ON MOTION FOR HEARING.
GRISSOM, Chief Justice.In appellees’ motion for rehearing they say that certain material issues were not determined and that no findings of fact thereon were made in the opinion wherein we .reversed the judgment and remanded the cause with directions to render judgment reinstating appellant and awarding him the amount of his salary during the period of his illegal suspension. Appellee asks the court to make the following findings:
“a. The employment of Appellant Geron, as a member of the Classified Service of the City of Sweetwater, was terminated September 30, 1961, (Tr. p. 18).
“b. On September 30, 1961, Appellant Geron had accumulated 77½ days of sick and injury leave of absence under the provisions of Section 26, Article 1269m, Revised Civil Statutes of Texas.
“c. On September 30, 1961, Appellant Geron received payment in a lump sum for his accumulated sick and injury leave of absence time in the amount of $1,064.08 minus $164.40 withholding tax.
“d. On September 30, 1961, the Appellant Geron accepted the lump sum payment of his accumulated sick and injury leave time and has not repaid the same to the City of Sweetwater; neither has he offered or tendered payment of the same to the City of Sweet-water. (Tr. p. 19-20)
“e. The only appeal made by Appellant Geron to the Civil Service Commission of the City of Sweetwater in connection with the subject matter of this appeal was by written petition filed' with such Civil Service Commission on January 18, 1962. (Tr. p. 20)”
All of said facts were admitted upon the trial except those requested under paragraph “d” and, being undisputed, there is no necessity for a finding thereon. We do not find the facts as requested in paragraph “d”. Instead, we find that at the time of Geron’s discharge by the City he was paid, and he retained, the amount of money stated in paragraph “c”.
Under Article 1269m he was not entitled to such payment until his employment was lawfully terminated. It has not been lawfully terminated. The City is entitled to a credit for said amount. To that extent the motion for rehearing is granted. Our former judgment is set aside. Judgment is now rendered reversing the judgment of the trial court and remanding the cause with directions to render judgment reinstating appellant and awarding him the amount of his salary during the time of his illegal suspension, less such credit to the City.