City of Harlingen v. Eddie Alvarez ( 2006 )

NUMBER 13-03-00169-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CITY OF HARLINGEN, Appellant,

v.

EDDIE ALVAREZ, Appellee.

On appeal from the 357th District Court of Cameron County, Texas. OPINION ON MOTION FOR REHEARING

Before Justices Hinojosa, Yañez, and Castillo Opinion by Justice Hinojosa

Appellee, Eddie Alvarez, has filed a motion for rehearing. After reviewing the motion, the response filed by appellant, the City of Harlingen, and our prior opinion, we conclude that the motion for rehearing should be overruled.

Appellee presents one new argument in his motion for rehearing. Appellee argues that (1) the recent 2005 amendment to section 143.036(a) of the Texas Local Government Code provides that an indefinite suspension creates a vacancy, and (2) the amendment merely clarified existing law. See Act of May 27, 2005, 79th Leg., ch. 869, § 4, 2005 Tex. Gen. Laws 2950, 2952 (current version at Tex. Loc. Gov't Code Ann. § 143.036(a) (Vernon Supp. 2005)). The amended version of article 143.036(a) provides,

A vacancy in a fire fighter position described by this subsection occurs on the date the position is vacated by: (1) resignation; (2) retirement; (3) death; (4) promotion; or (5) issuance of an indefinite suspension in accordance with Section 143.052(b).

Tex. Loc. Gov't Code Ann. § 143.036(a). Appellee argues that the 2005 amendments to chapter 143 of the local government code were clarifications of existing law, rather than changes. In support of his argument, appellee cites the bill analyses of Senate Bill No. 1050. See Senate Comm. on Intergovt'l Rel., Bill Analysis, Tex. S.B. 1050, 79th Leg., R.S. (2005); see also House Comm. on Urban Affairs, Bill Analysis, Tex. S.B. 1050, 79th Leg., R.S. (2005). The senate analysis states, in relevant part, as follows:

C.S.S.B. 1050 clarifies that the award of seniority points after a person takes a promotional examination is made if the person scores a 70 or above, and defines that a vacancy occurs in a non-entry position on the date a person resigns, retires, dies, or is promoted to a higher classification or is indefinitely suspended. Finally, C.S.S.B. 1050 clarifies the appeal options available to a fire fighter or police officer, when appealing a promotional passover.

Senate Comm. on Intergovt'l Rel., Bill Analysis, Tex. S.B. 1050. Similarly, the house analysis provides, in relevant, as follows:

S.B. 2173 [sic] will clarify the question of the award of seniority points after a fire fighter takes a promotional examination, establishes that a vacancy occurs in a non-entry level position on the date the person resigns, retires, dies, is promoted to a higher classification or is indefinitely suspended, makes clear the appeal options that a fire fighter has when appealing a promotional passover, and authorizes a city which has adopted state civil service under Chapter 143, Government Code to make a one time adjustment to the employment status of employees in fire departments.

House Comm. on Urban Affairs, Bill Analysis, Tex. S.B. 1050.

The language in both analyses indicates that S.B. 1050 clarifies the (1) award of seniority points and (2) appeal options available when appealing a promotional passover. However, the language in both analyses further indicates that S.B. 1050 defines or establishes when a vacancy occurs. Neither analysis indicates that S.B. 1050 is merely clarifying a prior definition of vacancy, nor could it, because the term "vacancy" was not statutorily defined prior to the amendment.

Furthermore, section 6(b) of S.B. 1050 provides, "The changes in law made by this Act to Sections 143.036 and 143.057, Local Government Code, apply only in relation to a promotional bypass that occurs on or after the effective date of this Act." Act of May 27, 2005, 79th Leg., ch. 869, § 4, sec. 6, 2005 Tex. Gen. Laws 2950, 2952 (emphasis added). Section 7 of S.B. 1050 provides, "This Act takes effect September 1, 2005." See Act of May 27, 2005, 79th Leg., ch. 869, § 4, sec. 7, 2005 Tex. Gen. Laws 2950, 2952. The language of S.B. 1050 clearly shows the legislature's intent that the amendment apply only to promotions occurring after September 1, 2005.

Appellee's motion for rehearing is overruled.

   FEDERICO G. HINOJOSA

Justice

Concurring and Dissenting Opinion by Justice Castillo.

Opinion on Motion for Rehearing delivered and filed

this the 16th day of November, 2006.