head's
supervision or jurisdiction to be involuntarily demoted, the
department head may recommend in writing to the commission that the
commission demote the firefighter.
(b) The department head must:
(1) include in the recommendation for demotion the
reasons the department head recommends the demotion and a request
that the commission order the demotion; and
(2) immediately furnish a copy of the recommendation
in person to the affected firefighter.
(c) The commission may refuse to grant the request for
demotion. If the commission believes that probable cause exists for
ordering the demotion, the commission shall give the firefighter
written notice to appear before the commission for a public hearing
at a time and place specified in the notice. The commission shall
give the notice before the 10th day before the date the hearing will
be held.
(d) The firefighter is entitled to a full and complete
public hearing, and the commission may not demote a firefighter
without that public hearing.
(e) A voluntary demotion in which the firefighter has
accepted the terms of the demotion in writing is not subject to this
section.
Sec. 177.155. PROCEDURES AFTER FELONY INDICTMENT OR
MISDEMEANOR COMPLAINT. (a) If a firefighter is indicted for a
felony or officially charged with the commission of a Class A or B
misdemeanor, the department head may temporarily suspend the person
with or without pay for a period not to extend past the 30th day
after the date of final disposition of the specified felony
indictment or misdemeanor complaint.
(b) The department head shall notify the suspended
firefighter in writing that:
(1) the person is being temporarily suspended for a
specific period with or without pay; and
(2) the temporary suspension is not intended to
reflect an opinion on the merits of the indictment or complaint.
(c) If the act directly related to the felony indictment or
misdemeanor complaint occurred or was discovered on or after the
180th day before the date of the indictment or complaint, the
department head may, within 30 days after the date of final
disposition of the indictment or complaint, bring a charge against
the firefighter for a violation of civil service rules.
(d) A firefighter indicted for a felony or officially
charged with the commission of a Class A or B misdemeanor who has
also been charged by the department head with civil service
violations directly related to the indictment or complaint may
delay the civil service hearing until not later than the 30th day
after the date of the final disposition of the indictment or
complaint.
(e) If the department head temporarily suspends a
firefighter under this section and the firefighter is not found
guilty of the criminal charge, the firefighter may appeal to the
commission or to a hearing examiner for recovery of back pay. The
commission or hearing examiner may award all or part of the back pay
or reject the appeal.
(f) Acquittal or dismissal of an indictment or a complaint
does not mean that a firefighter has not violated civil service
rules and does not negate the charges that may have been or may be
brought against the firefighter by the department head.
(g) Conviction of a felony is cause for indefinite
suspension, and conviction of a Class A or B misdemeanor may be
cause for disciplinary action or indefinite suspension.
(h) The department head may, after the 180-day period
following the date of the discovery of the act by the department,
order an indefinite suspension based on an act classified as a
felony or a Class A or B misdemeanor if the department head
considers delay to be necessary to protect a criminal investigation
of the person's conduct. If the department head intends to order an
indefinite suspension after the 180-day period, the department head
must file with the attorney general a statement describing the
criminal investigation and its objectives within 180 days after the
date the act complained of occurred.
Sec. 177.156. HEARING EXAMINERS. (a) In addition to the
other notice requirements prescribed by this chapter, the letter of
disciplinary action issued to a firefighter must state that:
(1) in an appeal of an indefinite suspension, a
suspension, a promotional passover, or a recommended demotion, the
appealing firefighter may elect to appeal to an independent third
party hearing examiner instead of to the commission; and
(2) if the firefighter elects to appeal to a hearing
examiner, the person waives all rights to appeal to a district court
except as provided by Subsection (j).
(b) To exercise the choice of appealing to a hearing
examiner, the appealing firefighter must submit to the director a
written request as part of the original notice of appeal required
under this chapter stating the person's decision to appeal to an
independent third party hearing examiner.
(c) The hearing examiner's decision is final and binding on
all parties. If the firefighter decides to appeal to an independent
third party hearing examiner, the person automatically waives all
rights to appeal to a district court except as provided by
Subsection (j).
(d) If the appealing firefighter chooses to appeal to a
hearing examiner, the firefighter and the department head, or their
designees, shall first attempt to agree on the selection of an
impartial hearing examiner. If the parties do not agree on the
selection of a hearing examiner within 10 days after the date the
appeal is filed, the director shall immediately request a list of
seven qualified neutral arbitrators from the American Arbitration
Association or the Federal Mediation and Conciliation Service, or
their successors in function. The firefighter and the department
head, or their designees, may agree on one of the seven neutral
arbitrators on the list. If they do not agree within five working
days after the date they received the list, each party or the
party's designee shall alternate striking a name from the list, and
the name remaining is the hearing examiner. The parties or their
designees shall agree on a date for the hearing.
(e) The appeal hearing shall begin as soon as the hearing
examiner can be scheduled. If the hearing examiner cannot begin the
hearing within 45 calendar days after the date of selection, the
firefighter may, within two days after learning of that fact, call
for the selection of a new hearing examiner using the procedure
prescribed by Subsection (d).
(f) In each hearing conducted under this section, the
hearing examiner has the same duties and powers as the commission,
including the right to issue subpoenas.
(g) In a hearing conducted under this section, the parties
may agree to an expedited hearing procedure. Unless otherwise
agreed by the parties, in an expedited procedure, the hearing
examiner shall render a decision on the appeal within 10 days after
the date the hearing ends.
(h) In an appeal that does not involve an expedited hearing
procedure, the hearing examiner shall make a reasonable effort to
render a decision on the appeal within 30 days after the date the
hearing ends or the briefs are filed. The hearing examiner's
inability to meet the time requirements imposed by this section
does not affect the hearing examiner's jurisdiction, the validity
of the disciplinary action, or the hearing examiner's final
decision.
(i) The hearing examiner's fees and expenses are shared
equally by the appealing firefighter and the department. The costs
of a witness are paid by the party who calls the witness.
(j) A district court may hear an appeal of a hearing
examiner's award only on the grounds that the hearing examiner was
without jurisdiction or exceeded the hearing examiner's
jurisdiction or that the order was procured by fraud, collusion, or
other unlawful means. An appeal must be brought in the district
court having jurisdiction in a political subdivision served by the
fire department.
[Sections 177.157-177.200 reserved for expansion]
SUBCHAPTER E. LEAVES OF ABSENCE
Sec. 177.201. LEAVES OF ABSENCE; RESTRICTION PROHIBITED.
(a) If a sufficient number of firefighters are available to perform
the normal functions of the fire department, a firefighter may not
be refused a reasonable leave of absence without pay to attend a
fire school, convention, or meeting if the purpose of the school,
convention, or meeting is to secure a more efficient department or
better working conditions for department personnel.
(b) A rule that affects a firefighter's constitutional
right to appear before or to petition the legislature may not be
adopted.
Sec. 177.202. MILITARY LEAVE OF ABSENCE. (a) On written
application of a firefighter, the commission shall grant the person
a military leave of absence without pay to enable the person to
enter a branch of the United States military service. The leave of
absence may not exceed the period of compulsory military service or
the basic minimum enlistment period for the branch of service the
firefighter enters.
(b) The commission shall grant to a firefighter a leave of
absence for initial training or annual duty in the armed forces
reserves or the National Guard.
(c) While a firefighter who received a military leave of
absence serves in the military, the commission shall fill the
person's position in the department in accordance with this
chapter. The firefighter who fills the position is subject to
replacement by the person who received the military leave at the
time the person returns to active duty in the department.
(d) On termination of active military service, a
firefighter who received a military leave of absence under this
section is entitled to be reinstated to the position that the person
held in the department at the time the leave of absence was granted
if the person:
(1) receives an honorable discharge;
(2) remains physically and mentally fit to discharge
the duties of that position; and
(3) makes an application for reinstatement within 90
days after the date the person is discharged from military service.
(e) On reinstatement, the firefighter shall receive full
seniority credit for the time spent in the military service.
(f) If the reinstatement of a firefighter who received a
military leave of absence causes that person's replacement to be
returned to a lower position in grade or compensation, the replaced
person has a preferential right to a subsequent appointment or
promotion to the same or a similar position from which the person
was demoted. This preferential right has priority over an
eligibility list and is subject to the replaced person remaining
physically and mentally fit to discharge the duties of that
position.
Sec. 177.203. LEAVE OF ABSENCE FOR LINE-OF-DUTY ILLNESS OR
INJURY. (a) A fire department shall provide to a firefighter a
leave of absence for an illness or injury related to the person's
line of duty. The leave is with full pay for a period commensurate
with the nature of the illness or injury. If necessary, the leave
shall continue for at least one year.
(b) At the end of the one-year period, the governing body
may extend the line-of-duty illness or injury leave at full or
reduced pay. If the firefighter's salary is reduced below 60
percent of the person's regular monthly salary and the fire
department has or participates in a pension fund, the person may
retire on pension until able to return to duty.
(c) If pension benefits are not available to a firefighter
who is temporarily disabled by a line-of-duty injury or illness and
if the year at full pay and any extensions granted by the governing
body have expired, the firefighter may use accumulated sick leave,
vacation time, and other accrued benefits before the person is
placed on temporary leave.
(d) If a firefighter is temporarily disabled by an injury or
illness that is not related to the person's line of duty, the person
may use all sick leave, vacation time, and other accumulated time
before the person is placed on temporary leave.
(e) After recovery from a temporary disability, a
firefighter shall be reinstated at the same rank and with the same
seniority the person had before going on temporary leave. Another
firefighter may voluntarily do the work of an injured firefighter
until the person returns to duty.
Sec. 177.204. REAPPOINTMENT AFTER RECOVERY FROM
DISABILITY. With the commission's approval and if otherwise
qualified, a firefighter who has been certified by a physician
selected by the person's pension fund as having recovered from a
disability for which the person has been receiving a monthly
disability pension is eligible for reappointment to the classified
position that the person held on the date the person qualified for
the monthly disability pension.
[Sections 177.205-177.250 reserved for expansion]
SUBCHAPTER F. MISCELLANEOUS PROVISIONS
Sec. 177.251. DETERMINATION OF PHYSICAL AND MENTAL FITNESS.
(a) If a question arises as to whether a firefighter is
sufficiently physically or mentally fit to continue the person's
duties, the firefighter shall submit to the commission a report
from the person's personal physician, psychiatrist, or
psychologist, as appropriate.
(b) If the commission, the department head, or the
firefighter questions the report, the commission shall appoint a
physician, psychiatrist, or psychologist, as appropriate, to
examine the firefighter and to submit a report to the commission,
the department head, and the firefighter.
(c) If the report of the appointed physician, psychiatrist,
or psychologist, as appropriate, disagrees with the report of the
firefighter's personal physician, psychiatrist, or psychologist,
as appropriate, the commission shall appoint a three-member board
composed of a physician, a psychiatrist, and a psychologist, or any
combination, as appropriate, to examine the firefighter. The
board's findings as to the person's fitness for duty shall determine
the issue.
(d) The firefighter shall pay the cost of the services of
the person's personal physician, psychiatrist, or psychologist, as
appropriate. The fire department shall pay all other costs.
Sec. 177.252. FORCE REDUCTION AND REINSTATEMENT LIST. (a)
If the governing body vacates or abolishes a fire department
position, the firefighter who holds that position shall be demoted
to the position immediately below the vacated or abolished
position. If one or more positions of equal rank are vacated or
abolished, the firefighters who have the least seniority in a
position shall be demoted to the position immediately below the
vacated or abolished position.
(b) If a firefighter is demoted under Subsection (a) without
charges being filed against the person for violation of civil
service rules, the firefighter shall be placed on a position
reinstatement list in order of seniority. If the vacated or
abolished position is filled or re-created within one year after
the date it was vacated or abolished, the position must be filled
from the reinstatement list. Appointments from the reinstatement
list shall be made in order of seniority. A person who is not on the
list may not be appointed to the position during the one-year period
until the reinstatement list is exhausted.
(c) If a position in the lowest classification is abolished
or vacated and a firefighter must be dismissed from the department,
the firefighter with the least seniority shall be dismissed.
(d) If a firefighter is dismissed under Subsection (c)
without charges being filed against the person for violation of
civil service rules, the firefighter shall be placed on a
reinstatement list in order of seniority. Appointments from the
reinstatement list shall be made in order of seniority. Until the
reinstatement list is exhausted, a person may not be appointed from
an eligibility list. When a person has been on a reinstatement list
for three years, the person shall be dropped from the list but shall
be restored to the list at the request of the commission.
Sec. 177.253. POLITICAL ACTIVITIES. (a) While in uniform
or on active duty, a firefighter may not take an active part in
another person's political campaign for an elective position of the
political subdivision.
(b) For purposes of this section, a person takes an active
part in a political campaign if the person:
(1) makes a political speech;
(2) distributes a card or other political literature;
(3) writes a letter;
(4) signs a petition;
(5) actively and openly solicits votes; or
(6) makes public derogatory remarks about a candidate
for the elective position.
(c) A firefighter may not be:
(1) required to contribute to a political fund or to
render a political service to a person or political party; or
(2) removed, reduced in classification or salary, or
otherwise prejudiced for refusing to contribute to a political fund
or to render a political service.
(d) An official of the political subdivision who attempts to
violate Subsection (c) violates this chapter.
(e) Except as expressly provided by this section, the
commission or the governing body may not restrict a firefighter's
right to engage in a political activity.
Sec. 177.254. STRIKE PROHIBITION. (a) A firefighter may
not engage in a strike against the fire department.
(b) In addition to the penalty prescribed by Section
177.016, if a firefighter is convicted of an offense for violating
this section, the person shall be automatically released and
discharged from the fire department. After the person is
discharged from the department, the person may not receive any pay
or compensation from public funds used to support the fire
department.
Sec. 177.255. UNLAWFUL RESIGNATION OR RETIREMENT. (a) A
person commits an offense if the person accepts money or anything of
value from another person in return for retiring or resigning from
the person's civil service position.
(b) A person commits an offense if the person gives money or
anything of value to another person in return for the other person's
retirement or resignation from the person's civil service position.
(c) An offense under this section is a Class A misdemeanor.
Sec. 177.256. PERSONNEL FILE. (a) The director or the
director's designee shall maintain a personnel file on each
firefighter. The personnel file must contain any letter,
memorandum, or document relating to:
(1) a commendation, congratulation, or honor bestowed
on the firefighter by a member of the public or by the employing
department for an action, duty, or activity that relates to the
person's official duties;
(2) any misconduct by the firefighter if the
misconduct resulted in disciplinary action by the employing
department in accordance with this chapter; and
(3) the periodic evaluation of the firefighter by a
supervisor.
(b) A letter, memorandum, or document relating to alleged
misconduct by the firefighter may not be placed in the person's
personnel file if the employing department determines there is
insufficient evidence to sustain the charge of misconduct.
(c) A letter, memorandum, or document relating to
disciplinary action taken against the firefighter or to alleged
misconduct by the firefighter that is placed in the person's
personnel file as provided by Subsection (a)(2) shall be removed
from the employee's file if the commission finds that:
(1) the disciplinary action was taken without just
cause; or
(2) the charge of misconduct was not supported by
sufficient evidence.
(d) If a negative letter, memorandum, document, or other
notation of negative impact is included in a firefighter's
personnel file, the director or the director's designee shall,
within 30 days after the date of the inclusion, notify the affected
firefighter. The firefighter may, on or before the 15th day after
the date of receipt of the notification, file a written response to
the negative letter, memorandum, document, or other notation.
(e) The firefighter is entitled, on request, to a copy of
any letter, memorandum, or document placed in the person's
personnel file. The fire department may charge the firefighter a
reasonable fee not to exceed actual cost for any copies provided
under this subsection.
(f) The director or the director's designee may not release
any information contained in a firefighter's personnel file without
first obtaining the person's written permission, unless the release
of the information is required by law.
(g) A fire department may maintain a personnel file on a
firefighter employed by the department for the department's use,
but the department may not release any information contained in the
department file to any agency or person requesting information
relating to a firefighter, except to the firefighter or the
firefighter's designee. The department shall refer to the director
or the director's designee a person or agency that requests
information that is maintained in the firefighter's personnel file.
SECTION 3. This Act takes effect September 1, 2003.