81R10619 SLB-F
By: Castro H.B. No. 2508
A BILL TO BE ENTITLED
AN ACT
relating to the sheriff's department civil service system in
certain counties; imposing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 158.034, Local Government Code, is
amended by amending Subsections (a) and (c) and adding Subsections
(a-1) and (a-2) to read as follows:
(a) In a county with a population of less than 2.8 million
other than a county to which Subsection (a-1) applies, if a majority
of the employees voting at the election approve the creation of a
sheriff's department civil service system, the sheriff,
commissioners court, and district attorney shall each appoint one
person to serve as a member of the civil service commission that
administers the system.
(a-1) In a county with a population of one million or more
that adopted Chapter 174 after January 1, 2004, the employee
organization representing the majority of sheriff department
employees shall appoint two persons to serve as members of the civil
service commission that administers the system in addition to the
appointments by the sheriff, commissioners court, and district
attorney.
(a-2) In a county with a population of 2.8 million or more
other than a county to which Subsection (a-1) applies, if a majority
of the employees voting at the election approve the creation of a
sheriff's department civil service system, the sheriff,
commissioners court, [and] district attorney, and employee
organization representing the majority of employees shall each
appoint two persons to serve as members of the civil service
commission that administers the system, and the [three] appointing
authorities shall appoint one member by joint action requiring the
affirmative vote of each of the authorities.
(c) Each member of the commission is appointed for a term of
two years. Each member shall serve not more than two terms.
However, the initial members of the commission in a county with a
population of less than 2.8 million that is covered by Subsection
(a) shall determine by lot which two of them will serve a term of two
years and which one of them will serve a term of one year. In a
county with a population of 2.8 million or more:
(1) the initial member appointed jointly under
Subsection (a) serves a term of two years; and
(2) the initial members appointed by each individual
appointing authority shall determine by lot which one of the two
initial members appointed by the appointing authority will serve a
term of two years and which initial member appointed by that
authority will serve a term of one year.
SECTION 2. Chapter 158, Local Government Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. SHERIFF'S DEPARTMENT CIVIL SERVICE SYSTEM IN CERTAIN
COUNTIES WITH POPULATION OF ONE MILLION OR MORE
Sec. 158.051. APPLICABILITY. (a) This subchapter applies
only to a county:
(1) with a population of one million or more that
adopted Chapter 174 after January 1, 2004; or
(2) with a population of 2.8 million or more.
(b) The definitions assigned by Subchapter B apply to this
subchapter.
Sec. 158.052. REMOVAL OF COMMISSION MEMBER. (a) If at a
meeting held for that purpose the commissioners court of the county
finds that a commission member is guilty of misconduct in office,
the commissioners court may remove the member. The member may
request that the meeting be held as an open hearing in accordance
with Chapter 551, Government Code.
(b) If a commission member is indicted or charged by
information with a criminal offense involving moral turpitude, the
member shall be automatically suspended from office until the
disposition of the charge. Unless the member pleads guilty or is
found to be guilty, the member shall resume office at the time of
disposition of the charge.
(c) The initial appointing authority under Section 158.034
may appoint a substitute commission member during a period of
suspension. If a member pleads guilty to or is found to be guilty of
a criminal offense involving moral turpitude, the governing body
shall appoint a replacement commission member to serve the
remainder of the disqualified member's term of office.
Sec. 158.053. INTERNAL INVESTIGATION. (a) In this
section:
(1) "Complainant" means a person claiming to be the
victim of misconduct by an employee.
(2) "Investigation" means an administrative
investigation, conducted by the sheriff's department, of alleged
misconduct by an employee that could result in punitive action
against that person.
(3) "Investigator" means an agent or employee of the
sheriff's department who is assigned to conduct an investigation.
(4) "Normally assigned working hours" includes those
hours during which an employee is actually at work or at the
person's assigned place of work, but does not include any time when
the person is off duty on authorized leave, including sick leave.
(5) "Punitive action" means a disciplinary
suspension, termination, indefinite suspension, demotion in rank,
reprimand, or any combination of those actions.
(b) An investigator may interrogate an employee who is the
subject of an investigation only during the employee's normally
assigned working hours unless:
(1) the seriousness of the investigation, as
determined by the employee's department head or the department
head's designee, requires interrogation at another time; and
(2) the employee is compensated for the interrogation
time on an overtime basis.
(c) The department head may not consider work time missed
from regular duties by an employee due to participation in the
conduct of an investigation in determining whether to impose a
punitive action or in determining the severity of a punitive
action.
(d) An investigator may not interrogate an employee who is
the subject of an investigation or conduct any part of the
investigation at that person's home without that person's
permission.
(e) A person may not be assigned to conduct an investigation
if the person is the complainant, the ultimate decision-maker
regarding disciplinary action, or a person who has any personal
involvement regarding the alleged misconduct. An employee who is
the subject of an investigation has the right to inquire and, on
inquiry, to be informed of the identities of each investigator
participating in an interrogation of the employee.
(f) Before an investigator may interrogate an employee who
is the subject of an investigation, the investigator must inform
the employee in writing of the nature of the investigation and the
name of each person who complained about the employee concerning
the matters under investigation. An investigator may not
interrogate an employee based on a complaint by a complainant who
is not a peace officer unless the complainant verifies the
complaint in writing before a public officer who is authorized by
law to take statements under oath. In an investigation authorized
under this subsection, an investigator may interrogate an employee
about events or conduct reported by a witness who is not a
complainant without disclosing the name of the witness. Not later
than the 48th hour before the hour on which an investigator begins
to interrogate an employee regarding an allegation based on a
complaint, affidavit, or statement, the investigator shall give the
employee a copy of the affidavit, complaint, or statement. An
interrogation may be based on a complaint from an anonymous
complainant if the departmental employee receiving the anonymous
complaint certifies in writing, under oath, that the complaint was
anonymous. This subsection does not apply to an on-the-scene
investigation that occurs immediately after an incident being
investigated if the limitations of this subsection would
unreasonably hinder the essential purpose of the investigation or
interrogation. If the limitation would hinder the investigation or
interrogation, the employee under investigation must be furnished,
as soon as practicable, a written statement of the nature of the
investigation, the name of each complaining party, and the
complaint, affidavit, or statement.
(g) An interrogation session of an employee who is the
subject of an investigation may not be unreasonably long. In
determining reasonableness, the gravity and complexity of the
investigation must be considered. The investigators shall allow
reasonable interruptions to permit the employee to attend to
personal physical necessities.
(h) In an investigation or interrogation conducted under
this section in which an employee is to be interviewed concerning an
alleged act which, if proven, may result in any punitive action, the
employee under investigation shall be afforded a reasonable
opportunity and facilities to contact and consult privately with an
attorney or a representative from the employee organization
representing the majority of sheriff department employees before
being interviewed. The attorney or representative may be present
during the interview. An attorney or representative may not be a
person who is related to the respondent, within the third degree by
consanguinity or the second degree by affinity, or an employee
involved in the incident being investigated. At any time during the
interview the employee under investigation may request to consult
with the attorney or representative in private before continuing
the interview.
(i) An investigator may not threaten an employee who is the
subject of an investigation with punitive action during an
interrogation. However, an investigator may inform an employee
that failure to truthfully answer reasonable questions directly
related to the investigation or to fully cooperate in the conduct of
the investigation may result in punitive action.
(j) If prior notification of intent to record an
interrogation is given to the other party, either the investigator
or the employee who is the subject of an interrogation may record
the interrogation. The employee is entitled to a copy of the
recording of an interrogation described by this subsection at the
employee's expense.
(k) If an investigation does not result in punitive action
against an employee but does result in a written reprimand or an
adverse finding or determination regarding that person, the
reprimand, finding, or determination may not be placed in that
person's personnel file unless the employee is first given an
opportunity to read and sign the document. If the employee refuses
to sign the reprimand, finding, or determination, it may be placed
in the personnel file with a notation that the person refused to
sign it. An employee may respond in writing to a reprimand,
finding, or determination that is placed in the person's personnel
file under this subsection by submitting a written response to the
department head not later than the 10th day after the date the
employee is asked to sign the document. The response shall be
placed in the personnel file. An employee who receives a punitive
action and who elects not to appeal the action may file a written
response as prescribed by this subsection not later than the 10th
day after the date the person is given written notice of the
punitive action from the department head.
(l) If the department head or an investigator violates a
provision of this section while conducting an investigation, the
sheriff's department shall reverse any punitive action taken
pursuant to the investigation and reverse any reprimand, and any
information obtained during the investigation shall be
specifically excluded from introduction into evidence in any
proceeding against the employee.
Sec. 158.054. HEARING EXAMINERS. (a) A written notice for
a promotional bypass or the letter of disciplinary action, as
applicable, issued to an employee must state that in an appeal of an
indefinite suspension, a suspension, a promotional bypass, or a
recommended demotion, the appealing employee may elect to appeal to
an independent third-party hearing examiner instead of to the
commission. The letter must also state that if the employee elects
to appeal to a hearing examiner, the person waives all rights to
appeal to a district court except as provided by Subsection (j).
(b) To exercise the choice of appealing to a hearing
examiner, the appealing employee must submit to the sheriff or the
sheriff's designee a written request as part of the original notice
of appeal required under this chapter stating the person's decision
to appeal to an independent third-party hearing examiner.
(c) The hearing examiner's decision is final and binding on
all parties. If the employee decides to appeal to an independent
third-party hearing examiner, the person automatically waives all
rights to appeal to a district court except as provided by
Subsection (j).
(d) If the appealing employee chooses to appeal to a hearing
examiner, the employee and the sheriff or the sheriff's designee
shall first attempt to agree on the selection of an impartial
hearing examiner. If the parties do not agree on the selection of a
hearing examiner within 10 days after the date the appeal is filed,
the sheriff shall immediately request a list of seven qualified
neutral arbitrators from the American Arbitration Association or
the Federal Mediation and Conciliation Service, or their successors
in function. The employee and the sheriff or the sheriff's designee
may agree on one of the seven neutral arbitrators on the list. If
they do not agree within five working days after the date they
received the list, each party or the party's designee shall
alternate striking a name from the list and the name remaining is
the hearing examiner. The parties or their designees shall agree on
a date for the hearing.
(e) The appeal hearing shall begin as soon as the hearing
examiner can be scheduled. If the hearing examiner cannot begin the
hearing within 45 calendar days after the date of selection, the
employee may, within two days after learning of that fact, call for
the selection of a new hearing examiner using the procedure
prescribed by Subsection (d).
(f) In each hearing conducted under this section, the
hearing examiner has the same duties and powers as the commission,
including the right to issue subpoenas.
(g) In a hearing conducted under this section, the parties
may agree to an expedited hearing procedure. Unless otherwise
agreed by the parties, in an expedited procedure the hearing
examiner shall render a decision on the appeal within 10 days after
the date the hearing ended.
(h) In an appeal that does not involve an expedited hearing
procedure, the hearing examiner shall make a reasonable effort to
render a decision on the appeal within 30 days after the date the
hearing ends or the briefs are filed. The hearing examiner's
inability to meet the time requirements imposed by this section
does not affect the hearing examiner's jurisdiction, the validity
of the disciplinary action, or the hearing examiner's final
decision.
(i) The hearing examiner's fees and expenses are shared
equally by the appealing employee and by the department. The costs
of a witness are paid by the party who calls the witness.
(j) A district court may hear an appeal of a hearing
examiner's award only on the grounds that the hearing examiner was
without jurisdiction or exceeded the hearing examiner's
jurisdiction or that the order was procured by fraud, collusion, or
other unlawful means. An appeal must be brought in the district
court having jurisdiction in the county in which the sheriff's
department is located.
Sec. 158.055. COMMISSION INVESTIGATIONS AND INSPECTIONS.
(a) The commission or a commission member designated by the
commission may investigate and report on all matters relating to
the enforcement and effect of this subchapter and any rules adopted
under this subchapter and shall determine if the subchapter and
rules are being obeyed.
(b) During an investigation, the commission or the
commission member may:
(1) administer oaths;
(2) issue subpoenas to compel the attendance of
witnesses and the production of books, papers, documents, and
accounts relating to the investigation; and
(3) authorize the deposition of witnesses residing
inside or outside the state.
(c) A deposition taken in connection with an investigation
under this section must be taken in the manner prescribed by law for
taking a similar deposition in a civil action in federal district
court.
(d) An oath administered or a subpoena issued under this
section has the same force and effect as an oath administered by a
magistrate in the magistrate's judicial capacity.
(e) All subpoenaed witnesses shall appear before the
commission and provide testimony. The commission may not refuse to
hear the testimony of a witness once the subpoena has been issued.
(f) A person who fails to respond to a subpoena issued under
this section commits an offense punishable as prescribed by Section
158.056(b).
Sec. 158.056. CRIMINAL PENALTY FOR VIOLATION OF SUBCHAPTER.
(a) An employee commits an offense if the person violates this
subchapter.
(b) An offense under this section is a misdemeanor
punishable by a fine of not less than $500 or more than $1,000,
confinement in the county jail for not more than 30 days, or both.
Sec. 158.057. REINSTATEMENT. (a) If the commission, a
hearing examiner, or a district court orders that an employee
terminated or suspended without pay be reinstated, the county
shall, before the end of the second full pay period after the date
the person is reinstated, repay to the person all wages lost as a
result of the suspension.
(b) If the county does not fully repay all lost wages to the
sheriff's employee as provided by this section, the county shall
pay the person an amount equal to the lost wages plus accrued
interest.
(c) Interest under Subsection (b) accrues beginning on the
date of the sheriff's employee reinstatement at a rate equal to
three percent plus the rate for court judgments under Chapter 304,
Finance Code, that is in effect on the date of the person's
reinstatement.
(d) An employer who intentionally refuses for at least 10
days to obey a commission order to reinstate a terminated,
suspended, or indefinitely suspended employee commits an offense
punishable under Section 158.056(b).
Sec. 158.058. DECISIONS AND RECORDS. (a) Each commission
member shall vote and sign a decision issued by the commission.
(b) The commission shall keep records of each hearing or
case that comes before the commission and copies of the records
shall be provided to the employee on request.
(c) Each rule, opinion, directive, decision, or order
issued by the commission must be written and constitutes a public
record that the commission shall retain on file.
Sec. 158.059. LEGISLATIVE LEAVE. (a) An employee is
entitled to legislative leave without pay to appear before or to
petition a governmental body during a regular or special session of
that body as prescribed by this section.
(b) To be eligible for legislative leave, an employee must
submit a written application to the county on or before the 30th day
before the date the employee intends to begin the legislative
leave. The application must indicate the length of the requested
leave and state that the employee is willing to reimburse the county
for any wages, pension, or other costs the county will incur as a
result of the leave. The length of the requested leave may not
exceed the length of the session.
(c) Within 30 days after the date the county receives the
application, the county shall notify the employee in writing of the
actual amount of money required to offset the costs the county will
incur. The county may require the employee to post the money before
granting the leave.
(d) The county shall grant legislative leave to an employee
who submits an application as prescribed by this section and who
complies with any requirement relating to payment of costs unless
an emergency exists or unless granting the leave will result in an
insufficient number of employees to carry out the normal functions
of the sheriff's department.
(e) If the county sheriff determines that granting a
legislative leave will result in an insufficient number of
employees to carry out the normal functions of the department,
another employee may volunteer to work in the applicant's place on
an exchange of time basis as long as no overtime results. If an
employee volunteers to work in the applicant's place and no
overtime will result, the sheriff shall allow the volunteer to work
in the applicant's place. If the volunteer work will solve the
problem of having an insufficient number of employees, the county
shall grant the legislative leave.
(f) Legislative leave is not a break in service for any
purpose, including the determination of seniority, promotions,
sick leave, vacations, or retirement.
(g) Legislative leave granted under this section to an
employee to attend a session of the Congress of the United States
shall be granted for a period not to exceed 30 percent of the
applicant's total annual working days during each year in which
leave is requested.
Sec. 158.060. LEGISLATIVE LEAVE ACCOUNT. (a) An employee
may donate not more than one hour for each month of accumulated
vacation or compensatory time to an employee organization. The
county shall establish and maintain a legislative leave time
account for the employee organization representing the majority of
employees in the sheriff's department.
(b) The employee must authorize the donation in writing on a
form provided by the employee organization and approved by the
county. After receiving the signed authorization on an approved
form, the county shall transfer donated time to the account monthly
until the county receives the employee's written revocation of the
authorization.
(c) Only an employee who is a member of the employee
organization described by Subsection (a) may use for legislative
leave purposes the time donated to that employee organization. An
employee may use for legislative leave purposes the time donated
under this section in lieu of reimbursing the county under Section
158.059.
(d) A request to use for legislative leave purposes the time
in an employee organization's time account must be in writing and
submitted to the county by the president or the equivalent officer
of the employee organization or by that officer's designee.
(e) The county shall account for the time donated to the
account and used from the account. The county may:
(1) determine and credit the actual cash value of the
donated time in the account and determine and deduct the actual cash
value of time used from the account for legislative leave purposes;
or
(2) credit and debit an account on an hour-for-hour
basis regardless of the cash value of the time donated or used.
(f) An employee organization may not use for legislative
leave purposes more than 4,000 hours from its time account under
this section in a calendar year. This section does not prevent an
employee organization from accumulating more than 4,000 hours. This
section only limits the total number of donated hours that an
employee organization may use in any calendar year.
Sec. 158.061. APPEAL TO DISTRICT COURT. Each appeal to a
district court under this subchapter shall be advanced on the
district court docket and given a preference setting over all other
cases.
Sec. 158.062. SPECIAL COUNSEL. A civil service commission
shall retain special counsel for the purpose of advising or
representing the commission as determined by the commission. The
commissioners court shall include in the annual county budget a
reasonable amount of funding, on the request of the civil service
commission, to employ special counsel. The employment is for the
time and on the terms that the commission considers necessary.
SECTION 3. Sections 158.035(c) and 158.0351, Local
Government Code, are repealed.
SECTION 4. This Act takes effect September 1, 2009.