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S.B. No. 1433
AN ACT
relating to the conditions of employment for firefighters employed
by certain districts and entities; providing 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 179 to read as follows:
CHAPTER 179. CONDITIONS OF EMPLOYMENT FOR FIREFIGHTERS OF CERTAIN
DISTRICTS AND ENTITIES
Sec. 179.001. APPLICABILITY. (a) This chapter applies to
a fire department of and firefighters employed by:
(1) an emergency services district created under
Chapter 775, Health and Safety Code, with a population of 30,000 or
more; and
(2) an entity created by an interlocal agreement
between two or more political subdivisions of this state.
(b) This chapter does not apply to a volunteer fire
department or the members or employees of a volunteer fire
department that is operating under a contract with an emergency
services district.
(c) For purposes of this section, a reference to a
municipality or a municipal official in a provision of law made
applicable by this chapter to a district or entity described by
Subsection (a) is considered to be a reference to the district or
entity or the official of the district or entity responsible for the
performance of the duty to which the provision applies.
(d) If this chapter applies to the fire department of and
firefighters employed by an emergency services district and the
population of the district decreases to less than 30,000, the
applicability of this chapter in relation to the district is not
affected.
Sec. 179.002. DEFINITIONS. In this chapter:
(1) "Emergency services employer" means an emergency
services district created under Chapter 775, Health and Safety
Code, or an entity created by an interlocal agreement between two or
more political subdivisions of this state.
(2) "Firefighter" means a person defined as fire
protection personnel under Section 419.021, Government Code.
Sec. 179.003. PAYROLL DEDUCTIONS; LONGEVITY PAY;
CLASSIFICATION PAY; PENALTY. (a) Sections 141.008, 141.032,
141.033, and 141.034 apply to a firefighter employed by an
emergency services employer.
(b) The penalty under Section 141.035 applies to a person
who is in charge of the fire department of an emergency services
employer or who is responsible for setting the compensation for
firefighters employed by an emergency services employer in
accordance with this section.
Sec. 179.004. ASSISTANCE; BENEFITS; WORKING CONDITIONS;
PENALTY. Sections 142.001, 142.0013, 142.0015, 142.0016, 142.004,
142.005, 142.006, 142.008, and 142.009 apply to a firefighter
employed by an emergency services employer.
Sec. 179.005. EXCLUSIVE APPEAL PROCEDURE. This chapter
provides the exclusive procedure for the administration and appeal
of a disciplinary action against a firefighter covered by this
chapter.
Sec. 179.006. DISCIPLINARY SUSPENSION OR DISMISSAL.
(a) The head of a fire department for just cause may suspend or
dismiss from employment a firefighter for violating a rule of the
fire department or of the emergency services employer. A rule
described by this subsection must have been adopted by the
governing body of the emergency services employer.
(b) A firefighter may be suspended for a reasonable period
not to exceed 15 days or may be dismissed from employment with the
fire department.
(c) If a department head suspends or dismisses a
firefighter, the department head shall, within 120 hours after the
hour of suspension or dismissal:
(1) file a written statement of the reasons for the
suspension or dismissal with the governing body of the emergency
services employer; and
(2) deliver in person to the firefighter a copy of the
statement described by Subdivision (1) and a written statement that
if the firefighter wishes to appeal the suspension or dismissal,
the firefighter must file a written notice of appeal with the
governing body not later than the 10th day after the date the
firefighter receives the copy of the statement described by
Subdivision (1) and the statement described by this subdivision.
(d) The written statement filed by the department head with
the governing body under Subsection (c)(1) must list each fire
department or emergency services employer rule allegedly violated
by the firefighter and specifically describe the actions of the
firefighter that allegedly violate the rule.
(e) A department head may not amend a written statement of
the reasons for a firefighter's suspension or dismissal from
employment submitted under Subsection (c).
Sec. 179.007. APPEAL OF DISCIPLINARY SUSPENSION OR
DISMISSAL. (a) If a firefighter files a notice of appeal of the
firefighter's suspension or dismissal from employment with the
governing body of the emergency services employer, the governing
body shall hold a hearing on the appeal and render a written
decision not later than the 30th day after the date the governing
body receives the notice of appeal from the firefighter. The
firefighter and the governing body may agree to postpone the
hearing for a definite period.
(b) In a hearing conducted under this section, the
department head may only allege actions and rule violations
included in the department head's original written statement
submitted to the governing body of the emergency services employer
under Section 179.006(c)(1).
(c) The governing body of the emergency services employer
may deliberate in closed session after a hearing conducted under
this section. In reaching its decision after the hearing, the
governing body may not consider evidence that was not presented at
the hearing. The governing body must vote on the decision regarding
an appeal under this section in open session.
(d) In its decision, the governing body of an emergency
services employer shall state whether the firefighter is:
(1) permanently dismissed from employment with the
fire department;
(2) temporarily suspended from employment with the
fire department; or
(3) reinstated to the firefighter's former position or
status in the fire department.
(e) If in a decision rendered under this section the
governing body of the emergency services employer finds that the
period of disciplinary suspension should be reduced, the governing
body may order a reduction in the period of suspension.
(f) A firefighter who is reinstated to the position or class
of service from which the firefighter was suspended or dismissed is
entitled to:
(1) full compensation for the actual time lost as a
result of the suspension or dismissal at the rate of pay provided
for the position held or class of service assigned; and
(2) restoration of or credit for any other benefits
lost as a result of the suspension or dismissal, including sick
leave, vacation leave, and service credit in a retirement system.
(g) The emergency services employer shall:
(1) make any standard payroll deductions for
retirement and other benefits restored as provided by Subsection
(f)(2) from any compensation paid under Subsection (f)(1); and
(2) make any of the employer's standard corresponding
contributions to the retirement system or other applicable benefit
system.
(h) A firefighter may be suspended or dismissed from
employment only for a violation of the rules adopted by the
governing body of the emergency services employer and only after a
finding by the governing body of the truth of the specific charges
made against the firefighter.
Sec. 179.008. APPEAL PROCEDURE. (a) A notice of appeal
filed under Section 179.007 must:
(1) include the basis for the appeal and a request for
a hearing; and
(2) contain a statement denying the truth of the
charge as made, a statement taking exception to the legal
sufficiency of the charge, a statement alleging that the
recommended action does not fit the offense or alleged offense, or a
combination of these statements.
(b) In each hearing, appeal, or review of any kind in which
the governing body of the emergency services employer performs an
adjudicatory function, the firefighter who is the subject of the
hearing, appeal, or review is entitled to be represented by counsel
or any other person the firefighter chooses. The hearing must be
held in public.
(c) The governing body of the emergency services employer
may issue subpoenas and subpoenas duces tecum for the attendance of
witnesses and for the production of documentary material.
(d) The firefighter may request the governing body of the
emergency services employer to 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 appeal hearing will
be held. If the governing body does not subpoena the material, the
governing body shall, before the third day before the date the
hearing will be held, make a written report to the firefighter
stating the reason the governing body will not subpoena the
requested material. The report must be read into the public record
of the hearing.
(e) Witnesses may be placed under the rule at a hearing
conducted by the governing body of the emergency services employer.
(f) Only the evidence submitted at the hearing may be
considered by the governing body of the emergency services
employer.
(g) A public record of each proceeding shall be made, with
copies available at cost.
(h) The governing body of the emergency services employer
may designate three persons who are qualified voters within the
employer's jurisdiction to serve as an appeal panel to hear and
decide the appeal in lieu of the governing body. The appeal panel
has the same powers and duties related to the appeal as the
governing body, including the power to issue subpoenas.
Sec. 179.009. HEARING EXAMINER. (a) A firefighter may
choose to appeal to a hearing examiner instead of the governing body
of the emergency services employer. The appealing firefighter must
submit to the governing body 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.
(b) 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 Section
179.010(e).
(c) 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 parties 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 the parties do not agree within five
working days after the date they receive 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.
(d) The appeal hearing shall begin as soon as the hearing
examiner can be scheduled. If the firefighter receives notice that
the hearing examiner cannot begin the hearing within 45 days after
the date of selection, the firefighter, within two days after
receiving the notice, may call for the selection of a new hearing
examiner using the procedure prescribed by Subsection (c).
(e) In a hearing conducted under this section, the hearing
examiner has the same duties and powers as the governing body of the
emergency services employer, including the power to issue
subpoenas.
(f) In a hearing conducted under this section, the appealing
firefighter shall pay the hearing examiner's fees and expenses.
The party who calls a witness shall pay the costs of the witness.
Sec. 179.010. DISTRICT COURT PETITION. (a) A firefighter
who is dissatisfied with the decision of the governing body of the
emergency services employer may file a petition in a district court
asking that the decision be set aside. The petition must be filed
not later than the 10th day after the date the governing body's
final decision is:
(1) sent to the firefighter by certified mail; or
(2) personally received by the firefighter or by the
firefighter's designee.
(b) An appeal under this section is by trial de novo. The
district court may grant the appropriate legal or equitable relief
necessary to carry out the purposes of this chapter. The relief may
include reinstatement with back pay if an order of suspension or
dismissal 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 in favor of the firefighter, the
court shall order the emergency services employer to pay lost wages
to the firefighter.
(e) 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 examiner's jurisdiction or
that the order was procured by fraud, collusion, or other unlawful
means.
(f) An appeal under this section must be brought in a
district court having jurisdiction in the emergency services
district or in a political subdivision in which the fire department
is located, as applicable.
SECTION 2. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1433 passed the Senate on
May 5, 2005, by the following vote: Yeas 31, Nays 0; and that the
Senate concurred in House amendments on May 27, 2005, by the
following vote: Yeas 29, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1433 passed the House, with
amendments, on May 25, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor