Fired Deputies Get An Outside Hearing Examiner In 3.3M-Plus Counties

The text as introduced · 2,676 words

89R12480 DNC-F

By: Alvarado
S.B. No. 2482

A BILL TO BE ENTITLED

AN ACT

relating to sheriff's department civil service systems in certain

counties.

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

SECTION 1. Sections 158.034(a) and (e), Local Government

Code, are amended to read as follows:

(a) In a county with a population of less than 2.8 million,

if a majority of the employees voting at the election approve the

creation of a sheriff's department civil service system, the

sheriff, commissioners court, and district attorney shall each

appoint one person to serve as a member of the civil service

commission that administers the system. In a county with a

population of at least 2.8 million and less than 3.3 million [ or

more ], if a majority of the employees voting at the election approve

the creation of a sheriff's department civil service system, the

sheriff, commissioners court, and district attorney shall each

appoint two persons to serve as members of the civil service

commission that administers the system, and the three appointing

authorities shall appoint one member by joint action requiring the

affirmative vote of each of the authorities. In a county with a

population of 3.3 million or more, if a majority of the employees

voting at the election approve the creation of a sheriff's

department civil service system, the sheriff, commissioners court,

and district attorney shall each appoint three persons to serve as

members of the civil service commission that administers the

system, and the three appointing authorities shall appoint two

members by joint action requiring the affirmative vote of each of

the authorities.

(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 ; and

(3) not have been finally convicted of a felony .

SECTION 2. Section 158.035, Local Government Code, is

amended by amending Subsection (a) and adding Subsection (c-1) to

read as follows:

(a) The commission shall :

(1) adopt, publish, and enforce rules regarding:

(A) [ (1) ] selection and classification of

employees;

(B) [ (2) ] competitive examinations;

(C) [ (3) ] promotions, seniority, and tenure;

(D) [ (4) ] layoffs and dismissals;

(E) [ (5) ] disciplinary actions;

(F) [ (6) ] grievance procedures;

(G) [ (7) ] the rights of employees during an

internal investigation; and

(H) [ (8) ] other matters relating to the selection

of employees and the procedural and substantive rights,

advancement, benefits, and working conditions of employees ; and

(2) hold hearings regarding matters described by

Subdivision (1) .

(c-1) This subsection applies only to a county with a

population of 3.3 million or more. A majority of the commission

shall constitute a quorum for the adoption or amendment of rules

under this chapter. A panel of three commissioners may hear and

decide any case arising under rules adopted under this chapter. The

commission shall adopt rules prescribing procedures for assigning

members to a panel.

SECTION 3. Subchapter B, Chapter 158, Local Government

Code, is amended by adding Section 158.0356 to read as follows:

Sec. 158.0356. THIRD-PARTY HEARING EXAMINERS IN CERTAIN

COUNTIES. (a) This section applies only to a county with a

population of 3.3 million or more.

(b) The written notice of termination issued to an employee

must state that the employee may elect to appeal the termination to

an independent third-party hearing examiner instead of to the

commission. The notice 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 (k).

(c) To appeal to a hearing examiner under Subsection (b),

the appealing employee must submit to the commission a written

request as part of an original notice of appeal stating the

employee's election to appeal to a hearing examiner.

(d) The hearing examiner's decision is final and binding on

all parties. 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 (k).

(e) In an appeal to a hearing examiner, the parties 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 parties may agree on one of the seven neutral

arbitrators on the list. If the parties 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.

(f) The hearing must 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 of the hearing

examiner, the employee may, within two days after learning of that

fact, require the selection of a new hearing examiner using the

procedure prescribed by Subsection (e).

(g) In each hearing conducted under this section, the

hearing examiner has the same duties and powers as the commission,

including the power to issue subpoenas.

(h) 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.

(i) 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 termination, or the hearing examiner's final decision. The

hearing examiner may uphold or overturn the termination or reduce

the discipline imposed on the employee.

(j) 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.

(k) 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 or the decision was arbitrary or capricious.

An appeal under this subsection is under the substantial evidence

rule, and the judgment of the district court is appealable as in

other civil cases. An appeal must:

(1) be brought in the district court having

jurisdiction in the county in which the department is located;

(2) be filed with the district court with proper

jurisdiction not later than the 45th day after the date the hearing

examiner issued a final decision; and

(3) clearly state the basis for the appeal.

(l) The hearing examiner may not require evidence of lost

compensation to award the employee compensation. If the termination

is overturned by the hearing examiner or the district court, the

employee is entitled to:

(1) full compensation for the actual time lost as a

result of the termination at the rate of pay provided for the

position or class of service the employee held before the

termination; and

(2) restoration of or credit for any benefits lost as a

result of the termination, including sick leave, vacation leave,

and service credit in a retirement system.

(m) If a law requires a retirement system to make

appropriate adjustments to a person's service credit or benefits

with that system based on a judgment or order issued by the

commission or a settlement agreement executed in connection with a

complaint or grievance filed with the commission, such as Section

842.113, Government Code, that law applies to the final decision of

a hearing examiner issued under this section or a settlement

agreement executed in connection with an appeal filed with the

hearing examiner in the same manner as that law applies to a

judgment, order, or settlement agreement described by this

subsection with respect to the commission.

(n) If an employee is entitled to restored benefits under

Subsection (l), standard payroll deductions for retirement and

other benefits must be made from the compensation paid and the

county shall make any standard corresponding contributions to the

retirement system or other applicable benefit systems.

SECTION 4. Section 158.038(c), Local Government Code, is

amended to read as follows:

(c) The sheriff of a county with a population of more than

3.3 million may designate as exempt from the civil service system:

(1) the position of chief deputy;

(2) one or more positions in the office of

departmental legal counsel; and

(3) additional positions in the department, not to

exceed 32 [ 25 ] in number, that have been determined by the civil

service commission to be administrative or supervisory positions;

provided, however, that the sheriff may not designate as exempt any

position in the deputy classifications of captain or below. The

designation of any such additional exempt position by the sheriff

shall not diminish the number of positions within the deputy

classifications of captain or below.

SECTION 5. Subchapter B, Chapter 158, Local Government

Code, is amended by adding Section 158.043 to read as follows:

Sec. 158.043. INVESTIGATION OF EMPLOYEES. (a) This

section applies only to a county with a population of 3.3 million or

more.

(b) 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 department, of alleged misconduct

by an employee that could result in punitive action against that

employee.

(3) "Investigator" means an employee of the department

who is assigned to conduct an investigation.

(4) "Normally assigned working hours" includes those

hours during which an employee is actually at work or at the

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, termination, demotion in rank, reprimand, or any

combination of those actions.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) Not later than the 30th day after the date a complaint is

received by an investigator, 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, if known,

concerning the matters under investigation unless:

(1) a criminal investigation has been initiated as a

result of the complaint; or

(2) the disclosure of information concerning the name

of the complainant or the matters under investigation would hinder

a criminal investigation.

(h) 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, any witness statements, and any

other evidence against the employee. 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.

(i) 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.

(j) 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.

(k) 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.

(l) 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

department.

(m) If the department 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 or disciplinary action,

and any information obtained during the investigation shall be

specifically excluded from introduction into evidence in any

proceeding against the employee.

SECTION 6. This Act takes effect September 1, 2025.