86R12282 JCG-D
By: Muñoz, Jr. H.B. No. 3894
A BILL TO BE ENTITLED
AN ACT
relating to sheriff's department civil service systems in certain
counties; creating criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 158.034, Local Government Code, is
amended by amending Subsection (e) and adding Subsection (f) to
read as follows:
(e) To be eligible for appointment to the commission, a
person must:
(1) be at least 25 years old; [and]
(2) have resided in the county for the three years
immediately preceding the date on which the person's term will
begin;
(3) be a United States citizen;
(4) be of good moral character;
(5) not have held a public office in the three years
immediately preceding the date on which the person's term will
begin; and
(6) not have served on the commission for more than six
years.
(f) Subsection (e)(5) does not prohibit the appointment of a
member if the only public office held by the member in the preceding
three years is membership on the commission.
SECTION 2. Subchapter B, Chapter 158, Local Government
Code, is amended by adding Sections 158.0341 through 158.0344,
158.0352, and 158.0353 to read as follows:
Sec. 158.0341. 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 is automatically suspended from office until the disposition
of the charge. Unless the member pleads guilty or is found to be
guilty, the member shall resume office at the time of disposition of
the charge.
(c) The commissioners court may appoint a substitute
commission member during a period of suspension.
(d) If a commission member pleads guilty to or is found to be
guilty of a criminal offense involving moral turpitude, the
commissioners court shall appoint a replacement commission member
to serve the remainder of the disqualified member's term of office.
Sec. 158.0342. 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
158.0343.
Sec. 158.0343. CRIMINAL PENALTY FOR VIOLATION OF
SUBCHAPTER. (a) A person subject to the provisions of this
subchapter 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 $10 or more than $1,000,
confinement in the county jail for not more than 30 days, or both
fine and confinement.
Sec. 158.0344. DECISIONS AND RECORDS. (a) Each concurring
commission member shall sign a decision issued by the commission.
(b) The commission shall keep records of each hearing or
case that comes before the commission.
(c) Each rule, opinion, directive, decision, or order
issued by the commission:
(1) must be in writing; and
(2) is a public record that the commission shall
retain on file.
Sec. 158.0352. DISCIPLINARY SUSPENSIONS. (a) The sheriff
may suspend an employee 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 employee wants to appeal to the
commission, the employee must file a written appeal with the
commission within 10 days after the date the employee 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 employee 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 employee.
(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 employee
refuses the offer and wants to appeal to the commission, the
employee must file a written appeal with the commission in
accordance with Section 158.037.
(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:
(1) the sheriff may not complain of an act that is
discovered earlier than the 180th day preceding the date the
sheriff suspends the employee; and
(2) the sheriff must allege that the act complained of
is related to criminal activity.
Sec. 158.0353. DEMOTIONS. (a) The sheriff may recommend to
the commission in writing that the commission demote a nonexempt
employee involuntarily.
(b) The sheriff must include in the recommendation for
demotion the reasons for the recommended 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.
SECTION 3. Section 158.037, Local Government Code, is
amended to read as follows:
Sec. 158.037. APPEALS. (a) Except as otherwise provided by
this subchapter, an employee may appeal to the commission an action
for which an appeal or review is provided by this subchapter by
filing 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:
(1) a statement denying the truth of the charge as
made;
(2) a statement taking exception to the legal
sufficiency of the charge;
(3) a statement alleging that the recommended action
does not fit the offense or alleged offense; or
(4) a combination of the statements described by this
subsection.
(c) In each hearing, appeal, or review of any kind in which
the commission performs an adjudicatory function, the affected
employee is entitled to be represented by counsel or a person the
employee chooses. Each commission proceeding must 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. The report must 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.
(i) If a suspended employee appeals a suspension to the
commission, the commission shall hold a hearing and render a
decision in writing within 30 days after the date the commission
receives notice of appeal. The suspended employee and the
commission may agree to postpone the hearing for a definite period.
(j) 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.
(k) 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.
(l) The commission may suspend or dismiss an employee for
violation of civil service rules and only after a finding by the
commission of the truth of specific charges against the employee.
(m) 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 employee's former position or
status in the department's classified service.
(n) 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 employee 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 employee 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.
(o) An employee who, on a final decision by the commission,
is demoted, suspended, or removed from a position may appeal the
decision by filing a petition in a district court in the county
within 30 days after the date of the decision.
(p) [(b)] An appeal under Subsection (o) [this section] is
under the substantial evidence rule, and the judgment of the
district court is appealable as in other civil cases.
(q) Each appeal to a district court of an indefinite
suspension shall be advanced on the district court docket and given
a preference setting over all other cases.
(r) [(c)] If the district court renders judgment for the
petitioner, the court may order reinstatement of the employee,
payment of back pay, or other appropriate relief.
SECTION 4. Subchapter B, Chapter 158, Local Government
Code, is amended by adding Sections 158.0372 through 158.0374 and
Sections 158.041 through 158.062 to read as follows:
Sec. 158.0372. REINSTATEMENT. (a) If the commission, a
hearing examiner, or a district court orders that an employee
suspended without pay be reinstated, the sheriff shall comply with
the order and the county shall, before the end of the second full
pay period after the date the employee is reinstated, repay to the
employee all wages lost as a result of the suspension.
(b) If the county does not fully repay all lost wages to the
employee as provided by this section, the county shall pay the
employee an amount equal to the lost wages plus accrued interest.
(c) Interest under Subsection (b) accrues beginning on the
date of the employee's 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 employee's
reinstatement.
Sec. 158.0373. HEARING EXAMINERS. (a) In addition to the
other notice requirements prescribed by this subchapter, the
written notice for a promotional bypass, demotion, or notice 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
employee 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 commission a
written request as part of the original notice of appeal required
under this subchapter stating the employee'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 employee waives all rights to
appeal to a district court except as provided by Subsection (j).
(d) If the 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
commission 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 hearing examiner was
without jurisdiction or exceeded the hearing examiner's
jurisdiction or that the order was procured by fraud, collusion, or
other unlawful means. An appeal must be brought in the district
court having jurisdiction in the county in which the department is
located.
Sec. 158.0374. UNCOMPENSATED DUTY. (a) In this section,
"uncompensated duty" means days of work without pay that are in
addition to regular or normal workdays.
(b) The sheriff may assign an employee to uncompensated
duty. The sheriff may not impose uncompensated duty unless the
employee agrees to accept the duty. The sheriff shall give the
employee a written statement that specifies the date or dates on
which the employee will perform uncompensated duty if the employee
agrees to accept 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 employee is
suspended without pay 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.
(e) Except as provided by this section, an employee who
performs assigned uncompensated duty retains all rights and
privileges of the employee's position in the department and of the
employee's employment by the county.
Sec. 158.041. PROMOTIONAL EXAMINATION NOTICE. (a) Not
later than 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) Not later than 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 sheriff's department and in the commission's
office. The notice must show the position to be filled or for which
the examination is to be held, and the date, time, and place of the
examination. The commission shall also furnish sufficient copies
of the notice for posting in the stations or subdepartments in which
the position will be filled.
(c) The notice required by Subsection (b) may also include
the name of each source used for the examination, the number of
questions taken from each source, and the chapter used in each
source.
Sec. 158.042. ELIGIBILITY FOR 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 employees to take the examination, the
commission shall open the examination to employees in that position
with less than two years' service. If there is still an
insufficient number, the commission may open the examination to
employees in the second lower position, in salary, to the position
for which the examination is to be held.
Sec. 158.043. PROMOTIONAL EXAMINATION PROCEDURE; CRIMINAL
PENALTY. (a) The commission shall adopt rules governing
promotions and shall hold promotional examinations to provide
eligibility lists for each nonexempt classification in the
department. The examinations shall be held substantially as
prescribed by this section.
(b) Each eligible promotional candidate shall be given an
identical examination in the presence of the other eligible
promotional candidates, except that an eligible promotional
candidate who is serving on active military duty outside of this
state or in a location that is not within reasonable geographic
proximity to the location where the examination is being
administered is entitled to take the examination outside of the
presence of and at a different time than the other candidates and
may be allowed to take an examination that is not identical to the
examination administered to the other candidates. The commission
may adopt rules 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 must
require that:
(1) at the discretion of the administering entity, an
examination that is not identical to the examination administered
to other eligible promotional candidates may be administered to an
eligible promotional candidate who is serving on active military
duty; and
(2) if a candidate serving on active military duty
takes a promotional examination outside the presence of other
candidates and passes the examination, the candidate's name shall
be included in the eligibility list of names of promotional
candidates who took and passed the examination nearest in time to
the time at which the candidate on active military duty took the
examination.
(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 employee
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
listed in the posted notice under Section 158.041(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 commission is responsible for the preparation and
security of each promotional examination. The fairness of the
competitive promotional examination is the responsibility of the
commission 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 for unfair personal gain or advantage; or
(2) receives from any 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 fine and
confinement.
Sec. 158.044. 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 employee in the department, with a
maximum of 10 points.
(c) The grade that must be placed on the eligibility list
for each employee shall be computed by adding the applicant's
points for seniority to the applicant's grade on the written
examination, but only if the applicant scores a passing 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 on the written
examination 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
given, the commission shall post the individual raw test scores on a
bulletin board located in the main lobby of the sheriff's
department.
Sec. 158.045. REVIEW AND APPEAL OF PROMOTIONAL EXAMINATION.
(a) On request, each eligible promotional candidate 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 seven days, to
the commission for review in accordance with this subchapter.
(b) The eligible promotional candidate may not remove the
examination or copy a question used in the examination.
Sec. 158.046. PROCEDURE FOR MAKING PROMOTIONAL
APPOINTMENTS. (a) When a vacancy occurs in a nonentry, nonexempt
position, the vacancy shall be filled as prescribed by this
section. A vacancy in a position described by this subsection
occurs on the date the position is vacated by:
(1) resignation;
(2) retirement;
(3) death;
(4) promotion; or
(5) an indefinite suspension that becomes final.
(b) If an eligibility list for the position to be filled
exists on the date the vacancy occurs, the commission 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 candidate, 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 candidate being bypassed
before appointing another candidate. The sheriff shall also file
the reason in writing with the commission and shall provide the
candidate with a copy of the written notice. The bypassed
promotional candidate may appeal the decision in accordance with
Section 158.037.
(g) If a candidate is bypassed, the candidate's name is
returned to its place on the eligibility list and shall be
resubmitted to the sheriff if another vacancy occurs. If the
sheriff refuses three times to appoint a candidate, files the
reasons for the refusals in writing with the commission, and the
commission does not set aside the refusals, the candidate'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. 158.047. TEMPORARY DUTIES IN HIGHER CLASSIFICATION.
(a) When a vacancy occurs, the sheriff may designate an employee
from the next lower classification to temporarily fill a position
in a higher classification. The designated employee is entitled to
the base salary of the higher position plus the employee's own
longevity or seniority pay, educational incentive pay, if any, and
certification pay, if any, during the time the employee performs
the duties.
(b) The temporary performance of the duties of a higher
position by an employee who has not been promoted as prescribed by
this chapter may not be construed as a promotion.
Sec. 158.048. 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
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. 158.049. MILITARY LEAVE OF ABSENCE. (a) On written
application of an employee, the commission shall grant the employee
a military leave of absence without pay, notwithstanding Section
158.050, to enable the employee 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 serves in the military, the commission
shall fill the employee's position in the department in accordance
with this subchapter. The employee who fills the position is
subject to replacement by the employee who received the military
leave at the time the employee 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 employee held in
the department at the time the leave of absence was granted if the
employee:
(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 employee 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 causes that
employee's replacement to be returned to a lower position in grade
or compensation, the replaced employee has a preferential right to
a subsequent appointment or promotion to the same or a similar
position from which the employee was demoted. This preferential
right has priority over an eligibility list and is subject to the
replaced employee remaining physically and mentally fit to
discharge the duties of that position.
(g) If an employee is called to active military duty for any
period, the county must continue to maintain any health, dental, or
life insurance coverage and any health or dental benefits coverage
that the employee received from 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 another employee 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. 158.050. MILITARY LEAVE TIME ACCOUNTS. (a) A county
shall maintain a military leave time account for the sheriff's
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 sheriff's department;
(3) has served on active duty for a period of at least
12 continuous months; and
(4) has exhausted the balance of the employee'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 the 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 the 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. 158.051. 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 employee's
activities performed in the 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 county's
governing body 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 employee's salary is reduced below 60 percent of the employee's
regular monthly salary, and the employee is a member of a pension
fund, the employee may retire on pension until the employee is 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 governing
body have expired, the employee may use accumulated sick leave,
vacation time, and other accumulated time before the employee is
placed on temporary leave.
(d) If an employee is temporarily disabled by an injury or
illness that is not related to activities performed in the
employee's line of duty, the employee may use all sick leave,
vacation time, and other accumulated time before the employee 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
employee had before going on temporary leave.
(f) While an employee who is temporarily disabled is on
leave, another employee may voluntarily do the work of the employee
who is temporarily disabled or donate leave time to maintain the
salary for the employee who is temporarily disabled until the
temporarily disabled employee returns to duty.
Sec. 158.052. 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 employee has been receiving a monthly disability pension
is eligible for reappointment to the classified position that the
employee held on the date the employee qualified for the monthly
disability pension.
Sec. 158.053. PERSONNEL FILE. (a) The commission or the
commission'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 department for an
action, duty, or activity that relates to the employee's official
duties;
(2) any misconduct by the employee if the letter,
memorandum, or document is from the department and if the
misconduct resulted in disciplinary action by the employing
department in accordance with this subchapter; 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 employee's
personnel file if the 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 employee'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 commission or the commission'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 employee's personnel
file. The county may charge the employee a reasonable fee not to
exceed the actual cost for any copies provided under this
subsection.
(f) The commission or the commission's designee may not
release any information contained in an employee's personnel file
without first obtaining the employee's written permission, unless
the release of the information is required by law.
(g) The department may maintain a personnel file on an
employee 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 the employee.
The department shall refer to the commission or the commission's
designee a person or agency that requests information that is
maintained in the employee's personnel file.
Sec. 158.054. INVESTIGATION OF EMPLOYEES. (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 county, of alleged misconduct by an
employee that could result in punitive action against that
employee.
(3) "Investigator" means an agent or employee of the
county 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
employee's assigned place of work, but does not include any time
when the employee is off duty on authorized leave, including sick
leave.
(5) "Punitive action" means a disciplinary
suspension, 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 sheriff or the sheriff's designee, requires
interrogation at another time; and
(2) the employee is compensated for the interrogation
time on an overtime basis.
(c) The sheriff 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 employee's home without that employee'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 conduct
an interrogation of 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) 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.
(i) 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.
(j) If an investigation does not result in punitive action
against an employee but does result in a reprimand recorded in
writing or an adverse finding or determination regarding that
employee, the reprimand, finding, or determination may not be
placed in that employee'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
employee refused to sign it. An employee may respond in writing to
a reprimand, finding, or determination that is placed in the
employee's personnel file under this subsection by submitting a
written response to the commission within 10 days after the date the
employee is asked to sign the document. The response must 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 within 10 days after the date the
employee is given written notice of the punitive action from the
sheriff.
(k) If the sheriff or any investigator violates any of the
provisions of this section while conducting an investigation, the
commission shall reverse any punitive action taken pursuant to the
investigation, including a reprimand, and any information obtained
during the investigation shall be specifically excluded from
introduction into evidence in any proceeding against the employee.
Sec. 158.055. GRIEVANCE PROCEDURE. (a) An employee may
file a grievance as provided by this subchapter. The employee may
file a grievance that relates to the employee's employment,
including matters relating to a written or oral reprimand,
transfers, job performance reviews, and job assignments. The
employee may not file a grievance relating to:
(1) a disciplinary suspension, indefinite suspension,
promotional pass over, or demotion or other action or decision for
which a hearing, review, or appeal is otherwise provided by this
subchapter; or
(2) an allegation of discrimination based, in whole or
in part, on race, color, religion, sex, or national origin.
(b) The commission shall monitor and assist the operation of
the grievance procedure. The commission's duties include:
(1) aiding the department and departmental grievance
counselors;
(2) notifying the parties of meetings;
(3) docketing cases before the grievance examiner; and
(4) ensuring that the grievance procedure operates
timely and effectively.
(c) The sheriff shall appoint from among the members of the
department a grievance counselor whose duties include:
(1) providing appropriate grievance forms to an
employee;
(2) accepting, on behalf of the sheriff, a step I or II
grievance;
(3) assisting the employee in handling the grievance;
(4) forwarding a copy of a step I or II grievance form
to the commission and notifying the sheriff;
(5) arranging a meeting between the employee and that
employee's immediate supervisor as prescribed by Section
158.056(b);
(6) arranging a meeting described by Section
158.057(b); and
(7) performing other duties that the sheriff may
assign.
(d) The grievance procedure consists of four steps. In any
step of the grievance process in which the aggrieved employee's
immediate supervisor is included, the sheriff or the departmental
grievance counselor may add an appropriate supervisor who is not
the employee's immediate supervisor or may designate that
supervisor to replace the employee's immediate supervisor, if the
sheriff or grievance counselor determines that the other supervisor
has the authority to resolve the employee's grievance.
Sec. 158.056. STEP I GRIEVANCE PROCEDURE. (a) To begin a
grievance action, an employee must file a completed written step I
grievance form with the departmental grievance counselor within 30
days after the date the action or inaction for which the employee
feels aggrieved occurred. A step I grievance form may be obtained
from the departmental grievance counselor. If the form is not
timely filed, the grievance is waived.
(b) If the step I grievance form is timely filed under
Subsection (a), the departmental grievance counselor shall arrange
a meeting of the employee, that employee's immediate supervisor or
other appropriate supervisor or both, and the person or persons
against whom the grievance is lodged. The departmental grievance
counselor shall schedule the step I meeting within 30 calendar days
after the date the form is filed. If the grievance is lodged against
the sheriff, the sheriff may send a representative.
(c) The employee's immediate supervisor or other
appropriate supervisor, or both, shall fully, candidly, and openly
discuss the grievance with the employee in a sincere attempt to
resolve it.
(d) Regardless of the outcome of the meeting, the employee's
immediate supervisor or other appropriate supervisor, or both,
shall provide a written response to the employee, with a copy to the
grievance counselor, within 15 calendar days after the date the
meeting occurs. The response must include the supervisor's
evaluation and proposed solution. The response shall either be
personally delivered to the employee or be mailed by certified
mail, return receipt requested, to the last home address provided
by that employee.
(e) If the proposed solution is not acceptable, the employee
may file a step II grievance form with the departmental grievance
counselor in accordance with Section 158.057. If the aggrieved
employee fails to timely file a step II grievance form, the solution
is considered accepted.
Sec. 158.057. STEP II GRIEVANCE PROCEDURE. (a) To continue
the grievance procedure, the employee must complete a step II
grievance form and file it with the sheriff or the departmental
grievance counselor within 15 calendar days after the date the
employee receives the supervisor's response under Section 158.056.
(b) If the step II grievance form is timely filed under
Subsection (a), the departmental grievance counselor shall arrange
a meeting of the employee, that employee's immediate supervisor or
other appropriate supervisor or both, and the sheriff or the
sheriff's representative who must have a rank of at least captain or
the equivalent. The meeting shall be held within 15 calendar days
after the date the form is filed.
(c) Regardless of the outcome of the meeting, the sheriff or
the sheriff's representative shall provide a written response to
the employee within 15 calendar days after the date the meeting
occurs. The response shall either be personally delivered to the
employee or be mailed by certified mail, return receipt requested,
to the last home address provided by that employee.
(d) If the proposed solution is not acceptable, the employee
may either submit a written request stating the employee's decision
to appeal to an independent third-party hearing examiner pursuant
to the provisions of Section 158.0373 or file a step III grievance
form with the director in accordance with Section 158.058. If the
employee fails to timely file a step III grievance form or a written
request to appeal to a hearing examiner, the solution is considered
accepted. Notwithstanding Section 158.0373(i), if the employee
prevails and the hearing examiner upholds the grievance in its
entirety, the department shall bear the cost of the appeal to the
hearing examiner. If the employee fails to prevail and the hearing
examiner denies the grievance in its entirety, the employee shall
bear the cost of the appeal to the hearing examiner. If neither
party entirely prevails and the hearing examiner upholds part of
the grievance and denies part of it, the hearing examiner's fees and
expenses shall be shared equally by the employee and the
department.
Sec. 158.058. STEP III GRIEVANCE PROCEDURE. (a) To
continue the grievance procedure, an employee who did not appeal to
a hearing examiner under Section 158.057(d) must complete a step
III grievance form and file it with the commission within 15
calendar days after the date the employee receives the sheriff's
response under Section 158.057.
(b) If the step III grievance form is timely filed under
Subsection (a), the commission shall arrange a hearing of the
employee and a grievance examiner to be appointed by the commission
under Section 158.060. The hearing shall be held within 15 of the
aggrieved employee's working days after the date the form is filed.
(c) A hearing shall be conducted as an informal
administrative procedure. Grievances arising out of the same or
similar fact situations may be heard at the same hearing. A court
reporter shall record the hearing. All witnesses shall be examined
under oath. The employee, the employee's immediate supervisor or
other appropriate supervisor or both, the sheriff or the sheriff's
designated representative or both, and each person specifically
named in the grievance are parties to the hearing. The burden of
proof is on the aggrieved employee.
(d) The grievance examiner shall make written findings and a
recommendation for solution of the grievance within 15 calendar
days after the date the hearing ends. The findings and
recommendation shall be given to the commission and copies mailed
to the employee by certified mail, return receipt requested, at the
last home address provided by that employee, and to the sheriff.
(e) If the proposed solution is not acceptable to either the
employee or the sheriff, either party may file a step IV grievance
form with the commission in accordance with Section 158.059. If the
employee or the sheriff fails to timely file a step IV grievance
form, the solution is considered accepted by that person.
Sec. 158.059. STEP IV GRIEVANCE PROCEDURE. (a) If the
sheriff or the employee rejects the proposed solution under Section
158.058, the sheriff, the sheriff's designated representative, or
the employee must complete a step IV grievance form and file it with
the commission within 15 calendar days after the date the person
receives the grievance examiner's recommendation.
(b) The commission shall review the grievance examiner's
findings and recommendation and consider the transcript of the step
III hearing at the commission's next regularly scheduled meeting or
as soon as practicable. The transcript shall be filed within 30
days of the step IV grievance being filed. The commission may for
good cause shown grant a reasonable delay not to exceed 30 days to
file the transcript. In no event may the commission render a
decision later than 30 days after the date the transcript is filed.
If the commission does not render a decision within 30 days after
the date the transcript is filed, the commission shall sustain the
employee's grievance.
(c) The commission shall base its decision solely on the
transcript and demonstrative evidence offered and accepted at the
step III hearing. The commission shall furnish a written copy of
the order containing its decision to the employee, the sheriff, and
the grievance examiner. The copy to the employee shall be mailed by
certified mail, return receipt requested, to the last home address
provided by that employee. The commission decision is final.
Sec. 158.060. GRIEVANCE EXAMINER. (a) The commission
shall appoint a grievance examiner by a majority vote. The
commission may appoint more than one grievance examiner if
necessary. The commission may appoint a different grievance
examiner for each grievance. An examiner may not be affiliated with
any other department and is responsible only to the commission. The
commission shall pay an examiner from a special budget established
for this purpose, and shall provide an examiner sufficient office
space and clerical support.
(b) The grievance examiner may:
(1) impose a reasonable limit on the time allowed each
party and the number of witnesses to be heard;
(2) administer oaths;
(3) examine a witness under oath;
(4) subpoena and require the attendance of witnesses
or the production of documents, books, or other pertinent material;
and
(5) accept affidavits instead of or in addition to
live testimony.
Sec. 158.061. SPECIAL PROVISIONS FOR STEPS I AND II. (a)
If the aggrieved employee's immediate supervisor is the sheriff,
the steps prescribed by Sections 158.056 and 158.057 are combined.
The sheriff shall meet with the aggrieved employee and may not
appoint a representative.
(b) A sheriff, with the approval of the commission, may
change the procedure prescribed by Sections 158.056 and 158.057 to
reflect a change in a department's chain of command.
Sec. 158.062. MISCELLANEOUS GRIEVANCE PROVISIONS. (a) An
employee may, but is not required to, obtain a representative at any
time during the grievance procedure. The county is not obligated to
provide or pay the costs of providing representation. The
representative:
(1) is not required to be an attorney;
(2) is entitled to be present to advise the employee;
(3) is entitled to present any evidence or information
for the employee; and
(4) may not be prevented from fully participating in
any of the grievance proceedings.
(b) An employee may take reasonable time off from a job
assignment to file a grievance and attend a meeting or hearing.
Time taken to pursue a grievance may not be charged against that
employee. The employee shall be compensated on an overtime basis
for the time that employee spends at a grievance meeting or hearing
if:
(1) the meeting or hearing is scheduled at a time other
than that employee's normally assigned working hours; and
(2) that employee prevails in the grievance.
(c) If notice that a grievance meeting or hearing is to be
recorded is provided to all persons present at the meeting or
hearing, the employee, the sheriff, or the sheriff's designee may
record the meeting or hearing.
(d) The commission shall provide a suitable notice
explaining the grievance procedure prescribed by this subchapter
and furnish copies to the department. The notice shall be posted in
a prominent place or places within the department work areas to give
reasonable notice of the grievance procedure to each member of the
department.
(e) At the request of the sheriff or an employee who has
filed a grievance under this subchapter, the county's legal
department or the commission shall assist in resolving the
grievance.
(f) The commission is the official final custodian of all
records involving grievances. A depository for closed files
regarding grievances shall be maintained by the commission.
(g) An employee who files a grievance pursuant to this
section and Sections 158.055 through 158.061 is entitled to 48
hours notice of any meeting or hearing scheduled under Section
158.056(b), 158.057(b), 158.058(b), or 158.059(b). In the event
that the employee is not given 48 hours advance notice, the
employee's grievance shall be automatically sustained and no
further action may be had on the grievance.
(h) If the decision of the commission under Section 158.059
or the decision of a hearing examiner under Section 158.057 that has
become final is favorable to an employee, the sheriff shall
implement the relief granted to the employee not later than the 10th
day after the date on which the decision was issued. If the sheriff
intentionally fails to implement the relief within the 10-day
period, the county shall pay the employee $1,000 for each day after
the 10-day period that the decision is not yet implemented.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2019.