City of Harlingen v. Eddie Alvarez

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NUMBER 13-03-169-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI - EDINBURG



CITY OF HARLINGEN

, Appellant,

v.



EDDIE ALVAREZ, Appellee.



On appeal from the 357th District Court

of Cameron County, Texas.



CONCURRING AND DISSENTING OPINION

ON MOTION FOR REHEARING



Before Justices Hinojosa, Yañez, and Castillo

Opinion by Justice Castillo

I join the majority in overruling the motion for rehearing on the new argument presented. However, I would grant rehearing to reconsider our disposition on original submission and, in that regard, respectfully dissent. See Houston E. & W. T. R. Co. v. Jackson, 299 S.W. 885, 886 (Tex. 1927) (holding that the judgment of an appellate court has none of the elements of finality pending disposition of a motion for rehearing duly filed and has the power to address errors sua sponte as well as errors properly assigned) (citations omitted).

Appellant, the City of Harlingen, appealed the denial of its plea to the jurisdiction and the entry of summary judgment in favor of appellee, Eddie Alvarez. (1) Alvarez alleged that the City did not promote him from a promotional eligibility list and, instead, promoted a fire fighter from a later-created eligibility list. For the reasons more fully explained below, I would conclude that Alvarez did not exhaust administrative remedies and, thus, I would reverse and render.

I. BACKGROUND

On March 6, 2001, appellee Eddie Alvarez was employed as a fire fighter with the rank of lieutenant with the City of Harlingen Fire Department. On that day, J.L. Garcia, his superior, was discharged from the position of fire captain/assistant fire marshal. Garcia appealed the discharge. During the pendency of Garcia's appeal, the City assigned a different lieutenant, Danny Warner, to fill Garcia's position. On October 18, 2001, the decision on Garcia's appeal upheld the termination of Garcia's employment. Warner remained in the position of fire captain/assistant fire marshal. Alvarez sued, alleging that he was entitled to the promotion to Garcia's position because the vacancy occurred on March 6, 2001, and he was the first-ranked candidate on the promotion eligibility list in effect on that day. The City maintained that the vacancy occurred on October 18, 2001, when Garcia exhausted his appeals. The City filed a plea to the jurisdiction, asserting that Alvarez did not exhaust administrative remedies under the civil service act. The trial court denied the plea. The parties filed competing summary-judgment motions based on their Joint Stipulation of Facts. The trial court granted Alvarez's summary-judgment motion, declared that a vacancy occurred on March 6, 2001, when Garcia was discharged, ordered the City to promote Alvarez retroactively, and awarded Alvarez back pay and attorney fees. (2) His appeal ensued.

On May 2, 2005, this Court received a post-submission letter brief from the City informing us of the City's promotion of Alvarez to the rank of Fire Captain. We requested a response from Alvarez. On May 23, 2005, we received the response, stating that while the City was "correct in its assertion that [Alvarez] was promoted to the rank of Fire Captain on January 28, 2004," the "portion of the judgment making the promotion retroactive to May 5, 2001 will still require implementation, as will the award of back pay, attorney fees, and pre- and post-judgment interest."

II. PLEA TO THE JURISDICTION-STANDARD OF REVIEW

As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). If the district court lacks jurisdiction, then its decision would not bind the parties. See id. A decision that does not bind the parties is, by definition, an advisory opinion prohibited by Texas law. See id.

A trial court's lack of subject matter jurisdiction is fundamental error and may be raised for the first time on appeal. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 442-44 (Tex. 1993). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo. Id. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law. Id. However, in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact. Id.

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. We construe the pleadings liberally in favor of the plaintiffs and look to the pleader's intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

III. THE RECORD

In his live pleading, Alvarez alleged the following: (1) he was a fire fighter employed by the Harlingen Fire Department; (3) (2) he held the rank of lieutenant; (3) the City was a municipality governed by the Civil Service Act (the "Act"), Tex. Loc. Gov't Code Ann. § 143.036 (Vernon 1999); (4) (4) the City failed and refused to promote him when a vacancy occurred for the position of fire captain; (5) under the Act, the City was required to fill promotional vacancies from eligibility lists created as a result of competitive promotional tests; (6) because an eligibility list existed on the date a vacancy occurred, the City was required to fill the vacancy from that list within sixty days; (7) on or about March 6, 2001, a promotional vacancy occurred for the position of fire captain; (8) on that date, a vacancy occurred because of Garcia's disciplinary discharge; (9) a fire captain eligibility list existed on that date; (10) Alvarez was the top-ranked candidate on the list and, thus, presumptively entitled to promotion from the then-current eligibility list; and (11) the City filled the position from a later-created list.

In his declaratory judgment suit, Alvarez claimed that the City denied him the promotion to captain and the pay and benefits of the higher-ranked position. Alvarez sought the trial court's declaration that the City violated section 143.036 of the Act by its failure to promote him within sixty days of March 6, 2001, the date the vacancy allegedly occurred. Alvarez also sought injunctive and equitable relief, back pay, benefits, and attorney fees.

The City filed a plea to the jurisdiction asserting (1) Alvarez failed to exhaust his administrative remedies under section 143.015 of the Act, (5) and (2) governmental immunity. In a separately-filed motion to dismiss, the City alleged that the trial court lacked subject matter jurisdiction because Alvarez failed to exhaust administrative remedies by not appealing to the civil service commission. (6) Alvarez countered that his non-appeal of the City's failure to promote him did not deprive the trial court of jurisdiction because questions of law relating to the interpretation of the civil service act were not properly appealable to the commission. Thus, the question properly before us is whether, on this record, the Act requires that Alvarez exhaust administrative remedies before filing suit. The City presented the question to the trial court in its plea to the jurisdiction and asserts it in the second issue.

IV. THE CIVIL SERVICE ACT

A. Eligibility List and Promotion Procedures

The parties did not dispute that the City is a municipality governed by the Act. See Tex. Loc. Gov't Code Ann. § 143.002 (Vernon 1999). Promotions within the Harlingen Fire Department must comply with the provisions of the Act. Id. § 143.036. The Act states that "an existing position or classification or a position or classification created in the future either by name or by increase in salary may be filled only from an eligibility list that results from an examination held in accordance with this chapter." See id. § 143.021(c); see also id. § 143.032 (promotional examination procedure). An officer's rank on the eligibility list is computed by adding his or her seniority points to his or her grade on the written examination. See id. § 143.033(c). An eligibility list is valid for one year from the date the written examination is given. See id. § 143.036(h).

In his live pleading, Alvarez asserted generally that the City violated section 143.036 by promoting a fire fighter from a later-created eligibility list. In particular, Alvarez claimed the City did not promote him within sixty days after the vacancy that occurred on March 6, 2001. In the context of Alvarez's allegations, I turn to section 143.036(e) of the Act. Section 143.036(e) requires that if an eligibility list exists on the date a vacancy occurs, the department head must fill the vacancy within sixty days after the date the vacancy occurs. See Tex. Loc. Gov't Code Ann. § 143.036(e). (7) The City argues that the vacancy did not occur on March 6, 2001. Alvarez asserts that promotional vacancies occur on the date of the discharge and not the date appeals of the discharge decision are exhausted. He argues that his not being promoted to the position resulted from the fire chief's use of the wrong list, rather than from the chief "bypassing" him in order to make the promotional selection.

Alvarez alleged in his live pleading that no provision in the Act required that he complain first to the commission. The Act, however, does provide an aggrieved civil servant with a procedure to complain about matters relating to the enforcement and effect of chapter 143 and any rules adopted under it. In particular, section 143.009 states:

The commission or a commission member designated by the commission may investigate and report on all matters relating to the enforcement and effect of this chapter and any rules adopted under this chapter and shall determine if the chapter and rules are being obeyed.



Tex. Loc. Gov't Code Ann. § 143.009 (Vernon 1999) (emphasis added). "May" creates a discretionary authority or grants permission or a power. Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005). "Shall" imposes a duty. See id. In the context of section 143.009, I turn to the City's issue.

B. Administrative Remedies

Our primary objective when construing a statute is to ascertain and give effect to the Legislature's intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000); see Tex. Gov't Code Ann. §§ 311.021, 311.023, & 312.005 (Vernon 2005). In discerning that intent, we begin with the plain and common meaning of the statute's words. McIntyre, 109 S.W.3d at 745. We must read the statute as a whole and not just isolated portions. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. See McIntyre, 109 S.W.3d at 745. We also consider the objective the law seeks to obtain and the consequences of a particular construction. Tex. Gov't Code Ann. § 311.023(1),(5) (Vernon 2005); see also id. If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). We presume that the Legislature would not do a useless act. Webb County Appraisal Dist.v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex. 1990). Thus, an agency will have exclusive jurisdiction only when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. See Subaru of Am., Inc. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex. 2002). If an administrative agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking review of the agency's action. Cash Am. Int'l, Inc. v. Bennett, 35 S.W.2d 12, 15 (Tex. 2000). Until the party has exhausted all administrative remedies, a trial court lacks subject matter jurisdiction and must dismiss any claim within the agency's exclusive jurisdiction. Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992). However, when pure questions of law are involved, the doctrine of exhaustion of administrative remedies does not apply. See Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 892 (Tex. 1986). We must apply these principles to the jurisdictional question before us in the context of the civil service act. See New Laredo Hotel, 792 S.W.2d at 954.

C. Discussion

The purpose of the Act is to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants. Tex. Loc. Gov't Code Ann. § 143.001(a) (Vernon 1999). The members of the commission must administer the chapter in accordance with this purpose. See id. at § 143.001(b). The commission is charged with determining, upon proper request, whether the chapter and rules are being obeyed. See Id. § 143.009(a). The Legislature provided the commission with tools to ensure compliance by giving it the power to administer oaths, issue subpoenas, and cause depositions of witnesses. See id. § 143.009(b). Accordingly, under sections 143.001 and 143.009, the commission's role was designed to create a fair, consistent, and orderly process to ensure chapter 143 is obeyed. See City of Houston v. Jackson, 42 S.W.3d 316, 322 (Tex. App.-Houston [14th Dist.] 2001, pet. dism'd w.o.j.); see also City of Garland v. Byrd, 97 S.W.3d 601, 606 (Tex. App.-Dallas 2002, pet. denied).

The act of filling a vacant position through the procedures outlined in the Act is not one committed to the discretion of a local fire chief. See Tex. Loc. Gov't Code Ann. § 143.036 (Vernon 1999). The department head has a mandatory duty to promote an eligible employee to fill an opening in a legally created civil service position. Klinger v. City of San Angelo, 902 S.W.2d 669, 674 (Tex. App.-Austin 1995, writ denied) (discussing the precursor statute); see Tex. Loc. Gov't Code Ann. §§ 143.028, 143.030, & 143.036 (Vernon 1999). An employee eligible for promotion demonstrates entitlement to promotion by taking a promotional examination. Klinger, 902 S.W.2d at 674. A fire fighter's ranking on an eligibility list created from the results of a competitive promotional examination establishes the person's entitlement to promotion. Id. Absent proof of an exception, the person at the top of the list which exists when a vacancy occurs has the primary right to be promoted to fill the vacancy and is entitled to that promotion within the statutory time-period, no later than the last date permitted by statute. Id. When a city fails to fill a vacancy in compliance with the Act, the person who properly should have obtained the promotion is entitled to retroactive promotion and back pay, effective the last day the city could lawfully have filled the vacancy. See id.

Keeping these principles in mind, I turn to the merits of the City's plea to the jurisdiction. Nothing in the plain language of section 143.009 indicates the Legislature intended that a party litigate a dispute arising from an alleged failure to follow the promotional procedures mandated in the Act without first complaining to the commission. See Tex. Loc. Gov't Code Ann. § 143.009 (Vernon 1999). The Act, however, does provide for de novo judicial review upon an adverse decision by the civil service commission. See id. § 143.105. Thus, I turn to the question of whether undisputed evidence of jurisdictional facts establishes the trial court's jurisdiction as a matter of law. Miranda, 122 S.W.3d at 226.

This Court has held that, under the Act, the commission has jurisdiction to hear appeals from promotional pass-overs, disciplinary suspensions, and demotions. Cantu v. Perales, 97 S.W.3d 861, 863 (Tex. App.-Corpus Christi 2003, no pet.) (citing Tex. Loc. Gov't Code Ann. §§ 143.034, 143.053, & 143.054 (Vernon 1999 & Supp. 2006)). Section 143.034 of the Act, however, accords an examinee the right to appeal to the commission a complaint regarding a grade received on the civil service examination. The section does not address a promotional pass-over. Even so, Cantu holds that the commission has jurisdiction to hear appeals from pass-overs. See Cantu, 97 S.W.3d at 863.

D. Disposition

I have reviewed the civil service act and section 143.009 in connection with the other provisions of the Act. Application of the rules governing administrative jurisdiction leads to one result in this case. I conclude that the commission's role is to create a fair, consistent, and orderly process to ensure chapter 143 is obeyed, Jackson, 42 S.W.3d at 322, and the commission has the power to ensure that enforcement. Tex. Loc. Gov't Code Ann. § 143.009 (Vernon 1999); Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005). The commission further has a duty to determine if the chapter and rules are being obeyed. Tex. Loc. Gov't Code Ann. § 143.009 (Vernon 1999); Tex. Gov't Code Ann. § 311.016(2) (Vernon 2005).

I further conclude that the Legislature intended that a municipality governed by the civil service act be afforded the opportunity to correct its own errors by resolving disputes before incurring the expense and efforts of defending itself in litigation. See City of New Braunfels v. Allen, 132 S.W.3d 157, 166 (Tex. App.-Austin 2004, no pet). Similarly, a complaining party may be successful in vindicating his rights in the administrative process and never have to resort to court. See Tex. Air Control Bd. v. Travis County, 502 S.W.2d 213, 215-16 (Tex. App.-Austin 1973, no writ). A fire fighter receiving an adverse decision from the commission has the right to appeal to a district court. Tex. Loc. Gov't Code Ann. § 143.015 (Vernon 1999).

Accordingly, I conclude that the commission has exclusive jurisdiction over a chapter 143 dispute that alleges a violation of the Act by a fire fighter complaining a municipality promoted a different individual based on a later-created eligibility list before judicial review is sought. I further conclude that the plain meaning of section 143.009 imposes the duty on the commission to determine if section 143.009 is being obeyed. The Act presents a pervasive regulatory scheme that indicates the Legislature intended for the appeal process to the commission be the exclusive means of remedying the dispute before litigation.

Alvarez's live pleading complains that a civil service rule was not followed. He did not request a hearing or conflict resolution with the civil service commission and, it follows, the civil service commission has not issued any final decision. The City maintains that, as such, the trial court had no jurisdiction over Alvarez's claim, and, thus, the City's plea to the jurisdiction should have been granted. Because I conclude that the record affirmatively establishes that Alvarez was required to appeal to the civil service commission before filing suit, I would hold that the trial court lacked jurisdiction over this case. Thus, the trial court should have granted the City's plea to the jurisdiction.

The fact that Alvarez sought a declaratory judgment does not dictate a different result. (8) Alvarez did not seek a declaration of the validity or invalidity of the civil service act. He requested the trial court to declare when a "vacancy" occurred. However he also claimed a violation of the Act, and sought damages and attorney fees. Therefore, Alvarez's cause did not involve a pure question of law.

Indeed, the Act in effect at the pertinent time does not define "vacancy." I conclude that Alvarez's complaint is premised on whether the City violated chapter 143 of the Act by not promoting him. In particular, Alvarez alleged a complaint that falls within the purview of section 143.009 of the civil service act. By his suit, Alvarez complained that the department head in charge of promotion did not use the eligibility list in which Alvarez ranked first but promoted from a second list in which Alvarez ranked fourth, in violation of the Act. As such, Alvarez's remedy was to appeal to the civil service commission. The trial court lacked subject matter jurisdiction over Alvarez's claims as Alvarez's pleadings do not, nor can they by further amendment, satisfy the requirement to exhaust administrative remedies as called for by the civil service act. The essence of Alvarez's suit was to complain about a failure to promote from a statutorily required eligibility list and seek damages. Even assuming the trial court had jurisdiction to declare when a vacancy occurred, the trial court did declare when the vacancy occurred and awarded damages and attorney fees. The trial court ordered the City to promote Alvarez and then provided Alvarez the relief accorded a promoted fire fighter under the Act. The Legislature could not have intended that an aggrieved civil servant obtain through litigation the relief accorded by the Act without allowing the municipality to correct its alleged error through statutorily established administrative remedies. The Act allows an appeal of an adverse decision from the civil service commission to district court by a trial de novo. See Tex. Loc. Gov't Code Ann § 143.105 (Vernon 1999).

The Act does not expressly reserve jurisdiction exclusively to the commission, but the interpretation I apply today does not lead to an absurd result. That Alvarez filed suit under the declaratory judgment act does not compel a different result. See Tex. Civ. Prac. & Rem. Code Ann. § 37.002 (Vernon 1997). The case was presented to the trial court on the parties' Joint Stipulation of Facts. (9) See Tex. R. Civ. P. 263; see also Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

The purpose of a declaratory judgment is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations-it is to be liberally construed and administered. Tex. Civ. Prac. & Rem. Code. Ann. § 37.002(b) (Vernon 1997). However, a request for declaratory relief alone does not confer jurisdiction, nor can it change the basic character of a suit. See Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996); State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994); Tex. Ass'n of Bus., 852 S.W.2d 444. In this case, Alvarez did not exhaust his administrative remedies before filing his lawsuit. The declaratory-judgment action cannot stand on its own. Morales, 869 S.W.2d at 947. The declaratory-judgment action did not involve pure questions of law, and so the doctrine of exhaustion of administrative remedies applies. Tolar Indep. Sch. Dist., 707 S.W.2d at 892. (10)

In sum, the employment relationship between the City and its aggrieved employee is governed by the civil service act. Tex. Loc. Gov't Code Ann. § 143.002 (Vernon 1999). A party's failure to exhaust its administrative remedies deprives the trial court of jurisdiction. See Gibbud v. Moron, 972 S.W.2d 797, 800 (Tex. App.-Corpus Christi 1998, pet denied). Alvarez did not request a hearing or conflict resolution with the civil service commission.

Because the issue is dispositive of all jurisdictional issues, I do not address the City's remaining issues. See Tex. R. App. P. 47.1; Miranda, 133 S.W.3d at 228. (11)

V. CONCLUSION

The undisputed evidence of jurisdictional facts negates the trial court's jurisdiction as a matter of law. Miranda, 122 S.W.3d at 226. I would sustain the City of Harlingen's second issue on appeal complaining of the trial court's denial of its plea to the jurisdiction. Exhaustion of administrative remedies was a jurisdictional prerequisite for Alvarez's complaint. I would revisit our disposition on original submission and reverse the trial court's order denying the City's plea to the jurisdiction and render judgment dismissing this case for lack of subject matter jurisdiction. Dallas County Appraisal Dist. v. Funds Recovery, 887 S.W.2d 465, 468 (Tex. App.-Dallas 1994, writ denied); see Nabejas v. Tex. Dep't of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.-Corpus Christi 1998, no pet.).



ERRLINDA CASTILLO

Justice





Concurring and Dissenting Opinion

delivered and filed this 16th day of November, 2006.

1. The City presented three issues on appeal: (1) whether a "vacancy" occurred when the fire fighter was indefinitely suspended or when the civil service commission found permanent dismissal was appropriate; (2) whether Alvarez's suit is barred by (a) failure to exhaust his administrative remedies and appeal from a civil service commission decision, or (b) by governmental immunity from liability; and (3) whether the trial court erred in awarding attorney fees under the declaratory judgment act.

2. The final judgment states:



On January 30, 2003, the parties appeared and were heard regarding cross-motions for summary judgment previously filed by them. Having considered the motions, and the written and oral arguments presented by the parties, the Court hereby makes the following rulings.

Defendant's motion for summary judgment is DENIED. Plaintiff's motion for summary judgment is GRANTED. The court finds and declares that a vacancy in the position of Fire Captain occurred in the Harlingen Fire Department on March 6, 2001 as a result of the discharge of a Fire Captain by the Fire Chief on that date. Plaintiff, as the highest ranked candidate on the Fire Captain eligibility list on March 6, 2001 was entitled to be promoted to Fire Captain by no later than May 5, 2001. The Court therefore ORDERS that Plaintiff have the following relief from Defendant.

1. Defendant is ordered to promote Plaintiff to Fire Captain retroactive to May 5, 2001, and to provide Plaintiff with back pay in an amount equal to the difference between what he actually was paid by Defendant and what he would have received had he been promoted on May 5, 2001.

2. Defendant is ordered to pay Plaintiff pre-judgment interest at the rate of 6% per year simple interest on the amount of back pay awarded in Paragraph No. 1 above. 3. Defendant is ordered to pay Plaintiff his reasonable attorney fees and costs in the amount of $6,375.00 for work performed in the District Court. Plaintiff's request for additional attorney fees for appellate work, if any, is denied.

4. Defendant is ordered to pay Plaintiff post-judgment interest at the rate of 10%, compounded annually, on all amounts awarded under this judgment.

5. Costs of court are taxed against the Defendant.

6. All relief not granted herein is denied.



Signed this 4th day of March, 2003.

3. "Fire fighter" means a member of a fire department who was appointed in substantial compliance with this chapter or who is entitled to civil service status under section 143.005 or 143.084 of the local government code. Tex. Loc. Gov't Code Ann. § 143.003(4) (Vernon Supp. 2006).

4. Section 143.036 provides the procedure for making promotional appointments. It states:



(a) When a vacancy occurs in a nonentry position that is not appointed by the department head as provided by Sections 143.014 and 143.102, the vacancy shall be filled as prescribed by this section and Section 143.108, as applicable.

(b) If an eligibility list for the position to be filled exists on the date the vacancy occurs, the director, on request by the department head, shall certify to the department head the names of the three persons having the highest grades on that eligibility list. The commission shall certify the names within 10 days after the date the commission is notified of the vacancy. If fewer than three names remain on the eligibility list or if only one or two eligible promotional candidates passed the promotional examination, each name on the list must be submitted to the department head.

(c) In a municipality with a population of less than 1.5 million, the commission shall submit names from an existing eligibility list to the department head until the vacancy is filled or the list is exhausted.

(d) If an eligibility list does not exist on the date a vacancy occurs or a new position is created, the commission shall hold an examination to create a new eligibility list within 90 days after the date the vacancy occurs or a new position is created.

(e) If an eligibility list exists on the date a vacancy occurs, the department head shall fill the vacancy by permanent appointment from the eligibility list furnished by the commission within 60 days after the date the vacancy occurs. If an eligibility list does not exist, the department head shall fill the vacancy by permanent appointment from an eligibility list that the commission shall provide within 90 days after the date the vacancy occurs. This subsection does not apply in a municipality with a population of 1.5 million or more.

(f) Unless the department head has a valid reason for not appointing the person, the department head shall appoint the eligible promotional candidate having the highest grade on the eligibility list. If the department head has a valid reason for not appointing the eligible promotional candidate having the highest grade, the department head shall personally discuss the reason with the person being bypassed before appointing another person. The department head shall also file the reason in writing with the commission. On application of the bypassed eligible promotional candidate, the reason the department head did not appoint that person is subject to review by the commission.

(g) If a person is bypassed, the person's name is returned to its place on the eligibility list and shall be resubmitted to the department head if a vacancy occurs. If the department head refuses three times to appoint a person, files the reasons for the refusals in writing with the commission, and the commission does not set aside the refusals, the person's name shall be removed from the eligibility list.

(h) Each promotional eligibility list remains in existence for one year after the date on which the written examination is given, unless exhausted. At the expiration of the one-year period, the eligibility list expires and a new examination may be held.



Tex. Loc. Gov't Code Ann. § 143.036 (Vernon 1999)

5. See Tex. Loc. Gov't Code Ann. § 143.015 (Vernon 1999) (providing appellate review of commission decisions, respectively). Section 143.015 states:



(a) If a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside. The petition must be filed within 10 days after the date the final commission decision:



(1) is sent to the fire fighter or police officer by certified mail; or

(2) is personally received by the fire fighter or police officer or by that person's designee.

(b) An appeal under this section is by trial de novo. The district court may grant the appropriate legal or equitable relief necessary to carry out the purposes of this chapter. The relief may include reinstatement or promotion with back pay if an order of suspension, dismissal, or demotion is set aside.

(c) The court may award reasonable attorney's fees to the prevailing party and assess court costs against the nonprevailing party.

(d) If the court finds for the fire fighter or police officer, the court shall order the municipality to pay lost wages to the fire fighter or police officer.



Tex. Loc. Gov't Code Ann. § 143.015 (Vernon 1999)

6. "Commission" means the Fire Fighters' and Police Officers' Civil Service Commission. See Tex. Loc. Gov't Code Ann. § 143.003(1) (Vernon Supp. 2006).

7. See note 4.

8. Mindful that administrative remedies requirements of the Act are not prerequisites to a declaratory judgment action regarding the construction or validity of the Act, I pause to address Alvarez's argument that the trial court had jurisdiction over a declaratory judgment action. See Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 378 (Tex. App.-Corpus Christi 1999, no pet.) (concluding that exhaustion of administrative remedies is not required where the action seeks declaratory judgment concerning applicability or validity of an agency rule). Alvarez requested the trial court to declare when a "vacancy" occurred.

9. Rule 263 states:



Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.



Tex. R. Civ. P. 263.



The stipulation was not signed and certified by the trial court as rule 263 requires. However, it is apparent that the parties relied on the stipulated facts for their summary judgment motions. Even when the parties do not follow the technical requirements of rule 263, if the final judgment appears to be the product of a rule 263 agreed case, the appellate court should treat it as one. Trinity Universal Ins. Co. v. Fid. Cas. Co., 837 S.W.2d 202, 203 (Tex. App.-Dallas 1992, no writ) (concluding that stipulations were binding on court though judge did not sign certificate); Lambda Constr. Co. v. Chamberlin Waterproofing & Roofing Sys., 784 S.W.2d 122, 125 (Tex. App.-Austin 1990, writ denied) (treating telephone conference as "a submission upon an agreed statement"). Therefore, I would consider this appeal as an agreed case under Tex. R. Civ. P. 263. See City of Galveston v. Giles, 902 S.W.2d 167, 172 (Tex. App.-Houston [1st Dist.] 1995, no pet.).

10. The trial court afforded Alvarez the relief allowed a promoted fire fighter under the Act. See Tex. Loc. Gov't Code Ann. §§ 143.053, 143.121 (Vernon 1999 & Supp. 2006); see also Tex. Loc. Gov't Code Ann. § 143.108(c) (Vernon 1999).

11. Additionally, I note that upon receipt of Alvarez's post-submission reply brief, it became evident that the relief sought in this case is not available to Alvarez. See City of San Benito v. Ebarb, 88 S.W.3d 711, 720 (Tex. App.-Corpus Christi 2002, pet. denied). The brief stated that the issues of (1) whether the promotion is retroactive to May 5, 2001, and (2) the award of back pay, attorney fees, and pre- and post-judgment interest still remained. A declaratory judgement is only appropriate if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. See Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b) (Vernon 1997); see also Ebarb, 88 S.W.3d at 720. In a proceeding for declaratory judgment, the court may award costs and attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997); see also Ebarb, 88 S.W.3d at 720. While the court may also award further relief when necessary and proper, such relief must be within the existing jurisdiction of the court. See Tex. Civ. Prac. & Rem. Code Ann. § 37.011 (Vernon 1997); see also Ebarb, 88 S.W.3d at 720. Additionally, while some courts have held that injunctive relief can be properly sought in a declaratory judgment action, a request for injunctive relief does not equate to a request for damages. See Ebarb, 88 S.W.3d at 720. A suit which is brought ostensibly for the purpose of declaring rights, but actually seeks to impose liability on the state for damages, is a suit against the state barred by sovereign immunity. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856-57 (Tex. 2002). Private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim. Id. (citing W. D. Haden Co. v. Dodgen, 308 S.W.2d 838, 842 (Tex. 1958)).