81R4645 SLB-D
By: Menendez H.B. No. 3116
A BILL TO BE ENTITLED
AN ACT
relating to the creation of an alternate sheriff's department civil
service system in certain counties; creating offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 158, Local Government Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. ALTERNATE SHERIFF'S DEPARTMENT CIVIL SERVICE SYSTEM
IN COUNTIES WITH POPULATION OVER 50,000
Sec. 158.101. PURPOSE. (a) The purpose of this subchapter
is to secure efficient sheriff's departments and county
correctional systems composed of capable personnel who are free
from political influence and who have permanent employment tenure
as public servants.
(b) The members of the Sheriff's Department Civil Service
Commission shall administer this subchapter in accordance with this
purpose.
Sec. 158.102. COUNTIES COVERED BY SUBCHAPTER. (a) This
subchapter applies only to a county that:
(1) has a population of 50,000 or more; and
(2) has voted to adopt this subchapter.
(b) Population under Subsection (a)(1) is determined by the
most recent:
(1) federal decennial census; or
(2) annual population estimate provided by the state
demographer under Chapter 468, Government Code, if that estimate is
more recent than the most recent federal decennial census.
(c) If this subchapter applies to a county as provided by
Subsection (a), the application of this subchapter to the county is
not affected if the county's population changes and the county no
longer meets the population requirement of Subsection (a)(1).
(d) A civil service system created under this subchapter
applies to the county jailers and deputy sheriffs employed by the
county in which the civil service system is created and replaces any
previously existing system covering those employees. A civil
service system created under this subchapter does not affect
employees of a county, including employees of a sheriff's
department, who are covered by a civil service system created under
Subchapter A or another law and who are not deputy sheriffs or
county jailers.
Sec. 158.103. DEFINITIONS. In this subchapter:
(1) "Commission" means the Sheriff's Department Civil
Service Commission.
(2) "Department" means a sheriff's department or
county correctional system.
(3) "Director" means the director of the sheriff's
department civil service.
(4) "Employee" means a deputy sheriff or a county
jailer.
Sec. 158.104. ELECTION TO ADOPT OR REPEAL SUBCHAPTER. (a) A
county may hold an election to adopt or repeal this subchapter as
provided by this section.
(b) If the commissioners court of the county receives a
petition requesting an election that is signed by a number of
qualified 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 subchapter 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) The ballot shall be printed to provide for voting for or
against the proposition: "Adoption of the sheriff's department
civil service law." If a majority of the votes received in the
election are in favor of adoption of this subchapter, the
commissioners court shall implement this subchapter.
(d) 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. To be valid, a petition for a subsequent election must
contain the signatures of a number of qualified voters of the county
equal to at least 20 percent of the number of voters who voted in the
most recent county election. Any subsequent election must be held
at the next general county election that occurs after the petition
is filed.
(e) If the commissioners court of a county that has operated
under this subchapter for at least one year receives a petition
requesting an election to repeal this subchapter that is signed by
at least 10 percent of the qualified voters of the county, the
commissioners court shall order an election submitting to the
voters the question on whether this subchapter should be repealed.
If a majority of the qualified voters vote to repeal this
subchapter, this subchapter is void in that county.
Sec. 158.105. STATUS OF EMPLOYEES IF SUBCHAPTER ADOPTED.
Each employee of the sheriff's department serving in a county that
adopts this subchapter who has been in the service of the sheriff's
department for more than six months at the time this subchapter 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. 158.106. IMPLEMENTATION: COMMISSION. (a) On adoption
of this subchapter, the Sheriff's Department Civil Service
Commission is established in the county. The county judge of the
county shall appoint the members of the commission within 60 days
after the date this subchapter is adopted. Within 30 days after the
date the county's first full fiscal year begins after the date of
the adoption election, the commissioners court of the county shall
implement this subchapter.
(b) The commission consists of three members appointed by
the county judge and confirmed by the commissioners court of the
county. Members serve staggered two-year terms with the term of one
or two members expiring each year. If a vacancy occurs or if an
appointee fails to qualify within 10 days 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. When the system is first adopted, the county
judge shall designate one member to serve a one-year term and two
members to serve a two-year term.
(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 who has resided in 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 employees covered by this subchapter
through a joint appointment to the commission and board.
(f) If a county or the sheriff's department has a civil
service commission immediately before this subchapter 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 subchapter. As the terms
of the members of the previously existing commission expire, the
county judge shall appoint members as prescribed by this section,
including making initial appointments in accordance with
Subsection (b).
(g) Initial members shall elect a chair and a vice chair
within 10 days after the date all members have qualified. Each
January, the members shall elect a chair and a vice chair.
(h) The commissioners court of the county shall provide to
the commission adequate and suitable office space in which to
conduct business.
(i) The county judge commits an offense if the county 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) The county judge, the sheriff, or another county
official commits an offense if the person knowingly or
intentionally refuses to implement this subchapter or attempts to
obstruct the enforcement of this subchapter. An offense under this
subsection is a misdemeanor punishable by a fine of not less than
$100 or more than $200.
Sec. 158.107. REMOVAL OF COMMISSION MEMBER. (a) If at a
meeting held for that purpose the commissioners court of the county
finds that a civil service 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 civil
service 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 commissioners court shall
appoint a replacement member to serve the remainder of the
disqualified member's term of office.
Sec. 158.108. 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 an employee. The rules must comply
with the grounds for removal prescribed by Section 158.151.
(d) The commission shall publish each rule it adopts and
each classification and seniority list for the department. 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 of the county 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 commissioner, if
the county has an elected commissioner, and to the sheriff;
(2) posts a copy of the rule for a seven-day period at
a conspicuous place in the sheriff's department headquarters or
county jail; and
(3) mails a copy of the rule to each other sheriff's
department or county correctional facility.
(f) The director shall keep copies of all rules for free
distribution to members of the department who request copies and
for inspection by any interested person.
Sec. 158.109. 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) 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
158.115.
Sec. 158.110. COMMISSION APPEAL PROCEDURE. (a) Except as
otherwise provided by this subchapter, if an employee wants to
appeal to the commission from an action for which an appeal or
review is provided by this subchapter, the employee must file an
appeal with the commission within 10 days 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 a
statement denying the truth of the charge as made, a statement
taking exception to the legal sufficiency of the charge, a
statement alleging that the recommended action does not fit the
offense or alleged offense, or a combination of these statements.
(c) In each hearing, appeal, or review of any kind in which
the commission performs an adjudicatory function, the affected
employee is entitled to be represented by counsel or a person the
employee 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 employee may request the commission to
subpoena any books, records, documents, papers, accounts, or
witnesses that the employee considers pertinent to the case. The
employee 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 employee 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 subchapter 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. 158.111. 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 must be written and constitutes a public
record that the commission shall retain on file.
Sec. 158.112. DIRECTOR. (a) On adoption of this
subchapter, the office of director of Sheriff's Department Civil
Service Commission 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
158.106(c).
(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 subchapter takes effect in a
county, the county or the sheriff's department 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 subchapter.
Sec. 158.113. APPOINTMENT AND REMOVAL OF PERSON CLASSIFIED
IMMEDIATELY BELOW SHERIFF. (a) If approved by the commissioners
court of the county by resolution or order, the sheriff of a county
in which at least four classifications exist below the sheriff may
appoint each person occupying an authorized position in the
classification immediately below that of sheriff, as prescribed by
this section. The classification immediately below that of sheriff
may include a person who has a different title but has the same pay
grade.
(b) A person appointed to a position in the classification
immediately below that of sheriff must:
(1) be employed by the county's sheriff's department
as a deputy sheriff or county jailer; and
(2) have at least two years' continuous service in that
department as a deputy sheriff or county jailer.
(c) The sheriff shall make each appointment under this
section within 90 days after the date a vacancy occurs in the
position.
(d) A person appointed under this section serves at the
pleasure of the sheriff. A person who is removed from the position
by the sheriff shall be reinstated in the department 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.
(e) If a person appointed under this section is charged with
an offense in violation of civil service rules and indefinitely
suspended by the sheriff, 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.
Sec. 158.114. APPEAL OF COMMISSION DECISION TO DISTRICT
COURT. (a) If an employee is dissatisfied with any commission
decision, the employee may file a petition in district court asking
that the decision be set aside. The petition must be filed within
10 days after the date the final commission decision:
(1) is sent to the employee by certified mail; or
(2) is personally received by the employee 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 subchapter. 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 employee, the court shall
order the county to pay lost wages to the employee.
Sec. 158.115. PENALTY FOR VIOLATION OF SUBCHAPTER. (a) An
employee commits an offense if the person violates this subchapter.
(b) An offense under this section or Section 158.109 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.
Sec. 158.121. CLASSIFICATION; EXAMINATION REQUIREMENT.
(a) The commission shall provide for the classification of all
employees. The commissioners court shall establish the
classifications by order. The commissioners court by order shall
prescribe the number of positions in each classification.
(b) Except for the sheriff and a person the sheriff appoints
in accordance with Section 158.113, each employee 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 subchapter.
(c) Except as provided by Sections 158.113 and 158.126, 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 subchapter.
Sec. 158.122. 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 subchapter. 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. 158.123. ELIGIBILITY FOR BEGINNING POSITION. (a) A
person may not take an entrance examination for a beginning
position in the department unless the person is at least 18 years of
age.
(b) A person may not be certified as eligible for a
beginning position in a department if the person is 45 years of age
or older.
(c) An applicant may not be certified as eligible for a
beginning position with a department 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 employee affected by this subchapter must be able
to read and write English.
Sec. 158.124. 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 city
hall and in the commission's office. The notice must show the
position that is 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. 158.125. ENTRANCE EXAMINATIONS. (a) The commission
shall provide for open, competitive, and free entrance examinations
to provide eligibility lists for beginning positions in the
department. The examinations are open to each person who makes a
proper application and meets the requirements prescribed by this
subchapter.
(b) An eligibility list for a beginning position in the
department 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 department 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) Examinations for beginning positions in the department
may be held at different locations if each applicant takes the same
examination and is examined in the presence of other applicants.
(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 department. 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 any scheduled department 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. 158.126. REAPPOINTMENT AFTER RESIGNATION. The
commission may adopt rules to allow an employee who voluntarily
resigns from the department to be reappointed to the department
without taking another departmental entrance examination.
Sec. 158.127. PROCEDURE FOR FILLING BEGINNING POSITIONS.
(a) When a vacancy occurs in a beginning position in a department,
the sheriff shall request in writing from the commission the names
of suitable persons from the eligibility list. The director shall
certify to the sheriff the names of the three persons having the
highest grades on the eligibility list.
(b) From the three names certified, the sheriff 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 sheriff does not appoint the person having the
highest grade, the sheriff 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 sheriff 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. 158.128. PROBATIONARY PERIOD. (a) A person appointed
to a beginning position in the department must serve a probationary
period of one year beginning on that person's date of employment as
an employee or academy trainee. The commission by rule may extend
the probationary period by not more than six months for a person
who:
(1) is not employed by a department in which a
collective bargaining agreement or a meet-and-confer agreement
currently exists or previously existed; and
(2) is required to attend a basic training academy for
initial certification by the Commission on Law Enforcement Officer
Standards and Education.
(b) During an employee's probationary period, the sheriff
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 subchapter or commission rules.
(c) During an employee'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 an employee serving a
probationary period.
(d) An employee who was appointed in substantial compliance
with this subchapter and who serves the entire probationary period
automatically becomes a full-fledged civil service employee and has
full civil service protection.
Sec. 158.129. ELIGIBILITY FOR PROMOTION. (a) An employee
is not eligible for promotion unless the person has served in that
department in the next lower position or other positions specified
by the commission for at least two years at any time before the date
the promotional examination is held. An employee is not eligible
for promotion to the rank of captain or its equivalent unless the
person has at least four years' actual service in that department.
(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
department.
Sec. 158.130. 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 that is 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. 158.131. ELIGIBILITY FOR DEPARTMENT PROMOTIONAL
EXAMINATION. (a) Each promotional examination is open to each
employee 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 department has adopted a classification plan that
classifies positions on the basis of similarity in duties and
responsibilities, each promotional examination is open to each
employee who has continuously held for at least two years
immediately before the examination date a position 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 employees 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. 158.132. 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 department. Unless a different procedure is
adopted under an alternate promotional system as provided by
Section 158.135, the examinations shall be held substantially as
prescribed by this section.
(b)(1) 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.
(2) 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:
(A) 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
(B) 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.
(c) The examination must be entirely in writing and may not
in any part consist of an oral interview.
(d) 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
department involved in the examination; and
(3) any study course given by the departmental schools
of instruction.
(e) The examination questions must be taken from the sources
posted as prescribed by Section 158.130(a). Employees may suggest
source materials for the examinations.
(f) 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.
(g) 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.
(h) 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.
(i) An offense under Subsection (h) 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. 158.133. 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 employee is entitled to receive one point for each
year of seniority as a classified police officer in that
department, with a maximum of 10 points.
(c) Unless a different procedure is adopted under an
alternate promotional system as provided by Section 158.135, the
grade that must be placed on the eligibility list for each applicant
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 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) Within 24 hours after 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. 158.134. REVIEW AND APPEAL OF PROMOTIONAL EXAMINATION.
(a) On request, each eligible promotional candidate from the
department 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, within five business days, to the commission for review in
accordance with this subchapter. 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. 158.135. ALTERNATE PROMOTIONAL SYSTEM IN DEPARTMENT.
(a) This section does not apply to a county that has adopted
Chapter 174.
(b) On the recommendation of the sheriff and a majority vote
of the employees, 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. The
promotional system must comply with the requirements prescribed by
this section.
(c) The commission shall order the director to conduct an
election and to submit the revised promotional system either to all
employees within the rank immediately below the classification for
which the promotional examination is to be administered or to all
employees.
(d) The director shall hold the election on or after the
30th day after the date notice of the election is posted at the
department. The election shall be conducted throughout each
regular work shift at an accessible location within the department
during a 24-hour period.
(e) The ballot shall contain the specific amendment to the
promotional procedure. Each employee 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 employees voting. A defeated promotional
system amendment may not be placed on a ballot for a vote by the
employees for at least 12 months after the date the prior election
was held, but this provision does not apply if the sheriff
recommends a different proposal to the commission.
(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 working
days after the date the election closes. If approved by the
employees, 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 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 employees
may be submitted to the commission asking that the alternate
promotional system be reconsidered. If a petition is submitted,
the commission shall, within 60 days 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 subchapter 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 subchapter even if
the alternate system is later terminated.
Sec. 158.136. PROCEDURE FOR MAKING PROMOTIONAL
APPOINTMENTS. (a) When a vacancy occurs in a nonentry position
that is not appointed by the sheriff as provided by Section 158.113,
the vacancy shall be filled as prescribed by this section. A
vacancy in a departmental position described by this subsection
occurs on the date the position is vacated by:
(1) resignation;
(2) retirement;
(3) death;
(4) promotion; or
(5) issuance of an indefinite suspension in accordance
with Section 158.152(a).
(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, shall certify to the sheriff the names of the three
persons having the highest grades on that eligibility list. The
commission shall certify the names within 10 days 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.
(c) The commission shall submit names from an existing
eligibility list to the sheriff 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 within 90 days
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 shall fill the vacancy by permanent appointment
from the eligibility list furnished by the commission within 60
days after the date the vacancy occurs. If an eligibility list does
not exist, the sheriff shall fill the vacancy by permanent
appointment from an eligibility list that the commission shall
provide within 90 days after the date the vacancy occurs.
(f) Unless the sheriff has a valid reason for not appointing
the person, the sheriff shall appoint the eligible promotional
candidate having the highest grade on the eligibility list. If the
sheriff has a valid reason for not appointing the eligible
promotional candidate having the highest grade, the sheriff shall
personally discuss the reason with the person being bypassed before
appointing another person. The sheriff 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 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 158.157.
(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 if a vacancy occurs. If the sheriff refuses three times to
appoint a person, 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. 158.137. RECORD OF CERTIFICATION AND APPOINTMENT. (a)
When a person is certified and appointed to a position in the
department, the director shall forward the appointed person's
record to the sheriff. 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. 158.138. TEMPORARY DUTIES IN HIGHER CLASSIFICATION.
(a) The sheriff 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
subchapter may not be construed as a promotion.
Sec. 158.141. SALARY. (a) Except as provided by Section
158.138, all employees in the same classification are entitled to
the same base salary.
(b) In addition to the base salary, each employee 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
158.144;
(3) assignment pay as authorized by Sections 158.142
and 158.143;
(4) certification pay as authorized by Section
158.144;
(5) shift differential pay as authorized by Section
158.147; and
(6) fitness incentive pay as authorized by Section
158.144.
Sec. 158.142. ASSIGNMENT PAY. (a) The commissioners court
of a county may authorize assignment pay for employees who perform
specialized functions in their respective departments.
(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 department.
(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 employee who meets training or education criteria
for an assignment or the order may set criteria that provide for
payment only to an employee in a special assignment.
(d) The sheriff is not eligible for the assignment pay
authorized by this section.
Sec. 158.143. FIELD TRAINING OFFICER ASSIGNMENT PAY. (a)
In this section, "field training officer" means a member of the
department 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 department.
(c) The sheriff is not eligible for the assignment pay
authorized by this section.
Sec. 158.144. CERTIFICATION, EDUCATIONAL INCENTIVE, AND
FITNESS INCENTIVE PAY. (a) If each employee in a county is
afforded an opportunity to qualify for certification, the
commissioners court may authorize certification pay to those
employees 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 employee in a county who meets the criteria, the commissioners
court may authorize educational incentive pay for each employee 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
employee in a county who meets the criteria, the commissioners
court may authorize fitness incentive pay for each employee who
successfully meets the criteria.
(d) The certification pay, educational incentive pay, and
fitness incentive pay are in addition to an employee's regular pay.
Sec. 158.145. ACCUMULATION AND PAYMENT OF SICK LEAVE. (a)
A permanent or temporary employee 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) An employee may accumulate sick leave without limit and
may use the leave if unable to work because of a bona fide illness.
If an ill employee 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) Except as otherwise provided by Section 158.113, an
employee 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 an employee 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 employee for
the accumulated time at the highest permanent pay classification
for which the person was eligible during the last six months of
employment. The employee is paid for the same period for which the
person would have been paid if the person had taken the sick leave,
but the payment 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
employees, all unpaid compensation, including all accumulated sick
leave, due at the time of death to an active employee 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 employee
designated in writing to receive the compensation and filed with
the commission before the person's death;
(2) to the employee's widow or widower;
(3) to the employee's child or children and to the
descendants of a deceased child, by representation;
(4) to the employee's parents or to their survivors; or
(5) to the properly appointed legal representative of
the employee'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. 158.146. VACATIONS. (a) Each employee is entitled to
earn a minimum of 15 working days' vacation leave with pay in each
year.
(b) In computing the length of time an employee 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 county's governing body, an
employee may not accumulate vacation leave from year to year.
Sec. 158.147. SHIFT DIFFERENTIAL PAY. (a) The
commissioners court of a county may authorize shift differential
pay for employees 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 department.
Sec. 158.151. CAUSE FOR REMOVAL OR SUSPENSION. A
commission rule prescribing cause for removal or suspension of an
employee 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 employee 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; or
(11) violation of an applicable department rule or
special order.
Sec. 158.152. DISCIPLINARY SUSPENSIONS. (a) The sheriff
may suspend an employee under the sheriff'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.
(b) If the sheriff suspends an employee, the sheriff shall,
within 120 hours after the hour of suspension, file a written
statement with the commission giving the reasons for the
suspension. The sheriff shall immediately deliver a copy of the
statement in person to the suspended employee.
(c) The copy of the written statement must inform the
suspended employee that if the person wants to appeal to the
commission, the person must file a written appeal with the
commission within 10 days after the date the person receives the
copy of the statement.
(d) The written statement filed by the sheriff with the
commission must point out each civil service rule alleged to have
been violated by the suspended employee and must describe the
alleged acts of the person that the sheriff contends are in
violation of the civil service rules. It is not sufficient for the
sheriff merely to refer to the provisions of the rules alleged to
have been violated.
(e) If the sheriff does not specifically point out in the
written statement the act or acts of the employee that allegedly
violated the civil service rules, the commission shall promptly
reinstate the person.
(f) If offered by the sheriff, the employee 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 employee must accept the offer within five
working days 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 within 15 days 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 subchapter, the sheriff may not
complain of an act that occurred earlier than the 180th day
preceding the date the sheriff suspends the employee. If the act is
allegedly related to criminal activity including the violation of a
federal, state, or local law for which the employee is subject to a
criminal penalty, the sheriff may not complain of an act that is
discovered earlier than the 180th day preceding the date the
sheriff suspends the employee. The sheriff must allege that the act
complained of is related to criminal activity.
Sec. 158.153. APPEAL OF DISCIPLINARY SUSPENSION. (a) If a
suspended employee 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 person and the commission may agree to postpone the
hearing for a definite period.
(b) In a hearing conducted under this section, the sheriff
is restricted to the sheriff'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 employee is:
(1) permanently dismissed from the department;
(2) temporarily suspended from the department; or
(3) restored to the person's former position or status
in the department'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 suspended employee is restored
to the position or class of service from which the person was
suspended, the employee 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 person was suspended;
and
(2) 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. Standard payroll
deductions, if any, for retirement and other benefits restored
shall be made from the compensation paid, and the county shall make
its standard corresponding contributions, if any, to the retirement
system or other applicable benefit systems.
(f) The commission may suspend or dismiss an employee only
for violation of civil service rules and only after a finding by the
commission of the truth of specific charges against the employee.
Sec. 158.154. DEMOTIONS. (a) If the sheriff wants an
employee under the sheriff's supervision or jurisdiction to be
involuntarily demoted, the sheriff may recommend in writing to the
commission that the commission demote the employee.
(b) The sheriff must include in the recommendation for
demotion the reasons the sheriff recommends the demotion and a
request that the commission order the demotion. The sheriff must
immediately furnish a copy of the recommendation in person to the
affected employee.
(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 employee
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 employee is entitled to a full and complete public
hearing, and the commission may not demote an employee without that
public hearing.
(e) A voluntary demotion in which the employee has accepted
the terms of the demotion in writing is not subject to this section.
Sec. 158.155. UNCOMPENSATED DUTY OF EMPLOYEES. (a) In this
section, "uncompensated duty" means days of work without pay that
are in addition to regular or normal work days.
(b) The sheriff may assign an employee under the sheriff's
jurisdiction or supervision to uncompensated duty. The sheriff may
not impose uncompensated duty unless the employee agrees to accept
the duty. If the employee agrees to accept uncompensated duty, the
sheriff 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) An employee 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 an
employee 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 department in
determining eligibility for a promotional examination.
(e) Except as provided by this section, an employee who
performs assigned uncompensated duty retains all rights and
privileges of the person's position in the department and of the
person's employment by the county.
Sec. 158.156. PROCEDURES AFTER FELONY INDICTMENT OR
MISDEMEANOR COMPLAINT. (a) If an employee is indicted for a felony
or officially charged with the commission of a Class A or B
misdemeanor, the sheriff 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 shall notify the suspended employee 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 may, within 30 days after the date of final disposition of
the indictment or complaint, bring a charge against the employee
for a violation of civil service rules.
(d) An employee 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 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 temporarily suspends an employee under
this section and the employee is not found guilty of the indictment
or complaint in a court of competent jurisdiction, the employee 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 an employee has not violated civil service rules
and does not negate the charges that may have been or may be brought
against the employee by the sheriff.
(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 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
department if the sheriff considers delay to be necessary to
protect a criminal investigation of the person's conduct. If the
sheriff intends to order an indefinite suspension after the 180-day
period, the sheriff 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.
Sec. 158.157. HEARING EXAMINERS. (a) In addition to the
other notice requirements prescribed by this subchapter, the
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 director a
written request as part of the original notice of appeal required
under this subchapter 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 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 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 employee and the sheriff, or their designees, 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 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 department is located.
Sec. 158.171. LEAVES OF ABSENCE; RESTRICTION PROHIBITED.
(a) If a sufficient number of employees are available to carry out
the normal functions of the department, an employee 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 and better working conditions for department personnel.
(b) A rule that affects an employee's constitutional right
to appear before or to petition the legislature may not be adopted.
Sec. 158.172. MILITARY LEAVE OF ABSENCE. (a) On written
application of an employee, the commission shall grant the person a
military leave of absence without pay, subject to Section 158.175,
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 employee enters.
(b) The commission shall grant to an employee a leave of
absence for initial training or annual duty in the military
reserves or the national guard.
(c) While an employee who received a military leave of
absence serves in the military, the commission shall fill the
person's position in the department in accordance with this
subchapter. The employee who fills the position is subject to
replacement by the person who received the military leave at the
time the person returns to active duty in the department.
(d) On termination of active military service, an employee
who received a military leave of absence under this section is
entitled to be reinstated to the position that the person held in
the department 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 within 90
days after the date the person is discharged from military service.
(e) On reinstatement, the employee shall receive full
seniority credit for the time spent in the military service.
(f) If the reinstatement of an employee who received a
military leave of absence causes that person's replacement to be
returned to a lower position in grade or compensation, the replaced
person has a preferential right to a subsequent appointment or
promotion to the same or a similar position from which the person
was demoted. This preferential right has priority over an
eligibility list and is subject to the replaced person remaining
physically and mentally fit to discharge the duties of that
position.
(g) If an employee 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 employee received
through the county on the date the employee was called to active
military duty until the county receives written instructions from
the employee to change or discontinue the coverage.
(h) In addition to other procedures prescribed by this
section, an employee may, without restriction as to the amount of
time, voluntarily substitute for an employee described by Sections
158.175(b)(1) and (2) who has been called to active federal
military duty for a period expected to last 12 months or longer. An
employee who voluntarily substitutes under this subsection must be
qualified to perform the duties of the absent employee.
Sec. 158.173. LINE OF DUTY ILLNESS OR INJURY LEAVE OF
ABSENCE. (a) A county shall provide to an employee 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 employee'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 an employee 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 employee may use accumulated sick leave,
vacation time, and other accrued benefits before the person is
placed on temporary leave.
(d) If an employee 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, an employee
shall be reinstated at the same rank and with the same seniority the
person had before going on temporary leave. Another employee may
voluntarily do the work of an injured employee until the person
returns to duty.
Sec. 158.174. REAPPOINTMENT AFTER RECOVERY FROM
DISABILITY. With the commission's approval and if otherwise
qualified, an employee 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. 158.175. MILITARY LEAVE TIME ACCOUNTS. (a) A county
shall maintain military leave time accounts for the department and
must maintain a separate military leave time account for each
department.
(b) A military leave time account shall benefit an employee
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 an employee 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) An employee may donate any amount of accumulated
vacation, holiday, sick, or compensatory leave time to the military
leave time account in that employee's department to help provide
salary continuation for employees who qualify as eligible
beneficiaries of the account under Subsection (b). An employee who
wishes to donate time to an account under this section must
authorize the donation in writing on a form provided by the
department and approved by the county.
(d) A county shall equally distribute the leave time donated
to a military leave time account among all employees 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.
Sec. 158.181. DETERMINATION OF PHYSICAL AND MENTAL FITNESS.
(a) If a question arises as to whether an employee is sufficiently
physically or mentally fit to continue the person's duties, the
employee 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 the employee
questions the report, the commission shall appoint a physician,
psychiatrist, or psychologist, as appropriate, to examine the
employee and to submit a report to the commission, the sheriff, and
the person.
(c) If the report of the appointed physician, psychiatrist,
or psychologist, as appropriate, disagrees with the report of the
employee'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 employee. The board's
findings as to the person's fitness for duty shall determine the
issue.
(d) The employee 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. 158.182. EFFICIENCY REPORTS. (a) The commission may
develop proper procedures and rules for semiannual efficiency
reports and grades for each employee.
(b) If the commission collects efficiency reports on
employees, the commission shall provide each person with a copy of
that person's report.
(c) Within 10 calendar days after the date an employee
receives the copy of the person's efficiency report, the person may
make a statement in writing concerning the efficiency report. The
statement shall be placed in the person's personnel file with the
efficiency report.
Sec. 158.183. EMERGENCY APPOINTMENT OF TEMPORARY
EMPLOYEES. (a) If a county is unable to recruit qualified
employees because of the maximum age limit prescribed by Section
158.123 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 158.185.
Sec. 158.185. FORCE REDUCTION AND REINSTATEMENT LIST. (a)
If a commissioners court issues an order that vacates or abolishes a
department position, the employee 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 employees who have the least seniority in a position
shall be demoted to the position immediately below the vacated or
abolished position. If an employee is demoted under this
subsection without charges being filed against the person for
violation of civil service rules, the employee shall be placed on a
position reinstatement list in order of seniority. If the vacated
or abolished position is filled or re-created within one year after
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 an employee must be dismissed from the department,
the employee with the least seniority shall be dismissed. If an
employee is dismissed under this subsection without charges being
filed against the person for violation of civil service rules, the
employee 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. 158.186. POLITICAL ACTIVITIES. (a) While in uniform
or on active duty, an employee 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) An employee may not be required to contribute to a
political fund or to render a political service to a person or
party. An employee 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 subchapter.
(e) Except as expressly provided by this section, the
commission or the commissioners court may not restrict an
employee's right to engage in a political activity.
Sec. 158.187. STRIKE PROHIBITION. (a) An employee may not
engage in a strike against the county that employs the employee.
(b) In addition to the penalty prescribed by Section
158.115, if an employee is convicted of an offense for violating
this section, the person shall be automatically released and
discharged from the department. After the person is discharged
from the department, the person may not receive any pay or
compensation from public funds used to support the department.
Sec. 158.188. 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. 158.189. PERSONNEL FILE. (a) The director or the
director's designee shall maintain a personnel file on each
employee. The personnel file must contain any letter, memorandum,
or document relating to:
(1) a commendation, congratulation, or honor bestowed
on the employee by a member of the public or by the employing
department for an action, duty, or activity that relates to the
person's official duties;
(2) any misconduct by the employee if the letter,
memorandum, or document is from the employing department and if the
misconduct resulted in disciplinary action by the employing
department in accordance with this chapter; and
(3) the periodic evaluation of the employee by a
supervisor.
(b) A letter, memorandum, or document relating to alleged
misconduct by the employee may not be placed in the person's
personnel file if the employing department 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 employee or to alleged
misconduct by the employee 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 an employee's personnel
file, the director or the director's designee shall, within 30 days
after the date of the inclusion, notify the affected employee. The
employee 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 employee 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 employee 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 an employee's personnel file without
first obtaining the person's written permission, unless the release
of the information is required by law.
(g) A department may maintain a personnel file on an
employee employed by the department for the department's use, but
the department may not release any information contained in the
department file to any agency or person requesting information
relating to an employee. The department shall refer to the director
or the director's designee a person or agency that requests
information that is maintained in the employee's personnel file.
SECTION 2. The change in law made by Section 158.156, Local
Government Code, as added by this Act, applies only to an employee
who is indicted for a felony, charged with the commission of a Class
A or B misdemeanor, or charged with the violation of a civil service
rule based on an act classified as a felony or a Class A or B
misdemeanor on or after the effective date of this Act. An employee
who is indicted for a felony, charged with a Class A or B
misdemeanor, or charged with the violation of a civil service rule
based on an act classified as a felony or a Class A or B misdemeanor
before that date is covered by the law in effect when the employee
was indicted or charged, and the former law is continued in effect
for that purpose.
SECTION 3. This Act takes effect September 1, 2009.