Summary
interpreting "any other authorized leave" as limited by six enumerated types of leave preceding the phrase in the statute
Summary of this case from In re LCS SP, LLCOpinion
No. 11–0778.
2013-06-28
The CITY OF HOUSTON, Texas, Petitioner, v. Roger BATES, Michael L. Spratt and Douglas Springer, Respondents.
E. Troy Blakeney, Jr., Richard C. Mumey, Blakeney, Flynn & Mumey PLLC, Houston, TX, Vincent L. Marable III, Paul Webb PC, Wharton, TX, for Respondent Roger Bates. David M. Feldman, Donald J. Fleming, Timothy J. Higley, City of Houston Legal Department, Reagan Douglas Pratt, The Pratt Law Firm PLLC, Houston, TX, for Petitioner The City of Houston.
E. Troy Blakeney, Jr., Richard C. Mumey, Blakeney, Flynn & Mumey PLLC, Houston, TX, Vincent L. Marable III, Paul Webb PC, Wharton, TX, for Respondent Roger Bates. David M. Feldman, Donald J. Fleming, Timothy J. Higley, City of Houston Legal Department, Reagan Douglas Pratt, The Pratt Law Firm PLLC, Houston, TX, for Petitioner The City of Houston.
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.
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. 406 S.W.3d 555, 2011 WL 3585612 (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. SeeTex. Loc. Gov't CodeE §§ 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.
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 CodeE § 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 overtimepay. 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 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.
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. 406 S.W.3d at 560.
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. Houston, Tex., Code of Ordinances ch. 34, art. I, § 34–59(e)(6).
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 CodeE §§ 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. SeeTex. Loc. Gov't CodeE §§ 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. SeeHouston, 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 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. 406 S.W.3d at 559.
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.
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. SeeTex. Loc. Gov't CodeE § 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).
Tex. Loc. Gov't CodeE § 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).
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 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.
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 CodeE § 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.
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. 406 S.W.3d at 563–64. 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.
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. 406 S.W.3d at 563–64 (Guzman, J., dissenting in part). CompareTex. Loc. Gov't CodeE § 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.
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. SeeTex. Const. art. XI, § 5; see alsoTex. 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 alsoTex. 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 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 CodeE §§ 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 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.
We 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. Houston, Tex., Code of Ordinances ch. 34, art. III, § 34–59(a)(4).
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 CodeE § 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 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. 406 S.W.3d at 549–50 (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 551. 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 550 (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 thereto be paid any longevity or seniority or educational incentive pay”), withTex. Loc. Gov't CodeE § 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. SeeTex. 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 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. 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.
Justice HECHT, joined by Justice LEHRMANN, concurring in part and dissenting in part.
I agree with the Court's resolution of the firefighters' debit dock claim but not their termination pay claim. Accordingly, I join only Parts I and II–A of the Court's opinion.
Sections 143.116(a)-(b) and 143.115(b) of the Texas Local Government Code require that a Houston firefighter who leaves civil service be paid a lump sum for accumulated sick leave and up to 60 accumulated vacation days, based on his or her “salary”.
Section 143.110(b) provides that “[i]n addition to ... base salary”, a firefighter may be entitled to various types of premium pay—longevity pay, seniority pay, educational incentive pay, assignment pay, and shift differential pay. The Court construes these statutes to mean that for purposes of calculating termination pay, “salary” includes “base salary” and any premium pay. The Court reasons that the dictionary definition of salary is compensation paid regularly, and since premium pay is also compensatory and regularly rendered, it must be “salary”. Using the same logic, one could conclude that because humans have hair and walk upright, characteristics shared by monkeys, monkeys are humans. The dictionary definition of “salary” neither requires nor even suggests that all regularly paid compensation qualifies, much less that elements of compensation cannot be excluded from the term “salary” for specific purposes. Educational incentive pay, assignment pay, and shift differential pay are regularly paid when due but are by statute “in addition to [a firefighter's] regular pay”.
.Section 143.116 at (a) and (b) of the Texas Local Government Code provides in pertinent part: “(a) A fire fighter ... who leaves the classified service ... [is] entitled to receive in a lump-sum payment the full amount of the fire fighter's ... accumulated sick leave ... (b) ... Sick leave ... is valued at the fire fighter's ... average salary in the fiscal year in which the sick leave was accumulated.”
Section 143.115(b) provides in pertinent part: “A fire fighter ... who leaves the classified service ... is entitled to receive in a lump-sum payment the full amount of the person's salary for the period of the person's accumulated vacation leave up to a maximum of 60 working days.”
If these forms of premium pay are regularly paid but not regular pay, are they “salary” for purposes of calculating termination pay? Perhaps, perhaps not. The point is that the answer to the question cannot be found in a dictionary.
.Tex. Loc. Gov't CodeE §§ 143.042(c) (“The assignment pay is in an amount and is payable under conditions set by ordinance and is in addition to the regular pay received by members of the fire or police department.”); 143.047(b) (“The shift differential pay is in an amount and is payable under conditions set by ordinance and is in addition to the regular pay received by members of the fire or police department.”); 143.112(c) (“The educational incentive pay is in addition to the regular pay received by a fire fighter or police officer.”).
But the answer can, in this instance, be found in the history of the statutory provisions. Identical statutory lump-sum termination pay requirements were in effect in 1976 as part of Article 1269m of the Revised Civil Statutes.
But Section 143.110(b)'s predecessor, Article 1269m, § 8, stated that a firefighter was entitled to “be paid [a] salary and in addition thereto be paid any longevity or seniority or educational incentive pay that he may be entitled to.”
Act of May 2, 1975, 64th Leg., R.S., ch. 131, § 1, 1975 Tex. Gen. Laws 302, 302, formerly Tex.Rev.Civ. Stat. Ann.. art. 1269m, § 26(b), provided in part: “(a) [A] fireman ... who leaves the classified service ... shall receive in a lump sum payment the full amount of his salary for the period of his accumulated sick leave.... (b) [A] fireman ... who leaves the classified service ... shall receive in a lump sum payment the full amount of his salary for the period of his accumulated vacation leave [for up to 60 days].”
Clearly, a firefighter's “salary” did not include premium pay. Then in the next sentence, the statute provided that a firefighter temporarily moved to a higher position “shall be paid the base salary of such higher position plus his own longevity pay”.
Act of May 8, 1973, 63rd Leg., R.S., ch. 140, § 1, 1973 Tex. Gen. Laws 300, 301 (amended 1979 and 1985), repealed and recodified by Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 49, 1987 Tex. Gen. Laws 707, 913, 1307 (former Tex.Rev.Civ. Stat. Ann.. art. 1269m, § 8(b), recodified in relevant part at Tex. Loc. Gov't CodeE §§ 143.110–.111).
“Base salary”, too, did not include premium pay. As the Court concedes, Article 1269m used “salary” and “base salary” interchangeably.
Id.
In 1976, Houston adopted an ordinance requiring termination pay in accordance with these statutes, adding at the end:
For purposes of determining the amount to which a fireman ... is entitled ..., “salary” shall mean the authorized base pay of the employee plus the longevity rate he has attained up to the date of separation or death. For purposes of this section, “salary” shall not include educational or training incentive pay or any other form of premium pay except as provided above.
Houston's ordinance was consistent with Article 1269m. The substance of the ordinance has remained in effect to this day.
Houston, Tex., Ordinance 76–1882 § 1 (Nov. 2, 1976).
Houston, Tex., Code of Ordinances ch. 34, art. 1, § 34–3(c).
In 1987, the provisions of Article 1269m were moved to the Local Government Code
as part of what the Legislature expressly stated was “a recodification only”, in which “no substantive change in the law is intended”.
Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 913, 915.
The Court argues that changing “salary” to “base salary” was not a substantive change but merely a clarification. While the Court was looking up the word “salary” in the dictionary, it should have flipped a few pages over to “substantive”, which means “real rather than apparent”.
Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 51, 1987 Tex. Gen. Laws 707, 1308.
A “clarification” that includes premium pay as salary when it was previously excluded, invalidates part of a home city ordinance, costs the City and its taxpayers enormous amounts, and casts in doubt whether the City would ever have authorized premium pay if it had known the cost later imposed on its decision is substantive.
.Webster's Third New Int'l Dictionary 2280 (2002).
The Court points to another part of Section 143.110 that refers to longevity pay as separate from “base pay”, equates “base pay” to “base salary”, and concludes that they along with premium pay are all parts of a firefighter's “salary” for purposes of computing termination pay. But the conclusion does not follow from the premises. No one questions that firefighters' base pay is separate from premium pay. The issue is whether both are included in the “salary” on which termination pay is calculated. They clearly were not in 1976, and nothing material has changed since then. The Court agrees that the City has total discretion whether to offer educational incentive pay and assignment pay at all, but if it does, it has no discretion whatever to offer them on its own terms. This limitation on the City's discretion is not to be found in the statutory provisions.
Had the firefighters' termination pay claim been made in 1976, it could scarcely have been taken seriously. The only change since 1976 has been a substitution of words in a statutory recodification intended to be nonsubstantive. That is not, in my view, sufficient support for the firefighters' claim.
Accordingly, I respectfully dissent from the Court's award of additional termination pay to the firefighters. Justice GUZMAN, joined by Justice BOYD, concurring in part and dissenting in part.
I agree with the Court that the fire fighters are entitled to additional termination pay. But I disagree that the fire fighters are not entitled to overtime pay under their debit dock claim and therefore dissent from Part II.A of the opinion and the judgment. Chapter 142 of the Local Government Code requires municipalities to pay overtime rates once a fire fighter reaches a certain statutory level of hours, which includes time on call as well as “any other authorized leave.” Here, the question presented is whether “any other authorized leave” includes unpaid authorized leave. Our canons for construing statutes are numerous, but the cardinal canon is that statutes mean what they say. We do not resort to lesser canons when the plain meaning of a term is unambiguous. Because the Court here affirms that the plain meaning of leave is an authorized absence and does not exclude unpaid leave, that should end its inquiry. But the Court proceeds to use the canon of ejusdem generis to create an ambiguity and then resolve it in a manner that violates our cardinal canon by holding that the list of types of leave preceding the term indicates that it is constricted to paid leave. This interpretation is an especially peculiar result, given that the Legislature explained in Chapter 142 that authorized leave includes forms of unpaid leave such as military leave. Our canons of construction are meant to glean legislative intent—not defeat it. Authorized leave means what it says, which necessarily includes unpaid leave. Because I would hold that the department must comply with its statutory duty to compensate the fire fighters at overtime rates for leave it approves, I respectfully dissent.
I. Background
Section 142.0017 of the Local Government Code requires the Houston Fire Department (HFD) to compensate fire fighters for overtime pay if they average over 46.7 hours of work per week during a 72–day work cycle. Tex. Loc. Gov't CodeE § 142.0017(b). Before 2001, HFD scheduled fire fighters for 18 24–hour shifts during a 72–day work cycle (averaging 42 hours per week over a 72–day work cycle). Some of these shifts included debit days, where a fire fighter was required to work a different schedule and frequently at a different station. These 20 shifts over a 72–day period averaged just under 46.7 hours per week for the cycle and allowed HFD to avoid paying overtime rates.
Staffing shortages caused HFD to include an additional shift to the 72–day work cycle in 2001. The additional debit day increased the 72–day work cycle average to 49 hours per week, obligating HFD to pay 2.3 hours of overtime compensation per week. Debit days were unpopular among firefighters because of the different shift and potential for a different station, resulting in high absenteeism. But in light of the staff shortage, attendance on debit days became important for HFD. To encourage attendance on debit days while attempting to avoid an obligation to pay overtime, HFD designated the last eight hours of each debit day as the time eligible for overtime pay. If a fire fighter was on authorized leave on a 24–hour debit day, HFD policy stated that it would pay the fire fighter for the first 16 hours (with an offsetting deduction in their leave account) but not pay base or overtime pay for the remaining eight hours or deduct from their leave account. Nonetheless, HFD mandated that fire fighters work this eight hour shift or have approved leave, just as any other work shift, or be subject to disciplinary action. In other words, HFD required firefighters to have approved leave available for the entire debt day but would not deduct the final eight hours of leave in an attempt to avoid the statutory obligation to pay overtime rates. Had HFD allowed the use of paid leave for these eight hours, it admits it would be obligated to compensate the firefighters at overtime rates (if the average hours exceeded 46.7 per week for the 72–day work cycle).
When Michael L. Spratt and Douglas Springer retired from HFD, the department claimed it had overpaid them for debit days they did not physically work and deducted the claimed overpayments from their termination checks. Springer's deductions were due to “riding out” accumulated holiday time on debit days. Spratt's deductions were due to vacation leave on debit days. Springer and Spratt sued, asserting that under section 142.0017, overtime pay includes authorized leave. The trial court awarded them damages and the court of appeals affirmed. 406 S.W.3d 555.
II. Discussion
This statutory construction case requires us to assess some of the numerous canons of construction we have developed over time to aid in divining the Legislature's intent in a statute. As the United States Supreme Court has observed,
canons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations omitted). See also Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 378 (Tex.2005) ( “Our primary objective in construing [a statute] is to ascertain and give effect to the Legislature's intent by first looking at the statute's plain and common meaning.”). If the meaning of the statute is not apparent from its language, we may examine not only the language of the specific section at issue but also the statute as a whole. In re Office of the Attorney Gen., –––S.W.3d ––––, ––––, 2013 WL 854785 (Tex.2013).
Section 142.0017(b) of the Local Government Code requires HFD to compensate fire fighters at overtime rates for being required to work more than an average of 46.7 hours per week in a 72–day work cycle the fire fighter. Tex. Loc. Gov't CodeE § 142.0017(b). Section 142.0017(e) specifies that the hours a fire fighter is required to work includes the hours:
(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) (emphasis added). The statute requires HFD to compensate fire fighters for overtime at time-and-a-half rates. Id. § 142.0017(f). HFD requires fire fighters to have approved leave if not physically present for debit days but does not pay them for the final eight hours of leave each debit day or deduct those eight hours from their leave accounts. Spratt and Springer assert that the Local GovernmentCode does not grant HFD the authority to determine which hours a fire fighter is required to work to qualify for overtime compensation. Regardless of whether this opaque procedure complied with other applicable state laws, the question this appeal presents is whether approved leave encompasses unpaid leave.
The Court appropriately begins its analysis with the cardinal canon of construction by acknowledging that the common meaning of leave is an “[e]xtended absence for which one has authorization.”
This common meaning of the term leave does not exclude unpaid leave from its ambit. Because the common meaning of the term is clear, this should end the Court's inquiry.
.Black's Law Dictionary 973 (9th ed.2009). See alsoThe American Heritage College Dictionary 773 (3d ed.2000) (defining leave as “[o]fficial permission to be absent from work or duty”); The Oxford Illustrated Dictionary 481 (2d ed.1975) (defining leave as “permission to be absent from duty”).
Undeterred by the cardinal canon of construction, the Court resorts to a single lesser canon, ejusdem generis, in an attempt to create ambiguity in the term and then resolve that ambiguity in a manner inconsistent with the term's common meaning. The Court reasons that the types of specific leave preceding “other authorized leave” are types of paid leave, and that other authorized leave must necessarily refer only to types of paid leave. Even setting aside that the result of this canon violates our cardinal canon of common meaning, this interpretation also violates our canon to examine the statute as a whole. Office of the Attorney Gen., ––– S.W.3d at ––––. While section 142.0017(e) does not define “any other authorized leave,” sections 142.0015(e–1) and (f–1) refer to “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.” Tex. Loc. Gov't CodeE § 142.0015(e), (e–1), (f–1). This list includes three additional types of authorized leave: incentive leave, jury duty, and military leave. Id. Section 143.072 defines military leave as a “leave of absence without pay.” Id. § 143.072(a). Thus, in addressing compensation and leave for fire fighters in Chapter 142, the Legislature has described “authorized leave” to include leave without pay, such as military leave. Both the common meaning of “any other authorized leave” and the context of the statute indicate that the term encompasses unpaid leave. Accordingly, section 142.0017 obligates HFD to pay the fire fighters the overtime compensation they seek under their debit clock claim.
In response, the Court claims that examining the Legislature's use of the term authorized leave in section 142.0015 is unhelpful because section 142.0015 applies to less populous municipalities. ––– S.W.3d ––––, ––––. But different sections within a statute necessarily address different matters. This does not negate our principle of examining the entire statute to ascertain the meaning of an undefined term. See Office of the Attorney Gen., –––S.W.3d at ––––. If the Legislature intended the same term to mean two entirely different things within the same statute, it could have made that distinction clear by defining “any other authorized paid leave” in the statute at issue. It did not, and we must respect that choice. Recently, we examined the phrase “abuse or neglect” in section 161.001(1)(O) of the Family Code—the statute setting forth the grounds to involuntarily terminate parental rights. In re E.C.R., 402 S.W.3d 239, 243 (Tex.2013). Because the termination statute did not define abuse or neglect, we examinedthe use of that phrase in the Family Code's removal statutes and determined that abuse or neglect encompasses risk of abuse or neglect. Id. at 243–49. The fact that termination and removal are distinct topics did not dissuade us from ascertaining the Legislature's intent from its use of the same phrase in different locations within the statute. Likewise, it should not so deter the Court here.
In conclusion, Chapter 142 of the Local Government Code requires HFD to compensate fire fighters at overtime rates when their hours exceed certain statutory levels. This calculation includes time physically worked, time on call, and any approved leave. The plain meaning of the term leave is an approved absence and does not exclude unpaid leave. Our cardinal rule of construction dictates that our inquiry end there. Because HFD refused to compensate the fire fighters at overtime rates for leave it approved but did not pay for, I would affirm the judgment of the court of appeals. Because the Court reverses this portion of the court of appeals' judgment and renders judgment that the fire fighters take nothing on their overtime claim, I respectfully dissent.