Lead Opinion
The City of Plano appeals from a judgment that held several of its ordinances that establish salary plans for employees of its fire and police departments to be in conflict with article 1269m of the Texas Revised Civil Stаtutes. Additionally, the judgment ordered payment of wages that would have been earned had the offensive portions of the ordinances not been enacted. We reverse and render judgment for appellant, City of Plаno.
The City of Plano annually enacts ordinances establishing salary plans for employees of its police and fire departments. Within each department various classifications are established by rank (e. g., patrolman, sergeant, lieutenant), and for each such classification base pay rates are set. In addition, the city has established incremental pay increases, which are the subject of this suit, based on rank and length оf service. The pertinent wording of the ordinances in question is as follows: “Advancement within the salary structure set out shall be allowed only with the payroll period beginning [at the midpoint of the fiscal year] and the payroll period beginning [at the endpoint of the fiscal year]. In order to advance from one six-month service plateau to the next, an employee must have completed the required number of continuous service months prior to the advancement date in order to be eligible to advance.”
The deleterious effect of these ordinances as alleged by the appellees, employees of the City of Plano’s police and fire departments, is exemplified as follows: Patrolman A is hired the day before the fiscal year ends and patrolman B is hired two days later, a day after the fiscal year ends. Patrolman A will complete six-months service the day before the midpoint of the fiscal year and patrolman B will complete six-months service two days later, a day after the midpoint of the fiscal year. When the advancement date of the midpoint of the
The trial court found that the city ordinances conflict with the Texas statute regarding classification of firemen and policemen. Thаt statute reads in pertinent part, as follows:
The Commission shall provide for the classification of all firemen and policemen. Such classification shall be provided by ordinance of the City Council, or legislative body. Said City Council, or legislative body, shall prescribe by ordinance the number of positions of each classification.
No classification now in existence, or that may be hereafter created in such cities, shall еver be filled except by examination held in accordance with the provisions of this law. All persons in each classification shall be paid the same salary and in addition thereto be paid any longevity, seniority, educational incentive pay, or certification pay that he may be entitled to.
Tex.Rev.Civ.Stat.Ann. art. 1269m, § 8 (Vernon Supp. 1980) [emphasis added].
Appellant first contends that the increments established by these ordinances are not classifications within the meaning of article 1269m, but constitute provisions for longevity or seniority pay. As such, it contends that the increments are not affected by the language of article 1269m requiring that the “same salary” be paid to “all persons in each classification.” Appellant’s second contention is that even if the subject increments are classifications within the meaning of article 1269m, the ordinances do not violate article 1269m because in order to move from one such “classification” to the next would require 1) that an employee be of a certain rank, 2) that the employee have reached a certain service plateau, and 3) that the first two requirements be met pri- or to the advancement date. Therefore, six-months additional service is only one requirement of each such classification, and, after meeting all the requirements, all employees within each classification would be paid equally.
Appellees’ contention is that the six-month service plateaus provided in the ordinances are incremental increases in base pay and therefore constitute classifications within the meaning of article 1269m. Further, appellees point out that appellant provides “longevity pay” to all of its employees under an entirely distinct program. It would therefore be incongruous and erroneous they argue, to label these increments as longеvity or seniority pay. Thus, they conclude that appellant’s ordinances violate article 1269m because two employees who each have, for example, between six and twelve months service may be paid different amounts as indicated by the above example. We agree with appellant’s first contention that these increments represent longevity or seniority pay
An examination of the wording of section eight of article 1269m indicates that the classifications referred to therein are the ranks provided by the ordinances of thе city, and not the six-month pay increments. See Jessen Associates, Inc. v. Bullock,
When a general law of the State of Texas and an ordinance of a home rule city appear to be in conflict, the duty of this court is to reconcile the two if any fair and reasonable construction of the apparently conflicting enactments exists and if that construction will leave both enactments in effect. City of Beaumont v. Fall,
Accordingly, we reverse the judgment of the trial court. Since appellant filed a motion for summary judgment in the trial court and оn this appeal prayed that we render judgment by sustaining that motion as the trial court should have done, we render judgment for appellant. See Hall v. Mockingbird AMC/Jeep, Inc.,
Notes
. Initially we note that appellee claims that appellant’s point of еrror was not preserved for appeal because it was not included in its motion for new trial. Under amended rule 324 of the Texas Rules of Civil Procedure “[a] motion for new trial [is] not ... a prerequisite to the right to complain on appeal” unless one’s “complaint . . . has not otherwise been ruled upon.” The thrust of this point of error was set forth in appellant’s motion for summary judgment and response to appellee’s motion for summary judgment in the trial court and therefore, was ruled upon by the entry of judgment overruling appellant’s motion and granting appellees’. Appellant’s point of error was properly preserved for appeal.
Rehearing
ON MOTION FOR REHEARING
In their motion for rehearing, appellees raise points that deserve our attention. First, they indicate that we incorrectly summarized their contention as being “that the six-month service plateaus provided in the ordinances are incremental increases in base pay and therefore constitute classifications within the meaning of article 1269m.” Ap-pellees state that their contention, as correctly stated, is that the “6, 12, 18, 24 or 30 month service plateau[s] рrovided in the [the] ordinances are incremental increases in ‘base pay’ within each classification.”
Essentially, appellees adopt the reasoning of the court of civil appeals in Nichols v. Houston Police Officers’ Pension Board,
The court of civil appeals, in affirming the judgment for the pension board, held that the sеrvice plateaus were increases in base pay and that this conclusion did not conflict with article 1269m because the salary “increase[d] consistently and uniformly for ‘all persons’ in the classification.” Id. at 263-64. We cannot agree with this holding.
Whether it is called compensation for tenure, longevity pay, seniority pay, or some other term, the incremental increases in salary provided by the service plateaus in question obviously are based on the length of time an employee has served in a particular classification. We believe that this form of сompensation was intended by the legislature to be included among the various forms of additional compensation to which a fireman or policeman might be entitled, and to which the “ ‘same salary’ for ‘[a]ll persons in each classification’ ” restriction does not apply. See Tex.Rev.Civ. Stat.Ann. art. 1269m, § 8 (Vernon Supp. 1980). As noted in the body of our opinion, this form of compensation constitutes longevity or seniority pay. The fact that the City of Plano pays longevity or seniority pay to its policemen and firemen based on length of service in a particular classification, as well as paying it based on length of service with the City, does not change the character of the payments.
Appellees’ motion for rehearing and supplemental motion- for rehearing are overruled.
We note that even applying the reasoning employed in Nichols, our holding in this case might be the same.