In City of San Antonio v. Scott, 16 S.W.3d 372 (Tex. App. - San Antonio 1999, pet. denied), Scott was ranked twenty-first on the captains' eligibility list. Id. at 373. Before that list expired in February, 1995, twenty vacancies occurred in the captain positions, leaving Scott first on the eligibility list. Id. In July, 1994, an assistant fire chief retired. Id. The vacancy created by the chief's retirement could be filled only by a deputy chief or a captain. Id. The vacancy was filled in May, 1995, after Scott's eligibility list expired. Id. Scott sued the City, alleging that it violated the Civil Service Act, which requires that vacancies in the assistant fire chief position be filled within ninety days of their creation. Id. Scott claimed that if the ninety-day requirement had been met, the appointment to the assistant fire chief vacancy would have been made on October 27, 1994, and a vacancy in a captain's position would have been created that he would have received. Id. Scott moved for summary judgment, claiming that the Civil Service Act controls over the terms of the collective bargaining agreement. Id. The trial court granted his motion. Id. However, this court reversed and remanded the case, finding that Scott had failed to prove that the San Antonio City Council approved the statutory appointment procedure that included the ninety-day requirement by ordinance. Id. Scott prevailed on remand, and the City appealed. Id. at 374. The City, on appeal, noted that the appointment procedure contained in the collective bargaining agreement was different from the Civil Service Act's appointment procedure and in no way mentioned the ninety-day requirement. Id. at 375. The City argued that, because the appointment procedure contained in the agreement was inconsistent with the statutory provisions, the City's approval of the agreement was not an approval of the statutory procedure; therefore the ninety-day requirement was not applicable. Id. Scott, however, argued that because the ninety-day requirement was not inconsistent with any provision in the collective bargain agreement, it was applicable. Id. The Court agreed. Id. at 376. The Court held that "the collective bargaining agreement as to when to appoint was silent; therefore the Civil Service Act's ninety day requirement prevails because the collective bargaining agreement did not specifically provide otherwise." Id.(citing TEX. LOCAL GOV'T CODE ANN. 174.006(a) (Vernon 1999)).