                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-13-00460-CV

                                         Chad THOMPSON,
                                              Appellant

                                                   v.

                     CITY OF WACO, Texas and Fire Chief John D. Johnston,
                                       Appellees

                   From the 414th Judicial District Court, McLennan County, Texas
                                    Trial Court No. 2012-3519-5
                           Honorable Vicki Lynn Menard, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: May 30, 2014

AFFIRMED

           Appellant Chad Thompson is a fire fighter for the City of Waco. He was promoted to fire

station lieutenant, but a few months later was demoted to his previous rank of fire equipment

engineer. After his request to be reinstated as a fire station lieutenant was denied, Thompson sued

the City of Waco and Fire Chief John D. Johnston (collectively the City) asserting that his

demotion violated the Fire Fighter and Police Officer Civil Service Act (the Act). The trial court

denied his request, and Thompson appealed. Because the City complied with the provisions and

principles of the Act, we affirm the trial court’s judgment.
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                                                 BACKGROUND

        The parties agree on the essential facts. The City of Waco adopted the Fire Fighter and

Police Officer Civil Service Act, and the City is governed by its provisions. See TEX. LOC. GOV’T

CODE ANN. §§ 143.001–403 (West 2008 & Supp. 2013). By ordinance, the Waco City Council

created positions for thirty-five fire station lieutenants. 1 After one of the thirty-five fire station

lieutenants was indefinitely suspended, Thompson was promoted from fire equipment engineer to

fire station lieutenant. 2 A few months later, when a hearing examiner reinstated the indefinitely

suspended fire station lieutenant to his former position, the City demoted Thompson to fire

equipment engineer and placed him on the fire station lieutenant reinstatement list. Thompson

objected and requested reinstatement. When the City denied Thompson’s request, Thompson sued

the City in district court. After some discovery, Thompson and the City filed competing traditional

motions for summary judgment. The trial court denied Thompson’s motion, granted the City’s

motion, and Thompson appealed. 3

                                           STANDARD OF REVIEW

        To prevail on a traditional motion for summary judgment, the movant must show “there is

no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of

law.” TEX. R. CIV. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985). If the facts are not in dispute, we review de novo the questions of law to determine whether

the trial court properly determined that the movant was entitled to judgment. See TEX. R. CIV. P.



1
   CITY OF WACO, TEX., CODE OF ORDINANCES ch. 18, art. III, div. 2, § 18-76 (2012), available at
https://library.municode.com/index.aspx?clientId=11666&stateId=43&stateName=Texas. The currently authorized
number of fire station lieutenants is thirty-seven.
2
  Although Thompson did not immediately replace the indefinitely suspended fire station lieutenant, the intermediate
personnel changes are not disputed and do not affect our analysis.
3
  The Texas Supreme Court transferred this case from the Tenth Court of Appeals to this court. See TEX. GOV’T CODE
ANN. § 73.001 (West 2013) (authorizing the Texas Supreme Court to transfer cases). The dispositive question in this
appeal seems to be a matter of first impression for the Tenth (and Fourth) Court. See TEX. R. APP. P. 41.3.

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166a(c); Nixon, 690 S.W.2d at 548. “When both sides move for summary judgment and the trial

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

summary judgment evidence[,] . . . determine all questions presented[,] . . . [and] render the

judgment that the trial court should have rendered.” FM Props. Operating Co. v. City of Austin,

22 S.W.3d 868, 872 (Tex. 2000) (citations omitted); accord Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

                                              ANALYSIS

A.     Thompson’s Argument

       Thompson argues that when he was promoted to fire station lieutenant, he filled the last of

the thirty-five authorized fire station lieutenant positions. By his arguments, he necessarily asserts

the hearing examiner’s subsequent reinstatement of a previously indefinitely suspended fire station

lieutenant created a thirty-sixth fire station lieutenant position. Thompson insists that, because he

had been properly promoted, the fire chief had no authority to demote him because he did not meet

any of the three statutory bases for demotion:

           •   [Disciplinary] Demotions, TEX. LOC. GOV’T CODE ANN. § 143.054;
           •   Military Leave of Absence, id. § 143.072; or
           •   Force Reduction and Reinstatement List, id. § 143.085.

He insists that “the only procedure by which he could be reclassified under the facts of this case

was for the Waco City Council to vote on whether to vacate or abolish the 36th position,” and

because it did not, the trial court erred by not reinstating him to fire station lieutenant and awarding

him back pay and benefits.




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B.     Case Overview

       At the outset, we recognize the Act does not expressly address the dispositive question

presented in this case: What procedures apply when a hearing examiner reinstates a previously

indefinitely suspended fire fighter to a now-filled classified position?

       Although the Act does not directly address this question, it nevertheless provides

considerable guidance. The Act is clear on what happens when a vacancy occurs. TEX. LOC.

GOV’T CODE ANN. § 143.036(a). In this case, after a fire station lieutenant was indefinitely

suspended by disciplinary action, the Act required the City to fill the vacant position. See id.

§ 143.036(e). The City filled the position as required, several personnel changes ensued, and

ultimately Thompson was promoted to fill a vacant fire station lieutenant position.

       Upon Thompson’s promotion, all thirty-five fire station lieutenant positions were filled.

Subsequently, when the hearing examiner reinstated the suspended fire station lieutenant—who

was senior to Thompson—the City could have voted to increase the number of fire station

lieutenant positions to thirty-six; it did not. Therefore, the fire chief was left with a predicament:

the fire department had thirty-six fire station lieutenants but the ordinance limited the number of

authorized positions to thirty-five. The fire chief interpreted the overage as a situation requiring a

force reduction, and he followed the force reduction procedures. See id. § 143.085(a). To

determine whether such an interpretation was appropriate, we review the applicable law.

C.     Applicable Law

       We begin by reviewing the relevant portions of the Act that expressly apply and those the

City argues may be invoked in this circumstance.

       Municipalities that adopt the Act must comply with its procedures when promoting and

demoting classified personnel. See id. § 143.021; City of Waco v. Kelley, 309 S.W.3d 536, 539

(Tex. 2010); City of San Antonio v. Bullock, 34 S.W.3d 650, 653 (Tex. App.—San Antonio 2000,
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pet. denied); City of Fort Worth v. Nyborg, 999 S.W.2d 451, 454 (Tex. App.—Fort Worth 1999,

pet. denied).

       If a classified person—such as a fire fighter—is indefinitely suspended by disciplinary

action, the fire fighter may appeal the suspension to a hearing examiner. TEX. LOC. GOV’T CODE

ANN. § 143.057; Kelley, 309 S.W.3d at 542. For purposes of the hearing, “the hearing examiner

has the same duties and powers as the commission.” TEX. LOC. GOV’T CODE ANN. § 143.057(f);

Kelley, 309 S.W.3d at 542. The hearing examiner, like the commission, has the authority to restore

a suspended fire fighter “to the person’s former position or status in the department’s classified

service.” TEX. LOC. GOV’T CODE ANN. § 143.053(e)(3); Kelley, 309 S.W.3d at 542–43.

       Should a force reduction become necessary, the Act enumerates specific procedures the

municipality must follow:

       If a municipality’s governing body adopts an ordinance that vacates or abolishes a
       fire . . . department position, the fire fighter . . . who holds that position shall be
       demoted to the position immediately below the vacated or abolished position. . . .
       If a fire fighter . . . is demoted under this subsection without charges being filed
       against the person for violation of civil service rules, the fire fighter . . . shall be
       placed on a position reinstatement list in order of seniority.

TEX. LOC. GOV’T CODE ANN. § 143.085(a); accord Bullock, 34 S.W.3d at 658.

       Having reviewed the applicable law, we turn to its application.

D.     Application of the Law

       The City of Waco is a municipality governed by the Fire Fighter and Police Officer Civil

Service Act, see TEX. LOC. GOV’T CODE ANN. § 143.001–.403; it is bound by the Act’s provisions,

Kelley, 309 S.W.3d at 539; Bullock, 34 S.W.3d at 653. But none of the Act’s provisions expressly

address Thompson’s specific situation. We agree that neither the disciplinary nor military leave

of absence demotion provisions apply to Thompson. See TEX. LOC. GOV’T CODE ANN. §§ 143.054,

.072. But we disagree with Thompson’s premise that he is entitled to be reinstated to fire station


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lieutenant because only the city council could abolish or vacate his position, and it did not. Cf. id.

§§ 143.021(a), .085(a).

       Reading the statute as a whole, we conclude it reveals the legislature’s intent regarding

principles that control in this case: the Act allows only the city council, not a hearing examiner, to

change the number of classified positions, see id. § 143.021(a); Kelley, 309 S.W.3d at 542, and

when the number of classified personnel exceeds the number of authorized positions, the Act

provides procedures that protect civil service personnel according to their seniority, see TEX. LOC.

GOV’T CODE ANN. § 143.085(a).

       1.      Authority to Create, Abolish Positions

       Shortly after Thompson was promoted to fire station lieutenant, a hearing examiner

reinstated a previously indefinitely suspended fire station lieutenant. See id. § 143.053(e)(3).

Thompson cites no authority to show that the hearing examiner could create a thirty-sixth fire

station lieutenant position, and we have found none.           See TEX. LOC. GOV’T CODE ANN.

§§ 143.021(a), .085(a); cf. Carr v. City of Fort Worth, 266 S.W.3d 116, 121 (Tex. App.—Fort

Worth 2008, pet. denied); Bullock, 34 S.W.3d at 653. To the contrary, the legislature has vested

only the municipality’s governing body—the Waco City Council—with the authority to establish

the number of classified positions. See TEX. LOC. GOV’T CODE ANN. §§ 143.021(a), .085(a);

Kelley, 309 S.W.3d at 542 (reiterating a prior holding that “a hearing examiner is not authorized

to make rules, but must follow those prescribed by the [l]egislature”); Carr, 266 S.W.3d at 121;

Bullock, 34 S.W.3d at 653; Nyborg, 999 S.W.2d at 455. Thompson’s view—that a hearing

examiner can create an additional position by a reinstatement—is not authorized by the legislature

or followed by the courts, and we decline to adopt such an interpretation. Cf., e.g., Kelley, 309

S.W.3d at 542. The hearing examiner’s reinstatement of the previously suspended fire station

lieutenant could not—and did not—create a thirty-sixth fire station lieutenant position. Instead, it
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created a condition where the number of fire station lieutenants exceeded the number of authorized

positions. The Waco City Council did not increase the number of classified positions. See TEX.

LOC. GOV’T CODE ANN. § 143.021(a); Carr, 266 S.W.3d at 121; Nyborg, 999 S.W.2d at 456–57.

Thus, given that the number of classified employees then exceeded the number of authorized

positions, the fire chief was forced to reduce the number of fire station lieutenants.

       2.      Force Reduction Procedures

       Section 143.085 provides procedures the City must use in force reductions. See TEX. LOC.

GOV’T CODE ANN. § 143.085; Nyborg, 999 S.W.2d at 456–57. Subsection (a) contemplates a force

reduction resulting from a city ordinance:

       If a municipality’s governing body adopts an ordinance that vacates or abolishes a
       fire . . . department position, the fire fighter . . . who holds that position shall be
       demoted to the position immediately below the vacated or abolished position. . . .
       If a fire fighter . . . is demoted under this subsection without charges being filed
       against the person for violation of civil service rules, the fire fighter . . . shall be
       placed on a position reinstatement list in order of seniority.

TEX. LOC. GOV’T CODE ANN. § 143.085(a).

       Subsection (b) also contemplates a force reduction, but does not expressly mention a

reduction invoked by ordinance:

       If a position in the lowest classification is abolished or vacated and a fire fighter . . .
       must be dismissed from the department, the fire fighter . . . with the least seniority
       shall be dismissed. If a fire fighter . . . is dismissed under this subsection without
       charges being filed against the person for violation of civil service rules, the fire
       fighter . . . shall be placed on a reinstatement list in order of seniority.

Id. § 143.085(b).

       3.      Force Reduction Procedures Invoked by Reinstatement

       The express triggering event in subsection (a) of the force reduction procedures is an

ordinance passed by the municipality’s governing body that vacates or abolishes a position. Id.

§ 143.085(a). But based on our reading of the Act, we believe the legislature did not intend to


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limit the force reduction protections to only those fire fighters whose positions were vacated or

abolished by a city ordinance. The force reduction provision expressly anticipates circumstances

in which fire departments must reduce the number of their classified personnel, and it protects fire

fighters according to their seniority: the most senior fire fighters are retained in the remaining

positions in seniority order, and the most junior fire fighters are demoted or dismissed in reverse

order of seniority. Id. § 143.085. For positions above the lowest classification, the fire fighter

retains employment, but at the position immediately below the former position. Id. § 143.085(a).

       We hold that the force reduction provision is also invoked when the commission or a

hearing examiner restores a previously indefinitely suspended fire fighter to his former position

and the number of classified personnel in that position then exceeds the number of authorized

positions. This holding comports with the Act’s express provisions that (1) restrict classified

position creation and abolition authority to the city council, see id. § 143.021(a); Kelley, 309

S.W.3d at 542, and (2) protect necessarily demoted fire fighters according to their seniority, TEX.

LOC. GOV’T CODE ANN. § 143.085.

       4.      Procedures Applicable to Thompson

       The Act’s plain language provides procedures the City must follow for a force reduction,

and we hold that those provisions apply to Thompson under these unusual facts. See TEX. LOC.

GOV’T CODE ANN. § 143.085(a); Carr, 266 S.W.3d at 124 n.6; Nyborg, 999 S.W.2d at 456–57;

City of San Antonio v. Wiley, 252 S.W.2d 471, 473 (Tex. Civ. App.—San Antonio 1952, writ ref’d

n.r.e.). When the previously indefinitely suspended fire fighter was reinstated, and because

Thompson was the most junior fire station lieutenant, the City followed the procedures required

by the Act: Thompson was demoted to his immediately previous position of fire equipment




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engineer, and he was placed on the fire station lieutenant reinstatement list. 4 See TEX. LOC. GOV’T

CODE ANN. § 143.085(a); Carr, 266 S.W.3d at 124 n.6; Nyborg, 999 S.W.2d at 456–57. He

received the protections prescribed by the legislature for a classified employee when the number

of classified persons exceeds the number of authorized classified positions. See TEX. LOC. GOV’T

CODE ANN. § 143.085(a); Carr, 266 S.W.3d at 124 n.6; Nyborg, 999 S.W.2d at 456–57.

        We conclude the City complied with the Act and afforded Thompson the statutorily

required protections.

                                                 CONCLUSION

        Although the Act does not expressly address Thompson’s specific circumstances, we

conclude that it provides the necessary guidance to decide this matter. When the hearing examiner

reinstated the indefinitely suspended fire station lieutenant, the number of fire station lieutenants

exceeded the authorized number of fire station lieutenant positions. Because the Waco City

Council did not increase the number of authorized fire station lieutenant positions, the fire chief

was required to reduce the number of fire station lieutenants.

        As we have held herein, the force reduction provisions extend to this circumstance—where

a previously indefinitely suspended fire fighter is reinstated, the number of classified personnel in

that position exceeds the authorized number, and the complainant is the least senior person in the

position. Because the City provided Thompson with the protections afforded by the Act for force

reductions, the trial court properly denied Thompson’s motion and granted the City’s motion.

        We affirm the trial court’s judgment.


                                                         Patricia O. Alvarez, Justice


4
  See Jackson v. City of Texas City, 265 S.W.3d 640, 649 n.6 (Tex. App.—Houston [1st Dist.] 2008, pet. denied)
(quoting City of Amarillo v. Hancock, 239 S.W.2d 788, 792 (Tex. 1951)) (noting that a classified person promoted to
a position does not acquire a property interest in retaining the position merely by having been properly promoted).

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