Austin court holds seniority points must be added even to non-passing promotional exams under Civil Service Act

City of New Braunfels et al v. Joseph Tovar, 03-14-00693-CV (Tex. App. – Austin, May 7, 2015)

This is a Civil Service Act interlocutory appeal where the trial court affirmed the denial of the City’s plea to the jurisdiction arising out of a promotional exam dispute.

Tovar took a Sergeant’s exam to create a promotion list. None of the test takers passed the exam with a score of 70% or above so no list was created. He subsequently ascertained that this grade represented only the percentage of his correct answers on the exam, without adjustment. Contending that he was entitled to additional points for seniority that would give him a passing grade (and eligibility for placement on the promotion-eligibility list as the sole candidate), Tovar filed an appeal with the Commission. He asserted Tex. Loc. Gov’t Code § 143.033 states his seniority can count for up to 10 points, but the City asserts that seniority is only added to candidates who have already passed. In essence making seniority a factor only in the relative rankings of already-passing candidates and not in regard to whether an officer passes the exam in the first place. The Commission denied relief so Tovar sued. The City filed a plea to the jurisdiction which the trial court denied.

The Austin Court of Appeals first determined that Tovar was not suing to be promoted to Sergeant, but to be placed on the eligibility list.  Therefore, he has standing even though no open Sergeant position is currently available. The court then determined that Tovars claims fall within the waiver of immunity under §143.015 as it is in substance that the Commission’s decision denying him seniority points should be overturned. The court determined that suing the individual commissioners in their official capacity is the same as suing the commission, so the requirements of §143.015 are met as to proper parties. Suing the individual commissions for ultra-vires claims also properly triggers §143.015. Finally, the court states that it agrees with the merit argument that § 143.033 gives the Commission no discretion in adding seniority points to determine whether someone passes the exam and used the different language used for fire fighters and police officers. The court noted that fire fighters’ seniority only applies to passing scores while the language for police officers is not the same, so it therefore must apply regardless of passage. [Comment: Technically, the last two paragraphs of the opinion address the merits of the case, which is normally improper when addressing a plea to the jurisdiction.]

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Pemberton and Justice Bourland.    The attorneys listed for Tovar are Mr. Randall C. Doubrava and Mr. Chad Hyde.  The attorneys listed for the City defendants are Ms. Bettye Lynn and Ms. Valeria Acevedo.

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