82R808 JTS-F

By: Menendez H.B. No. 749

A BILL TO BE ENTITLED

AN ACT

relating to county law enforcement officer civil service systems; providing penalties.

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

SECTION 1. Subtitle B, Title 5, Local Government Code, is amended by adding Chapter 162 to read as follows:

CHAPTER 162. COUNTY CIVIL SERVICE FOR LAW ENFORCEMENT OFFICERS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 162.001. PURPOSE. (a) The purpose of this chapter is to secure efficient sheriffs' departments and constables' offices composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.

(b) The members of the Law Enforcement Officers' Civil Service Commission shall administer this chapter in accordance with this purpose.

Sec. 162.002. DEFINITIONS. In this chapter:

(1) "Commission" means the Law Enforcement Officers' Civil Service Commission.

(2) "Director" means the director of law enforcement officers' civil service.

(3) "Law enforcement officer" means a member of a sheriff's department or constable's office or other law enforcement officer licensed by the Commission on Law Enforcement Officer Standards and Education and who was appointed in substantial compliance with this chapter or who is entitled to civil service status under Section 162.004.

Sec. 162.003. ELECTION TO ADOPT OR REPEAL CHAPTER. (a) A county may hold an election to adopt or repeal this chapter as provided by this section.

(b) If the commissioners court of a county receives a petition requesting an election that is signed by a number of registered voters of the county equal to at least 10 percent of the number of voters who voted in the most recent county election, the commissioners court 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 that allows sufficient time to comply with other requirements of law.

(c) This chapter may be adopted to apply only to the sheriff's department or constables' offices, or to both the sheriff's department and the constables' offices. If a majority of the votes received in the election are in favor of adoption of this chapter, the commissioners court shall implement this chapter.

(d) The ballot shall be printed to provide for voting for or against the proposition, as applicable:

(1) "Adoption of the law enforcement officers' civil service law for the sheriff's department.";

(2) "Adoption of the law enforcement officers' civil service law for the constable's office (in a county with only one constable's office) or constables' offices."; or

(3) "Adoption of the law enforcement officers' civil service law for the sheriff's department and the constable's office (in a county with only one constable's office) or constables' offices."

(e) 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. Any subsequent election must be held at the next general county election that occurs after the petition is filed.

(f) If the commissioners court of a county 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 registered voters of the county, the commissioners court shall order an election submitting to the voters the question on whether this chapter should be repealed. If a majority of the votes cast favor repeal of this chapter, this chapter is void in that county.

Sec. 162.004. STATUS OF EMPLOYEES IF CHAPTER ADOPTED. Each law enforcement officer serving in a county that adopts this chapter, who has been in the service of the county for more than six months at the time this chapter is adopted, and who is entitled to civil service classification has the status of a civil service employee and is not required to take a competitive examination to remain in the position the person occupies at the time of the adoption.

Sec. 162.005. IMPLEMENTATION: COMMISSION. (a) On adoption of this chapter, the Law Enforcement Officers' Civil Service Commission is established in the county. The county judge shall appoint the members of the commission not later than the 60th day after the date this chapter is adopted. Not later than the 30th day after the date the county's first full fiscal year begins after the date of the adoption election, the commissioners court shall implement this chapter.

(b) The commission consists of three members appointed by the county judge and confirmed by the commissioners court. Each commission member is appointed for a term of two years. If a vacancy occurs or if an appointee fails to qualify before the 11th day after the date of appointment, the county judge shall appoint a person to serve for the remainder of the unexpired term in the same manner as the original appointment.

(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 the county 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) Notwithstanding Subsection (c)(5), the county judge may reappoint a commission member to consecutive terms. A commission member may not be reappointed to more than a third consecutive term unless the member's reappointment to a fourth or subsequent consecutive term is confirmed by a two-thirds majority of all the members of the commissioners court.

(e) Subsection (c)(5) does not prohibit the county judge from appointing a former commission member to the commission if the only public office held by the former member within the preceding three years is membership on:

(1) the commission; or

(2) the commission and the county's civil service board for employees other than law enforcement officers through a joint appointment to the commission and board.

(f) If a county has a civil service commission immediately before this chapter takes effect in that county, that civil service commission shall continue as the commission established by this section and shall administer the civil service system as prescribed by this chapter. As the terms of the members of the previously existing commission expire, the county judge shall appoint members.

(g) Initial members shall elect a chair and a vice chair not later than the 10th day after the date all members have qualified. Each January, the members shall elect a chair and a vice chair.

(h) The commissioners court shall provide to the commission adequate and suitable office space in which to conduct business.

(i) A county judge commits an offense if the judge 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 county judge knowingly or intentionally fails to make a required appointment constitutes a separate offense.

(j) A county judge or a county official 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. 162.006. REMOVAL OF COMMISSION MEMBER. (a) If at a meeting held for that purpose the commissioners court 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 commissioners court may appoint a substitute commission member during a period of suspension.

(d) If a member pleads guilty to or is found to be guilty of a criminal offense involving moral turpitude, the commissioners court shall appoint a replacement commission member to serve the remainder of the disqualified member's term of office.

Sec. 162.007. ADOPTION AND PUBLICATION OF RULES. (a) A 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 law enforcement officer. The rules must comply with the grounds for removal prescribed by Section 162.051.

(d) The commission shall publish each rule it adopts and each classification and seniority list for the sheriff's department or a constable's office. 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 causes the rule to be written, typewritten, or printed. Publication in a newspaper is not required and the commissioners court is not required to 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 sheriff and each constable of the county; and

(2) posts a copy of the rule for a seven-day period at a conspicuous place in the central sheriff's office or each constable's office.

(f) The director shall keep copies of all rules for free distribution to members of the sheriff's department or each constable's office who request copies and for inspection by any interested person.

Sec. 162.008. 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) cause 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) A person who fails to respond to a subpoena issued under this section commits an offense punishable as prescribed by Section 162.014.

Sec. 162.009. COMMISSION APPEAL PROCEDURE. (a) Except as otherwise provided by this chapter, if a law enforcement officer wants to appeal to the commission from an action for which an appeal or review is provided by this chapter, the law enforcement officer may file an appeal with the commission not later than the 10th day after the date the action occurred.

(b) The appeal must include the basis for the appeal and a request for a commission hearing. The appeal must also contain:

(1) a statement denying the truth of the charge as made;

(2) a statement taking exception to the legal sufficiency of the charge;

(3) a statement alleging that the recommended action does not fit the offense or alleged offense; or

(4) a combination of the statements described by this subsection.

(c) In each hearing, appeal, or review of any kind in which the commission performs an adjudicatory function, the affected law enforcement officer is entitled to be represented by counsel or a person the law enforcement officer 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 law enforcement officer may request the commission to subpoena any books, records, documents, papers, accounts, or witnesses that the law enforcement officer considers pertinent to the case. The law enforcement officer 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 law enforcement officer stating the reason it 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. 162.010. 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:

(1) must be in writing; and

(2) is a public record that the commission shall retain on file.

Sec. 162.011. DIRECTOR. (a) On adoption of this chapter, the office of Director of Law Enforcement Officers' Civil Service is established in the county. The commission shall appoint the director. The director shall serve as secretary to the commission and perform work incidental to the civil service system as required by the commission. The commission may remove the director at any time.

(b) A person appointed as director must meet each requirement for appointment to the commission prescribed by Section 162.005(c) other than the local residency requirement.

(c) A person appointed as director may be a commission member, a county employee, or some other person.

(d) The commissioners court shall determine the salary, if any, to be paid to the director.

(e) If, immediately before this chapter takes effect in a county, the county has a duly and legally constituted director of civil service, regardless of title, that director shall continue in office as the director established by this section and shall administer the civil service system as prescribed by this chapter.

Sec. 162.012. APPOINTMENT AND REMOVAL OF PERSON CLASSIFIED IMMEDIATELY BELOW SHERIFF OR CONSTABLE. (a) If approved by the commissioners court by resolution or order, a sheriff or constable in a department or office in which at least four classifications exist below the classification of sheriff or constable may appoint each person occupying an authorized position in the classification immediately below that of sheriff or constable, as prescribed by this section. The classification immediately below that of sheriff or constable may include a person who has a different title but has the same pay grade.

(b) In a sheriff's department or constable's office, the total number of persons appointed to the classification immediately below that of sheriff or constable may not exceed the total number of persons, plus one, serving in that classification on January 1, 2011. This subsection does not apply to a county that has adopted Chapter 174 unless the county specifically adopts the appointment procedure prescribed by this subsection through the collective bargaining process.

(c) A person appointed to a position in the classification immediately below that of sheriff or constable must:

(1) be employed by the sheriff's department or the constable's office as a sworn law enforcement officer;

(2) have at least two years' continuous service in that department or office as a sworn law enforcement officer; and

(3) be eligible for certification by the Commission on Law Enforcement Officer Standards and Education at the intermediate level or its equivalent as determined by that commission.

(d) The sheriff or constable shall make each appointment under this section not later than the 90th day after the date a vacancy occurs in the position.

(e) A person appointed under this section serves at the pleasure of the sheriff or constable. A person who is removed from the position by the sheriff or constable shall be reinstated in the department or office and placed in the same classification, or its equivalent, that the person held before appointment. The person retains all rights of seniority in the department or office.

(f) If a person appointed under this section is charged with an offense in violation of civil service rules and indefinitely suspended by the sheriff or constable, the person has the same rights and privileges of a hearing before the commission in the same manner and under the same conditions as a classified employee. If the commission, a hearing examiner, or a court of competent jurisdiction finds the charges to be untrue or unfounded, the person shall immediately be restored to the same classification, or its equivalent, that the person held before appointment. The person has all the rights and privileges of the prior position according to seniority and shall be repaid for any lost wages.

(g) A person serving under permanent appointment in a position in the classification immediately below that of the sheriff or constable on September 1, 2011, is not required to meet the requirements of this section or to be appointed or reappointed as a condition of tenure or continued employment.

Sec. 162.013. APPEAL OF COMMISSION DECISION TO DISTRICT COURT. (a) If a law enforcement officer is dissatisfied with any commission decision, the law enforcement officer may file a petition in district court asking that the decision be set aside. The petition must be filed not later than the 10th day after the date the final commission decision:

(1) is sent to the law enforcement officer by certified mail; or

(2) is personally received by the law enforcement officer or by that person'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 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 law enforcement officer, the court shall order the county to pay lost wages to the law enforcement officer.

Sec. 162.014. PENALTY FOR VIOLATION OF CHAPTER. (a) A person subject to the provisions of this chapter commits an offense if the person violates this chapter.

(b) An offense under this section or Section 162.008 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 the confinement.

[Sections 162.015-162.020 reserved for expansion]

SUBCHAPTER B. CLASSIFICATION AND APPOINTMENT

Sec. 162.021. CLASSIFICATION; EXAMINATION REQUIREMENT. (a) The commission shall provide for the classification of all law enforcement officers. The commissioners court shall establish the classifications by order. The commissioners court by order shall prescribe the number of positions in each classification in the sheriff's department and in each constable's office.

(b) Except for the sheriff or constable and a person the sheriff or constable appoints in accordance with Section 162.012, each law enforcement officer is classified as prescribed by this subchapter and has civil service protection. The failure of the commissioners court to establish a position by order 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 Sections 162.012 and 162.0251, 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. 162.022. 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 county 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. 162.023. ELIGIBILITY FOR BEGINNING POSITION. (a) A person may not take an entrance examination for a beginning position in the sheriff's department or constable's office unless the person is 18 years of age or older.

(b) A person who is 45 years of age or older may not be certified for a beginning position in a sheriff's department or constable's office.

(c) An applicant may not be certified as eligible for a beginning position with a sheriff's department or constable's office unless the applicant meets all legal requirements necessary to become eligible for future licensing by the Commission on Law Enforcement Officer Standards and Education.

(d) Each law enforcement officer affected by this chapter must be able to read and write English.

Sec. 162.024. ENTRANCE EXAMINATION NOTICE. (a) Before the 10th day before the date an entrance examination is held, the commission shall cause a notice of the examination to be posted in plain view on a bulletin board located in the main lobby of the county courthouse 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. 162.025. ENTRANCE EXAMINATIONS. (a) The commission shall provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the sheriff's department or a constable's office. 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 sheriff's department or a constable's office 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 person's general knowledge and aptitude and must inquire into the applicant's general education and mental ability. A person may not be appointed to the sheriff's department or a constable's office 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) An examination for beginning positions in the sheriff's department or a constable's office must be held at one or more locations in the county and may be held at additional locations outside the county. An examination held at multiple locations must be administered on the same day and at the same time at each location at which it is given. Only one eligibility list for a sheriff's department or constable's office may be created from that examination, and only one eligibility list may be in effect at a given time. Each applicant who takes the examination for the eligibility list shall:

(1) take the same examination; and

(2) be examined in the presence of other applicants for that eligibility list.

(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 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 appropriate department or office. The commission shall determine the length of the period. The commission shall give new examinations at times the commission considers necessary to provide required staffing for scheduled law enforcement training academies.

(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 percent and is determined entirely by the correctness of the applicant's answers to the questions. The minimum passing grade on the examination is 70 percent. An applicant must pass the examination to be placed on an eligibility list.

Sec. 162.0251. REAPPOINTMENT AFTER RESIGNATION. The commission may adopt rules to allow a law enforcement officer who voluntarily resigns from the sheriff's department or constable's office to be reappointed to the department or office without taking another departmental entrance examination.

Sec. 162.026. PROCEDURE FOR FILLING BEGINNING POSITIONS. (a) When a vacancy occurs in a beginning position in a sheriff's department or constable's office, the sheriff or constable shall request in writing from the commission the names of suitable persons from the eligibility list. The director shall certify to the county judge the names of the three persons having the highest grades on the eligibility list.

(b) From the three names certified, the county judge 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 county judge does not appoint the person having the highest grade, the county judge shall clearly set forth in writing the 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 county judge 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. 162.027. PROBATIONARY PERIOD. (a) A person appointed to a beginning position in the sheriff's department or a constable's office must serve a probationary period of one year beginning on that person's date of employment as a law enforcement officer or academy trainee.

(b) During a law enforcement officer's probationary period, the sheriff or constable shall discharge the person and remove the person from the payroll if the person's appointment was not regular or was not made in accordance with this chapter or commission rules.

(c) During a law enforcement officer's probationary period, the person 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 law enforcement officer serving a probationary period.

(d) A law enforcement officer who was appointed in substantial compliance with this chapter and who serves the entire probationary period automatically becomes a full-fledged civil service employee and has full civil service protection.

Sec. 162.028. ELIGIBILITY FOR PROMOTION. (a) A law enforcement officer is not eligible for promotion unless the person has served in that sheriff's department or constable's office in the next lower position or other positions specified by the commission for at least two years immediately before the date the promotional examination is held.

(b) If a person is recalled on active military duty for not more than 60 months, the two-year service requirement prescribed by Subsection (a) does not apply and the person is entitled to have time spent on active military duty considered as duty in the sheriff's department or constable's office.

Sec. 162.029. 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 county courthouse 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. 162.030. ELIGIBILITY FOR SHERIFF'S DEPARTMENT OR CONSTABLE'S OFFICE PROMOTIONAL EXAMINATION; CRIMINAL PENALTY. (a) Each promotional examination is open to each law enforcement officer who for at least two years immediately before the examination date has continuously held a position in the classification that is immediately below, in salary, the classification for which the examination is to be held.

(b) If the sheriff's department or constable's office has adopted a classification plan that classifies positions on the basis of similarity in duties and responsibilities, each promotional examination is open to each law enforcement officer who has continuously held for at least two years immediately before the examination date a position in the department or office 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 sufficient law enforcement officers 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 shall 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 in the second lower position, in salary, to the position for which the examination is to be held.

Sec. 162.031. 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 sheriff's department or constable's office. Unless a different procedure is adopted under an alternate promotional system as provided by Section 162.034, 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, except that an eligible promotional candidate who is serving on active military duty outside of this state or in a location that is not within reasonable geographic proximity to the location where the examination is being administered is entitled to take the examination outside of the presence of and at a different time than the other candidates and may be allowed to take an examination that is not identical to the examination administered to the other candidates.

(c) The commission may adopt rules under Subsection (a) providing for the efficient administration of promotional examinations to eligible promotional candidates who are members of the armed forces serving on active military duty. In adopting the rules, the commission shall ensure that the administration of the examination will not result in unnecessary interference with any ongoing military effort. The rules shall require that:

(1) at the discretion of the administering entity, an examination that is not identical to the examination administered to other eligible promotional candidates may be administered to an eligible promotional candidate who is serving on active military duty; and

(2) if a candidate serving on active military duty takes a promotional examination outside the presence of other candidates and passes the examination, the candidate's name shall be included in the eligibility list of names of promotional candidates who took and passed the examination nearest in time to the time at which the candidate on active military duty took the examination.

(d) The examination must be entirely in writing and may not in any part consist of an oral interview.

(e) 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 sheriff's department or constable's office involved in the examination; and

(3) any study course given by the departmental or office schools of instruction.

(f) The examination questions must be taken from the sources posted as prescribed by Section 162.029(a). Law enforcement officers may suggest source materials for the examinations.

(g) 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.

(h) 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 county employee involved in the preparation or administration of the examination.

(i) 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 an authorized or unauthorized person a part of a promotional examination for unfair personal gain or advantage.

(j) An offense under Subsection (i) 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 the confinement.

Sec. 162.032. 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 law enforcement officer is entitled to receive one point for each year of seniority as a classified law enforcement officer in that department or office, with a maximum of 10 points.

(c) Unless a different procedure is adopted under an alternate promotional system as provided by Section 162.034, the grade that must be placed on the eligibility list for each law enforcement officer 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 law enforcement officer 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) Not later than 24 hours after the time 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 county courthouse.

Sec. 162.033. REVIEW AND APPEAL OF PROMOTIONAL EXAMINATION. (a) On request, each eligible promotional candidate from the sheriff's department or a constable's office 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, not later than the fifth business day after the date the candidate receives the results of the examination, 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. 162.034. ALTERNATE PROMOTIONAL SYSTEM IN SHERIFF'S DEPARTMENT OR CONSTABLE'S OFFICE. (a) This section does not apply to a county that has adopted Chapter 174.

(b) The commission may adopt an alternate promotional system to select persons to occupy nonentry level positions other than positions that are filled by appointment by the sheriff or a constable if the alternate system:

(1) is recommended by:

(A) the sheriff if the civil service system applies only to the sheriff's department;

(B) each of the constables if the civil service system applies only to the constables' offices; or

(C) the sheriff and each of the constables if the civil service system applies to both the sheriff's department and the constables' offices;

(2) is approved by a majority of the law enforcement officers under Subsection (c); and

(3) complies with the requirements of this section.

(c) The commission shall order the director to conduct an election and to submit the revised promotional system to:

(1) all sworn law enforcement officers in the sheriff's department or constables' offices, as applicable, within the rank immediately below the classification for which the promotional examination is to be administered; or

(2) all sworn law enforcement officers in the sheriff's department or constables' offices, as applicable.

(d) The director shall hold the election on or after the 30th day after the date notice of the election is posted at the applicable offices. The election shall be conducted throughout each regular work shift at an accessible location within the applicable offices during a 24-hour period.

(e) The ballot shall contain the specific amendment to the promotional procedure. Each sworn law enforcement officer shall be given the opportunity to vote by secret ballot "for" or "against" the amendment.

(f) The revised promotional system must be approved by a majority vote of the sworn law enforcement officers voting. A defeated promotional system amendment may not be placed on a ballot for a vote by the sworn law enforcement officers for at least 12 months after the date the prior election was held, but this provision does not apply if a different proposal is recommended to the commission.

(g) The commission shall canvass the votes not later than the 30th day after the date the election is held. An appeal alleging election irregularity must be filed with the commission not later than the fifth working day after the date the election closes. If approved by the sworn law enforcement officers, the promotional system amendment becomes effective after all election disputes have been ruled on and the election votes have been canvassed by the commission.

(h) At any time after an alternate promotional system has been adopted under this section and has been in effect for at least 180 days, the sheriff or constables, as applicable, may petition the commission to terminate the alternate system, and the commission shall terminate the alternate system.

(i) At any time after an alternate promotional system has been adopted under this section and has been in effect for at least 180 days, a petition signed by at least 35 percent of the sworn law enforcement officers may be submitted to the commission asking that the alternate promotional system be reconsidered. If a petition is submitted, the commission shall, not later than the 60th day after the date the petition is filed, hold an election as prescribed by this section. If a majority of those voting vote to terminate, the commission shall terminate the alternate promotional system.

(j) If the alternate system is terminated, an additional list may not be created under the alternate system.

(k) A promotional list may not be created if an election under this section is pending. An existing eligibility list, whether created under the system prescribed by this chapter or created under an alternate system adopted under this section, may not be terminated before or extended beyond its expiration date. A person promoted under an alternate system has the same rights and the same status as a person promoted under this chapter even if the alternate system is later terminated.

Sec. 162.035. PROCEDURE FOR MAKING PROMOTIONAL APPOINTMENTS. (a) When a vacancy occurs in a nonentry position that is not appointed by the sheriff or a constable as provided by Section 162.012, 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 sheriff or the applicable constable, shall certify to the sheriff or constable the names of the three persons having the highest grades on that eligibility list. The commission shall certify the names not later than the 10th day after the date the commission 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 sheriff or constable.

(c) The commission shall submit names from an existing eligibility list to the sheriff or constable 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 not later than the 90th day 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 sheriff or constable shall fill the vacancy by permanent appointment from the eligibility list furnished by the commission not later than the 60th day after the date the vacancy occurs. If an eligibility list does not exist, the sheriff or constable shall fill the vacancy by permanent appointment from an eligibility list that the commission shall provide not later than the 90th day after the date the vacancy occurs.

(f) Unless the sheriff or constable has a valid reason for not appointing the person, the sheriff or constable shall appoint the eligible promotional candidate having the highest grade on the eligibility list. If the sheriff or constable has a valid reason for not appointing the eligible promotional candidate having the highest grade, the sheriff or constable shall personally discuss the reason with the person being bypassed before appointing another person. The sheriff or constable shall also file the reason in writing with the commission and shall provide the person with a copy of the written notice. On application of the bypassed eligible promotional candidate, the reason the sheriff or constable did not appoint that person is subject to review by the commission or, on the written request of the person being bypassed, by an independent third-party hearing examiner under Section 162.057.

(g) If a person is bypassed, the person's name is returned to its place on the eligibility list and shall be resubmitted to the sheriff or constable if a vacancy occurs. If the sheriff or constable refuses three times to appoint a person and files the reasons for the refusals in writing with the commission, and the commission does not set aside the refusals, the person's name shall be removed from the eligibility list.

(h) 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. 162.036. RECORD OF CERTIFICATION AND APPOINTMENT. (a) When a person is certified and appointed to a position in the sheriff's department or a constable's office, the director shall forward the appointed person's record to the sheriff or applicable constable. The director shall also forward a copy of the record to the county judge and shall 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 on which 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. 162.037. TEMPORARY DUTIES IN HIGHER CLASSIFICATION. (a) The sheriff or a constable may designate a person from the next lower classification to temporarily fill a position in a higher classification. The designated person 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.

(b) 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 162.038-162.040 reserved for expansion]

SUBCHAPTER C. COMPENSATION

Sec. 162.041. SALARY. (a) Except as provided by Section 162.037, all law enforcement officers in the same classification are entitled to the same base salary.

(b) In addition to the base salary, each law enforcement officer 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 162.044;

(3) assignment pay as authorized by Sections 162.042 and 162.043;

(4) certification pay as authorized by Section 162.044;

(5) shift differential pay as authorized by Section 162.047; and

(6) fitness incentive pay as authorized by Section 162.044.

Sec. 162.042. ASSIGNMENT PAY. (a) The commissioners court may authorize assignment pay for law enforcement officers who perform specialized functions in their respective departments or offices.

(b) The assignment pay is in an amount and is payable under conditions set by order and is in addition to the regular pay received by members of the sheriff's department or constable's office.

(c) If the order applies equally to each person who meets the criteria established by the order, the order may provide for payment to each law enforcement officer who meets training or education criteria for an assignment or the order may set criteria that provide for payment only to a law enforcement officer in a special assignment.

(d) The sheriff or constable is not eligible for the assignment pay authorized by this section.

Sec. 162.043. FIELD TRAINING OFFICER ASSIGNMENT PAY. (a) In this section, "field training officer" means a member of the sheriff's department or a constable's office who is assigned to and performs the duties and responsibilities of the field training officers program.

(b) The commissioners court of a county may authorize assignment pay for field training officers. The assignment pay is in an amount and is payable under conditions set by order and is in addition to the regular pay received by members of the sheriff's department or a constable's office.

(c) The sheriff or constable is not eligible for the assignment pay authorized by this section.

Sec. 162.044. CERTIFICATION, EDUCATIONAL INCENTIVE, AND FITNESS INCENTIVE PAY. (a) If each law enforcement officer in a county is afforded an opportunity to qualify for certification, the commissioners court may authorize certification pay to those law enforcement officers who meet the requirements for certification set by the Commission on Law Enforcement Officer Standards and Education.

(b) If the criteria for educational incentive pay are clearly established, are in writing, and are applied equally to each law enforcement officer in a county who meets the criteria, the commissioners court may authorize educational incentive pay for each law enforcement officer who has successfully completed courses at an accredited college or university.

(c) If the criteria for fitness incentive pay are clearly established, are in writing, and are applied equally to each law enforcement officer in a county who meets the criteria, the commissioners court may authorize fitness incentive pay for each law enforcement officer who successfully meets the criteria.

(d) The certification pay, educational incentive pay, and fitness incentive pay are in addition to a law enforcement officer's regular pay.

Sec. 162.045. ACCUMULATION AND PAYMENT OF SICK LEAVE. (a) A permanent or temporary law enforcement officer 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, so as to total 15 working days to a person's credit each 12 months.

(b) A law enforcement officer may accumulate sick leave without limit and may use the leave if unable to work because of a bona fide illness. If an ill law enforcement officer 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 law enforcement officer 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 law enforcement officer has accumulated more than 90 working 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 law enforcement officer for the accumulated time at the highest permanent pay classification for which the person was eligible during the last six months of employment. The law enforcement officer 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 law enforcement officers, all unpaid compensation, including all accumulated sick leave, due at the time of death to an active law enforcement officer who dies as a result of a line-of-duty injury or illness, shall be paid to the persons in the first applicable category of the following prioritized list:

(1) to the beneficiary or beneficiaries the law enforcement officer designated in writing to receive the compensation and filed with the commission before the person's death;

(2) to the law enforcement officer's widow or widower;

(3) to the law enforcement officer's child or children and to the descendants of a deceased child, by representation;

(4) to the law enforcement officer's parents or to their survivors; or

(5) to the properly appointed legal representative of the law enforcement officer's estate, or in the absence of a representative, to the person determined to be entitled to the payment under the state law of descent and distribution.

(e) Payment of compensation to a person in accordance with Subsection (d) is a bar to recovery by another person.

Sec. 162.046. VACATIONS. (a) Each law enforcement officer 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 law enforcement officer 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 commissioners court, a law enforcement officer may not accumulate vacation leave from year to year.

Sec. 162.047. SHIFT DIFFERENTIAL PAY. (a) The commissioners court may authorize shift differential pay for law enforcement officers who work a shift in which more than 50 percent of the time worked is after 6 p.m. and before 6 a.m.

(b) The shift differential pay is in an amount and is payable under conditions set by order and is in addition to the regular pay received by members of the sheriff's department or constable's office.

[Sections 162.048-162.050 reserved for expansion]

SUBCHAPTER D. DISCIPLINARY ACTIONS

Sec. 162.051. CAUSE FOR REMOVAL OR SUSPENSION. A commission rule prescribing cause for removal or suspension of a law enforcement officer 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 law enforcement officer 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

(11) violation of an applicable sheriff's department or constable's office rule or special order.

Sec. 162.052. DISCIPLINARY SUSPENSIONS. (a) The sheriff or a constable may suspend a law enforcement officer under the sheriff's or constable'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 sheriff's department or constable's office.

(b) If the sheriff or constable suspends a law enforcement officer, the sheriff or constable shall, within 120 hours after the hour of suspension, file a written statement with the commission giving the reasons for the suspension. The sheriff or constable shall immediately deliver a copy of the statement in person to the suspended law enforcement officer.

(c) The copy of the written statement must inform the suspended law enforcement officer that if the person wants to appeal to the commission, the person must file a written appeal with the commission not later than the 10th day after the date the person receives the copy of the statement.

(d) The written statement filed by the sheriff or constable with the commission must point out each civil service rule alleged to have been violated by the suspended law enforcement officer and must describe the alleged acts of the person that the sheriff or constable contends are in violation of the civil service rules. It is not sufficient for the sheriff or constable merely to refer to the provisions of the rules alleged to have been violated.

(e) If the sheriff or constable does not specifically point out in the written statement the act or acts of the law enforcement officer that allegedly violated the civil service rules, the commission shall promptly reinstate the person.

(f) If offered by the sheriff or constable, the law enforcement officer 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 law enforcement officer must accept the offer not later than the fifth working day 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 not later than the 15th day 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 sheriff or constable may not complain of an act that occurred earlier than the 180th day preceding the date the sheriff or constable suspends the law enforcement officer. If the act is allegedly related to criminal activity including the violation of a federal, state, or local law for which the law enforcement officer is subject to a criminal penalty:

(1) the sheriff or constable may not complain of an act that is discovered earlier than the 180th day preceding the date the sheriff or constable suspends the law enforcement officer; and

(2) the sheriff or constable must allege that the act complained of is related to criminal activity.

Sec. 162.053. APPEAL OF DISCIPLINARY SUSPENSION. (a) If a suspended law enforcement officer appeals the suspension to the commission, the commission shall hold a hearing and render a decision in writing not later than the 30th day 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 sheriff or constable is restricted to the sheriff's or constable'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 law enforcement officer is:

(1) permanently dismissed from the sheriff's department or constable's office;

(2) temporarily suspended from the department or office; or

(3) restored to the person's former position or status in the department's or office'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 commission orders that the suspended law enforcement officer be restored to the position or class of service from which the person was suspended, the law enforcement officer is entitled to:

(1) immediate reinstatement to the position or class of service from which the person was suspended, notwithstanding any action filed in a court by the county or the sheriff or constable challenging the commission's decision;

(2) 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

(3) 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 shall be made from the compensation paid under Subsection (e), and the county shall make its standard corresponding contributions, if any, to the retirement system or other applicable benefit systems.

(g) The commission may suspend or dismiss a law enforcement officer only for violation of civil service rules and only after a finding by the commission of the truth of specific charges against the law enforcement officer.

Sec. 162.054. DEMOTIONS. (a) If the sheriff or constable wants a law enforcement officer under the sheriff's or constable's supervision or jurisdiction to be involuntarily demoted, the sheriff or constable may recommend in writing to the commission that the commission demote the law enforcement officer.

(b) The sheriff or constable must include in the recommendation for demotion the reasons the sheriff or constable recommends the demotion and a request that the commission order the demotion. The sheriff or constable must immediately furnish a copy of the recommendation in person to the affected law enforcement officer.

(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 law enforcement officer 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 law enforcement officer is entitled to a full and complete public hearing, and the commission may not demote a law enforcement officer without that public hearing.

(e) A voluntary demotion in which the law enforcement officer has accepted the terms of the demotion in writing is not subject to this section.

Sec. 162.055. UNCOMPENSATED DUTY OF LAW ENFORCEMENT OFFICERS. (a) In this section, "uncompensated duty" means days of law enforcement work without pay that are in addition to regular or normal workdays.

(b) The sheriff or a constable may assign a law enforcement officer under the sheriff's or constable's jurisdiction or supervision to uncompensated duty. The sheriff or constable may not impose uncompensated duty unless the law enforcement officer agrees to accept the duty. If the law enforcement officer agrees to accept uncompensated duty, the sheriff or constable shall give the person a written statement that specifies the date or dates on which the person will perform uncompensated duty.

(c) Uncompensated duty may be in place of or in combination with a period of disciplinary suspension without pay. If uncompensated duty is combined with a disciplinary suspension, the total number of uncompensated days may not exceed 15.

(d) A law enforcement officer may not earn or accrue any wage, salary, or benefit arising from length of service while the person is suspended or performing uncompensated duty. The days on which a law enforcement officer performs assigned uncompensated duty may not be taken into consideration in determining eligibility for a promotional examination. A disciplinary suspension does not constitute a break in a continuous position or in service in the sheriff's department or constable's office in determining eligibility for a promotional examination.

(e) Except as provided by this section, a law enforcement officer who performs assigned uncompensated duty retains all rights and privileges of the person's position in the sheriff's department or constable's office and of the person's employment by the county.

Sec. 162.056. PROCEDURES AFTER FELONY INDICTMENT OR MISDEMEANOR COMPLAINT. (a) If a law enforcement officer is indicted for a felony or officially charged with the commission of a Class A or B misdemeanor, the sheriff or constable may temporarily suspend the person with or without pay for a period not to exceed 30 days after the date of final disposition of the specified felony indictment or misdemeanor complaint.

(b) The sheriff or constable shall notify the suspended law enforcement officer in writing that the person is being temporarily suspended for a specific period with or without pay and that the temporary suspension is not intended to reflect an opinion on the merits of the indictment or complaint.

(c) If the action 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 sheriff or constable may, not later than the 30th day after the date of final disposition of the indictment or complaint, bring a charge against the law enforcement officer for a violation of civil service rules.

(d) A law enforcement officer indicted for a felony or officially charged with the commission of a Class A or B misdemeanor who has also been charged by the sheriff or constable with civil service violations directly related to the indictment or complaint may delay the civil service hearing for not more than 30 days after the date of the final disposition of the indictment or complaint.

(e) If the sheriff or constable temporarily suspends a law enforcement officer under this section and the law enforcement officer is not found guilty of the indictment or complaint in a court of competent jurisdiction, the law enforcement officer 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 law enforcement officer has not violated civil service rules and does not negate the charges that may have been or may be brought against the law enforcement officer by the sheriff or constable.

(g) Conviction of a felony is cause for dismissal, and conviction of a Class A or B misdemeanor may be cause for disciplinary action or indefinite suspension.

(h) The sheriff or constable may order an indefinite suspension based on an act classified as a felony or a Class A or B misdemeanor after the 180-day period following the date of the discovery of the act by the sheriff's department or constable's office if the sheriff or constable considers delay to be necessary to protect a criminal investigation of the person's conduct. If the sheriff or constable intends to order an indefinite suspension after the 180-day period, the sheriff or constable must file with the attorney general a statement describing the criminal investigation and its objectives not later than the 180th day after the date the act complained of occurred.

Sec. 162.057. HEARING EXAMINERS. (a) In addition to the other notice requirements prescribed by this chapter, the written notice for a promotional bypass or the letter of disciplinary action, as applicable, issued to a law enforcement officer must state that in an appeal of an indefinite suspension, a suspension, a promotional bypass, or a recommended demotion, the appealing law enforcement officer may elect to appeal to an independent third-party hearing examiner instead of to the commission. The letter must also state that if the law enforcement 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).

(b) To exercise the choice of appealing to a hearing examiner, the appealing law enforcement officer 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 law enforcement officer 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 law enforcement officer chooses to appeal to a hearing examiner, the law enforcement officer and the sheriff or constable, 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 before the 11th day 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 law enforcement officer and the sheriff or constable, or their designees, may agree on one of the seven neutral arbitrators on the list. If they do not agree on or before the fifth working day 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 on or before the 45th calendar day after the date of selection, the law enforcement officer may, not later than the second day 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 not later than the 10th day 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 before the 31st day 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 law enforcement officer and by the sheriff's department or constable's office. 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 arbitration panel was without jurisdiction or exceeded its 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 or constable's office is located.

(k) If the hearing examiner orders that the law enforcement officer be reinstated to the position or class of service the person held before the action by the sheriff's department or constable's office that was the subject of the appeal, the law enforcement officer is entitled to immediate reinstatement to that position or class of service, notwithstanding any action filed in a court by the county or the sheriff or constable challenging the hearing examiner's decision.

[Sections 162.058-162.070 reserved for expansion]

SUBCHAPTER E. LEAVES

Sec. 162.071. LEAVES OF ABSENCE; RESTRICTION PROHIBITED. (a) If a sufficient number of law enforcement officers are available to carry out the normal functions of the sheriff's department or constable's office, a law enforcement officer may not be refused a reasonable leave of absence without pay to attend a law enforcement school, convention, or meeting if the purpose of the school, convention, or meeting is to secure a more efficient department or office and better working conditions for department or office personnel.

(b) A rule that affects a law enforcement officer's constitutional right to appear before or to petition the legislature may not be adopted.

Sec. 162.072. MILITARY LEAVE OF ABSENCE. (a) On written application of a law enforcement officer, the commission shall grant the person a military leave of absence without pay, subject to Section 162.075, 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 law enforcement officer enters.

(b) The commission shall grant to a law enforcement officer a leave of absence for initial training or annual duty in the military reserves or the national guard.

(c) While a law enforcement officer who received a military leave of absence serves in the military, the commission shall fill the person's position in the sheriff's department or constable's office in accordance with this chapter.

(d) On termination of active military service, a law enforcement officer who received a military leave of absence under this section is entitled to be reinstated to the position that the person held in the sheriff's department or constable's office 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 not later than the 90th day after the date the person is discharged from military service.

(e) On reinstatement, the law enforcement officer shall receive full seniority credit for the time spent in the military service.

(f) If the reinstatement of a law enforcement officer who received a military leave of absence causes a surplus in the rank to which the law enforcement officer was reinstated, the law enforcement officer who has the least seniority in the position shall be returned to the position immediately below the position to which the returning law enforcement officer was reinstated. If a law enforcement officer is returned to a lower position in grade or compensation under this subsection without charges being filed against the person for violation of civil service rules, the law enforcement officer shall be placed on a position reinstatement list in order of seniority. Appointments from the reinstatement list shall be made in order of seniority. A person who is not on the reinstatement list may not be appointed to a position to which the list applies until the list is exhausted.

(g) If a law enforcement officer employed by a county is called to active military duty for any period, the employing county must continue to maintain any health, dental, or life insurance coverage and any health or dental benefits coverage that the law enforcement officer received through the county on the date the law enforcement officer was called to active military duty until the county receives written instructions from the law enforcement officer to change or discontinue the coverage.

(h) In addition to other procedures prescribed by this section, a law enforcement officer may, without restriction as to the amount of time, voluntarily substitute for a law enforcement officer described by Sections 162.075(b)(1) and (2) who has been called to active federal military duty for a period expected to last 12 months or longer. A law enforcement officer who voluntarily substitutes under this subsection must be qualified to perform the duties of the absent law enforcement officer.

Sec. 162.073. LINE-OF-DUTY ILLNESS OR INJURY LEAVE OF ABSENCE. (a) A county shall provide to a law enforcement officer 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 line-of-duty illness or injury. If necessary, the leave shall continue for at least one year.

(b) At the end of the one-year period, the commissioners court may extend the line-of-duty illness or injury leave at full or reduced pay. If the law enforcement officer's leave is not extended or the person's salary is reduced below 60 percent of the person's regular monthly salary, and the person is a member of a pension fund, the person may retire on pension until able to return to duty.

(c) If pension benefits are not available to a law enforcement officer 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 commissioners court have expired, the law enforcement officer may use accumulated sick leave, vacation time, and other accrued benefits before the person is placed on temporary leave.

(d) If a law enforcement officer 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 law enforcement officer shall be reinstated at the same rank and with the same seniority the person had before going on temporary leave. Another law enforcement officer may voluntarily do the work of an injured law enforcement officer until the person returns to duty.

Sec. 162.074. REAPPOINTMENT AFTER RECOVERY FROM DISABILITY. With the commission's approval and if otherwise qualified, a law enforcement officer who has been certified by a physician selected by a 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.

Sec. 162.075. MILITARY LEAVE TIME ACCOUNTS. (a) A county shall maintain military leave time accounts for the applicable sheriff's department or constable's office and must maintain a separate military leave time account for each department or office.

(b) A military leave time account shall benefit a law enforcement officer who:

(1) is a member of the Texas National Guard or the armed forces reserves of the United States;

(2) was called to active federal military duty while serving as a law enforcement officer for the county;

(3) has served on active duty for a period of 12 continuous months or longer; and

(4) has exhausted the balance of the person's vacation, holiday, and compensatory leave time accumulations.

(c) A law enforcement officer may donate any amount of accumulated vacation, holiday, sick, or compensatory leave time to the military leave time account in that law enforcement officer's department to help provide salary continuation for law enforcement officers who qualify as eligible beneficiaries of the account under Subsection (b). A law enforcement officer who wishes to donate time to an account under this section must authorize the donation in writing on a form provided by the sheriff's department or constable's office and approved by the county.

(d) A county shall equally distribute the leave time donated to a military leave time account among all law enforcement officers who are eligible beneficiaries of that account. The county shall credit and debit the applicable military leave time account on an hourly basis regardless of the cash value of the time donated or used.

[Sections 162.076-162.080 reserved for expansion]

SUBCHAPTER F. MISCELLANEOUS PROVISIONS

Sec. 162.081. DETERMINATION OF PHYSICAL AND MENTAL FITNESS. (a) If a question arises as to whether a law enforcement officer is sufficiently physically or mentally fit to continue the person's duties, the law enforcement officer shall submit to the commission a report from the person's personal physician, psychiatrist, or psychologist, as appropriate.

(b) If the commission, the sheriff or constable, or the law enforcement officer questions the report, the commission shall appoint a physician, psychiatrist, or psychologist, as appropriate, to examine the law enforcement officer and to submit a report to the commission, the sheriff or constable, and the person.

(c) If the report of the appointed physician, psychiatrist, or psychologist, as appropriate, disagrees with the report of the law enforcement officer'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 law enforcement officer. The board's findings as to the person's fitness for duty shall determine the issue.

(d) The law enforcement officer shall pay the cost of the services of the person's personal physician, psychiatrist, or psychologist, as appropriate. The county shall pay all other costs.

Sec. 162.082. EFFICIENCY REPORTS. (a) The commission may develop proper procedures and rules for semiannual efficiency reports and grades for each law enforcement officer.

(b) If the commission collects efficiency reports on law enforcement officers, the commission shall provide each officer with a copy of that officer's report.

(c) Not later than the 10th calendar day after the date a law enforcement officer receives the copy of the officer's efficiency report, the officer may make a statement in writing concerning the efficiency report. The statement shall be placed in the officer's personnel file with the efficiency report.

Sec. 162.083. EMERGENCY APPOINTMENT OF TEMPORARY LAW ENFORCEMENT OFFICERS. (a) If a county is unable to recruit qualified law enforcement officers because of the maximum age limit prescribed by Section 162.023 and the commissioners court finds that this inability creates an emergency, the commission shall recommend to the commissioners court additional rules governing the temporary employment of persons who are 45 years of age or older.

(b) A person employed under this section:

(1) is designated as a temporary employee;

(2) is not eligible for pension benefits;

(3) is not eligible for appointment or promotion if a permanent applicant or employee is available;

(4) is not eligible to become a full-fledged civil service employee; and

(5) must be dismissed before a permanent civil service employee may be dismissed under Section 162.084.

Sec. 162.084. FORCE REDUCTION AND REINSTATEMENT LIST. (a) If a commissioners court adopts an order that vacates or abolishes a sheriff's department or constable's office position, the law enforcement officer 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 law enforcement officers who have the least seniority in a position shall be demoted to the position immediately below the vacated or abolished position. If a law enforcement officer is demoted under this subsection without charges being filed against the person for violation of civil service rules, the law enforcement officer shall be placed on a position reinstatement list in order of seniority. If the vacated or abolished position is filled or re-created before the first anniversary of 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.

(b) If a position in the lowest classification is abolished or vacated and a law enforcement officer must be dismissed from the department or office, the law enforcement officer with the least seniority shall be dismissed. If a law enforcement officer is dismissed under this subsection without charges being filed against the person for violation of civil service rules, the law enforcement officer 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. 162.085. POLITICAL ACTIVITIES. (a) While in uniform or on active duty, a law enforcement officer may not take an active part in another person's political campaign for an elective position of the county.

(b) For the 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 an elective position of the county.

(c) A law enforcement officer may not be required to contribute to a political fund or to render a political service to a person or party. A law enforcement officer may not be removed, reduced in classification or salary, or otherwise prejudiced for refusing to contribute to a political fund or to render a political service.

(d) A county official who attempts to violate Subsection (c) violates this chapter.

(e) Except as expressly provided by this section, the commission or the commissioners court may not restrict a law enforcement officer's right to engage in a political activity.

Sec. 162.086. STRIKE PROHIBITION. (a) A law enforcement officer may not engage in a strike against the governmental agency that employs the law enforcement officer.

(b) In addition to the penalty prescribed by Section 162.014, if a law enforcement officer is convicted of an offense for violating this section, the person shall be automatically released and discharged from the sheriff's department or constable's office. After the person is discharged from the department or office, the person may not receive any pay or compensation from public funds used to support the sheriff's department or constable's office.

Sec. 162.087. 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. 162.088. PERSONNEL FILE. (a) The director or the director's designee shall maintain a personnel file on each law enforcement officer. The personnel file must contain any letter, memorandum, or document relating to:

(1) a commendation, congratulation, or honor bestowed on the law enforcement officer by a member of the public or by the employing department or office for an action, duty, or activity that relates to the person's official duties;

(2) any misconduct by the law enforcement officer if the letter, memorandum, or document is from the employing department or office and if the misconduct resulted in disciplinary action by the employing department or office in accordance with this chapter; and

(3) the periodic evaluation of the law enforcement officer by a supervisor.

(b) A letter, memorandum, or document relating to alleged misconduct by the law enforcement officer may not be placed in the person's personnel file if the employing department or office determines that there is insufficient evidence to sustain the charge of misconduct.

(c) A letter, memorandum, or document relating to disciplinary action taken against the law enforcement officer or to alleged misconduct by the law enforcement officer 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 law enforcement officer's personnel file, the director or the director's designee shall, not later than the 30th day after the date of the inclusion, notify the affected law enforcement officer. The law enforcement officer 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 law enforcement officer is entitled, on request, to a copy of any letter, memorandum, or document placed in the person's personnel file. The county may charge the law enforcement officer 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 law enforcement officer's personnel file without first obtaining the person's written permission, unless the release of the information is required by law.

(g) A sheriff's department or constable's office may maintain a personnel file on a law enforcement officer employed by the department or office for the department's or office's use, but the department or office may not release any information contained in the file to any agency or person requesting information relating to a law enforcement officer. The department or office shall refer to the director or the director's designee a person or agency that requests information that is maintained in the law enforcement officer's personnel file.

SECTION 2. The heading to Chapter 158, Local Government Code, is amended to read as follows:

CHAPTER 158. [COUNTY] CIVIL SERVICE PROVISIONS FOR CERTAIN

COUNTIES

SECTION 3. This Act takes effect September 1, 2011.