Opinion
No. 04-01-00547-CV
Delivered and Filed: March 6, 2002
Appeal from the 111th Judicial District Court, Webb County, Texas, Trial Court No. 1999-CVQ-00204-D2, Honorable Solomon Casseb, Jr., Judge Presiding.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
AFFIRMED
Stephen Perez appeals a decision by the City of Laredo Fire Fighters and Police Officers Civil Service Commission ("Commission") to remove his name from the list of officers eligible for promotion to the rank of captain.
Promotions for police officers are governed by the Fire Fighter and Police Civil Service Act ("Act"). See Tex. Local Gov. Code Ann. § 143.001 et seq. (Vernon 1999 Supp. 2000). With two exceptions not applicable here, Local Government Code section 143.028 provides that "a police officer is not eligible for promotion unless the person has served in that police department in the next lower position or other positions specified by the commission for at least two years immediately before the date the promotional examination is held. A police officer is not eligible for promotion to the rank of captain or its equivalent unless the person has at least four years' actual service in that police department." Tex. Loc. Gov't Code Ann. § 143.028(b). The City relies on Section 143.028(b) for its contention that Perez was not eligible for promotion to captain because he held the next lowest position (lieutenant) for less than two years before the promotional examination took place. Perez argues that Section 143.028(b) does not apply to him for two reasons. First, he argues that Section 143.028(b) should be read as allowing a police officer who has served in a position higher than the vacant position to be eligible for promotion to the vacant lower position. Second, he contends his rank as assistant chief was a temporary assignment; therefore, during his tenure as assistant chief he continued to hold his rank as lieutenant. Because we disagree with Perez's first assertion and he did not meet his burden of proof under his second assertion, we affirm.
BACKGROUND
Perez has served in the City of Laredo police department continuously for nineteen years. He has never been laid off, discharged, had an unexcused failure to report to work, retired, or worked for another employer without the Chief of Police's permission. He has never had a disciplinary suspension. Perez held the rank of lieutenant from August 30, 1992 to February 19, 1994. He held the rank of assistant chief from February 19, 1994 to May 18, 1997. On May 18, 1997, he returned to the rank of lieutenant. On January 13, 1999, he took the promotional examination for the position of captain.
Perez placed first on the written examination; therefore, he was listed first on the Notice of Police Department Written Captain Promotional Examination Results. Ivan Perez was listed second. Following publication of the results, Ivan appealed to the Commission, challenging Perez's eligibility to take the examination and qualify for promotion under the Act. Ivan alleged that Perez was not eligible for promotion and his name should not be included on the promotional list for captain because Perez had not held the position in the classification immediately below that of captain for two continuous years and/or had not served two years in the next lower position than that of captain before the date the promotional examination for captain was given. The Commission upheld Ivan's appeal, because Lieutenant Stephen J. Perez has not served continuously for the two (2) years immediately preceding the examination in the rank immediately below Captain in pay grade.
Accordingly, the Commission issues the following ORDER: The name of Lieutenant Stephen J. Perez should be removed from the promotional eligibility list for rank of Captain in the Laredo Police Department.
Perez appealed the Commission's decision to district court, asserting the Commission's decision was not supported by substantial evidence and there was no disqualifying factor justifying his removal from the eligibility list. The trial court signed an order that read:
It is the order of this Court that the Court has jurisdiction over the parties and subject matter herein and accordingly, upholds the decision and adopts as the order of this Court the findings and rulings made by the [Commission].
STANDARD OF REVIEW
The Commission's decision may be appealed de novo to the district court. Tex. Loc. Gov't Code Ann. § 143.015(a), (b) (Vernon 1999). The court "may grant the appropriate legal or equitable relief necessary to carry out the purposes of this chapter." Id. Because the interpretation of the Act is a question of law, we are not bound by the Commission's interpretation, although the interpretation of a statute by the officials charged with its enforcement may be accorded some weight when we are in doubt. See Citizens Active in San Antonio v. Board of Adjustment, 649 S.W.2d 804, 806 (Tex.App.-San Antonio 1983, no writ); City of Grand Prairie v. Finch, 294 S.W.2d 851, 854 (Tex.Civ.App.-Dallas 1956, no writ). Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.
Here, the sole issue on appeal centers on the interpretation of the provisions of the Act that govern eligibility for promotions and eligibility to take promotional examinations. The cardinal rule of statutory construction is to discern and give effect to the intent of the enacting body. See Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). We must first seek to discern that intent from the plain language of the statute or ordinance. See id. It is a fair assumption that the Legislature tries to say what it means; therefore, the words it chooses should be the surest guide to legislative intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). We consider the entire statute, not simply the disputed portions. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994). Each provision must be construed in the context of the entire statute of which it is a part. Id.
OFFICERS ELIGIBLE FOR PROMOTION
The Act is intended "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). The Act provides specific procedures for filling a vacancy in a non-entry position that is not appointed by the department head, such as the position of captain. Id. § 143.036(a). Promotions are based on examinations administered by the Commission. Id. §§ 143.021(c), 143.028, 143.032; Lee v. City of Houston, 807 S.W.2d 290, 293 (Tex. 1991); Klinger v. City of San Angelo, 902 S.W.2d 669, 671 (Tex.App.-Austin 1995, writ denied). A police officer is eligible for promotion to a vacant position if the officer "has served in that police department in the next lower position or other positions specified by the commission for at least two years immediately before the date the promotional examination is held." Id. § 143.028(b).
Lists ranking officers who are eligible for promotion from one classification to the next are created based on their examination grades and seniority. Id. § 143.033(c). If no eligibility list exists when a vacancy occurs, the Commission must administer a promotional examination, from which an eligibility list is created to fill the vacancy. Id. § 143.036(d), (e). Promotional examinations are open to any police officer who has "continuously held" a position in the classification immediately below, in salary, the one having the vacant position for at least two years "immediately before the examination date." Id. § 143.031(a). If there is not a sufficient number of officers with two years' service in the next lower position to the vacancy to provide an adequate number of persons to take the examination, the Commission may extend the examination to officers with less than two years' service. Id. § 143.031(c). If there is still an insufficient number, the Commission may extend the examination to officers of the second lower position, in salary, to that for which the examination is held. Id.
The department head must appoint the eligible promotional candidate having the highest grade on the eligibility list, unless the department head has a valid reason for not doing so, in which case the department head must discuss the reason with the person being bypassed and must file the reason in writing with the Commission. Id. § 143.036(f). Thus, when a vacancy occurs, the person ranked first on the eligibility list must be promoted, unless there is a valid reason for not doing so. International Ass'n of Firefighters Local 624 v. City of San Antonio, 822 S.W.2d 122, 131 (Tex.App.-San Antonio 1991, writ denied).
We decline to adopt Perez's argument that Section 143.028(b) allows a police officer in a higher position to be eligible to take a promotional examination for a vacant lower position. The clear language of Sections 143.028(b) and 143.031(a) do not support this argument. The Legislature's reference to positions lower than the vacant position indicates the Legislature's intent that vacancies be filled from the lower ranks and not from the higher ranks. See Lee, 807 S.W.2d at 295 (civil service system offers a career ladder to every classified employee, whereby the officer may work his or her way upward through the ranks); see also Fitzgerald, 996 S.W.2d at 866 (it is a fair assumption that the Legislature tries to say what it means).
We recognize that our construction of Sections 148.028(b) and 143.031(a) may produce an unfair result, such as here. And, we acknowledge the rule of statutory construction that a court must consider the consequences that would follow from its construction of a statute and avoid absurd results. See Tex. Gov't Code Ann. § 311.023 (Vernon 1998); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991). However, legislative intent must be determined from the entire Act, not from isolated portions thereof. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). Therefore, we look to the Act in its entirety to determine whether the result, while unfair, is also absurd. We conclude that it is not.
SERVICE IN A HIGHER RANK
A department head may designate an officer from the next lower classification to temporarily fill a position in a higher classification. Tex. Loc. Gov't Code Ann. § 143.038(b); see also Mokwa v. City of Houston, 741 S.W.2d 142, 146 (Tex.App.-Houston [1st Dist.] 1987, writ denied). "The temporary performance of the duties of a higher position by a person who has not been promoted as prescribed by this chapter may not be construed as a promotion." Tex. Loc. Gov't Code Ann. § 143.038(c). Section 143.038 protects the officer designated to fill a temporary vacancy by requiring that the officer be paid more for assuming more responsibility. Id. § 143.038(b). "The statute preserves the foundation of the civil service reform movement, that advancement be based on competitive examination, by providing that, `the temporary performance of duties . . . shall never be construed' as a promotion, and by requiring that vacancies be filled within 60 days from lists based on examination results." Mokwa, 741 S.W.2d at 146-47; see also City of Galveston v. Russo, 508 S.W.2d 882, 885 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ ref'd n.r.e.) (holding that "civil service requirements for promotion will not interfere with temporary duty assignments").
The provision that appointments under Section 143.038 are not considered promotions is consistent with the Act's requirement that vacancies in all classifications, with certain exceptions, are filled only from the eligibility lists that result from the promotional examinations. See Tex. Loc. Gov't Code Ann. § 143.021(c). One of the exceptions to Section 143.021(c)'s requirement that all classified positions be filled from an eligibility list is an appointment pursuant to Section 143.102. Id. § 143.021(c). Under Section 143.102, the head of the police department may appoint an officer to a command staff position at the rank of assistant chief. Id. § 143.102(a) (Vernon Supp. 2001). Officers who are appointed to assistant chief under Section 143.102 "may take any promotional examination for which the person would have been eligible under this chapter." Id. § 143.102(j). We hold that Sections 143.038 and 143.102 leave open the possibility that an officer may be eligible to take a promotional examination for a rank lower than the one held by the officer. The threshold inquiry under these circumstances is whether the officer held the rank by virtue of a temporary designation or by appointment.
Perez testified that his over three year tenure as assistant chief was temporary. However, it is not clear from the record whether Perez served as assistant chief based on a temporary designation under Section 143.038, or an appointment under Section 143.102. Because the record does not indicate the circumstances under which Perez held the rank of assistant chief, he has not met his burden of showing he was eligible to take the promotional examination.
CONCLUSION
All classified positions and all positions entailing the supervision of classified employees must be made in accordance with the Act. Lee, 807 S.W.2d at 295. Section 143.028 clearly requires that vacancies in higher ranks be filled by promotion from within the lower ranks. Section 143.031 clearly requires that an officer have continuously held a position in the classification that is immediately below the vacant position, in salary, for at least two years immediately before the examination date to be eligible to take the examination. Perez has not shown the circumstances of his tenure as assistant chief; therefore, he has not met his burden of proving he was eligible to take the promotional examination for the rank of captain or that he was eligible for promotion to that rank. Accordingly, we affirm the trial court's judgment.