                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00563-CV

                      Fire Chief Charles HOOD, in His Official Capacity Only,
                                            Appellant

                                                 v.

                              Fernando MUNOZ and Edward Chacon,
                                          Appellees

                     From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CI16293
                            Honorable Norma Gonzales, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 5, 2018

REVERSED AND RENDERED

           Fire Chief Charles Hood appeals a judgment entered in favor of appellees Fernando Munoz

and Edward Chacon declaring that Chief Hood violated Chapter 143 of the Texas Local

Government Code in filling vacancies created by the retirements of Antonio Valencia, Lino

Vallejo, and Richard Alva. Chief Hood presents three issues on appeal asserting: (1) the vacancies

created by the retirements of Valencia, Vallejo, and Alva did not occur until August 1, 2015 as a

matter of law; (2) the evidence is legally insufficient to support the trial court’s finding that the
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vacancies occurred on July 31, 2015; and (3) the trial court awarded impermissible relief. Because

we sustain Chief Hood’s first issue, we do not address his other issues. See TEX. R. APP. P. 47.1.

                                          BACKGROUND

       Valencia, Vallejo and Alva all retired on July 31, 2015. Chief Hood filled the vacancies

created by their retirements from the promotional list effective on August 1, 2015. The three fire

fighters who would have been eligible to fill the vacancies from the promotional list effective on

July 31, 2015, sued seeking a declaration that Chief Hood violated Chapter 143 of the Local

Government Code by utilizing the August 1, 2015 promotional list to fill the vacancies. One of

the fire fighters subsequently nonsuited his claims, leaving Munoz and Chacon as the only

remaining plaintiffs.

       After a bench trial, the trial court signed a judgment declaring that Chief Hood violated

Chapter 143 by using the August 1, 2015 promotional list. The trial court’s judgment ordered

Munoz and Chacon retroactively promoted and awarded them back salary and benefits. Chief

Hood appeals.

                                           DISCUSSION

       Chapter 143 of the Local Government Code sets forth the procedures governing

promotions at the San Antonio Fire Department. Section 143.036(a) defines when a vacancy

occurs for purposes of making promotional appointments and provides:

       A vacancy in a fire fighter position described by this subsection occurs on the date
       the position is vacated by: (1) resignation; (2) retirement; (3) death; (4) promotion;
       or (5) issuance of an indefinite suspension in accordance with Section 143.052(b).

TEX. LOC. GOV’T CODE ANN. § 143.036(a).

       Determining the date a position is vacated by retirement for purposes of section 143.036(a)

is an issue of statutory construction. Statutory construction is a legal question that we review de

novo. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex.
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2017). “When statutory text is clear, we do not resort to rules of construction or extrinsic aids to

construe the text because the truest measure of what the Legislature intended is what it enacted.”

Id. “We also typically give statutory terms their ordinary or common meaning unless context or a

supplied definition indicates that a different meaning was intended.” Id. The word “vacate” is

defined as “[t]o surrender occupancy or possession.” Vacate, BLACK’S LAW DICTIONARY (8th ed.

2004).

         In Carr v. City of Fort Worth, the Fort Worth court considered when a vacancy occurred

as the result of an indefinite suspension. 266 S.W.3d 116 (Tex. App.—Fort Worth 2008, pet.

denied). In that case, the fire chief gave a fire engineer notice that she was being indefinitely

suspended without pay. Id. at 119. “The letter stated that the suspension would take effect on

February 15, 2002 at 0800 hours.” Id. The Fort Worth court held a vacancy was created on

February 15, 2002, because “[a]t 0800 hours on February 15, 2002, Dawson did not have a job

with the fire department.” Id. at 122-23.

         Similarly, in Gibson v. Barbe, 907 S.W.2d 646, 648-49 (Tex. App.—San Antonio 1995,

writ denied), this court held a vacancy was created when a police officer was disqualified from

further service upon the entry of a judgment on a felony conviction. Because the officer was

permanently disqualified from further service on the date the judgment was entered, he no longer

had a job as a police officer. See id.

         In this case, it is undisputed that Valencia, Vallejo and Alva retired on July 31, 2015. The

evidence presented at trial established Valencia, Vallejo and Alva still occupied their positions on

their retirement date. They were subject to all rules and regulations applicable to employees on

that date and remained on the payroll and eligible for all employee benefits through that date.

Accordingly, they did not surrender occupancy of their positions until August 1, 2015, because

that was the date on which they “did not have a job with the fire department.” Carr, 266 S.W.3d
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at 122. Therefore, we sustain Chief Hood’s first issue and hold Chief Hood did not violate Chapter

143 by using the August 1, 2015 promotional list to fill the vacancies created by the retirements

of Valencia, Vallejo and Alva.

                                          CONCLUSION

       The trial court’s judgment is reversed and judgment is rendered that Chief Hood did not

violate Chapter 143 in filling the vacancies created on August 1, 2015, by the retirements of

Valencia, Vallejo and Alva.

                                                Marialyn Barnard, Justice




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