*1 HOUSTON, The CITY OF
Texas, Petitioner,
v. Roger BATES, Michael L.
Douglas Springer, Respondents.
No. 11-0778. Supreme Court of Texas.
June Hecht, J., opinion filed an concurring part dissenting part, in which
Lehrmann, J., joined.
Guzman, J., an opinion filed concurring part and dissenting part, in which Boyd,
J., joined. *2 Jr., Troy Blakeney, Richard C. Mu-
E. PLLC, Blakeney, Flynn Mumey & mey, III, Houston, TX, L. Marable Paul Vincent Wharton, TX, PC, Respondent for Webb Bates. Roger Feldman, Fleming, M. Donald J. David Timothy Higley, City Legal J. of Houston Pratt, The Reagan Douglas Department, TX, PLLC, Houston, Pratt Law Firm
City of Houston. Petitioner The opinion
Justice GREEN delivered Court, in Justice which Chief JOHNSON, JEFFERSON, Justice Justice WILLETT, joined; and Justice DEVINE and Justice in which Justice HECHT I joined as to Parts LEHRMANN II.A; and in which Justice GUZMAN I joined BOYD as to Parts Justice II.B. pay dispute be- appeal
This involves re- City of Houston and three tween the employed fighters previously tired fire (HFD). Department Houston Fire City to fighters sued the The retired fire deductions allegedly unauthorized recover upon retire- their termination asserted of their of paying ment. The retired salaries out First, the re- two distinct claims. two of
tired fire claimed that *3 A. Debit Dock Claim wrongfully pay deducted for overtime required fighters hours that HFD fire to areas, many In urban fighters fire are a implementation work after new of required often to work 24-hour shifts. Second, shift schedule in November 2001. Due job, Legis- to the demands of the fighters alleged the retired fire that the gov- lature has enacted various statutes City improperly fight- calculated each fire fighters’ erning pay fire and hours. For “salary” er’s for of termi- paying example, section 142.0017 of the Local pay upon nation their retirement. The requires City Government Code to a com- trial court found favor of the retired fire pensate fighter a for pay overtime if fighters ap- on claims. The both court fighter the fire works more than an aver- peals judgment, affirmed trial court’s age per of 46.7 hours week calculated over which awarded two of the retired fire a work 72-day cycle. Tex. Gov’t Loc. Code fighters pay reimbursement for overtime 142.0017(b). Utilizing 72-day work fighters and all of the retired fire addition- cycle, HFD scheduled fire to fighters work al termination for accrued and unused pay any one of four shift schedules. In one sick and leave. 406 S.W.3d schedule, shift a fire fighter would work (Tex.App.-Houston WL 3585612 eighteen 24-hour throughout shifts 2011, pet. granted) (mem.op.). [14th Dist.] cycle. 72-day work Because the shift court appeals’ judgment We reverse the did schedules not reach the 46.7-hour as to the first claim related to the overtime weekly average, HFD required fight- pay, judgment affirm its as to the second shifts, two ers to work additional 24-hour claim to additional related termination days,” cycle. called “debit each work On a judgment and render consistent with HFD day, assigned fighter debit a fire to opinion. work on different shift schedule and
many times a different fire station. As Background I. result, debit days were unpopular and rate high had a of absenteeism. Never- retirements, Bates, Prior to Roger their theless, days a part debit remained Douglas Springer Michael L. and Spratt, regularly scheduled work for fire shift (collectively, fighters) spent the retired fire fighters. fighters required Fire were to their fighters careers as fire HFD. with up day just show a debit on and work like Spratt Springer retired in and day in their other shift schedules. retirement, Upon Bates retired in 2005. the City paid the retired fire ter- an November HFD added extra mination pay pursuant day 72-day to sections 143.115 24-hour debit to each work and 143.116 the Texas Govern- cycle staffing shortages. Local due This extra pushed ment Code. See Tex. Loc. day fighters’ weekly debit the fire §§ average forty-nine— 143.115-.116. retired fire hours worked to ultimately the City, sued reim- to 2.3 overtime seeking entitling pay them hours of (1) (or twenty-four bursement for overtime that the each week hours over the 72-day docked from their termination cycle). course of To en- (the (2) claim), days, “debit courage dock” additional attendance on debit HFD based on the exclu- the last designated eight hours each premium pay sion of as the for day portion eligible the calculation debit over- designated over- present physically required HFD time trial, After a the trial get period. overtime bench present time physically be HFD’s ac- period. judgment Springer Under rendered for that court fighter was if a fire counting procedures, on their debit dock claims day, then a debit $152.20, leave on on authorized respec- them awarded $610.15 for sixteen HFD affirmed. 406 tively. appeals The court those hours, his account for charged at 560. hours, pay overtime but did not
sixteen and did eight hours remaining for the Pay B. Termination Claim *4 for those his leave account charge not and the The Local Government Code of an av- consisting This schedule hours. fighters fire to ac- City’s ordinances allow a week lasted for forty-nine hours erage unused sick vacation leave. cumulate and years. two approximately See, §§ 143.045- e.g., Tex. Loc. Gov’t Code from Spratt retired Springer When and .046; Tex., Houston, ORDINANCES Code of HFD, City previously paid deducted 34, I, fighter a fire ch. art. 34-3. When Spratt’s ter- Springer’s from overtime HFD’s sections employment, leaves that City checks. The claimed mination and 143.116 of the Local Govern- 143.115 overpaid for Spratt were Springer lump- to a fighter ment Code entitle fire which, Overtime,” according to Day “Debit but unused payment sum accumulated generated City from the City, was and sick leave. See Tex. Loc. vacation days Springer paying overtime for debit (vacation leave), §§ 143.115 The did not work. Spratt physically leave). (sick cases, In most sections .116 that from pay City overtime deducted accumulated require 143.115 and to 8- termination check related Springer’s at the vacation and sick leave to be valued City days on that hour shifts debit “salary” time the fire fighter’s fire at the prior out” to Springer allowed to “ride accumulated leave. See id. fighter that pay retirement.1 The overtime .116(b). 143.115(b), lump-sum §§ This City Spratt’s deducted from termination often to termi- payment referred to on check related vacation leave he took pay. nation day. Springer a scheduled debit that ex- City The enacted ordinances not dispute they do not that did Spratt pay, in- premium cluded certain days work for which physically the debit cluding educational incentive and as- for over- City previously paid them definition of signment pay, Instead, in the trial they argued time. calculating accu- “salary” leave they that were on authorized court mulated benefit leave for termination And, days. those debit because during See Houston, Tex., pay. spent that time section 142.0017 Ordi- Code of I, 3(c); art. see also nances ch. in calcu- on “authorized leave” be included 34— Ill, 14-243, §§ art. 14-244 ch. fighter fire id. lating the number of hours a leave at a sick to be valued cycle, they (requiring during 72-day worked “daily rate of base they fighter’s average that entitled to over- fire claimed were they plus longevity”). were The ordinances pay regardless time of whether fighters to for a maxi- City "ride out” limited fire receive allowed fire retirement, holiday prior accumulated time holidays upon of eleven accumulated mum effectively retiring fire which allowed termination. Houston, Tex., Code of Ordi- holiday paid for all to be of their accumulated I, 34-59(e)(6). art. nances ch. despite otherwise the ordinance which disparity create a financial between gues that Springer were not fighter amount of received entitled to be reimbursed for overtime 142.0017(e)(2) when he utilized his sick and because section of the Local his Government during employment and when Code does not require the he received accumulated sick and vaca- fighter count hours fire is on leave as tion For in- leave for purposes of computing a stance, fighter fighter’s an HFD fire eligibility used for overtime com- Second, pensation. sick or vacation leave to miss a re- City argues shift pay plus ceived his base all its preempted other forms ordinances are not by provi- premium pay sions of the fire was the Local gov- Government Code time, entitled to at that which erning could in- fire fighters’ termination pay be- longevity pay, clude educational incentive cause the Local Government Code does and assignment pay. explicitly In other define the term “salary.” words, if an HFD day took a We address each issue turn. City paid *5 A. Debit Dock Claim
fighter the same if physically he had day. hand, worked that On the other The debit dock claim issue requires City paid the a fighter his base pay us to construe section 142.0017 of the Lo only longevity pay as termination Code, cal Government which governs over for all accumulated sick and vacation applies to home-rule munici leave. “long-term City poli- Under this palities like the City of Houston. See Tex. cy,” an HFD fighter was financially 142.0017(a). § Loc. Specifical better off all utilizing of his ly, our task is to determine whether the during employment his than accumulat- Legislature intended phrase “any the oth ing it for purposes of termination er authorized leave” in section upon retirement. 142.0017(e)(2) to encompass only other leave, forms of which is the retirement, Upon City the issued checks position. fighters the retired fire for their termi- nation which did not include pre- the We review of statutory issues in mium The retired fire chal- terpretation de novo. See Loaisiga v. Cer lenged the ordinances on the grounds that da, (Tex.2012). 379 S.W.3d 254-55 they were preempted by the statutory Our primary objective when interpreting promulgated by scheme the Legislature give statute is to effect Legislature’s to the and codified in the Local Government Kimbrell, intent. Molinet v. 356 S.W.3d Code. The trial court found that the re- (Tex.2011). 407, 411 begin We with the tired fire were entitled to the full statute’s text and the presumption that the amount of their salaries for unused and Legislature intended what it enacted. accrued sick and vacation which re- Coat, K-2, Inc., Fresh Inc. v. 318 S.W.3d quired inclusion of educational incentive (Tex.2010). 893, 901 Legislative intent is assignment pay. The court of best expressed by plain the meaning of the appeals affirmed. 406 at 559. S.W.3d text unless the plain meaning leads to absurd results or a different meaning is Analysis
II. supplied by legislative definition or ap is City challenges The appeals’ parent court of from the context. Tex. Lottery judgment on the debit dock claim DeQueen, and the Comm’n v. First State Bank of First, (Tex.2010). City claim. ar- 325 S.W.3d When the of the 46.7- to work excess unambigu required was is clear and
text of the statute over a 72- weekly average computed accord statute’s words hour ous, apply we (f). 142.0017(b), § To meaning Id. day cycle. and common work plain ing to their apparent fighter intention is contrary the number of hours compute unless a Molinet, 356 72-day context. in a work required from the statute’s was to work (1) at City must add all hours cycle, (2) worked, on spent all hours physically text, statute’s section with the Beginning (3) call, all hours that fall within 142.0017(b) pertinent part: provides, categories enumerated may required ... not be fighter A fire 142.0017(e)(2), “any which includes other an aver- to work more than permitted 142.0017(e). leave.” See id. during a 72- hours week age of 46.7 weekly City may get average, To designated by the de- cycle day work days and then multi- by the total divide ... is If the fire partment head. (or divide daily average by seven ply average than an to work more required by number of weeks a 72- the total 72-day during a week of 46.7 hours weekly average If day cycle). work designated by depart- cycle 46.7, required then the exceeds head, be person is entitled to ment rates for pay overtime time-and-a-half provid- for the overtime as compensated 142.0017(f). the excess time. Id. (f). ed Subsection 142.0017(b). To Tex. Loo. Gov’t Code centers on the dispute this case many hours a fire calculate how *6 authorized leave” in sec- phrase “any other com- to work” for “required 142.0017(e)(2). statutory Our rules of tion weekly in fighter’s average fire puting the apply the dictate that we construction 142.0017(e) 72-day cycle, work section a Legisla- meaning unless the plain term’s “all hours are City that instructs the term a different prescribed ture has counted”: expressly byor context— meaning —either (1) ... during fighter which the fire is meaning leads to an absurd plain or the for immedi- required to remain available Comm’n, Lottery 325 result. See Tex. duty by continuously remain- ate call to term at 635. We note first that the S.W.3d department contact with a fire ing in by Chap- expressly “leave” is not defined radio; by by telephone office or 142 of the Texas Local Government ter (2) time, time, that are sick vacation Dictionary defines Black’s Law Code. time, time, holidays, compensatory meal “[ejxtended absence for “leave” as an leave, any family in the or other death which one has authorization.” Blaok’s leave. authorized ed.2009). (9th Law DICTIONARY 973 Web- 142.0017(e). City requires If a Id. Dictionary International de- ster’s New of a fighter to work hours in excess fire or as “an authorized absence fines “leave” per 72-day weekly average of 46.7 hours duty employment from usu. vacation 142.0017(f) re- cycle, then section [usually] pay.” with New Inter- WebsteR’s over- City a quires (2002). Neither Dictionary 1287 national regard to the number of time “without however, definition, that “leave” provides in one of the work hours worked week only paid means leave. Whereas always 142.0017(f). cycle.” Id. a term’s apply inclined to typically we are meaning, contrary a intention common statutory in sec- Simply put, the scheme statute’s context. See apparent from the City tion 142.0017 Combs, Geophysical v. TGS-NOPEC Co. fighters overtime rates when
545
(“Unde-
(Tex.2011)
v. St.
Hosp.,
340 S.W.3d
See Marks
Luke’s Episcopal
(Tex.2010).
given
in a
typically
fined terms
statute are
319 S.W.3d
In addi
ordinary
meaning,
tion,
but if
different
meaning
particular
their
“the
in
words
precise
apparent
definition is
bemay
by
or more
statute
ascertained
reference to
statute,
in
the term’s use
the context of the
other words associated with them in the
meaning.”).
apply
we
Antonio,
same statute.”
San
29;
Combs,
S.W.3d at
see also
340 S.W.3d
The context
of section
(“It is a
at 441
fundamental
principle
“any
phrase
demonstrates
other
statutory construction and indeed of lan
leave”
authorized
cannot be read
iso
guage
meanings
itself
words’
cannot
Hall,
lation. See In re
286 S.W.3d
be determined
isolation but
be
must
(Tex.2009) (“[W]e
give
will not
an
928-29
drawn from the context in
are
they
which
meaning
undefined
term a
that is
used.”). Here, the phrase “any other au
harmony or
with
out of
inconsistent
other
preceded
by
catego
thorized leave”
six
statute”).
in the
If
provisions
Legisla
time,
paid
ries of
leave: “sick
intended the phrase
ture
“authorized
time,
time, holidays,
meal
compensatory
be interpreted according
leave” to
to its
time,
in the family
death
leave.” Tex. Loo.
(i.e.,
meaning
encompassing
common
all
142.0017(e)(2).
Given
paid
unpaid)
forms
both
scheme,
surrounding statutory
we con
surrounding
reference to the
stat
without
clude that the
“any
intended
scheme,
utory
specific
then its
enumer
other
leave”
six
pre
ation of
forms of
leave that
142.0017(e)(2)to have the
meaning
limited
phrase
cede the
would have been for
encompassing only
other
forms of
Comm’n,
naught.
Lottery
See Tex.
leave.
(“We
Legisla
at 635
presume
language
ture
selected
a statute with
reaches
dissent
the conclusion that
142.0017(e)(2)
that every
phrase
care and
word or
was
“leave” in section
includes
mind”).
purpose
used with
When
construing
the term as it
*7
words
general
specific, enumerated
is
the
provisions
follow
used within
context of two
that,
we limit
categories,
general
ap
words’
provisions
by
section 142.0015—
terms,
plication to the same
of
kind or class
cate
their owns
do not
apply to
gories
expressly
City
fighters.
those
mentioned.
this subsection or of one million it population ingly, appeals with a the court of erred when ties 143), Chapter adopted have more that not court’s judgment affirmed the trial award- . 142.0015(f-l) (providing § that this and id. ing Springer both reimburse- officers). police applies only to subsection previously ment over- deducted require us to draw This construction would time from their termination checks. Legislature’s from use of meaning in a where term Pay
“leave”
context
B. Termination
Claim
forms
by
of leave
surrounded
additional
The
claim in
not
in the
Legislature
did
include
that
statutory preemption.
volves an
of
issue
inCity
to the
this case.
applies
statute that
Houston,
cities, like the
City
Home-rule
142.0017(e)(2) (providing
§
id.
Compare
derive
Texas
powers
their
Consti
“that
all hours are counted
are sick
that
Const,
XI,
5;§
tution.
See
art.
see
Tex.
time,
time,
time,
holidays,
meal
51.072(a)(“The
also Tex. Loo. time,
family
compensatory
death
power
full
municipality has
of local self-
leave,
leave”),
any other authorized
with
or
government.”).
Legislature
limit
may
142.0015(e-l) (providing
that hours
id.
city’s
a
broad
when it
powers
home-rule
leave, in-
“any
worked include
expresses its intent to do with “unmis
so
leave,
cluding attendance incentive
vaca-
clarity.”
takable
Dall.
&
Merch. 's Conces
leave,
leave,
holiday
compensatory
tion
Dallas,
City
v.
sionaire’s Ass’n
off, jury
military
leave
duty,
(Tex.1993).
S.W.2d
490-91
“An ordi
family”),
of a
in the
id.
because
death
city
attempts
nance
a home-rule
142.0015(f-l) (same).
pre-
We must
regulate
subject
by
matter
preempted
however,
sume,
Legislature’s
in-
state statute is
to the extent
unenforceable
only
clusion of
forms of
leave and its
it
with the state
Id. at
conflicts
statute.”
omission
forms of
sec-
Const,
491;
XI, §
see also Tex.
art.
142.0017(e)(2)
purposeful.
tion
were
See
(providing that no ordinance “shall contain
Austin,
Quick City
v.
provision
inconsistent with the Consti
(Tex.1998)
(presuming
the omission of
State,
tution
or of
laws
general
within similar
phrase
contained
statutes
State”).
enacted
purpose). Accordingly,
had a
we decline
If a
effect
giving
reasonable construction
on
provi-
to construe “leave” based
two
to both the state statute
the ordinance
that do
apply
sions
to the
and that
*8
reached,
can be
then a
will
city ordinance
syntactically
are
from the provi-
dissimilar
by
not be
to have been
preempted
held
at issue in
sion
this case.
state
Dall.
statute.
Merch.'s
that,
undisputed
The facts are
even if
Here,
at 491.
we must
whether
determine
Springer
Spratt
“approved
and
were on
statutory
the Local Government Code’s
shift,
leave” for the designated overtime
regarding
payment
scheme
of accumu
their leave time
was
their leave
lated
leave
retirement
upon
benefit
were
for
charged
accounts
not.
those shifts.
preempts
ordinances that limit
Therefore,
our narrow
applying
construc-
the valuation of accumulated benefit leave
142.0017(e)(2),
“leave”
tion of
in section
salary
only.
to base
longevity pay
City was not
count
required to
each debit
begin
statutory
We
with the
text. Fresh
day’s final
when computing
8-hour shift
Coat, Inc.,
Sections
ry”.1 Section regular pay”.2 to If firefighter’s] [a tion fire- salary”, ... base a “[i]n addition are premium pay regularly these forms of to various of fighter may be entitled they “salary” are paid regular pay, but not seniority pay, premium pay longevity — purposes calculating for termination pay, assignment incentive pay, educational point not. The pay? Perhaps, perhaps is pay. The differential Court pay, and shift the question answer to the cannot be to mean that for these statutes construes in a dictionary. found calculating salary” “base “salary” includes can, instance, But the in this answer be that the premium The Court reasons history provi- found in of the the salary compensa- dictionary definition is statutory lump-sum sions. Identical ter- premium pay and since regularly, tion paid mination were in pay requirements effect regularly is ren- compensatory also in as part 1976 of Article 1269m of the “salary”. dered, Using be it must Revised But Civil Statutes.3 Section 143.110(b)’s could conclude that be- logic, 1269m, same one predecessor, Article 8, hair and upright, § have walk firefighter cause humans stated that a was entitled by monkeys, mon- salary shared to “be and in characteristics addition [a] keys dictionary longevity defini- or paid any seniority are humans. thereto be “salary” pay may tion neither nor even or incentive that he educational regularly paid compensa- Clearly, firefighter’s all be entitled a suggests that to.”4 “salary” premium pay. less that include tion much elements did qualifies, sentence, be the Then in next cannot excluded from statute compensation provided firefighter temporarily for Edu- that a “salary” specific purposes. term moved to “shall pay, assignment pay, higher position be cational incentive 143.112(c) ("The (a) (b) department.”); 1. Texas educational Section 143.116 of the provides regular pertinent Code in incentive in to the Local Government addition "(a) officer.”). part: ... by police A fire who leaves received or ... to receive in [is] classified service entitled payment the full lump-sum amount of R.S., 2, 1975, 131, Leg., May 3. Act of 64th ch. ... fighter’s ... accumulated sick leave 1, 302, 302, § formerly 1975 Tex. Gen. Laws (b) ... ... Sick leave is valued at the fire 1269m, 26(b), § Ann. art. Tex.Rev.Civ. Stat. average salary year in fighter’s ... the fiscal "(a) provided part: fireman ... who [A] was which the sick leave accumulated.” ... leaves the service shall classified receive 143.115(b) provides pertinent Section lump payment in a the full amount sum of his part: fighter ... who "A tire leaves the classi- salary period for of his accumulated sick ... entitled to in a fied service receive (b) leave.... fireman ... who [A] leaves payment lump-sum the full of the amount lump classified ... shall receive service person's salary period person’s payment salary sum full amount of his up leave a maximum accumulated vacation period accumulated vacation of his working days.” of 60 up days].” [for 60 143.042(c) ("The §§ Loc. Gov’t Code Tex. 1973, R.S., 140, Leg., May 4. Act of 63rd ch. assignment pay pay- is in an amount and is (amended Gen. Laws Tex. by able conditions set ordinance and is under 1985), repealed by 1979 and Act regular by received addition to recodified 1, 1987, R.S., 149, 49, May Leg., ch. 70th police department.”); members of or 707, 913, (former 143.047(b) ("The Tex. Gen. Laws shift differential is in an 1269m, 8(b), Ann. art. re- payable under amount and is conditions set Tex.Rev.Civ. Stat. by part codified at Tex. Loc. Gov’t regular in addition in relevant ordinance and is to the 143.110-.111). §§ police of the fire received members Code *12 salary higher position plus the base of such doubt whether the City would ever have longevity pay”.5 his own salary”, “Base premium pay if it had known too, premium pay. did not include As the imposed cost later on its decision is concedes, Court Article 1269m used “sala substantive.
ry” salary” interchangeably. and “base The points Court part another 1976, In adopted Houston an ordinance Section 143.110 that refers to longevity requiring pay termination in accordance pay separate as pay”, equates “base statutes, with adding these at the end: pay” “base salary”, “base and concludes determining For the amount they along premium with pay are all ..., to which a fireman ... is entitled parts of a firefighter’s “salary” pur- “salary” shall mean the authorized base poses computing termination But employee plus the longevity the conclusion does not follow from the
rate up he has attained to the date of premises. No questions one that firefight- separation or death. For purposes of ers’ base is separate from premium section, “salary” this shall not include pay. The issue is whether both are includ- educational training incentive pay or “salary” ed in the on which termination premium pay other form of except pay is They calculated. clearly were not in provided above.6 1976, and nothing material has changed Houston’s ordinance was consistent with since then. agrees The Court Article 1269m. The substance of the ordi- City has total discretion whether to offer nance has remained in effect to day.7 educational incentive pay assignment all, does, but if it it has no discre- 1987, the provisions of Article 1269m tion whatever to offer them on its own were moved to the Local Government terms. This limitation on dis- part Code8 as of what the Legislature cretion is not to be found the statutory expressly stated was “a recodification provisions. only”, in which “no substantive change in the law is intended”.9 The argues Court Had the firefighters’ changing “salary” salary” to “base 1976, claim been made it scarcely could
was not a change merely substantive but have seriously. been taken only clarification. While the Court was looking change since 1976 has been a substitution up the “salary” word in the dictionary, it of words in a statutory recodification in- should flipped have a few pages over to not, tended to be nonsubstantive. That is “substantive”, which means “real rather view, my sufficient support for the fire- apparent”.10 than A “clarification” that in- fighters’ claim. premium pay cludes as salary when it was excluded, previously part invalidates of a I Accordingly, respectfully dissent from ordinance, city home costs the and its the Court’s award of additional termi- amounts, taxpayers enormous and casts in nation to the firefighters. 1, 1987, R.S., 149, Id. May 5. Leg., 8. Act of 70th ch. 1, 707, 913, § 1987 Tex. Gen. Laws 915. Houston, Tex.,
6.
Ordinance
76-1882
1, 1987,
R.S.,
149,
May
Leg.,
9. Act of
70th
ch.
(Nov. 2, 1976).
1987 Tex. Gen. Laws
1308.
Houston, Tex.,
Code of
Ordinances ch.
10. Webster’s
Dictionary
Third New Int'l
1, 34-3(c).
art.
(2002).
Background
GUZMAN,
I.
by Justice
joined
Justice
*13
dissenting
BOYD,
part
concurring
the Local Govern-
142.0017 of
Section
part.
Fire De-
the Houston
ment Code
(HFD)
fight-
fire
compensate
to
partment
agree with
Court
I
average over
pay
they
if
ers for overtime
termi-
additional
are entitled to
fighters
during a 72-
per
hours of work
week
fire
disagree that the
But I
pay.
nation
day
cycle.
work
Tex. Loc.
Gov’t
Code
pay
to overtime
are not entitled
fighters
142.0017(b).
2001, HFD
Before
sched-
and therefore
dock claim
their debit
under
for 18 24-hour shifts
fighters
uled fire
opinion
Part II.A of
dissent
42
cycle (averaging
during
72-day
work
142 of the Local
Chapter
judgment.
72-day
cycle).
week over a
work
per
hours
requires municipalities
Code
Government
days,
shifts included debit
Some of these
fighter
overtime rates once
pay
to
fighter
required
fire
was
to work
where a
hours,
statutory level of
a certain
reaches
at a
frequently
schedule and
a different
“any
call as well as
includes time on
which
20 shifts over a
different station. These
Here,
ques-
leave.”
authorized
other
averaged just under 46.7
72-day period
“any other au-
is whether
presented
tion
cycle
week for the
and allowed
per
hours
authorized
unpaid
leave” includes
thorized
rates.
paying
HFD to avoid
overtime
construing
Our canons for
statutes
leave.
in-
shortages caused HFD to
Staffing
numerous,
is
but the cardinal canon
are
72-day
to the
clude an additional shift
they say.
do
mean what
We
that statutes
cycle in 2001. The additional debit
work
plain
resort to lesser canons when
cycle aver-
day
72-day
increased the
unambiguous.
Be-
meaning of a term
week,
HFD
per
obligating
to 49 hours
age
that the plain
here affirms
cause
Court
compensation
to
2.3 hours of overtime
leave is an authorized absence
meaning of
days
unpopular
were
per week. Debit
leave, that
unpaid
not exclude
and does
because of the different
among firefighters
But the Court
inquiry.
should end its
station,
potential
shift
different
ejusdem gen-
proceeds to use the canon
But
resulting
high absenteeism.
ambiguity
an
and then re-
eris to create
on
shortage,
staff
attendance
light of the
in manner that violates our cardi-
solve it
for HFD. To
days
important
became
debit
by holding
that the list of
nal canon
encourage
days
attendance on debit
while
preceding
of leave
the term indicates
obligation
to
attempting to avoid an
This inter-
it is constricted to
leave.
overtime,
eight
the last
designated
HFD
result,
peculiar
pretation
especially
is an
day
eligible
debit
as the time
hours of each
explained
given
on
If a fire
was
for overtime
142 that authorized leave includes
Chapter
day,
leave on a 24-hour debit
military
as
unpaid
leave such
forms
that it would
policy
HFD
stated
are
leave. Our canons of construction
(with an
for the first 16 hours
fire
de-
glean legislative
meant to
intent —not
account)
in their leave
offsetting deduction
means what
it
feat it. Authorized leave
or overtime
for the
but not
base
says,
necessarily
which
includes
from their
eight hours or deduct
remaining
Nonetheless,
I
hold that the de-
leave. Because would
HFD man-
leave account.
statutory
eight
with its
partment
comply
must
work this
dated that
just
duty
compensate
approved
hour shift or have
shift,
subject
I
or be
approves,
for leave it
other work
overtime rates
words, HFD
action.
In other
disciplinary
respectfully dissent.
firefighters
approved
judicial
to have
canon is also
last:
required
inquiry
day
complete.
for the entire
but
leave available
debt
deduct the final
hours of
eight
would not
Germain,
Bank v.
Conn. Nat’l
503 U.S.
attempt
an
leave in
to avoid the
249, 253-54,
112 S.Ct.
117 L.Ed.2d
Had
obligation
pay overtime rates.
(citations
(1992)
omitted).
See also
HFD allowed the use of
for Tex. Natural Res. Conservation Comm’n
-
hours,
eight
it
would be
these
admits it
Co.,
v.
Util.
Lakeshore
*14
firefighters
compensate
to
at
obligated
(Tex.2005) (“Our primary objective in con-
(if
rates
hours ex-
average
overtime
struing
give
is to ascertain
[a statute]
and
per
72-day
46.7
week
work
ceeded
for the
Legislature’s
effect to the
first
intent
cycle).
looking
plain
statute’s
at the
and common
If the
meaning.”).
meaning of the statute
Spratt
Douglas
Michael L.
When
and
apparent
may
is not
from its language, we
HFD,
depart-
Springer retired
only
examine
the language
spe-
not
of the
it
them
overpaid
ment claimed
had
for
cific
at issue
section
but also the statute as
days they
debit
did not
work
physically
Gen.,
a whole.
re
Attorney
Officeof
overpayments
and deducted the claimed
—
-,
-,
S.W.3d
Undeterred construction, in single resorts leave section 142.0015 is un the to Court canon, helpful applies at section to ejusdem generis, lesser in an because — ambiguity populous municipalities. to the term and less tempt create -,-. But different within a ambiguity then resolve that a manner sections necessarily term’s common statute address different mat inconsistent with meaning. negate principle reasons that ters. This does not our The Court specific entire ascertain types preceding examining leave “other statute to leave, types paid of an term. See meaning authorized leave” are undefined —Gen., leave Attorney that other authorized must nec S.W.3d at Office of refer -. essarily only leave. If the intended setting entirely that the of this same to mean two different Even aside result term statute, things cardinal canon of com within the same it could canon violates our meaning, interpretation vio have that distinction clear defin mon also made ing “any lates our examine the statute as a other authorized leave” canon to — not, Gen., Attorney whole. the statute at issue. It and we did Office of 142.0017(e) respect Recently, section must that choice. we S.W.3d at -. While “any phrase neglect” does not define other authorized examined the “abuse or 161.001(1X0) 142.0015(e-l) (f-1) leave,” Family re of the Code— sections leave, setting forth including grounds fer to attend statute “authorized leave, leave, parental rights. terminate involuntarily ance incentive holi (Tex. leave, E.C.R., off, day jury In re 402 S.W.3d 243 compensatory 2013). military duty, or leave because of a Because termination statute in the did not abuse or we exam family.” neglect, death define Tex. Loc. Gov’t Code Dictionary Dictionary (9th ed.2009). duty”); The Oxford Illustrated 1. Black’s Law Heritage College (2d ed.1975) (defining See also The Dictio- "permission American leave as nary (3d ed.2000) (defining ”[o]f- duty”). be absent from permission ficial absent work or to be phrase Family the use of that in the ined
Code’s removal statutes and determined neglect encompasses that abuse or risk of neglect. abuse or Id. at 243-49. The fact that termination and removal are distinct
topics did not dissuade us from ascertain
ing Legislature’s intent from its use of phrase
the same different locations Likewise, within the statute. it should not so deter the Court here. conclusion, Chapter 142 of the Local
Government Code HFD to com- pensate at overtime rates when their hours exceed certain statutory
levels. This calculation includes time worked, call,
physically time on approved leave. plain meaning term leave is an approved absence and
does not exclude leave. Our cardi- *16 nal rule of construction dictates that our inquiry end there. HFD Because refused compensate at overtime approved
rates for leave it but did not for, I judgment would affirm the
court of appeals. Because the re- Court portion verses this appeals’ of the court of judgment and renders judgment that the take nothing on their overtime
claim, respectfully I dissent. HOUSTON,
The CITY OF Texas, Appellant
v. BATES, Roger Spratt, Michael L. Douglas Springer, Appellees.
No. 14-10-00542-CV. Texas, Court of Appeals of (14th Dist.). Houston Aug.