McLeod v. City of San Antonio

OPINION BUTTS, Justice. This is an appeal from a declaratory judgment in which the trial court ruled that appellant, Alexander McLeod, take nothing in his suit to set aside a San Antonio city ordinance as void. The ordinance in question, number 58293, created the nonclassified, civilian position of fire protection engineer thereby abolishing the then-vacant fire lieutenant’s position of “plans checker” in the San Antonio Fire Department. Prior to the enactment of the ordinance, the fire department had two plans checkers, a captain and lieutenant, who were responsible for reviewing and evaluating construction plans of commercial buildings to determine compliance with the fire code. The record indicates the fire department required the specialized services of a fire protection engineer, but funding was unavailable. To alleviate this deficiency, the San Antonio City Council abolished the vacant lieutenant’s position of plans checker and created the non-uniformed position of fire protection engineer. The ordinance specifies the duties to be performed by the civilian fire protection engineer: reviewing, evaluating and approving building plans, specifications, and fire protection requirements, providing technical advice, and recommending structural designs and materials, equipment or methods to alleviate conditions conducive to fires. I.O. Martinez, chief of the fire department, testified that the engineer, in addition, would perform technical tasks which a lieutenant was not qualified to perform. The trial court made the following pertinent findings of fact and conclusions of law: FINDINGS OF FACT * * * * * * 4. The abolished lieutenant position was vacant and no longer needed. [281] 5. The fire protection engineer will perform duties which are beyond the capabilities of a firefighter because he will be a professional engineer trained in fire protection. 6. The public will be better served with a professional fire protection engineer on staff. 7. There will be improved economy and increased efficiency with the creation of the position of Fire Protection Engineer and the abolishment of the lieutenant position. * * * * * * CONCLUSIONS OF LAW ****** 2. The City of San Antonio acted in good faith in abolishing a lieutenant’s position with the enactment of Ordinance No. 58293. It is undisputed that appellant was the highest eligible candidate for the vacant lieutenant’s position and would have been entitled to a promotion to that position within sixty (60) days after a vacancy occurred. TEX.REV.CIV.STAT.ANN. art. 1269m, § 8A(e) (Vernon Supp.1985). Such a vacancy was created on February 18, 1984 when one of the two plans checkers, Lt. Ursh, was promoted. However, enactment of the ordinance abolished that position on February 16, 1984, to be effective ten days later. In points of error one through four, appellant complains the trial court erred in holding the City of San Antonio acted in good faith in abolishing a lieutenant’s position of plans checker. Clearly, the San Antonio City Council had the right to abolish the lieutenant’s position provided it did so in good faith and by a duly enacted ordinance. Kiel v. City of Houston, 558 S.W.2d 69, 72 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.); Burkhart v. Moore, 580 S.W.2d 108, 110 (Tex.Civ.App.—Eastland 1979, no writ); Michna v. City of Houston, 521 S.W.2d 331 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). However, the City had the burden of establishing it acted in good faith. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960). To sustain its burden, the City must prove the ordinance will promote efficiency and economy. City of San Antonio v. Wallace, supra at 158; Burkhart v. Moore, supra at 110; Kiel v. City of Houston, supra at 72. The City must also prove the lieutenant’s position is unnecessary and that the ordinance abolishing the position is in the best interests of the city. Kiel v. City of Houston, supra at 72; Welch v. Overton, 416 S.W.2d 879 (Tex.Civ.App.—Texarkana 1967, writ ref’d n.r.e.). In determining whether the abolished position is unnecessary, the court must ask whether the duties of the abolished position were assigned to another person or position. Burkhart v. Moore, supra at 110; see, 87 A.L.R.3d 1165, 1209 (1978 and Supp.1984). We hold the City sustained its burden of proving good faith. There is ample evidence to support the trial court’s findings that increased efficiency and economy will result from the ordinance; that abolishing the lieutenant's position is in the best interests of the City; and that the abolished position is not necessary. That the duties of the lieutenant plans checker were assigned to the fire protection engineer is not determinative. The record indicated the fire protection engineer will be better qualified to perform duties encompassing those of a plans checker and, in addition, will be responsible for more specialized duties as well. Appellant’s points of error one through four are overruled. Point of error five addresses the trial court’s denial of mandamus to compel the fire chief to promote appellant to the position of lieutenant. We note that TEX. CONST, art. 5 § 8 limits the district court’s power to issue the writ of mandamus to the necessary one of enforcing its jurisdiction. We need not decide this point, however, because of our disposition of the case. The judgment is affirmed.