87R10647 SCL-D
By: Johnson of Dallas H.B. No. 4438
A BILL TO BE ENTITLED
AN ACT
relating to the appeal to a hearing examiner of a promotional bypass
or disciplinary action taken against a police officer in certain
municipalities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 143.057, Local Government
Code, is amended to read as follows:
Sec. 143.057. HEARING EXAMINERS FOR FIRE FIGHTER APPEALS.
SECTION 2. Sections 143.057(a), (b), (c), (d), (e), (i),
and (j), Local Government Code, are amended to read as follows:
(a) In addition to the other notice requirements prescribed
by this chapter, the written notice for a promotional bypass or the
letter of disciplinary action, as applicable, issued to a fire
fighter [or police officer] must state that in an appeal of an
indefinite suspension, a suspension, a promotional bypass, or a
recommended demotion, the appealing fire fighter [or police
officer] may elect to appeal to an independent third party hearing
examiner instead of to the commission. The letter must also state
that if the fire fighter [or police officer] elects to appeal to a
hearing examiner, the person waives all rights to appeal to a
district court except as provided by Subsection (j).
(b) To exercise the choice of appealing to a hearing
examiner, the appealing fire fighter [or police officer] must
submit to the director a written request as part of the original
notice of appeal required under this chapter stating the person's
decision to appeal to an independent third party hearing examiner.
(c) The hearing examiner's decision is final and binding on
all parties. If the fire fighter [or police officer] decides to
appeal to an independent third party hearing examiner, the person
automatically waives all rights to appeal to a district court
except as provided by Subsection (j).
(d) If the appealing fire fighter [or police officer]
chooses to appeal to a hearing examiner, the fire fighter [or police
officer] and the department head, or their designees, shall first
attempt to agree on the selection of an impartial hearing examiner.
If the parties do not agree on the selection of a hearing examiner
on or within 10 days after the date the appeal is filed, the
director shall immediately request a list of seven qualified
neutral arbitrators from the American Arbitration Association or
the Federal Mediation and Conciliation Service, or their successors
in function. The fire fighter [or police officer] and the
department head, or their designees, may agree on one of the seven
neutral arbitrators on the list. If they do not agree within five
working days after the date they received the list, each party or
the party's designee shall alternate striking a name from the list
and the name remaining is the hearing examiner. The parties or their
designees shall agree on a date for the hearing.
(e) The appeal hearing shall begin as soon as the hearing
examiner can be scheduled. If the hearing examiner cannot begin the
hearing within 45 calendar days after the date of selection, the
fire fighter [or police officer] may, within two days after
learning of that fact, call for the selection of a new hearing
examiner using the procedure prescribed by Subsection (d).
(i) The hearing examiner's fees and expenses are shared
equally by the appealing fire fighter [or police officer] and by the
department. The costs of a witness are paid by the party who calls
the witness.
(j) A district court may hear an appeal of a hearing
examiner's award only on the grounds that the arbitration panel was
without jurisdiction or exceeded its jurisdiction or that the order
was procured by fraud, collusion, or other unlawful means. An
appeal must be brought in the district court having jurisdiction in
the municipality in which the fire [or police] department is
located.
SECTION 3. Section 143.036(f), Local Government Code, is
amended to read as follows:
(f) Unless the department head has a valid reason for not
appointing the person, the department head shall appoint the
eligible promotional candidate having the highest grade on the
eligibility list. If the department head has a valid reason for not
appointing the eligible promotional candidate having the highest
grade, the department head shall personally discuss the reason with
the person being bypassed before appointing another person. The
department head 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 department head did not appoint that
person is subject to review by the commission or, if the person is a
fire fighter and on the written request of the fire fighter [person
being bypassed], by an independent third party hearing examiner
under Section 143.057.
SECTION 4. Section 143.056(e), Local Government Code, is
amended to read as follows:
(e) If the department head temporarily suspends a fire
fighter or police officer under this section and the fire fighter or
police officer is not found guilty of the indictment or complaint in
a court of competent jurisdiction, the fire fighter or police
officer may appeal to the commission for recovery of back pay, or,
if the person is a fire fighter, may appeal 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.
SECTION 5. Section 143.090, Local Government Code, is
amended to read as follows:
Sec. 143.090. RELEASE OF PHOTOGRAPHS OF POLICE OFFICERS. A
department, commission, or municipality may not release a
photograph that depicts a police officer unless:
(1) the officer has been charged with an offense by
indictment or by information;
(2) the officer is a party in a civil service hearing
[or a case before a hearing examiner or in arbitration];
(3) the photograph is introduced as evidence in a
judicial proceeding; or
(4) the officer gives written consent to the release
of the photograph.
SECTION 6. The changes in law made by this Act apply only to
a promotional bypass or disciplinary action given on or after the
effective date of this Act. A promotional bypass or disciplinary
action given before the effective date of this Act is governed by
the law in effect immediately before the effective date of this Act,
and that law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2021.