City of New Braunfels Jan Kotylo, in Her Official Capacity Pat Clifton, in His Official Capacity And Fritz Welsch, in His Official Capacity v. Joseph Tovar

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

ATTORNEYS FOR APPELLEE

JOSEPH TOVAR

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.

/s/Chad R. Hyde

Chad R. Hyde

34