Woods v. VanDEVENDER

cretion not to re-deputize VanDevender to McKEITHEN, C.J., Before KREGER another term. HORTON, JJ. PROCEDURAL BACKGROUND OPINION After County stopped Jefferson paying KREGER, CHARLES Justice. benefit, full salary his VanDevender filed in February against suit Jefferson VanDevender, James a former Jefferson Woods, County and against Sheriff in his sheriff, County deputy filed suit against (hereinafter capacity official as Sheriff col- Jefferson County Sheriff G. Mitch Woods lectively referred to as “Jefferson Coun- (“Sheriff Woods”) and Jefferson County, ty”). suit, In sought his VanDevender a Texas, stopped after the County paying his that, declaratory judgment pursuant to the full during period benefit a of inca- Constitution, he was entitled re- pacity caused he injury sustained in 1, 2001, ceive his full March from the course of his official duties a through December prior term of office. While VanDevender’s injury office, trial, occurred in one term of After the first bench which was period of incapacity that is at issue in a before different than the one who judge case subsequent occurred in present term of conducted the tri- proceedings, the office, after was re-appoint- VanDevender al court nothing. awarded VanDevender ed as a deputy sheriff. After a previous appealed then to this court. VanDevender trial before judge appeal appeal, another and an On we held that on-the-job injury April his although we also resulted from recovery, allow a

did not that “the finding court’s noted the disproved proved nor neither evidence County agreed In Jefferson response, disability was current VanDevender’s “sup- expert affidavit and af- on-the-job injury,” caused court that finding by ported] [the trial] of the trial court. firmed the disability by [VanDe- claimed Woods, 175 S.W.3d causally VanDevender relat- beginning vender] 2005), 545, 546, (Tex.App.-Beaumont injury 2000.” ed to the he suffered rev’d, County argued Jefferson decision on the constitutional previous our appealed to the Tex- then VanDevender binding the trial court. issue was on The held that Court Supreme Court. responded by filing sup- a VanDevender whether failing in first address we erred motion, arguing that the Texas plemental incapacity during peri- require termination Constitution “does not job- had resulted from his od at issue to an in- salary of continuation [benefits] addressing the con- injury before related law enforcement officer for inca- jured [an] VanDevender question. stitutional that extends into another term of pacity Woods, 430, 431 reappoint- office when the officer has been concluded that “whether [the The Court that additional term.” The trial ed for salary limits maximum Constitution] in granted summary judgment court favor inju- in to the term which VanDevender’s found: VanDevender and immaterial ry/incapacity first occurred is that Court finds and declares [T]he April of this case unless to the outcome plaintiffs injury April sustained on disability in the injury caused his (which agreed being been to as has Id. at The subsequent term.” Court offi- plaintiffs sustained in the course of prior and this court’s vacated a deputy employed cial duties as sheriff the case to us to allow us remanded defendants) plaintiffs caused inca- proven whether VanDevender had address in Decem- pacity January his 2001 to incapacity that was related his on- ber 2004 term of office. Court injury. Id. the-job motion, in grants plaintiffs part, because declares, upon it finds and based court, parties On remand to this record, summary judgment plain- that case, that we remand the jointly requested 2, 2001, incapacity tiffs from March justice, in the interest of court 31, 2004, through December resulted for new trial on causation and all other a in the injury from the he sustained Woods, No. 09- issues. VanDevender April of his official duties on course (Tex. 04-477-CV, *1 at WL 29, 2007, pet.) App.-Beaumont Nov.

(mem. the case op.). After we remanded court, filed a to the trial VanDevender further entitled to declarato- Plaintiff is summary judgment. In his motion ry declaring relief that Tex. CONST. Art. motion, 52(e) argued that he was § VanDevender not bar him from re- does full continua Salary entitled to receive his Benefits covering Continuation 31, 2004, through incapacity starting tion benefits December in period for his summary judgment incapacity and that his evidence occurred 2001 because injury prior a matter of law that his a “term of office” than established as of his official in 2001 sustained the course period began duties for defendants because he was Application of the doctrine is discretionary reappointed to that later term of office. depends particular on the circum stances surrounding given ease. Bris appeal This followed. coe, 102 S.W.3d at 716. The Texas Su ISSUES preme that, Court explained County Jefferson asserts two issues on would court], ‘[i]t be unthinkable for [the 1) appeal: whether the trial court erred in after having granted writ, reconsid- ruling that article section 52e of the case, ered and arrived at the conclu- requires Texas Constitution the payment sion that opinion on the former ap- continuation benefits to VanDe- peal erroneous, was clearly to hold that vender second of disability it is bound considerations of consis- following the term of office in which the tency to perpetuate that error. Our original injury, incapacity, receipt duty to justice law, administer under the occurred; 2) benefits whether our it, as we conceive outweighs duty our prior court’s opinion bound the trial court be consistent.’ with respect to whether the Texas Consti- prohibits tution the payment ben- Id. at 716-17 (quoting Conn. Gen. Ins. Life efits for the of incapacity in issue. 86, Co. v. Bryson, 148 Tex. 219 S.W.2d (1) III, VanDevender contends that article (1949)). 800 Pursuant to these principles, section 52e allows continuation ben- remand, in appeals after our sister courts paid efits to be an injured to officer for have prior revisited decisions called into incapacity that extends into another term question by intervening higher-court deci the officer has been reappointed for sions. See Tex. Parks & Dept. v. Wildlife (2) term; that additional and the “law of Dearing, 240 S.W.3d 348 (Tex.App. the case doctrine” govern does not the denied). pet. -Austin appeal. resolution of this Before we ad- “[Wjhile the law-of-the-case doc issue, dress the merits the constitutional trine contemplates prior situations where we address whether we by are bound our appellate court decisions on legal questions previous determination.

should be in appeals reconsidered after LAW OF THE CASE DOCTRINE remand, it appellate is the court—not the lower court—who decides whether it is

The “law of the case” doctrine appropriate Dearing, do so.” 240 provides that when a decision is made on a Though S.W.3d at 348. the merit of our question by resort, of law a court of. last prior decision on the constitutional issue govern decision will the case in subse before us not has been called into quent stages. Jackson, question City Houston by an (Tex.2006). intervening higher-court decision, 769 The ratio prior our nale has been behind the doctrine vacated. See is the narrowing VanDevender, 222 of the S.W.3d at 433. Appli issues stages successive cation of litigation to the law of the case uniformity achieve doctrine is decision judicial discretionary as well as economy and does not bar efficiency. us from revisiting Briscoe Corp., Goodmark constitutional issue in the S.W.3d hand, Briscoe, present On the other case. “a See 102 S.W.3d at by conclusion reached 716. Both the trial ap intermediate court and court pellate court does not bar now reconsideration benefit from additional briefing by the of the initial conclusion in a subsequent parties on the constitutional issue evi Jackson, appealf.]” 192 S.W.3d at 769. legislative dence relevant to intent. Addi- tionally, prior judgment though may persist our vacated his or reoc term, Supreme subsequent Conse- cur in a Court. or does reappointment the trial extend the so long we find no error benefit quently, duly-sworn deputy?” decision to re-address constitu- as he remains a court’s VanDevender, issue, not and we are likewise bound S.W.3d at 432. We re tional opinion. issue view trial law prior our We overrule court’s conclusion of on de novo. McKinney this issue Johnston v. two. Inc., Am., (Tex.App. denied). 1999, pet. [14th -Houston Dist.] CONTINUATION OF SALARY BENEFITS When this issue was before previously us, right we concluded that the Texas Article 52e depu- of a receive continuation benefits authorizes at the end of the term in he periods for after ceased ty sheriffs certain injured, and we deputy in the course of his was held that properly and he See court held that VanDevender’s duties is unable to work. Const, § 52e entitlement benefits could not extend pro- 52 e. Section beyond expiration of the term in which as follows: vides VanDevender, injured. he was county in the State Texas is Each 547-48. S.W.3d at We reasoned that the hereby medical ex- pay authorized to all “term,” provision uses word not all hospital all doctor bills and penses, “terms,” describe the limitation and con- Sheriffs, Sheriffs, Con- Deputy bills cluded that we could not pro- construe the stables, Deputy and other Constables give length vision to additional inca- county precinct law enforcement of- pacity phrase. Id. the injured ficials who are in course of duties; official that while providing their Now, fully developed the record is more Sheriff, Sheriff, Constable, Deputy said provides further detail the regarding Deputy county Constable or other or legislative history surrounding adop- the law enforcement is hos- precinct official tion of section 52e. The that language incapacitated county or that the pitalized appeared on the voters’ ballot in 1967 continue pay his maximum sala- shall did, indeed, adopted when section 52e was however, ry; providing, pay- that said include the word “terms” and the sin- not the expira- ment shall cease on gular, which lends support to VanDeven- of the term tion of office to which such interpretation compels der’s to look us was elected or Pro- appointed. official at the intent the provision. behind The vided, however, provision that no con- provision appeared as follows: herein tained shall be construed to Amendment [T]he Constitution amend, modify, nullify repeal or Article authorizing county each in this state 16, 31, Section of the the bills, pay medical the doctor bills and of Texas. State Sheriffs, hospital Deputy bills for all Sheriffs, case, Constables, in question Id. constitutional Deputy Constables Court, as framed the Supreme county precinct Texas and other law en- whether “the Constitution’s restriction that forcement officials who are in duties; full-salary expira benefit the their pro- cease ‘on the course of official tion county term of office’ that that the shall viding mean[s] continue salary expires ini pay the maximum offi- those tial ‘injury/incapacity’ expires, they term even but incapacitated, cials while are

281 salary payment shall not continue County such Jefferson interprets they the terms to which beyond provision to mean payment of office appointed. were elected or expiration shall cease on the of the term of office in which the injury first occurred. 6, R.S., Leg., Tex. S.J. Res. 60th 1967 Tex. added). when the pro amendment was (emphasis Gen. Laws 2969 posed, the Legislative Council indi When interpreting the Texas proposed cated that the amendment was Constitution, rely we are heavily on its necessary to circumvent article text, give literal and are to effect to its 52, prohibits a grant or loan of plain Republican language. Party Tex. public funds to private individuals enti or Dietz, 86, v. 940 S.W.2d 89 We ties. See 6 PROPOSED Leg. guidelines use the same in interpreting CouNCil, CONSTITUTIONAL AMENDMENTS ANALYZED, at provisions constitutional as we do in inter 1967). (general Thus, 13 election Nov. State, preting v. statutes. Stine “provides amendment (Tex.Crim.App.1995); exception S.W.2d Co., Mellon Serv. v.Co. Touche Ross & favor of county payment of county and (Tex.Civ.App.-Hous S.W.2d precinct law enforcement officials’ medical writ). ton [14th Dist.] “We also expenses resulting injuries from occurring may things purpose consider such of during performance of their official provision, the constitutional the historical duties. It also permits payment of maxi- 'written, context which it was the collec mum salaries to these officers their intent, ascertained, tive if it can be incapacitation or hospitalization.” Id. We framers and the people adopted who it.” conclude that one of the purposes of the Dietz, 89; at see also Dewhurst amendment was to overcome constitutional Hendee, (Tex.App. 253 S.W.3d restrictions prohibited govern- denied) 2008, pet. (citing Stringer Austin ment’s of public private funds to Mortg. Corp., Cendant by specifically individuals authorizing “ (Tex.2000)). ‘The fundamental rule for payments these to law enforcement offi- government of courts in the interpreta cers who suffered service-related disabil- tion or construction of a Constitution is to ity employed by county while as a law give people effect to the intent of the who enforcement officer. ” adopted it.’ Dir. Dep’t. Argic. & of of Tex., Printing Env’t v. Indus. Ass’n 600 of reviewing In further the historical con- 264, (Tex.1980) (quoting S.W.2d 267 v. Cox text in which section 52e was written and Robison, 426, 1149, 1151 105 Tex. 150 S.W. adopted, analysis in its of proposed consti- (1912)). rule, general As a words used in amendments, tutional the Texas Legisla- the state constitution should be construed tive following analysis Council set forth the manner, liberally equitable and in so as of section 52e: purpose to achieve the of the provision of pay Counties should be allowed to medi- they part. are a County Brown expenses county precinct cal law Improvement Water Dist. No. 1 v. Austin injured enforcement officials who are Co., 140, Mill & Grain 135 Tex. performing while their official duties. (1940). 523, particular, S.W.2d In a These officers are not now covered remedial constitutional provision is be compensation, workmen’s and the finan- liberally carry pur construed out its Wilcox, 280, poses. Ferguson placed upon cial burden them 119 Tex. and their (1930). 28 S.W.2d 526 by injury duty families in the line of is grammatical often insurmountable.1 The rule of the doc provides trine last antecedent that a 52e, intent of section when Id. The limiting phrase ordinarily clause or should was “to insure the adopted, sustenance modifying only be read as the noun or law officials who inca- enforcement were phrase immediately that it follows. Der in the of official pacitated course duties.” Res., Gas, Inc., & wen v. Carrizo Oil LLC 88, Arguelles, S.W.2d Samaniego 09-07-00597-CV, 6141597, No. 2008 WL at writ). Paso no The (Tex.App.-El 21, 2009, (Tex.App.-Beaumont May pet. *5 danger noted that the Attorney General filed) (mem. Usually, proviso op.). con necessary made for the govern- the work it taining “provided the words that” before a ment these incentives to law- provide clause, exception or states an sentence Op. Att’y See personnel. enforcement Tex. preceding or clause.2 sentence The (1993). Reading Gen. No. LO-93-62 this provision at constitutional issue contains broadly adequate- measure more remedial provisos two such after the broader state ly accomplishes goal. allowing pay ment counties to medical ex injured of officers penses the course of amendment, pre- as it was proposed The official meaning their duties. The and ef voters, provided for the sala- sented to provisos fect of the are the focus of our ry during any period continuation benefit interpretive appeal. efforts long so law enforce- serving a term ment official of office applying In the doctrine of the last ante- County. for the See Tex. S.J. 60th 52e, phrase cedent to section “on the Res. R.S., 1967 Leg., Tex. Gen. Laws 2969. To of the term of office” con- expiration is prohibition public avoid the a proviso modify tained in intended to or public who one is not employee, funds to phrase further describe the that it immedi- provided that follows, i.e., the amendment the benefit provision ately requiring at the end of each term terminate of office. payment of maximum to the 52e, does not expressly [county] ... “while said official officer single limit incapacitated.” the benefit term of To hospitalized or circum- “injury/incapacity.” initial prohibitions vent the constitutional of sec- Const. § 52e. payment of salary tion continuation statute, recognize effectively proposed eliminating We section 52e was concerns re- adopted in county law en- garding potential recovery for double or forcement officials were not covered work- dipping.” "double See Tex. Lab Code Ann. Yanes, compensation. ers' Frasier v. (Vernon 2006); Frasier, § 504.051 (Tex.App.-Austin at 425. legislative pet.). history of section 52e sets forth lack compensation of workmen’s "Legal-drafting long authorities have difficulty recruiting per- law enforcement against using provided warned that. The the primary sonnel as two reasons for the (1) problems: phrase has three serious its Leg. amendment. See Tex. Proposed Council, unclear, meaning is often since it can create a at 13 Constitutional Analyzed, Amendments add-on; condition, (2) exception, or an its (general 1967). election Nov. The work- unclear, especially long in a reach often compensation ers’ statute was amended in sentence; (3) your it sentence makes provide coverage for law enforcement sprawl margin-to-margin and creates more Frasier, However, officers. S.W.3d at 425. using off text. You’re better never the legislature in the amended the workers’ Garner, Bryan A. phrase.” Legal Writing in compensation statute to make clear coun- (Univ. Chicago English. § at 107 of Plain ties any were payments entitled to un- offset 2001) (footnote omitted). Press der by section 52e the amount an officer was to receive under Compensation the Workers' (“term”) tween proviso singular plural restricted the the and the benefits had to be (“terms”) incapacity or hospitalization interpreting periods section 52e. See the during period Homes, Inc., a term or incurred Spradlin v. Jim Walter (Tex.2000) (When and not duly deputy sworn officer was inter- thereafter. Constitution, the preting pre- Texas courts selected, language carefully sume its was legislative examined the Having construe its as they generally words are by applying of the amendment and history understood, “rely heavily plain on the con rules of constitutional pertinent the language of the Constitution’s literal III, 52e of the struction to article section text.”). Constitution, we find it unclear the drafters intended to restrict whether III, Article section 52e expressly uses bene the continuation singular word “term” rather than of office in which the solely fits term in providing “terms” continuation Instead, leg original injury occurred. Const, payments. art. Tex. that such history islative tends to indicate § 52e. interpreting rather than any period are available for benefits the constitutional provision according itself by an incapacity hospitalization, or caused plain meaning, majority to its instead offi injury incurred in the course of the plural focuses on the use of the in the 1967 duties, the officer is a cer’s official while ballot, proposed on which the amendment duly deputy employed by the coun sworn presented analysis, was to voters. In its injured in ty. Because was VanDevender majority ignores the remainder of the duties, the course of his official suffered a resolution, joint senate as well incapacity inju caused such ultimately adopted text of the constitution- ries, of office in which he during a term amendment, al both of use the word duly deputy employed by sworn id.; “term” rather than “terms.” See Tex. county, qualifies required sup he for the R.S., S.J. Res. Leg., 60th 1967 Tex. Gen. plemental salary continuation benefits. Laws I believe we set sail into hold that the trial court did not err We language treacherous waters when we use III, holding that article section 52e of appearing legis- in a ballot and other such the Texas does not bar Van- history modify plain meaning lative recovering Devender from continua- language contained in the constitu- during tion his 2001 term of office benefits provision tional Because I cannot itself. for an that resulted from an on- agree majority’s interpretation with the the-job injury that occurred 52e, respectfully article I dis- Const, prior term of office. sent. Ill, § 52e. overrule issue one and We affirm the of the trial court.

AFFIRMED. Justice, McKEITHEN,

STEVE Chief

dissenting. majority ig- respectfully

I dissent. plain language

nores the of article

section 52e of the Texas Constitution. See Const, Ill, § Specifically, 52e. majority ignores the difference be-

Case Details

Case Name: Woods v. VanDEVENDER

Court Name: Court of Appeals of Texas

Date Published: Aug 31, 2009

Citation: 296 S.W.3d 275

Docket Number: 09-08-00377-CV

Court Abbreviation: Tex. App.