I respectfully dissent.
*Page 282 The issue before us is whether the city acted in good faith in abolishing the fire lieutenant's position. In Kiel v.City of Houston, 558 S.W.2d 69, 72 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ ref'd n.r.e.), the court discussed the requirement of efficiency and economy set out inWallace and then stated: "Even if the City had produced live witnesses to state that the action was taken for proper purposes, it would not have been sufficient; the City should have proved that the jobs were unnecessary and shown why it would be more satisfactory to the public if they were abolished." Additionally, although a municipal corporation has the power to abolish an unnecessary position, the discharge of a faithful employee in violation of rights secured him by statute cannot be protected by a pretense that it was a proper exercise of municipal power. Wallace, supra, citing McQUILLIN, MUNICIPAL CORPORATIONS § 12.118.
Appellant first argues that the finding of good faith was in error because the duties of the abolished position were assigned to the newly created position of fire protection engineer. A crucial inquiry in determining good faith is whether the duties of the abolished position were assigned to another person or position. Burkhart, supra.
Appellant urges that City of Wichita Falls v. Harris,532 S.W.2d 653 (Tex.Civ.App. — Fort Worth 1975, writ ref'd n.r.e.), is most closely on point with the facts in this appeal. In WichitaFalls, the non-civil service position of fire training specialist was created to replace the civil service position of fire training officer. The Fort Worth Court of Civil Appeals found sufficient evidence to sustain the trial court's judgment that the new position came under civil service. The Fort Worth court further determined that a person holding the newly created position was a "fireman" within the meaning of TEX.REV.CIV.STAT.ANN. art. 1269m (Vernon Supp. 1985); thus, filling the new position without a competency examination was in violation of art. 1269m § 14G.
In the instant case, the duties of the abolished civil service lieutenant's position are essentially the same as those of the new non-civil service position. In fact, the attachment to the challenged ordinance states that "[t]he Fire Protection Engineer would assume the fire prevention responsibilities currently performed by the lieutenant." Although there was some evidence of increased economy and efficiency, there was no evidence to prove that the abolished position was unnecessary in light of the duties of both positions being essentially the same. Therefore, the trial court erred in concluding that the City acted in good faith; the challenged ordinance is void. I would sustain appellant's points of error one through four.
Appellant's fifth point of error is that the trial court erred in denying his writ of mandamus. He had requested the trial court to order the Fire Chief to promote him to the lieutenant's position. I have determined that the challenged ordinance is void; therefore, appellant was entitled to promotion to that position within sixty days of the vacancy occurring. I would sustain appellant's final point of error.
Accordingly, I would reverse and render the judgment of the trial court as to the finding that the City acted in good faith and remand this cause to the trial court to enter an appropriate order with regard to the writ of mandamus.