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Click here for the full text of this decision FACTS:Stephen McElroy was employed by the city of Temple in 1998 at the entry level rank of police officer and was eligible to be promoted to senior police officer in September 2002. In September, Clay Brown, a senior police officer and member of the U.S. Army Reserve, was recalled to active duty and was granted a “military leave of absence.” The city of Temple Personnel Policies and Procedures Manual provides, under the heading “Military Leave,” that “[a]ll employees who are members of the military services, active services, reserve units, National Guard or other special units can take compensated military leave not to exceed fifteen (15) working days in any one calendar year; however, the days need not be consecutive. Time required over the maximum allowed compensated military leave must be taken as annual leave or leave of absence without pay, upon the approval of the department head.” Additionally, the General Orders Manual of the Temple Police Department permits “military leave” for an “employee who is responding to orders of the military service as a member of such service.” On Sept. 27, the city appointed McElroy to fill Brown’s position on a temporary basis. Although the city compensated McElroy as a senior police officer during his temporary appointment, he was unsatisfied with the temporary nature of the appointment and demanded to be permanently promoted. The city refused, and in February 2003, McElroy filed suit, complaining that he had not been either promoted or bypassed within 60 days of the vacancy. In May, three senior police officers were promoted, leaving their positions vacant. Another police officer was promoted to the first vacancy, and a promotional examination was given to fill the remaining two positions. McElroy received the second highest grade on the exam; he and another officer were both promoted to senior police officer June 6. Brown returned to his original position June 13. McElroy’s original petition requests a declaration that he should have been permanently promoted instead of temporarily appointed to senior police officer. The crux of his complaint before the trial court was that because he was not promoted until June 2003, he was improperly denied seniority over other officers who were promoted in May and June. Furthermore, because an officer must serve two years in a rank before taking another promotional exam, �143.028(b), McElroy was not eligible to take another exam, and thereby receive another promotion, until June 2005. The trial court denied McElroy’s request for relief and filed findings of fact and conclusions of law. McElroy retired from the department after timely filing this appeal. HOLDING:Affirmed. The case remains alive and justiciable because a decision that McElroy was improperly denied the promotion would necessitate a remand to the trial court to consider whether an award of attorneys’ fees and costs would be appropriate. McElroy argues that Brown was granted a military leave of absence pursuant to Texas Local Government Code �143.072, triggering a provision that required the city to promote McElroy, the next eligible officer, into Brown’s “vacant” position. The parties dispute whether subsection (a) applies when an officer is recalled to active duty, or if it applies only when an officer enters into the military. The plain language of the statute, especially in light of the legislature’s provision for temporary assignments in this chapter, does not compel the city to promote a remaining officer, only to return an absent officer to his or her original position upon return. The city has the discretion to either temporarily assign or permanently promote other officers into positions that are open following a leave of military absence pursuant to �143.072. However, the city is required, under certain conditions, to reinstate eligible officers upon their return from military duty. Under the plain and common meaning of the words in subsection (a) of �143.072, a military leave of absence without pay “to enable [a] person to enter a branch of the United States military service” does not apply to those who are recalled into military service in situations other than initial training or annual duty. McElroy argues that if �143.072 does not apply, �143.036 required the city to promote him. Specifically, McElroy argues that Brown’s absence created a vacancy which required the city to permanently promote McElroy in November 2002 � within 60 days of the temporary appointment � rather than his subsequent promotion in June 2003. The documentation verifying Brown’s recall into active military service states that he would be on duty for 269 days, and the record shows that Brown intended to return to his position. Thus, under the facts in this case, Brown was only temporarily absent from his position. His position was not vacated, and he was not permanently disqualified from further service. under McElroy’s interpretation, any temporary absence could be a vacancy requiring promotion under �143.036, rendering �143.038, which permits temporary assignments, superfluous. OPINION:Law, CJ; Law, CJ, Patterson and Puryear, JJ.

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