                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-375-CV

KRIS CARR                                         APPELLANT/CROSS-APPELLEE

                                      V.

CITY OF FORT WORTH, TEXAS,                       APPELLEES/CROSS-APPELLANTS
AND FIRE CHIEF RUDOLPH
JACKSON, JR.

                                  ------------

        FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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                                 OPINION

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                               I. INTRODUCTION

      This is a cross-appeal from a partial plea to the jurisdiction and from

competing motions for summary judgment involving the alleged failure of

Appellees—the City of Fort Worth and Fire Chief Rudolph Jackson, Jr.—to

promote Appellant Kris Carr to the rank of fire engineer under the local

government code.     At issue in the underlying lawsuit was whether the

procedurally defective discharge of fire engineer Artie M. Dawson created as a
matter of law a vacancy in the rank of fire engineer prior to her reinstatement

such that Carr, who was at the top of the promotion eligibility list, 1 should have

been promoted. The trial court denied Carr’s motion for summary judgment,

granted Appellees’ motion for summary judgment, and denied as moot

Appellees’ partial plea to the jurisdiction. Because we hold that the summary

judgment evidence conclusively establishes as a matter of law the existence of

a vacancy, we reverse the summary judgment in favor of Appellees and the

summary judgment against Carr on that issue. However, because the City may

be immune from suit, we remand the case for further proceedings.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Prior to February 2002, the Fort Worth Fire Department placed fire

engineer Dawson on “detached duty” for one year while the department

investigated her for alleged departmental violations. “Detached duty” status

required Dawson to stay home from work and routinely call in to the fire

department.




      1
       … The parties agree that Carr was the person at the top of the fire
engineer promotion eligibility list on February 15, 2002, after taking into
account that Calvin C. Lyons III was later promoted to the rank of fire engineer,
and his promotion was backdated to November 1, 2001.

                                        2
         On February 14, 2002, as a result of the investigation, Fort Worth Fire

Chief McMillen 2 gave Dawson notice that she was being indefinitely suspended

without pay.         The letter stated that the suspension would take effect on

February 15, 2002 at 0800 hours.              Dawson filed a written appeal of the

suspension with the Director of the Civil Service Commission on February 26,

2002. At this point, it was discovered that Fire Chief McMillen had failed to file

a copy of the indefinite suspension letter with the Commission as required by

the local government code.             Due to the fire chief’s failure to give the

Commission the procedurally required notice of Dawson’s suspension, Dawson

“was returned to duty on February 28, 2002.” The fire chief did not promote

anyone to the rank of fire engineer to fill Dawson’s position during the fourteen

days that she was suspended.

         Because Carr believed that Dawson’s indefinite suspension created a

vacancy and because Carr believed that he should have been promoted, he filed

suit against the City seeking declaratory, injunctive, and equitable relief. Both

parties filed motions for summary judgment, and Appellees filed a partial plea

to the jurisdiction. The trial court denied Carr’s motion for summary judgment,

granted Appellees’ motion for summary judgment, and denied as moot


         2
             … Carr amended his petition to add Rudolph Jackson, Jr., the current fire
chief.

                                             3
Appellees’ partial plea to the jurisdiction. Both Carr and Appellees filed notices

of appeal.

                            III. S TANDARD OF R EVIEW

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. T EX. R. C IV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215.

      When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.            Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s

position will not be considered unless it is uncontroverted. Great Am. Reserve

Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

But we must consider whether reasonable and fair-minded jurors could differ in

their conclusions in light of all of the evidence presented. See Wal-Mart Stores,




                                        4
Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168

S.W.3d 802, 822–24 (Tex. 2005).

      The summary judgment will be affirmed only if the record establishes that

the movant has conclusively proved all essential elements of the movant’s

cause of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d

at 678.

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both

parties’ summary judgment evidence and determine all questions presented.

Valence Operating Co., 164 S.W.3d at 661. The reviewing court should render

the judgment that the trial court should have rendered. Id.

                       IV. P ROCEDURES U NDER C HAPTER 143

      Before turning to the parties’ pleadings and jurisdictional evidence, it is

helpful to first survey the statutory context in which this proceeding

arises—chapter 143 of the local government code—because it involves a maze

of procedural hoops.

      Chapter 143 of the local government code, entitled “Municipal Civil

Service For Firefighters And Police Officers,” is intended “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

                                         5
servants.” T EX. L OC. G OV’T C ODE A NN. § 143.001(a) (Vernon 2008). To that

end, positions in the fire and police departments of municipalities governed by

chapter 143 are classified, receive civil service protection, and are filled from

promotion eligibility lists based on objective, merit-based qualifications and

competitive testing. Id. § 143.021.

      Municipalities are not automatically governed by chapter 143. Instead,

the legislature has permitted municipalities with a population of 10,000 or more

that have a paid fire department and police department to opt into the chapter

143 regime through a local election. Id. § 143.002. The voters of Tarrant

County have approved the adoption of chapter 143, and at all times relevant

to this case, it has governed the City’s fire and police departments.

      In a municipality like the City that is governed by chapter 143, the

municipal governing body establishes by ordinance the classifications and

number of positions in each classification. Id. § 143.021(a). In this manner,

the governing body can create new positions or, within certain limitations,

abolish them. See City of San Antonio v. Wallace, 161 Tex. 41, 43–50, 338

S.W.2d 153, 155–59 (1960); Michna v. City of Houston, 521 S.W.2d 331,

334–35 (Tex. Civ. App.—Houston [1st Dist.] 1975, no writ).

      Promotion   eligibility   lists   for       vacancies   in   each   non-entry   level

classification are created by administering a competitive written exam open to

                                              6
promotion-eligible candidates. See T EX. L OC. G OV’T C ODE A NN. §§ 143.028,

143.030, 143.032.      Based on the candidates’ exam scores and additional

points awarded based on seniority, passing candidates are ranked on a

promotion eligibility list. Id. § 143.033(b)–(c). Each promotion eligibility list

remains in effect for one year after the date on which the exam was given,

“unless exhausted” earlier.     Id. § 143.036(h).      As vacancies arise, the

commission shall submit names from the list to the department head until each

vacancy is filled or the list is exhausted. Id. § 143.036(c). The top-ranked

candidate on a promotion eligibility list at the time a vacancy occurs has the

“primary right” to be appointed to fill the vacancy not later than the last day of

the sixty-day statutory period in which the department head is required to fill

the vacancy, and failure to timely fill the vacancy results in the top-ranked

candidate’s entitlement to the appointment, as a matter of law, effective on the

sixtieth day. Lee v. Downey, 842 S.W.2d 646, 649 (Tex. 1992) (stating that

“[a] promotion is considered effective as of the last date that the city could

lawfully have filled the vacancy; that is, sixty days from the date the vacancy

was created”); Duckett v. City of Houston, 495 S.W.2d 883, 887 (Tex. 1973);

Klinger v. City of San Angelo, 902 S.W.2d 669, 673–74 (Tex. App.—Austin

1995, writ denied).




                                        7
                V. V ACANCY C REATED BY D AWSON’S S USPENSION

      In his first issue, Carr argues that the trial court erred by granting

Appellees’ motion for summary judgment and by denying his motion for

summary judgment. Specifically, Carr argues that Appellees violated Texas

Local Government Code section 143.036 by failing to promote him to fire

engineer upon Dawson’s indefinite suspension. Under his first issue, Carr raises

five subissues regarding whether, in light of Appellees’ procedural error, a

discharge occurred; whether a vacancy was created; whether the fire chief was

required to fill the vacancy from the existing fire engineer promotion eligibility

list; whether Carr should have received the promotion; and if so, whether Carr

is entitled to a writ of mandamus from the trial court compelling his promotion

and backpay. We tackle these subissues in turn.

                           A. Dawson’s Suspension

      Appellees argued that the attempted suspension of Dawson never took

effect because the fire department did not comply with the chapter 143

requirement that the suspension letter be filed with the Commission.          Carr

argues that this procedural error did not render Dawson’s discharge void.

      Section 143.052 governs disciplinary suspensions and states,

      If 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

                                        8
      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.

T EX. L OC. G OV’T C ODE A NN. § 143.052(c) (emphasis added). To interpret the

statute, we look first to the “plain and common meaning of the statute’s

words.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,

865 (Tex. 1999). If a statute’s meaning is unambiguous, we generally interpret

the statute according to its plain meaning. Id.

      Because neither side urges that the statute is ambiguous, we interpret the

statute according to its plain meaning. Our reading of the statute reveals that

the 120-hour filing requirement is not a prerequisite to the suspension. In fact,

the 120-hour requirement is not triggered until after the suspension has been

effectuated. See T EX. G OV’T C ODE A NN. § 311.011 (Vernon 2005) (stating that

courts are to give words their plain meaning unless they are given a particular

meaning by statutory definition or otherwise).

      The undisputed facts demonstrate that the fire chief gave Dawson a letter

on February 14, 2002, notifying her that she was being indefinitely suspended

without pay from the fire department and that her employment was terminated

effective at 0800 hours on February 15, 2002. At 0800 hours on February 15,

2002, Dawson did not have a job with the fire department, and the clock began

ticking for the fire department to file the written statement with the

                                       9
Commission. During the 120 hours following the hour of suspension, Dawson

remained discharged from the fire department. Based on the plain language of

the statute, the written statement was not required to be filed before Dawson’s

suspension was effective; rather, the filing of the written statement with the

Commission is a step taken after a fire fighter has been suspended. The fire

department’s failure to file the required written statement with the Commission

did not undo the suspension,3 which took effect at 0800 hours on February 15,

2002. Thus, the summary judgment evidence conclusively establishes that the

fire department indefinitely suspended Dawson effective February 15, 2002.

See T EX. L OC. G OV’T C ODE A NN. § 143.052(c); Stowe v. City of Corpus Christi,

358 S.W.2d 409, 410 (Tex. Civ. App.—Eastland 1962, writ ref’d n.r.e.)

(stating that, under prior version of statute, police officer was indefinitely

suspended by chief of police on February 28, 1959, and that within 120 hours

after the indefinite suspension, on March 4, 1959, the chief filed with the

Commission a written statement giving the reasons for suspension); see also

Bichsel v. Carver, 159 Tex. 393, 397, 321 S.W.2d 284, 287 (1959) (stating

in dicta that even assuming statute did not prohibit the filing of a second set of


      3
        … This is not meant to convey that the failure to file the written
statement had no effect at all. Rather, as Carr concedes, the fire department’s
failure to file the written statement with the Commission warranted Dawson’s
subsequent reinstatement, which we discuss below.

                                       10
charges, the second charges were not filed within 120 hours of officer’s

suspension and therefore required reinstatement but did not void suspension).

But see City of Beaumont v. Spivey, 1 S.W.3d 385, 391 (Tex. App.—Beaumont

1999, pet. denied) (holding that police officer was not entitled to protection

under chapter 143 because he cheated on his entry level police civil service

examination, thus rendering his initial employment void ab initio).

                       B. Suspension Created Vacancy

      Carr argues that because the fire chief’s discharge of Dawson on February

15, 2002, was not void ab initio, Dawson’s discharge created a vacancy in the

rank of fire engineer on that date.    Appellees argue that no vacancy was

created and that an indefinite suspension does not create a vacancy.

      At the time of Dawson’s indefinite suspension on February 15, 2002,

local government code section 143.036(a) read as follows: “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.” Act of May 21,

1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 900 (amended

2005) (current version at T EX. L OC. G OV’T C ODE A NN. § 143.036(a) (Vernon

2008)). The current version contains the above text, along with the following:

“A vacancy in a fire fighter position described by this subsection occurs on the

                                      11
date the position is vacated by: . . . (5) issuance of an indefinite suspension in

accordance with Section 143.052(b).”           T EX. L OC. G OV’T C ODE A NN. §

143.036(a) (Vernon 2008). The parties dispute whether the 2005 amendment

to the statute was intended to apply to pending and subsequently filed cases.

However, both section 143.052(b) and Local Civil Service Rule 11.19 were in

effect in 2002 and stated that “[a]n indefinite suspension is equivalent to

dismissal from the department.” T EX. L OC. G OV’T C ODE A NN. § 143.052(b).

      Even assuming that the previous version of the statute—which did not

contain a definition of “vacancy”—applies, rules existed specifying that an

indefinite suspension equated to a vacancy because the person had been

dismissed from the department. Based on the plain language of the statute and

prior precedent from this court, the summary judgment evidence conclusively

establishes that Dawson’s indefinite suspension created a vacancy on February

15, 2002. See City of Fort Worth v. Nyborg, 999 S.W.2d 451, 456–57 (Tex.

App.—Fort Worth 1999, pet. denied) (stating that based on plain language of

the ordinance, the lieutenant’s position was not abolished before Nyborg was

entitled to be promoted, so a vacancy existed, albeit for a brief time); 4 see also


      4
        … In light of our statutory analysis regarding Dawson’s suspension, we
decline to follow City of Harlingen v. Alvarez, 204 S.W .3d 452, 460 (Tex.
App.—Corpus Christi 2005, pet. granted, judgm’t vacated w.r.m.) (holding that
fire fighter’s indefinite suspension did not create a vacancy and that a vacancy

                                        12
Mendiola v. City of Laredo, 239 S.W.3d 344, 346 (Tex. App.—San Antonio

2007, no pet.) (holding that vacancy occurred in the rank of fire driver as a

matter of law on date that fire captain’s promotion was made effective).

 C. Fire Chief Had Nondiscretionary Duty to Fill Vacancy from Eligibility List

      Because Dawson’s suspension created a vacancy, we now address

whether the fire chief was required to fill the vacancy from the existing fire

engineer promotion eligibility list. Texas courts have repeatedly held that a

department head’s duty to fill a vacancy from a promotion eligibility list is

mandatory—he or she has no discretion to not fill the vacancy. Int’l Ass’n of

Firefighters, Local Union No. 936 v. Townsend, 622 S.W.2d 562, 563 (Tex.

1981).   If a vacancy arises before a promotion eligibility list expires or is

exhausted, the department head is required to fill the vacancy by permanent

appointment from the list within sixty days after the date the vacancy occurs.

T EX. L OC. G OV’T C ODE A NN. § 143.036(e). Although Appellees contend that the

fire chief properly filled any such vacancy by reinstating Dawson, their

contention runs afoul of chapter 143’s requirements for filling vacancies.

Because the parties do not dispute that a fire engineer promotion eligibility list




occurred only after the Commission made a finding of the truth of the charges
against the fire fighter).

                                       13
existed at 0800 hours on February 15, 2002,5 the fire chief was required by

chapter 143 to use such list to fill the vacancy in the rank of fire engineer that

occurred then. See T EX. L OC. G OV’T C ODE A NN. § 143.036(b), (e).

                         D. Carr Topped Eligibility List

      In his next subissue, Carr argues that as the top-ranked candidate on the

fire engineer promotion eligibility list, he was entitled to promotion.       After

maneuvering through the procedural hoops, we agree.

      On February 15, 2002, when Dawson’s suspension took effect, the

highest ranked individual on the fire engineer promotion eligibility list was Calvin

Lyons; Carr was second on the list at that time. However, Lyons was later

promoted retroactive to November 2001 as a result of a separate litigation.

Accordingly, the end result of that litigation was that Carr moved to first on the

fire engineer promotion eligibility list and was there at the time when Dawson’s

suspension created a vacancy. Carr, therefore, was entitled to be promoted

within sixty days of the February 15, 2002 vacancy. See T EX. L OC. G OV’T C ODE

A NN. § 143.036(e). Because Appellees did not promote Carr to fill the vacancy

created by Dawson’s suspension, they violated the provisions for filling a




      5
        … On March 14, 2001, Fort Worth created a promotion eligibility list for
the fire engineer position, and the list was to remain in effect until March 13,
2002.

                                        14
vacancy under chapter 143.6       The trial court, moreover, erred by granting

Appellees’ motion for summary judgment and by denying Carr’s motion for

summary judgment on this issue. We therefore sustain Carr’s first issue to the

extent that Appellees failed to promote him to fill the vacancy created by

Dawson’s suspension on February 15, 2002.

                    VI. ISSUES N OT R EACHED BY T RIAL C OURT

      In the last subissue under Carr’s first issue, he argues that he is entitled

to mandamus relief from the trial court. 7 In Carr’s second and third issues, he



      6
         … During the sixty-day period that Appellees had under section
143.036(c) to fill the vacancy, Dawson was entitled to be reinstated due to
Appellees’ failure to file the written statement with the Commission. See
generally T EX. L OC. G OV’T C ODE A NN. § 143.052(f) (stating that if the
department head does not specifically point out in the written statement the
acts of the fire fighter that allegedly violated the civil service rules, the
Commission shall promptly reinstate the person). But Dawson’s reinstatement
does not affect Appellees’ duty to fill a vacancy using the promotion eligibility
list; the proper procedure would have been for Appellees to follow the statutory
procedure triggered when a position is vacated and to have promoted Carr to
fire engineer, then demoted him back to his previous position when Dawson
was reinstated, and to then have placed him on the fire engineer’s
reinstatement list. See Nyborg, 999 S.W.2d at 456–57. When the next
opening in the rank of fire engineer occurred on August 24, 2002, Carr could
then have been promoted off the reinstatement list at that time. See id. at
457; see also Bostick v. Owens, 423 S.W.2d 471, 472 (Tex. Civ. App.—Fort
Worth 1968, writ ref’d n.r.e.) (holding that top person on eligibility list on date
of vacancy should be promoted even if list expires during the time that the
vacancy can be filled).
      7
       … Specifically, Carr’s second amended petition requested that the trial
court issue a writ of mandamus compelling the fire chief to promote Carr to the

                                        15
argues that his backpay claim is not barred by governmental immunity and that

he is entitled to an award of attorney’s fees and costs. Appellees argue that

Carr is not entitled to mandamus relief, that governmental immunity is not

waived, and that Carr’s claims for backpay, as well as his claims for attorney’s

fees and costs under the Declaratory Judgment Act, are barred by

governmental immunity. Because the summary judgment evidence conclusively

established that a suspension occurred, that the suspension created a vacancy,

that the fire chief was required to fill the vacancy from the promotion eligibility

list, and that Carr was the top-ranked candidate on the promotion eligibility list,

the trial court erred by granting Appellees’ motion for summary judgment and

by denying Carr’s motion for summary judgment on this issue. Consequently

the trial court did not reach Carr’s claims for mandamus relief and backpay, or

his claims for attorney’s fees and costs under the Declaratory Judgment Act.

      When the trial court has not reached the governmental immunity issue in

cases under chapter 143 of the local government code, the Texas Supreme

Court has found “it preferable to remand this claim to the trial court to consider

in the first instance” “whether the City’s immunity from suit is waived by



rank of fire engineer retroactive to August 24, 2002, “with all seniority and
other benefits which he would have received had he been promoted on that
date.” On appeal, Carr prays that we grant him equitable relief “in the form of
backpay and benefits.”

                                        16
sections 271.151–.160 of the Local Government Code or other statutory

provisions.” See City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex.

2007); City of Sweetwater v. Waddell, 218 S.W.3d 80, 81 (Tex. 2007). We

therefore follow the supreme court’s lead and remand the issues of

governmental immunity as applied to mandamus relief, backpay, attorney’s

fees, and costs to the trial court for further proceedings consistent with this

opinion. See Williams, 216 S.W.3d at 829; Waddell, 218 S.W.3d at 81; see

generally T EX. L OC. G OV’T C ODE A NN. §§ 143.108(d), 180.006, 271.152; City

of Houston v. Hildebrandt, No. 01-06-00936-CV, 2008 WL 525417, at *1–4

(Tex. App.—Houston [1st Dist.] Feb. 28, 2008, pet. filed) (holding that

governmental immunity was waived because statute allowed for penalty); City

of Round Rock v. Whiteaker, 241 S.W.3d 609, 623–42 (Tex. App.—Austin

2007, pet. filed) (analyzing governmental immunity as applied to fire

lieutenant’s claims for declaratory, mandamus, and injunctive relief); City of

Seagoville v. Lytle, 227 S.W.3d 401, 410–15 (Tex. App.—Dallas 2007, no

pet.) (analyzing governmental immunity as applied to police officer’s claims for

declaratory, mandamus, and injunctive relief and analyzing official immunity).

                               VII. C ONCLUSION

      Having sustained Carr’s first issue to the extent that Appellees failed to

promote him to fill the vacancy created by Dawson’s suspension on February

                                      17
15, 2002, we reverse the trial court’s order denying his motion for summary

judgment and granting Appellees’ motion for summary judgment.        Having

determined that the trial court did not reach the issues of governmental

immunity as applied to mandamus relief, backpay, attorney’s fees, and costs,

we remand those issues for further proceedings consistent with this opinion.




                                               SUE WALKER
                                               JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: August 26, 2008




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