concurring and dissenting.
I reluctantly concur with the majority’s holding that the trial judge’s finding that Spivey cheated on his entrance exam is not so weak as to be manifestly unjust. As the majority points out, the evidence is mainly circumstantial and the trial judge had the opportunity to make the determination, therefore, I must respect that prerogative and not substitute my judgment for his.
I respectfully dissent to the majority’s holding that Spivey had no rights under Chapter 143. The trial judge was quite correct in his conclusion of law number 7 where he stated:
There is nothing in the statutory law nor in the decisional law of this state which permits this Court to depart from the application of Section 143 of the Local Government Code and the section under that portion of the statute in this particular. [sic]
The majority is also correct that the failure to be appointed as a result of a competitive exam does not confer Chapter 143 rights upon a individual. However, all the cases holding so, involved the failure to administer or take a competitive exam, not cheating on an exam. Unfortunately, all contingencies are seldom covered in legislation.
The legislature established a system for the appointment of police that includes the requirement for an entrance examination. Tex. Loc. Gov’t Code Ann. § 143.025 (Vernon 1999).8 In reviewing the entire legislative scheme, the word “competitive” is not defined. Yet, it appears when used in *397the context of requiring a “competitive” examination, the legislature used the term to mean competition among applicants.
The legislature dealt with inappropriate or illegal behavior within the civil service scheme. Tex. Loc. Gov’t Code Ann. § 143.0519 (Vernon 1999) sets out the various grounds for removal or suspension. While cheating on the entrance examination is not explicitly a ground for removal, it is certainly implicitly covered under sections 143.051(6) and (8). Unfortunately for ⅛6 city, the legislature also set up a scheme for disciplinary suspensions, Tex. Log. Gov’t Code Ann. § 143.05210 (Vernon 1999), and included is the “180 day” rule, This rule requires that the act complained *398of, unless related to criminal activity, be within 180 days of the suspension. If the act is related to criminal activity then there is a “discovery” rule. Thus, it is the legislature which has “hamstrung” the city and this court must interpret the laws rather than make them. See, Tex. Const. art. II, § 1; Houston Chronicle Pub. Co. v. Woods, 949 S.W.2d 492, 498 (Tex.App.—Beaumont 1997, no writ)(citing State v. Mancuso, 919 S.W.2d 86, 87 (Tex.Crim. App.1996)).
In summary, I commiserate with the dilemma of the trial court; but the trial court got it right. Under the law, as currently written, a cheater must be ferreted out and suspended within 180 days or there must be some other reason to initiate disciplinary measures.11 Consequently, I must reluctantly dissent.
. § 143.025. Entrance Examinations
(a) The commission shall provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the fire and police departments. The examinations are open to each person who makes a proper application and meets the requirements prescribed by this chapter.
(b) An eligibility list for a beginning position in the fire or police department may be created only as a result of a competitive examination held in the presence of each applicant for the position. The examination must be based on the person’s knowledge of and qualifications for fire fighting and work in the fire department or for police work and work in the police department and must inquire into the applicant's general education and mental ability. A person may not be appointed to the fire or police department except as a result of the examination.
(c) An applicant may not take an examination unless at least one other applicant taking the examination is present.
(d) Examinations for beginning positions in the fire department may be held at different locations if each applicant takes the same examination and is examined in the presence of other applicants.
(e) An additional five points shall be added to the examination grade of an applicant who served in the United States armed forces, received an honorable discharge, and made a passing grade on the examination.
(f) An applicant may not take the examination for a particular eligibility list more than once.
(g) The commission shall keep each eligibility list for a beginning position in effect for a period of not less than six months or more than 12 months, unless the names of all applicants on the list have been referred to the appropriate department. The commission shall determine the length of the period. The commission shall give new examinations at times the commission considers necessary to provide required staffing for scheduled fire or police training academies.
(h) The grade to be placed on the eligibility list for each applicant shall be computed by adding an applicant's points under Subsection (e), if any, to the applicant's grade on the written examination. Each applicant’s grade *397on the written examination is based on a maximum grade of 100 percent and is determined entirely by the correctness of the applicant's answers to the questions. The minimum passing grade on the examination is 70 percent. An applicant must pass the examination to be placed on an eligibility list.
. § 143.051. Cause for Removal or Suspension
A commission rule prescribing cause for removal or suspension of a fire fighter or police officer is not valid unless it involves one or more of the following grounds:
(1) conviction of a felony or other crime involving moral turpitude;
(2) violations of a municipal charter provision;
(3) acts of incompetency;
(4) neglect of duty;
(5) discourtesy to the public or to a fellow employee while the fire fighter or police officer is in the line of duty;
(6) acts showing lack of good moral character;
(7) drinking intoxicants while on duty or intoxication while off duty;
(8) conduct prejudicial to good order;
(9) refusal or neglect to pay just debts;
(10) absence without leave;
(11) shirking duty or cowardice at fires, if applicable; or
(12) violation of an applicable fire or police department rule or special order.
. § 143.052. Disciplinary Suspensions
(a) This section does not apply to a municipality with a population of 1.5 million or more.
(b) The head of the fire or police department may suspend a fire fighter or police officer under the department head’s supervision or jurisdiction for the violation of a civil service rule. The suspension may be for a reasonable period not to exceed 15 calendar days or for an indefinite period. An indefinite suspension is equivalent to dismissal from the department.
(c) If the department head suspends a fire fighter or police officer, the department head shall, within 120 hours after the hour of suspension, file a written statement with the commission giving the reasons for the suspension. The department head shall immediately deliver a copy of the statement in person to the suspended fire fighter or police officer.
(d) The copy of the written statement must inform the suspended fire fighter or police officer that if the person wants to appeal to the commission, the person must file a written appeal with the commission within 10 days after the date the person receives the copy of the statement.
(e) The written statement filed by the department head with the commission must point out each civil service rule alleged to have been violated by the suspended fire fighter or police officer and must describe the alleged acts of the person that the department head contends are in violation of the civil service rules. It is not sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated.
(f) If the department head does not specifically point out in the written statement the act or acts of the fire fighter or police officer that allegedly violated the civil service rules, the commission shall promptly reinstate the person.
(g) If offered by the department head, the fire fighter or police officer may agree in writing to voluntarily accept, with no right of appeal, a suspension of 16 to 90 calendar days for the violation of a civil service rule. The fire fighter or police officer must accept the offer within five working days after the date the offer is made. If the person refuses the offer and wants to appeal to the commission, the person must file a written appeal with the commission within 15 days after the date the person receives the copy of the written statement of suspension.
(h) In the original written statement and charges and in any hearing conducted under this chapter, the department head may not complain of an act that occurred earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer. If the act is allegedly related to criminal activity including the violation of a federal, state, or local law for which the fire fighter or police officer is subject to a criminal penalty, the department head may not complain of *398an act that is discovered earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer. The department head must allege that the act complained of is related to criminal activity.
. For instance, if the individual fails to cooperate with the investigation or makes false statements during the investigation.