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Click here for the full text of this decision FACTS:The fire captain position to which Hector E. Benavides was promoted became vacant on Nov. 21, 2004. Because a list of eligible candidates for the position did not exist on that date, the city of Laredo was required to fill the position by the 90th day, which was Feb. 20, 2005. For various reasons, Benavides was not promoted until Oct. 25, 2005; however, his promotion was made retroactive to Feb. 20, 2005. Benavides’ promotion resulted in a sequence of “downstream” vacancies, which were ultimately filled or should have been filled by the promotions of other personnel. The plaintiffs seeking promotions asserted that the vacancies tracked backward in time to Feb. 20, 2005. The city asserted that the vacancies tracked backward in time to Oct. 25, 2005. Ruben Mendiola Jr. was the highest-ranking candidate for the position of fire driver, which was vacated by Benavides when he was promoted to fire captain. Mendiola asserted that if the vacancy in the driver position was created by Benevides’ promotion on Feb. 20, 2005, then Mendiola would have been promoted to driver by operation of law on the 60th day following the date of the vacancy, which would have been April 21, 2005. Mendiola was actually promoted on April 20, 2006. Xavier E. Villela was the highest-ranking candidate for the position vacated by Mendiola, which was the assistant driver position. Villela asserted that if the vacancy in the assistant driver position was created by the promotion of Mendiola to driver on April 21, 2005, then Villela would have been promoted to assistant driver by operation of law on the 60th day following the date of the vacancy, which would have been June 20, 2005. Villela was not promoted to assistant driver until Oct. 18, 2005, following another vacancy subsequent to the vacancy created by Mendiola’s promotion. The candidates for promotion contended that if Villela had been promoted to assistant driver by operation of law on June 20, 2005, the subsequent promotion of October 18, 2005, would have gone to Juan C. Jalomo, the next highest-ranked candidate. The candidates filed suit against the city of Laredo arguing they were entitled to retroactive promotions and backpay. All parties moved for summary judgment, agreeing that there were no issues of material fact and that the sole legal question before the court was whether the candidates were entitled to retroactive promotions as a result of Benevides’ promotion, which was retroactively effective on Feb. 20, 2005. The trial court denied the candidates’ motion for summary judgment and granted the city’s motion, dismissing the candidates’ suit with prejudice. HOLDING:Reversed and remanded. Promotions at the city of Laredo Fire Department are governed by Local Government Code Chapter 143. Texas Local Government Code �143.036 provides that a “vacancy in a fire fighter position . . . occurs on the date the position is vacated by . . . promotion.” If an eligibility list exists on the date a vacancy occurs, �143.036(e) states that “the department head shall fill the vacancy by permanent appointment from the eligibility list furnished by the commission within 60 days after the date the vacancy occurs.” There is no dispute, the court stated, that an eligibility list for the driver position existed on Feb. 20, 2005, and that Mendiola was the highest-ranking candidate for promotion on that list. There is also no dispute, the court stated, that that list expired on March 22, 2005, and another was not created until March 20, 2006. To answer the question of when Mendiola was eligible for promotion, and by extension when Villela and Jalomo were eligible for their promotions, the court sought to determine the last date by which the city could lawfully have promoted Benevides to the position of fire captain. An injunction, the court noted, prevented the city from timely conducting the fire captain promotional examination. The city argued that because it was prevented from conducting the fire captain promotional examination by factors beyond its control (a suit and injunction), it was excused from compliance with the requirement that the driver position, vacated by Benavides, be filled within 90 days of Feb. 20, 2005. But the court disagreed with the city’s argument. In fact, the city did not schedule the promotional examination for fire captain until after the requisite 90 days had elapsed. Also, although the merits of the suit were never reached, if the allegations of the firefighters were true, the delay in conducting the examination was due to the city’s failure to properly post source material for the test. Accordingly, the court concluded that the city was not excused from complying with the statutory requirement to timely hold the promotional examination, and its failure to do so did not bar retroactive promotion or backpay. Accordingly, the court held that the trial court erred in rendering summary judgment in favor of the city. Next, the city contended that it did not waive its governmental immunity from suit; therefore, the trial court lacked jurisdiction over the cause. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, the court stated, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiffs should be afforded the opportunity to amend. In their petition, the candidates sought relief in the form of a declaration of their rights under �143.036, together with retroactive promotion and backpay. On appeal, the candidates contended that repleading would allow them more clearly to identify their claims as seeking injunctive, equitable and mandamus relief. Because the candidates’ petition did not affirmatively negate the existence of jurisdiction, the court did not dismiss it but remanded it so the candidates would have the opportunity to amend their pleadings. OPINION:Marion, J.; Lopez, C.J., and Marion and Speedlin, JJ.

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