Panel majority says fire department's termination of employees for failing to obtain EMT
certification does not involve disciplinary matter to which procedural civil service protections
apply (even though employment agreement referenced disciplinary consequences for failing
to meet those conditions).

Jackson v. City of Texas City (Tex.App.- Houston [1st Dist.] July 24, 2008)(Keyes)
(
public employment, CBA,  fire department, dismissal for failure to obtain EMT certification,
declaratory and injunctive relief, civil service commission)

Holding: Failure to qualify for state certification as an EMT was not a specific act of misconduct that
violated a rule or order -- it was a failure to meet the contractually agreed upon conditions of
employment as a fire fighter.
We conclude that Jackson and Nuñez have failed to state a justiciable claim for relief because the Act
[found in Chapter 143 of the Texas Local Government Code. See Tex. Loc. Gov't Code Ann. §§
143.001-.363 (Vernon 2008)].does not apply to their terminations. Rather, their petition affirmatively
negates the existence of jurisdiction. Therefore, the trial court did not err in granting Texas City's
plea to the jurisdiction.

AFFIRM TC JUDGMENT: Opinion by Justice Evelyn Keyes  
Before Justices Taft, Keyes and Alcala
01-07-00026-CV Anthony Jackson and James Nunez v. City of Texas City and Debbie Lesco, Texas
City Civil Service Director
Appeal from 212th District Court of Galveston County
Trial Court
Judge: Hon. Susan Elizabeth Criss  
Dissenting Opinion by Justice Alcala   

O P I N I O N

Appellants Anthony R. Jackson and James Nuñez filed suit against the City of Texas City and Debbie
Lesco, in her capacity as city civil service director, (collectively, Texas City) seeking declaratory and
injunctive relief related to their dismissal from the fire department. Jackson and Nuñez alleged that
Texas City violated their rights to appeal their dismissals under the Civil Service Act (the "Act"). In
three issues, Jackson and Nuñez argue that the trial court erred in granting Texas City's plea to the
jurisdiction.

We affirm.

Background

Jackson and Nuñez began working for the Texas City Fire Department (TCFD) in June 2001 and
October 2001, respectively. Both Jackson and Nuñez signed a document entitled "Conditions of
Employment," which was adopted under the terms of a collective bargaining agreement between
TCFD and Texas City. The document stated, in part:

It is understood that each Civil Service employee hired after January 1, 2000, will be required to be
EMT (Emergency Medical Technician) certified at the basic level or will be detailed to attend EMT
(Emergency Medical Technician) training to become certified at the basic level. It is understood that
each Civil Service employee hired after January 1, 2000, may be required to be EMT (Emergency
Medical Technician) certified at the paramedic level or will be detailed to attend EMT (Emergency
Medical Technician) training to become certified at the paramedic level at some time during their
employment with the department. . . . Upon receiving State Certification, each employee is to comply
with and fulfill all existing and future requirements of the Texas Department of Health to maintain their
level of certification. Furthermore[,] each employee with a basic EMT or paramedic level of
certification is to comply with and fulfill all existing and future requirements of the Texas City Fire
Department and/or Medical Director.

Following this paragraph, the document stated, "It is understood that failure to satisfactorily complete
the EMT Basic or Paramedic training and qualify for State Certification and maintain certification at a
level established by the department constitutes cause for disciplinary action up to and including
termination of the employee." (original in boldface type).

Jackson and Nuñez successfully completed their probationary period and became non-probationary
employees of TCFD in 2002. In 2005, the TCFD fire chief assigned both Jackson and Nuñez to
attend EMT training and to become certified as EMTs at the paramedic level. Jackson and Nuñez
attended the required training classes, but neither was able to pass the training class or sit for the
certification exam. In 2006, the fire chief terminated Jackson's and Nuñez's employment with the
TCFD via letter. (1) Despite the fact that the fire chief's letters did not inform them of a right to
appeal, both Jackson and Nuñez attempted to appeal their terminations with the Texas City Civil
Service Commission, requesting that their appeals be heard by an independent third-party hearing
examiner pursuant to section 143.057 of the Act. (2) The civil service director notified both men by
letter that they were not eligible to appeal their discharges to a hearing examiner because their
discharges had been labeled as non-disciplinary. (3) Neither the civil service commission nor a
hearing examiner issued any decision with regard to Jackson's and Nuñez's appeals.

Jackson and Nuñez filed suit on August 11, 2006, requesting that the trial court issue a declaratory
judgment that Texas City had violated their rights under the Act and that it enjoin Texas City from
discharging them without utilizing the procedures mandated in the Act. Jackson and Nuñez also
requested a writ of mandamus directing Texas City to comply immediately with the Act by processing
their appeals before a third party hearing examiner. Texas City filed a plea to the jurisdiction, and the
trial court held a hearing on November 15, 2006.

In its motion to dismiss for lack of jurisdiction, Texas City made three arguments. First, Texas City
argued that Jackson and Nuñez failed to state a justiciable claim because the provisions of the Act
did not apply to their discharges. Second, Texas City argued that Jackson's and Nuñez's claims were
disguised claims for money damages for which Texas City's governmental immunity had not been
waived. Third, Texas City argued that the trial court did not have jurisdiction over Jackson's and
Nuñez's claims because they failed to file suit within ten days after the civil service director refused to
accept and process their appeals. On December 4, 2006, the trial court issued an order granting
Texas City's plea to the jurisdiction and dismissing Jackson's and Nuñez's case. Jackson and Nuñez
appeal from this order.

Jurisdiction

A. Standard of Review

A plea to the jurisdiction is a dilatory plea, and its purpose is "to defeat a cause of action without
regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000). A plea to the jurisdiction challenges the trial court's authority to determine the
subject matter of the pleaded cause of action. County of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002). A court always has jurisdiction to determine its jurisdiction. Dolenz v. Vail, 200 S.W.3d
338, 341 (Tex. App.--Dallas 2006, no pet.) (citing Camacho v. Samaniego, 831 S.W.2d 804, 809
(Tex. 1992)).

We review de novo a trial court's ruling on a plea to the jurisdiction because subject matter
jurisdiction is a question of law. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849,
855 (Tex. 2002). In determining whether jurisdiction exists, rather than looking at the claim's merits,
we look to the allegations in the pleadings, accept them as true, and construe them in favor of the
pleader. Cantu v. Perales, 97 S.W.3d 861, 862-63 (Tex. App.--Corpus Christi 2003, no pet.) (citing
Brown, 80 S.W.3d at 555). We may also consider evidence necessary to resolve the jurisdictional
issues raised. Id. (citing Brown, 80 S.W.3d at 555; Blue, 34 S.W.3d at 555). An appellant must attack
all independent grounds that support the trial court's ruling. Britton v. Texas Dep't of Criminal Justice,
95 S.W.3d 676, 681 (Tex. App.--Houston [1st Dist.] 2002, no pet.). If the pleading affirmatively
negates the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing
the plaintiff an opportunity to amend. Cantu, 97 S.W.3d at 863 (citing Brown, 80 S.W.3d at 555).

B. Application of Act to Jackson's and Nuñez's Terminations

The threshold question necessary to determine the trial court's jurisdiction over this case is whether
Jackson's and Nuñez's terminations for failure to maintain the required level of EMT certification were
subject to the suspension and termination procedures in the Act, found in Chapter 143 of the Texas
Local Government Code. See Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 2008).

1. Termination provisions of TCFD's and Texas City's collective bargaining agreement and
the Act

Jackson and Nuñez argue that their terminations were disciplinary suspensions subject to the
procedures outlined in sections 143.052, 143.053, and 143.057 of the Act and that they were entitled
by the Act to appeal their suspensions to the Civil Service Commission or to an independent hearing
examiner. Texas City, however, argues that Jackson and Nuñez were terminated for failure to fulfill
the conditions of their employment with TCFD pursuant to the collective bargaining agreement
between TCFD and Texas City, and that their terminations were, therefore, not subject to the Act's
procedures.

The Texas Local Government Code grants cities and labor representatives the authority to modify
civil service requirements by collective bargaining agreement. See id. § 174.006 (Vernon 2008).
Section 174.006 also states that the Act's provisions prevail over a collective bargaining agreement
"unless the collective bargaining contract specifically provides otherwise." Id. § 174.006(a).

Texas City and TCFD's labor representatives entered into a collective bargaining agreement that
gave Texas City the authority "to determine and establish pre-employment employee qualifications,
standards, and/or terms and conditions of employment." Jackson and Nuñez signed the "Conditions
of Employment" agreement as adopted by Texas City pursuant to the collective bargaining
agreement. The document they signed set out the conditions of their employment with TCFD,
including the requirement that they be certified as EMTs, and it provided for "disciplinary action" if a
non-probationary employee violated the conditions.

The Conditions of Employment agreement expressly provides that failure of an employee "to
satisfactorily complete the EMT Basic or Paramedic training and qualify for State Certification and
maintain certification at a level established by the department constitutes cause for disciplinary action
up to and including termination of the employee." Nothing in the Conditions of Employment signed by
Jackson and Nuñez made any statement that discharges for failure to meet the conditions of
employment would be subject to the Act's procedures. Jackson and Nuñez were terminated in
accordance with the terms of the Conditions of Employment, which provided for disciplinary action up
to and including termination, but did not specifically refer to disciplinary action under the Act.

Jackson and Nuñez argue that the Conditions of Employment agreement adopted pursuant to the
collective bargaining agreement specifically states that failure to satisfactorily complete EMT training
and maintain certification "constitutes cause for disciplinary action" and that the terms of the
agreement do not specifically provide that they prevail over the Act's provisions governing the
suspension and termination of fire fighters. See id. § 174.006(a) (Vernon 2008). Therefore, they
argue, the Act's provisions do prevail over the provisions in the collective bargaining agreement.
They contend that, rather than classifying their dismissals as "non-disciplinary," the fire chief should
have classified their failure to attain the proper EMT certification as "incompetence" or "shirking of
their duty," thereby subjecting them to disciplinary suspensions under subsection 143.051(3) or
143.051(11) of the Act. They also argue that the Conditions of Employment agreements should be
considered a special order of the City of Texas City, and, therefore, their failure to attain the required
level of EMT certification violated subsection 143.051(12) of the Civil Service Agreement.

Section 143.052 of the Act, entitled "Disciplinary Suspensions," provides, "The head of the fire or
police department may suspend a fire fighter or police officer under the department head's
supervision or jurisdiction for the violation of a civil service rule." Id. § 143.052(b) (Vernon 2008).
Section 143.052 also provides the procedure a department head must follow when making such a
suspension, and it states, "The copy of the written statement must inform the suspended fire fighter
or police officer that if the person wants to appeal to the commission, the person must file a written
appeal with the commission within 10 days after the date the person receives the copy of the
statement." Id. § 143.052(d).

Section 143.051 of the Act lists the grounds for disciplinary removal that are covered by the Act's
procedural requirements. Id. § 143.051 (Vernon 2008). Section 143.051 states:

A commission rule prescribing cause for removal or suspension of a fire fighter or police officer is not
valid unless it involves one or more of the following grounds:

(1) conviction of a felony or other crime involving moral turpitude;

(2) violations of a municipal charter provision;

(3) acts of incompetency;

(4) neglect of duty;

(5) discourtesy to the public or to a fellow employee while the fire fighter or police officer is in the line
of duty;

(6) acts showing lack of good moral character;

(7) drinking intoxicants while on duty or intoxication while off duty;

(8) conduct prejudicial to good order;

(9) refusal or neglect to pay just debts;

(10) absence without leave;

(11) shirking duty or cowardice at fires, if applicable; or

(12) violation of an applicable fire or police department rule or special order.

Id.

The Texas Supreme Court has held that the Act applies only to the types of terminations specifically
enumerated in the Act, not to all types of terminations. See City of Sweetwater v. Geron, 380 S.W.2d
550, 553 (Tex. 1964) ("While the disciplinary causes for discharge set out in said section are
exclusive in so far as the Civil Service Commission has power to dismiss, the Act does not prevent
the City from legislating in other fields which may cause the dismissal of employees."). The question,
therefore, is whether Jackson's and Nuñez's terminations were within the scope of the Act or whether
termination under the terms of the Conditions of Employment adopted pursuant to the collective
bargaining agreement is outside the scope of the Act.

2. Applicability of the Civil Service Act to Jackson's and Nuñez's terminations

We disagree with Jackson's and Nuñez's argument that the Conditions of Employment agreement
required Texas City to follow the procedural provisions of the Act. Section 174.006 of the Texas
Local Government Code clearly gave Texas City and TCFD the authority to modify civil service
requirements by a collective bargaining agreement. See Tex. Loc. Gov't Code Ann. § 174.006. Under
section 174.006, the Act's provisions do not prevail over collective bargaining agreements when the
agreement "specifically provides otherwise." Id. § 174.006(a). Here, it did. Texas City clearly did not
intend for termination for failure to attain the proper EMT certification to be added to the list of
disciplinary acts in section 143.051 of the Act. Furthermore, Texas courts have upheld the right of
cities to terminate employees for reasons that fall outside the scope of the Act. See Geron, 380
S.W.2d at 553; see also Grote v. City of Mesquite, No. 05-98-01367-CV, 2001 WL 180260, at *3
(Tex. App.--Dallas Feb. 26, 2001, pet. denied) (not designated for publication). We hold that
Jackson's and Nuñez's terminations do not fall within the scope of the Act, and therefore the
procedural requirements for disciplinary suspensions in section 143.052 of the Act do not apply to
them.

We likewise disagree with Jackson's and Nuñez's argument that the fire chief should have classified
their dismissals as incompetence or shirking of their duty and were, therefore, within the scope of
disciplinary suspensions under subsection 143.051(3) or 143.051(11) of the Act. See Tex. Loc. Gov't
Code Ann. §§ 143.051(3), (11). The evidence here demonstrates that neither Jackson nor Nuñez
committed a specific act of incompetency that caused him to be dismissed. See id. § 87.011(2)
(Vernon 2008) (defining incompetency in context of removing county officers as "gross ignorance of
official duties[,] gross carelessness in the discharge of those duties[,] or unfitness or inability to
promptly and properly discharge official duties because of a serious physical or mental defect that
did not exist at the time of the officer's election."). Nor do the facts support the conclusion that either
Jackson or Nuñez was terminated on the grounds of "shirking duty or cowardice at fires." See id. §
143.051(11).

We also disagree with Jackson's and Nuñez's claim that the Conditions of Employment agreement
should be considered a special order of Texas City so that their failure to attain the required level of
EMT certification violated subsection 143.051(12) of the Act. (4) See id. § 143.051(12). Failure to
qualify for state certification as an EMT was not a specific act of misconduct that violated a rule or
order--it was a failure to meet the contractually agreed upon conditions of employment as a fire
fighter. See Geron, 380 S.W.2d at 552-53 (holding that section 143.051's predecessor was
"descriptive of specific acts of misconduct for which an employee may be suspended or discharged"
and recognizing that Act does not prevent city from terminating employees for other reasons); see
also Grote, 2001 WL 180260, at *3 (holding that failure to qualify as EMT was not act of misconduct
or violation under section 143.051 of Act, but was failure to meet specific condition of employment).

Jackson and Nuñez were not terminated for any of the reasons enumerated in section 143.051 as
being subject to the Act's procedures outlined in section 143.052. Rather, Jackson and Nuñez were
terminated for failure to fulfill their conditions of employment under the provisions of the Conditions of
Employment agreements they both signed when they were first employed by TCFD.

C. Jackson's and Nuñez's Right to Appeal

Jackson and Nuñez also argue that they were entitled to an appeal of their terminations as provided
under sections 143.053 and 143.057 of the Act. See Tex. Loc. Gov't Code Ann. §§ 143.053,
143.057. The Act provides for administrative appeal of only those disciplinary actions that are
specifically enumerated. Id. § 143.010(a) (Vernon 2008); Corbitt v. City of Temple, 941 S.W.2d 354,
355 (Tex. App.--Austin 1997, writ denied) ("The statute does not provide for administrative appeal of
every possible disciplinary action taken by the Chief, only those that are specifically enumerated.").
The Act provides the civil service commission and hearing examiners with the jurisdiction to hear
appeals only from promotional examinations, disciplinary suspensions, and demotions. See Tex. Loc.
Gov't Code Ann. §§ 143.034, 143.051, 143.052, 143.053, 143.054, 143.057 (Vernon 2008); Corbitt,
941 S.W.2d at 355.

Jackson's and Nuñez's dismissals for failure to fulfill the conditions of employment do not fall under
any of the specifically enumerated actions for which the Act provides a right to administrative appeal.
See Tex. Loc. Gov't Code Ann. §§ 143.034, 143.051, 143.053, 143.054, 143.057. (5) Specifically,
Jackson and Nuñez were not terminated for committing any of the acts enumerated in section
143.051 of the Act as grounds for disciplinary suspension. See id. § 143.051. Nor were they passed
over for a promotion or demoted. See id. §§ 143.034, 143.054. Therefore, the civil service
commission was under no obligation to hold a hearing and to review the fire chief's action in
terminating them. See Cantu, 97 S.W.3d at 863 (holding that "[b]ecause appellee was neither passed
on a promotion, suspended, or demoted, the Commission was under no obligation to hold a hearing"
when fire fighter was seeking civil service review of his resignation that was allegedly made under
duress).

We conclude that Jackson and Nuñez have failed to state a justiciable claim for relief because the Act
does not apply to their terminations. Rather, their petition affirmatively negates the existence of
jurisdiction. Therefore, the trial court did not err in granting Texas City's plea to the jurisdiction. (6)
See Cantu, 97 S.W.3d at 863; Brown, 80 S.W.3d at 555. Because the trial court's ruling is upheld
based on the grounds that Jackson and Nuñez failed to state a justiciable claim, we do not need to
address the other grounds that could have supported the trial court's order. See Britton, 95 S.W.3d
at 681. Conclusion

We affirm the order of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Justice Alcala, dissenting.

1. Jackson and Nuñez received their termination letters in April 2006 and June 2006, respectively.
The fire chief offered Nuñez conditional reinstatement if he would agree to take an "educational leave
of absence" without pay for eight months, obtain paramedic certification during that time at his own
expense, repurchase uniforms, and agree to waive all appeal rights if he were unsuccessful in
obtaining the required paramedic certification. Nuñez declined this offer and his discharge took effect
in June 2006.

2. See Tex. Loc. Gov't Code Ann. § 143.057 (Vernon 2008).

3. Jackson's letter to the civil service director was dated April 20, 2006, and he received a reply letter
dated May 10, 2006. Nuñez's letter to the civil service director was dated June 29, 2006, and he
received a reply letter dated July 5, 2006.

4. A "fire or police department rule or special order" is a written rule or order officially issued by a
police or fire department for the purpose of maintaining an efficient police or fire fighting force. See
Tyra v. City of Houston, 822 S.W.2d 626, 627 (Tex. 1991) (discussing Houston Fire Department's
"Department Order No. 4" requiring all personnel to take fitness test); see also City of Dallas v. Cox,
793 S.W.2d 701, 707 (Tex. App.--Dallas 1990, no writ) (discussing Dallas Police Chief's Special
Orders on the department's deadly force policy); Firemen's and Policemen's Civil Serv. Comm'n for
Corpus Christi v. Campbell, 616 S.W.2d 424, 425 (Tex. App.--Houston [1st Dist.] 1981, no writ)
(discussing fire chief's order requiring firefighters to wear specific uniform when exercising on duty);
Vick v. City of Waco, 614 S.W.2d 861, 863 (Tex. App.--Waco 1981, writ ref'd n.r.e.) (discussing
Police Department General Order 79-8, 111-A3, which stated that "Personnel are required to adhere
to strict obedience of all Federal, State, and local laws and ordinances, along with Departmental
rules, orders, and regulations"). Jackson and Nuñez were terminated under the terms of a contract
adopted for use by the fire department pursuant to the collective bargaining agreement permitted by
section 174.006 of the Texas Local Government Code. Jackson and Nuñez each signed this
contract, which was called Conditions of Employment. A contract adopted pursuant to a collective
bargaining agreement between a fire or police department and a municipality is not a "rule or special
order" of the department.

5. Section 143.034 of the Act, entitled "Review and Appeal of Promotional Examination," provides, in
part:

On request, each eligible promotional candidate from the fire or police department is entitled to
examine the person's promotional examination and answers, the examination grading, and the
source material for the examination. If dissatisfied, the candidate may appeal, within five business
days, to the commission for review in accordance with this chapter.

Tex. Loc. Gov't Code Ann. § 143.034(a) (Vernon 2008).

Section 143.052 of the Act, entitled "Disciplinary Suspensions," indicates that employees subject to
disciplinary suspension due to a violation under section 143.051 must receive notice of their right to
appeal. Id. § 143.052(d) (Vernon 2008). Section 143.053 of the Act, titled "Appeal of Disciplinary
Suspension," provides, "If a suspended fire fighter or police officer appeals the suspension to the
commission, the commission shall hold a hearing and render a decision in writing within 30 days after
the date it received notice of the appeal." Id. § 143.053(b) (Vernon 2008). Section 143.053 also
provides information that must be contained in the commission's written decision, see id. §
143.053(e), and states that "[t]he commission may suspend or dismiss a fire fighter or police officer
only for violation of civil service rules and only after a finding by the commission of the truth of
specific charges against the fire fighter or police officer." Id. § 143.053(g).

Section 143.054 of the Act, entitled "Demotions," provides:

(a) If the head of the fire or police department wants a fire fighter or police officer under his
supervision or jurisdiction to be involuntarily demoted, the department head may recommend in
writing to the commission that the commission demote the fire fighter or police officer. . . .

. . .

(c) The commission may refuse to grant the request for demotion. If the commission believes that
probable cause exists for ordering the demotion, the commission shall give the fire fighter or police
officer written notice to appear before the commission for a public hearing. . . .

(d) The fire fighter or police officer is entitled to a full and complete public hearing, and the
commission may not demote a fire fighter or police officer without that public hearing.

(e) A voluntary demotion in which the fire fighter or police officer has accepted the terms of the
demotion in writing is not subject to this section.

Id. § 143.054 (Vernon 2008).

Section 143.057 of the Act, entitled "Hearing Examiners," establishes the procedures for appeal to a
hearing examiner. Id. § 143.057 (Vernon 2008). Section 143.057 provides, "[I]n an appeal of an
indefinite suspension, a suspension, a promotional bypass, or a recommended demotion, the
appealing fire fighter or police officer may elect to appeal to an independent third party hearing
examiner instead of to the commission." Id. § 143.057(a).

6. Jackson and Nuñez also argue that the trial court had jurisdiction over their case because their
termination violated a vested property right. See Continental Cas. Ins. Co. v. Functional Restoration
Assocs., 19 S.W.3d 393, 397 (Tex. 2000) (holding that trial courts possess jurisdiction to grant
judicial review of agency action only when provided for by statute or when agency action "adversely
affects a vested property right or otherwise violates a constitutional right"). Jackson and Nuñez cite
City of Amarillo v. Hancock to support their contention. 239 S.W.2d 788, 790-92 (Tex. 1951).
However, the Hancock court squarely held that Hancock, a fire fighter attempting to contest his
demotion from captain to driver, did not have a property interest in his position. Id. at 792 ("[A]
captaincy in the [fire department] is not property and the right to it is not a property right protected by
due process. Consequently, there is no inherent right to a judicial review of an order of demotion by
the Civil Service Commission duly entered after proper procedure.").

DISSENT BY JUSTICE ELSA ALCALA


DISSENTING OPINION


I respectfully dissent. The majority opinion deprives fire
fighters of the procedural protections given to them by
the legislature under the Civil Service Act ("the Act"). See
Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon
2008). Fire fighters Anthony Jackson and James Nuñez
were terminated for not complying with the Emergency
Medical Technician (EMT) requirements described in
their employment agreements, and seek the right to
appeal guaranteed by the Act, which gives fire fighters
the right to challenge terminations that result from
discipline. See City of Sweetwater v. Geron, 380 S.W.2d
550, 552-53 (Tex. 1964) ( "[T]he State has pre-empted
the field for removal of firemen and policemen for
disciplinary reasons."). The majority opinion declines to
give fire fighters Jackson and Nuñez the right to appeal
their terminations because it contends they were
terminated for failing to abide by the terms of the
employment contract entered through collective
bargaining. The majority opinion is erroneous in this
determination, for three reasons.

First, the majority opinion contends the terminations are
for non-disciplinary reasons because the discharges are
for failing to abide by the terms of the employment
contract. Each of the employment contracts states, "It is
understood that failure to satisfactorily complete the EMT
Basic or Paramedic training and qualify for State
Certification . . . constitute cause for disciplinary action
up to and including termination of the employee." Thus,
the terms of each of the employment agreements provide
that termination for failure to abide by the EMT
requirements is considered "disciplinary action." Because
the applicable employment agreements describe the
terminations as discipline, the majority opinion errs by
ignoring the terms of the agreements in its decision to
call the terminations non-disciplinary actions. See Tex.
Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 2008).

Second, the grounds for termination of Jackson and
Nuñez plainly fall within the Act, which applies to
terminations for acts of incompetency or neglect of duty.
See Tex. Loc. Gov't Code Ann. § 143.051 (Vernon 2008)
("A commission rule prescribing cause for removal or
suspension of a fire fighter or police officer is not valid
unless it involves . . . (3) acts of incompetency; [or] (4)
neglect of duty . . . ."). The terminations of Jackson and
Nuñez were for acts that fall within the categories of
incompetency or neglect of duty, in that they were
incompetent by failing to meet the required EMT
requirements as those requirements were set out in the
"Conditions of Employment" or they neglected their duty
to meet the required EMT requirements as those
requirements were set out in the "Conditions of
Employment." Thus, the majority opinion errs by stating
that the failure to meet the EMT requirements constitutes
only a violation of the employment agreement and is not
also a violation to which the Act applies. Because the
terminations of Jackson and Nuñez were for acts properly
classified as acts of incompetency or neglect of duty, the
Act applies. See id.

Third, the majority opinion errs in its assessment that the
Act's requirements are inapplicable because the
agreements fail to mention the Act. Under the Act, the
provisions of the Act prevail over a collective bargaining
agreement "unless the collective bargaining contract
specifically provides otherwise." See Tex. Loc. Gov't
Code Ann. § 174.006(a) (Vernon 2008). The collective
bargaining agreements here do not specifically provide
that the Act is inapplicable. See id. Because the
agreements here fail to specifically provide that the Act
does not apply, the Act necessarily applies since its
provisions "prevail over a collective bargaining
agreement." See id.

Here, the Act applies because (1) the terminations were
undisputedly discipline; (2) the discipline was for matters
of incompetence or neglect of duty; and (3) the
employment agreements fail to state that the Act is
inapplicable. The majority opinion errs by its
determination that the Act is inapplicable and by refusing
to give the firefighters the procedural protections to
which they are entitled under the Act. All that the
firefighters want at this juncture is the procedural right
given to them by the legislature, which is the right to
have a civil service review of their terminations. It is not
for us or the trial court to determine whether their
terminations were actually proper.

I conclude that the trial court erred by dismissing the
claims filed by Jackson and Nuñez. I would reverse the
trial court's order and remand to the trial court for further
proceedings.

Elsa Alcala

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Justice Alcala, dissenting.