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  80R11920 KSD-F
 
  By: Woolley H.B. No. 3352
 
Substitute the following for H.B. No. 3352:
 
  By:  Murphy C.S.H.B. No. 3352
 
A BILL TO BE ENTITLED
AN ACT
relating to municipal civil service for firefighters and police
officers in certain municipalities.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Section 143.057(d), Local Government Code, is
amended to read as follows:
       (d)  If the appealing fire fighter or police officer chooses
to appeal to a hearing examiner, the fire fighter or police officer
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 on or
within 10 days after the date the appeal is filed, the director
shall immediately request a list of seven qualified neutral
independent third party hearing examiners [arbitrators] from the
American Arbitration Association or the Federal Mediation and
Conciliation Service, or their successors in function. The fire
fighter or police officer and the department head, or their
designees, may agree on one of the seven neutral independent third
party hearing examiners [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.
       SECTION 2.  Sections 143.1015(e), (f), and (i), Local
Government Code, are amended to read as follows:
       (e)  The hearing relating to the reasons for the fire
fighter's or police officer's subpoena request shall be held on the
date set for the original appeal hearing. If the commission
overrules the subpoena request at the hearing:
             (1)  the commission may hear the fire fighter's or
police officer's appeal on that date; or
             (2)  if the commission finds that justice is served by a
continuance, the commission shall:
                   (A)  reschedule the hearing to the commission's
next regularly scheduled meeting; and
                   (B)  give the fire fighter or police officer at
least 15 days notice of that date.
       (f)  If the commission sustains the fire fighter's or police
officer's subpoena request at the hearing, the commission shall:
             (1)  reschedule the appeal hearing date to the
commission's next regularly scheduled meeting; and
             (2)  give the fire fighter or police officer at least 15
days notice of that date.
       (i)  A municipal employee who is subpoenaed to appear as a
fact witness in any appeal of a disciplinary decision is entitled to
applicable pay for the time the employee is required to be present
at the hearing. Witnesses whose testimony relates primarily to the
character or reputation of the employee shall be limited by the
hearing examiner or commission if the testimony is repetitious or
unduly prolongs the hearing. If the hearing examiner or commission
limits the number of character or reputation witnesses, additional
witness statements may be presented by affidavit. The character
witnesses are not entitled to applicable pay for the time they are
required to be present at the hearing.
       SECTION 3.  Section 143.1016, Local Government Code, is
amended by amending Subsections (a), (d), (e), (h), and (k) and
adding Subsection (l) to read as follows:
       (a)  In addition to the other notice requirements prescribed
by this chapter, the letter of disciplinary action issued to a fire
fighter or police officer must state that in an appeal of an
indefinite suspension, a suspension, a promotional pass over, or a
recommended demotion, the appealing fire fighter or police officer
may elect to appeal to a [an independent third party] hearing
examiner instead of to the commission. The hearing examiner must be
an independent third party hearing examiner.  The letter must also
state that if the fire fighter or police officer elects to appeal to
a hearing examiner, the person waives all rights to appeal to a
district court except as provided by Subsection (j).
       (d)  This subsection applies only if the parties have not
established a selection procedure in an agreement pursuant to
Subchapter J. If the appealing fire fighter or police officer
chooses to appeal to a hearing examiner, the fire fighter or police
officer 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
on or within 10 days after the date the appeal is filed and no motion
to consolidate is filed under Subsection (l) [(k) of this section],
the director shall on the next work day following notice that the
parties have failed to agree on a selection of a hearing examiner
request a list of seven qualified neutral hearing examiners
[arbitrators] from the American Arbitration Association or the
Federal Mediation and Conciliation Service or their successors in
function. The fire fighter or police officer and the department
head or their designees may agree on one of the seven neutral
hearing examiners [arbitrators] on the list. If they do not agree
within 25 days after the date the appeal was filed, each party or
the party's designee shall on the 25th day after the appeal was
filed alternate striking a name from the list and the name remaining
is the hearing examiner. In the event that the 25th day falls on a
Saturday, Sunday, or a legal holiday, then the parties shall strike
the list the next work day. The parties or their designees shall
agree on a date for the hearing that is within the time period
prescribed by Subsection (e). In the event that the director does
not request the list of seven qualified neutral hearing examiners
[arbitrators] within the time prescribed by this subsection or the
department head or his designee fails to strike the list within the
time prescribed by this subsection, the fire fighter or police
officer or his designee shall select the hearing examiner
[arbitrator] from the list provided. In the event that the fire
fighter or police officer or his designee fails to strike the list
within the time prescribed by this subsection, the department head
or his designee shall select the hearing examiner [arbitrator] from
the list provided.
       (e)  The appeal hearing must begin within 60 days after the
date the appeal is filed and 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
fire fighter or police officer 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) or a procedure
established in an agreement pursuant to Subchapter J. If the appeal
hearing is not begun within 60 days after the date the appeal is
filed, the indefinite suspension, suspension, promotional pass
over, or recommended demotion is upheld and the appeal is withdrawn
if the fire fighter or police officer is not ready to proceed, and
the appeal is sustained if the department head is not ready to
proceed. In computing the 60-day period, a period of delay not to
exceed 30 calendar days because of a continuance granted at the
request of the department head or his representative or the fire
fighter or police officer or his representative on good cause being
shown, or because of the unavoidable unavailability of the hearing
examiner on the date of the hearing, or because of the pendency of a
motion to consolidate with another hearing as provided in
Subsection (l) [(k) of this section] is excluded. In no event may a
hearing examiner grant a continuance beyond 30 days in an
indefinite suspension. A hearing examiner may grant a continuance
beyond the 30-day period upon good cause being shown in a
disciplinary suspension unless the fire fighter or police officer
has another disciplinary action pending.
       (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 legal 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.
       (k)  In an appeal of an indefinite suspension, a suspension,
a promotional pass over, or a recommended demotion, each appealing
fire fighter or police officer or the appealing fire fighter's or
police officer's representative shall be entitled to the selection
of a hearing examiner to hear the case:
             (1)  pursuant to Subsection (d); or
             (2)  in accordance with a procedure established in an
agreement pursuant to Subchapter J [of this section to hear the
case].
       (l)  The fire fighter, police officer, department head, or a
representative of any of those may, within 10 days of the date they
received notice of the appeal, file a motion with a copy to the
opposing side to consolidate the case with that of one or more other
fire fighters or police officers where the charges arise out of the
same incident. The motion to consolidate may be agreed to in
writing and filed with the director. If a motion to consolidate the
cases is filed and not agreed to, a hearing examiner shall be chosen
to hear the motion pursuant to the provisions of Subsection (d) or
in accordance with a procedure established in an agreement pursuant
to Subchapter J [of this section to hear the motion]. The decision
of the hearing examiner shall be final and binding as to the issue
of consolidation. The hearing examiner chosen to hear the motion to
consolidate shall not hear the case, and the provisions of
Subsection (d) or of a selection procedure established in an
agreement pursuant to Subchapter J [of this section] shall be used
to choose the hearing examiner with the day the decision is rendered
being the equivalent of the date the appeal was filed.
       SECTION 4.  The changes in law made by this Act to Sections
143.057(d), 143.1015, and 143.1016, Local Government Code, apply
only to an appeal initiated by a firefighter or police officer on or
after the effective date of this Act. An appeal initiated before
the effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
       SECTION 5.  This Act takes effect September 1, 2007.