87R11140 SCL-D

By: Johnson S.B. No. 1805

A BILL TO BE ENTITLED

AN ACT

relating to municipal civil service for fire fighters and police officers.

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

SECTION 1. Section 143.003, Local Government Code, is amended by amending Subdivision (1) and adding Subdivision (1-a) to read as follows:

(1) "Business day" means any day that is not a Saturday, Sunday, or national holiday described by Section 662.003, Government Code.

(1-a) "Commission" means the Fire Fighters' and Police Officers' Civil Service Commission.

SECTION 2. Sections 143.010(a) and (e), Local Government Code, are amended to read as follows:

(a) Except as otherwise provided by this chapter, if a fire fighter or police officer wants to appeal to the commission from an action for which an appeal or review is provided by this chapter, the fire fighter or police officer need only file an appeal with the commission within 10 business days after the date the action occurred.

(e) The affected fire fighter or police officer may request the commission to subpoena any books, records, documents, papers, accounts, or witnesses that the fire fighter or police officer considers pertinent to the case. The fire fighter or police officer must make the request before the 10th calendar day before the date the commission hearing will be held. If the commission does not subpoena the material, the commission shall, before the third calendar day before the date the hearing will be held, make a written report to the fire fighter or police officer stating the reason it will not subpoena the requested material. This report shall be read into the public record of the commission hearing.

SECTION 3. Section 143.014, Local Government Code, is amended by amending Subsection (d) and adding Subsection (d-1) to read as follows:

(d) Except as provided by Subsection (d-1), a [A] person appointed to a position in the classification immediately below that of the head of the police department must:

(1) be employed by the municipality's police department as a sworn police officer;

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

(3) meet the requirements for appointment as head of a police department prescribed by Section 143.013(b).

(d-1) The department head of a police department may appoint a person that does not meet the requirements described by Subsections (d)(1) and (2) to a position in the classification immediately below that of the head of the police department if:

(1) the department head requests and is granted approval for the appointment from the governing body of the municipality; and

(2) the department head provides a justification for hiring outside of the department to the commission and the commission determines that:

(A) the justification is valid; and

(B) the appointment will improve the department's operations.

SECTION 4. Section 143.015, Local Government Code, is amended by amending Subsections (a) and (b) and adding Subsections (a-1) and (b-1) to read as follows:

(a) A [If a] fire fighter or police officer may appeal [is dissatisfied with] any commission decision by filing [, the fire fighter or police officer may file] a petition in district court asking that the decision be set aside. The petition must:

(1) be filed within 10 business days after the date the fire fighter or police officer is notified of the final commission decision; and [:

[(1) is sent to the fire fighter or police officer by certified mail; or]

(2) if filed by a police officer, establish that the commission decision was arbitrary, unreasonable, not in accordance with commission rules, or not in accordance with applicable law [is personally received by the fire fighter or police officer or by that person's designee].

(a-1) For purposes of Subsection (a)(1), a fire fighter or police officer is considered notified on the date the final commission decision is:

(1) sent to the fire fighter or police officer by certified mail; or

(2) personally received by the fire fighter or police officer or by that person's designee.

(b) Except as provided by Subsection (b-1), an [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.

(b-1) If the district court determines a petition by a police officer does not fulfill the requirements of Subsection (a)(2), the district court shall review the commission decision for sufficiency of the evidence.

SECTION 5. Section 143.016, Local Government Code, is amended to read as follows:

Sec. 143.016. PENALTY FOR FAILURE TO COMPLY WITH SUBPOENA AND CERTAIN VIOLATIONS [VIOLATION] OF CHAPTER. (a) A fire fighter or police officer commits an offense if the person:

(1) fails to respond to a subpoena issued under Section 143.009; or

(2) violates Section 143.086 or 143.087 [this chapter].

(b) An offense under this section [or Section 143.009] is a Class C 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 fine and confinement].

SECTION 6. Section 143.024(a), Local Government Code, is amended to read as follows:

(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 in a conspicuous location [on a bulletin board located] in the main lobby of the city hall 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.

SECTION 7. Sections 143.025(d) and (e), Local Government Code, are amended to read as follows:

(d) Examinations for beginning positions [in the fire department] may be held at different locations if each applicant takes the same examination and is examined in the presence of other applicants.

(e) This subsection applies only in a municipality to which Subchapter J does not apply. An examination for beginning positions in the police department must be held at one or more locations in the municipality in which the police department is located and may be held at additional locations outside the municipality. 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 police department 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.

SECTION 8. Section 143.029(b), Local Government Code, is amended to read as follows:

(b) Before the 30th day before the date a promotional examination is held, the commission shall post a notice of the examination in a conspicuous location [plain view on a bulletin board located] in the main lobby of the city hall 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.

SECTION 9. The heading to Section 143.030, Local Government Code, is amended to read as follows:

Sec. 143.030. ELIGIBILITY FOR FIRE DEPARTMENT PROMOTION AND PROMOTIONAL EXAMINATION.

SECTION 10. Section 143.030, Local Government Code, is amended by amending Subsection (b) and adding Subsections (b-1), (g), and (h) to read as follows:

(b) Except as provided by this section, Section 143.013, and Section 143.102, a fire fighter is eligible for promotion if the fire fighter has continuously held a position in the classification that is immediately below, in salary, the classification for which the examination is to be held for at least two years before the examination date.

(b-1) Each promotional examination is open to each fire fighter who is eligible under Subsection (b) [at any time has continuously held for at least two years a position in the classification that is immediately below, in salary, the classification for which the examination is to be held].

(g) A fire fighter is not eligible for promotion to the rank of captain or its equivalent unless the fire fighter has at least four years of actual service in the fire department for which the fire fighter would serve as that rank.

(h) If a fire fighter is recalled on active military duty for not more than 60 months, the two-year service requirement under Subsection (b) does not apply and the fire fighter is entitled to have time spent on active military duty considered as duty in the fire department.

SECTION 11. The heading to Section 143.031, Local Government Code, is amended to read as follows:

Sec. 143.031. ELIGIBILITY FOR POLICE DEPARTMENT PROMOTION AND PROMOTIONAL EXAMINATION.

SECTION 12. Section 143.031, Local Government Code, is amended by amending Subsection (a) and adding Subsections (a-1), (d), (e), and (f) to read as follows:

(a) Except as provided by this section, Section 143.013, and Section 143.102, a police officer is eligible for promotion if the police officer has continuously held a position in the classification that is immediately below, in salary, the classification for which the examination is to be held for at least two years before the examination date.

(a-1) Each promotional examination is open to each police officer who is eligible under Subsection (a) [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].

(d) If a police officer is serving in a beginning position in a police department, the two-year service period described by Subsection (a) begins on completion of the police officer's probationary period.

(e) If a police officer is recalled on active military duty for not more than 60 months, the two-year service requirement under Subsection (a) does not apply and the police officer is entitled to have time spent on active military duty considered as duty in the police department.

(f) A demoted police officer is not eligible for promotion unless the police officer has served continuously in the next lower position for at least two years after the demotion.

SECTION 13. Section 143.035(g), Local Government Code, is amended to read as follows:

(g) The commission shall canvass the votes within 30 days after the date the election is held. An appeal alleging election irregularity must be filed with the commission within five business [working] days after the date the election closes. If approved by the sworn police 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.

SECTION 14. Section 143.045(d), Local Government Code, is amended to read as follows:

(d) To facilitate the settlement of the accounts of deceased fire fighters and police officers, all unpaid compensation, including all accumulated sick leave, due at the time of death to an active fire fighter or police officer who dies as a result of a line-of-duty injury or illness, shall be paid to the legal beneficiary designated in writing by the fire fighter or police officer, or, if no legal beneficiary is designated, the person determined to be entitled to the payment under Title 2, Estates Code [persons in the first applicable category of the following prioritized list:

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

[(2) to the fire fighter's or police officer's widow or widower;

[(3) to the fire fighter's or police officer's child or children and to the descendants of a deceased child, by representation;

[(4) to the fire fighter's or police officer's parents or to their survivors; or

[(5) to the properly appointed legal representative of the fire fighter's or police 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].

SECTION 15. Section 143.051, Local Government Code, is amended to read as follows:

Sec. 143.051. CAUSE FOR REMOVAL OR SUSPENSION OF FIRE FIGHTERS. A commission rule prescribing cause for removal or suspension of a fire fighter [or police 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) violations of a municipal charter provision;

(3) acts of incompetency;

(4) neglect of duty;

(5) discourtesy to the public or to a fellow employee while the fire fighter [or police officer] is in the line of duty;

(6) acts showing lack of good moral character;

(7) drinking intoxicants while on duty or intoxication while off duty;

(8) conduct prejudicial to good order;

(9) refusal or neglect to pay just debts;

(10) absence without leave;

(11) shirking duty or cowardice at fires, if applicable; or

(12) violation of an applicable fire [or police] department rule or special order.

SECTION 16. Subchapter D, Chapter 143, Local Government Code, is amended by adding Section 143.0515 to read as follows:

Sec. 143.0515. CAUSE FOR REMOVAL, SUSPENSION, OR DEMOTION OF POLICE OFFICERS. A commission rule prescribing cause for removal, suspension, or demotion of a police officer is valid only if it involves one or more of the following grounds:

(1) acts of incompetency, neglect, or failure to perform a job function deemed essential to the position as set forth in the police department's job description for the position;

(2) acts showing lack of good moral character, including:

(A) discourtesy to the public or to a fellow employee while the police officer is in the line of duty;

(B) intoxication while on duty or excessive intoxication while off duty;

(C) conduct prejudicial to good order;

(D) refusal or neglect to pay just debts;

(E) absence without leave;

(F) excessive use of force; or

(G) making a false statement or substantive omission during the employment application process, a police department hearing, or a police department investigation;

(3) violation of a municipal charter provision;

(4) violation of an applicable police department rule or special order;

(5) a plea of guilty, an adjudication of guilt, or a verdict of guilty after a criminal trial of any felony offense or any of the following misdemeanor offenses:

(A) an offense listed under Chapter 15, Penal Code, that constitutes an attempt, conspiracy, or solicitation to commit another offense under this subdivision;

(B) any offense listed under Chapter 21, Penal Code (sexual offenses);

(C) any offense listed under Section 22.012, Penal Code (indecent assault);

(D) any offense listed under Chapter 30, Penal Code (burglary and criminal trespass);

(E) any offense listed under Chapter 31, Penal Code (theft);

(F) any offense listed under Chapter 32, 35, or 35A, Penal Code (fraud);

(G) any offense listed under Chapter 36, Penal Code (bribery and corrupt influence);

(H) any offense listed under Chapter 37, Penal Code (perjury and other falsification);

(I) any offense listed under Chapter 39, Penal Code (abuse of office);

(J) any offense listed under Chapter 43, Penal Code (public indecency);

(K) any offense listed under Section 49.04, 49.05, or 49.06, Penal Code (intoxication offenses); or

(L) other misdemeanor crimes of moral turpitude; or

(6) acts constituting an offense under Subdivision (5), regardless of criminal prosecution, including any act in any jurisdiction other than this state, which if committed in this state would constitute such an offense unless a court has held the offense as unconstitutional.

SECTION 17. The heading to Section 143.052, Local Government Code, is amended to read as follows:

Sec. 143.052. DISCIPLINARY SUSPENSIONS OF FIRE FIGHTERS.

SECTION 18. Sections 143.052(b), (c), (d), (e), (f), (g), and (h), Local Government Code, are amended to read as follows:

(b) The head of the fire [or police] department may suspend a fire fighter [or police officer] under the department head'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 department.

(c) If the department head suspends a fire fighter [or police officer], the department head shall, within 120 hours after the hour of suspension, file a written statement with the commission giving the reasons for the suspension. The department head shall immediately deliver a copy of the statement in person to the suspended fire fighter [or police officer].

(d) The copy of the written statement must inform the suspended fire fighter [or police officer] that if the fire fighter [person] wants to appeal to the commission, the fire fighter [person] must file a written appeal with the commission within 10 business days after the date the fire fighter [person] receives the copy of the statement.

(e) The written statement filed by the department head with the commission must point out each civil service rule alleged to have been violated by the suspended fire fighter [or police officer] and must describe the alleged acts of the fire fighter [person] that the department head contends are in violation of the civil service rules. It is not sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated.

(f) If the department head does not specifically point out in the written statement the act or acts of the fire fighter [or police officer] that allegedly violated the civil service rules, the commission shall promptly reinstate the fire fighter [person].

(g) If offered by the department head, the fire fighter [or police 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 fire fighter [or police officer] must accept the offer within five business [working] days after the date the offer is made. If the fire fighter [person] refuses the offer and wants to appeal to the commission, the fire fighter [person] must file a written appeal with the commission within 15 business days after the date the fire fighter [person] receives the copy of the written statement of suspension.

(h) In the original written statement and charges and in any hearing conducted under this chapter, the department head may not complain of an act that occurred earlier than the 180th day preceding the date the department head suspends the fire fighter [or police officer]. If the act is allegedly related to criminal activity including the violation of a federal, state, or local law for which the fire fighter [or police officer] is subject to a criminal penalty, the department head may not complain of an act that is discovered earlier than the 180th day preceding the date the department head suspends the fire fighter [or police officer]. The department head must allege that the act complained of is related to criminal activity.

SECTION 19. Subchapter D, Chapter 143, Local Government Code, is amended by adding Section 143.0525 to read as follows:

Sec. 143.0525. DISCIPLINARY SUSPENSIONS AND DEMOTIONS OF POLICE OFFICERS. (a) This section does not apply to a municipality with a population of 1.5 million or more.

(b) For purposes of this section, "civil service rule" includes the underlying grounds described by Section 143.0515.

(c) If the head of a police department determines that a police officer under the department head's supervision or jurisdiction violated a civil service rule, the department head may:

(1) suspend the police officer for a period not to exceed 15 calendar days;

(2) suspend the police officer indefinitely, which is equivalent to dismissal from the department; or

(3) recommend to the commission to demote the police officer to any lower rank in the classified civil service.

(d) If the department head suspends or recommends to demote a police officer under this section, the department head shall, within five business days after the date of suspension or recommended demotion, file a written statement with the commission. The written statement must identify each civil service rule alleged to have been violated by the police officer and describe the alleged acts of the police officer that the department head contends are in violation of the civil service rules. It is not sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated.

(e) The department head shall deliver a copy of the statement in person or by certified mail to the police officer within five business days after the date the department head suspends or recommends demotion of the police officer. The copy must inform the police officer of the police officer's right to appeal under Section 143.0535.

(f) A suspension under this section goes into effect immediately.

(g) A recommended demotion under this section goes into effect if the commission grants the request of the department head. If the police officer exercises the police officer's right to appeal under Section 143.0535, the commission may not grant the demotion request until the appeal process is complete.

(h) In the original written statement and charges and in any hearing conducted under this chapter, the department head may not complain of an act that was discovered by the department before the 360th day preceding the date the department head suspends or recommends demotion of the police officer.

SECTION 20. The heading to Section 143.053, Local Government Code, is amended to read as follows:

Sec. 143.053. APPEAL OF DISCIPLINARY SUSPENSION OF FIRE FIGHTERS.

SECTION 21. Section 143.053, Local Government Code, is amended by amending Subsections (b), (e), (f), and (g) and adding Subsection (f-1) to read as follows:

(b) If a suspended fire fighter [or police officer] appeals the suspension to the commission, the commission shall hold a hearing and render a decision in writing within 30 days after the date it receives notice of appeal. The suspended fire fighter [person] and the commission may agree to postpone the hearing for a definite period.

(e) In its decision, the commission shall state whether the suspended fire fighter [or police officer] is:

(1) permanently dismissed from the fire [or police] department;

(2) temporarily suspended from the department; or

(3) restored to the fire fighter's [person's] former position or status in the department's classified service.

(f) 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 suspended fire fighter [or police officer] is restored to the position or class of service from which the person was suspended, the fire fighter [or police officer] is entitled to:

(1) 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 fire fighter [person] was suspended; and

(2) restoration of or credit for any other benefits lost as a result of the suspension in accordance with Subsection (f-1), including sick leave, vacation leave, and service credit in a retirement system.

(f-1) Standard payroll deductions, if any, for retirement and other benefits restored shall be made from the compensation paid under Subsection (f)(1), and the municipality 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 fire fighter [or police officer] only for violation of civil service rules and only after a finding by the commission of the truth of specific charges against the fire fighter [or police officer].

SECTION 22. Subchapter D, Chapter 143, Local Government Code, is amended by adding Section 143.0535 to read as follows:

Sec. 143.0535. APPEALS AND REJECTIONS OF DISCIPLINARY SUSPENSIONS AND DEMOTIONS OF POLICE OFFICERS. (a) This section does not apply to a municipality with a population of 1.5 million or more.

(b) For purposes of this section, "civil service rule" includes the underlying grounds described by Section 143.0515.

(c) A police officer has the right to appeal a suspension or recommended demotion made under Section 143.0525 unless:

(1) offered by the department head, the police officer agrees in writing to voluntarily accept a demotion or suspension of up to 90 calendar days; or

(2) the department head is requesting to demote a police officer who has been promoted in the last six months to the police officer's previous civil service rank on the grounds described by Section 143.0515(1) relating to the new position.

(d) Regardless of whether the police officer files an appeal or has the right to appeal, the commission shall reject a suspension or recommended demotion under this section and immediately reinstate the police officer if the commission finds that the department head did not fulfill the requirements of Section 143.0525(d).

(e) An appeal to the commission by a police officer under this section must be filed with the commission within 10 business days after the date the police officer receives the copy of the statement in accordance with Section 143.0525(e).

(f) The commission shall hold a full and complete hearing and render a decision in writing within 30 calendar days after the date the commission receives notice of the appeal. The police officer and commission may agree to postpone the hearing for a definite period.

(g) In a hearing conducted under this section, the department head is restricted to:

(1) the department head's unamended original written statement and charges; and

(2) additional facts that become known to the department head after the time of the suspension or recommended demotion.

(h) The department head shall provide the additional facts described by Subsection (g)(2) to:

(1) the appellant at least five business days before the date set for hearing; and

(2) the commission.

(i) 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.

(j) The commission may suspend, dismiss, or demote a police officer only for violation of civil service rules and only after a finding by the commission of the truth of the specific charges against the police officer.

(k) In the commission's decision, the commission shall state whether the police officer is:

(1) permanently dismissed from the police department;

(2) temporarily suspended from the police department for a definite period;

(3) demoted to the position requested by the department head;

(4) demoted to a position between the police officer's current position and the position requested by the department head; or

(5) restored to the police officer's former position or status in the police department's classified service.

(l) If the suspended police officer is restored to the position or class of service from which the police officer was suspended, the police officer is entitled to:

(1) 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 police officer was suspended; and

(2) restoration of or credit for any other benefits lost as a result of the suspension in accordance with Subsection (m), including sick leave, vacation leave, and service credit in a retirement system.

(m) Standard payroll deductions, if any, for retirement and other benefits restored under Subsection (l)(2) must be made from the compensation paid, and the municipality shall make its standard corresponding contributions, if any, to the retirement system or other applicable benefit systems.

(n) A decision by the commission to suspend a police officer for not more than 15 calendar days is final and may not be appealed under Section 143.015.

(o) Except as otherwise provided by this section, an appeal under this section shall follow the procedures prescribed by Section 143.010.

SECTION 23. The heading to Section 143.054, Local Government Code, is amended to read as follows:

Sec. 143.054. DEMOTIONS OF FIRE FIGHTERS AND CERTAIN POLICE OFFICERS.

SECTION 24. Section 143.054, Local Government Code, is amended by amending Subsections (a) and (c) and adding Subsection (a-1) to read as follows:

(a) This section does not apply to a police department in a municipality with a population of less than 1.5 million.

(a-1) If the head of the fire or police department wants a fire fighter or police officer under the department head's [his] supervision or jurisdiction to be involuntarily demoted, the department head may recommend in writing to the commission that the commission demote the fire fighter or police 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 fire fighter or police 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 business day before the date the hearing will be held.

SECTION 25. Section 143.056, Local Government Code, is amended by amending Subsections (c) and (h) and adding Subsections (c-1) and (i) to read as follows:

(c) If the action directly related to the felony indictment or misdemeanor complaint against a fire fighter occurred or was discovered on or after the 180th day before the date of the indictment or complaint, the department head may, within 30 days after the date of final disposition of the indictment or complaint, bring a charge against the fire fighter [or police officer] for a violation of civil service rules.

(c-1) If the action directly related to the felony indictment or misdemeanor complaint against a police officer was discovered on or after the 360th day before the date of the indictment or complaint, the department head may, within 30 days after the date of final disposition of the indictment or complaint, bring a charge against the police officer for a violation of civil service rules.

(h) The department head may order an indefinite suspension of a fire fighter 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 department if the department head considers delay to be necessary to protect a criminal investigation of the fire fighter's [person's] conduct. If the department head intends to order an indefinite suspension of the fire fighter after the 180-day period, the department head must file with the attorney general a statement describing the criminal investigation and its objectives within 180 days after the date the act complained of occurred.

(i) The department head may order an indefinite suspension of a police officer based on an act classified as a felony or a Class A or B misdemeanor after the 360-day period following the date of the discovery of the act by the department if the department head considers the delay to be necessary to protect a criminal investigation of the police officer's conduct. If the department head intends to order an indefinite suspension of the police officer after the 360-day period, the department head must file with the attorney general a statement describing the criminal investigation and its objectives within 360 days after the date of the discovery of the act by the department.

SECTION 26. The heading to Section 143.057, Local Government Code, is amended to read as follows:

Sec. 143.057. FIRE FIGHTER APPEAL TO HEARING EXAMINER [EXAMINERS].

SECTION 27. Sections 143.057(a), (b), (c), (d), (e), (i), and (j), Local Government Code, are amended to read as follows:

(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 fire fighter [or police officer] must state that in an appeal of an indefinite suspension, a suspension, a promotional bypass, or a recommended demotion, the appealing fire fighter [or police 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 fire fighter [or police officer] elects to appeal to a hearing examiner, the fire fighter [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 fire fighter [or police officer] must submit to the director a written request as part of the original notice of appeal required under this chapter stating the fire fighter's [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 fire fighter [or police officer] decides to appeal to an independent third party hearing examiner, the fire fighter [person] automatically waives all rights to appeal to a district court except as provided by Subsection (j).

(d) If the appealing fire fighter [or police officer] chooses to appeal to a hearing examiner, the fire fighter [or police officer] and the department head, or their designees, shall first attempt to agree on the selection of an impartial hearing examiner. If the parties do not agree on the selection of a hearing examiner on or within 10 business days 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 fire fighter [or police officer] and the department head, or their designees, may agree on one of the seven neutral arbitrators on the list. If they do not agree within five business [working] days after the date they received the list, each party or the party's designee shall alternate striking a name from the list and the name remaining is the hearing examiner. The parties or their designees shall agree on a date for the hearing.

(e) The appeal hearing shall begin as soon as the hearing examiner can be scheduled. If the hearing examiner cannot begin the hearing within 45 calendar days after the date of selection, the fire fighter [or police officer] may, within two business days after learning of that fact, call for the selection of a new hearing examiner using the procedure prescribed by Subsection (d).

(i) The hearing examiner's fees and expenses are shared equally by the appealing fire fighter [or police officer] and by the department. The costs of a witness are paid by the party who calls the witness.

(j) A district court may hear an appeal of a hearing examiner's award only on the grounds that the 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 municipality in which the fire [or police] department is located.

SECTION 28. The heading to Section 143.083, Local Government Code, is amended to read as follows:

Sec. 143.083. EMERGENCY APPOINTMENT OF TEMPORARY FIRE FIGHTERS [AND POLICE OFFICERS].

SECTION 29. Section 143.083(a), Local Government Code, is amended to read as follows:

(a) If a municipality is unable to recruit qualified fire fighters [or police officers] because of the maximum age limit prescribed by Section 143.023 and the municipality's governing body finds that this inability creates an emergency, the commission shall recommend to the governing body additional rules governing the temporary employment of fire fighters [persons] who are 36 years of age or older.

SECTION 30. Section 143.089(f), Local Government Code, is amended to read as follows:

(f) The director or the director's designee may not release any information contained in a fire fighter's or police officer's personnel file without first obtaining the person's written permission, unless the release of the information is:

(1) required by law; or

(2) requested by a local, state, or federal law enforcement agency conducting a criminal history check on a current or former police officer.

SECTION 31. The following provisions of the Local Government Code are repealed:

(1) Section 143.009(e);

(2) Section 143.023(c);

(3) Section 143.028; and

(4) Section 143.045(e).

SECTION 32. Chapter 143, Local Government Code, as amended by this Act, applies only in relation to an employment action taken on or after the effective date of this Act. An employment action taken before the effective date of this Act is governed by the law in effect on the date the employment action was taken, and that law continues in effect for that purpose.

SECTION 33. Section 143.016, Local Government Code, as amended by this Act, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 34. This Act takes effect September 1, 2021.