ACCEPTED 03-14-00693-CV 3668489 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/6/2015 3:12:32 PM JEFFREY D. KYLE CLERK No. 03-14-00693-CV
FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS Austin, Texas AUSTIN, TEXAS 1/6/2015 3:12:32 PM JEFFREY D. KYLE Clerk CITY OF NEW BRAUNFELS, TEXAS, JAN KOTYLO, in her official capacity, PAT CLIFTON, in his official capacity, and FRITZ WELSCH, in his official capacity
Appellants,
v.
JOSEPH TOVAR,
Appellee.
APPEAL FROM CAUSE NO. C2014-0928A 433RD JUDICIAL DISTRICT COURT OF COMAL COUNTY, TEXAS HONORABLE DIB WALDRIP, PRESIDING
BRIEF OF APPELLEE JOSEPH TOVAR
Chad R. Hyde Randal C. Doubrava State Bar No. 24046130 State Bar No. 06029900 Texas Municipal Police Association Texas Municipal Police Association 6200 La Calma Drive, Ste. 200 6200 La Calma Drive, Ste. 200 Austin, Texas 78752 Austin, Texas 78752 (512) 454-8900 (Telephone) (512) 454-8900 (Telephone) (512) 454-8860 (Facsimile) (512) 454-8860 (Facsimile) chad.hyde@tmpa.org randy.doubrava@tmpa.org
ATTORNEYS FOR APPELLEE JOSEPH TOVAR
i IDENTITY OF PARTIES AND COUNSEL
Appellants/Defendants: The City of New Braunfels, Texas, Jan Kotylo, in her official capacity, Pat Clifton, in his official capacity, and Fritz Welsch, in his official capacity.
Trial Counsel and Appellate Counsel for Appellants:
Bettye Lynn Valeria M. Acevedo State Bar No. 11540500 State Bar No. 00798020 Lynn, Ross & Gannaway, LLP City of New Braunfels, Texas 306 West Broadway Avenue 424 South Castell Avenue Fort Worth, Texas 76104 New Braunfels, Texas 78130 (817) 332-8505 (Telephone) (830) 221-4281 (Telephone) (817) 332-8548 (Facsimile) (830) 626-5578 (Facsimile)
Appellee/Plaintiff: Joseph Tovar
Chad R. Hyde Randal C. Doubrava State Bar No. 24046130 State Bar No. 06029900 Texas Municipal Police Association Texas Municipal Police Association 6200 La Calma Drive, Ste. 200 6200 La Calma Drive, Ste. 200 Austin, Texas 78752 Austin, Texas 78752 (512) 454-8900 (Telephone) (512) 454-8900 (Telephone) (512) 454-8860 (Facsimile) (512) 454-8860 (Facsimile)
i TABLE OF CONTENTS
IDENTITY OF PATRIES AND COUNSEL……………………………………….i
TABLE OF CONTENTS…………………………………………………………..ii
INDEX OF AUTHORITIES………………………………………………………..v
STATE STATUTES AND RULES………………………………………………viii
STATEMENT OF THE CASE…………………………………………………….1
STATEMENT REGARDING ORAL ARGUMENT……………………………....3
ISSUES PRESENTED……………………………………………………………..4
STATEMENT OF FACTS…………………………………………………………5
SUMMARY OF THE ARGUMENT……………………………………………....7
ARGUMENT AND AUTHORITIES……………………………………………....9
I. The Court of Appeals reviews a plea to the jurisdiction under a de novo standard, construing the pleadings in favor of the pleader…………………..9
II. The Appellants did not have jurisdiction or the discretion to withhold seniority points from Corporal Tovar’s grade on the written examination and deny his placement on the promotion eligibility list………………..…11
A. Chapter 143 clearly dictates that seniority points are added to police officer applicant’s grade on the written examination to determine if police officer has a passing score of 70…….................11
B. The Legislature’s intent distinguishes the criteria for the addition of seniority points for police officers and fire fighters…………………………………………………..…14
ii C. The court’s analysis regarding the application of seniority points in City of Lubbock v. Knox has been rendered ineffective by the 2005 amendment to TEX. LOC. GOV’T CODE §143.033…….…17
III. The New Braunfels Civil Service Commission is not a necessary party in order to invoke the court’s jurisdiction (Response to Appellants’ Argument I)……………………………………..18
A. The Proper parties are before this Court……………………………..18
B. The Commission is not a legal entity that can be sue and be sued………..............................................................................22
C. Chapter 143 does not mandate the commission the commission be named as a party………………………………………………….23
IV. Corporal Tovar has standing (Response to Appellants’ Argument II)……………………………………24
A. A justiciable case in controversy exists……………………………..25
V. Sovereign Immunity does not bar claims for declaratory or injunctive relief (Response to Appellants’ Argument III)…………………………………...27
A. Corporal Tovar is entitled to prospective injunctive remedies……...28
B. A writ of mandamus may be issued to compel Appellants to perform a purely ministerial act (Response to Appellants’ Argument IV)…………………………….28
C. Corporal Tovar is entitled to injunctive relief (Response to Appellants’ Argument V)……………………………..30
CONCLUSION AND PRAYER………………………………………………….32
CERTIFICATE OF COMPLIANCE……………………………………………...33
CERTIFICATE OF SERVICE……………………………………………………34
iii APPENDICES
A. Trial Court’s Order on Defendants’ Plea to the Jurisdiction, dated October 23, 2014 (CR 262-268)
B. Texas Local Government Code Section 143.033
C. Texas Civil Service Reporter, By Bettye Lynn, Release No. 43, October 2014, Section 143.033 Promotional Examination Grades
iv INDEX OF AUTHORITIES
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991)………………………………………………..29
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)………………………………………………….9
Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995)………………………………………………..24
Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App.-Austin 2013, no pet.)………………………11, 14
Brooks v. Northglen Ass’n., 141 S.W.3d 158 (Tex. 2004)………………………………………………..22
City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (Tex. 1951)……………………………25
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)……………………………………………21, 28
City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010)…………………………………………………9
City of Houston v. Meister, 882 S.W.2d 29 (Tex. App. – Houston [14th Dist.] 1994, writ denied)……..29
City of Lubbock v. Knox, 736 S.W.2d 888 (Tex. App.-Amarillo 1987, writ denied)………………17, 18
City of Round Rock v. Whiteaker, 241 S.W.3d 609 (Tex.App. – Austin 2007, pet. denied)………25, 26, 28, 31
Cobb v. Harrington, 190 S.W.2d 709, 713 (Tex. 1945)…………………………………………24
v Connor v. Klevenhagen, 726 S.W.2d 205 (Tex.App.-Houston [14th Dist.] 1987, writ re’d n.re.)…………………….23
County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002)………………………………………………….9
Democracy Coalition v. City of Austin, 141 S.W.3d 282 (Tex. App. - Austin 2004, no pet.)…………………………30
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997)……………………………………………….21
Frey v. DeCordova Bend Estates Owners Ass’n., 632 S.W.2d 877 (Tex. App. - Fort Worth 1982), aff’d. 647 S.W.2d 246 (Tex. 1983)……….30
Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838 (Tex. 2009)………………………………………………..22
John Paul Mitchell Systems v. Randall’s Food Markets, Inc., 17 S.W.3d 721 (Tex. App. - Austin 2000, pet. denied)…………………….30
Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)…………………24
Labrado v. County of El Paso, 132 S.W.3d 581 (Tex. App. – El Paso 2004, no pet.)……………………….28
Lacy v. State Banking Board, 118 Tex. 91, 11 S.W.2d 496 (Tex. 1928)……………………………………18
Lowell v. City of Baytown, 264 S.W.3d 31 (Tex. App. – Houston [1st Dist.] 2007, pet. filed)…………28
Mining v. Hays Co. Bail Bond Board, No. 03-05-00448-CV, Slip op. at 5 (Tex.App.-Austin 2006) (memorandum opin.)………………22
vi Parrish v. Phillips, 401 S.W.2d 347 (Tex. Civ. App. – Houston [1st Dist.] 1996, writ ref’d n.r.e.)………………20
Perez v. City of Laredo, 21 S.W.3d 371 (Tex. App. - San Antonio 2000)……………………….18, 19
Perez v. City of Laredo, 82 S.W.3d 605, (Tex. App. - San Antonio 2002)………………………..…19
San Antonio Conserv. Soc., Inc. v. City of San Antonio, 455 S.W.2d 743 (Tex. 1970)………………………………………………..18
State v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777, 781 (Tex. 1951)……………………………18
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007)…………………………………………..24
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)……………………………………………..9, 10
Texas Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849 (Tex. 2002)…………………………………………………21
vii STATE STATUTES AND RULES
TEX. CIV. PRAC. & REM. CODE § 37.003……………………………………………24
TEX. LOC. GOV’T CODE § 143.006………………………………………………….22
TEX. LOC. GOV’T CODE § 143.007………………………………………………….22
TEX. LOC. GOV’T CODE § 143.012………………………………………………….22
TEX. LOC. GOV’T CODE § 143.015…………………………………………22, 24, 30
TEX. LOC. GOV’T CODE § 143.028………………………………………………….19
TEX. LOC. GOV’T CODE §143.033……..5, 7, 10, 11, 14, 16-18, 20, 21, 26, 28, 29, 32
TEX. LOC. GOV’T CODE §143.035…………………………………………………..12
TEX. LOC. GOV’T CODE §143.036………………………………………………27, 31
viii TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee Corporal Joseph Tovar (“Corporal Tovar”) files this brief requesting
that the district court’s order denying the Appellant’s Plea to the Jurisdiction is
affirmed. Corporal Tovar respectfully shows:
STATEMENT OF THE CASE
Corporal Tovar is a police officer employed by the City of New Braunfels,
Texas. The City of New Braunfels has adopted civil service under Chapter 143 of
the Local Government Code. Corporal Tovar took the required written examination
to be placed on the list for promotion to Sergeant as required under Chapter 143. The
Appellants refused to add seniority points to Corporal Tovar’s grade on the written
examination for placement on the eligibility list in violation of civil service laws.
Each police officer applicant is entitled to add one point for each year of service in
the police department to their grade on the written examination, with a maximum of
10 points. Corporal Tovar has been a member of the New Braunfels Police
Department for over thirteen (13) years. Corporal Tovar’s final grade on the
examination is 74 points computed by adding his grade on the written examination
of 64 points with his 10 points for seniority. A grade of at least 70 points is
considered a passing score.
Corporal Tovar brought this suit contending that Appellants failed to comply
with their statutory obligations. Appellants asserted that the district court did not 1 have jurisdiction because: the Appellants acted within its jurisdiction to deny the
application of seniority appoints to Corporal Tovar’s test score; Corporal Tovar
lacks standing; the New Braunfels Civil Service Commission is a necessary and
indispensable party to the suit and the failure to name the Commission as a defendant
created an incurable defect; the suit is barred by governmental and sovereign
immunity; mandamus and injunctive relief is precluded by the statutory remedies;
and Corporal Tovar’s interpretation of the relevant statue is wrong.
The district court denied Appellants’ plea to the jurisdiction.
2 STATEMENT REGARDING ORAL ARGUMENT
The Appellee submits that oral argument is not necessary in this case because
the facts and issues in this case are clear. Oral argument would not significantly aid
this Court in determining the legal issues presented herein.
3 ISSUES PRESENTED
1. Did the Appellants have jurisdiction or the discretion to withhold seniority points from Corporal Tovar’s grade on the written examination and deny his placement on the promotion eligibility list?
2. Is the New Braunfels Civil Service Commission a necessary party in order to invoke the court’s jurisdiction?
3. Does Appellee Joseph Tovar have standing?
4. Does Sovereign Immunity bar claims for declaratory or injunctive relief?
5. Is mandamus appropriate relief to compel Appellants to perform a purely ministerial act?
6. Is Appellee Joseph Tovar entitled to injunctive relief?
4 STATEMENT OF FACTS
Corporal Tovar is a police Corporal employed by the City of New Braunfels,
Texas. He has continually served in that capacity for over thirteen (13) years. CR 9.
The City of New Braunfels is a “Civil Service City” and is covered by Chapter 143
of the Texas Local Government Code. Corporal Tovar was entitled to all privileges
and benefits afforded to a Civil Service employee at all times relevant to this case.
CR 9. Appellants’ Kotylo, Clifton, and Welsch are the members of the New
Braunfels Civil Service Commission. On May 20, 2014 Corporal Tovar took the
required written examination for promotion to Sergeant, and received a score of 64
points on the examination. CR 20. Under TEX. LOC. GOV’T CODE §143.033(b) each
“police Corporal is entitled to receive one point for each year of seniority as a
classified police Corporal in that department, with a maximum of 10 points.”
Police officer applicants with a grade of 70 points or above are required to be
placed on a promotion list pursuant to TEX. LOC. GOV’T CODE §143.033(c). When he
was not placed on the promotion list, Corporal Tovar filed a grievance with the New
Braunfels Civil Service Commission requesting his seniority points be added to his
written test score. CR 20.
On July 9, 2014, City of New Braunfels Civil Service Commission members
Jan Kotylo, Pat Clifton, and Fritz Welch held a meeting at the City Hall Council
Chambers in New Braunfels, Texas to discuss among other items results of the
5 promotion exam. CR 23. During open session of the meeting the commission
discussed Corporal Tovar’s grievance. CR 107. The commission retired to executive
session to meet with City Attorneys, and then voted in open session to deny Corporal
Tovar’s grievance. CR 107.
Corporal Tovar then filed this lawsuit in the district court seeking in part a
declaratory judgment that the Defendants did not comply with Local Government
Code Chapter 143, a writ of mandamus, and injunctive relief. CR 7.
6 SUMMARY OF THE ARGUMENT
Chapter 143 of the Local Government Code, known as the Fire Fighter and
Police Officer Civil Service Act (the “CSA”), provides certain procedures for how
police officers’ promotional examination grades for placement on the promotional
eligibility list shall be computed. Pursuant to Section 143.033 of the CSA each
police officer applicant is entitled to add one point for each year of service in the
police department to their grade on the written examination, with a maximum of 10
points. The CSA makes a clear distinction between firefighters and police officers
as to when seniority points shall be applied to their respective scores. Firefighters
are required to score 70 points on the written examination before eligibility points
can be added to their score. Police officers are not required to score 70 points on the
written examination before seniority points are added to their score.
The Appellants contend they acted within their jurisdiction to deny the
application of 10 seniority points to Corporal Tovar’s written examination because
he did not score 70 points on the written examination. Contrary to Appellants
argument, the application of seniority points is not discretionary. Commissioners
Kotylo, Clifton, and Welsch had a ministerial duty to apply seniority points to
Corporal Tovar’s written examination and place him on the eligibility list for
promotion as statutorily required by section 143.033. Tovar’s declaratory claims
seeking compliance with Section 143.033 falls within the ultra vires exception to
7 sovereign immunity. A claim under the ultra vieres exception must be brought
against the state actors in their official capacity therefore the proper parties are before
this Court.
The Appellants further contend that Corporal Tovar lacks standing because he
has no justiciable interest in holding a Sergeant’s position, or a right to be placed on
the promotional list because there was no vacancies in the Sergeant classification at
the time the promotional examination was scheduled, given and scored or when the
lawsuit was filed. Corporal Tovar is not arguing that he should be promoted to
Sergeant. Corporal Tovar is merely requesting that his seniority points are added to
his written test grade and his name is placed on the eligibility list for promotion as
mandated by statute. Placement on the eligibility list, in and of itself, is a
legislatively-created justiciable interest regardless of the presence or absence of a
vacancy.
Appellants also contend that they are protected from suit because they have
not waived sovereign immunity in this case. Corporal Tovar is not seeking money
damages. Governmental immunity does not bar claims for declaratory and injunctive
relief, even when joined with a money damages claim barred by immunity.
8 ARGUMENT AND AUTHORITIES
I. The Court of Appeals reviews a plea to the jurisdiction under a de novo standard, construing the pleadings in favor of the pleader.
A plea to the jurisdiction is a dilatory plea, and its purpose is to “defeat a cause
of action without regard to whether the claims asserted have merit.” Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction
challenges the trial court’s authority to determine the subject matter of the pleaded
cause of action. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
Whether a court has jurisdiction is a question of law that is reviewed de novo.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When
reviewing a trial court’s ruling on a challenge to its jurisdiction, the court of appeals
considers the plaintiff's pleadings and factual assertions, as well as any evidence in
the record that is relevant to the jurisdictional issue. City of Elsa v. Gonzalez, 325
S.W.3d 622, 625 (Tex. 2010). When considering the pleadings, the reviewing court
construes them liberally in favor of the plaintiff, looks to the pleader’s intent, and
determines if the pleader has alleged facts affirmatively demonstrating the court’s
jurisdiction. Miranda, 133 S.W.3d at 226.
Chapter 143 of the Texas Local Government Code establishes jurisdiction for
a district court to hear an officer’s appeal of any commission decision. Pursuant to
TEX. LOC. GOV’T CODE § 143.015(a) “[i]f a fire fighter or police officer is dissatisfied
9 with any commission decision, the fire fighter or police officer may file a petition in
district court asking that the decision be set aside.”
Corporal Tovar asserted a claim for declaratory judgment requesting the court
to order Appellants to comply with Section 143.033 of the Texas Local Government
Code. CR 15. Furthermore, “the district court may grant the appropriate legal or
equitable relief necessary to carry out the purpose of this chapter.” TEX. LOC. GOV’T
CODE § 143.015(b).
In the present case, the decision on the plea to the jurisdiction also decides the
merits of this case. In their Plea to the Jurisdiction, Appellants claim that they acted
within its jurisdiction to deny the application of seniority appoints to Corporal
Tovar’s test score and that Corporal Tovar’s interpretation of Chapter 143 is wrong.
CR 80-82, 90-95. “[I]n a case in which the jurisdictional challenge implicates the
merits of the [Appellee’s] cause of action and the plea to the jurisdiction includes
evidence, the trial court reviews the relevant evidence to determine if a fact issue
exists.” Miranda, at 227. Appellants concede that there are no genuine issues of
material fact in this case. CR 180. Therefore, if the Court decides that it has
jurisdiction, and finds that the Appellants failed to comply with the promotion
examination grading provisions under Tex. Loc. Govt. Code. §143.033, the
declaratory relief sought by Corporal Tovar must also be granted. As such, the
10 Appellee will first address the merits of the case as they are inherently intertwined
with Appellants plea to the jurisdiction.
II. The Appellants did not have jurisdiction or the discretion to withhold seniority points from Corporal Tovar’s grade on the written examination and deny his placement on the promotion eligibility list.
A. Chapter 143 clearly dictates that seniority points are added to police officer applicant’s grade on the written examination to determine if police officer has a passing score of 70.
The controversy in this case involves a disagreement on the application of
statutory language for adding seniority points to a police officer’s written test grade
for inclusion on the eligibility list for promotion. In cases involving a question of
statutory construction the primary objective of the court should be to give effect to
the Legislature’s intent. Bracey v. City of Killeen, 417 S.W.3d 94, 103 (Tex. App.-
Austin 2013, no pet.). In Bracey, this Court, citing to numerous cases, outlined the
court’s responsibility when analyzing the Legislature’s intent:
We seek that intent “first and foremost” in the statutory text. We are to consider the statute as a whole, interpreting it to give effect to every part. The words cannot be examined in isolation, but must be informed by the context in which they are used. We assume that when enacting a statute, the Legislature was aware of the background law and acted with reference to it. “Where text is clear, text is determinative” of legislative intent. We give such statutes their plain meaning without resort to rules of construction or extrinsic aids. Only when statutory text is susceptible to more than one reasonable interpretation is it appropriate to look beyond its language for assistance in determining legislative intent.
The statutory text of TEX. LOC. GOV’T CODE § 143.033 clearly provides that
seniority points should be added to a police officer’s grade on the written 11 examination for promotion to determine if his/her name should be placed on the
promotional eligibility list.
First, the statute provides that the grade for police officers is computed by
adding seniority points to the grade on the written examination and for fire fighters
the seniority points are added only if the fire fighter receives 70 points on the written
examination. The statutory text under subpart (c) states: “Unless a different
procedure is adopted under an alternate promotional system as provided by Section
143.035, the grade that must be placed on the eligibility list for each police officer
or fire fighter shall be computed by adding the applicant’s points for seniority to the
applicant’s grade on the written examination, but for a fire fighter applicant only if
the applicant scores a passing grade on the written examination.” App. B; (emphasis
added) The statute further defines a passing grade and again makes a clear distinction
between police officers and fire fighters. The statutory text states: “In a municipality
with a population of less than 1.5 million, all police officer applicants who receive
a grade of at least 70 points shall be determined to have passed the examination and
all fire fighter applicants who receive a grade on the written examination of a least
70 points shall be determined to have passed the examination.” Id. (emphasis added)
In determining the Legislature’s intent of the statute in its entirety, the court
must consider the use of the word “grade” in the context in which it is used.
Specifically, the Legislature makes a distinction between “grade” and “grade on the
12 written examination”. Under subpart (b) each “police officer is entitled to receive
one point for each year of seniority as a classified police officer in that department,
with a maximum of 10 points.” Id. It is undisputed that Tovar is a police officer and
is entitled to 10 seniority points based on his thirteen years of service with the New
Braunfels Police Department. CR 9. Officer Tovar’s grade of 74 points meets the
criteria of a passing score for police officers under the plain meaning of the statute.
Only fire fighters are required to receive a grade on the written examination of at
least 70 points.
Despite the clear meaning of the statute, the Appellants “adamantly assert that
the Commission acted within its authority when it denied Plaintiff’s grievance.” CR
82. The only persuasive authority on the subject found by Appellee is the Texas
Civil Service Reporter (“Reporter”), published by the Appellants’ counsel Bettye
Lynn. App. C. In the October 2014 issue, Ms. Lynn provides that “a promotional
applicant in a city of less than 1.5 million is to be placed on an eligibility list if the
combination of that applicant’s written examination score with up to ten seniority
points equals a total score of at least seventy. Thus, it is possible to achieve a perfect
score of 110.” App. C, pg. 6. However, in this case Appellants argue that a police
officer must have a grade on the written examination of at least seventy points before
seniority points are added. CR 82. The Appellants further argue that it would be
13 impossible to score higher than a 100, contradicting the analysis provided in the
Reporter. CR 92.
B. The Legislature’s intent distinguishes the criteria for the addition of seniority points for police officers and fire fighters.
Should the Court determine it is necessary to look beyond the plain meaning
of the statutory text in determining the Legislative intent, the Court must “assume
that when enacting a statute, the Legislature was aware of the background law and
acted with reference to it.” Bracey, at 103. Effective September 1, 2005, the
Legislature adopted several amendments to the text of TEX. LOC. GOV’T CODE §
143.033 relevant to the controversy in this case. The 2005 relevant amendments are
as follows, with the additions made to the statute indicated with an underline and
deletions by a strikethrough:
(c) Unless a different procedure is adopted under an alternate promotional system as provided by Section 143.035, the grade that must be placed on the eligibility list for each police officer or fire fighter shall be computed by adding the applicant’s points for seniority to the applicant’s grade on the written examination, but for a fire fighter applicant only if the applicant scores a passing grade on the written examination. Each applicant’s grade on the written examination is based on a maximum grade of 100 points and is determined entirely by the correctness of the applicant’s answers to the questions. The passing grade score in a municipality with a population of 1.5 million or more is prescribed by Section 143.108. In a municipality with a population of less than 1.5 million, all police officer applicants who receive a grade of at least 70 points shall be determined to have passed the examination and all fire fighter applicants who receive a grade on the written examination of at least 70 points shall be determined to have passed the examination. If a tie score occurs, the commission shall determine a method to break the tie. 14 CR 38.
It’s clear from the precise wording that was added to the statute the
Legislature’s intent was to distinguish the criteria for the addition of seniority points
for police officers and fire fighters. As discussed above, the first sentence under
subpart (c) describes how the grade shall be calculated for police officers and fire
fighters. The 2005 additional language, “but for a fire fighter applicant only if the
applicant scores a passing grade on the written examination”, is unmistakably only
applicable to fire fighters. The Legislature further distinguished the two professions
later in the second to last sentence in subpart (c) by altering the definition of a
passing grade for each profession. First, the Legislature added “police officer”
before the word “applicants” in the first half of the sentence narrowing the definition
from all applicants to only police officers. Second, the Legislature created different
criteria for fire fighters with the additional language “and all fire fighter applicants
who receive a grade on the written examination of at least 70 points shall be
determined to have passed the examination.” The additional language shows the
intent to create a threshold for fire fighters on their “grade on the written
examination”, but not for police officer applicants.
According to the legislative history for the 2005 Legislative session early
versions of the proposed amendments did not distinguish police officers and fire
fighters, but instead applied to all “applicants”. For example, the March 29, 2005 15 Texas Bill Analysis for Senate Bill 1050 states in relevant part “SECTION 1.
Amends version 143.033(c), Local Government Code, to require the grade that must
be placed on the eligibility list for each police officer or fire fighter…to be computed
by adding the applicant’s points for seniority to the applicant’s grade on the written
examination, but only if the applicant scored a passing grade on the written
examination.” CR 43 (emphasis added). However, The Conference Committee
Report Summary for S.B. 1050 is evidence regarding the Legislature’s final intent
regarding amendments. The report provides a summary between the differences in
early Senate and House versions of the proposed amendments. According to the
report, the Senate bill, which was not adopted, “clarifies that seniority points are
awarded only if a fire fighter or police officer scores a passing grade of 70 or above
on the written examination.” CR 56. However, “The House Committee Substitute
for S.B. 1050 removed police officers from coverage under this legislation.” CR 56
(emphasis added). The final Texas Bill Analysis for Senate Bill 1050 states “The bill
amends Section 143.033(c), Local Government Code, to clarify that seniority points
are awarded only if a fire fighter scores a passing grade of 70 or above on the written
examination.” CR 41 (emphasis added).
As discussed above, the final version of S.B. 1050 that was approved by the
Legislature is significantly different from the earlier proposed versions. If the
Legislature intended for police officer applicants to have a grade of 70 points on the
16 written examination before seniority points are awarded, the Legislature would have
approved earlier versions of the bill that included language for “all applicants” or
specifically included “police officers” in the amended language.
C. The court’s analysis regarding the application of seniority points in City of Lubbock v. Knox has been rendered ineffective by the 2005 amendment to TEX. LOC. GOV’T CODE §143.033.
The Appellants contend that case law supports their position regarding the
interpretation of TEX. LOC. GOV’T CODE §143.033 relying on City of Lubbock v.
Knox, 736 S.W.2d 888 (Tex. App.-Amarillo 1987). In Knox, the court held that an
amendment to Tex. Civ.St. art. 1269m, § 14(D)(2), the predecessor to TEX. LOC.
GOV’T CODE §143.033, required a passing grade on promotional examination to be
scored before a police officer applicant was entitled to have his grade placed on the
eligibility list and seniority points added to his examination grade. Id. at 891.
However, the court’s analysis of art. 1269m, § 14(D)(2) has been rendered
ineffective by the 2005 amendment to the statute providing that only fire fighter
applicants are required to receive a passing grade on the written examination before
seniority points are added to their grade. Prior to the 2005 amendment the statute did
not contain the language discussed above, and did not prescribe different
qualifications for the eligibility list for police officers and fire fighters. However, it
is apparent that the Legislature in 2005 saw fit to spell out precisely the different
grading requirements for police officers and fire fighters. “It is an elemental rule of
17 construction that by amending a statute, the Legislature intended to add to or change
the existing law, and that effect must be given to the amendments.” Knox, at 892;
San Antonio Conserv. Soc., Inc. v. City of San Antonio, 455 S.W.2d 743, 746 (Tex.
1970). The presumption is that the Legislature had a definite purpose in amending
Section 143.033 in 2005 to distinguish police officers and fire fighters. Knox, at 893;
Lacy v. State Banking Board, 118 Tex. 91, 11 S.W.2d 496, 503 (Tex. 1928). If the
Court does not presume the Legislature had a definite purpose, then the Legislature
engaged in a futile action. Knox; State v. School Trustees of Shelby County, 150 Tex.
238, 239 S.W.2d 777, 781 (Tex. 1951). Clearly the Legislature did not engage in a
futile action during the 2005 session.
III. The New Braunfels Civil Service Commission is not a necessary party in order to invoke the court’s jurisdiction (Response to Appellants’ Argument I).
The Appellants contend that Corporal Tovar’s claim for declaratory judgment
is improper because he failed to name the New Braunfels Civil Service Commission
(“the Commission”) as a party. Brief of Appellants, pg. 10.
A. The Proper parties are before this Court.
Appellants’ argument that the Civil Service Commission is a necessary party
is unsupported by any authority. First, the district court has jurisdiction to hear an
appeal from a commission decision regarding promotion eligibility. See Perez v. City
of Laredo, 21 S.W.3d 371, 373 (Tex. App. - San Antonio 2000); Knox, at 890-91.
18 The individual commission members are the appropriate parties in this case, as they
were in Perez. In Perez, a City of Laredo police officer filed suit in district court
challenging the civil service commission’s decision to remove his name from the
eligibility list for promotion to captain because he held the rank of Lieutenant and
Assistant Chief prior to the examination. Id., at 372. The city, Chief of Police, and
the individual civil service commission members were named as defendants in this
case.1 Id. At issue in this case was the application of the two year service
requirement in the next lower position immediately prior to the promotional
examination under TEX. LOC. GOV’T CODE § 143.028. Id. On the initial appeal, the
court held the trial court had jurisdiction to hear the appeal. Id., at 373. Later the
court determined the commission’s interpretation of the statute was incorrect, and
held the officer was eligible for promotion and eligible to take the promotional
examination. Perez v. City of Laredo, 82 S.W.3d 605, (Tex. App. - San Antonio
2002).
Here, Corporal Tovar is requesting similar relief from the court as in Perez.
The commission members have misapplied the law regarding the application of
seniority points, and he is now requesting an order from the court instructing the
1 Contrary to the Appellants assertion that “there are no reported cases where civil service commissioners have been sued in their individual capacity in regard to performing their official duties as a member of the Civil Service Commission.” Brief of Appellants, pg. 13. 19 individual commissioner’s to apply his seniority points and add him to the
promotional eligibility list as required under TEX. LOC. GOV’T CODE § 143.033.
Citing to Parrish v. Phillips, Appellants further contend that the Commission
as a body could not be bound by an order from the trial court if it is not named as a
Defendant. Appellants’ Brief, pg. 14, 401 S.W.2d 347, 349-50 (Tex. Civ. App. –
Houston [1st Dist.] 1996, writ ref’d n.r.e.). The Appellants misinterpret Parrish. In
Parrish, plaintiff surveyors’ brought a class action against defendant engineers
seeking a declaratory judgment in part to determine the validity of certain rules
adopted by Texas State Board of Registration for Public Surveyors (the Board)
naming the individual board members as the defendants. Id., at 347-348. The Court
held that “[a]n adjudication of the power or authority of the Board to adopt the rules
in question, and of the validity of the rules adopted, cannot properly be made in an
action to which the Board is not a party.” Id., at 349.
Here, Corporal Tovar is not challenging the validity of the governing statute,
but rather Appellants’ action or in-action under Chapter 143. Again, Corporal Tovar
asserts that the Appellants violated state law when they refused to apply his seniority
points to his examination score and place him on the eligibility list for promotion in
accordance with statutory authority TEX. LOC. GOV’T CODE §143.033. Corporal
Tovar’s declaratory claims seeking compliance with Section 143.033 falls within the
ultra vires exception to sovereign immunity. See, e.g., Texas Natural Res.
20 Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002) (“Private parties
may seek declaratory relief against state officials who allegedly act without legal or
statutory authority.”); Federal Sign v. Texas Southern University, 951 S.W.2d 401,
404 (Tex. 1997) (“[A]n action to determine or protect a private party’s rights against
a state official who has acted without legal or statutory authority is not a suit against
the State that sovereign immunity bars.”) A claim under the ultra vieres exception
must be brought against the state actors in their official capacity, and the suit “must
not complain of a government officer’s exercise of discretion, but rather must allege,
and ultimately prove, that the officer acted without legal authority or failed to
perform a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372
- 373 (Tex. 2009).
The Appellants’ decision to withhold seniority points from Corporal Tovar’s
written grade was not discretionary and otherwise not lawfully authorized. The
application of seniority points and adding officers to a promotion eligibility list is
ministerial. As discussed above, the statutory text of TEX. LOC. GOV’T CODE §
143.033 clearly provides that seniority points should be added to a police officer’s
grade on the written examination for promotion to determine if his/her name should
be placed on the promotional eligibility list.
21 B. Commission is not a legal entity that can be sue and be sued.
The Appellants’ have not established that the Commission itself is a legal
entity, separate from the City of New Braunfels, that has the capacity to be sued.
The chief executive officer of the City appoints the members of the Commission and
they are removed by the City’s governing body. The City also provides office space.
TEX. LOC. GOV’T CODE §§ 143.006-007. The City’s governing body determines the
salary of the director. TEX. LOC. GOV’T CODE § 143.012(d). In an appeal to district
court from a Commission decision, it is the city that is charged with paying an award
to the officer. TEX. LOC. GOV’T CODE § 143.015(d). Further, the statute recognizes
that the “Commission is established in the municipality.” TEX. LOC. GOV’T CODE §
143.006. The statute does not provided that the Commission can sue and be sued.
See Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 843 (Tex.
2009) (sue and be sued means that the entity has the capacity to sue and be sued in
its own name).
Moreover, as the trial court correctly held, it is rare that a person’s presence
is so indispensable that it deprives the court of jurisdiction to adjudicate between the
parties already joined. App. A, CR 265 (citing Brooks v. Northglen Ass’n., 141
S.W.3d 158, 162 (2004); Mining v. Hays Co. Bail Bond Board, No. 03-05-00448-
CV, Slip op. at 5 (Tex.App.-Austin 2006) (memorandum opin.)).
22 C. Chapter 143 does not mandate the commission the commission be named as a party.
Corporal Tovar was not required to name the Commission as a party in order
to invoke the court’s jurisdiction, because Chapter 143 does not mandate that the
Commission must be named as a defendant in an appeal to district court. In Connor
v. Klevenhagen, the court held that a quasi-judicial party need not be named as a
party to appeal a decision to district court. 726 S.W.2d 205 (Tex.App.-Houston [14th
Dist.] 1987, writ re’d n.re.) In Connor, the plaintiff, a deputy sheriff employed by
the Harris County Sherriff’s Department, was terminated by the Sheriff for various
policy violations. Id. After his appeal to the Harris County Sheriff’s Department
Civil Service Commission was unsuccessful, Deputy Connor appealed the Sheriff’s
decision to district court by naming Sheriff Johnny Klevenhagen as the only
defendant. Id. at 206. The trial court dismissed Mr. Connor’s case for failing to name
the Commission as a party-defendant within the statutory time period. Id. The Court
of Appeals reversed the trial court on the grounds that nothing in the statute required
the Commission to be named a party-defendant. Id. at 207. The Court of Appeals
found that the Commission’s review of Deputy Connor’s termination by the Harris
County Sheriff’s Department was an action of quasi-judicial character. Id. at 207.
As such, the Court would “not inject such a jurisdictional requirement when one is
seeking review of a decision by a commission acting in a quasi-judicial capacity in
the absence of clear legislative language mandating such a requirement.” Id. at 207. 23 Like the relevant civil service statute in Connor, Section 143.015 of the Tex.
Loc. Gov’t Code does not specify who is required to be named as a defendant in
appeal to district court. As in Connor, the New Braunfels Civil Service Commission
is not a necessary party-defendant because nothing in Chapter 143 requires the
Commission to be named as a party to appeal to district court. Nonetheless, “[i]t is
fundamental that a suit against a state official is merely ‘another way of pleading an
action against the entity of which [the official] is an agent.” Tex. A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham, 473 U.S.
159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).
IV. Corporal Tovar has standing (Response to Appellants’ Argument II).
The Appellants assert that Corporal Tovar has not established a justiciable
claim and therefore lacks standing to bring suit in this case. The Texas Uniform
Declaratory Judgment Act gives Texas courts the power to “declare rights, status,
and other legal relations whether or not further relief is or could be claimed.” TEX.
CIV. PRAC. & REM. CODE § 37.003. Declaratory judgment is appropriate relief when
there is a justiciable controversy about the rights and status of the parties, and the
declaration would resolve the controversy. Bonham State Bank v. Beadle, 907
S.W.2d 465, 467 (Tex. 1995); Cobb v. Harrington, 190 S.W.2d 709, 713 (Tex. 1945)
(declaratory-judgment action is “an instrumentality to be wielded in the interest of
24 preventative justice and its scope should be kept wide and liberal, and should not be
hedged about by technicalities.”).
A. A justiciable case in controversy exists.
The Appellants argue that Corporal Tovar lacks standing because he
has no justiciable interest in holding a Sergeant’s position, or a right to be placed on
the promotional list because there was no vacancies in the Sergeant classification at
the time the promotional examination was scheduled, given and scored or when the
lawsuit was filed. Appellants’ Brief, pg. 23. The trial court properly held that “being
on the eligibility list, in and of itself, is a legislatively-created justiciable interest
regardless of the presence or absence of a vacancy for a period of one year after the
date the on which the exam was given.” App. A, CR 264.
The Appellants cite to City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d
788, 790 (Tex. 1951), in support of their argument. CR 86. Counsel for Appellants
made a similar argument relying on Hancock as authority in a previous case before
this Court in City of Round Rock v. Whiteaker, 241 S.W.3d 609, 617 (Tex.App. –
Austin 2007, pet. denied). However, as the trial court points out in this case, “the
Third Court of Appeals clearly stated in 2007 that virtually the very same argument
is ‘derived from a misreading of [Hancock].’” App. A, CR 263; Whiteaker, at 617.
In Hancock, the Chief of the Fire Department of the City of Amarillo recommended
fire Captain Hancock be demoted to driver, and the Civil Service Commission
25 subsequently entered a demotion order. Id. Because the procedures for demotions
before the Civil Service Commission did not provide for an appeal to district court,
Hancock argued that he had an inherent right of appeal to a judicial review of a
decision by an administrative tribunal. Id. The court found that decisions made by
an administrative body “which do not affect vested property rights or otherwise
violate some constitutional provision are valid.” Id.
In Whiteaker this Court further explained that “Hancock does not mean that a
person whose statutory rights are being violated could have no judicial recourse of
any kind, or standing to seek it, unless the statutory right implicates vested property
rights.” Whiteaker, at 625. “Hancock instead stands for the principle that there is no
inherent judicial jurisdiction to entertain an appeal from a civil service commission
except where the agency action violates a constitutional provision (such as due
process, which presupposes the existence of a property interest).” Id.
Unlike Hancock, Corporal Tovar is not seeking relief based on an inherent
right due to violations based on constitutional principles. Corporal Tovar’s appeal is
statutory. Corporal Tovar is not asserting that the Appellants are required to promote
him to Sergeant under Section 143.033. He is merely requesting the Court to order
the Appellants to properly apply the grading procedures and place him on the
eligibility list for promotion to Sergeant for a year as required under the statute.
Chapter 143.033 does not require the existence of a vacancy in the next higher
26 classification before an eligibility list for promotion can be created. Furthermore,
Section 143.036(e) provides a clear procedure for making promotional appointments
when an eligibility list exists or does not exist on the date a vacancy is created:
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.
Additionally, pursuant to Section 143.036(h) “[e]ach 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.” The statute does not mandate the
existence of a vacancy at the time of the test. Waiting to hold a test for promotional
consideration until a vacancy occurs would undermine the benefit of filling positions
quickly and efficiently from an already existing list of qualified candidates.
V. Sovereign Immunity does not bar claims for declaratory or injunctive relief (Response to Appellants’ Argument III).
Appellants contend that they are protected from suit because they have not
waived sovereign immunity in this case. Appellants’ Brief, pg. 27. The Appellants’
primary argument appears to be that Tovar “is attempting to circumvent Defendants’
governmental immunity by characterizing a suit for money damages as a declaratory
judgment action.” Appellants’ Brief, pg. 29. 27 Governmental immunity from suit extends only to claims for money damages
– it does not bar claims for declaratory and injunctive relief, even when joined with
a money damages claim barred by immunity. E.g., Labrado v. County of El Paso,
132 S.W.3d 581, 592-4 (Tex. App. – El Paso 2004, no pet.); Whiteaker, at 634;
Lowell v. City of Baytown, 264 S.W.3d 31, 34-5 (Tex. App. – Houston [1st Dist.]
2007, pet. filed). Corporal Tovar is not seeking retrospective monetary relief.
A. Corporal Tovar is entitled to prospective injunctive remedies.
In Heinrich the Supreme Court determined that “while government immunity
generally bars suits for retrospective money relief, it does not preclude prospective
injunctive remedies in official-capacity suits against government actors who violate
statutory or constitutional provisions.” 284 S.W.3d at 368-369.
Corporal Tovar has met the criteria to fall within the ultra vieres exception.
Corporal Tovar properly named the New Braunfels Civil Service Commission
individual members in their official capacities, and, as discussed above, has proved
they acted without legal authority and failed to perform a purely ministerial act when
they refused to add seniority points to Corporal Tovar’s written test grade as
statutorily required by Section 143.033.
B. A writ of mandamus may be issued to compel Appellants to perform a purely ministerial act (Response to Appellants’ Argument IV).
28 Appellants failed to perform a purely ministerial act as required by TEX. LOC.
GOV’T CODE §143.033. A writ of mandamus may be issued to compel a public
official to perform a ministerial act. Anderson v. City of Seven Points, 806 S.W.2d
791, 793 (Tex. 1991) (“An act is ministerial when the law clearly spells out the duty
to be performed by the official with sufficient certainty that nothing is left to the
exercise of discretion.”) Here, Section 143.033 clearly spells out the duty of the
Appellants to apply seniority points to his written test grade and place him on the
eligibility list for promotion. The Appellants refused to perform this duty. All
elements are met in this cause.
Citing to City of Houston v. Meister, Appellants content that mandamus relief
is not appropriate relief in this case. 882 S.W.2d 29, (Tex. App. – Houston [14th
Dist.] 1994, writ denied). The present case is not factually or legally analogous to
Meister. In Meister, a police officer was indefinitely suspended (terminated) from
employment by the Chief of Police and the officer appealed his termination to the
Civil Service Commission. Id., at 29. However, before the hearing, he filed a writ
of mandamus in district court, complaining of the Commission’s lack of jurisdiction.
Id. The Court held the writ of mandamus was not appropriate because Meister still
had a remedy of an appeal after the hearing before the commission. Id., at 31. Unlike
Meister, Corporal Tovar filed his writ of mandamus after exhausting his
administrative remedies with an appeal before the commission. CR 10. Appellants
29 have not demonstrated how Corporal Tovar’s appeal to district court pursuant to
TEX. LOC. GOV’T CODE § 143.015(a) is disruptive to the proceedings.
C. Corporal Tovar is entitled to injunctive relief (Response to Appellants’ Argument V).
An applicant for injunctive relief must demonstrate the existence of a
wrongful act, imminent harm, irreparable injury, and the absence of an adequate
remedy at law. John Paul Mitchell Systems v. Randall’s Food Markets, Inc., 17
S.W.3d 721, 732 (Tex. App. - Austin 2000, pet. denied), citing Frey v. DeCordova
Bend Estates Owners Ass’n., 632 S.W.2d 877, 881 (Tex. App. - Fort Worth 1982),
aff’d. 647 S.W.2d 246 (Tex. 1983). Whether imminent harm has been demonstrated
is a question for the court, not a fact question for the jury. Operation Rescue-
National v. Planned Parenthood of Houston and Southeast Texas, Inc., 975 S.W.2d
546, 554 (Tex. 1998). Fear or apprehension of the possibility of injury is not
sufficient. Democracy Coalition v. City of Austin, 141 S.W.3d 282, 296 (Tex. App.
- Austin 2004, no pet.), citing Frey v. DeCordova Bend Estates Owners Ass’n., 647
S.W.2d 246, 248 (Tex. 1983). The applicant must present evidence showing that
future use of a complained-of policy will result in imminent harm to others seeking
to exercise their statutory rights in the future. Id., at 296. (Applicants seeking to
enjoin mounted police patrols had burden to show that future use of mounted-patrol
policy by police would result in imminent harm to other citizens seeking to exercise
their free speech rights). 30 If injunctive relief is not granted, Corporal Tovar would suffer an irreparable
injury when the defendants re-administer an examination for placement on the
eligibility list for Sergeant or a Sergeant’s position becomes available within a year
of the test. Pursuant to Section 143.036(g) “[e]ach promotional eligibility list
remains in existence for one year after the date on which the written examination is
given, unless exhausted.” In addition, “the top-ranked candidate on a promotion
eligibility list at the time a vacancy occurs has the ‘primary right’ to be appointed to
fill the vacancy not later than the last day of the sixty-day statutory period in which
the department head is required to fill the vacancy, and failure to timely fill the
vacancy results in the top-ranked candidate’s entitlement to the appointment, as a
matter of law, effective the sixtieth day.” Whiteaker, at 618 – 619. Because Corporal
Tovar has not been properly placed on the eligibility list for promotion to Sergeant,
he has lost eligibility for promotion he is entitled to under Chapter 143. Moreover,
similarly situated police officers seeking their statutory right to be placed on an
eligibility list for promotion will suffer the same irreparable injury if the defendants
are not enjoined from misapplying the statutorily mandated seniority points to
written test scores in the future.
31 CONCLUSION AND PRAYER
Accordingly, Corporal Tovar requests that this Court affirm the decision of
the trial court which denied Appellants’ Plea to the Jurisdiction and render judgment
in his favor declaring as follows:
1. Corporal Tovar is entitled to have 10 seniority points added to his written examination grade from the May 20, 2014 promotional examination; 2. The Appellants failed to comply with the promotion examination grading provisions under Tex. Loc. Govt. Code. §143.033 by failing to: add 10 seniority points to Corporal Tovar’s written examination grade from the May 20, 2014 promotional exam; recognize Corporal Tovar’s grade on the examination from the May 20, 2014 promotional exam is 74 points; and place Corporal Tovar’s name on the eligibility list for promotion to Sergeant; 3. Corporal Tovar recover his attorneys’ fees before the district court and on appeal, remanding to determine the amount of attorneys’ fees, and awarding pre-judgment and post-judgment interest; 4. In the alternative, if certain issues need to be resolved by the trial court, then remanding this case for a decision on any remaining issues including: (1) a mandamus to Appellants to comply with their statutory duties of applying 10 seniority points to Corporal Tovar’s written examination grade and placing Corporal Tovar’s name on the eligibility list for promotion to Sergeant; (2) injunctive relief; and (3) Corporal Tovar’s attorneys’ fees. 5. Such other and further relief to which Corporal Tovar may be justly entitled.
32 Respectfully Submitted,
/s/ Chad R. Hyde Chad R. Hyde Texas Bar No. 24046130 chad.hyde@tmpa.org Randal C. Doubrava Texas Bar No. 0602990 randy.doubrava@tmpa.org Texas Municipal Police Association 6200 La Calma Drive, Ste. 200 Austin, Texas 78752 Tel. (512) 454-8900 Fax (512) 454-8860
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 6605 words, when calculating only those portions to be included as stated in Rule 9.4(i)(1). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
/s/Chad R. Hyde Chad R. Hyde
33 CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties, which are listed below on this 6th day of January 2015, as follows:
By Electronic Service
Bettye Lynn Texas State Bar No. 11540500 LYNN ROSS & GANNAWAY, LLP 306 West Broadway Avenue Fort Worth, Texas 76104 Tel. (817) 332-8504 Fax (817) 332-8548 Lead Attorney for The City of New Braunfels, Texas, Jan Kotylo, in her official capacity, Pat Clifton, in his official capacity, and Fritz Welsch, in his official capacity.