*1 supplement sequent motion for leave
record are denied. Dallas, Kirby, appellant. for
John E. Dallas, Stephen Holley, appellee. L. for Texas, DALLAS, Appellant, CITY OF HECHT, Justice. City At issue in this case whether SPAINHOUER, Appellee.
Freddie Spainhouer, Dallas Freddie must No. 05-87-00435-CV. Depart- Dallas photographer for the Fire ment, job for when he was not on the Texas, Appeals of Court of call. of this but was Resolution Dallas. depends proper upon issue construction 24, Aug. 1988. pre-1987 language of Texas Revised 19, Rehearing Denied Oct. 1988. 6, Civil Statutes article regulates the number department employees can work in certain Spainhouer cities. hold that is not enti- We Consequent- such time. paid tled to be judgment ly, summary we reverse the granted Spainhouer and render against the Spainhouer nothing take City.
I Fire photographer As a for the Dallas was, Department, Spainhouer for the bet- part years, ter to be six actually job, sick he when was not call, on not or on While was vacation.1 at or near fire station remain af- go was about his but free reach he remained within long fairs as pager. The by telephone, radio or all the time he was regular time job, his his overtime at time-and- rates pay Spain- did not a-half rates. actually on was houer for time he though he was call almost job, even all of that time. for overtime
Spainhouer sued on-call, off-the-job time. all parties moved Both City’s liability. on the issue of 24, 1984, 1984, every week from June other parties stipulated that 1. The February July every to June week from call *2 granted Spainhouer’s trial court motion II City’s, holding Spain- and denied the A houer pay was entitled “to recover at time solely upon claim rests for- ‘any during and one-half for and all hours mer article section Texas Revised which to remain available [he is] Civil Statutes Annotated.3 We hold that duty’ for immediate call to to the extent statute, construed, properly this does not such hours exceed the ‘normal work week’ Spainhouer paid entitle to be for hours not applicable to only him”. The issue remain- actually worked many [Spain- for trial was hours “how Two versions of the statute to the unpaid”. has been houer] claim, by Spainhouer’s covered question of what amount due (“the prior pre-1985 to June one Spainhouer stipulated was then tried on version”), and the other effective on and jury. Spa- facts before the court without (“the version”). date after that To set following inhouer submitted the formula unnecessary text of out the both without calculating for him the amount due repetition, adopt we the format used each week involved: Legislature, language unique in which the =( 168) Total number of hours a week version is bracketed and over, language struck added minus Vacation & sick time italicized, language 1985 version is and the Regular on-the-job paid minus hours in ordinary type: common to both is roman (usu. 40) (a) any city It shall unlawful for on-the-job paid minus Overtime hours having (10,000) more than ten thousand Equals off-the-job On-call hours due sixty inhabitants but not more than thou- pay (60,000) inhabitants, according sand to Thus, typical Spain- in a Census, preceding the last Federal houer took no vacation or sick time and require permit any fighter [fire- his normal 40 worked hours with no over- (72) seventy-two to work more than man] job, Spainhouer time hours It during any one calendar week. claimed to be due time-and-a-half any city having shall be unlawful for hours, is, off-the-job 128 on-call (60,000) sixty more than thousand inhab- every upon other hour in the Based week. than one hundred itants but not more history, parties to which both (125,000) twenty-five inhab- thousand agreed, Spainhouer computed he was due itants, according preceding the last $477,841.60. City dispute Spa- Census, any did not require permit Federal inhouer’s arithmetic.2 The trial court ren- more to work than fighter [fireman] amount, judgment $109,- plus year, dered for this average, a calendar prejudgment interest, (63) It 034.88 for a total week. shall sixty-three $586,876.48. having any city more be unlawful for However, despite ruling, job every 2. other how- the trial court’s and was on call but off argue Spainhouer continued City’s theory, Spain- was not in the week. Under the paid off-the-job entitled to be for all his hours. week would con- houer’s normal 40-how work reasserting legal position Besides its which the Monday and 16 hows in sist of the 24 hours in already rejected, City argued trial court had regular day, Tuesday, including his 8 hows Spainhouer that at most was entitled to have his City would then owe overtime and the on-call, off-the-job hours counted in his normal job regular he was on the Wednes- the 24 week, only any and to be through Friday, day his on-call time. but not for on-the-job City’s hours. Under the Spainhouer additional theory Using calculated that this theory, for each week claimed addi- $46,768.60. owed trial hours, pay, usually tional his normal theory. rejected cowt regular, on-the-job time recalculated to include on-call, off-the-job time. The then cal- The statute has now been recodified as TEX. any culated overtime additional time on (Vernon LOCAL GOV’TCODE ANN. 142.001 § job, regular whether or overtime. In a eight Pamph.1987). week, typical job was on the through day Monday Friday, hours each required to avail- twenty-five remain than one hundred thousand [firemen are] duty by contin- (125,000) inhabitants, according to able for immediate call Census, remaining a fire uously in contact with preceding last Federal telephone or radio. department office permit fighter [fireman] *3 fire during average, an a (d) work more than fighter A or other member of fire (60) per year, sixty hours calendar of is in department who the fire a week. to work more hours in an cycle than autho- work week or work further, any city (b) Provided that in (b) (a) or this rized Subsection (10,000) having ten thousand more than of is to be section entitled inhabitants, preced- the according to last accord- excess hours worked in the Census, ing Federal the number of hours (e) this section ance with Subsection in the work of members of cycle of [week] to regard the number without department the do not fire whose duties of any in one week the work worked fighting fires, including include but not of cycle. clerks, mechanics, investiga- limited to (e) fighter A or other member tors, marshals, inspectors, fire fire alarm of fire however,- [Provided, department the men, dispatchers and maintenance shall fire any city having that in such more than not, except emergency, average in an inhabitants, (10,000) ten thousand the more hours in a week than the [exceed] emergency, may event of an fire-men] number of hours in the normal work work more than the maxi- to majority employees week of the the of of provided; herein and such mum hours city fighters than said other and fire fighter other member event the or fire police days The number officers. of department work- the [firemen] of fire a or duty average work week the ing more than the maximum hours herein days duty per number of provided compensated shall be such cycle subject employee of equal overtime at a rate to one and one- not may this subsection exceed the paid to compensation half times the the days duty during number the of fighter other member the or fire fire of majority work week the em- of of department firemen] [such city ployees fight- other than of fire hours.4 section, police ers and In this officers. summarize, of paragraph To the first cycle” “work means that of (a) pre-1985 paragraph and of version posted starting in a work schedule at 1985 make unlawful for certain version cycle begins ending the time the permit fighters require or fire cities to repeat cycle begins time the it- a certain number of hours work more than cycle may span any number self. average. The second week on the days portion weeks or a week of pre-1985 paragraph of version day policemen]. [firemen (b) mandate paragraph 1985 version (c) further, in computing Provided non-firefighting members of the hours the work week or the aver- departments certain cities shall not have age number hours in a work week in longer work weeks than most other cycle fighter a work or other fire Paragraph (b) employees. of the ver- fire- department member [of excepts emergency sion situations subject provisions this men] this mandate. paragraph], there preceding section [the para- two shall included and counted and all case focuses on the last This of the stat- graphs pre-1985 version during fighter which such ute, last three correspondingly, the other member of 1583-1, 1985, 14, designated section 6 article June ch. 4. The 1985 version Act of 1, code was Code until of the Texas Penal 1985 Tex.Gen.Laws 2522-2523. § redesignated 1, 1959, the statute was pre-1985 Act ch. in 1973 and version is of June revised Civil Stat- Revised Texas Tex.Gen.Laws 781-782. Prior § Code, in the Texas Penal utes. revisions paragraphs of requires the 1985 version. The third the statute. The statute nowhere paragraph version and cities members of the fire (c) paragraph provide of the 1985 version ment for the work week of at least certain This distinction between hours actu department5 members of the fire includes ally worked and hours free for “required the hours are use clearly to call was drawn more to remain call available immediate Legislature in its 1987 amendments duty by continuously remaining in contact 6(c) (“the version”). Again, with a fire to section by telephone or adopt paragraph pre- Legisla radio.” The fourth we the format used *4 provides may showing changes version that firemen be ture for from the required to work more than the maximum 1985 version to the 1987 version: do, in emergency, and if (e) further, computing Provided that in shall be time-and-a-half overtime.6 in the hours the work week or the aver- (d) (e) Paragraphs of the 1985 version age number of hours in a work week in a appear essentially pro- to contain the same cycle fighter of a fire or other vision.7 department subject member of the fire to of this section and Sec- provisions argues the third 207(h) tion Title United States paragraph pre-1985 of the version of the of Code, there shall be included and counted (c) paragraph statute and of the 1985 ver any and all hours which such fire pay sion entitle him to for all overtime fighter or other member of the fire de- radio, subject by hours he was to call tele to remain partment required phone pager, though or even he was free to employer’s premises or so close go in about his business and fact thereto that he cannot use time However, Spainhouer’s argument did so. effectively purposes. his own ignores paragraph pre-1985 the last of the person required time a to leave a paragraphs version and the last two of the telephone may number where he or she provisions 1985 version. Those reached, required be or is to remain pay only for hours by pager worked in excess of the maximum set or is not con- accessible radio by City argues points City argues points and sixth 5.The in its first and second 6. The in its fifth of paragraph pre- only of error that the third of the requires that the error version of article does not emergencies. for time We find no such non-firefighting apply to members of a fire de- statute, limitation in the nor do we understand reading partment, Spainhouer. like A literal why only emergen- compensation should be due City's argument. The the statute refutes the cy opposed to all overtime. Conse- overtime as paragraph applies expressly "firemen third to City's quently, we overrule the fifth and sixth provisions preceding para- of the points of error. graph". preceding paragraph applies department "members of the fire whose duties (e) Paragraph of the 1985 version omits the fires, including do not include but not pre-1985 paragraph in the last of the limitation mechanics, clerks, investigators, in- limited to spectors, only emergency” "in the event of an version that marshals, dispatchers fire fire alarm fighters members of the fire can fire or other However, City and maintenance men”. ar- department to work more than the that, reasons, gues para- the third for various prescribed. Legislature maximum hours instead, literally graph should not be read may "firemen”, that this limitation remain have intended apply be construed to should (d), through paragraph in new inas- paragraph pre-1985 its inclusion ver- like the fourth place para- para- the last three much as its omission would seem sion. The concedes that (b) (a) para- graphs graphs version to "a fire of the 1985 in direct conflict with fighter (e). other member of the fire or graph would allow all that the The latter ment”, Spainhouer. We which would include requiring members of the fire former forbid: rather, City’s argument but do not address the department to work more than maximum para- deciding without that the last two assume We are not number of hours. version, graphs pre-1985 like the last apparent conflict. case to resolve this version, apply paragraphs of the 1985 three employees, including Spain- all fire houer. B sidered as worked [available for continuously by duty call to immediate decisions, by Spainhouer cites five two with de- remaining in--contact supreme by Corpus court three partment telephone-or by ra- by appeals, support office court of Christi computing the hours in the In dm]. section 6 en- contention that average or the number on-call, him to overtime off- titles cycle a work week in a work hours in four of these the-job hours. We consider per- service fighter cases, supreme court decisions and two vacation, time, holidays, sick sonnel decisions, appeals two of court compensato- holidays time lieu contention. contravene ry may excluded as unpersuasive. find fifth case we worked.8 Dallas, 141 Tex. McGuire clear that This amendment makes (Tex.Comm’n App. language, “available for immedi- 1943,opinion adopted), fighter McGuire by continuously remaining duty call ate Dallas for overtime sued a fire office contact with 1583 of the Texas Penal due under article radio”, telephone Legislature Code, 1269p. predecessor At *5 article employer’s premises so meant “on the or 1583 it unlawful for that time article made time close thereto that he cannot use the permit fight- or a fire require cities to some purposes.” The effectively for own per day, than 12 or er to work more hours Legisla- that amendment demonstrates week, per per or 144 hours two 72 hours pay ture intended to cities to never weeks, except emergencies. consecutive members of overtime pay any overtime The statute mandated for they merely hours Two rate time-and-a-half. weeks at the of “accessible”. night worked a shift each month McGuire per 98 consisting day of 14 hours and 1269p, claims article sec- that required to McGuire was also week. every tion 6 him to hour entitles every inspections for four hours oth- make home every day, sleeping waking, of and pay sought month. er McGuire work, off, job and at on the for the 1,360 over a 27-month for a total of years. part better of six No statute should city argued employment. yield construed to so foolish and absurd could not recover over- that McGuire Blankenship, McKinney a result. v. See performed it in had time work because 632, 691, (1955). 282 154 Tex. 698 reject- 1583. The court violation article 1269p, 6 language section article holding city’s argument, that ed the worked, requires payment only for hours McGuire, the statute. city, not had violated It anyone certainly expect. as would The court stated: indeed that would be a foolish statute A careful consideration obliged taxpayers a fire [article that the conclusion over- a dollars leads to photographer nearly half million 1583] is not itself every work a fireman day, for 24 a time “re- prohibition is to the prohibited. The day nearly years, simply six because of overtime permitting” or quirement called photographer might have been performs over- 1269p, A who do read article work. to work. We fireman emergency upon either impose requirement time work section 6 to permis- requirement or otherwise under Dallas. 933, language 31, 1987, 1, added Aug. Tex. 001 does not contain § 1987 8. Act of ch. 4, 1987, 6272, 6273-6274; 1269p, by6 1987 amend- Aug. article section Act of Gen.Laws However, 311.031(c) of the Texas 63, 1, (Second section ment. 1987 Tex.Gen.Laws 411-412 ch. § provides that if a Session). Legislature repealed Code Annotated Government The same Called and, part of a recodi- amended 1269p it as 142.- both recodified fication, Legislature, repealed the same Act Code. 001 Texas Local Government survives, 49, contained even if not 1987 amendment September §§ ch. 1397, 1721, 142.- the recodification. 2545. Section Tex.Gen.Laws 616 is entitled to addi- reading 1269p, of Art. by municipality
sion
would be
§
compensation
tional
on-the-job
at the rate of time
that somehow excluded
train-
overtime_
and one-half
To hold oth-
compensable
from the ambit of
work.
language quoted
nullify
erwise would
We do not
the statute is
believe
whereby
compensation
additional
is al-
susceptible
unduly
to such an
restrictive
lowed to firemen who are
reading.
Art.
distin-
§
permitted to
more than the hours
work
guishes
employees
between fire
days provided by the statute. The
fight
Any
fires and those that do not.
language
beyond question that
shows
assignment
kind of
official
il-
overtime work as such is not made
firefighting
does not include
and exceeds
legal. ...
It is clear therefore that
compensable
hour week is
legislature by
grant
of additional
as overtime unless the Art.
6§
compensation
to those who were
right
to a maximal 40 hour
has
permitted
to work overtime hours did
under
Police
been waived
[Fire
prohibited
not intend to render
over-
Act,
Employee Relations
Tex.Rev.Civ.
void,
prevent
rather to
it.
but
5154c-l,
art.
Stat.Ann.
collective
§ 20]
Id.,
added).
(emphasis
S.W.2d at
bargaining agreement....
supreme
court concluded that the
gave
itself
the critical
...
$1,058.04
compen-
owed
additional
McGuire
testimony
trial
the EMTs worked
actually spent
sation for time
date of
full-time 56 hour weeks as
Antonio,
Kierstead
San
assignment
emergency
their
medi-
(Tex.1982),
overtime back these argument ports Spainhouer’s not include Contending that their duties did pay for fires, requires but job. longer fighters, away On spent hours of fire from to work the department employ- city contrary, for over- dispatchers several sued matter three claimed overtime time. The asserted that as a ees in all cases working on law, fight- actually spent included fire for hours dispatchers’ duties pay is summary judgment. job. that overtime ing, and moved for McGuire holds overtime, motion, granted fighter perform city’s due who trial court appeals on-the-job because Kierstead holds arti- but the court reversed work. requires compen- extra genuine of a fact issue. cle section 6 subsistence court, spent an “official Nye sation Speaking for Chief Justice on-the-job training, assignment”, like wrote: work assignment. an official and not proof Reading the spent actually claim in Privitt for time light parties of both the Kierstead Furthermore, working on the opinion, there is a fact issue we hold that McGuire, way in no Privitt Kierstead opera- equipment as to whether the insistence, plainly statutory moderate the assigned tors the communications sec- strongly expressed in the 1987 version and dispatcher to be an tion as are considered suggested ver- the 1985 and has assignment” as been “official work sions, of the fire that member Supreme If interpreted our Court. paid only ment for time assign- the appellants’ “official work away affairs. job firefighting consists of and occa- ment” this stat- anything, If these cases reinforce dispatching, appears no sional utory requirement. due. If the “official overtime would be being assignment” meant taken off cases, Corpus from the Two other both firefighting put dispatching do to have appeals, appear Christi court summary shows, it would very nearly the issue now same involved appear that overtime would be due. one, before us. Harrison dispatch- presented fact issue whether Victoria, (Tex.App. 730 S.W.2d —Cor- assign- itself an “official n.r.e.), four pus writ ref’d Christi *7 part a a broader ment” or the fire de- non-firefighting members of Equipment Operator. as assignment Fire pay for hours partment claimed overtime a Appellee ... did not show that as mat- court, call, job. The spent on off duty appellants’ ter law that included Chief through in Jus- speaking as Privitt firefighting. as their claim follows: Nye, tice described rejected appeals The court also Id. 544. response in to re- City The admitted argument fighters city’s were four em- that the quests for admissions pay only for entitled to overtime non-fire-fighters and that ployees were emergencies. Again citing worked in Kier- the normal work week forty hours was stead, court stated: undisputed It is also employees. for city any determined that Supreme The Court required to be were employees that the assignment that did kind of official work during off-duty hours. The their firefighting and exceeds a 40 that, not include in their affidavits employees stated compensable. No dis- week is hour work work, they either carried not at when case between tinction was made radio, telephoned their pager or non-emergency hours emergency and department. whereabouts to worked. to they are entitled employees claim The for the the statute pay under overtime trial case was remanded for Id. The City as- on call. they were merits. not. they are serts that McGuire, and Pri- Although Kierstead summa- granted court trial issue Id. at precisely involve the same vitt do not Citing city. Kier- for the us, sup- ry judgment cases now none these before stead, reversed, on-call, appeals explain- off-the-job court time. ing: Harrison, summary judgment Unlike case, appeal judg- from a Salazar was an provides
The statute
that a non-fire-
fighting employee
ment rendered after a trial before the
is entitled to overtime
employee
“required
findings
when the
court. No
fact
conclusions
having
filed,
remain available for immediate
requested
call to
of law
been
duty by
remaining
continuously
in con-
of appeals
court
summarized the evidence
tact with a fire
office
support
as follows:
telephone or radio.”
Appellee
regarding
testified
his “on-
The affidavits of the four employees
status,
call”
and introduced records of
alleged
they
to re-
times was on-call
the time
main in continuous contact with their fire
question.
He understood that “on-
department.
ap-
contends on
prepared
go
call” status meant to be
peal
they
were not in continuous
to the scene of the
whenever
contact and had too much freedom
called,
being
he was
and understood that
while on call to
working.
be considered
duty.
mandatory
“on-call” was a
Several
argues
being
also
that their
regard
witnesses testified
with
call does not amount
to an official
meaning
opposed
“on-call” as
“call-
assignment.
obviously
These
in-
status, emphasizing
back”
that to be “on-
volve material
which will
issues
fact
mandatory duty.
call” is a
Wherever
fully developed
have to
in a
trial on
“on-call,”
appellee was located while
it is
the merits.
clear
evidence that he was re-
agree
We
the employees
with
contacted,
quired
respond
when
they,
non-firefighters, may
as
be entitled
compensation by
was entitled to overtime
to overtime
“continu-
statute.
ously in contact” with
their fire
Id. at 579-580. From this evidence it is
ment,
they
if
can show at trial that
readily apparent
appeals
that the
court con-
also
statutory require-
meet the other
single controlling
sidered the
factor to be
ments. The
was im-
inspector’s duty
respond
that the fire
granted.
providently
duty
calls off
when contacted was manda-
added).
(emphasis
Importantly,
Id. at 121
tory.
department employ-
Whether
the court did not treat the Kierstead “offi-
responsibilities
mandatory
ee’s on-call
are
assignment”
cial work
standard
dif-
not,
cases,
under the statute or the
specific language
ferent from the
controlling
determining
factor in
entitle-
Moreover,
reject
statute.
the court did not
Rather,
compensation.
ment
city’s contentions,
are similar to
factor,
controlling
variously
as stated
those of the
Dallas
the instant
*8
pre-1985,
in the
1985 and 1987 versions of
contrary,
case. On the
the court acknowl-
statute,
cases,
as well as the
is whether
the
edged
validity
the
arguments by
of those
employee’s
official
holding
they
pre-
that
raised fact issues
assignment requires
such close and
cluding summary judgment, and that the
depart-
fire
continuous contact with the
department employees
fire
would be enti-
effectively
ment that he cannot
use the
only
tled to
if
recover on their claims
personal purposes.
time for
We cannot
city’s arguments.
met the
opinion
determine
the
in Harrison
involving
issue sim-
The second case
whether this standard which should have
ilar to the one
us is
before
Browns-
of
determinative was met. To the extent
been
Salazar,
(Tex.App.
ville v.
621 voluntary assignment not include on-call was not work that does his regular required city part the 40 as firefighting by and exceeds was the but as great significance hour is compensable job responsibility. Of right to a argument, unless the Art. importance is that at oral and § maximum 40 hour week. dispute did not that city conceded and mandatory duty was Spainhouer’s on-call majority recognizes that to Although the assignment.” part and of his “official work activity by a member of determine whether by also that there It was conceded compensable, the fire' is that could be invoked was no circumstances Supreme uses the standard of “offi- Court rights Spainhouer as a waiver of whatever proceeds it assignment,” cial work then Thus, it 1269p, section 6. had under article roughshod over that standard its run Spainhouer’s on-call dispute is without that apply interpretation of the haste to its stat- assign- duty part of his “official work was majority what the ute order to avoid he on call in a ment” and that was excess considers is foolish and absurd result. view, goes far work week. Since his my majority forty-hour afield from a court; appellate duty part as intermediate of his official its function on-call was it, although recognizing the assignment, because stan- I would hold that by Supreme dard established Texas compensation is entitled to at overtime Kierstead, ignore it proceeds Court in forty any time in excess of a hour rates for to the facts in case. applied when Antonio, v. week. See Kierstead San opinion at 121. I am S.W.2d further stated, standard, pre-1987, As majority’s reasoning attempting that the “any assignment kind of official distinguish the other authorities relied firefighting does not include and exceeds and, faulty; upon by compensable forty hour week is as contrary, believe that cases those right a overtime unless to maximum Supreme standard established Court forty Spain- hour week has been waived.” applied in this case. See should be houer’s evidence estab- Salazar, (1) City Brownsville v. 712 S.W.2d following: non-firefight- lished of (Tex.App. Corpus 1986, no and Christi employees most of Dallas em- — writ); Irving, ployees forty work a normal work week of v. Privitt week; (2) per photog- (Tex.App. Corpus was he a Christi — rapher Fire Department n.r.e.). for the Dallas writ ref’d his duties with the no reasons, foregoing Because fires; (B) included that he was on trial should be affirmed. court’s week, days per twenty-four per call seven 23, 1984; day from June 1980 to June
(4) days that he was seven
week, twenty-four per day during
alternate weeks from June 1984 to Feb- 10, 1986; (5)
ruary he that was specified be on call DeLEON, Appellant, M. Freddie was to be on call tele- phone home, by in his the radio vehicle, device; pager (6) that he Texas, Appellee. The STATE of specially provided equipped de- was No. C14-86-930-CR. automobile, special partment issued was Texas, Appeals Court protection equipment, a fire was issued Dist.). (14th Houston department identification card allow him provid- go areas and into restricted Aug. identifying him as a fire de- ed a uniform (7) partment employee; pager that that the operated through special
he carried
department paging system.