                                                                                      ACCEPTED
                                                                                 03-14-00693-CV
                                                                                         4021190
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             2/4/2015 2:35:06 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                          No. 03-14-00693-CV

                                                                FILED IN
                                                         3rd COURT OF APPEALS
                     In the Third Court of Appeals           AUSTIN, TEXAS
                             Austin, Texas               2/4/2015 2:35:06 PM
                                                           JEFFREY D. KYLE
                                                                 Clerk

   CITY OF NEW BRAUNFELS, TEXAS, JAN KOTYLO, in her official
 capacity, PAT CLIFTON, in his official capacity, and FRITZ WELSCH, in
                         his official capacity

                               Appellants,

                                   v.

                             JOSEPH TOVAR,

                                Appellee.


                 APPEAL FROM CAUSE NO. C2014-0928A
            ND
          22 JUDICIAL DISTRICT COURT OF COMAL COUNTY, TEXAS
                   HONORABLE DIBRELL W. WALDRIP


                   APPELLANTS’ REPLY BRIEF TO
                 BRIEF OF APPELLEE JOSEPH TOVAR

Bettye Lynn                             Valeria M. Acevedo
State Bar No. 11540500                  State Bar No. 00798020
Lynn, Ross & Gannaway, LLP              City of New Braunfels, Texas
306 West Broadway Avenue                424 South Castell Avenue
Fort Worth, Texas 76104                 New Braunfels, Texas 78130
817.332.8505 (Telephone)                830.221.4281 (Telephone)
817.332.8548 (Facsimile)                830.626.5578 (Facsimile)
lynn@laborcounsel.net                   vacevedo@nbtexas.org

ATTORNEYS FOR APPELLANTS                ORAL ARGUMENT REQUESTED
                                       TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

ARGUMENT & AUTHORITIES ............................................................................. 1

I.      THE NEW BRAUNFELS CIVIL SERVICE COMMISSION IS A NECESSARY AND
        INDISPENSABLE PARTY TO THE LAWSUIT .......................................................... 1

        A.       CASES RELIED UPON BY APPELLEE DO NOT HELP HIM ......................... 1

                 1.       Perez v. City of Laredo ............................................................... 1

                 2.       City of Lubbock v. Knox .............................................................. 2

        B.       APPELLEE IGNORES AN IMPORTANT DECISION ....................................... 3

        C.       SURVEY OF PRECEDENT SUPPORTS APPELLANTS’ POSITION .................. 4

        D.       PARRISH V. PHILLIPS SUPPORTS APPELLANTS’ POSITION ........................ 4

        E.       AN ALLEGED ULTRA VIRES ACT DOES NOT UNDO APPELLEE’S ERROR . 5

        F.       THE COMMISSION IS A LEGAL ENTITY .................................................... 6

II.     APPELLEE HAS FAILED TO DEMONSTRATE HIS STANDING ............................... 9

III.    NO JURISDICTION EXISTS UNDER THE DECLARATORY JUDGMENTS ACT, AS
        APPELLANTS HAVE NOT WAIVED IMMUNITY FROM SUIT ...............................10

IV.     APPELLEE IS NOT ENTITLED TO INJUNCTIVE RELIEF .......................................12

V.      MANDAMUS RELIEF IS AN EXTRAORDINARY REMEDY TO WHICH APPELLEE IS
        NOT ENTITLED ................................................................................................13

VI.     THE MERITS OF THIS CASE ARE NOT PROPERLY BEFORE THE COURT ............. 14

VII. APPELLEE’S INTERPRETATION OF THE CIVIL SERVICE STATUTE IS WRONG .... 15

                                                          i
        A.      THE PLAIN MEANING OF SECTION 143.033(C) OF THE TLGC DOES NOT
                SUPPORT APPELLEE’S CLAIMS. ...........................................................15

                1.       “ONLY” IS THE MOST IMPORTANT ADVERB .................................18

                2.       “GRADE” IS A CRITICAL NOUN ....................................................18

        B.      LEGISLATIVE INTENT MAY BE DETERMINED BY LEGISLATIVE
                HISTORY ...............................................................................................21

        C.      CASE LAW SUPPORTS DEFENDANTS’ CONSTRUCTION ..........................23

        D.      APPELLEE’S ANALYSIS OF KNOX IS FLAWED ........................................25

        E.      THE CIVIL SERVICE ACT REQUIRES PASSING SCORES THROUGHOUT ... 25

        F.      THE LEGISLATURE KNOWS HOW TO DIFFERENTIATE BETWEEN POLICE
                AND FIRE IN THE CIVIL SERVICE ACT ...................................................26

        G.      CASES RELIED UPON BY APPELLEE ARE DISTINGUISHABLE .................. 28

CONCLUSION AND PRAYER ..............................................................................28

CERTIFICATE OF COMPLIANCE .......................................................................30

CERTIFICATE OF SERVICE ................................................................................30




                                                          ii
                                         INDEX OF AUTHORITIES

Aaron Rents, Inc., v. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex.App. –
Austin, 2006, no pet.) ...............................................................................................23

Bell v. City of Grand Prairie, 160 S.W.3d 691 (Tex.App. — Dallas 2005, no pet.)
..............................................................................................................................3, 10

Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App. -- Austin, 2003) ................... 20

City of Amarillo v. Hancock, 239 S.W.2d 788 (Tex. 1951) ...................................... 9

City of Beaumont v. Spivey, 1 S.W.3d 385 (Tex.App.—Beaumont 1999, pet. denied)
..................................................................................................................................14

City of Harlingen v. Lucio, 770 S.W.2d 7 (Tex.App.—Corpus Christi 1989, writ
denied) ........................................................................................................................4

City of Houston v. Bates, 406 S.W.3d 539 (Tex. 2013) ..........................................16

City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006) ..........................................23

City of Houston v. McDonald, 946 S.W.2d 419 (Tex.App. — Houston [14th Dist.]
1997, writ denied) ......................................................................................................4

City of Houston v. Meister, 882 S.W. 2d 29 (Tex.App.—Houston [14th Dist] 1994,
writ denied) ..............................................................................................................13

City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2011) ....................................... 8

City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) ................................11

City of Lubbock v. Knox, 736 S.W.2d 888 (Tex.App.—Amarillo, 1987, writ
ref’d) ...................................................................................................2, 13, 22, 23, 24

City of Round Rock v. Whiteaker, 241 S.W.3d 609 (Tex.App.—Austin 2007, pet.
denied) ..................................................................................................................9, 10

Crain v. Firemen’s and Policemen’s Civil Service Commission of Fort Worth, 495
S.W.2d 20 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n.r.e.)................................ 4


                                                                iii
Democracy Coalition v. City of Austin, 141 S.W.3d 282 (Tex.App.—Austin 2004,
no pet.)......................................................................................................................12

Federal Sign v. Texas, Southern University, 951 S.W.2d 401 (Tex. 1997) .............. 5

Firemen’s and Policemen’s Civil Service Commission of Fort Worth v. Williams 531
S.W.2d 327 (Tex. 1975) .............................................................................................4

Firemen’s and Policemen’s Civil Service Commission of Fort Worth v. Kennedy,
514. S.W.2d 237 (Tex. 1974).....................................................................................4

Frey v. DeCordova Bend Estates Owners Ass’n., 632 S.W.2d 877 (Tex.App.—Fort
Worth 1982), aff’d. 647 S.W.2d 246 (Tex.) ............................................................12

General Services Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex.
2000) ........................................................................................................................22

Hamilton v. Washington, 2014 Tex. App. LEXIS 13733 (Tex. App. — Austin,
December 23, 2014) .................................................................................................15

Harris Cnty. Hosp Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838 (Tex. 2009)....... 8

Hunt County Cmty. Supervision and Corrections Department v. Gaston, 2014
Tex.App. LEXIS 10457 (Tex.App.—Austin, Sept. 19, 2014) ................................15

John Paul Mitchell Systems v. Randall’s Food Markets, Inc., 17 S.W. 3d 721
(Tex.App.—Austin, pet. denied)..............................................................................12

Labrado v. County of El Paso, 132 S.W.3d 581 (Tex.App.—El Paso 2004, no
pet.)...........................................................................................................................11

Lacey v. State Banking Board, 118 Tex. 91(1928) ..................................................28

Liberty Mut. Ins. Co. v. Adcock. 412 S.W. 3d 492 (Tex. 2013) ..............................16

Lowell v. City of Baytown, 356 S.W.3d 499 (Tex. 2011) ........................................10

Moore v. Firefighters and Police Officers Civil Service Commission of Mesquite,
809 S.W.2d 527 (Tex.App.—Dallas, 1991, writ denied) .......................................... 4



                                                               iv
Parrish v. Phillips, 401 S.W.2d 347 (Tex. Civ.App.—Houston [1st Dist.] 1996, writ
ref’d n.r.e.)..............................................................................................................4, 5

Perez v. City of Laredo, (Perez II), 82 S.W. 2d 605 (Tex.App.—San Antonio 2002,
no pet.)....................................................................................................................1, 2

Perez. v. City of Laredo, (Perez I), 21 S.W.3d 371 (Tex.App—San Antonio
2000) ......................................................................................................................1, 2

San Antonio Conservation Society v. City of San Antonio, 455 S.W.2d 743 (Tex.
1970) ........................................................................................................................28

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) .............................. 8

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) ................ 16

TNRCC v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) ....................................................... 5

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) ............................................... 8

                                   STATE STATUTES AND RULES

ART. 1269M§14(D)(2)...............................................................................................23

§65.011(2) TEX. CIV. PRAC. & RE. CODE ANN. ........................................................12

§65.011(3) TEX. CIV. PRAC. & RE. CODE ANN. ........................................................12

§311.023 TEXAS GOVERNMENT CODE ......................................................................16

Chapter 143 TEXAS LOCAL GOVERNMENT CODE ............................................. Passim

§143.015(A) TEXAS LOCAL GOVERNMENT CODE ................................................. 7, 14

§143.023 TEXAS LOCAL GOVERNMENT CODE ..........................................................26

§143.025 TEXAS LOCAL GOVERNMENT CODE .................................................... 26, 27

§143.025(F) TEXAS LOCAL GOVERNMENT CODE .....................................................27



                                                               v
§143.025(I) TEXAS LOCAL GOVERNMENT CODE ......................................................26

§143.028 TEXAS LOCAL GOVERNMENT CODE ..........................................................27

§143.030 TEXAS LOCAL GOVERNMENT CODE ..........................................................27

§143.031 TEXAS LOCAL GOVERNMENT CODE ..........................................................27

§144.033 TEXAS LOCAL GOVERNMENT CODE ..........................................................15

§143.033(C) TEXAS LOCAL GOVERNMENT CODE ........................ 15, 17-20, 22-25, 28

§143.035 TEXAS LOCAL GOVERNMENT CODE ..........................................................27

§143.036 TEXAS LOCAL GOVERNMENT CODE ..........................................................27

Chapter 158 TEXAS LOCAL GOVERNMENT CODE ....................................................... 8

§272.151-160 TEXAS LOCAL GOVERNMENT CODE ..................................................10

Policemen’s and Firemen’s Civil Service Act, Act of May 26, 1985, 69th Leg., R.S.,
Ch. 910, §14(D)(2) and (3), 1985, repealed by Act of 70th Leg., R.S., Ch. 149, §1,
1981. .........................................................................................................................24

                                          OTHER AUTHORITIES

http://college.lclark.edu/live/files/10241-modifierspdf ...........................................18

http://tlchouse.granicus.com/MediaPlayer.php?view_id=23&clip_id=6394 .......... 22

http://www.cws.illinois.edu/workshop/writers/misplacedmodifiers .......................18




                                                               vi
TO THE HONORABLE THIRD COURT OF APPEALS:

        Appellants, The City of New Braunfels, Texas, Jan Kotylo, in her official

capacity, Pat Clifton, in his official capacity and Fritz Welsch, in his official

capacity, file this Reply Brief in response to the Brief of Appellee, Joseph Tovar.

Appellants respectfully show:

                         ARGUMENT & AUTHORITIES

I.      THE NEW BRAUNFELS CIVIL SERVICE COMMISSION IS A NECESSARY                     AND
        INDISPENSABLE PARTY TO THE LAWSUIT.

     Appellee’s arguments, notwithstanding, (A.B., 18-24),1 the New Braunfels Civil

Service Commission remains an indispensable and necessary party to the litigation.

        A.    CASES RELIED UPON BY APPELLEE DO NOT HELP HIM.

              1.    Perez v. City of Laredo

        This Court must decide whether the Civil Service Commission itself must be

named as a party in order for the trial court to have jurisdiction to review and decide

the issue. Appellee’s citation to Perez. v. City of Laredo, (Perez I), 21 S.W.3d 371

(Tex.App—San Antonio 2000), does not advance his argument. First, the case style

indicates the Plaintiff sued, inter alia, Joaquin Romero and Edward Sherwood,

individually and as members of the Firefighters and Police Officers Civil Service

Commission of the City of Laredo. In a subsequent appeal, Perez v. City of Laredo,


1
 References in this Reply Brief are: Appellee’s Brief: “A.B.” and Appellants’ Brief: “C.B.”
References to the Texas Local Government Code shall be “T.L.G.C.”


                                            1
(Perez II), 82 S.W. 2d 605, 607 (Tex.App.—San Antonio 2002, no pet.), the court

describes Perez as appealing the Commission’s decision to the district court.

      Appellee apparently misunderstands Appellants’ statement on page 13 of its

Brief, as even Perez II indicated the Commission’s decision was at issue. Perez II,

id. at 607. None of the arguments in Appellants’ Brief are negated by Appellee’s

erroneous interpretation of Perez I and II. There are still no reported cases that have

squarely addressed whether suing individual Commission members only in their

official (individual) capacities will give the court jurisdiction over the Commission

as a governmental body to act in a certain manner, such as here where the court

ordered the three commissioners, named only in their official capacities, to do so.

             2.     City of Lubbock v. Knox

      City of Lubbock v. Knox, 736 S.W.2d 888, 893 (Tex.App.—Amarillo 1987,

writ ref’d) likewise fails to help Appellee. There, the Court of Appeals clearly stated

both the City of Lubbock and its Civil Service Commission were parties to the case,

and indicated it was collectively referencing them. Both had appealed a decision

denying Knox’s motion for summary judgment. The court of appeals ruled in favor

of both Lubbock and its Civil Service Commission. Id. at 893. For further analysis

of the Knox case, infra at 24-25.




                                          2
      B.     APPELLEE IGNORES AN IMPORTANT DECISION.

      A similar form of “retroactive reasoning,” as advanced by Appellee, was

rejected in another case brought under Chapter 143, T.L.G.C. In Bell v. City of

Grand Prairie, 160 S.W.3d 691, 694 (Tex.App.—Dallas 2005, no pet.), police

officers argued that earlier cases under Chapter 143 had waived municipalities’

immunity due to their Charters’ “sue and be sued” provision. However, the court

rejected the argument that “courts in earlier cases under [Chapter 143] . . . must have

concluded they had jurisdiction over the suits brought against municipalities because

those courts reached the merits of the cases. . .” The court disagreed: “. . . not only

did the [previous] opinions not suggest . . . [that immunity was waived by the ‘sue

and be sued’ provisions] it appears the courts never considered that possibility.” Id.

at 695. Thus, Bell concluded the earlier cases were not holding(s) that governmental

immunity did not bar a claim for back pay under the civil service act. Id.

      The same result should obtain here, where neither party has located precedent

directly addressing whether the court has jurisdiction to rule on an appeal of a civil

service commission’s decision if the commission is not named as a party. As

described more fully in Appellant’s Brief, the trial court had no authority to issue an

order directing individual Appellants to place Appellee’s name on a promotional




                                          3
eligibility list, because §143.034 T.L.G.C. is clear that the Commission creates the

promotional eligibility list, not its individual members. (C.B., 12-16). 2

        C.      SURVEY OF PRECEDENT SUPPORTS APPELLANTS’ POSITION.

        A survey of litigation challenging civil service commission decisions alleging

violations of §143.034 reveals that in seven of the eight reported cases, the civil

service commission was named as a defendant by the suing employee who objected

to a ruling of the civil service commission.3 In one case that did not name the

commission as a defendant, the issue was not raised by either party. Originally, the

civil service promotional provisions did not rely exclusively on written examinations

and seniority points, which may explain the dearth of reported promotional

examination appeals.

        D.      PARRISH V. PHILLIPS SUPPORTS APPELLANTS’ POSITION.

        Appellee further mischaracterizes Appellants’ legal arguments in his

discussion of Parrish v. Phillips, 401 S.W.2d 347, 349-50 (Tex. Civ.App.—Houston


2
  The result that could occur, if the trial court’s decision is upheld, is illustrated by a hypothetical.
Should one or more members of Appellants’ Civil Service Commission not be reappointed, the
trial court would not have jurisdiction to order Appellee place on a promotional list, because the
Commission is not named as a party. The newly-appointed commissioners would not be
defendants and would not be subject to the trial court‘s order.
3
  See Firemen’s and Policemen’s Civil Service Commission of Fort Worth v. Williams, 531 S.W.2d
327 (Tex. 1975); Firemen’s and Policemen’s Civil Service Commission of Fort Worth v. Kennedy,
514. S.W.2d, 237 (Tex. 1974); City of Houston v. McDonald, 946 S.W.2d 419 (Tex.App.—
Houston [14th Dist.] 1997, writ denied); Moore v. Firefighters and Police Officers Civil Service
Commission of Mesquite, 809 S.W.2d 527 (Tex.App.—Dallas, 1991, writ denied); City of
Harlingen v. Lucio, 770 S.W.2d 7 (Tex.App.—Corpus Christi 1989, writ denied); Crain v.
Firemen’s and Policemen’s Civil Service Commission of Fort Worth, 495 S.W.2d 20
(Tex.Civ.App.—Fort Worth 1973, writ ref’d n.r.e.).


                                                   4
[1st Dist.] 1996, writ ref’d n.r.e.). (A.B., 20). Plaintiffs challenged the Surveying

Boards’ authorization to adopt rules and regulations it deemed necessary to

administer a statute regulating surveyors. Id. at 349. The court stated:

       [i]f this Court should determine that registered professional engineers
      are exempted from registration under Art. 5282a, we entertain serious
      doubts as to whether the judgment would settle the controversy, and
      could be enforced, since no one charged with the duty of enforcing the
      Act was made a party to the suit.”

Id. at 351.

      Appellee failed to mention that Appellants’ Civil Service Commission

adopted a Local Rule regarding promotional test grades that he is appealing, and he

is wrong in contending that Parrish’s holding is inapplicable here. (C.R., 110).

      E.      AN ALLEGED ULTRA VIRES ACT DOES NOT UNDO APPELLEE’S
              ERROR.

      Appellee’s claim that the ultra vires exception to sovereign immunity excuses

his failure to name the Commission as a party, is simply wishful thinking. (A.B., 20-

21). This exception applies only to instances where sovereign immunity is pled to

avoid monetary damages. It does nothing to assist a plaintiff who has failed to name

an indispensable and necessary party.

      Neither TNRCC v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002), nor Federal

Sign v. Texas, Southern University, 951 S.W.2d 401, 404 (Tex. 1997), addressed the

issue of a party’s failure to name a necessary party, but rather dealt with a party’s

ability to seek relief under the UDJA. (A.B., 21).


                                          5
      F.     THE COMMISSION IS A LEGAL ENTITY.

      Appellee’s further attempts negate the Commission as a legal entity separate

from the City similarly fail. (A.B., 22). Appellee identifies several provisions in the

Civil Service Act that he claims demonstrate the Commission is not legally separate

from the City. Appellants do not deny the interrelationship between the City and the

Commission on the few isolated points mentioned by Appellee; however, those do

not affect the independence of the Commission’s operations and decision-making.

Appellee fails to acknowledge the extensive number of Commission duties that are

separate from those performed by the City Council.

      The Legislature’s primary purpose in enacting civil service in 1947 was to

remove the political influence of elected city officials, as it gave civil service

commissions exclusive authority in many areas, including:

      — adopting rules governing promotions

      — providing for open, competitive . . . examinations for applicants

      — hearing and deciding appeals of promotional examinations

      — making rules prescribing cause for removal or suspension

      — holding hearings on disciplinary appeals

      — determining issues of fitness for duty

      — developing procedures for employee performance reports

      — classifying all covered employees



                                          6
      — setting age and physical requirements for applicants for beginning and
        promotional positions

      — adopting rules for rehiring police officers who have resigned

Chapter 143.001, et seq, T.L.G.C.

Notably, dissatisfaction with a commission decision permits an employee to file a

petition in district court asking the commission’s decision be set aside. §143.015(a)

T.L.G.C.

      The Legislature’s determination to separate the Commission’s activities from

the City Council’s supports a conclusion that the Commission must be named as a

party, as it must act as a body for its orders to be valid. As it has evolved over the

years, Chapter 143 has never indicated an intention to permit individual commission

members to act separately. If a civil service employee obtains a court order to

advance his position, then the Commission must act, if so ordered by a Court.

Appellee cannot achieve the promotion he desires, because the individual

Defendants cannot provide him the remedy he seeks.

      Appellee erroneously alleges the Commission is not a legal entity that can

“sue and be sued” (A.B., 22). A review of an index of Chapter 143 cases indicates

that civil service commissions have been sued numerous times beginning shortly

after the Act became effective. There are scores of cases where commissions have

been defendants, despite the fact that Chapter 143 did not provide that a civil service

commission can “sue and be sued.”


                                          7
       Appellee has again confused concepts, as inclusion of the phrase “sue and be

sued” has been considered by Texas courts to determine if a City has waived its

sovereign immunity from suit. The Texas Supreme Court decided in Tooke v. City

of Mexia, 197 S.W.3d 325 (Tex. 2006), that a City Charter provision indicating a

city could “sue or be sued” did not waive its sovereign immunity from suits for

money damages. In the civil service context, the Court decided City of Houston v.

Williams, 353 S.W.3d 128 (Tex. 2011), in which it considered what waiver of

immunity existed after passage of Sections 271.151-160 of the T.L.G.C. Williams

held the concept of “sue and be sued” has no place in the jurisprudence of

determining whether an employee was required to name the Civil Service

Commission as a party. Reliance on the “sue and be sued” waiver of sovereign

immunity is a red herring.4

       The City has already addressed the differences between Chapter 143 Civil

Service and county civil service found in Chapter 158, T.L.G.C, where the Sheriff

sat on the Commission and had the legal authority to put the employee back to work



4
  Appellee further muddies the water when he cites Harris Cnty. Hosp Dist. v. Tomball Reg’l
Hosp., 283 S.W.3d 838 (Tex. 2009) (A.B., p. 22), a case in which the Supreme Court summarized
its decision in Tooke before moving to the other possible theories of waiver of sovereign immunity.
This decision, however, does not relate to Chapter 143 civil service nor to any other theory posited
by Appellee for his failure to name the Civil Service Commission as a Defendant. Appellee further
confuses matters by citing, Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007), where
a contract employee sued the University for breach of his employment contract and the University
asserted a sovereign immunity defense. Appellant has not asserted a breach of contract claim.



                                                 8
(C.B., 19-20). Here, neither Defendant City (acting through its City Council and

City Manager) nor the individual Defendants have the authority to place Appellee

on a promotional list.

II.   APPELLEE HAS FAILED TO DEMONSTRATE HIS STANDING.

      Appellee unsuccessfully negated Appellants’ arguments that he has failed to

establish standing, due to his lack of a justiciable claim (A.B. 24-27). If a claim is

not justiciable, declaratory relief is unavailable. No matter how wide Appellee

claims the scope of declaratory judgments is, he fails to fall within it.

      Appellee’s attempts to distinguish City of Amarillo v. Hancock, 239 S.W.2d

788, 790 (Tex. 1951), by relying City of Round Rock v. Whiteaker, 241 S.W.3d 609,

617 (Tex.App.—Austin 2007, pet. denied), are misplaced. (See C.B., 23-25).

Whiteaker himself observed that being on the top of a promotional eligibility list,

while conferring a statutory primary right to promotion, did not create an equitable

property interest in a promotion. Id., at 625. Eventually, this Court rejected several

of Whiteaker’s arguments, including his claim that a person’s position as the top

candidate on a promotion eligibility list conferred a property interest. Id. at 625.

Appellee concedes he is not basing his request for relief on an inherent right due to

violations based on constitutional principles, but states that his “appeal is statutory.”

(A.B., 26).    Hancock’s principles, described earlier (See          C.B., 85-86), are

applicable.



                                           9
         Appellee scored only a 64 on the promotional examination, so unlike

Whiteaker, who scored much higher than a 70 on his promotional examination, they

are not similarly situated. Whiteaker passed the written examination, and had been

placed on the promotional list; Appellee never met the threshold requirement of

passing an examination that would place him on a promotional list, and he lacks

standing. Unlike Whiteaker, there are no fact issues here that preclude a finding that

Appellee does not have standing.

III.     NO JURISDICTION EXISTS UNDER THE DECLARATORY JUDGMENTS ACT, AS
         APPELLANTS HAVE NOT WAIVED IMMUNITY FROM SUIT.

   Appellee wholly failed to respond to Appellants’ arguments rebutting his

contention that Appellants do not possess sovereign immunity from suit on various

grounds. (A.B., 27-28). Rather, he cited to three cases, none of which are applicable

to the facts, but did not distinguish cases cited by Appellants (C.B., 27-33). Appellee

did not dispute Appellants’ contention that the Civil Service Act lacks a general

waiver of sovereign immunity. Bell v. City of Grand Prairie, supra.

       Although Appellee relies on, Lowell v. City of Baytown, 356 S.W.3d 499 (Tex.

2011), it, too, supports Appellants’ arguments. (A.B., 28). The Supreme Court’s

remand for reconsideration of the availability of back pay occurred solely due to the

passage of §272.151-160 of the T.L.G.C. during the pendency of the appeal, Id. at

501. That section is wholly inapplicable to a challenge of a promotional eligibility

list, because no contract is involved.


                                          10
      Appellee’s reliance on City of Round Rock, id., is misplaced, because the court

concluded Whiteaker’s suit, although styled as a mandamus, was actually a suit for

money damages that implicated Round Rock’s sovereign immunity. City of Round

Rock, id. at 637. Appellee falls into neither of the two categories carved out by the

court where sovereign immunity would not be implicated: failure to promote claims

where (1) vacancy exists and (2) where city attempts to abolish a position. Id. Nor

does Appellee fit into the court’s third category, where another employee is

promoted to a position to which a plaintiff claimed entitlement.

       Appellee’s reliance on Labrado v. County of El Paso, 132 S.W.3d 581, 592-

94 (Tex.App.—El Paso 2004, no pet.), (A.B., 28), is misplaced. Labrado involved a

lawsuit over an alleged breach of contract, not over a statutory scheme. Here, unlike

Labrado, the Legislature has not expressly waived sovereign immunity for monetary

damages sought Civil Service Act claims.

      Appellee failed to respond to the City’s discussion of his request for money

damages in the form of actual damages and pre- and post-judgment interest and

attorney’s fees (A.B., 32). Even though Appellee’s counsel claimed that he was not

seeking money damages on the record before the trial court (R.R., 46), his Petition

belies that statement (C.R., 15), as does his Response Brief (A.B., 32). Thus, the

trial court erred in its conclusion relating to Appellee’s requests for money damages

(See, C.B., 31-32).



                                         11
      Finally, Appellee failed to address the individual Appellants’ claims that they

enjoy official immunity from suit (C.B., 32-33). Appellee did not distinguish, or

even mention City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

The individual Appellants rely on Chambers to protect their official immunity.

IV.   APPELLEE IS NOT ENTITLED TO INJUNCTIVE RELIEF.

      Appellee has failed to address any of the legal points advanced by Appellants

(C.B., 38-41), as to why injunctive relief is improper. Appellee mistakenly relies on

John Paul Mitchell Systems v. Randall’s Food Markets, Inc., 17 S.W. 3d 721,732

(Tex.App.—Austin, pet. denied, 2000), where the Court affirmed a trial court’s

decision that injunctive relief was not warranted, as the Appellant did not meet the

elements for such relief. Appellee also erroneously relies on Frey v. DeCordova

Bend Estates Owners Ass’n., 632 S.W.2d 877, 881 (Tex.App.—Fort Worth 1982),

aff’d. 647 S.W.2d 246 (Tex.), where injunctive relief was similarly denied, as well

as Democracy Coalition v. City of Austin, 141 S.W.3d 282, 296 (Tex.App.—Austin

2004, no pet.). (A.B., 30). Appellee did not dispute Appellants’ contention that

injunctive relief is an extraordinary remedy that is not to be granted without proper

proof of all the elements.

      Further, Appellee failed to address his obligation to satisfy the elements of

§§65.011(2) and (3) of the Tex. Civ. Prac. & Rem. Code Ann., and he failed to

provide any statutory basis for his entitlement to injunctive relief per §65.001(3),



                                         12
as earlier discussed by Appellants (C.B., 38-41). Appellee has no primary right to

be promoted to any Sergeant’s vacancy, as none exists. He failed to establish an

irreparable injury, and the trial court made no findings on any of the elements of

injunctive relief, including the existence of an irreparable injury. It ruled only that

injunctive relief was not precluded by sovereign or governmental immunity (C.R.,

268).

         Appellee seems to be pleading for other employees’ rights to promotion,

claiming they “will suffer the same irreparable injury” if injunctive relief is not

granted to him. (A.B., 31). This argument is specious, as Appellee does not have

standing to represent other employees; he sued only upon his own behalf. His wish

to “protect” others is not relevant to his plea for injunctive relief.

V.      MANDAMUS RELIEF IS AN EXTRAORDINARY REMEDY TO WHICH APPELLEE
        IS NOT ENTITLED.

        Appellee chose to distinguish only one of Appellants’ numerous citations to

decisional authority speaking directly to the situation before the Court (A.B, 29).

Appellee failed to explain how he has no adequate remedy by appeal of the

Commission’s decision. He failed to file an appeal, just like City of Houston v.

Meister, 882 S.W.2d 29 (Tex.App.—Houston [14th Dist] 1994, writ denied).

Appellee ignores Meister’s explanation that the use of mandamus to correct rulings

by an administrative body has been narrowly restricted, Meister, id. at 31. Meister

failed to perfect his appeal of the Commission’s order, just as Appellee failed to


                                          13
appeal the Commission’s decision within 10 days of its order pursuant to

§143.015(a). He cannot now resurrect his opportunity to have a court consider the

alleged wrong, as he failed to use the statutory appeal process provided him. 5

VI.    THE MERITS OF THIS CASE ARE NOT PROPERLY BEFORE THE COURT.

       Appellee misleads the Court when he claims that the Plea to the Jurisdiction

also “decides the merits of this case,” claiming Appellant concede[d] there are no

genuine issues of material fact, citing to C.R. 180. (A.B., 2). This is disingenuous,

as this statement is not in Appellants’ Plea to the Jurisdiction; rather it was stated in

Appellants’ Objections and Reponses to Plaintiff’s Motion for Summary Judgment

(C.R. 179, et. seq.), The Record shows Appellee improperly attempted to have the

trial court hear his Motion for Summary Judgment on the date Appellants had

scheduled a hearing on their Plea to the Jurisdiction. (R.R. 4-9).

       A discussion occurred between the court and the attorneys at the beginning of

the hearing, as to what was before the court. (R.R., 4-9). Appellee attempted to

persuade the trial court to hear his Motion for Summary Judgment; however,

Appellants strenuously objected, because the matter had not been set on the docket

and no fiat had issued. Appellants explained the outcome of the Plea to the




5
  He further failed to acknowledge the similarities presented in City of Beaumont v. Spivey, 1
S.W.3d 385, 388 (Tex.App.—Beaumont 1999, pet. denied), which is discussed in detail in
Appellants’ Brief (C.B., 33-36).


                                             14
Jurisdiction could cause the case to be dismissed because without jurisdiction, the

case would become moot. (R.R., 5-9).

      The court stated it would reset the hearing on the motion for summary

judgment, which would involve the legal arguments and disputed facts (if any) (R.R.,

8, lines 23-25). Due to the appeal of the trial court’s ruling on the Appellants’ Plea

to the Jurisdiction, the trial court has never considered the “merits” of the case, i.e.,

the arguments and authorities supporting Appellants’ actions in refusing to place

Appellee’s name on a promotional eligibility list. Therefore, Appellants contend that

the “merits” are not properly before the Court on its Plea to the Jurisdiction. See

Hamilton v. Washington, 2014 Tex.App. LEXIS 13733, *33 (Tex.App.-Austin,

December 12, 2014). However, out of an abundance of caution, Appellants respond

below to Appellee’s arguments regarding the “merits.”

VII. APPELLEE’S INTERPRETATION OF THE CIVIL SERVICE STATUTE IS WRONG.

      A.     THE PLAIN MEANING OF SECTION 143.033(C) OF              THE   TLGC DOES
             NOT SUPPORT APPELLEE’S CLAIMS.

      Appellants contend Appellee had to earn at least a score of 70 on his written

examination before seniority points could be added; he earned a score of only 64 and

the Commission did not add seniority points. The parties differ on how to interpret

Section 143.033(c) of the T.L.G.C. with regard to the score the candidate must obtain

on the written promotional examination before seniority points are added. Appellee

is wrong in arguing that §144.033 “clearly provides . . .” (A.B., 11-12).


                                           15
         In statutory construction, a court’s “primary objective” is to “give effect to

the Legislature’s intent.” City of Houston v. Bates, 406 S.W.3d 539, 543-4 (Tex.

2013). As observed by this Court in Hunt County Cmty. Supervision and Corrections

Department v. Gaston, 2014 Tex.App. LEXIS 10457 (Tex.App.—Austin, Sept. 19,

2014):

        To discern that intent, a court must begin with the statute’s words. TGS-
        NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011). We
        are to consider the statute as a whole, interpreting it to give effect to
        every part. “The plain meaning of the text, given the context of the
        statute as a whole, provides the best expression of legislative intent.”
        See Liberty Mut. Ins. Co. v. Adcock. 412 S.W. 3d 492, 494 (Tex. 2013).
        “We presume that the Legislature chooses a statute’s language with
        care, including each word chosen for a purpose, while purposefully
        omitting words not chosen.” TGS-NOPEC, supra.

Id. at *14.

        Thus, the lodestar of statutory interpretation is the plain language of the

statute. The words that the Legislature used—and words it omitted—are key when

interpreting §143.033. 6 Appellee has completely ignored this tenet of statutory

construction.




6
 Other factors may also be considered: “(1) Object sought to be obtained; (2) Circumstances under
which statute was enacted; (3) Legislative history; (4) . . . former statutory provisions . . . ; and (5)
Consequences of a particular construction.” §311.023 TEX. GOV’T. CODE.


                                                   16
        The Court should closely compare the prior and current statutory provisions

 concerning the scoring of written promotional examinations 7:

       PRIOR AND CURRENT STATUTORY PROVISIONS CONCERNING SCORING OF
                         WRITTEN PROMOTIONAL EXAMINATIONS.
Prior to the 2005 amendment to Section In 2005, the Texas State Association of Fire
143.033(c), the 1991 Amendment read, in Fighters sought to have Section 143.033(c)
pertinent part, as follows:                      amended because some civil service cities
                                                 were adding seniority points to test scores
                                                 without requiring that the applicant had
                                                 first scored a minimum passing grade of 70
                                                 on the written examination. The result of
                                                 the amendment follows:
. . . the grade that must be placed on the . . . the grade that must be placed on the
eligibility list for each police officer or fire eligibility list for each police officer or fire
fighter shall be computed by adding the fighter shall be computed by adding the
applicant’s points for seniority to the applicants points for seniority to the
applicant’s grade on the written applicant’s grade on the written
examination.                                     examination,
                                                 but for a fire fighter applicant only if the
                                                 applicant scores a passing grade on the
                                                 written examination.
Each applicant’s grade on the written Each applicant’s grade on the written
examination is based on a maximum grade examination is based on a maximum grade
of 100 points and is determined entirely by of 100 points and is determined entirely by
the correctness of the applicant’s answers the correctness of the applicant’s answers
to the questions. . . . In a municipality [the to the questions. . . . In a municipality [the
size of New Braunfels], all applicants who size of New Braunfels] all police officer
receive a grade of at least 70 points shall be applicants who receive a grade of at least
determined to have passed the examination. 70 points shall be determined to have
. . .” Section 143.033(c) (1991).                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. . . .” Section 143.033(c)
                                                 (2005)

 7
   The bold typeface in the 2005 version represents revisions made by the Legislature to
 §143.033(c).


                                              17
               1.     “Only” is the most important adverb.

       Appellee erroneously relies on the placement of the word “only” by the 2005

Amendment in his argument that police officers do not have to attain a minimum

score of 70 on the written examination before seniority points are added. (A.B., 13).

Section 143.033(c) was amended in 2005 to add the following clause: “. . . but for

a fire fighter applicant only if the applicant scores a passing grade on the written

examination.” Appellee mistakenly contends the adverb “only” modifies the noun

“firefighter.”

       However, accepted rules of grammar, on which the Legislature presumably

relies, provide that the adverb “only” must precede the phrase or clause that it

modifies. 8 Here, the phrase it precedes is “. . . if the applicant scores a passing grade

on the written examination.” Therefore, the most grammatically correct

interpretation of the entire clause is that the Legislative intent was to require a

passing grade for both police officers and fire fighters on the written examination

before seniority points could be added.

               2.     “Grade” is a critical noun.

       Furthermore, a cursory comparison of the 1991 and 2005 versions of §143.033

reveals that for police officers, nothing changed. The plain language is clear that the



8
 See, http://college.lclark.edu/live/files/10241-modifierspdf, p.4 “The Plight of Poor “Only.” See
also, http://www.cws.illinois.edu/workshop/writers/misplacedmodifiers/, 1. Limiting modifiers.


                                               18
police applicant’s grade on the written examination is determined entirely by the

person’s correct answers to the written questions on the exam, and the value of that

grade cannot exceed 100 points.9 Although Appellee argues there is a meaningful

distinction between the word “grade” and the phrase “grade on the written

examination,” he provides no reasoning to support his meritless claim. (A.B., 12-

13).

       Appellants contend the meaning of the word “grade” is critical to the court’s

analysis here, as that word signifies how well a person did on a test or other

instrument determining competency.              The word “grade” is used throughout

§143.033(c), as shown in the chart above. Seniority points, however, have nothing

to do with a person’s competency on a test. Rather, they signify only tenure in the

job. Therefore, the court should not give seniority points the same value as points

earned through a written competency testing process. As per §143.033(c), the

seniority points are added to the applicant’s grade only if his/her name is placed on

the promotional eligibility list. Only then did the Legislature intend that tenure with

the department be rewarded.

       Further, the use of the phrase “. . . all police officer applicants who receive a

grade of at least seventy points . . .” in the fourth sentence of subsection 143.033(c)



9
 If the Appellee’s argument were correct, an officer with a high grade on the written examination,
such as 95, would end up with a grade of 105. However, the statute caps this grade at 100.


                                               19
clearly relates back to the phrase “…grade on the written examination. . .” in the

second sentence. This is because in all the preceding sentences, the grade on the

written exam is what is being discussed. Therefore, to pass the examination, a police

officer must have received a grade of at least 70 on the written examination. Only

if the police officer’s grade on the written examination is at least 70 is the officer

entitled to have seniority points, if any, added to his written examination grade.10

       Appellee fails to acknowledge there was no change to the phraseology

regarding Police Officers, and it remained unchanged from the 1991 to the 2005

version of Section 143.033(c). To give effect to Appellee’s argument regarding the

2005 amendment would require the Court to completely disregard the last phrase of

the fourth sentence of §143.033 that follows: “. . . shall be determined to have passed

the examination.” That clause remained unchanged in the 2005 Amendment and the

Court should not disregard it. 11




10
   Appellee’s citation of Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App. -- Austin, 2003)
supports Defendants’ claims here with regard to the need to carefully parse the language of the
statute, including the meaning and placement of words, such as the adverb “only,” included in
the 2005 amendment to §143.033(c).
11
   Appellants’ counsel is flattered to be referenced as “persuasive authority” (A.B, 13). However,
Appellee misconstrues the intent of the Texas Civil Service Reporter, which specifically disclaims
providing legal advice (See, A.B., Appendix C, p. 2 (Disclaimer)). “Commentary” in the Civil
Service Reporter is not legal advice. The particular commentary noted was authored by the
previous publisher in 2005, when the amendment occurred. Appellants are not bound by the
previous publisher’s opinion, nor should it persuade this Court.


                                               20
      B.     LEGISLATIVE INTENT MAY BE DETERMINED                  BY   LEGISLATIVE
             HISTORY.

      The Legislature’s intent is not difficult to determine in this matter. Documents

in the legislative history make it clear that the intent of the proposal introduced by

the Texas State Fire Fighter’s Association was to bring civil service fire fighters

statewide to a consistent passing grade of 70 on the written civil service promotional

examination. The House Committee Bill Analysis (substituted) attached to HB

2173, which ultimately was enacted by the Legislature, has as its “subject” “Revising

firefighter civil service promotion . . . procedures.” It begins by discussing the

application of Chapter 143’s promotional provisions as applied to civil service

firefighters (C.R., 236). It continues, saying the “act is ‘vague’ in determining the

person’s total grade after applying the person’s seniority points to the written

examination grade.” It then explains that “a handful of cities apply the points even

if the person does not pass the examination.” The House Research Organization Bill

Analysis for CSHB 2173, dated May 10, 2005, states that the bill would “clarify

existing laws on promotion of firefighters to ensure that these laws are fairly and

consistently applied” (emphasis added) (C.R. 243).

      Appellee wholly fails to acknowledge the stated intent (on more than one

occasion) of the Legislature that the purpose of HR 2173 (S.B. 1050) was to correct




                                         21
a problem of vagueness in regard to firefighter promotional tests and explain how to

properly calculate the minimum passing grade.12

       In the Bill Analysis, the sponsor stated that the amendment to § 143.033(c)

was intended to “clarify that seniority points are awarded only if the fire fighter

scores a passing grade of 70 or above on the written examination” (C.R., 236). The

Bill Analysis was totally silent that any other changes were intended in how seniority

points had been or were to be added to Police Officers’ written examination grades.

       The House Committee Report for HB 2173, in a “Comparison of Original to

Substitute,” stated “[t]he original version of the bill made the same changes to law

in the substitute as applied to police. The substitute removes any change to law

as it applies to procedures relating to police.” (C.R., 239). Support for this

interpretation is further provided by the Conference Committee’s Report Summary

for S.B. 1050 stating that S.B. 1050 “clarifies that seniority points are awarded only

if a firefighter or police officer scores a passing grade of 70 or above on the written




12
   Legislative history reflects that a hearing on the Bill was held by the House Urban Affairs
Committee on April 12, 2005. At that hearing, Mike Higgins, Executive Director of Texas State
Fire Fighters Association was the only person to speak in favor of the amendment to bring all Fire
Fighters in civil service cities to the standard of receiving a passing grade of 70 in order to be
accorded seniority points (C.R., 240-41). No mention was made of Police Officers, except that Mr.
Higgins referred to a case (assumedly Knox, infra), which governed Police Officers. See Mr.
Higgins’ live testimony at the 2 hour 15 minute mark:
http://tlchouse.granicus.com/MediaPlayer.php?view_id=23&clip_id=6394
(The sponsor, Representative Bailey, explained the Bill at the 2 hour 13 minute mark).


                                               22
examination.” (C.R., 240). Appellee fails to address these reports prepared to explain

the Legislature’s intent.

       C.     CASE LAW SUPPORTS DEFENDANTS’ CONSTRUCTION.

       It is well-established in determining legislative intent, that the Legislature is

presumed to be aware of case law interpreting statutes it amends or enacts. See,

General Services Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 596 (Tex.

2000); See also, Aaron Rents, Inc., v. Travis Cent. Appraisal Dist., 212 S.W.3d 665

(Tex.App. – Austin, 2006, no pet.). Thus, the Texas Legislature is presumed to have

been aware of the decision in City of Lubbock v. Knox, 736 S.W. 2d 888,

(Tex.App.—Amarillo, 1987, writ ref’d).

       In Knox, the Amarillo Court of Appeals construed the language of

§143.033(c)’s predecessor, art. 1269m, §14(D)(2), 13 in a dispute over a Captain’s

promotional examination list in the Lubbock Police Department. At that time,

§14(D) (2) was strikingly similar to the current version contained in §143.033(c):

       The grade which shall be placed on the eligibility list for each police
       officer applicant shall be computed by adding such police officer
       applicant’s points for seniority to his grade on such written
       examination. Grades on such written examinations shall be based upon
       a maximum grade of one hundred (100) points and shall be determined
       entirely by the correctness of each applicant’s answers to such
       questions . . . In any city having a population of 1,500,000 or less . . .
       all test participants receiving a grade of seventy (70) points or more or

13
  Article 1269m is the predecessor to Chapter 143. Chapter 143 was codified in 1987, and its
codification was intended to be a non-substantive revision. City of Houston v. Clark, 197 S.W.3d
314, 323 (Tex. 2006).


                                              23
       the top thirty (30) percent of the test participants who receive the
       highest grades, whichever is greater, shall be determined to have passed
       an examination.14

Policemen’s and Firemen’s Civil Service Act, Act of May 26, 1985, 69th Leg., R.S.,
Ch. 910, §14(D)(2) and (3), 1985, repealed by Act of 70th Leg., R.S., Ch. 149, §1,
1987.

       Knox made the same arguments regarding the addition of his seniority points

that Appellee makes here, i.e., that they should have been added to his written

examination grade in order to result in him having a score more than 70 points. The

court rejected Knox’s arguments, and concluded that Lubbock’s interpretation, “. . .

upon applying the canons of construction to the statute,” was “. . . the more

analytically correct one.” Id. at 891.

        Knox reviewed the history of the civil service provisions related to

promotional examinations starting in the early 1950’s up to the time of its

consideration of the matter. It noted that in 1979 the Legislature added a requirement

for a minimum passing grade of 70 points on the written examination for police

officers. The Court concluded that the only reasonable interpretation of the 1985

amendments to the section was that the Legislature’s intent was to require 70 points

be scored on the written examination in order to have a “passing” grade. Since Knox




14
   After this case was decided in 1987, the Legislature slightly amended Section 143.033(c),
T.L.G.C. in 1989, to remove the language related to the top 30% of the test participants who receive
the highest grades. Otherwise, the language in the version effective in 1987 and the 2005 version
is nearly identical as related to police officers’ promotions.


                                                24
did not receive a grade of 70 on the written examination, he was not entitled to have

his seniority points added to his grade or to be placed on the eligibility list. Id. at

893.

       D.    APPELLEE’S ANALYSIS OF KNOX IS FLAWED.

       There is no evidence in the language of the 2005 amendments to §143.033(c)

or in the legislative history that the Legislature intended to render Knox

prospectively void. Further, a plain reading of the 2005 version of §143.033(c) (See,

p. 17, supra) reveals no intent of the Legislature to spell out “different grading

requirements for police officers and firefighters,” as Appellee contends.

       There was a definite purpose for the 2005 amendment to §143.033(c): to

specify that the standard for Firefighters’ passing grade be the same as already in

existence for Police Officers. Appellee is simply wrong that the legislative intent

was to establish two different standards for Police Officers and Firefighters to pass

a promotional exam. This allegation is nonsensical, as there is no indication in the

legislative history that the Legislature intended to “dumb down” promotional testing

for Police Officers, whose jobs are becoming increasingly sophisticated and more

complex.

       E.     THE CIVIL SERVICE ACT REQUIRES PASSING SCORES THROUGHOUT.

       Appellee’s arguments are further weakened by an examination of the

treatment of Police Officers and Firefighters in other sections of the Civil Service



                                          25
Act. Most notable are the hiring provisions found in §143.025. Applicants for a

beginning position in a civil service Police or Fire Department must take and pass a

written entrance exam with a minimum passing grade of 70 percent (§143.025(i)).

The applicant who has a passing grade of 70 percent is eligible to receive up to five

additional points for honorable military service (§143.025(f)). Police applicants and

Fire applicants are held to the same standard. Most certainly, the Legislature did

not intend that candidates for Police promotions were to enjoy a lower standard that

that established for applicants for initial employment as a Police Officer.

      F.     THE LEGISLATURE KNOWS HOW TO DIFFERENTIATE BETWEEN
             POLICE AND FIRE IN THE CIVIL SERVICE ACT.

      Further, where the Legislature has intended different standards for Police

Officers and Firefighters in civil service cities, it knows how to do so clearly, as

demonstrated in the following chart.




                                         26
          Fire Department                         Police Department
         § 143.0051 - Status of Certain Fire Department Employees
        Grandfathered in 2005                             No
                 § 143.014 - Appointment of Assistant Chiefs
Specific Number Based on Population          Floating Number Per Formula
             § 143.023 - Eligibility for Beginning Position Age
           45 Maximum                                      36
                    § 143.025 - Entry Level Examinations
  (d) Exams for Fire Department –                 (e) Exams for Police
        Different Locations                           One location
               § 143.0251 –Reappointment After Resignation
                No                                        Yes
                      § 143.028 – Promotional Eligibility
                                                  (b) 2 Years Immediately
      (a) 2 Years at Any Time
                                                    Before Examination
                  § 143.030 – Fire Eligibility for Promotion
        2 Years at Any Time
                § 143.031 – Police Eligibility for Promotion
                                                2 Years Continuously Held
                 § 143.035 – Alternate Promotional System
               No                                           Yes
                     § 143.036 – When Vacancy Occurs
  2005 – Legislature Addressed                 Established by Court Opinion




                                     27
      G.     CASES RELIED UPON BY APPELLEE ARE DISTINGUISHABLE.

      San Antonio Conservation Society v. City of San Antonio, 455 S.W.2d 743

(Tex. 1970)(A.B. 18), is not a civil service case, but rather dealt with a property

statute and a 1955 law that sought to override a 1905 law, which was later

encompassed by a constitutional provision. It does nothing more than state the

Legislature has authority to override earlier statutes, even those that have a

constitutional foundation.    Lacey v. State Banking Board, 118 Tex. 91(1928)

(A.B.18), is not helpful, as it states only the general rule that the legislature has a

definite purpose in every enactment.

                         CONCLUSION AND PRAYER

      For the reasons stated herein, Appellants respectfully request this Court grant

it the relief sought in its Brief of Appellants (C.B.,41-43). Further, should the Court

address the “merits” of Appellee’s claim, Appellants pray the Court find as a matter

of law that Appellants’ interpretation of §143.033(c) T.L.G.C. is correct, reverse the

trial court in all respects, and grant judgment to Appellants.




                                          28
Respectfully submitted,



/s/ Bettye Lynn
Bettye Lynn
State Bar No. 11540500
LYNN ROSS GANNAWAY & CRANFORD, LLP
306 West Broadway Avenue
Fort Worth, Texas 76104
Telephone: (817) 332-8505
Facsimile: (817) 332-8548
Lynn@laborcounsel.net

Valeria M. Acevedo
State Bar No. 00798020
CITY OF NEW BRAUNFELS
424 South Castell Avenue
New Braunfels, Texas 78130
Telephone: (830) 221-4281
Facsimile: (830) 626-5578
VAcevedo@nbtexas.org




  29
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. R. 9.4, I hereby certify that this brief contains 6793

words. This is a computer-generated document created in Microsoft Word, using

14-point typeface for all text, except for footnotes which are in 12-point typeface. In

making this certificate of compliance, I am relying on the word count provided by

the software used to prepare the documents.


                                        /s/ Bettye Lynn
                                        Bettye Lynn

                          CERTIFICATE OF SERVICE

      As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I

certify that I have served this document on all other parties, which are listed below

on this the 4th day of February, 2015, as follows:

By Electronic Service or Certified Mail, Return Receipt Requested
Chad R. Hyde                                   Randal C. Doubrava
State Bar No. 24046130                         State Bar No. 0602990
Texas Municipal Police Association             Texas Municipal Police Association
6200 La Calma Drive, Suite 200                 6200 La Calma Drive, Suite 200
Austin, Texas 78752                            Austin, Texas 78752
512.454.8900 (Telephone)                       512.454.8900 (Telephone)
512.454.8860 (Facsimile)                       512.454.8860 (Facsimile)


                                        /s/ Bettye Lynn
                                        Bettye Lynn




                                          30
