The opinion
ACCEPTED
03-15-00591-CV
7769797
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/10/2015 3:15:09 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00591-CV
FILED IN
3rd COURT OF APPEALS
In the Third Court of Appeals AUSTIN, TEXAS
Austin, Texas 11/10/2015 3:15:09 PM
JEFFREY D. KYLE
Clerk
THE CITY OF AUSTIN FIREFIGHTERS AND POLICE OFFICERS’
CIVIL SERVICE COMMISSION, DIRECTOR MARK WASHINGTON, CHIEF
ARTURO ACEVEDO AND THE CITY OF AUSTIN, TEXAS,
Defendants – Appellants
v.
WILLIAM M. STEWART, Plaintiff - Appellee
Appeal from Cause No. D-1-GN-13-003351
98th Judicial District Court of Travis County, Texas
BRIEF OF APPELLANT
Anne L. Morgan, Interim City Attorney
Meghan L. Riley, Chief, Litigation
Chris Edwards, Assistant City Attorney
State Bar No. 00789276
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2419
Facsimile: (512) 974-1311
chris.edwards@austintexas.gov
COUNSEL FOR DEFENDANT - APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Defendants - Appellants
The City of Austin Firefighters and Police Officers’ Civil Service Commission,
Director Mark Washington, Chief Arturo Acevedo & the City of Austin, Texas
Plaintiff - Appellee
William M. Stewart
Counsel for Defendant – Appellant
Chris Edwards
Assistant City Attorney
State Bar No. 00789276
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2419
Facsimile: (512) 974-1311
chris.edwards@austintexas.gov
Counsel for Plaintiff - Appellee
Grant Goodwin
State Bar No. 00787567
400 W. 14th Street, Suite 100
Austin, Texas 78701
Telephone: (512) 495-9111
Facsimile: (512) 495-9301
grant.goodwin@cleat.org
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ................................................................................. iii, iv
INDEX OF AUTHORITIES ............................................................................. v, vi
RECORD REFERENCES ......................................................................................1
STATEMENT OF THE CASE ...............................................................................1
ORAL ARGUMENT IS NOT REQUESTED .......................................................2
ISSUES PRESENTED .............................................................................................2
I. The district court erred when it denied the plea to the jurisdiction because
the court lacked subject matter jurisdiction based on lack of standing for
failure to exhaust administrative remedies. .....................................................2
II. The district court erred when it denied the plea to the jurisdiction because
governmental immunity is not waived under the Civil Service Act or Texas
Uniform Declaratory Judgments Act...............................................................3
III. The district court erred when it did not dismiss Chief of Police Art Acevedo
against whom all claims were abandoned. ......................................................3
STATEMENT OF FACTS ......................................................................................3
A. The facts are not in dispute. .............................................................................3
B. Officer Discipline is pursuant to the Meet and Confer Agreement and
Chapter 143 .....................................................................................................6
SUMMARY OF THE ARGUMENT .....................................................................8
ARGUMENT ............................................................................................................8
A. The Rules of Statutory Construction do not support Stewart’s interpretation
of Chapter 143 or the M&C Agreement. .........................................................9
iii
B. Stewart lacked standing and the district court lacked jurisdiction because
administrative remedies were not exhausted. ................................................10
1. The district court lacked jurisdiction over claims for
reinstatement, back pay and lost benefits. ................................11
2. The district court lacked jurisdiction to void the Agreed
Temporary Suspension. .............................................................13
C. The district court lacked jurisdiction over claims for which governmental
immunity is not waived. ................................................................................17
1. Immunity bars claims against the City for back pay and lost
benefits. .....................................................................................18
2. Immunity bars claims against Director Washington for acts
which are not ministerial. .........................................................19
D. The district court lacked jurisdiction because all claims against the Chief of
Police were abandoned ..................................................................................22
CONCLUSION AND PRAYER ...........................................................................23
CERTIFICATE OF SERVICE ............................................................................25
CERTIFICATE OF COMPLIANCE ..................................................................26
APPENDIX ............................................................................................................. 27
iv
INDEX OF AUTHORITIES
Cases
Beacon Nat’l Ins. v. Montemayor,
86 S.W.3d 260 (Tex.App.—Austin 2002, no pet.) ...............................................17
Brown v. Nero,
2015 WL 5666172 (Tex.App.—Austin 2015) ............................................... 12, 18
Cf. Summers v. Keebler Co.,
133 Fed. App’x. 249 (6th Cir. 2005) ....................................................................15
Chenault v. Phillips,
914 S.W.2d 140 (Tex. 1996). ........................................................................... 9, 16
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) .......................................................................... 19, 20
Firefighters’ and Police Officers’ Civil Service Com’n of City of Houston v.
Ceazer, 725 S.W.2d 431 (Tex.App.—Houston [14th Dist.] 1987, writ ref’d
n.r.e.) .....................................................................................................................22
Galbraith Eng’g Consultants, Inc. v. Pochucha,
290 S.W.3d 863 (Tex. 2009) ...................................................................................9
Hamilton v. Mark Washington, et al.,
2014 WL 7458988 (Tex.App.—Austin 2014) . 9, 10, 11, 12, 13, 14, 17, 18, 19, 20
Howsam v. Dean Witter Reynolds, Inc.,
123 S.Ct. 588 (2002) .............................................................................................19
In re Crow-Billingsley Air Park, Ltd.,
98 S.W.3d 178 (Tex. 2003) ...................................................................................22
Marks v. St. Luke’s Episcopal Hosp.,
319 S.W.3d 658 (Tex. 2010) ............................................................................ 9, 10
Mata v. City of San Antonio,
2012 WL 1364594 (Tex.App.—San Antonio 2012) ............................... 10, 14, 15
v
Tex. Dep’t of Transp. v. Sefzik,
355 S.W.3d 618 (Tex. 2011) (per curiam) ............................................................18
Texas Parks & Wildlife Dep’t v. Sawyer Trust,
354 S.W.3d 384 (Tex. 2011) .................................................................................18
Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692 (Tex. 2003) .................................................................................17
Statutes
Tex.Civ.Prac.&Rem.Code §37.001, et. seq. ..........................................................2, 8
Tex.Gov’tCode §24.011 .................................................................................. 2, 8, 22
Tex.Gov’tCode §311.021 ...........................................................................................9
Tex.Loc.Gov’tCode §143.010 ............................................................................. 7, 16
Tex.Loc.Gov’tCode §143.015 ..................................................................... 11, 12, 17
Tex.Loc.Gov’tCode §143.015(a) ................................................................................8
Tex.Loc.Gov’tCode §143.015(b).............................................................................. 17
Tex. Loc.Gov’tCode §143.051-.057 ......................................................................... 11
Tex.Loc.Gov’tCode §143.052(b)................................................................................3
Tex.Loc.Gov’tCode §143.052(g)..................................................................... 4, 6, 21
Tex.Loc.Gov’tCode §143.053 ............................................................................. 3, 11
Tex.Loc.Gov’tCode §143.057 ....................................................................................7
Tex.Loc.Gov’tCode §143.057(a) ................................................................................7
Tex.Loc.Gov’tCode §143.306(a) ................................................................................6
Tex.Loc.Gov’tCode §143.307 ....................................................................................6
vi
No. 03-15-00591-CV
In the Third Court of Appeals
Austin, Texas
THE CITY OF AUSTIN FIREFIGHTERS AND POLICE OFFICERS’
CIVIL SERVICE COMMISSION, DIRECTOR MARK WASHINGTON, CHIEF
ARTURO ACEVEDO AND THE CITY OF AUSTIN, TEXAS,
Defendants – Appellants
v.
WILLIAM M. STEWART, Plaintiff - Appellee
Appeal from Cause No. D-1-GN-13-003351
98th Judicial District Court of Travis County, Texas
BRIEF OF APPELLANT
TO THE COURT OF APPEALS FOR THE THIRD DISTRICT:
RECORD REFERENCES
Clerk’s Record. Citations to the Clerk’s Record will be to “CR” with the
page number following, e.g., “CR 7.”
Appendix. References to materials included in the Appellant’s Appendix are
referred to as “AA” with the page number following, e.g., “AA 1.”
STATEMENT OF THE CASE
William Stewart sued in district court over his dismissal from the Austin
1
Police Department seeking declaratory relief under Chapter 37 of the Texas Civil
Practice and Remedies Code requesting reinstatement, back pay and lost benefits,
as well as mandamus under Texas Government Code §24.011 requesting a hearing
before a hearing examiner, pursuant to Chapter 143 of the Texas Local
Government Code. CR 22-28. The City of Austin, Mark Washington, Arturo
Acevedo, and the City of Austin Firefighters’ and Police Officers’ Civil Service
Commission (“Appellants”), filed a plea to the jurisdiction seeking dismissal
because failure to exhaust administrative remedies, and governmental immunity
deprived the district court of subject matter jurisdiction. CR 29-93.
At the conclusion of the August 2, 2015 hearing, the district court took the
plea to the jurisdiction under advisement. On September 1, 2015, the Honorable
Orlinda Naranjo denied the Plea to the Jurisdiction without specifying any
grounds. CR 102, AA1.
ORAL ARGUMENT IS NOT REQUESTED
Oral argument is not necessary because this Court has already decided the
central issues, that failure to exhaust administrative remedies, and governmental
immunity deprive a district court of subject matter jurisdiction.
ISSUES PRESENTED
I. The district court erred when it denied the plea to the jurisdiction
because the court lacked subject matter jurisdiction based on lack of
2
standing for failure to exhaust administrative remedies.
II. The district court erred when it denied the plea to the jurisdiction
because governmental immunity is not waived under the Civil Service
Act or Texas Uniform Declaratory Judgments Act.
III. The district court erred when it did not dismiss Chief of Police Art
Acevedo against whom all claims were abandoned.
STATEMENT OF FACTS
A. The facts are not in dispute.
On August 24, 2012, former police officer William Stewart’s (“Stewart”)
chain of command unanimously recommended his indefinite suspension from the
Austin Police Department (“APD”) to the Chief of Police for violation of civil
service rules set forth in Chapter 143 of the Texas Local Government Code. CR
47-48, AA2. “An indefinite suspension is equivalent to dismissal from the
department.” Tex.Loc.Gov’tCode, §143.052(b). CR 30, AA2. Only the Chief of
Police has authority to dismiss a police officer.
Stewart had the option to deny the charges and file an appeal of his
discipline with the Civil Service Commission (the “Commission”) under Chapter
143, but he chose not to. Id., §143.053. CR 30, AA2. Instead, represented by the
Austin Police Association (“APA”), the union which represents police officers, and
an attorney with the Combined Law Enforcement Associations of Texas
3
(“CLEAT”), which represents police officers and associations, Stewart chose to
waive his Chapter 143 appeal rights. Id., §143.052(g). CR 30, AA2. On
September 13, 2012, Stewart chose to voluntarily enter into a sixty-day Agreed
Temporary Suspension with Chief of Police Art Acevedo (“Chief Acevedo”). CR
50-53. The Agreement included the term and condition that the agreed suspension
was a “Last Chance Agreement.” CR 52-53. A one-year probationary period
began after Stewart completed his sixty-day suspension (the effective date of the
probationary period was November 12, 2012 through November 12, 2013). CR
50-53. By entering into this Agreement with Chief Acevedo, Stewart expressly
acknowledged that he was being suspended for violating the civil service rules
cited in the Agreed Temporary Suspension. CR 30. Stewart signed the Agreed
Temporary Suspension, including the additional terms and conditions therein,
acknowledging that if he committed the same or similar act for which he was
temporarily suspended during his one-year probation he would be indefinitely
suspended. CR 53. Specifically, Stewart agreed as follows:
TO WHOM IT MAY CONCERN:
I acknowledge receipt of the above and foregoing memorandum of
agreed temporary suspension and I understand that by entering into
this disciplinary agreement the Chief foregoes his right to indefinitely
suspend me for the conduct described above and that agreeing to the
suspension, I have no right to appeal this disciplinary action or the
additional terms and conditions cited herein, to the Civil Service
Commission, to the District Court, or to an Independent Third Party
Hearing Examiner. [emphasis added]
4
During his one-year probationary period, on July 30, 2013 Chief Acevedo
indefinitely suspended Stewart pursuant to the Agreed Temporary Suspension for
violating the Last Chance Agreement by committing the same or similar act for
which he was temporarily suspended. CR 55-61. Despite having agreed to the
Last Chance Agreement knowingly waiving appeal, on August 2, 2013, Stewart
filed a notice of appeal of his indefinite suspension with the Civil Service Director
to appeal to a hearing examiner complaining that he did not violate the terms of his
Last Chance Agreement because (1) the misconduct did not occur, or (2) it was not
the same or similar act of misconduct that led to his indefinite suspension, and (3)
the Last Chance Agreement was not signed by the Austin Police Association. CR
63-64.
On August 7th, Civil Service Director Mark Washington (“Director
Washington”) rejected Stewart’s appeal for failure to invoke the jurisdiction of the
Civil Service Commission (the “Commission”). CR 66-67. Specifically, Director
Washington wrote as follows:
In order for the Civil Service Commission or an Independent Third
Party Hearing Examiner to determine whether an appeal is subject to
arbitration, the jurisdiction of the Commission must be lawfully
invoked. Under the Authority of the Meet and Confer Agreement
Stewart entered into a Sixty-Day Agreed Suspension and expressly
waived his right to appeal this indefinite suspension to the
Commission, a Hearing Examiner, and to District Court.
Consequently, the Commission does not have jurisdiction to act upon
this appeal and no further steps will be taken to process this appeal.
5
B. Officer Discipline is pursuant to the Meet and Confer Agreement and
Chapter 143.
The City and the APA entered into a Meet and Confer Agreement (“M&C
Agreement”) recognizing the APA as the sole and exclusive bargaining agent for
police officers employed by the City pursuant to Chapter 143. Agreement Between
the City of Austin and the Austin Police Association, Article 3. CR 69-81, AA3.
The M&C Agreement endorses the Texas meet and confer statute, Municipal
Service for Firefighters and Police Officers (the “Civil Service Act”).
Tex.Loc.Gov’tCode, Chapter 143. CR 83-89, AA2. The M&C Agreement is
“binding on the public employer, the association, and the fire fighters or police
officers covered by the agreement.” Id., §143.306(a). CR 32, AA2.
Under the M&C Agreement, Article 18 Disciplinary Actions, Demotions
and Appeals, controls discipline of police officers. CR 70-77. In the event of a
conflict between the statute and the M&C Agreement, pursuant to statute the M&C
Agreement preempts and supersedes Chapter 143. Art 18., Sec. 17; Id., §143.307.
CR 32, AA2-3. Article 18, Section 3, Mutually Agreed Temporary Suspensions of
Sixteen (16) to Ninety (90) Days, mirrors the language of Chapter 143. CR 86,
AA2.
§143.052(g). If offered by the department head, the fire fighter or
police officer may agree in writing to voluntarily accept, with no right
of appeal, a suspension of 16 to 90 calendar days for violation of a
civil service rule.
6
Article 18, Section 7, Last Chance Agreement, is a contractual provision
mutually agreed upon by the City and the APA that expressly authorizes Chief
Acevedo to offer a Last Chance Agreement as an alternative to indefinite
suspension. CR 73-74, AA3.
a) . . . the Police Chief may offer the officer, as an alternative to
indefinite suspension, the opportunity to enter into a last chance
agreement . . .
(3) The officer will agree to a probationary period not to exceed one
(1) year, with the additional requirement that if, during the
probationary period, the officer commits the same or a similar act of
misconduct, the officer will be indefinitely suspended without right of
appeal.
The Civil Service Act prescribes administrative remedies to appeal
disciplinary actions. Chapter 143, Subchapter D. Disciplinary Actions. CR 85-89,
AA2. The deadline for appeals is ten days. Id., §143.010 (“police officer need
only file an appeal with the commission within 10 days after the date the action
occurred”). CR 33, AA2. A police officer appealing discipline may elect to be
heard by the Civil Service Commission, or a hearing examiner. Id., §143.057,
AA2. CR 88-89. If a “police officer elects to appeal to a hearing examiner, the
person waives all rights to appeal to a district court,” except on limited grounds not
applicable here. Id., §143.057(a), AA2. CR 88. Stewart’s August 2, 2013 notice
of appeal elected to have his appeal heard by a hearing examiner, instead of the
Commission. CR 63-64. Only decisions of the Commission are appealable to
district court: Id. CR 33, AA2.
7
§143.015(a) If a firefighter or police officer is dissatisfied with any
commission decision, the firefighter or police officer 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 [of] the final
commission decision . . .
There is no Commission decision to appeal to district court in this case. CR 33.
SUMMARY OF THE ARGUMENT
The district court lacked subject matter jurisdiction over Stewart’s suit for
declaratory relief seeking reinstatement, back pay and lost benefits, or to
mandamus a hearing before a hearing examiner based on failure to exhaust
administrative remedies, and because governmental immunity is not waived under
the Civil Service Act, or the Texas Uniform Declaratory Judgments Act.
ARGUMENT
Stewart sought reinstatement, back pay and lost benefits, requesting
declarations under the Texas Uniform Declaratory Judgments Act (“UDJA”),
Civ.Prac.&Rem.Code, §37.001, et. seq., and mandamus under Tex. Gov’t Code,
§24.011, specifically (a) a declaration that his Last Chance Agreement is void, (2)
a declaration that Director Washington’s refusal to forward his appeal to the
American Arbitration Association1 was ultra vires, and (3) to mandamus Director
Washington to forward his appeal to a hearing examiner, pursuant to Chapter 143,
the Civil Service Act.
1
If the parties do not agree on the selection of a hearing examiner, they may request a list of
seven qualified neutral hearing examiners from the American Arbitration Association.
8
The Court lacks subject matter jurisdiction (1) to grant a claim for
reinstatement, back pay and lost benefits or declare the Last Chance Agreement
void based on failure to exhaust administrative remedies under the M&C
Agreement and Chapter 143, (2) to declare that refusal to forward the appeal was
an ultra vires act because immunity is not waived under Chapter 143 or the UDJA,
or (3) to mandamus appeal to a hearing examiner because neither the M&C
Agreement nor Chapter 143 confer jurisdiction on hearing examiners to hear an
appeal of an indefinite suspension pursuant to a Last Chance Agreement which
expressly waived all appeal rights. CR 34-35. The UDJA is “not a grant of
jurisdiction, but merely a procedural device for deciding cases already within a
court’s jurisdiction.” Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). CR
35.
A. The Rules of Statutory Construction do not support Stewart’s interpretation
of Chapter 143 or the M&C Agreement.
In enacting a statute, it is presumed that the entire statute is intended to be
effective, and a just and reasonable result is intended. Tex.Gov’tCode, §311.021.
CR 35. Under the rules of statutory construction, the primary concern is the
express statutory language. Galbraith Eng’g Consultants, Inc. v. Pochucha, 290
S.W.3d 863, 867 (Tex. 2009). CR 35. Courts apply the plain meaning of the text
unless a different meaning is supplied by legislative definition or is apparent from
the context, or the plain meaning leads to absurd results. Marks v. St. Luke’s
9
Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010). CR 35. Lst year, this Court
found that courts must also “construe the [M&C] Agreement.” Hamilton v. Mark
Washington, et al., 2014 WL 7458988 *3 (Tex.App.—Austin 2014) (denial of
appeal of indefinite suspension of police officer). “We examine the entire contract
in an effort to harmonize and effectuate all of its provisions so that none are
rendered meaningless. We do not give controlling effect to any single provision;
instead, we read all of the provisions in light of the entire agreement.” Hamilton,
at *3. (internal citations omitted) In another case seeking to interpret a collective
bargaining agreement (“CBA”), that appellate court found that “[w]e do not agree
with [plaintiff’s] interpretation of the CBA and its interaction with the Local
Government Code. The CBA is unambiguous. (holding language that can be given
certain or definite legal meaning is unambiguous).” Mata v. City of San Antonio,
2012 WL 1364594 *3 (Tex.App.—San Antonio 2012. (internal citations omitted)
CR 35. Similarly, in this case the M&C Agreement is unambiguous authorizing
Agreed Temporary Suspensions from which “there shall be no appeal,” with a
“Last Chance Agreement” “as an alternative to indefinite suspension,” consistent
with Chapter 143. M&C Agreement, Article 18, Secs. 3 & 7. CR 70-74, AA3.
B. Stewart lacked standing and the district court lacked jurisdiction because
administrative remedies were not exhausted.
First, the “Civil Service Act outlines the disciplinary process by which a
municipality may suspend an officer and the procedure for the appeal of a
10
suspension. See Tex. Loc. Gov’t Code §143.051-.057.” Hamilton, at *4. Second,
the M&C Agreement outlines mandatory grievance procedures for complaints
about violations of the M&C Agreement. Under both the Civil Service Act and the
M&C Agreement, the district court lacked subject matter jurisdiction based on lack
of standing because administrative remedies were not exhausted.
1. The district court lacked jurisdiction over claims for reinstatement,
back pay and lost benefits.
The district court lacked jurisdiction over Stewart’s claim for reinstatement
under Chapter 143 because the statute gives the Civil Service Commission
exclusive jurisdiction over such claims. Tex.Loc.Gov’tCode, §143.053(e)(3), AA2.
“When the legislature grants an administrative body the sole authority to make an
initial determination in a dispute, the agency has exclusive jurisdiction over the
dispute.” Hamilton, at *6. (“[T]he sole authority to make the initial decision to
uphold the suspension or reverse it and grant reinstatement is afforded the official
making the decision at the Commission level”). Accordingly, “the district court
lacked jurisdiction over [plaintiff’s] claim for reinstatement because the
Commission has exclusive jurisdiction over such claims.” Hamilton, at *6.
Stewart asserts that the trial court has jurisdiction under Section 143.015
Appeal of Commission Decision to District Court. CR 23. However, last year this
Court concluded that “[b]ecause the Commission determined that Hamilton has
failed to invoke its jurisdiction, it did not hold a hearing or refer the appeal to a
11
hearing examiner. Consequently, Hamilton’s suit is not an appeal of a decision of
the Commission or a hearing examiner, and there is no Commission decision for
the trial court to consider de novo nor any basis for awarding relief under section
143.015.” Hamilton, at *5. CR 37. Just as in Hamilton, there is no Commission
decision in this case, depriving the district court of subject matter jurisdiction. CR
37. More recently, this Court concluded that because the officer “has not
exhausted all of her administrative remedies, neither we nor the trial court have
jurisdiction to order that she be reinstated with back pay and benefits.” Brown v.
Nero, 2015 WL 5666172 *3 (Tex.App.—Austin 2015), citing Hamilton, at *10.
“When the administrative body has exclusive jurisdiction, a party must
exhaust all administrative remedies before seeking judicial review of the decision,
and if the party has not met the exhaustion requirement, the trial court lacks subject
matter jurisdiction and must dismiss the claims without prejudice to refiling.”
Hamilton, at *6. “Because [plaintiff’s] appeal was rejected, there has been no
initial determination in this dispute at the Commission level, and [plaintiff] has not
exhausted his administrative remedies. We therefore conclude that the district
court lacked subject matter jurisdiction over [plaintiff’s] request for reinstatement
and did not err in granting the City’s plea.” Hamilton, at *6. Similarly, Director
Washington rejected Stewart’s appeal in this case. It was error to deny the City’s
plea because failure to exhaust the mandatory administrative remedies in Chapter
12
143 deprived the district court of jurisdiction. CR 37.
2. The district court lacked jurisdiction to void the Agreed Temporary
Suspension.
The district court not only lacked subject matter jurisdiction for failure to
exhaust administrative remedies under Chapter 143, but also for failure to exhaust
administrative remedies under the M&C Agreement grievance procedures. CR 36,
AA3. This Court has already found that both administrative remedies must be
exhausted to confer jurisdiction. Hamilton, at *10 (“we agree with the City that
Hamilton lacked standing to sue for breach of contract because he failed to exhaust
the administrative remedies required by the Agreement.) Hamilton, at *10. CR
36. Stewart’s purported request for declarations under the UDJA, are actually
breach of contract claims because they allege breach of the M&C Agreement
whose mandatory grievance procedures he failed to pursue as required by the Civil
Service Act. CR 78-81. M&C Agreement, Article 20, Grievance Procedures,
AA3. Hamilton, at *9 (“Hamilton’s final claim is one for breach of contract based
on alleged violations of his rights under the Agreement.” “Hamilton lacked
standing to sue for breach of contract because he failed to exhaust his
administrative remedies under the Civil Service Act, an issue we have already
resolved in the City’s favor”). “Here, the Agreement similarly provides that a
grievance may be filed by any individual officer to whom the Agreement applies.”
Hamilton, at *10 (“Hamilton was an active APD officer, not belonging to any of
13
the excluded categories, who was covered by the Agreement and bound by its
grievance procedure.”) Hamilton, at *10.
The M&C Agreement outlines mandatory grievance procedures for
complaints about violations of the M&C Agreement (“a ‘grievance’ is defined as
any dispute, claim, or complaint involving the interpretation, application, or
alleged violation of any provision of this Agreement”). CR 36, AA3. Stewart
sought a declaration that his Agreed Temporary Suspension is void because (a) it
does not comply with the M&C Agreement, (b) the APA was not a party, and (c)
an arbitrator should determine whether he violated his Last Chance Agreement.
CR 24. Although represented by the APA and a CLEAT attorney, Stewart
requested no changes to the terms of the Last Chance Agreement. Mata, at *1 (the
union and plaintiff “asked for a few changes in the terms of the agreement, which
the City made”). If Stewart believed that a hearing examiner must determine if the
conduct is the same or similar, and the failure to do so constitutes a violation of the
M&C Agreement, he was required to file a contract grievance within thirty (30)
days after he knew or should have known of the facts giving rise to the grievance.
M&C Agreement, Article 20. CR 78-81, AA3. No contract grievance was ever
filed. It was error to deny the City’s plea because failure to exhaust the mandatory
administrative remedies in the M&C Agreement deprived the district court of
jurisdiction.
14
Moreover, voiding the Last Chance Agreement would result in Stewart’s
termination on September 13, 2012 because it was in lieu of indefinite suspension.
CR 40. “If the last chance agreement is void, then Mata’s first indefinite
suspension remains in place.” Mata, at *5. “The Act’s ten-day period to appeal a
suspension would bar Mata’s untimely appeal from the original indefinite
suspension.” Mata, at *5 (“Without signing the last chance agreement in the first
place . . . she would have been justifiably terminated. Her signing of the last
chance agreement saved her from being terminated.)” Mata, n.2, citing Cf.
Summers v. Keebler Co., 133 Fed. App’x. 249, 252 (6th Cir. 2005).
APD has a history of entering into Last Chance Agreements. CR 38. Mata,
at *5 (“there is a history of settlement agreements . . . the record shows that the
execution of a last chance agreement was not contrary to the CBA”). Stewart
signed the Last Chance Agreement without taking issue with any terms. Mata, at
*1 (“neither questioned the legality of nor argued that the last chance agreement
violated the terms” of the M&C Agreement). In the last fifteen years of APD Last
Chance Agreements, the APA has never signed, has never requested to sign, and
has never filed a grievance under the M&C Agreement grievance procedures
complaining that the APD was not a signatory. CR 91-93. Mata, at *1 (plaintiff,
the police chief, and “one witness signed the last chance agreement, [police union]
did not.”) In the last fifteen years, the only legal challenge to a Last Chance
15
Agreement was denied. Tony Smith v. Hubert Arturo “Art” Acevedo, et al., Case
No. A-09-CA-620-S, U.S. District Court, Western District, Austin Division, Sept.
20, 2010 (“of particular importance to Plaintiff’s defamation claim here, was a
2005 agreed 60-day suspension . . . Plaintiff signed the memo on April 20, 2005,
acknowledging both receipt and his understanding that he forfeited his right to
appeal in return for the Chief not exercising his right to terminate Plaintiff for the
described conduct”). Stewart is attempting to challenge the process in his 2012
Agreed Temporary Suspension through the vehicle of his 2013 non-appealable
indefinite suspension, because he failed to appeal his temporary suspension within
the ten days mandated by Chapter 143 remedies. Tex.Loc.Gov’tCode, §143.010,
AA2. (“Defendants point out, and the Court agrees, Plaintiff’s claims relating to
his 2005 discipline are time-barred. Plaintiff is attempting to challenge the process
he received in 2005 through the vehicle of the 2008 memo.” “If Plaintiff wished to
complain about the process he received in 2005, he should have done so”).
Similarly, Stewart should have complained about the 2012 Agreed Temporary
Suspension at that time. CR 38.
The UDJA is “not a grant of jurisdiction, but merely a procedural device for
deciding cases already within a court’s jurisdiction.” Chenault v. Phillips, 914
S.W.2d 140, 141 (Tex. 1996). Stewart cannot enlarge the court’s jurisdiction by
reframing his breach of contract claim as a UDJA claim. CR 40. Further, “a
16
declaratory judgment action will not lie to provide redundant remedies,” in this
case Chapter 143 remedies. Beacon Nat’l Ins. v. Montemayor, 86 S.W.3d 260, 267
(Tex.App.—Austin 2002, no pet.). Finally, the plain language of the M&C
Agreement expressly authorizes Last Chance Agreements, does not require the
APA sign as a party, and does not require that an arbitrator determine whether the
act was the same or a similar act. CR 40. It was error to deny the City’s plea
because failure to exhaust the administrative remedies in the M&C Agreement
deprived the district court of jurisdiction. CR 37.
C. The district court lacked jurisdiction over claims for which governmental
immunity is not waived.
Governmental immunity protects political subdivisions of the State,
including cities, absent express waiver. Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 694 n.3 (Tex. 2003). CR 40. “The Civil Service Act provides a
limited waiver of governmental immunity from suit for appeal of a Commission
decision to district court. See Tex.Loc.Gov’tCode §143.015. For a suit to proceed
against a governmental unit under a statute [that waives immunity], the court must
first look to the terms of the Act to determine the scope of its waiver and then
‘consider the particular facts of the case . . . to determine whether it comes within
that scope’.” Hamilton, at *3. CR 40. Stewart’s “requests for declaratory and
mandamus relief and his purported ‘appeal’ of the Commission’s ‘decision’ do not
fall within the waiver of immunity granted in section 143.015(b), and the district
17
court did not have jurisdiction over [plaintiff’s] claims under the Civil Service
Act.” Hamilton, at *5. CR 40. The UDJA waives immunity for certain claims;
however, it is not a general waiver of immunity. Texas Parks & Wildlife Dep’t v.
Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). CR 40. The UDJA “does not
waive immunity against claims seeking a declaration of the claimant’s statutory
rights. Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per
curiam).” The UDJA waives governmental immunity only when the plaintiff
seeks a declaration challenging the constitutionality or validity of a statute or
ordinance. The UDJA waives immunity for those claims only because section
37.006(b) calls for the joinder of the governmental entity as a party when the
validity of its statute or ordinance is challenged. Sefzik, 355 S.W.3d at n.3
(immunity from suit is not waived for a UDJA action in which “a plaintiff seeks a
declaration of his or her rights under a statute or other law.”)
1. Immunity bars claims against the City for back pay and lost benefits.
As this Court has held, a claim for reinstatement, back pay and lost benefits
is jurisdictionally barred because “neither [the appellate court] nor the trial court
have jurisdiction to order that [Stewart] be reinstated with back pay and benefits,”
the Commission having sole authority to make that decision. Brown, at *3
(affirming plea to the jurisdiction on request for “reinstatement with back pay and
benefits”). Additionally, “if the sole purpose of a declaration is to obtain a money
18
judgment, immunity is not waived.” Hamilton, at *5, citing City of El Paso v.
Heinrich, 284 S.W.3d 366 (Tex. 2009). CR 41. “[D]eclaratory and mandamus
claims for back pay and lost benefits seek retrospective monetary compensation for
salary and benefits of which he was deprived by the City’s alleged wrongful
actions . . . and are therefore claims for money damages that implicate
governmental immunity . . . we agree with the City that governmental immunity is
not waived and the district court did not err in granting the City’s plea to the
jurisdiction as to those claims.” Hamilton, at *7. CR 41.
2. Immunity bars claims against Director Washington for acts which are
not ministerial.
Stewart seeks a declaratory judgment, granting “referral to a third party
arbitrator on the prerequisite issue of same or similar conduct,” alleging
“procedural arbitrability” citing to Howsam. CR 24. However, in that case the U.
S. Supreme Court reaffirmed that “arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which he has not agreed so
to submit.” Howsam v. Dean Witter Reynolds, Inc., 123 S.Ct. 588, 591 (2002).
CR 41. In this case, there is no contractual provision in the M&C Agreement to
submit either a Last Chance Agreement, or a non-appealable indefinite suspension
pursuant to a Last Chance Agreement to arbitration; therefore, forwarding the
appeal was not a ministerial act.
Stewart complains of rejection of his appeal by Director Washington
19
asserting the “ultra vires exception to governmental immunity applies to Director
Washington’s failure to perform a purely ministerial act because he acted outside
of his official capacity or without legal authority.” CR 26. “Suits against
governmental officials alleging that they ‘acted without legal authority or failed to
perform a purely ministerial act’ and seeking to compel the officials ‘to comply
with statutory or constitutional provisions’ fall within the ‘ultra vires’ exception to
governmental immunity because they ‘do not attempt to exert control over the state
–they attempt to reassert the control of the state.’ Id. Generally, however, only
prospective relief is available. Thus, although governmental immunity protects a
city from lawsuits for retrospective money damages, a request for prospective
injunctive or mandamus relief from illegal or unauthorized acts may be pursued
under the UDJA against the appropriate officials in their official capacities.”
Hamilton, at *5. (internal citations omitted), citing Heinrich, 284 S.W.3d at 372.
CR 42.
Stewart alleges that he “did not waive his civil service right to an appeal to
an independent third-party hearing examiner on the issue of whether the alleged
conduct occurred and if so, whether the conduct was the same or similar in nature
to the conduct complained of in the previous suspension to invoke the terms of the
last chance agreement/probation.” CR 27. By the plain language of the
Agreement, Stewart expressly waived “all right to appeal this disciplinary
20
action, including the additional terms and conditions cited herein.” [emphasis
added] CR 53. Furthermore, under the Civil Service Act, the Chief of Police has
the sole statutory authority to determine if an officer has violated civil service
rules, and if so, has the sole authority to impose disciplinary action. CR 43. A
Hearing Examiner conducts an appellate review only, and has no statutory or
contractual authority to make the initial contractual determination. CR 43.
Director Washington complied with the language of the Agreed Temporary
Suspension, the M&C Agreement, and the Civil Service Act when he rejected
Stewart’s appeal, none of which authorize appeal of “Last Chance Agreements.”
Tex.Loc.Gov’tCode, §143.052(g). CR 43, AA2. The mandatory language of the
M&C Agreement expressly bars appeals of Last Chance Agreements. (“there
shall be no appeal”) [emphasis added]. M&C Agreement, Article 18, Sec. 3.
Because there was no right to appeal, Director Washington had a ministerial duty
not to forward Stewart’s appeal to a Hearing Examiner. CR 43.
The M&C Agreement supersedes Chapter 143 in the event of a conflict.
M&C Agreement, Article 18, Sec. 7. CR 43, AA3. Stewart points to no grant of
authority under which a hearing examiner has jurisdiction to hear an appeal of a
Last Chance Agreement, the terms and conditions cited therein, or a non-
appealable indefinite suspension pursuant to a Last Chance Agreement. CR 43.
Because there is a contractual prohibition for this appeal, Director Washington not
21
only had no jurisdiction to act upon the appeal, he was contractually prohibited
from doing so. CR 43. It would have been ultra vires to forward an appeal barred
by the M&C Agreement to an arbitrator. Accordingly, Stewart’s claim against
Director Washington does not fall within the ultra vires exception to immunity.
CR 43.
Stewart seeks a writ of mandamus to forward his appeal to an independent
third-party hearing examiner pursuant to Texas Government Code §24.011. CR
24. Mandamus is an extraordinary remedy available only in limited circumstances
to correct a clear abuse of discretion or the violation of a duty imposed by law
when the relator has no adequate remedy by appeal. In re Crow-Billingsley Air
Park, Ltd., 98 S.W.3d 178, 279 (Tex. 2003). CR 43. “Before being entitled to
the issuance of a writ of mandamus, a petitioner must establish both a clear right to
such relief and a clear duty on the part of the Commission to act.” Firefighters’
and Police Officers’ Civil Service Com’n of City of Houston v. Ceazer, 725 S.W.2d
431, 433 (Tex.App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.). CR 44. A
hearing examiner lacks jurisdiction to hear Stewart’s appeal because neither the
M&C Agreement nor Chapter 143 authorize appeal of a non-appealable indefinite
suspension pursuant to a Last Chance Agreement waiving all appeal rights. CR 44.
D. The district court lacked jurisdiction because all claims against the Chief of
Police were abandoned.
Stewart abandoned all claims against Chief Acevedo. The wrongful
22
termination and retaliation claims asserted in both his Original Petition and First
Amended Petition were deleted from the Second Amended Petition. CR 23-28.
The plea to the jurisdiction sought dismissal of Chief Acevedo because no facts
were pled, and no claims were asserted against him. CR 34. Stewart’s response to
the plea did not dispute that all claims against Chief Acevedo were abandoned. CR
94-101. Accordingly, the district court lacked subject matter jurisdiction and Chief
Acevedo should have been dismissed.
CONCLUSION AND PRAYER
An appeal of whether misconduct occurred, or was the same or similar act of
misconduct, in fact appeals the merits of disciplinary action, which nullifies Last
Chance Agreements. Stewart’s self-serving interpretation of his waiver of all
appeal rights argues that he merely entered into a “second-to-the-last-chance
agreement,” allowing him a “last, last chance” before a hearing examiner which he
expressly waived. Such a construction would make a nullity of Last Chance
Agreements, the intent of the APA and the City in the M&C Agreement, as well as
the Texas Legislature in enacting the Civil Service Act which expressly supersedes
Chapter 143 with the M&C Agreement. Accepting Stewart’s argument, every
police officer will enter into a “Last Chance Agreement” to avoid dismissal,
knowing that the only consequence will be a “last, last chance” and appeal to a
hearing examiner. Chapter 143 and the M&C Agreement do not allow such an
23
absurd result. The true consequence will be that the Chief of Police will no longer
offer Last Chance Agreements if rendered meaningless, and police officers will no
longer have an opportunity to prove themselves, and save their law enforcement
careers.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, Interim City Attorney
MEGHAN L. RILEY, Chief, Litigation
/s/ Chris Edwards
CHRIS EDWARDS
Assistant City Attorney
State Bar No. 00789276
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2419
Facsimile: (512) 974-1311
chris.edwards@austintexas.gov
COUNSEL FOR DEFENDANTS - APPELLANTS
24
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or
their attorneys of record, in compliance with the Appellate Rules of Civil
Procedure, this 9th day of November, 2015.
Grant Goodwin
State Bar No. 00787567
400 W. 14th Street, Suite 100
Austin, Texas 78701
Telephone: (512) 495-9111
Facsimile: (512) 495-9301
grant.goodwin@cleat.org
Counsel for Plaintiff - Appellee
/s/ Chris Edwards
CHRIS EDWARDS
Counsel for Defendants – Appellants
25
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Tex. R. of App. P.
9.4(i)(2)(B) because this brief contains 5418 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Chris Edwards
CHRIS EDWARDS
Counsel for Defendants – Appellees
26
APPENDIX
TAB
1 Order Denying Defendants’ Plea to the Jurisdiction, Remanding for Further
Proceedings, and Staying Proceedings Before the Court.
2 Texas Local Government Code, Chapter 143.
3 Agreement Between the City of Austin and the Austin Police Association
(“Meet and Confer Agreement”).
27
APPENDIX 1
£0"d ll:::HOl
NO. D-1-GN-13-003351
WILLIAM M. STEWART, §
Plaintiff §
§
v. §
§
THE CITY OF AUSTIN §
JnRE:FIGHTERS' AND POLICE §
OFFICERS' CIVIL SERVICE §
COMMISSION, DIRECTOR MARK §
WASHINGTON, CIDEF ARTURO §
ACEVEDO, AND THE CITY OF §
AUSTIN, TEXAS, §
Defendants § TRAVIS COUNTY, TEXAS
ORDER DENYING DEFENDANTS' PLEA TO THE JURISDICTION, REMANDING
FOR FURTHER PROCEEDINGS. AND STAYING PROCEEDINGS BEFORE THE
COURT
On July 27, 2015, the Defendants' Plea to the Jurisdiction came to be heard, and after
reading the Plea, hearing the arguments, reviewing the applicable case law, and considering
the same, the Court finds as follows:
1. The Court ORDERS that Defendants' Plea to the Jurisdiction is DENIED;
2. The Court FURTHER ORDERS that the case be REMANDED to the City of
Austin so that a third-party hearing examiner can address the issue of"same or
similar act of misconduct" pursuant to Loc. Gov. Code Sec. 143.057; and
3. The Court FURTHER ORDERS that all further actions before the Court be
STAYED pending resolution of the administrative grievance process.
Therefore, it is ORDERED, ADJUDGED AND DECREED that Defendants' Plea to
the Jurisdiction is DENIED, the case is REMANDED to the City of Austin for further
proceedings, and all actions before the Court are STAYED pending resolution of the
administrative grievance process.
SIGNED on this the_---=-}__ day of September, 2015.
£0.d ~~nOJ ~JI~~Sia H~6Tt TT:TT ST0c-T0-d3S
APPENDIX 2
LOCAL GOVERNMENT CODE
TITLE 5. MATTERS AFFECTING PUBLIC OFFICERS AND EMPLOYEES
SUBTITLE A. MUNICIPAL OFFICERS AND EMPLOYEES
CHAPTER 143. MUNICIPAL CIVIL SERVICE FOR FIREFIGHTERS AND POLICE
OFFICERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec.A143.001.AAPURPOSE. (a) The purpose of this chapter is
to secure efficient fire and police departments composed of capable
personnel who are free from political influence and who have
permanent employment tenure as public servants.
(b)AAThe members of the Fire Fighters ’ and Police Officers ’
Civil Service Commission shall administer this chapter in
accordance with this purpose.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 143.002.AAMUNICIPALITIES COVERED BY CHAPTER. (a) This
chapter applies only to a municipality:
(1)AAthat:
(A)AAhas a population of 10,000 or more;
(B)AAhas a paid fire department or police
department; and
(C)AAhas voted to adopt this chapter or the law
codified by this chapter; or
(2)AAwhose election to adopt this chapter and whose
acts subsequent to that election were validated by the law enacted
by House Bill 822, Acts of the 73rd Legislature, Regular Session,
1993.
(b)AAPopulation under Subsection (a)(1) is determined by the
most recent:
(1)AAfederal decennial census; or
(2)AAannual 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)AAIf this chapter applies to a municipality as provided by
Subsection (a), the application of this chapter to the municipality
1
is not affected if the municipality ’s population changes and the
municipality no longer meets the population requirement of
Subsection (a)(1).
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1993, 73rd Leg., ch. 576, Sec. 1, eff. Aug. 30, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 212 (H.B. 1913), Sec. 1, eff. May
27, 2005.
Acts 2005, 79th Leg., Ch. 1163 (H.B. 3409), Sec. 1, eff. June
18, 2005.
Sec.A143.003.AADEFINITIONS. In this chapter:
(1)AA"Commission" means the Fire Fighters ’ and Police
Officers ’ Civil Service Commission.
(2)AA"Department head" means the chief or head of a fire
or police department or that person ’s equivalent, regardless of the
name or title used.
(3)AA"Director" means the director of fire fighters ’
and police officers ’ civil service.
(4)AA"Fire fighter" means a member of a fire department
who was appointed in substantial compliance with this chapter or
who is entitled to civil service status under Section 143.005 or
143.084.AAThe term:
(A)AAapplies only to an employee of a fire
department whose position requires substantial knowledge of fire
fighting and who has met the requirements for certification by the
Texas Commission on Fire Protection under Chapter 419, Government
Code, including an employee who performs:
(i)AAfire suppression;
(ii)AAfire prevention;
(iii)AAfire training;
(iv)AAfire safety education;
(v)AAfire maintenance;
(vi)AAfire communications;
(vii)AAfire medical emergency technology;
(viii)AAfire photography;
(ix)AAfire administration; or
2
(x)AAfire arson investigation; and
(B)AAdoes not apply to a secretary, clerk, budget
analyst, custodial engineer, or other administrative employee.
(5)AA"Police officer" means a member of a police
department or other peace officer who was appointed in substantial
compliance with this chapter or who is entitled to civil service
status under Section 143.005, 143.084, or 143.103.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 2001, 77th Leg., ch. 498, Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 738 (H.B. 2640), Sec. 1, eff.
September 1, 2005.
Sec.A143.004.AAELECTION TO ADOPT OR REPEAL CHAPTER. (a) A
municipality may hold an election to adopt or repeal this chapter as
provided by this section.
(b)AAIf the governing body of the municipality receives a
petition requesting an election that is signed by a number of
qualified voters of the municipality equal to at least 10 percent of
the number of voters who voted in the most recent municipal
election, the governing body shall order an election submitting to
the voters the question of whether this chapter 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)AAThe ballot shall be printed to provide for voting for or
against the proposition: "Adoption of the fire fighters ’ and
police officers ’ civil service law." However, this chapter may be
adopted to apply only to the fire or police department, and in that
case, the ballot shall be printed to reflect the department that
would be covered by this chapter. If a majority of the votes
received in the election are in favor of adoption of this chapter,
the governing body shall implement this chapter.
(d)AAIf 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
3
was held. To be valid, a petition for a subsequent election must
contain the signatures of a number of qualified voters of the
municipality equal to at least 20 percent of the number of voters
who voted in the most recent municipal election. Any subsequent
election must be held at the next general municipal election that
occurs after the petition is filed.
(e)AAIf the governing body of a municipality that has
operated under this chapter for at least one year receives a
petition requesting an election to repeal this chapter that is
signed by at least 10 percent of the qualified voters of the
municipality, the governing body shall order an election submitting
to the voters the question on whether this chapter should be
repealed. If a majority of the qualified voters vote to repeal this
chapter, this chapter is void in that municipality.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 143.005.AASTATUS OF EMPLOYEES IF CHAPTER ADOPTED. (a)
Each fire fighter or police officer serving in a municipality that
adopts this chapter and who has been in the service of the
municipality for more than six months at the time this chapter 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.
(b)AAIn a municipality that adopts this chapter, an employee
of the fire department whose primary duties are to provide
emergency medical services for the municipality is considered to be
a fire fighter who is a member of the fire department performing
fire medical emergency technology, entitled to civil service
protection, and covered by this chapter.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch. 1034 (H.B. 1126), Sec. 7, eff.
September 1, 2005.
Text of section as added by Acts 2005, 79th Leg., R.S., Ch. 129
(H.B. 263), Sec. 1
4
For text of section as added by Acts 2005, 79th Leg., Ch. 869 (S.B.
1050), Sec. 1, see other Sec. 143.0051.
Sec. 143.0051.AASTATUS OF EMPLOYEES IN CERTAIN FIRE
DEPARTMENTS. (a) This section applies only to a fire department
employee employed by a municipality with a population of 220,000 or
more.AAThis section does not apply to a fire department employee
employed by a municipality:
(1)AAthat has adopted Chapter 174; or
(2)AAto which Subchapter H or I applies.
(b)AANotwithstanding any other provision of this chapter, a
previously non-classified fire department employee who serves in a
position described by Section 143.003(4)(B), (D), (G), or (J) has
the status of a civil service employee and is not required to take a
competitive examination to remain in the employee ’s position if:
(1)AAthe employee was appointed to that position on or
before May 1, 2005, and was serving in that position on the date
described by Subsection (c); and
(2)AAthe municipality ’s governing body by ordinance
amends the municipality ’s existing classification of fire
department employees to include the employee ’s position as provided
by Section 143.021.
(c)AAThe civil service status of an employee to which
Subsection (b) applies is effective on the date that the ordinance
amending the municipality ’s classification system to include the
employee ’s position takes effect.
(d)AAA fire department employee who has civil service status
under Subsection (b) may be promoted only:
(1)AAby competitive examination in accordance with the
competitive civil service procedures prescribed in this chapter;
and
(2)AAwithin the employee ’s existing division.
(e)AAA fire department employee who has civil service status
under Subsection (b) may not:
(1)AAsupervise or evaluate classified civil service
personnel assigned to fire suppression or emergency medical
operations; or
(2)AAlaterally transfer to fire suppression or
5
emergency medical operations.
(f)AAIf a fire department employee who has civil service
status under Subsection (b) leaves the employee ’s position for any
reason, a person selected to fill that position must be selected in
accordance with the competitive civil service procedures
prescribed in this chapter.
Added by Acts 2005, 79th Leg., Ch. 129 (H.B. 263), Sec. 1, eff. May
24, 2005.
Text of section as added by Acts 2005, 79th Leg., R.S., Ch. 869
(S.B. 1050), Sec. 1
For text of section as added by Acts 2005, 79th Leg., Ch. 129 (H.B.
263), Sec. 1, see other Sec. 143.0051.
Sec. 143.0051.AASTATUS OF EMPLOYEES IN CERTAIN FIRE
DEPARTMENTS. (a) This section applies only to a fire department
employee employed by a municipality with a population of 150,000 or
more and with a governing body of five or fewer members.
(b)AANotwithstanding any other provision of this chapter, a
previously nonclassified fire department employee who serves in a
position described by Section 143.003(4)(B), (D), (G), or (J) has
the status of a civil service employee and is not required to take a
competitive examination to remain in the employee ’s position if:
(1)AAthe employee was appointed to that position on or
before May 1, 2005, and was serving in that position on the date
described by Subsection (c); and
(2)AAthe municipality ’s governing body by ordinance
amends the municipality ’s existing classification of fire
department employees to include the employee ’s position as provided
by Section 143.021.
(c)AAThe civil service status of an employee to which
Subsection (b) applies is effective on the date that the ordinance
amending the municipality ’s classification system to include the
employee ’s position takes effect.
(d)AAA fire department employee who has civil service status
under Subsection (b) may be promoted only:
(1)AAby competitive examination in accordance with the
competitive civil service procedures prescribed in this chapter;
6
and
(2)AAwithin the employee ’s existing division.
(e)AAA fire department employee who has civil service status
under Subsection (b) may not:
(1)AAsupervise or evaluate classified civil service
personnel assigned to fire suppression or emergency medical
operations; or
(2)AAlaterally transfer to fire suppression or
emergency medical operations.
(f)AAIf a fire department employee who has civil service
status under Subsection (b) leaves the employee ’s position for any
reason, a person selected to fill that position must be selected in
accordance with the competitive civil service procedures
prescribed in this chapter.
Added by Acts 2005, 79th Leg., Ch. 869 (S.B. 1050), Sec. 1, eff.
September 1, 2005.
Sec. 143.0052.AAFEE FOR EMERGENCY MEDICAL SERVICES.
(a)AAThis section applies only to a municipality that:
(1)AAhas a population of more than 220,000 and less than
250,000;
(2)AAis located in a county in which another
municipality that has a population of more than one million is
predominately located; and
(3)AAwhose emergency medical services are administered
by a fire department.
(b)AABy resolution of its governing body, a municipality may
establish a monthly fee for the costs of emergency medical
services, including salary and overtime related to medical
personnel.AAThis fee is applicable to each and every customer
served by a municipal water account and may be collected in
conjunction with the bill for water services.
(c)AAA municipality acting under this section supersedes any
authority established under Chapter 286, Health and Safety Code.
Added by Acts 2009, 81st Leg., R.S., Ch. 1415 (S.B. 1896), Sec. 1,
eff. September 1, 2009.
Amended by:
7
Acts 2011, 82nd Leg., R.S., Ch. 1163 (H.B. 2702), Sec. 69,
eff. September 1, 2011.
Sec.A143.006.AAIMPLEMENTATION: COMMISSION. (a) On
adoption of this chapter, the Fire Fighters ’ and Police Officers ’
Civil Service Commission is established in the municipality. The
chief executive of the municipality shall appoint the members of
the commission within 60 days after the date this chapter is
adopted. Within 30 days after the date the municipality ’s first
full fiscal year begins after the date of the adoption election, the
governing body of the municipality shall implement this chapter.
(b)AAThe commission consists of three members appointed by
the municipality ’s chief executive and confirmed by the governing
body of the municipality. Members serve staggered three-year terms
with the term of one member expiring each year. If a vacancy occurs
or if an appointee fails to qualify within 10 days after the date of
appointment, the chief executive shall appoint a person to serve
for the remainder of the unexpired term in the same manner as the
original appointment.
(c)AAA person appointed to the commission must:
(1)AAbe of good moral character;
(2)AAbe a United States citizen;
(3)AAbe a resident of the municipality who has resided
in the municipality for more than three years;
(4)AAbe over 25 years of age; and
(5)AAnot have held a public office within the preceding
three years.
(c-1)AANotwithstanding Subsection (c)(5), the
municipality ’s chiefAAexecutive may reappoint a commission member
to consecutive terms.AAA 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
municipality ’s governing body.
(c-2)AASubsection (c)(5) does not prohibit the
municipality ’s chief executive from appointing a former commission
member to the commission if the only public office held by the
8
former member within the preceding three years is membership on:
(1)AAthe commission; or
(2)AAthe commission and the municipality ’s civil
service board for employees other than police officers and
firefighters through a joint appointment to the commission and
board.
(c-3)AASubsections (c-1) and (c-2) do not apply to a
municipality with a population of 1.5 million or more.
(d)AAIn making initial appointments, the chief executive
shall designate one member to serve a one-year term, one member to
serve a two-year term, and one member to serve a three-year term.
If a municipality has a civil service commission immediately before
this chapter takes effect in that municipality, that civil service
commission shall continue as the commission established by this
section and shall administer the civil service system as prescribed
by this chapter. As the terms of the members of the previously
existing commission expire, the chief executive shall appoint
members as prescribed by this section. If necessary to create
staggered terms as prescribed by this section, the chief executive
shall appoint the initial members, required to be appointed under
this chapter, to serve terms of less than three years.
(e)AAInitial members shall elect a chairman and a
vice-chairman within 10 days after the date all members have
qualified. Each January, the members shall elect a chairman and a
vice-chairman.
(f)AAThe governing body of the municipality shall provide to
the commission adequate and suitable office space in which to
conduct business.
(g)AAThe chief executive of a municipality commits an offense
if the chief executive 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 chief executive
knowingly or intentionally fails to make a required appointment
constitutes a separate offense.
(h)AAThe chief executive of a municipality or a municipal
9
official commits an offense if the person knowingly or
intentionally refuses to implement this chapter or attempts to
obstruct the enforcement of this chapter. An offense under this
subsection is a misdemeanor punishable by a fine of not less than
$100 or more than $200.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch. 475 (H.B. 150), Sec. 1, eff. June
17, 2005.
Sec.A143.007.AAREMOVAL OF COMMISSION MEMBER. (a) If at a
meeting held for that purpose the governing body of the
municipality finds that a commission member is guilty of misconduct
in office, the governing body 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)AAIf 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)AAThe governing body may appoint a substitute commission
member during a period of suspension. If a member pleads guilty to
or is found to be guilty of a criminal offense involving moral
turpitude, the governing body shall appoint a replacement
commission member to serve the remainder of the disqualified
member ’s term of office.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(82), eff. Sept. 1, 1995.
Sec.A143.008.AAADOPTION AND PUBLICATION OF RULES. (a) A
commission shall adopt rules necessary for the proper conduct of
commission business.
(b)AAThe commission may not adopt a rule permitting the
appointment or employment of a person who is:
(1)AAwithout good moral character;
10
(2)AAphysically or mentally unfit; or
(3)AAincompetent to discharge the duties of the
appointment or employment.
(c)AAThe commission shall adopt rules that prescribe cause
for removal or suspension of a fire fighter or police officer. The
rules must comply with the grounds for removal prescribed by
Section 143.051.
(d)AAThe commission shall publish each rule it adopts and
each classification and seniority list for the fire and police
departments. 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 governing body of the municipality is not
required to act on the rule.
(e)AAA rule is not valid and binding on the commission until
the commission:
(1)AAmails a copy of the rule to the commissioner, if
the municipality has an elected commissioner, and to department
heads of the fire and police departments;
(2)AAposts a copy of the rule for a seven-day period at
a conspicuous place in the central fire and police stations; and
(3)AAmails a copy of the rule to each branch fire
station.
(f)AAThe director shall keep copies of all rules for free
distribution to members of the fire and police departments who
request copies and for inspection by any interested person.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.009.AACOMMISSION 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 chapter and any rules adopted
under this chapter and shall determine if the chapter and rules are
being obeyed.
(b)AADuring an investigation, the commission or the
commission member may:
11
(1)AAadminister oaths;
(2)AAissue subpoenas to compel the attendance of
witnesses and the production of books, papers, documents, and
accounts relating to the investigation; and
(3)AAcause the deposition of witnesses residing inside
or outside the state.
(c)AAA 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)AAAn 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)AAA person who fails to respond to a subpoena issued under
this section commits an offense punishable as prescribed by Section
143.016.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.010.AACOMMISSION APPEAL PROCEDURE. (a) Except as
otherwise provided by this chapter, if a fire fighter or police
officer wants to appeal to the commission from an action for which
an appeal or review is provided by this chapter, the fire fighter or
police officer need only file an appeal with the commission within
10 days after the date the action occurred.
(b)AAThe 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)AAIn each hearing, appeal, or review of any kind in which
the commission performs an adjudicatory function, the affected fire
fighter or police officer is entitled to be represented by counsel
or a person the fire fighter or police officer chooses. Each
commission proceeding shall be held in public.
(d)AAThe commission may issue subpoenas and subpoenas duces
tecum for the attendance of witnesses and for the production of
12
documentary material.
(e)AAThe affected fire fighter or police officer may request
the commission to subpoena any books, records, documents, papers,
accounts, or witnesses that the fire fighter or police officer
considers pertinent to the case. The fire fighter or police officer
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 fire fighter or police officer stating the reason it will not
subpoena the requested material. This report shall be read into the
public record of the commission hearing.
(f)AAWitnesses may be placed under the rule at the commission
hearing.
(g)AAThe commission shall conduct the hearing fairly and
impartially as prescribed by this chapter and shall render a just
and fair decision. The commission may consider only the evidence
submitted at the hearing.
(h)AAThe commission shall maintain a public record of each
proceeding with copies available at cost.
(i)AAIn addition to the requirements prescribed by this
section, an appeal to the commission in a municipality with a
population of 1.5 million or more must meet the requirements
prescribed by Section 143.1015.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1, Sec. 25(b), eff. Aug. 28, 1989; Acts
1989, 71st Leg., ch. 1248, Sec. 48, eff. Sept. 1, 1989.
Sec.A143.011.AADECISIONS AND RECORDS. (a) Each concurring
commission member shall sign a decision issued by the commission.
(b)AAThe commission shall keep records of each hearing or
case that comes before the commission.
(c)AAEach 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.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
13
Sec.A143.012.AADIRECTOR. (a) On adoption of this chapter,
the office of Director of Fire Fighters ’ and Police Officers ’ Civil
Service is established in the municipality. 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)AAA person appointed as director must meet each
requirement for appointment to the commission prescribed by Section
143.006(c), except that in a municipality with a population of less
than 1.5 million, the person is not required to meet the local
residency requirement.
(c)AAA person appointed as director may be a commission
member, a municipal employee, or some other person.
(d)AAThe municipality ’s governing body shall determine the
salary, if any, to be paid to the director.
(e)AAIf, immediately before this chapter takes effect in a
municipality, the municipality 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
chapter.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1999, 76th Leg., ch. 355, Sec. 1, eff. Sept. 1, 1999.
Sec.A143.013.AAAPPOINTMENT AND REMOVAL OF DEPARTMENT HEAD.
(a) Unless elected, each department head is:
(1)AAappointed by the municipality ’s chief executive
and confirmed by the municipality ’s governing body; or
(2)AAin a municipality having an elected fire or police
commissioner, appointed by the fire or police commissioner in whose
department the vacancy exists and confirmed by the municipality ’s
governing body.
(b)AAA person appointed as head of a fire department must be
eligible for certification by the Texas Commission on Fire
Protection at the intermediate level or its equivalent as
determined by that commission and must have served as a fully paid
14
fire fighter for at least five years.AAA person appointed as head of
a police department must be eligible for certification by the Texas
Commission on Law Enforcement at the intermediate level or its
equivalent as determined by that commission and must have served as
a bona fide law enforcement officer for at least five years.
(c)AAExcept as provided by Subsection (d), if a person is
removed from the position of department head, the person shall be
reinstated in the department and placed in a position with a rank
not lower than that held by the person immediately before
appointment as department head. The person retains all rights of
seniority in the department.
(d)AAIf a person serving as department head is charged with
an offense in violation of civil service rules and is dismissed from
the civil service or discharged from his position as department
head, the person has the same rights and privileges of a hearing
before the commission and in the same manner and under the same
conditions as a classified employee. If the commission finds that
the charges are untrue or unfounded, the person shall immediately
be restored to the same classification that the person held before
appointment as department head. The person has all the rights and
privileges of the prior position according to seniority and shall
be paid his full salary for the time of suspension.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.48, eff.
May 18, 2013.
Sec.A143.014.AAAPPOINTMENT AND REMOVAL OF PERSON CLASSIFIED
IMMEDIATELY BELOW DEPARTMENT HEAD. (a) This section does not apply
to a municipality with a population of 1.5 million or more.
(b)AAIf approved by the governing body of the municipality by
resolution or ordinance, the head of a fire or police department in
the municipality in which at least four classifications exist below
the classification of department head may appoint each person
occupying an authorized position in the classification immediately
below that of department head, as prescribed by this section. The
classification immediately below that of department head may
15
include a person who has a different title but has the same pay
grade.
(c)AAIn a police department, the total number of persons
appointed to the classification immediately below that of
department head may not exceed the total number of persons, plus
one, serving in that classification on January 1, 1983. In a fire
department in a municipality having fewer than 300 certified fire
fighters, the department head may appoint not more than one person
to the classification immediately below that of department head.
If a municipality has 300 to 600 certified fire fighters, the
department head may appoint two persons to the classification. If a
municipality has more than 600 certified fire fighters, the
department head may appoint three persons to the classification.
This subsection does not apply to a municipality that has adopted
The Fire and Police Employee Relations Act (Article 5154c-1,
Vernon ’s Texas Civil Statutes) unless the municipality
specifically adopts the appointment procedure prescribed by this
subsection through the collective bargaining process.
(d)AAA person appointed to a position in the classification
immediately below that of the head of the police department must:
(1)AAbe employed by the municipality ’s police
department as a sworn police officer;
(2)AAhave at least two years ’ continuous service in that
department as a sworn police officer; and
(3)AAmeet the requirements for appointment as head of a
police department prescribed by Section 143.013(b).
(e)AAA person appointed to a position in the classification
immediately below that of the head of the fire department must:
(1)AAbe employed by the municipality ’s fire department;
(2)AAhave a permanent classification in at least an
officer level; and
(3)AAmeet the requirements for appointment as head of a
fire department prescribed by Section 143.013(b).
(f)AAThe department head shall make each appointment under
this section within 90 days after the date a vacancy occurs in the
position.
(g)AAA person appointed under this section serves at the
16
pleasure of the department head. A person who is removed from the
position by the department head 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.
(h)AAIf a person appointed under this section is charged with
an offense in violation of civil service rules and indefinitely
suspended by the department head, 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.
(i)AAA person serving under permanent appointment in a
position in the classification immediately below that of the
department head on September 1, 1983, is not required to meet the
requirements of this section or to be appointed or reappointed as a
condition of tenure or continued employment.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.015.AAAPPEAL OF COMMISSION DECISION TO DISTRICT
COURT. (a) If a fire fighter or police officer is dissatisfied
with any commission decision, the fire fighter or police officer
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)AAis sent to the fire fighter or police officer by
certified mail; or
(2)AAis personally received by the fire fighter or
police officer or by that person ’s designee.
(b)AAAn 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 chapter. The relief may
include reinstatement or promotion with back pay if an order of
17
suspension, dismissal, or demotion is set aside.
(c)AAThe court may award reasonable attorney ’s fees to the
prevailing party and assess court costs against the nonprevailing
party.
(d)AAIf the court finds for the fire fighter or police
officer, the court shall order the municipality to pay lost wages to
the fire fighter or police officer.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.016.AAPENALTY FOR VIOLATION OF CHAPTER. (a) A fire
fighter or police officer commits an offense if the person violates
this chapter.
(b)AAAn offense under this section or Section 143.009 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 fine and confinement.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
SUBCHAPTER B. CLASSIFICATION AND APPOINTMENT
Sec.A143.021.AACLASSIFICATION; EXAMINATION REQUIREMENT.
(a) The commission shall provide for the classification of all fire
fighters and police officers. The municipality ’s governing body
shall establish the classifications by ordinance. The governing
body by ordinance shall prescribe the number of positions in each
classification.
(b)AAExcept for the department head and a person the
department head appoints in accordance with Section 143.014 or
143.102, each fire fighter and police officer is classified as
prescribed by this subchapter and has civil service protection.
The failure of the governing body to establish a position by
ordinance 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 chapter.
(c)AAExcept as provided by Sections 143.013, 143.014,
143.0251, 143.102, and 143.1251, an existing position or
classification or a position or classification created in the
18
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 chapter.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1995, 74th Leg., ch. 64, Sec. 1, eff. Sept. 1, 1995.
Sec.A143.022.AAPHYSICAL REQUIREMENTS AND EXAMINATIONS. (a)
The commission shall set the age and physical requirements for
applicants for beginning and promotional positions in accordance
with this chapter. The requirements must be the same for all
applicants.
(b)AAThe 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
municipality shall pay for each examination.
(c)AAIf 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.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1, Sec. 26(b), eff. Aug. 28, 1989.
Sec.A143.023.AAELIGIBILITY FOR BEGINNING POSITION. (a) A
person may not take an entrance examination for a beginning
position in the police department unless the person is at least 18
years of age.AAA person may not take an entrance examination for a
beginning position in the fire department unless the person is at
least 18 years of age but not 36 years of age or older.
(b)AAA person may not be certified as eligible for a
beginning position in a fire department if the person is 36 years of
age or older.
(c)AAA person who is 45 years of age or older may not be
19
certified for a beginning position in a police department.
(d)AAAn applicant may not be certified as eligible for a
beginning position with a fire department unless the applicant
meets all legal requirements necessary to become eligible for
future certification by the Commission on Fire Protection Personnel
Standards and Education.
(e)AAAn applicant may not be certified as eligible for a
beginning position with a police department unless the applicant
meets all legal requirements necessary to become eligible for
future licensing by the Texas Commission on Law Enforcement.
(f)AAEach police officer and fire fighter affected by this
chapter must be able to read and write English.
(g)AAIn addition to meeting the requirements prescribed by
this section, an applicant for a beginning position in a police
department in a municipality with a population of 1.5 million or
more must meet the requirements prescribed by Section 143.105.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch. 380 (S.B. 1421), Sec. 1, eff. June
17, 2005.
Acts 2009, 81st Leg., R.S., Ch. 273 (S.B. 461), Sec. 1, eff.
May 30, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.49, eff.
May 18, 2013.
Sec.A143.024.AAENTRANCE 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 to be filled or for which the examination is to be held,
and the date, time, and place of the examination.
(b)AAThe 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.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
20
Sec.A143.025.AAENTRANCE EXAMINATIONS. (a) The commission
shall provide for open, competitive, and free entrance examinations
to provide eligibility lists for beginning positions in the fire
and police departments. The examinations are open to each person
who makes a proper application and meets the requirements
prescribed by this chapter.
(b)AAAn eligibility list for a beginning position in the fire
or police 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 Subsections (d), (e), and
(l).AAThe examination must be based on the person ’s general
knowledge and aptitude and must inquire into the applicant ’s
general education and mental ability.AAA person may not be
appointed to the fire or police department except as a result of the
examination.
(c)AAAn applicant may not take an examination unless at least
one other applicant taking the examination is present.
(d)AAExaminations for beginning positions in the fire
department may be held at different locations if each applicant
takes the same examination and is examined in the presence of other
applicants.
(e)AAThis subsection applies only in a municipality to which
Subchapter J does not apply. An examination for beginning
positions in the police department must be held at one or more
locations in the municipality in which the police department is
located and may be held at additional locations outside the
municipality. An examination held at multiple locations must be
administered on the same day and at the same time at each location
at which it is given. Only one eligibility list for a police
department may be created from that examination, and only one
eligibility list may be in effect at a given time. Each applicant
who takes the examination for the eligibility list shall:
(1)AAtake the same examination; and
(2)AAbe examined in the presence of other applicants
for that eligibility list.
(f)AAAn additional five points shall be added to the
examination grade of an applicant who served in the United States
21
armed forces, received an honorable discharge, and made a passing
grade on the examination.
(g)AAAn applicant may not take the examination for a
particular eligibility list more than once.
(h)AAThe 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 appropriate 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 scheduled fire
or police training academies.
(i)AAThe grade to be placed on the eligibility list for each
applicant shall be computed by adding an applicant ’s points under
Subsection (f), 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.
(j)AANotwithstanding Subsection (i), each applicant who is
either a natural-born or adopted child of a fire fighter who
previously suffered a line-of-duty death while covered by this
chapter shall be ranked at the top of any eligibility list in which
said applicant receives a minimum passing grade on that respective
eligibility exam.AAThe deceased fire fighter ’s applicant child
must otherwise satisfy all of the requirements for eligibility for
a beginning position in a fire department contained in this
chapter.AAThis commission shall promulgate rules to identify and
verify each applicant ’s eligibility for applicability of this
subsection.
(k)AAThis section does not apply to a police department
located in a municipality with a population of 1.5 million or more.
(l)AAIn a municipality with a population of more than 1.3
million and less than 2 million, an examination for a beginning
position in the fire department may include testing instruments to
22
be used in addition to the written examination in the establishment
of the initial eligibility list.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 756, Sec. 1, 2, eff. Aug. 28, 1989;
Acts 1999, 76th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1999; Acts 2003,
78th Leg., ch. 628, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 380 (S.B. 1421), Sec. 2, eff. June
17, 2005.
Acts 2007, 80th Leg., R.S., Ch. 27 (S.B. 339), Sec. 1, eff.
September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 503 (H.B. 1488), Sec. 1, eff.
June 17, 2011.
Sec.A143.0251.AAREAPPOINTMENT AFTER RESIGNATION. The
commission may adopt rules to allow a police officer who
voluntarily resigns from the department to be reappointed to the
department without taking another departmental entrance
examination.
Added by Acts 1995, 74th Leg., ch. 64, Sec. 2, eff. Sept. 1, 1995.
Sec.A143.026.AAPROCEDURE FOR FILLING BEGINNING POSITIONS.
(a) When a vacancy occurs in a beginning position in a fire or
police department, the department head shall request in writing
from the commission the names of suitable persons from the
eligibility list. The director shall certify to the municipality ’s
chief executive the names of the three persons having the highest
grades on the eligibility list.
(b)AAFrom the three names certified, the chief executive
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)AAIf the chief executive does not appoint the person
having the highest grade, the chief executive shall clearly set
forth in writing the good and sufficient reason why the person
having the highest grade was not appointed.
(d)AAThe reason required by Subsection (c) shall be filed
23
with the commission and a copy provided to the person having the
highest grade. If the chief executive 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.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.027.AAPROBATIONARY PERIOD.
(a)AAA person appointed to a beginning position in the fire
or police department must serve a probationary period of one year
beginning on that person ’s date of employment as a fire fighter,
police officer, or academy trainee.AAIn a municipality with a
population of less than 1.9 million, the commission by rule may
extend the probationary period by not more than six months for a
person who:
(1)AAis not employed by a department in which a
collective bargaining agreement or a meet-and-confer agreement
currently exists or previously existed; and
(2)AAis required to attend a basic training academy for
initial certification by the Texas Commission on Fire Protection or
the Texas Commission on Law Enforcement.
(b)AADuring a fire fighter ’s or police officer ’s probationary
period, the department head 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 chapter or the
commission rules.
(c)AADuring a fire fighter ’s or police officer ’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 a fire
fighter or police officer serving a probationary period.
(d)AAA fire fighter or police officer who was appointed in
substantial compliance with this chapter and who serves the entire
probationary period automatically becomes a full-fledged civil
service employee and has full civil service protection.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch. 869 (S.B. 1050), Sec. 2, eff.
24
September 1, 2005.
Acts 2005, 79th Leg., Ch. 909 (H.B. 148), Sec. 1, eff.
September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 11.001,
eff. September 1, 2007.
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.50, eff.
May 18, 2013.
Sec.A143.028.AAELIGIBILITY FOR PROMOTION. (a) Except as
provided by Sections 143.013 and 143.102, a fire fighter is not
eligible for promotion unless the person has served in that fire
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. A fire fighter 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 fire
department.
(b)AAExcept as provided by Sections 143.013 and 143.102, a
police officer is not eligible for promotion unless the person has
served in that police department in the next lower position or other
positions specified by the commission for at least two years
immediately before the date the promotional examination is held. A
police officer 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 police department.
(c)AAIf a person is recalled on active military duty for not
more than 60 months, the two-year service requirements prescribed
by Subsections (a) and (b) do not apply and the person is entitled
to have time spent on active military duty considered as duty in the
respective fire or police department.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch. 833 (S.B. 863), Sec. 2, eff. June
17, 2005.
Sec.A143.029.AAPROMOTIONAL EXAMINATION NOTICE. (a) Before
the 90th day before the date a promotional examination is held, the
25
commission shall post a notice that lists the sources from which the
examination questions will be taken.
(b)AABefore 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 city hall 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)AAThe 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.
(d)AAIn addition to the notice prescribed by this section, a
municipality with a population of 1.5 million or more must post the
notice prescribed by Section 143.107.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.030.AAELIGIBILITY FOR FIRE DEPARTMENT PROMOTIONAL
EXAMINATION. (a) This section does not apply to a municipality
with a population of 1.5 million or more.
(b)AAEach promotional examination is open to each fire
fighter who at any time has continuously held for at least two years
a position in the classification that is immediately below, in
salary, the classification for which the examination is to be held.
(c)AAIf 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 fire
fighter who has continuously held for at least two years a position
at the next lower pay grade, if it exists, in the classification for
which the examination is to be held.
(d)AAIf there are not enough fire fighters 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
may open the examination to persons in that position with less than
26
two years ’ service. If there is still an insufficient number, the
commission may open the examination to persons with at least two
years ’ experience in the second lower position, in salary, to the
position for which the examination is to be held.
(e)AAIf a fire fighter had previously terminated the fire
fighter ’s employment with the department and is subsequently
reemployed by the same department, the fire fighter must again meet
the two-year service requirement for eligibility to take a
promotional examination. In determining if a fire fighter has met
the two-year service requirement, a fire department may not
consider service in another fire department.
(f)AAThis section does not prohibit lateral crossover
between classes.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.031.AAELIGIBILITY FOR POLICE DEPARTMENT
PROMOTIONAL EXAMINATION. (a) Each promotional examination is open
to each police officer 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)AAIf 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
police officer 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)AAIf there are not sufficient police officers 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.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
27
Sec.A143.032.AAPROMOTIONAL EXAMINATION PROCEDURE. (a) The
commission shall adopt rules governing promotions and shall hold
promotional examinations to provide eligibility lists for each
classification in the fire and police departments. Unless a
different procedure is adopted under an alternate promotional
system as provided by Section 143.035, the examinations shall be
held substantially as prescribed by this section.
(b)(1)AAEach 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)AAThe 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.AAIn adopting the
rules, the commission shall ensure that the administration of the
examination will not result in unnecessary interference with any
ongoing military effort.AAThe rules shall require that:
(A)AAat 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)AAif 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.
28
(c)AAThe examination must be entirely in writing and may not
in any part consist of an oral interview.
(d)AAThe examination questions must test the knowledge of the
eligible promotional candidates about information and facts and
must be based on:
(1)AAthe duties of the position for which the
examination is held;
(2)AAmaterial that is of reasonably current publication
and that has been made reasonably available to each member of the
fire or police department involved in the examination; and
(3)AAany study course given by the departmental schools
of instruction.
(e)AAThe examination questions must be taken from the sources
posted as prescribed by Section 143.029(a). Fire fighters or
police officers may suggest source materials for the examinations.
(f)AAThe 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)AAThe 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 municipal employee involved in
the preparation or administration of the examination.
(h)AAA person commits an offense if the person knowingly or
intentionally:
(1)AAreveals a part of a promotional examination to an
unauthorized person; or
(2)AAreceives from an authorized or unauthorized person
a part of a promotional examination for unfair personal gain or
advantage.
(i)AAAn 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.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1, Sec. 26(c), eff. Aug. 28, 1989.
Amended by:
29
Acts 2005, 79th Leg., Ch. 833 (S.B. 863), Sec. 1, eff. June
17, 2005.
Sec.A143.033.AAPROMOTIONAL 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)AAEach police officer 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. Each fire fighter is
entitled to receive one point for each year of seniority in that
department, with a maximum of 10 points.
(c)AAUnless a different procedure is adopted under an
alternate promotional system as provided by Section 143.035, the
grade that must be placed on the eligibility list for each police
officer or fire fighter shall be computed by adding the applicant ’s
points for seniority to the applicant ’s grade on the written
examination, but for a fire fighter applicant only if the applicant
scores a passing grade on the written examination.AAEach
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.AAThe passing grade in a
municipality with a population of 1.5 million or more is prescribed
by Section 143.108.AAIn a municipality with a population of less
than 1.5 million, all police officer applicants who receive a grade
of at least 70 points shall be determined to have passed the
examination and all fire fighter applicants who receive a grade on
the written examination of at least 70 points shall be determined to
have passed the examination.AAIf a tie score occurs, the commission
shall determine a method to break the tie.
(d)AAWithin 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 city hall.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1, Sec. 26(d), eff. Aug. 28, 1989; Acts
30
1991, 72nd Leg., ch. 713, Sec. 1, eff. Sept. 1, 1991.
Amended by:
Acts 2005, 79th Leg., Ch. 869 (S.B. 1050), Sec. 3, eff.
September 1, 2005.
Sec.A143.034.AAREVIEW AND APPEAL OF PROMOTIONAL EXAMINATION.
(a) On request, each eligible promotional candidate from the fire
or police 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 chapter. In computing this
period, a Saturday, Sunday, or legal holiday is not considered a
business day.
(b)AAThe eligible promotional candidate may not remove the
examination or copy a question used in the examination.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1, Sec. 26(e), eff. Aug. 28, 1989.
Sec.A143.035.AAALTERNATE PROMOTIONAL SYSTEM IN POLICE
DEPARTMENT. (a) This section does not apply to a municipality that
has adopted The Fire and Police Employee Relations Act (Article
5154c-1, Vernon ’s Texas Civil Statutes).
(b)AAOn the recommendation of the head of the police
department and a majority vote of the sworn police officers in the
department, 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 department
head. The promotional system must comply with the requirements
prescribed by this section.
(c)AAThe commission shall order the director to conduct an
election and to submit the revised promotional system either to all
sworn police officers within the rank immediately below the
classification for which the promotional examination is to be
administered or to all sworn police officers in the department.
(d)AAThe director shall hold the election on or after the
30th day after the date notice of the election is posted at the
31
department. The election shall be conducted throughout each
regular work shift at an accessible location within the department
during a 24-hour period.
(e)AAThe ballot shall contain the specific amendment to the
promotional procedure. Each sworn police officer shall be given
the opportunity to vote by secret ballot "for" or "against" the
amendment.
(f)AAThe revised promotional system must be approved by a
majority vote of the sworn police officers voting. A defeated
promotional system amendment may not be placed on a ballot for a
vote by the sworn police officers for at least 12 months after the
date the prior election was held, but this provision does not apply
if the head of the department recommends a different proposal to the
commission.
(g)AAThe 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 sworn
police officers, 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)AAAt any time after an alternate promotional system has
been adopted under this section and has been in effect for at least
180 days, the department head may petition the commission to
terminate the alternate system, and the commission shall terminate
the alternate system.
(i)AAAt 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 sworn
police officers 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)AAIf the alternate system is terminated, an additional
list may not be created under the alternate system.
32
(k)AAA 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 chapter 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 chapter even if the
alternate system is later terminated.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1993, 73rd Leg., ch. 1018, Sec. 1, eff. Aug. 30, 1993.
Sec.A143.036.AAPROCEDURE FOR MAKING PROMOTIONAL
APPOINTMENTS. (a) When a vacancy occurs in a nonentry position
that is not appointed by the department head as provided by Sections
143.014 and 143.102, the vacancy shall be filled as prescribed by
this section and Section 143.108, as applicable.AAA vacancy in a
fire fighter position described by this subsection occurs on the
date the position is vacated by:
(1)AAresignation;
(2)AAretirement;
(3)AAdeath;
(4)AApromotion; or
(5)AAissuance of an indefinite suspension in accordance
with Section 143.052(b).
(b)AAIf an eligibility list for the position to be filled
exists on the date the vacancy occurs, the director, on request by
the department head, shall certify to the department head 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
department head.
(c)AAIn a municipality with a population of less than 1.5
million, the commission shall submit names from an existing
eligibility list to the department head until the vacancy is filled
33
or the list is exhausted.
(d)AAIf 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)AAIf an eligibility list exists on the date a vacancy
occurs, the department head 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 department head 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.
This subsection does not apply in a municipality with a population
of 1.5 million or more.
(f)AAUnless 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.AAIf 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.AAThe department head shall also file the reason in writing
with the commission and shall provide the person with a copy of the
written notice.AAOn 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, on
the written request of the person being bypassed, by an independent
third party hearing examiner under Section 143.057.
(g)AAIf a person is bypassed, the person ’s name is returned
to its place on the eligibility list and shall be resubmitted to the
department head if a vacancy occurs. If the department head 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)AAEach promotional eligibility list remains in existence
for one year after the date on which the written examination is
34
given, unless exhausted. At the expiration of the one-year period,
the eligibility list expires and a new examination may be held.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1, Sec. 26(f), eff. Aug. 28, 1989.
Amended by:
Acts 2005, 79th Leg., Ch. 869 (S.B. 1050), Sec. 4, eff.
September 1, 2005.
Sec.A143.037.AARECORD OF CERTIFICATION AND APPOINTMENT. (a)
When a person is certified and appointed to a position in the fire
or police department, the director shall forward the appointed
person ’s record to the proper department head. The director shall
also forward a copy of the record to the chief executive and shall
retain a copy in the civil service files.
(b)AAThe record must contain:
(1)AAthe date notice of examination for the position
was posted;
(2)AAthe date on which the appointed person took the
examination;
(3)AAthe name of each person who conducted the
examination;
(4)AAthe relative position of the appointed person on
the eligibility list;
(5)AAthe date the appointed person took the physical
examination, the name of the examining physician, and whether the
person was accepted or rejected;
(6)AAthe date the request to fill the vacancy was made;
(7)AAthe date the appointed person was notified to
report for duty; and
(8)AAthe date the appointed person ’s pay is to start.
(c)AAIf the director intentionally fails to comply with this
section, the commission shall immediately remove the director from
office.
(d)AAThe director ’s failure to comply with this section does
not affect the civil service status of an employee.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
35
Sec.A143.038.AATEMPORARY DUTIES IN HIGHER CLASSIFICATION.
(a) This section does not apply to a municipality with a population
of 1.5 million or more.
(b)AAThe department head 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.
(c)AAThe temporary performance of the duties of a higher
position by a person who has not been promoted as prescribed by this
chapter may not be construed as a promotion.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
SUBCHAPTER C. COMPENSATION
Sec.A143.041.AASALARY. (a) This section does not apply to a
municipality with a population of 1.5 million or more.
(b)AAExcept as provided by Section 143.038, all fire fighters
or police officers in the same classification are entitled to the
same base salary.
(c)AAIn addition to the base salary, each fire fighter or
police officer is entitled to each of the following types of pay, if
applicable:
(1)AAlongevity or seniority pay;
(2)AAeducational incentive pay as authorized by Section
143.044;
(3)AAassignment pay as authorized by Sections 143.042
and 143.043;
(4)AAcertification pay as authorized by Section
143.044;
(5)AAshift differential pay as authorized by Section
143.047; and
(6)AAfitness incentive pay as authorized by Section
143.044.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1989, 71st Leg., ch. 1172, Sec. 1, eff. Aug. 28, 1989.
36
Amended by:
Acts 2005, 79th Leg., Ch. 552 (H.B. 1213), Sec. 1, eff.
September 1, 2005.
Sec.A143.042.AAASSIGNMENT PAY. (a) This section does not
apply to a municipality with a population of 1.5 million or more.
(b)AAThe governing body of a municipality may authorize
assignment pay for fire fighters and police officers who perform
specialized functions in their respective departments.
(c)AAThe assignment pay is in an amount and is payable under
conditions set by ordinance and is in addition to the regular pay
received by members of the fire or police department.
(d)AAIf the ordinance applies equally to each person who
meets the criteria established by the ordinance, the ordinance may
provide for payment to each fire fighter and police officer who
meets training or education criteria for an assignment or the
ordinance may set criteria that provide for payment only to a fire
fighter or police officer in a special assignment.
(e)AAThe head of the fire or police department is not
eligible for the assignment pay authorized by this section.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.043.AAFIELD TRAINING OFFICER ASSIGNMENT PAY. (a)
In this section, "field training officer" means a member of the
police department who is assigned to and performs the duties and
responsibilities of the field training officers program.
(b)AAThe governing body of a municipality may authorize
assignment pay for field training officers. The assignment pay is
in an amount and is payable under conditions set by ordinance and is
in addition to the regular pay received by members of the police
department.
(c)AAThe department head is not eligible for the assignment
pay authorized by this section.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 143.044.AACERTIFICATION, EDUCATIONAL INCENTIVE, AND
FITNESS INCENTIVE PAY. (a) This section does not apply to a
37
municipality with a population of 1.5 million or more.
(b)AAIf each fire fighter or police officer in a municipality
is afforded an opportunity to qualify for certification, the
municipality ’s governing body may authorize certification pay to
those fire fighters who meet the requirements for certification set
by the Texas Commission on Fire Protection or for those police
officers who meet the requirements for certification set by the
Texas Commission on Law Enforcement.
(c)AAIf the criteria for educational incentive pay are
clearly established, are in writing, and are applied equally to
each fire fighter or police officer in a municipality who meets the
criteria, the municipality ’s governing body may authorize
educational incentive pay for each fire fighter or police officer
who has successfully completed courses at an accredited college or
university.
(d)AAIf the criteria for fitness incentive pay are clearly
established, are in writing, and are applied equally to each fire
fighter or police officer in a municipality who meets the criteria,
the municipality ’s governing body may authorize fitness incentive
pay for each fire fighter or police officer who successfully meets
the criteria.
(e)AAThe certification pay, educational incentive pay, and
fitness incentive pay are in addition to a fire fighter ’s or police
officer ’s regular pay.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch. 552 (H.B. 1213), Sec. 2, eff.
September 1, 2005.
Acts 2005, 79th Leg., Ch. 552 (H.B. 1213), Sec. 3, eff.
September 1, 2005.
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.51, eff.
May 18, 2013.
Sec.A143.045.AAACCUMULATION AND PAYMENT OF SICK LEAVE. (a)
A permanent or temporary fire fighter or police officer 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
38
15 working days to a person ’s credit each 12 months.
(b)AAA fire fighter or police officer may accumulate sick
leave without limit and may use the leave if unable to work because
of a bona fide illness. If an ill fire fighter or police officer
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)AAExcept as otherwise provided by Section 143.116, a fire
fighter or police officer 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 a fire fighter
or police officer 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
fire fighter or police officer for the accumulated time at the
highest permanent pay classification for which the person was
eligible during the last six months of employment. The fire fighter
or police officer is paid for the same period for which the person
would have been paid if the person had taken the sick leave but does
not include additional holidays and any sick leave or vacation time
that the person might have accrued during the 90 days.
(d)AATo facilitate the settlement of the accounts of deceased
fire fighters and police officers, all unpaid compensation,
including all accumulated sick leave, due at the time of death to an
active fire fighter or police officer 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)AAto the beneficiary or beneficiaries the fire
fighter or police officer designated in writing to receive the
compensation and filed with the commission before the person ’s
death;
(2)AAto the fire fighter ’s or police officer ’s widow or
widower;
(3)AAto the fire fighter ’s or police officer ’s child or
39
children and to the descendants of a deceased child, by
representation;
(4)AAto the fire fighter ’s or police officer ’s parents
or to their survivors; or
(5)AAto the properly appointed legal representative of
the fire fighter ’s or police officer ’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)AAPayment of compensation to a person in accordance with
Subsection (d) is a bar to recovery by another person.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.046.AAVACATIONS. (a) Each fire fighter or police
officer is entitled to earn a minimum of 15 working days ’ vacation
leave with pay in each year.
(b)AAIn computing the length of time a fire fighter or police
officer 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)AAUnless approved by the municipality ’s governing body, a
fire fighter or police officer may not accumulate vacation leave
from year to year.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.047.AASHIFT DIFFERENTIAL PAY. (a) The governing
body of a municipality may authorize shift differential pay for
fire fighters and police officers 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)AAThe shift differential pay is in an amount and is
payable under conditions set by ordinance and is in addition to the
regular pay received by members of the fire or police department.
Added by Acts 1989, 71st Leg., ch. 1172, Sec. 3, eff. Aug. 28, 1989.
SUBCHAPTER D. DISCIPLINARY ACTIONS
Sec.A143.051.AACAUSE FOR REMOVAL OR SUSPENSION. A
commission rule prescribing cause for removal or suspension of a
40
fire fighter or police officer is not valid unless it involves one
or more of the following grounds:
(1)AAconviction of a felony or other crime involving
moral turpitude;
(2)AAviolations of a municipal charter provision;
(3)AAacts of incompetency;
(4)AAneglect of duty;
(5)AAdiscourtesy to the public or to a fellow employee
while the fire fighter or police officer is in the line of duty;
(6)AAacts showing lack of good moral character;
(7)AAdrinking intoxicants while on duty or intoxication
while off duty;
(8)AAconduct prejudicial to good order;
(9)AArefusal or neglect to pay just debts;
(10)AAabsence without leave;
(11)AAshirking duty or cowardice at fires, if
applicable; or
(12)AAviolation of an applicable fire or police
department rule or special order.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.052.AADISCIPLINARY SUSPENSIONS. (a) This section
does not apply to a municipality with a population of 1.5 million or
more.
(b)AAThe head of the fire or police department may suspend a
fire fighter or police officer under the department head ’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.
(c)AAIf the department head suspends a fire fighter or police
officer, the department head shall, within 120 hours after the hour
of suspension, file a written statement with the commission giving
the reasons for the suspension. The department head shall
immediately deliver a copy of the statement in person to the
suspended fire fighter or police officer.
(d)AAThe copy of the written statement must inform the
41
suspended fire fighter or police officer 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.
(e)AAThe written statement filed by the department head with
the commission must point out each civil service rule alleged to
have been violated by the suspended fire fighter or police officer
and must describe the alleged acts of the person that the department
head contends are in violation of the civil service rules. It is
not sufficient for the department head merely to refer to the
provisions of the rules alleged to have been violated.
(f)AAIf the department head does not specifically point out
in the written statement the act or acts of the fire fighter or
police officer that allegedly violated the civil service rules, the
commission shall promptly reinstate the person.
(g)AAIf offered by the department head, the fire fighter or
police officer 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 fire fighter or police
officer 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.
(h)AAIn the original written statement and charges and in any
hearing conducted under this chapter, the department head may not
complain of an act that occurred earlier than the 180th day
preceding the date the department head suspends the fire fighter or
police officer. If the act is allegedly related to criminal
activity including the violation of a federal, state, or local law
for which the fire fighter or police officer is subject to a
criminal penalty, the department head may not complain of an act
that is discovered earlier than the 180th day preceding the date the
department head suspends the fire fighter or police officer. The
department head must allege that the act complained of is related to
criminal activity.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
42
by Acts 1989, 71st Leg., ch. 1, Sec. 26(g), eff. Aug. 28, 1989.
Sec.A143.053.AAAPPEAL OF DISCIPLINARY SUSPENSION. (a) This
section does not apply to a municipality with a population of 1.5
million or more.
(b)AAIf a suspended fire fighter or police officer 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.
(c)AAIn a hearing conducted under this section, the
department head is restricted to the department head ’s original
written statement and charges, which may not be amended.
(d)AAThe 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.
(e)AAIn its decision, the commission shall state whether the
suspended fire fighter or police officer is:
(1)AApermanently dismissed from the fire or police
department;
(2)AAtemporarily suspended from the department; or
(3)AArestored to the person ’s former position or status
in the department ’s classified service.
(f)AAIf 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 fire fighter or
police officer is restored to the position or class of service from
which the person was suspended, the fire fighter or police officer
is entitled to:
(1)AAfull 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)AArestoration 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
43
shall be made from the compensation paid, and the municipality
shall make its standard corresponding contributions, if any, to the
retirement system or other applicable benefit systems.
(g)AAThe commission may suspend or dismiss a fire fighter or
police officer only for violation of civil service rules and only
after a finding by the commission of the truth of specific charges
against the fire fighter or police officer.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended
by Acts 1999, 76th Leg., ch. 740, Sec. 1, eff. Sept. 1, 1999.
Sec.A143.054.AADEMOTIONS. (a) If the head of the fire or
police department wants a fire fighter or police officer under his
supervision or jurisdiction to be involuntarily demoted, the
department head may recommend in writing to the commission that the
commission demote the fire fighter or police officer.
(b)AAThe department head must include in the recommendation
for demotion the reasons the department head recommends the
demotion and a request that the commission order the demotion. The
department head must immediately furnish a copy of the
recommendation in person to the affected fire fighter or police
officer.
(c)AAThe 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 fire
fighter or police officer 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)AAThe fire fighter or police officer is entitled to a full
and complete public hearing, and the commission may not demote a
fire fighter or police officer without that public hearing.
(e)AAA voluntary demotion in which the fire fighter or police
officer has accepted the terms of the demotion in writing is not
subject to this section.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec.A143.055.AAUNCOMPENSATED DUTY OF POLICE OFFICERS. (a)
44
This section does not apply to a municipality with a population of
1.5 million or more.
(b)AAIn this section, "uncompensated duty" means days of
police work without pay that are in addition to regular or normal
work days.
(c)AAThe head of the police department may assign a police
officer under his jurisdiction or supervision to uncompensated
duty. The department head may not impose uncompensated duty unless
the police officer agrees to accept the du
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