368 S.W.2d 151 | Tex. App. | 1963
Lead Opinion
In 1961 the City of Sweetwater enacted an ordinance which provided for the discharge of all employees when they reached the age of 65 years. Mr. Geron, a city policeman, reached that age and was dis
In 1948 the City adopted the provisions of the Firemen’s and Policemen’s Civil Service Act as provided for in Section 27(a) of Article 1269m. Geron was then a policeman in said City and by virtue of Article 1269m became a classified employee of the police department under civil service. Ger-on was removed in July, 1961, as an employee of the City solely because of the adoption of a policy by the City of discharging all employees over 65 years of age. No charge of violation of civil service rules was made. In Section 5 of Article 1269m there is a provision that the Civil Service Commission shall prescribe what will constitute cause for removal or suspension but that no such rule shall be valid unless it involves one of certain stated grounds. None of the listed permissible grounds for removal or suspension was charged against Geron. After his discharge Geron filed a petition with the local Civil Service Commission asking for reinstatement. It refused to consider his complaint. The permissible grounds for discharge do not include age.
Section 16 of Article 1269m provides that the Chief of Police shall have power to suspend indefinitely any employee under his jurisdiction for violation of the civil service rules, but that the Chief shall, within forty-eight hours, file a written statement with the Commission giving the reasons for such suspension and furnish a copy to the discharged employee. It provides that said order of suspension shall inform the discharged employee that he has ten days to file a written appeal with the Commission. It provides that the Commission shall hold a hearing and render a decision within thirty days. It further provides that no employee shall be discharged by the Commission except for violation of the civil service rules and then only upon a finding by the Commission of the truth of specific charges which have been filed against him. One of the declared purposes of the civil service statute is to secure to the employees of the police department permanent tenure of employment. Section 16a. Section 17 provides that a discharged policeman may appeal to the Commission by filing a statement denying the truth' of the charge against him or taking exception to the legal sufficiency of the charge and asking for a hearing by the Commission. Section 18 provides that in the event a policeman is dissatisfied with the decision of the Commission he may, within ten days after rendition of its decision, file a petition in the District Court asking that the order of suspension be set aside and that he be reinstated.
To dismiss appellant the City was required to charge him with one of the grounds for removal stated in the statute. The fact that Geron was past 65 years of age did not bring him within the reasons given in the civil service statutes for which he might be discharged. The City was also required to follow the procedure prescribed by the civil service law heretofore mentioned. It did not do so. We believe that the City was restricted to the provisions of that law and its procedures in discharging appellant. We think the appellant should have been ordered reinstated and that he should have recovered his salary.
As illustrative of our conclusion that the City was restricted to the reasons and procedure provided for in the civil service statutes in discharging appellant, we call attention to the very recent decision of our Supreme Court in Skates v. City of Paris, Tex., 363 S.W.2d 425. There, the City in discharging a policeman for incompetency attempted to follow the procedure provided by the civil service statute. The order of dismissal by the Commission did not
Full performance of all conditions required by civil service regulations is essential to jurisdiction of the removing body over dismissal of a municipal officer. The effect of adoption of the civil service statute is to establish standards of employment, rules for the discharge of policemen and to create permanence of tenure. Pro
The judgment is reversed and the cause is remanded with directions to render judgment reinstating appellant and awarding him the amount of his salary during the period of his illegal suspension.
Rehearing
ON MOTION FOR HEARING.
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.