Firemen's and Policemen's Civil Service Com'n of Fort Worth v. Kennedy, B-4401

Citation514 S.W.2d 237
Decision Date24 September 1974
Docket NumberNo. B-4401,B-4401
CourtSupreme Court of Texas

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

Trickey & Trickey, Richard M. Trickey, Fort Worth, for respondent.

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 court had no jurisdiction of the main case out of which the application for a temporary injunction grew. 1

The main case is an attempted appeal from the action of the Firemen's and Policemen's Civil Service Commission of the City of Fort Worth in ordering its secretary: (1) to regrade the answer sheets submitted during a promotional examination for the office of deputy police chief; (2) to post the revised scores as determined thereby. On March 6, 1973, the commission held a promotional examination for deputy police chief as required by Section 14 of Art. 1269m, Vernon's Ann.Civ.St. The examination was taken by a number of qualified applicants, including Capt. B. M. Kennedy, respondent, and Capt. H. L. Clark. Immediately after the examination was completed, the answer sheets were graded and an eligibility list was prepared on the basis of the examination scores combined with points for each applicant's seniority and credit for his two most recent semiannual efficiency reports. On this eligibility list, which was posted March 7, Capt. Kennedy was No. 1 with a score of 90.49 and Capt. Clark was No. 3 with a score of 89.37.

On March 8, which was within the five days allowed by the statute, Capt. Clark filed an appeal with the commission in which he complained of 13 questions. The entire examination consisted of 100 multiple-choice questions, and each correct answer counted one point. The hearing on the appeal was held by the commission on March 26, and at that time Capt. Clark withdrew his objections to one question. The commission concluded that through clerical error the answers to four questions were incorrectly listed on the grading key, that two questions were invalid because not based on reference material made available to the examinees, that three questions were invalid because they were vague, ambiguous and contradictory, and that the remaining three challenged questions were valid. By order dated March 29 in which these findings were recited, the commission directed its secretary to regrade all answer sheets, using the correct answer key and considering only answers to valid questions, and to post revised scores based upon the answers to questions deemed valid by the commission. This order was carried out promptly, and a revised eligibility was posted on which Capt. Clark was No. 1 with a score of 98.73 and Capt. Kennedy was No. 2 with a score of 97.71.

On April 2 Capt. Kennedy protested the commission's order because of the failure to include the answers to two questions the commission had concluded were so vague, ambiguous and contradictory that they should be disregarded in computing the examination grades. After a further hearing held on April 23, the commission reaffirmed its determination that the two questions were invalid and ordered that the revised scores remain as posted pursuant to the order of March 29. Capt. Kennedy then instituted the present suit against the commission and Capt. Clark, praying for temporary and permanent injunctions restraining the commission from regrading the examination without considering the answers to the two questions and from certifying to the head of the department the eligibility list based on the revised scores. As previously indicated, the trial court granted a temporary injunction and the Court of Civil Appeals affirmed.

Since the statute does not provide for judicial review of the commission's action in ordering, on appeal by an examinee, a promotional examination to be regraded and an eligibility list revised accordingly, the commission has insisted from the beginning that the district court had no jurisdiction to entertain the suit. In rejecting this contention, the Court of Civil Appeals reasoned from our decision in Fire Dept. of City of Ft. Worth v. City of Ft. Worth, 147 Tex. 505, 217 S.W.2d 664, that any act of the commission in the exercise of its statutory power and responsibility 'must be exercised reasonably and according to law and can in no sense be regarded as a matter of discretion beyond judicial review.' This is an overly broad application of the opinion and holding in the cited case. The question there was whether Section 18 of Art. 1269m, which authorized an appeal to the district court from an order of suspension or dismissal, violated our Constitution by conferring legislative and executive power...

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