Opinion

the City of Austin Firefighters' and Police Officers' Civil Service Commission, Mark Washington, Arturo Acevedo, and the City of Austin v. William M. Stewart

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Nov 10, 2015
Status
Published
Cited by
0 cases
Authority
More cited than 3.1%

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.

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(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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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