INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 936, еt al., Petitioners,
v.
R. Marvin TOWNSEND, City Manager of the City of Corpus Christi, et al., Respondents.
Supreme Court of Texas.
Edwards & Perry, Russell E. McMаins and David L. Perry, Corpus Christi, for petitioners.
J. Bruce Aycock, City Atty., James R. Bray, Jr., Asst. City Atty., Corpus Christi, for respondents.
PER CURIAM.
International Association of Firefighters, Local Union No. 936 and two of its members, Jim Sauceda and J. D. Lopez, sued to require the City Manager and the Fire Chief of Corpus Christi to promote Sauceda and Lopez to the rank of fire captain. The trial court granted the relief. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment dissolving the order. We reverse the judgment of the Court of Civil Appeals and render judgment for petitioners.
On May 17, 1978, an examination was given to ten pеrsons for the position of fire captain in the Corpus Christi Fire Department. Only three passed the test, and their names were posted on the promotional eligibility rostеr in the following rank order: (1) R. C. Garza, (2) Jim Sauceda, and (3) J. D. Lopez. At the time of the examinаtion there were nine authorized vacancies for fire captain. The longеst-standing vacancy occurred in December, 1977, and the next oldest vacancies occurred on February 2, 1978 and February 4, 1978.
On May 22, 1978, the Fire Chief promoted Garza to the fire captain position which had been vacant since December, 1977. The Fire Chiеf did not request the remaining two names, Lopez and Sauceda, be submitted to him for promotion. The Chief contends his action was lawful because of a local rule оf the Corpus Christi Civil Service Commission. That rule provides:
"In cases where less than three (3) names are available for certification, the Chief or Head of the Fire or Pоlice Departments may at his discretion, request that less than three (3) names be submitted by the Commission from the current eligibility list."
*563 By not requesting the two names the Fire Chief did not pass over Lоpez and Sauceda for promotion; he merely failed to consider their credentials. Thereafter, Lopez and Sauceda remained on the eligibility rostеr until August 16, 1978, when the new fire captain examination was given. Other fire captain vacancies have been filled since the appointment of Garza from the August 16, 1978 eligibility roster.
The Firemen's and Policemen's Civil Service Law, Tex.Rev.Civ.Stat.Ann. art. 1269m[1], provides, in pertinent part:
"§ 8: All vacancies shall be filled by permanent appointment from eligibility lists furnished by the Commission within ninety (90) days after such vaсancy occurs.
* * * * * *
§ 14E: Upon written request by the Heads of the Departments for a pеrson to fill a vacancy in any classification, the Commission shall certify to the Heаd of the Department the three (3) names having the highest grades on such eligibility list for such clаssification for the vacancy requested to be filled, and the Head of such Department shall appoint the person having the highest grade, except where suсh Head of the Department shall have a valid reason for not appointing such highest name, and in such cases he shall, before appointment, file his reasons in writing, for rejection of the higher name or names, with the Commission, which reasons shall be valid аnd subject to review by the Commission upon the application of such rejected person."
In Duckett v. City of Houston,
The decision of the Court of Civil Appeals conflicts with Duckett v. City of Houston, supra. We grant petitioners' writ of error and, without hearing oral argument, reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial cоurt. Tex.R.Civ.P. 483.
NOTES
Notes
[1] Effective September 1, 1979, art. 1269m § 14 E was amended to include the following: "If fewer than three (3) names remain on the eligibility list, all the names must be submitted to the Head of the Department ..."