the City of Houston, Texas v. Roger Bates, Michael L. Spratt and Douglas Springer , 406 S.W.3d 539 ( 2013 )

IN THE SUPREME COURT OF TEXAS
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NO . 11-0778
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THE CITY OF HOUSTON, TEXAS, PETITIONER,
v.
ROGER BATES, MICHAEL L. SPRATT AND DOUGLAS SPRINGER, RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
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Argued January 9, 2013
JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON ,
JUSTICE JOHNSON , JUSTICE WILLETT , and JUSTICE DEVINE joined; in which JUSTICE HECHT and
JUSTICE LEHRMANN joined as to Parts I and II.A; and in which JUSTICE GUZMAN and JUSTICE BOYD
joined as to Parts I and II.B.
JUSTICE HECHT filed an opinion concurring in part and dissenting in part, in which JUSTICE
LEHRMANN joined.
JUSTICE GUZMAN filed an opinion concurring in part and dissenting in part, in which JUSTICE
BOYD joined.
This appeal involves a pay dispute between the City of Houston and three retired fire fighters
previously employed by the Houston Fire Department (HFD). The retired fire fighters sued the City
to recover allegedly unauthorized deductions from their termination pay upon retirement. The retired
fire fighters asserted two distinct claims. First, two of the retired fire fighters claimed that the City
wrongfully deducted pay for overtime hours that HFD required fire fighters to work after the
implementation of a new shift schedule in November 2001. Second, the retired fire fighters alleged
that the City improperly calculated each fire fighter’s “salary” for purposes of paying termination pay
upon their retirement. The trial court found in favor of the retired fire fighters on both claims. The
court of appeals affirmed the trial court’s judgment, which awarded two of the retired fire fighters
reimbursement for overtime pay and all of the retired fire fighters additional termination pay for
accrued and unused sick and vacation leave. ___ S.W.3d ___, ___ (Tex. App.—Houston [14th
Dist.] 2011, pet. granted) (mem. op.). We reverse the court of appeals’ judgment as to the first claim
related to the overtime pay, affirm its judgment as to the second claim related to additional
termination pay, and render judgment consistent with this opinion.
I. Background
Prior to their retirements, Roger Bates, Michael L. Spratt, and Douglas Springer (collectively,
the retired fire fighters) spent their careers as fire fighters with HFD. Spratt and Springer retired in
2004, and Bates retired in 2005. Upon retirement, the City paid the retired fire fighters termination
pay pursuant to sections 143.115 and 143.116 of the Texas Local Government Code. See TEX . LOC.
GOV ’T CODE §§ 143.115–.116. The retired fire fighters ultimately sued the City, seeking
reimbursement for (1) overtime pay that the City docked from their termination pay (the “debit dock”
claim), and (2) additional termination pay based on the City’s exclusion of premium pay from the
calculation of their salaries for purposes of paying out the termination pay.
2
A. Debit Dock Claim
In many urban areas, fire fighters are often required to work 24-hour shifts. Due to the
demands of the job, the Legislature has enacted various statutes governing fire fighters’ pay and
hours. For example, section 142.0017 of the Local Government Code requires a City to compensate
a fire fighter for overtime pay if the fire fighter works more than an average of 46.7 hours per week
calculated over a 72-day work cycle. TEX . LOC. GOV ’T CODE § 142.0017(b). Utilizing a 72-day
work cycle, HFD scheduled fire fighters to work one of four shift schedules. In any one shift
schedule, a fire fighter would work eighteen 24-hour shifts throughout the 72-day work cycle.
Because the shift schedules did not reach the 46.7-hour weekly average, HFD required fire fighters
to work two additional 24-hour shifts, called “debit days,” each work cycle. On a debit day, HFD
assigned a fire fighter to work on a different shift schedule and many times at a different fire station.
As a result, debit days were unpopular and had a high rate of absenteeism. Nevertheless, debit days
remained a part of the regularly scheduled work shift for fire fighters. Fire fighters were required
to show up on a debit day and work just like any other day in their shift schedules.
In November 2001, HFD added an extra 24-hour debit day to each 72-day work cycle due
to staffing shortages. This extra debit day pushed the fire fighters’ weekly average of hours worked
to forty-nine—entitling them to 2.3 hours of overtime pay each week (or twenty-four hours over the
course of the 72-day work cycle). To encourage attendance on debit days, HFD designated the last
eight hours of each debit day as the portion eligible for overtime pay. HFD required a fire fighter
to be physically present to get overtime pay for that time period. Under HFD’s accounting
procedures, if a fire fighter was on authorized leave on a debit day, then HFD paid the fire fighter
3
for sixteen hours, charged his leave account for those sixteen hours, but did not pay overtime pay
for the remaining eight hours and did not charge his leave account for those hours. This schedule
consisting of an average of forty-nine hours a week lasted for approximately two years.
When Springer and Spratt retired from HFD, the City deducted previously paid overtime
from Springer’s and Spratt’s termination checks. The City claimed that Springer and Spratt were
overpaid for “Debit Day Overtime,” which, according to the City, was generated from the City
paying overtime for debit days Springer and Spratt did not physically work. The overtime pay that
the City deducted from Springer’s termination check related to 8-hour shifts on debit days that the
City allowed Springer to “ride out” prior to retirement.1 The overtime pay that the City deducted
from Spratt’s termination check related to vacation leave he took on a scheduled debit day. Springer
and Spratt do not dispute that they did not physically work the debit days for which the City
previously paid them for overtime. Instead, they argued in the trial court that they were on
authorized leave during those debit days. And, because section 142.0017 requires that time spent
on “authorized leave” be included in calculating the number of hours a fire fighter worked during
a 72-day work cycle, they claimed that they were entitled to overtime pay regardless of whether they
were physically present for the designated overtime period. After a bench trial, the trial court
rendered judgment for Springer and Spratt on their debit dock claims and awarded them $610.15 and
$152.20, respectively. The court of appeals affirmed. ___ S.W.3d at ___.
1
The City allowed fire fighters to “ride out” accumulated holiday time prior to retirement, which effectively
allowed retiring fire fighters to be paid for all of their accumulated holiday time despite the ordinance which otherwise
limited fire fighters to receive pay for a maximum of eleven accumulated holidays upon termination. H OU STO N , T EX .,
C O D E O F O RDIN AN CES ch. 34, art. I, § 34-59(e)(6).
4
B. Termination Pay Claim
The Local Government Code and the City’s ordinances allow fire fighters to accumulate
unused sick and vacation leave. See, e.g., TEX . LOC. GOV’T CODE §§ 143.045–.046; HOUSTON , TEX .,
CODE OF ORDINANCES ch. 34, art. I, § 34-3. When a fire fighter leaves HFD’s employment, sections
143.115 and 143.116 of the Local Government Code entitle a fire fighter to a lump-sum payment for
accumulated but unused vacation and sick leave. See TEX . LOC. GOV ’T CODE §§ 143.115 (vacation
leave), .116 (sick leave). In most cases, sections 143.115 and 143.116 require accumulated vacation
and sick leave to be valued at the fire fighter’s “salary” at the time the fire fighter accumulated the
leave. See id. §§ 143.115(b), .116(b). This lump-sum payment is often referred to as termination
pay.
The City enacted ordinances that excluded certain types of premium pay, including
educational incentive pay and assignment pay, from the definition of “salary” for purposes of
calculating accumulated benefit leave for termination pay. See HOUSTON , TEX ., CODE OF
ORDINANCES ch. 34, art. I, § 34-3(c); see also id. ch. 14, art. III, §§ 14-243, 14-244 (requiring sick
leave to be valued at a fire fighter’s “daily average rate of base pay plus longevity”). The ordinances
create a financial disparity between the amount of pay a fire fighter received when he utilized his
sick and vacation leave during his employment and when he received accumulated sick and vacation
leave as termination pay. For instance, an HFD fire fighter that used sick or vacation leave to miss
a shift received his base pay plus all other forms of premium pay that the fire fighter was entitled to
at that time, which could include longevity pay, educational incentive pay, and assignment pay. In
other words, if an HFD fire fighter took a day of paid leave, the City paid the fire fighter the same
5
as if he had physically worked that day. On the other hand, the City paid a fire fighter his base pay
and only longevity pay as termination pay for all accumulated sick and vacation leave. Under this
“long-term City policy,” an HFD fire fighter was financially better off utilizing all of his paid leave
during his employment than accumulating it for purposes of termination pay upon retirement.
Upon retirement, the City issued checks to the retired fire fighters for their termination pay,
which did not include the premium pay. The retired fire fighters challenged the ordinances on the
grounds that they were preempted by the statutory scheme promulgated by the Legislature and
codified in the Local Government Code. The trial court found that the retired fire fighters were
entitled to the full amount of their salaries for unused and accrued sick and vacation leave, which
required inclusion of educational incentive pay and assignment pay. The court of appeals affirmed.
___ S.W.3d at ___.
II. Analysis
The City challenges the court of appeals’ judgment on the debit dock claim and the
termination pay claim. First, the City argues that Springer and Spratt were not entitled to be
reimbursed for overtime pay because section 142.0017(e)(2) of the Local Government Code does
not require the City to count hours a fire fighter is on unpaid leave for purposes of computing a fire
fighter’s eligibility for overtime compensation. Second, the City argues that its ordinances are not
preempted by provisions of the Local Government Code governing fire fighters’ termination pay
because the Local Government Code does not explicitly define the term “salary.” We address each
issue in turn.
6
A. Debit Dock Claim
The debit dock claim issue requires us to construe section 142.0017 of the Local Government
Code, which governs overtime pay and applies to home-rule municipalities like the City of Houston.
See TEX . LOC. GOV ’T CODE § 142.0017(a). Specifically, our task is to determine whether the
Legislature intended the phrase “any other authorized leave” in section 142.0017(e)(2) to encompass
only other forms of paid leave, which is the City’s position.
We review issues of statutory interpretation de novo. See Loaisiga v. Cerda, 379 S.W.3d
248, 254–55 (Tex. 2012). Our primary objective when interpreting a statute is to give effect to the
Legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We begin with the
statute’s text and the presumption that the Legislature intended what it enacted. Fresh Coat, Inc. v.
K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010). Legislative intent is best expressed by the plain
meaning of the text unless the plain meaning leads to absurd results or a different meaning is
supplied by legislative definition or is apparent from the context. Tex. Lottery Comm’n v. First State
Bank of Dequeen, 325 S.W.3d 628, 635 (Tex. 2010). When the text of the statute is clear and
unambiguous, we apply the statute’s words according to their plain and common meaning unless a
contrary intention is apparent from the statute’s context. Molinet, 356 S.W.3d at 411.
Beginning with the statute’s text, section 142.0017(b) provides, in pertinent part:
A fire fighter . . . may not be required or permitted to work more than an average of
46.7 hours a week during a 72-day work cycle designated by the department head.
If the fire fighter . . . is required to work more than an average of 46.7 hours a week
during a 72-day work cycle designated by the department head, the person is entitled
to be compensated for the overtime as provided by Subsection (f).
7
TEX . LOC. GOV ’T CODE § 142.0017(b). To calculate how many hours a fire fighter is “required to
work” for purposes of computing the fire fighter’s weekly average in a 72-day work cycle, section
142.0017(e) instructs the City that “all hours are counted”:
(1) during which the fire fighter . . . is required to remain available for immediate
call to duty by continuously remaining in contact with a fire department office by
telephone or by radio; and
(2) that are sick time, vacation time, meal time, holidays, compensatory time, death
in the family leave, or any other authorized leave.
Id. § 142.0017(e). If the City requires a fire fighter to work hours in excess of a weekly average of
46.7 hours per 72-day work cycle, then section 142.0017(f) requires the City to pay a fire fighter
overtime “without regard to the number of hours worked in any one week of the work cycle.” Id.
§ 142.0017(f).
Simply put, the statutory scheme in section 142.0017 requires the City to pay fire fighters
overtime rates when a fire fighter was required to work in excess of the 46.7-hour weekly average
computed over a 72-day work cycle. Id. § 142.0017(b), (f). To compute the number of hours a fire
fighter was required to work in a 72-day work cycle, the City must add (1) all hours physically
worked, (2) all hours spent on call, and (3) all hours that fall within the enumerated categories in
section 142.0017(e)(2), which includes “any other authorized leave.” See id. § 142.0017(e). To get
the weekly average, the City may divide the total by 72 days and then multiply this daily average by
seven (or divide the total by the number of weeks in a 72-day work cycle). If the weekly average
exceeds 46.7, then the City is required to pay overtime at time-and-a-half rates for the excess time.
Id. § 142.0017(f).
8
The dispute in this case centers on the phrase “any other authorized leave” in section
142.0017(e)(2). Our rules of statutory construction dictate that we apply the term’s plain meaning
unless the Legislature has prescribed the term a different meaning—either expressly or by
context—or the plain meaning leads to an absurd result. See Tex. Lottery Comm’n, 325 S.W.3d at
635. We note first that the term “leave” is not expressly defined by Chapter 142 of the Texas Local
Government Code. Black’s Law Dictionary defines “leave” as an “[e]xtended absence for which one
has authorization.” BLACK’S LAW DICTIONARY 973 (9th ed. 2009). Webster’s New International
Dictionary defines “leave” as “an authorized absence or vacation from duty or employment usu.
[usually] with pay.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1287 (2002). Neither definition,
however, provides that “leave” always means only paid leave. Whereas we are typically inclined to
apply a term’s common meaning, a contrary intention is apparent from the statute’s context. See
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“Undefined terms in
a statute are typically given their ordinary meaning, but if a different or more precise definition is
apparent from the term’s use in the context of the statute, we apply that meaning.”).
The context of section 142.0017 demonstrates that the phrase “any other authorized leave”
cannot be read in isolation. See In re Hall, 286 S.W.3d 925, 928–29 (Tex. 2009) (“[W]e will not
give an undefined statutory term a meaning that is out of harmony or inconsistent with other
provisions in the statute.”). If the Legislature intended the phrase “authorized leave” to be
interpreted according to its common meaning (i.e., encompassing all forms of leave, both paid and
unpaid) and without reference to the surrounding statutory scheme, then its specific enumeration of
six forms of paid leave that precede the phrase would have been for naught. See Tex. Lottery
9
Comm’n, 325 S.W.3d at 635 (“We presume the Legislature selected language in a statute with care
and that every word or phrase was used with a purpose in mind.”). When general words follow
specific, enumerated categories, we limit the general words’ application to the same kind or class
of categories as those expressly mentioned. City of San Antonio v. City of Boerne, 111 S.W.3d 22,
29 (Tex. 2003). This statutory construction aid, known as ejusdem generis, requires us to construe
words no more broadly than the Legislature intended.2 See Marks v. St. Luke’s Episcopal Hosp., 319
S.W.3d 658, 663 (Tex. 2010). In addition, “the meaning of particular words in a statute may be
ascertained by reference to other words associated with them in the same statute.” City of San
Antonio, 111 S.W.3d at 29; see also Combs, 340 S.W.3d at 441 (“It is a fundamental principle of
statutory construction and indeed of language itself that words’ meanings cannot be determined in
isolation but must be drawn from the context in which they are used.”). Here, the phrase “any other
authorized leave” is preceded by six categories of paid leave: “sick time, vacation time, meal time,
holidays, compensatory time, death in the family leave.” TEX . LOC. GOV ’T CODE § 142.0017(e)(2).
Given the surrounding statutory scheme, we conclude that the Legislature intended “any other
authorized leave” in section 142.0017(e)(2) to have the limited meaning of encompassing only other
forms of paid leave.
2
The dissent criticizes the Court’s use of the statutory construction canon ejusdem generis because, in the
dissent’s view, the term “leave,” read in isolation, is unambiguous and thus should be construed as inclusive of both paid
and unpaid leave. ___ S.W .3d at ___. As this Court has repeatedly noted and as the dissent concedes, however, words
cannot be construed separately from the context in which they are used. See, e.g., City of Waco v. Kelley, 309 S.W .3d
536, 542 (Tex. 2010). In construing section 142.0017(e)(2), the dissent ignores important contextual cues— six forms
of paid leave preceding “any other authorized leave.” Yet when construing a similar phrase within section 142.0015 in
support of the dissent’s construction of “leave” in section 142.0017(e)(2), the dissent relies on the statutory context— a
form of unpaid leave following “authorized leave.” The dissent cannot have it both ways. As the dissent’s own analysis
indicates, and as our statutory construction cases make clear, context matters. See, e.g., Combs, 340 S.W .3d at 441.
10
The dissent reaches the conclusion that “leave” in section 142.0017(e)(2) includes unpaid
leave by construing the term as it is used within the context of two provisions in section
142.0015—provisions that, by their owns terms, do not apply to the City’s fire fighters. ___ S.W.3d
at ___ (Guzman, J., dissenting in part). Compare TEX . LOC. GOV ’T CODE § 142.0017(a) (“This
section applies only in a municipality with a population of more than 1.5 million.”), with id.
§ 142.0015(e–1) (providing that this subsection applies only to municipalities with a population of
one million or more that have not adopted Chapter 143), and id. § 142.0015(f–1) (providing that this
subsection applies only to police officers). This construction would require us to draw meaning from
the Legislature’s use of “leave” in a context where the term is surrounded by additional forms of
leave that the Legislature did not include in the statute that applies to the City in this case. Compare
id. § 142.0017(e)(2) (providing that all hours are counted “that are sick time, vacation time, meal
time, holidays, compensatory time, death in the family leave, or any other authorized leave”), with
id. § 142.0015(e–1) (providing that hours worked include “any authorized leave, including
attendance incentive leave, vacation leave, holiday leave, compensatory time off, jury duty, military
leave, or leave because of a death in the family”), and id. § 142.0015(f–1) (same). We must
presume, however, that the Legislature’s inclusion of only forms of paid leave and its omission of
forms of unpaid leave in section 142.0017(e)(2) were purposeful. See Quick v. City of Austin, 7
S.W.3d 109, 123 (Tex. 1998) (presuming that the omission of a phrase contained within similar
statutes had a purpose). Accordingly, we decline to construe “leave” based on two provisions that
do not apply to the City and that are syntactically dissimilar from the provision at issue in this case.
11
The facts are undisputed that, even if Springer and Spratt were on “approved leave” for the
designated overtime shift, their leave time was unpaid and their leave accounts were not charged for
those shifts. Therefore, applying our narrow construction of “leave” in section 142.0017(e)(2), the
City was not required to count each debit day’s final 8-hour shift when computing the hours Springer
and Spratt were required to work during a 72-day work cycle for purposes of overtime compensation
because they were on unpaid leave. Accordingly, the court of appeals erred when it affirmed the trial
court’s judgment awarding both Springer and Spratt reimbursement for previously deducted paid
overtime from their termination checks.
B. Termination Pay Claim
The termination pay claim involves an issue of statutory preemption. Home-rule cities, like
the City of Houston, derive their powers from the Texas Constitution. See TEX . CONST . art. XI, § 5;
see also TEX . LOC. GOV ’T CODE § 51.072(a) (“The municipality has full power of local
self-government.”). The Legislature may limit a home-rule city’s broad powers when it expresses
its intent to do so with “unmistakable clarity.” Dall. Merch.’s & Concessionaire’s Ass’n v. City of
Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993). “An ordinance of a home-rule city that attempts to
regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with
the state statute.” Id. at 491; see also TEX . CONST . art. XI, § 5 (providing that no ordinance “shall
contain any provision inconsistent with the Constitution of the State, or of the general laws enacted
by the Legislature of this State”). If a reasonable construction giving effect to both the state statute
and the ordinance can be reached, then a city ordinance will not be held to have been preempted by
the state statute. Dall. Merch.’s, 852 S.W.2d at 491. Here, we must determine whether the Local
12
Government Code’s statutory scheme regarding the payment of accumulated benefit leave upon
retirement preempts the City’s ordinances that limit the valuation of accumulated benefit leave to
base salary and longevity pay only.
We begin with the statutory text. Fresh Coat, Inc., 318 S.W.3d at 901. Sections 143.115 and
143.116 provide that a fire fighter is entitled to receive a lump-sum payment for accumulated sick
and vacation leave upon termination of employment. TEX . LOC. GOV ’T CODE §§ 143.115, .116.
Vacation leave remaining at retirement is valued at the “full amount of the [fire fighter’s] salary for
the period of the [fire fighter’s] accumulated vacation leave.” Id. § 143.115(b). Sick leave
accumulated after September 1, 1985, is valued at the fire fighter’s “average salary in the fiscal year
in which the sick leave was accumulated.” Id. § 143.116(b). Thus, determining “salary” is critical
in calculating termination pay. Section 143.110 provides the mode of compensation for fire fighters.
Id. § 143.110. Section 143.110(a) states that a fire fighter is entitled to a “base salary,” and
subsection (b) continues as follows:
In addition to the base salary, each fire fighter . . . is entitled to each of the following
types of pay, if applicable:
(1) longevity pay;
(2) seniority pay;
(3) educational incentive pay as authorized by Section 143.112;
(4) assignment pay as authorized by Section 143.113; and
(5) shift differential pay as authorized by Section 143.047.
Id. § 143.110(a), (b). The retired fire fighters posit that, under this statutory scheme, the Legislature
made clear that “salary” includes base salary plus any other forms of pay that a fire fighter was
entitled to receive at the time the benefit leave was accumulated for purposes of paying out
13
termination pay. In contrast, the City argues that the statutory scheme does not preempt its power
to define the elements of “salary” for purposes of paying out termination pay because the Legislature
did not expressly provide a definition of “salary,” as the term is used in sections 143.115 and
143.116. The City also avers that the Legislature did not intend to create a substantive change in the
law when it replaced “salary” in former Article 1269m of the Texas Revised Civil Statutes with
“base salary” in section 143.110 in 1987.
We must determine whether the Legislature expressed an unmistakably clear intent to
preempt the City’s power to determine how termination pay is calculated through its enactment of
sections 143.115 and 143.116. To do so, we must interpret “salary,” which the Legislature has not
expressly defined, within the context of sections 143.115 and 143.116. We apply the common
meaning of “salary” unless a different meaning is apparent from the context or the plain meaning
leads to absurd or nonsensical results. Tex. Lottery Comm’n, 325 S.W.3d at 635. Black’s Law
Dictionary defines “salary” as “[a]n agreed compensation for services . . . [usually] paid at regular
intervals on a yearly basis.” BLACK ’S LAW DICTIONARY 1454 (9th ed. 2009). Webster’s New
International Dictionary similarly defines “salary” as “fixed compensation paid regularly . . . for
services.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 2003 (2002). Applying that plain
meaning—compensation paid on a regular basis—within the context of the statutes, we hold that the
Legislature clearly intended “salary” to encompass all of the components of compensation that a fire
fighter receives regularly, which necessarily includes premium pay.3
3
W e note that the City’s ordinances similarly define “regular rate of pay,” as inclusive of base pay, longevity
pay, educational incentive pay, assignment pay, and higher classification pay. H OU STON , T EX ., C OD E O F O RD IN AN CES
ch. 34, art. III, § 34-59(a)(4).
14
Our construction of “salary” in sections 143.115 and 143.116 is consistent with the overall
legislative scheme related to a fire fighter’s compensation. Section 143.110 provides that a fire
fighter is entitled to a “base salary” and additional pay for five types of premium pay, if eligible.
TEX . LOC. GOV ’T CODE § 143.110. The City would have us read “base salary,” as used in section
143.110, and “salary,” as used in sections 143.115 and 143.116, interchangeably. We refuse to adopt
such a construction. The plain language of section 143.110 demonstrates that the Legislature uses
“base salary” and “base pay” reciprocally. This is evident from section 143.110(c), which provides
that “[a] police department may include the number of years, not to exceed five, that the police
officer served in another police department” when “computing longevity pay and base pay under this
section.” Id. § 143.110(c) (emphasis added). Therefore, we conclude that the Legislature intended
the term “base salary” or “base pay” in section 143.110 to be one of six potential components of a
fire fighter’s salary—and not merely a term to be used interchangeably with sections 143.115 and
143.116’s reference to “salary.”
While we agree with the City that the Legislature has clearly given the City discretion to offer
educational incentive pay and assignment pay, see id. §§ 143.110, .112–.113, we do not agree with
the City’s position that these sections impliedly extend the City’s discretion to define “salary” as it
sees fit for purposes of termination pay. Instead, under our construction of “salary” as used in
sections 143.115 and 143.116, the statutory scheme preempts the City from excluding those
components when calculating termination pay once the City has exercised its discretion to offer such
premium pay during a fire fighter’s employment with HFD. The provisions of the City’s ordinances
that exclude forms of premium pay from the definition of “salary” for purposes of termination pay
15
irreconcilably conflict with sections 143.115 and 143.116. Accordingly, the preempted provisions
are unenforceable.
The dissent and the City argue that the statute that preceded section 143.110 compels a
different construction of “salary” in sections 143.115 and 143.116. ___ S.W.3d at ___ (Hecht, J.,
dissenting in part). In support, the dissent and the City note that the Legislature did not intend a
substantive change in the law when it moved provisions of Article 1269m to the Local Government
Code in 1987. Id. at ___. Thus, the dissent and the City’s position is that the term “base salary” in
section 143.110 has no significance in light of former Article 1269m, which provided that fire
fighters “shall be paid the same salary and in addition thereto be paid any longevity or seniority or
educational incentive pay.” Id. at ___ (citing Act of May 8, 1973, 63rd Leg., R.S., ch. 140, § 1, 1973
Tex. Gen. Laws 300, 301, repealed by Act of May 21, 1987, 70th Leg., R.S., ch. 149, § 49, 1987
Tex. Gen. Laws 707, 1307). However, in light of its surrounding provisions, we are not convinced
that former Article 1269m is as clear as the dissent contends. The Legislature used the term “base
salary” in Article 1269m reciprocally with “salary.” For instance, Article 1269m provides in the next
sentence that a lower-classification fire fighter who is hired temporarily in a higher-classification
position “shall be paid the base salary of such higher position plus his own longevity pay during the
time he performs the duties thereof.” Act of May 8, 1973, 63rd Leg., R.S., ch. 140, § 1, 1973 Tex.
Gen. Laws 300, 301 (repealed 1987) (emphasis added). We construe the Legislature’s change from
“salary” in the applicable provision of Article 1269m to “base salary,” as section 143.110 currently
provides, as indicative of the Legislature’s clarification of the prior law and not as a substantive
change. Compare id. (providing that a fire fighter “shall be paid the same salary and in addition
16
thereto be paid any longevity or seniority or educational incentive pay”), with TEX . LOC. GOV ’T
CODE § 143.110 (providing that fire fighters of the same classification “are entitled to the same base
salary . . . [and] [i]n addition to the base salary, each fire fighter . . . is entitled to” five types of
premium pay, if applicable).
Finally, the City argues that if we hold that the ordinance provisions that limit the availability
of premium pay as part of termination pay are unenforceable, then we must also invalidate the City’s
ordinances that generally authorize payment of premium pay. The City contends that the ordinances
are connected in subject matter and cannot be fairly severed and enforced separately from each other.
We disagree. When an ordinance contains an express severability clause, the severability clause
prevails when interpreting the ordinance. See TEX . GOV ’T CODE § 311.032(a) (“If any statute
contains a provision for severability, that provision prevails in interpreting that statute.”); see also
Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 441 (Tex. 1998) (applying the
Disciplinary Rules of Professional Conduct’s severability clause to reach the conclusion that the
remainder of Rule 3.06(d) remains in effect despite the Court’s holding that the term “or embarrass”
is unconstitutionally vague). Here, the City’s Code of Ordinances contains an express severability
clause, which provides that:
[S]ections, paragraphs, sentences, clauses and phrases of this Code are severable, and
if any phrase, clause, sentence, paragraph or section of this Code shall be declared
unconstitutional by the valid judgment or decree of any court of competent
jurisdiction, such unconstitutionality shall not affect any of the remaining phrases,
clauses, sentences, paragraphs and sections of this Code.
HOUSTON , TEX ., CODE OF ORDINANCES ch. 1, § 1-8. Based on the severability clause, the invalidity
of provisions that limit the availability of premium pay when calculating termination pay do not
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affect the validity of any of the remaining portions of the ordinances or any other ordinances. We
therefore affirm the portion of the trial court’s judgment awarding the retired fire fighters damages
for additional termination pay for accrued but unused sick and vacation leave.
III. Conclusion
In sum, Springer and Spratt were not entitled to receive reimbursement for overtime pay.
However, all of the retired fire fighters were entitled to recover additional termination pay.
Accordingly, we reverse the court of appeals’ judgment as to the debit dock claim, affirm its
judgment as to the termination pay claim, and render judgment that Springer and Spratt take nothing
as to their claims for previously docked overtime pay.
__________________________________
Paul W. Green
Justice
OPINION DELIVERED: June 28, 2013
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