80R7658 EJI-F

By: Bailey H.B. No. 3586

A BILL TO BE ENTITLED

AN ACT

relating to the sheriff's department civil service system in certain counties; imposing a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 158.034, Local Government Code, is amended by amending Subsections (a) and (c) and adding Subsections (a-1) and (a-2) to read as follows:

(a) In a county with a population of less than 2.8 million other than a county to which Subsection (a-1) applies, if a majority of the employees voting at the election approve the creation of a sheriff's department civil service system, the sheriff, commissioners court, and district attorney shall each appoint one person to serve as a member of the civil service commission that administers the system.

(a-1) In a county with a population of one million or more that adopted Chapter 174 after January 1, 2004, the employee organization representing the majority of sheriff department employees shall appoint two persons to serve as members of the civil service commission that administers the system in addition to the appointments by the sheriff, commissioners court, and district attorney.

(a-2) In a county with a population of 2.8 million or more other than a county to which Subsection (a-1) applies, if a majority of the employees voting at the election approve the creation of a sheriff's department civil service system, the sheriff, commissioners court, [and] district attorney, and employee organization representing the majority of employees shall each appoint two persons to serve as members of the civil service commission that administers the system, and the [three] appointing authorities shall appoint one member by joint action requiring the affirmative vote of each of the authorities.

(c) Each member of the commission is appointed for a term of two years. Each member shall serve not more than two terms. However, the initial members of the commission in a county with a population of less than 2.8 million that is covered by Subsection (a) shall determine by lot which two of them will serve a term of two years and which one of them will serve a term of one year. In a county with a population of 2.8 million or more:

(1) the initial member appointed jointly under Subsection (a) serves a term of two years; and

(2) the initial members appointed by each individual appointing authority shall determine by lot which one of the two initial members appointed by the appointing authority will serve a term of two years and which initial member appointed by that authority will serve a term of one year.

SECTION 2. Chapter 158, Local Government Code, is amended by adding Subchapter C to read as follows: SUBCHAPTER C. SHERIFF'S DEPARTMENT CIVIL SERVICE SYSTEM IN CERTAIN COUNTIES WITH POPULATION OF ONE MILLION OR MORE

Sec. 158.051. APPLICABILITY. (a) This subchapter applies only to a county:

(1) with a population of one million or more that adopted Chapter 174 after January 1, 2004; or

(2) with a population of 2.8 million or more.

(b) The definitions assigned by Subchapter B apply to this subchapter.

Sec. 158.052. REMOVAL OF COMMISSION MEMBER. (a) If at a meeting held for that purpose the commissioners court of the county finds that a commission member is guilty of misconduct in office, the commissioners court 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 shall be 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 initial appointing authority under Section 158.034 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 governing body shall appoint a replacement commission member to serve the remainder of the disqualified member's term of office.

Sec. 158.053. INTERNAL INVESTIGATION. (a) In this section:

(1) "Complainant" means a person claiming to be the victim of misconduct by an employee.

(2) "Investigation" means an administrative investigation, conducted by the sheriff's department, of alleged misconduct by an employee that could result in punitive action against that person.

(3) "Investigator" means an agent or employee of the sheriff's department who is assigned to conduct an investigation.

(4) "Normally assigned working hours" includes those hours during which an employee is actually at work or at the person's assigned place of work, but does not include any time when the person is off duty on authorized leave, including sick leave.

(5) "Punitive action" means a disciplinary suspension, termination, indefinite suspension, demotion in rank, reprimand, or any combination of those actions.

(b) An investigator may interrogate an employee who is the subject of an investigation only during the employee's normally assigned working hours unless:

(1) the seriousness of the investigation, as determined by the employee's department head or the department head's designee, requires interrogation at another time; and

(2) the employee is compensated for the interrogation time on an overtime basis.

(c) The department head may not consider work time missed from regular duties by an employee due to participation in the conduct of an investigation in determining whether to impose a punitive action or in determining the severity of a punitive action.

(d) An investigator may not interrogate an employee who is the subject of an investigation or conduct any part of the investigation at that person's home without that person's permission.

(e) A person may not be assigned to conduct an investigation if the person is the complainant, the ultimate decision-maker regarding disciplinary action, or a person who has any personal involvement regarding the alleged misconduct. An employee who is the subject of an investigation has the right to inquire and, on inquiry, to be informed of the identities of each investigator participating in an interrogation of the employee.

(f) Before an investigator may interrogate an employee who is the subject of an investigation, the investigator must inform the employee in writing of the nature of the investigation and the name of each person who complained about the employee concerning the matters under investigation. An investigator may not interrogate an employee based on a complaint by a complainant who is not a peace officer unless the complainant verifies the complaint in writing before a public officer who is authorized by law to take statements under oath. In an investigation authorized under this subsection, an investigator may interrogate an employee about events or conduct reported by a witness who is not a complainant without disclosing the name of the witness. Not later than the 48th hour before the hour on which an investigator begins to interrogate an employee regarding an allegation based on a complaint, affidavit, or statement, the investigator shall give the employee a copy of the affidavit, complaint, or statement. An interrogation may be based on a complaint from an anonymous complainant if the departmental employee receiving the anonymous complaint certifies in writing, under oath, that the complaint was anonymous. This subsection does not apply to an on-the-scene investigation that occurs immediately after an incident being investigated if the limitations of this subsection would unreasonably hinder the essential purpose of the investigation or interrogation. If the limitation would hinder the investigation or interrogation, the employee under investigation must be furnished, as soon as practicable, a written statement of the nature of the investigation, the name of each complaining party, and the complaint, affidavit, or statement.

(g) An interrogation session of an employee who is the subject of an investigation may not be unreasonably long. In determining reasonableness, the gravity and complexity of the investigation must be considered. The investigators shall allow reasonable interruptions to permit the employee to attend to personal physical necessities.

(h) In an investigation or interrogation conducted under this section in which an employee is to be interviewed concerning an alleged act which, if proven, may result in any punitive action, the employee under investigation shall be afforded a reasonable opportunity and facilities to contact and consult privately with an attorney or a representative from the employee organization representing the majority of sheriff department employees before being interviewed. The attorney or representative may be present during the interview. An attorney or representative may not be a person who is related to the respondent, within the third degree by consanguinity or the second degree by affinity, or an employee involved in the incident being investigated. At any time during the interview the employee under investigation may request to consult with the attorney or representative in private before continuing the interview.

(i) An investigator may not threaten an employee who is the subject of an investigation with punitive action during an interrogation. However, an investigator may inform an employee that failure to truthfully answer reasonable questions directly related to the investigation or to fully cooperate in the conduct of the investigation may result in punitive action.

(j) If prior notification of intent to record an interrogation is given to the other party, either the investigator or the employee who is the subject of an interrogation may record the interrogation. The employee is entitled to a copy of the recording of an interrogation described by this subsection at the employee's expense.

(k) If an investigation does not result in punitive action against an employee but does result in a written reprimand or an adverse finding or determination regarding that person, the reprimand, finding, or determination may not be placed in that person's personnel file unless the employee is first given an opportunity to read and sign the document. If the employee refuses to sign the reprimand, finding, or determination, it may be placed in the personnel file with a notation that the person refused to sign it. An employee may respond in writing to a reprimand, finding, or determination that is placed in the person's personnel file under this subsection by submitting a written response to the department head not later than the 10th day after the date the employee is asked to sign the document. The response shall be placed in the personnel file. An employee who receives a punitive action and who elects not to appeal the action may file a written response as prescribed by this subsection not later than the 10th day after the date the person is given written notice of the punitive action from the department head.

(l) If the department head or an investigator violates a provision of this section while conducting an investigation, the sheriff's department shall reverse any punitive action taken pursuant to the investigation and reverse any reprimand, and any information obtained during the investigation shall be specifically excluded from introduction into evidence in any proceeding against the employee.

Sec. 158.054. HEARING EXAMINERS. (a) A written notice for a promotional bypass or the letter of disciplinary action, as applicable, issued to an employee must state that in an appeal of an indefinite suspension, a suspension, a promotional bypass, or a recommended demotion, the appealing employee may elect to appeal to an independent third-party hearing examiner instead of to the commission. The letter must also state that if the employee 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 employee must submit to the sheriff or the sheriff's designee 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 employee 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 employee chooses to appeal to a hearing examiner, the employee and the sheriff or the sheriff's designee 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 sheriff 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 employee and the sheriff or the sheriff's designee 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 employee 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 ended.

(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 employee and by 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 the county in which the sheriff's department is located.

Sec. 158.055. 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 subchapter and any rules adopted under this subchapter and shall determine if the subchapter 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) authorize the deposition of 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) All subpoenaed witnesses shall appear before the commission and provide testimony. The commission may not refuse to hear the testimony of a witness once the subpoena has been issued.

(f) A person who fails to respond to a subpoena issued under this section commits an offense punishable as prescribed by Section 158.056(b).

Sec. 158.056. CRIMINAL PENALTY FOR VIOLATION OF SUBCHAPTER. (a) An employee commits an offense if the person violates this subchapter.

(b) An offense under this section is a misdemeanor punishable by a fine of not less than $500 or more than $1,000, confinement in the county jail for not more than 30 days, or both.

Sec. 158.057. REINSTATEMENT. (a) If the commission, a hearing examiner, or a district court orders that an employee terminated or suspended without pay be reinstated, the county shall, before the end of the second full pay period after the date the person is reinstated, repay to the person all wages lost as a result of the suspension.

(b) If the county does not fully repay all lost wages to the sheriff's employee as provided by this section, the county shall pay the person an amount equal to the lost wages plus accrued interest.

(c) Interest under Subsection (b) accrues beginning on the date of the sheriff's employee reinstatement at a rate equal to three percent plus the rate for court judgments under Chapter 304, Finance Code, that is in effect on the date of the person's reinstatement.

(d) An employer who intentionally refuses for at least 10 days to obey a commission order to reinstate a terminated, suspended, or indefinitely suspended employee commits an offense punishable under Section 158.056(b).

Sec. 158.058. DECISIONS AND RECORDS. (a) Each commission member shall vote and sign a decision issued by the commission.

(b) The commission shall keep records of each hearing or case that comes before the commission and copies of the records shall be provided to the employee on request.

(c) Each rule, opinion, directive, decision, or order issued by the commission must be written and constitutes a public record that the commission shall retain on file.

Sec. 158.059. LEGISLATIVE LEAVE. (a) An employee is entitled to legislative leave without pay to appear before or to petition a governmental body during a regular or special session of that body as prescribed by this section.

(b) To be eligible for legislative leave, an employee must submit a written application to the county on or before the 30th day before the date the employee intends to begin the legislative leave. The application must indicate the length of the requested leave and state that the employee is willing to reimburse the county for any wages, pension, or other costs the county will incur as a result of the leave. The length of the requested leave may not exceed the length of the session.

(c) Within 30 days after the date the county receives the application, the county shall notify the employee in writing of the actual amount of money required to offset the costs the county will incur. The county may require the employee to post the money before granting the leave.

(d) The county shall grant legislative leave to an employee who submits an application as prescribed by this section and who complies with any requirement relating to payment of costs unless an emergency exists or unless granting the leave will result in an insufficient number of employees to carry out the normal functions of the sheriff's department.

(e) If the county sheriff determines that granting a legislative leave will result in an insufficient number of employees to carry out the normal functions of the department, another employee may volunteer to work in the applicant's place on an exchange of time basis as long as no overtime results. If an employee volunteers to work in the applicant's place and no overtime will result, the sheriff shall allow the volunteer to work in the applicant's place. If the volunteer work will solve the problem of having an insufficient number of employees, the county shall grant the legislative leave.

(f) Legislative leave is not a break in service for any purpose, including the determination of seniority, promotions, sick leave, vacations, or retirement.

(g) Legislative leave granted under this section to an employee to attend a session of the Congress of the United States shall be granted for a period not to exceed 30 percent of the applicant's total annual working days during each year in which leave is requested.

Sec. 158.060. LEGISLATIVE LEAVE ACCOUNT. (a) An employee may donate not more than one hour for each month of accumulated vacation or compensatory time to an employee organization. The county shall establish and maintain a legislative leave time account for the employee organization representing the majority of employees in the sheriff's department.

(b) The employee must authorize the donation in writing on a form provided by the employee organization and approved by the county. After receiving the signed authorization on an approved form, the county shall transfer donated time to the account monthly until the county receives the employee's written revocation of the authorization.

(c) Only an employee who is a member of the employee organization described by Subsection (a) may use for legislative leave purposes the time donated to that employee organization. An employee may use for legislative leave purposes the time donated under this section in lieu of reimbursing the county under Section 158.059.

(d) A request to use for legislative leave purposes the time in an employee organization's time account must be in writing and submitted to the county by the president or the equivalent officer of the employee organization or by that officer's designee.

(e) The county shall account for the time donated to the account and used from the account. The county may:

(1) determine and credit the actual cash value of the donated time in the account and determine and deduct the actual cash value of time used from the account for legislative leave purposes; or

(2) credit and debit an account on an hour-for-hour basis regardless of the cash value of the time donated or used.

(f) An employee organization may not use for legislative leave purposes more than 4,000 hours from its time account under this section in a calendar year. This section does not prevent an employee organization from accumulating more than 4,000 hours. This section only limits the total number of donated hours that an employee organization may use in any calendar year.

Sec. 158.061. APPEAL TO DISTRICT COURT. Each appeal to a district court under this subchapter shall be advanced on the district court docket and given a preference setting over all other cases.

Sec. 158.062. SPECIAL COUNSEL. A civil service commission shall retain special counsel for the purpose of advising or representing the commission as determined by the commission. The commissioners court shall include in the annual county budget a reasonable amount of funding, on the request of the civil service commission, to employ special counsel. The employment is for the time and on the terms that the commission considers necessary.

SECTION 3. Sections 158.035(c) and 158.0351, Local Government Code, are repealed.

SECTION 4. This Act takes effect September 1, 2007.