83R9581 SCL-F

By: Martinez H.B. No. 2430

A BILL TO BE ENTITLED

AN ACT

relating to an appeal by a deputy sheriff under county civil service to an independent third-party hearing examiner.

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

SECTION 1. Subchapter A, Chapter 158, Local Government Code, is amended by adding Section 158.0125 to read as follows:

Sec. 158.0125. APPEAL TO INDEPENDENT THIRD-PARTY HEARING EXAMINER. (a) A commission by rule may authorize a deputy sheriff to appeal under this section to an independent third-party hearing examiner instead of to the commission a notice of a recommended demotion, a suspension of three days or more, or a termination. The deputy may not appeal unless the sheriff consents to the appeal.

(b) A written notice for a demotion or disciplinary action issued to a deputy sheriff must state that in an appeal of a recommended demotion, a suspension of three days or more, or a termination, the deputy may appeal to an independent third-party hearing examiner instead of to the commission with the consent of the sheriff. The notice must state that if the deputy appeals to a hearing examiner, the deputy waives the right to appeal to district court except as provided by Subsection (k).

(c) To appeal to a hearing examiner, a deputy sheriff must submit to the commission and the sheriff a written request as part of any original notice of appeal required under this subchapter stating the deputy's preference to appeal to an independent third-party hearing examiner. Not later than the 10th day after the date the sheriff receives the deputy's notice, the sheriff shall notify the commission and the deputy in writing whether the sheriff consents to the appeal to an independent third-party hearing examiner.

(d) On appeal to a hearing examiner, the deputy and the sheriff, or their designees, shall attempt to agree on the selection of an impartial hearing examiner. If the deputy and the sheriff do not agree on the selection of a hearing examiner within 10 days after the date the appeal is filed, the commission shall request a list of seven qualified arbitrators from the American Arbitration Association or the Federal Mediation and Conciliation Service, or their successors in function. The deputy and the sheriff, or their designees, may agree on one of the seven arbitrators on the list. If the deputy and the sheriff do not agree within five business days after the date the list is received, the deputy and the sheriff, or their designees, shall alternate striking a name from the list and the name remaining is the hearing examiner. The deputy and the sheriff, or their designees, must agree on a date for the hearing.

(e) An appeal hearing shall begin as soon as a hearing examiner can be scheduled. If a hearing examiner cannot begin the hearing within 45 days after the date of selection, the deputy or the sheriff may, within two days after learning of that fact, call for the selection of a new hearing examiner using the procedure under Subsection (d).

(f) In a hearing conducted under this section, the hearing examiner has the same powers and duties as the commission, including any right to issue subpoenas.

(g) In a hearing conducted under this section, the deputy and the sheriff may agree to an expedited hearing procedure. Unless otherwise agreed to by the deputy and the sheriff, a hearing examiner shall render a decision on the appeal in an expedited procedure within 10 days after the date the hearing ends.

(h) In an appeal that does not involve an expedited hearing procedure, a 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. A 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) A party who loses an appeal is liable for the hearing examiner's fees and expenses. The costs of a witness are paid by the party who calls the witness.

(j) A hearing examiner's decision is final and binding on all parties. A deputy sheriff who decides to appeal to an independent third-party hearing examiner and the sheriff who consents to the appeal waive the right to appeal to district court except as provided by Subsection (k).

(k) 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 department is located.

SECTION 2. Subchapter B, Chapter 158, Local Government Code, is amended by adding Section 158.0375 to read as follows:

Sec. 158.0375. APPEAL TO INDEPENDENT THIRD-PARTY HEARING EXAMINER. (a) A commission by rule may authorize a deputy sheriff to appeal under this section to an independent third-party hearing examiner instead of to the commission a notice of a recommended demotion, a suspension of three days or more, or a termination. The deputy may not appeal unless the sheriff consents to the appeal.

(b) A written notice for a demotion or disciplinary action issued to a deputy sheriff must state that in an appeal of a recommended demotion, a suspension of three days or more, or a termination, the deputy may appeal to an independent third-party hearing examiner instead of to the commission with the consent of the sheriff. The notice must state that if the deputy appeals to a hearing examiner, the deputy waives the right to appeal to district court except as provided by Subsection (k).

(c) To appeal to a hearing examiner, a deputy sheriff must submit to the commission and the sheriff a written request as part of any original notice of appeal required under this subchapter stating the deputy's preference to appeal to an independent third-party hearing examiner. Not later than the 10th day after the date the sheriff receives the deputy's notice, the sheriff shall notify the commission and the deputy in writing whether the sheriff consents to the appeal to an independent third-party hearing examiner.

(d) On appeal to a hearing examiner, the deputy and the sheriff, or their designees, shall attempt to agree on the selection of an impartial hearing examiner. If the deputy and the sheriff do not agree on the selection of a hearing examiner within 10 days after the date the appeal is filed, the commission shall request a list of seven qualified arbitrators from the American Arbitration Association or the Federal Mediation and Conciliation Service, or their successors in function. The deputy and the sheriff, or their designees, may agree on one of the seven arbitrators on the list. If the deputy and the sheriff do not agree within five business days after the date the list is received, the deputy and the sheriff, or their designees, shall alternate striking a name from the list and the name remaining is the hearing examiner. The deputy and the sheriff, or their designees, must agree on a date for the hearing.

(e) An appeal hearing shall begin as soon as a hearing examiner can be scheduled. If a hearing examiner cannot begin the hearing within 45 days after the date of selection, the deputy or the sheriff may, within two days after learning of that fact, call for the selection of a new hearing examiner using the procedure under Subsection (d).

(f) In a hearing conducted under this section, the hearing examiner has the same powers and duties as the commission, including any right to issue subpoenas.

(g) In a hearing conducted under this section, the deputy and the sheriff may agree to an expedited hearing procedure. Unless otherwise agreed to by the deputy and the sheriff, a hearing examiner shall render a decision on the appeal in an expedited procedure within 10 days after the date the hearing ends.

(h) In an appeal that does not involve an expedited hearing procedure, a 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. A 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) A party who loses an appeal is liable for the hearing examiner's fees and expenses. The costs of a witness are paid by the party who calls the witness.

(j) A hearing examiner's decision is final and binding on all parties. A deputy sheriff who decides to appeal to an independent third-party hearing examiner and the sheriff who consents to the appeal waive the right to appeal to district court except as provided by Subsection (k).

(k) 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 department is located.

SECTION 3. The changes in law made by this Act apply only to an appeal to an independent third-party hearing examiner under Chapter 158, Local Government Code, as amended by this Act, following notice of demotion or disciplinary action given on or after the effective date of this Act. An appeal following notice given before the effective date of this Act is governed by the law in effect on the date the notice was given, and the former law is continued in effect for that purpose.

SECTION 4. This Act takes effect September 1, 2013.