Firemen's and Policemen's Civil Service Com'n v. Kennedy

Decision Date09 November 1973
Docket NumberNo. 17463,17463
CourtTexas Court of Appeals

S. G. Johndroe, Jr., City Atty., and Theodore P. Gorski, Jr., Asst. City Atty., Fort Worth, for appellant .

Trickey & Trickey, and Richard M. Trickey, Fort Worth, for appellee.


MASSEY, Chief Justice.

B. M. Kennedy brought suit, as plaintiff, for an injunction against threatened action by the defendant Commission removing his name as the first of the three on the March 6, 1973, eligibility list for the position of Deputy Police Chief in the Police Department of the City of Fort Worth.

The trial court entered a decree of temporary injunction pending hearing of the case on its merits as for permanent injunction and the Commission appealed.


Reference is made to our opinion in Crain v. Firemen's & Policemen's Civil Service Com'n, 495 S.W.2d 20 (Fort Worth, Tex.Civ.App., 1973, writ ref., n.r.e.). With one important distinction the factual background of instant case is like unto that of Crain.

That important distinction is that, unlike the situation in Crain there had been, in this case, within the five (5) day period subsequent to March 6, 1973, an appeal to the Commission by one of the plaintiff's competitor examinees. Upon regrading of that examination, pursuant to such appeal, there resulted a change in the relative standing of the examinees as initially posted. Such competitor was third in rank on the initial eligibility list but by the ruling on his appeal the Commission made him number one on the revised list. Plaintiff had been number one on the initial list, and was number two on the revised list.

The appeal to the Civil Service Commission was taken pursuant to the provisions of Vernon's Ann.Tex.Civ.St., Art. 1269m, 'Firemen's and Policemen's Civil Service in cities over 10,000', at its Section 14.

In Crain, no examinee at the competitive examination to establish an eligibility list for the position of District Fire Chief in the Fire Department of the City of Fort Worth had filed an appeal to the Commission within the requisite five (5) day period. Mr. Crain, having been placed first on the initial eligibility list, was by this Court held to have become possessed an equitable property right in position number one on such list upon the expiration of five days from publication of such initial list, protection of that right being his entitlement by instituting injunction proceedings.

Implied, though not stated, was the fact that Crain would not have enjoyed any equitable property right in such position on the eligibility list at the end of such five (5) day period if another examinee had filed an appeal under Section 14 of Art. 1269m. To have so held in Crain would have constituted dicta. In the instant case the contrary is true.

Our holding here is that no equitable property right accrued to any examinee through the initial posting of the eligibility list of March 6, 1973, because one of them filed an appeal within the ensuing five (5) day period. By reason of such appeal no property right of any kind could vest in any examinee until the appeal taken by him who deemed himself aggrieved had received a determination by the Civil Service Commission and in consequence the initial list confirmed or another eligibility list established.

By reason of the appeal of plaintiff's competitor the Commission, finding such competitor's complaint justified and valid, struck certain questions (and their answers) from the examination record. On regrade after such deletion it published a new eligibility list wherein plaintiff...

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2 cases
  • Firemen's and Policemen's Civil Service Com'n of Fort Worth v. Kennedy, B-4401
    • United States
    • Supreme Court of Texas
    • September 24, 1974
    ...WALKER, Justice. This is an appeal from an order of the trial court granting a temporary injunction. The Court of Civil Appeals affirmed. 502 S.W.2d 559. We reverse the judgments below and dismiss the cause in so far as it relates to a temporary injunction, because in our opinion the trial ......
  • Firemen's & Policemen's Civ. Serv. Com'n v. Williams
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • January 24, 1975 Firemen's & Policemen's Civil Serv. Com'n v. Kennedy, 514 S.W.2d 237 (Tex.Sup., 1974) reversing this Court (opinion Tex.Civ.App., at 502 S.W.2d 559) does not demonstrate any impropriety in our holding in the instant In Kennedy there had been a publication, by posting, of a Civil Service ......

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