









Affirmed and Opinion filed March 31, 2009
















Affirmed
and Opinion filed March 31, 2009.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-08-00059-CV
____________
 
THE CITY OF HOUSTON, Appellant
 
V.
 
STEVE WILLIAMS, ET AL., Appellees
 

 
On Appeal from the 80th
District Court
Harris County,
Texas
Trial Court Cause No. 2002-22690-A
 

 
O P I N I O N
 
This interlocutory appeal from denial of the City of
Houston=s plea to the
jurisdiction requires us to construe sections of the Texas Local Government
Code providing for waiver of governmental immunity relative to
breach-of-contract suits against local government entities.  The appeal
involves a suit brought by appellees, a group of
former Houston firefighters (Athe firefighters@), against
appellant, the City of Houston (Athe City@).[1] 
The case is before this court for the second time.
In a partial judgment rendered in 2004, the trial court
denied the City=s plea to the jurisdiction and ruled in favor
of the firefighters on their two claims.[2] 
We affirmed the trial court=s partial judgment, holding governmental
immunity was waived (1) under the Aplead and be impleaded@ language in Local Governmental Code
section 51.075 and the Asue and be sued@ language in the
City=s charter and (2)
because the firefighters= suit was one for declaratory
judgment.  City of Houston v. Williams, 183 S.W.3d 409, 414, 416
(Tex. App.CHouston [14th Dist.]
2005), rev=d, 216 S.W.3d 827 (Tex. 2007) (per curiam).
The supreme court disagreed and
reversed.  City of Houston v. Williams, 216
S.W.2d 827, 828 (Tex.
2007) (per curiam).  The supreme court
then remanded the cause to the trial court to determine whether the recently
enacted Local Government Code sections 271.151 through 271.160, waiving
governmental immunity for certain breach-of-contract suits, applied to the
firefighters= action.  Id. at
829.  During the pendency of the case,
additional firefighters were added as plaintiffs.  On remand, the trial
court concluded, under Local Government Code sections 271.151 through 271.160,
governmental immunity was waived with respect to all plaintiffs.  See
Tex. Loc. Gov=t Code Ann. '' 271.151B.160 (Vernon 2005).
 
Concluding the firefighters have alleged facts that
affirmatively demonstrate they have a contract with the City that meets the
requirements of Local Government Code sections 271.151 through 271.160, we affirm the order of the trial court.[3]
I.  Background
The City=s actions about which the firefighters
complain have not changed since the inception of the case.  Those actions
resulted in what the parties and the courts denominated the Adebit dock claim@ (allegedly
improper reduction of termination payouts by docking previously paid overtime)
and the Atermination pay claim@ (allegedly
improper exclusion of premium pay from the calculation of termination
pay).  See Williams, 183 S.W.3d at 419, 424.  The claims and
the procedural history of the case through remand are set forth in the  supreme court=s and this court=s opinions, and we
do not repeat them here.  See Williams,  216
S.W.3d at 828B29; 183 S.W.3d at 417B20, 424.
After the supreme court=s
mandate issued, the firefighters filed their eighth amended petition in the
trial court.  In their first cause of action, the firefighters alleged
facts constituting the debit dock claim.  In their second cause of action,
they alleged facts constituting the termination pay claim.  In relation to
both claims, they requested declaratory judgment, mandamus, and equitable and
injunctive relief.  They alleged violations of Texas Local Government Code
section 142.0017, Texas Local Government Code chapter 143, and City of Houston, Code of
Ordinances section 34-59.  They alleged waiver of governmental immunity
under Texas Local Government Code sections 271.151 through 271.160, but did not
otherwise refer to a written contract.
 
The City specially excepted. 
In part, it argued it was not aware of a written agreement as described in
Local Government Code sections 271.151(2) and 271.152 and denied the existence
of such a document.  The City further complained, AThe [firefighters=] pleading does
not give [the City] fair notice as to the identity of the alleged document, or
the location, description or content of any such document.@  The City
argued that, by not containing information about the alleged document, the
pleading failed to demonstrate affirmatively the court=s jurisdiction
over the firefighters= claims.  The City also argued the supreme court had dismissed the firefighters= claims for
declaratory judgment, mandamus, and equitable and injunctive relief.
The firefighters responded by filing a ninth amended
petition.  The amended pleading contained the same facts as alleged in the
eighth amended petition.  The firefighters alleged the City=s actions violated
Texas Local Government Code section 142.0017, Texas Local Government Code
chapter 143, and City of Houston, Code of Ordinances section 34-59.  They
deleted requests for declaratory judgment, mandamus, and equitable and
injunctive relief in relation to these alleged violations.  Instead, they
denominated these requests as claims for breach of contract and asserted that Texas
Local Government Code sections 271.151 through 271.160 were applicable to the
case.  Finally, they identified the following as contracts subject to
those sections: (1) A[s]upporting
evidence and arguments made by [the firefighters] in their >Respondents= Brief on the
Merits= filed in the
Texas Supreme Court@ in the present case; (2) A[s]upporting evidence and arguments made by Appellee Alan Hildebrant@ in his brief
filed in case number 01-06-00936-CV in the First Court of Appeals;  (3) an
AAgreement Between Houston
Professional Fire Fighters Association and City of Houston, Texas, executed on
August 30, 1995@ (the A1995 Agreement@); (4) an AAgreement Between Houston
Professional Fire Fighters Association and City of Houston, Texas, executed on
December 18, 1997@ (the A1997 Agreement@); and (5) a 2005
Collective Bargaining Agreement (the A2005 CBA@).
 
The City filed an amended plea to the jurisdiction and an
amended answer.  In the former, the City argued, in part, that (1) under
the supreme court=s ruling in this case, the firefighters
could not bring an action for damages, regardless of how those actions were
characterized, unless the legislature expressly waived the City=s immunity, (2)
the City enjoyed immunity to interpret its own rules and regulations without judicial
interference, (3) the firefighters failed to exhaust administrative remedies,
(4) the firefighters pleaded no facts affirmatively demonstrating their claims
qualified for the limited waiver of immunity found in Local Government Code
sections 271.151 through 271.160, and (5) the firefighters failed to pursue the
contractual grievance procedures set forth in the collective bargaining
agreements they had cited.  Among the defenses listed in its answer, the
City asserted the following:  (1) the firefighters= claims were
barred by (a) the doctrine of governmental immunity and (b) the terms and
effect of the agreements between the City and the Association, and (2) there
was no written contract forming the basis of the firefighters= claims.
The firefighters responded by arguing, AThe claims asserted
in this case by the Retired Fire Fighters are based on City of Houston
ordinances and applicable and related statutes which satisfy the requirements
for waiver of sovereign immunity under Sections 271.151B271.160.@  The firefighters also argued the
statutory provisions of Texas Local Government Code chapters 142 and 143
constituted Apart of the written employment contracts@ between the City
and the firefighters.  Finally, the firefighters argued the 1995 and 1997
Agreements and the 2005 CBA met the criteria of sections 271.151 through
271.160.
After hearing argument, the trial court denied the City=s plea to the
jurisdiction.  The City appealed.
 
 
 
II.  Issue
Presented and Standard of Review
In a single issue, the City argues the trial court erred in
denying its plea to the jurisdiction based on governmental immunity and lack of
standing.  AQuestions involving the
application of the principles of sovereign and governmental immunity and a
party=s standing to
bring an action are the proper subjects of a plea to the jurisdiction.@  Nivens v. City of League City, 245 S.W.3d
470, 474 (Tex. App.CHouston [1st Dist.]
2007,  pet. denied) (citing Brown v. Todd, 53 S.W.3d 297, 300B01 (Tex. 2001)).
 
In a plea to the jurisdiction, a party challenges the trial
court=s authority to
determine the subject matter of the cause of action.  City of Mont Belvieu
v. Enter. Prods. Operating, L.P., 222 S.W.3d 515,
518 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  Because
subject matter jurisdiction is a question of law, we review the trial court=s decision de
novo.  Id. 
In deciding a plea to the jurisdiction, we may not weigh the merits of the
claim, but must consider only the plaintiff=s pleadings and
the evidence pertinent to the jurisdictional inquiry.  See Tex. Natural Res. Conservation Comm=n v. White, 46 S.W.3d 864,
868 (Tex.
2001);  Bland Indep.
Sch. Dist.
v. Blue, 34 S.W.3d 547, 554B55 (Tex. 2000). 
When we consider a trial court=s order on a plea to the jurisdiction, we
construe the pleadings in the plaintiff=s favor and look
to the pleader=s intent.  See Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
446 (Tex.
1993).  To prevail, the party asserting the plea must show that, even if
all the allegations in the plaintiff=s pleadings are
taken as true, an incurable jurisdictional defect appears on the face of the
pleadings, rendering it impossible for the plaintiff=s petition to
confer jurisdiction on the trial court. City of Mont Belvieu, 222 S.W.3d at 518.       If a
plaintiff fails to plead sufficient facts affirmatively demonstrating the trial
court=s jurisdiction,
but the pleadings do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the plaintiff should
be afforded the opportunity to amend.  Tex.
Dep=t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226B27 (Tex. 2004); County of Cameron v. Brown, 80 S.W.3d
549, 555 (Tex.
2002).  However, if the pleadings affirmatively negate the existence of
jurisdiction, a plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to amend.  Miranda, 133
S.W.3d at 227; Brown, 80 S.W.3d at 555.
If a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties
when necessary to resolve the jurisdictional issues raised. 
Miranda, 133 S.W.3d at 227.  If the
evidence creates a fact question regarding the jurisdictional issue, then the
plea to the jurisdiction must be denied.  Id. at 227B28.  If the evidence is undisputed or
fails to raise a fact question on the jurisdictional issue, then the trial
court rules on the plea to the jurisdiction as a matter of law.  Id. at 228.
III.  Analysis
The supreme court remanded this
case solely for consideration of whether the firefighters= claims fall
within Local Government Code sections 271.151 through 271.160.  See
Williams, 216 S.W.3d at 829.  Section 271.152
provides:
A local governmental entity that is authorized by
statute or the constitution to enter into a contract and that enters into a
contract subject to this subchapter waives sovereign immunity to suit for the
purpose of adjudicating a claim for breach of the contract, subject to the
terms and conditions of this subchapter.
 
Tex. Loc. Gov=t Code Ann. ' 271.152.  A>Contract subject
to this subchapter= means a written contract stating the
essential terms of the agreement for providing goods or services to the local
governmental entity that is properly executed on behalf of the local
governmental entity.@  Id. ' 271.151(2).[4]
 
In their pleadings and on appeal, the firefighters based
their breach-of-contract action on (1) Texas
statutes, (2) City of Houston
ordinances, and (3) the Agreements between the Association and the City. 
The firefighters contend, either read together or considered independently,
these three  types of writings are contracts
subject to the provisions of Texas Local Government Code sections 271.151
through 271.160.
The City argues neither statutes nor ordinances constitute Awritten contracts@ falling under
sections 217.151(2) and 271.152.  The City further argues that, for
varying reasons, the firefighters lack standing to sue on any of the
Agreements.
Our ultimate goal in construing a statute is to give effect
to the legislature=s intent as expressed in the language of
the statute.  F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.
2007); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 892 (Tex. 2000). 
In doing so, we must always consider the statute as a whole rather than its
isolated provisions.  Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).  AWe should not give
one provision a meaning out of harmony or inconsistent with other provisions,
although it might be susceptible to such a construction standing alone.@  Id. 
Instead, we presume that both the statute and the legislative act are
intended to be effective in their entirety.  Allegheny Mut. Cas.
v. State, 710 S.W.2d 139, 141 (Tex. App.CHouston
[14th Dist.] 1986, pet. ref=d).
 
Unless otherwise expressly provided, the Code Construction
Act applies to construction of the Local Government Code.  See Tex. Loc. Gov=t Code Ann. ' 1.002 (Vernon
2008).  Thus, in construing a statute within the Local Government CodeCregardless of whether the statute is
ambiguous on its faceCwe may consider the
following matters, as well as others: the object sought to be attained; the
circumstances under which the statute was enacted; common law or former
statutory provisions, including laws on the same or similar subjects; and the
consequences of a particular construction.  Tex. Gov=t Code Ann. ' 311.023 (Vernon
2005).  Under the Code Construction Act, A[i]n order to preserve the legislature=s interest in
managing state fiscal matters through the appropriations process, a statute
shall not be construed as a waiver of sovereign immunity unless the waiver is
effected by clear and unambiguous language.@  Id. ' 311.034.
State statutes.  By virtue
of the plain language of sections 271.151(2) and 271.152, a state statute,
standing alone, cannot constitute a Acontract subject to
[sections 271.151 through 271.160]@ because a state
statute is not Aexecuted on behalf of the
local governmental entity.@  Tex. Loc. Gov=t Code Ann. ' 271.151(2). 
The legislature has not waived governmental immunity from suits in which local
government employees recast the employer=s alleged
statutory violations as breach-of-contract actions.
Municipal ordinances.  In
contrast, a municipal ordinance necessarily is Aexecuted on behalf of the
local governmental entity,@ and therefore may fall
within the section 271.151(2) definition of a Acontract@ if the ordinance
meets the additional elements of that definition.  The additional elements
are (1) a written contract, (2) stating essential terms of the agreement, (3)
providing for goods or services, (4) to the local governmental entity, and (5)
properly executed.  Tex.
Loc. Gov=t Code Ann. ' 271.151(2).
 
In the present case, the firefighters rely primarily,
although not exclusively, on City of Houston,
Code of Ordinances section 34-59.  As part of the Code of Ordinances,
section 34-59 is in writing.[5] 
In section 34-59, the City promises specified employees, among other matters,
compensation for working overtime, allowance of sick leave, and accrual of
vacation time.  See City of Houston, Code of Ordinances '
34-59(d), (i), (j).   The ordinance
also provides that the regular rate of pay shall include base, longevity,
educational incentive, and assignment pay, and higher classification pay where
authorized.  Id.
' 34-59(a)(4).   Thus in section 34-59, the City has
promised certain benefits if its eligible employees perform.  In doing so,
it has created a unilateral contract.  See Plano Surgery Ctr. v.
New You Weight Mgmt. Ctr., 265 S.W.3d 496, 503 (Tex. App.CDallas
2008, no pet. h.) (stating unilateral contract is
created by promisor promising benefit if promisee performs and contract becomes enforceable when promisee performs).
Section 34-59 also states the essential terms under which
the firefighters will provide services to the City and will be
compensated.  Section 34-59 comprises ten subsections and, as discussed above,
specifies such matters as the definitions of overtime and the regular rate of
pay.  See City of Houston,
Code of Ordinances ' 34-59.
Finally, the history of section 34-59 indicates the section
had its origins in the 1968 City of Houston,
Code of Ordinances section 18-20, as modified by subsequent ordinances.  See
id.  The City does not contend the 1968 Code or the modifying
ordinances were not Aproperly executed.@
In sum, we conclude City of Houston, Code of Ordinances section 34-59
meets the definition of a Acontract@ as set forth in
Texas Local Government Code section 271.151(2).[6]

 
Rather than directly confronting the definition of a Acontract@ in section 271.151(2),
the City primarily relies on a series of statute-of-limitations cases, in which
the courts held a four-year period applicable to suits on debts based on
written contracts did not apply to suits in which local government employees
alleged purely statutory rights to payment.  See, e.g., Creps v. Bd. of Firemen=s Relief and Ret.
Fund Trs. of Amarillo, 456 S.W.2d 434,
439 (Tex. Civ. App.CAmarillo
1970, writ ref=d n.r.e.); Hamilton v.
Bd. of Firemen=s Relief and Ret. Fund Trs. of Texarkana, 408 S.W.2d 781, 784 (Tex. Civ. App.CTexarkana 1966, writ ref=d n.r.e.); City of Temple v. Brown, 383 S.W.2d 639,
641 (Tex. Civ. App.CAustin
1964, writ dism=d); Whitley v.
City of San Angelo, 292 S.W.2d 857, 861 (Tex. Civ.
App.CAustin 1956, no
writ).  Courts in these limitations cases were rejecting arguments that
statutes could constitute contracts and were not construing the definition of a Acontract@ found in Local
Government Code section 271.151(2).
The City further relies on Overton v. City of Houston,
also a limitations case.  564 S.W.2d 400, 403B04
(Tex. Civ. App.CHouston
[1st Dist.] 1978, writ ref=d n.r.e.). 
In Overton, the employees were relying on city ordinances to assert
their right to termination pay.  The court observed:
Where a contract is made with reference to the performance of certain
acts prescribed by ordinance, the contract and the ordinance will be considered
together and the statute will become a part of the contract. The ordinances
alone, however, cannot form a contract with the plaintiffs in this case. 
The record must evidence a contract in writing between the plaintiffs and the
city into which the ordinances can be read.  In the absence of proof of
such a contract in writing in this case, plaintiffs= cause of action rests solely on
the ordinances and is subject to the two year statute of limitation.
 
Id. at 403B04 (citations
omitted).  The cases on which the Overton court relied for the last
proposition, however, were limited to assertions of statutory rights.  The
limitations cases, including Overton, are not persuasive authority for
holding that a local government=s properly executed ordinances fall
outside the definition of a Acontract@ in section
271.151(2).
 
The City next directs our attention to the following cases,
in which the courts construed sections 271.151(2) and 271.152:  City of
Houston v. Swinerton Builders, Inc., 233 S.W.3d 4
(Tex. App.CHouston [1st Dist.]
2007, no pet.); Valley Mun. Util.
Dist. No. 2 v. Rancho Viejo, Inc., No. 13‑07‑00545‑CV,
2008 WL 384320 (Tex.
App.CCorpus Christi Feb. 14,
2008, no pet.) (mem.
op.); and Seals v. City of Dallas, 249
S.W.3d 750 (Tex.
App.CDallas 2008, no pet.). 
In Swinerton, the plaintiffs were suing for
quantum meruit, not for 
breach of contract, and the First Court of Appeals held that the
legislature did not intend section 271.152 to apply to claims Aarising under@ a contract
despite use of that phrase in the subchapter heading.  233
S.W.3d at 13.  In Valley MUD, the plaintiff sued for breach
of an easement agreement which had not been signed by any representative of
Valley MUD and therefore was Anot >properly executed
on behalf@ of the MUD.  2008 WL 384320,
at *4.  The Corpus Christi Court of Appeals further observed the
agreement was not for goods or services to be furnished to the MUD.  Id.  In
neither Swinerton nor Valley MUD did
the courts consider whether a properly executed ordinance could constitute a Acontract@ subject to
sections 271.151(2) and 271.152.
In Seals, the Dallas
court of appeals rejected the city employees= argument that, in
an earlier case, the court had implicitly recognized that the city=s ordinances and
rules governing the terms of employment created a contract between it and fire
department employees.  249 S.W.3d at 756 (citing City of Dallas v.
Albert, 214 S.W.3d 631, 633 (Tex. App.CDallas
2006, pet. filed)).[7] 
As the Seals court explained:
In Albert, Dallas firefighters brought suit,
on theories including breach of contract, to recover wages allegedly due them
because the City allegedly violated a municipal ordinance requiring it to
maintain a percentage pay differential between various grades of
firefighters.  Because section 271.151 et seq. was enacted during the pendency of the Albert appeal, we remanded the case Ato allow [the firefighters] the
opportunity to argue that the legislature has waived the City=s immunity from suit by these new
statutory provisions.@  Allowing the
firefighters in Albert to argue that their contract falls under section
271.151 et seq. is not an endorsement of their position.
 
Id. (citations
omitted).  The Seals court also observed that the employees in the
case before it could point to nothing in the record showing their employment
was anything other than Aat will.@  Id.
at 757.  Finally, in its personnel rules, the city specifically disavowed
the creation of an employment contract.  Id.
 
In contrast, the firefighters in the present case argue
that, by virtue of their civil service status, they are not at-will
employees.  See County of Dallas v. Wiland,
216 S.W.3d 344, 348 (Tex.
2007) (stating, for public employees, at-will status may be modified through
civil service systems).  The City does not argue otherwise.[8] 
Additionally, the firefighters direct our attention to proof of the existence
of civil service files for each firefighterCfiles  containing documents reflecting date of hire, changes
in base salary, payment of supplemental pay, disciplinary actions, performance
rating, letters of commendation and retirement date.[9] 
Cf. Kiel v. City of Houston, 558 S.W.2d 69, 71 (Tex. Civ. App.CHouston [14th Dist.]
1977, writ ref=d n.r.e.) (applying liberal construction to limitations statute
and  holding firefighter=s civil service record and writings
surrounding it, especially eligibility list for promotion, taken as whole,
constituted a contract in writing with city).  For these reasons, Seals
is distinguishable.
 
Additionally, we observe that, in Arredondo v. City of
Dallas, the Dallas court of appeals considered an ordinance to be a
contract, or part of a contract, between the city and the plaintiff
firefighters.  79 S.W.3d 657 (Tex. App.CDallas
2002, pet. denied).[10] 
Such an approach is consistent with the manner in which municipalities conduct
business.  See Cent. Power & Light Co. v. City of
San Juan, 962 S.W.2d 602, 613 (Tex. App.CCorpus Christi 1998, pet. dism=d w.o.j.) (AA city council can
transact a city=s business transactions only by resolution
or ordinance, by majority rule of the council.@).
In sum, we conclude the ordinances the firefighters cite
constitute a Acontract@ as defined by  Texas Local Government Code section 271.151(2). 
See Tex.
Loc. Gov=t Code Ann. ' 271.151(2). 
Accordingly, we further conclude the legislature, pursuant to section 271.152,
has waived the City=s immunity to suit for alleged breaches of
ordinances prescribing the methods of calculating firefighters= overtime and
termination pay.  See id. ' 271.152.
Meet and confer and collective bargaining agreements.  Finally,
the firefighters argue the 1995 and 1997 Agreements and the 2005 CBA are
contracts subject to the provisions of Texas Local Government Code sections
271.151 through 271.160.[11] 
The City does not disagree, but asserts the individual firefighters do not have
standing to bring breach-of-contract actions based on these agreements.
The City=s standing argument is two-fold. 
First, the City contends only the Association has standing to sue for breach of
the agreements.  Second, the City contends the 
firefighters= failure to exhaust the grievance
procedures precludes them from having standing to sue for breach of the
agreements.  Agreeing with the City=s first
contention, we do not address its second.
 
The 1995 and 1997 Agreements provide that grievances and
disputes concerning application of the agreements may be resolved either
through the statutory grievance procedure or Aby judicial
resolution as provided in TEXAS LOCAL GOVERNMENT CODE ' 143.206.@  The
agreements further provide,
In case judicial resolution is chosen, the district courts of Harris
County, Texas, shall have full authority and jurisdiction over any application
by either party to this Agreement who is aggrieved by an action or omission of
the other party if the action or omission is related to a right, duty or
obligation provided by this Agreement.
 
Both agreements indicate they were negotiated Aby and between the
Houston Professional Fire Fighters Association . . . and the City of Houston,
Texas.@  Both
agreements were signed by representatives of the Houston Professional Fire
Fighters Association and the City=s mayor. 
Thus, under the terms of the agreements, the Association or the City may sue
for enforcement.  Nothing in the agreements permits, or refers to, a suit
by individual firefighters.
The firefighters, however, argue nothing in the cited
provision Areserves to or describes
an exclusive or preemptive right of the Association to sue for breach.@  Citing
Texas Local Government Code section 143.206(a), the firefighters argue that,
because the agreements are binding and enforceable on the firefighters, they
have standing to sue for breach of the agreements.  The cited provision in
the agreements tracks section 143.206, which provides in relevant part:
(a) A written agreement made under this subchapter
between a public employer and a fire fighters association recognized as the
sole and exclusive bargaining agent is enforceable and binding upon the public
employer, the fire fighters association recognized as the sole and exclusive
bargaining agent, and fire fighters covered by the agreement if:
(1) the municipality=s governing body ratified the
agreement by a majority vote;  and
(2) the fire fighters
association ratified the agreement by a majority of the votes received in a
referendum of its members by secret
ballot.            

 
(b) The state district court of the judicial
district in which the municipality is located has full authority and
jurisdiction on the application of either party aggrieved by an action or
omission of the other party when the action or omission is related to a
right, duty, or obligation provided by any written agreement ratified by both the
public employer and the fire fighters association. . . .
 
Tex.
Loc. Gov=t Code Ann. ' 143.206 (Vernon
2008) (emphasis added).
Thus, like the 1995 and 1997 Agreements, section 143.206(b)
refers to Aeither party@ and the Aother party@ to the agreement. 
The mention of only the parties to the agreement and not the firefighters in
both the Agreements and the statute suggests both contemplate suits only by the
parties.  See Steering Comms. v. Pub. Util. Comm=n, 42 S.W.3d 296,
302 (Tex. App.CAustin 2001, no pet.) (applying presumption
that purposeful inclusion of certain terms in statute implies purposeful
exclusion of absent terms under principle of statutory interpretation inclusio unius est exclusio alterius);
see also Baty v. ProTech
Ins. Agency, 63 S.W.3d 841, 854 (Tex. App.CHouston
[14th Dist.] 2001, pet. denied) (interpreting contract and applying the maxim expressio unius est exclusio alterius).
For the foregoing reasons, we conclude the firefighters lack
standing to sue for alleged breaches of the 1995 and 1997 Agreements.  As
discussed below, we also conclude they lack standing to sue for alleged breach
of the 2005 CBA.
 
Establishing a breach of the duty of fair representation by
the Association is an Aindispensable predicate@ to an employee=s action against
the City for violation of the collective bargaining agreement.  Metro. Transit Auth. v. Burks, 79 S.W.3d 254,
257 (Tex. App.CHouston [14th Dist.]
2002, no pet.); see also 20 Richard
A. Lord, Williston on Contracts ' 55.60 (4th ed.
2001) (discussing suits by employees seeking remedy for violation of their
personal rights under a collective bargaining agreement and stating employee
who brings action against employer under Federal Labor Management Relations Act
section 301 is necessarily suing union as well as employer because employee is
contending union did not adequately represent him or her).  The
firefighters did not allege in the trial court, nor do they argue in this
court, that the Association in anyway failed to represent them adequately in
relation to the 2005 CBA.
In short, although the 1995 and 1997 Agreements and the CBA
arguably meet the definition of a Acontract@ subject to the
waiver of immunity in section 271.152, the firefighters do not have standing to
sue for breach of those agreements.  Because we conclude the firefighters
do not have standing under the City=s first
contention, we do not address the City=s contention based
on the firefighters= asserted failure to exhaust grievance procedure
remedies.  See Tex.
R. App. P. 47.1.
IV.  Conclusion
We conclude the City=s ordinances
setting forth the essential terms of  the
firefighters= overtime and termination pay constitute written
contracts subject to the waiver of governmental immunity in Texas Local
Government Code section 171.152.  Accordingly, we overrule the City=s sole issue and
affirm the order of the trial court.
 
 
 
 
/s/     
Charles W. Seymore
Justice
 
 
Panel consists of Justices Yates, Seymore and Boyce.


Appendix
 
 
Steve
Williams
Thomas G. Arfele
Lloyd A.
Irvin
Richard C.
Mumey
Joseph M. Tortorice
Leo Adams
Travis E.
Adams
Leslie C.
Adkins
George P.
Alexander
Kevin J.
Alexander
Jerry W.
Anderson
Leslie F.
Anderson
Lanny
W. Armstrong
James T. Atkinson
Myron E.
Atkinson
Charles D.
Barr
Johnny E. Belin
Hillary
Bell
Thomas E. Belyeu
Robert L.
Bennett
Paul N.
Bernard
Craig E. Boegler
Ronnie L. Boegler
Joseph T.
Bond
Raymond
Borden
Gary L.
Bourgeois
Gary L.
Brown
Sidney R.
Bruce
Ray Burt
Arthur Butler
John G.
Butler
Dennis C.
Byrd
Manuel G.
Caballero
Lonny R.
Cameron
John
Cannon
Chester A. Cary
Daniel W. Casanover
Charles B.
Cason
Ezdore
P. Cegielski
Dennis Celsor
Billy S.
Chaffin
Leonard L.
Cherry
Clifford
D. Chevalier
Samuel R. Chumley
Donald R.
Clark
John A.
Clemens
Howard N.
Coates
Robert L.
Cobb
James C.
Collins
Travis A.
Combs
Richard C.
Cook
Daniel Cordaway
Robert A.
Cortez
Willie E. Cotten
Dennis Cox
James R.
Crowder
Stanley G. Curtis
William B.
Dalzell
Larry C.
Danna
Ronnie H.
Dees
Sam L. DeForke, Jr.
Charles F.
Demoss
Ronald E. Dornak
Norman E. Driskell
Ernest
Duran
Ronald
Earnest
David A.
Easley
Billy W.
Emmons
Bobby C. Englishbee
Daniel E.
Estes
Allen L.
Farris
John L. Filar
Jarvis D.
Fisher
Lynn E.
Fortune
Michael R.
Gann
Ralph M.
Garza
Richard L.
Garza
Brad T.
Gibson
Willie E.
Glass, Jr.
Johnny D.
Glover
Frank E.
Gore
Zenus
A. Graham
Frank
Guthrie
Newel K.
Hamilton
Everett H. Harkless
David L.
Harper
Leon J.
Hauck
Charles E.
Hawthorne
Donald W.
Helm
James E. Hilsher
James H.
Hobbs
James W.
Holden
John M. L.
Holleman, Jr.
Lindsey G.
Holt
Richard A.
Horowitz
Robert J. Huizar
Casey R.
Jacoby
William P.
Jansa
Oscar S.
Jenkins
James B.
Jernigan
Billy W.
Johnson
Franklin
E. Kelner
Joseph Kirvin
James P. Kivel
Louis E. Klare
Alton D.
Lee
Calvin L.
Lee
Ralph J.
Lemon
William M.
Lindsey
Marvin Litzler
William Lobins
Richard
Locke
Phillip A.
Long
Francis X.
Maher
 
Lawrence M. Malek
John J. Maniscalco
George A.
Manos
Richard
Massey
Stanley McCoy
Jackie R.
McDonald, Jr.
Richard A.
McTague
Gary W.
Miller
Jesus L. Minjares
Frederick
V. Moore
Tranquilino C. Munoz
Sammy J. Musachia
Gary W. Nelius
Terry R. Oberpriller
Donald C. Paradowski
James L. Pavlock
Marcos O.
Perez
Charles A.
Phlegm
Eugene W. Pilkenton
Johnnie S.
Posuk
Christopher
Potier
Jerry W.
Powers
Harold J. Prevost
Harry C.
Pruitt
Robert E.
Putnam
Rocco R. Rao
Edmond B. Reeves
David
Reyes
Jose L.
Reyes
James B.
Riggs, Jr.
George A.
Ross
Anthony
Russo
Daniel
Salazar
William E.
Sammons
Leon Sandles
Travis L. Sattiewhite
William I.
Scates
Mignon E. Schillaci, Executrix/Administrator of the Estate of Sammy
L. Schillaci, Deceased
Phillip S.
Schultz
Anthony G.
Schulze
George C. Seaback
Terry
Shaffer
Robert C. Sherrard
Billy H.
Sheffield
Roy L.
Simmons
Allen D. Stagner
Herbert W.
Stein
Leonard
Stephens
Robert W.
Steward
Wilbert P.
Steward
David
Stewart
Lloyd W.
Stone
Bruce W.
Talbot
Reginald
Tarver
John S.
Taylor
James L.
Tharp
Amar P.
Thibodeaux
Billy W.
Thompson
Duron
J. Thorne
Ronnie L.
Tidwell
David A. Tilbury
James H.
Tucker
Lester W. Tyra
Willie G.
Vick
Gilbert Villareal
Jerry D.
Wakefield
Oscar F.
Wallace, Jr.
Michael F.
Wead
Marion
Weaver
Jack E. Wedgeworth
Larry A.
Wesley
Charles V.
Wheeler
Charles J.
Whitcher
Daniel
Whiting, Jr.
James M.
Williams
Charlie S.
Wilson, Jr.
John P.
Wood
Robert Wroblewski
Antoine E.
Yazbeck
Carl B.
Young
Jimmy Bundrick
Daniel J.
Dillard, Sr.
Wayne C.
Grissom
Gene Guentert
Wendell Keilers
William
Henry King
Jerry
McDaniel
Jerry D.
Smith
Paul Albarado
Benny H.
Albers
Alex J. Arizpe
Ulysess
Armstrong
Chapman E.
Baber
Ronnie
Bates
Royce G.
Beck
Phillip
Bernard
David
Bonds
Kenneth A.
Broeder
Billy Bromonsky
William N.
Brown
William R.
Campbell
John L.
Carter
John M.
Christopher
Gary T.
Dean
Jimmie
Dearing
Gus Leon Fress
Thomas Gainous
David N.
Gilchrist
Donna
Golden
Gordon L. Griffin
Victor
Gustafson
Samuel
Hamilton
Maria E.
Hayes, Executrix of the Estate of Paul David Hayes, Deceased
 
Michael J.
Herman
Manuel M.
Herrera
Aubrey
Houston
Larry
Hunter
Charles A.
Ingram
Mearl
L. Jones
John Kling
Jerry D.
Lee
Travis D.
Lee
Darrell Mahalec
Daniel E. Malek
Raul
Martinez
Michael C.
McFarland
Royce
Melton
James G.
Miller
Romeo Montalvo
Louis S.
Moore
Roy E.
Moore
Wayne
Murphy
Carl N.
Newman
David L.
Norris
Gary Pick
Robert W.
Prescott
Larry Prevatte
Eddy Proske
Anthony S.
Reynolds
Carlos E. Robledo
Billy G.
Royal
Louis L. Rumfolo
Oscar E. Sacher
Harvard E. Schroeder
Darrell R.
Shely
William L.
Sivley
Dannie C.
Smith
Lance
Stahl
Jerry Stansel
Melvin L.
Starling
William R.
Stone
Anthony J.
Tamborello
Rex A. Ticknor
Edward K.
Ward
Douglas R.
Weidemann
Frederick
J. Wessman
William
Kirk Williams
James A.
Wright
Zeke
Zimmerman
James
Allen
Norman E.
Allen
Curtis H.
Barker
Gary P.
Bennett
Raymond R.
Bennett
Terry L.
Bolton
Ben H. Brymer
Bobby D. Carraway
Joseph A.
Clark
John T.
Crocker
Gary L.
Davison
Norman Donalson
Ralph E.
Frazier
Gregory A.
Galan
James E. Goetzman
Gary Grimes
Loyd R.
Hunter
Rodney D.
Johnson
Walter B.
Kirk
Leon D. Lehmann
Eddie
Lowery
Earl D.
Manning
Kenneth R.
Martin
Christopher
E. Mellen
Calvin
Mendel
Steven L. Merrel
David
Mills
Donald R.
Myers
Larry L.
Rooney
Jerry L.
Sanders
Williams
H. Skinner
William D.
Smelley
Thomas
Spencer
Bob C. Strahan
Richard F.
Thomas
Jerry W.
Thompson
Terry G.
Thompson
John M. Tumis
Larry W.
Wade
Wesley Waldrum
Jerry E.
Walker
Roger W.
Walker
Dale G.
Watson
Bobby J.
Weatherly
James E.
Wilkerson
Michael
Craig Williams
Richard
Williams
Aurora
Carrasco‑Ybarra
Oliver L.
Barrett, Jr.
Rodney M.
Blair
Laval H. Bolling, Jr.
James R.
Booth
Edward W. Boze
Robert L.
Branch
Ronald G.
Brown
George S. Burlin
Roger M.
Caballero
Cecil Callihan
Melvin E.
Cannon
John
Chandler
James A. Cravin
Terry
Crawford
Jerry D.
Curtis
James S.
Dancer
Daniel
Davidson
Bobby R. Deiss
Roy A.
Foster, Jr.
Albert H.
Garcia
Gary L. Goodlett
Timothy
Ham
Larry B.
Harper
Juan
Hernandez, Jr.
Jackie
Hibbard
Elbert C.
Howard
 
Mavis Irvan, Executrix of the Estate of William Irvan, Deceased
Billy W. Jatzlau
Mike Jones
Robert E.
King
Clifford
J. Krengle
Richard W. Lane
Richard Lemoing
John L.
Mayes
Johnny P.
McAdams
Ricky D. Merrywell
Jack E.
Mobley
Roland E.
Morgan
Thomas E.
Morgan
Robert L.
Northcutt
Paul D.
Perez
Kenneth W.
Powell
Dennis B.
Pruitt
Henry T.
Rainey
Joseph A.
Ramirez
Frank D. Ratka
Eric Renschler
Lonia
D. Rice
Raymond L.
Roberds, Jr.
Henry J. Robledo
Robert W. Royall
Jimmie R.
Sanders
Jeffrey R.
Schmidt
Joseph Sciambia
Herbert C.
Sims
Michael S.
Slabic
John R. Slovacek
John H.
Strange
Anthony S.
Tamborello
Michel O.
Thames
Howard T.
Starling
Sheldon K.
Tolson
Ray Torres
Henry W. Ullrich
Jimmy D. Ussery
F. L.
Vickers
Gregory M.
Villarreal
Wesley J. Warnke
Carl Weber
Robert A.
White
Zaid I. Abdul‑Kareem
Charles R.
Bell
William
Benjamin
Donald A.
Bennett
Jack F.
Bennett
Eric D.
Brady
Fred G.
Conrad
Edward A.
Corral
Donald E.
Crowder
Robert
Garza
Berton
D. Golden
Herman
Gonzales
Robert M.
Gonzalez
Danny R.
Greenwood
Gary S. Groover
Gasper Guercio
Rockie
G. Ham
William T.
Hand
Ronald L. Havemann
William C.
Herrington
Sam
Houston
Ricardo
Huerta
Pete Inocencio
George A. Jamail
Darrell W.
Janner
Arnett
Jones
Patrick J.
Kasper
Johnny R.
Klotz
Richard
Large
Donald
Mauro
Michael J.
Nobles
George C.
Porter
Benny H.
Prince
Travis L.
Quinn
Clifford
C. Reed
Benjamin
A. Rivera
Raymond
Dean Robertson
Sammy R.
Robertson
Albert D.
Robinson
Robert S.
Rodriguez
Vandon
Roller
Roland
Sanchez
Anthony Schillaci
Michael D.
Smith
Robert E.
Swisher
Robert Tamborello
Alfred
Taylor
David Ward
Delbert L.
Warwick, Sr. 
Raymond G.
Weber
Jerry
Acevedo
Waymon
E. Armstreet
Anthony R.
Arnt
Theo R. Ater
Donnie L. Bannert
Sherwin W.
Belveal
Freddie Bennefeld
Lawrence E. Benson
Jerry A. Besselman
Roye G.
Binnion
Ronald W.
Bishop
Roger D. Bobo
Donald W. Boriack
James O. Buckelew
Richard W.
Buller
Gilbert F.
Castillo
Larry
Caswell
David W.
Champagne
Phillip R.
Christopher
Abel A.
Coleman
Bruce G.
Conway
James R.
Crawford
David L. Dalmolin
 
David W.
Dean
Sammy J. Dibello
Marvin L. Dominy
Michael F.
Donlevy
Dennis C. Duckett
Thomas A.
Erickson
George R.
George
Glenn R.
Gonzales
Joseph
Gould
Billy D.
Grisham
Alan R.
Gunderson
David Hall
Lloyd C.
Hawkins
Robert L.
Hawthorne
Timothy H.
Hayes
Leonard J.
Higgins
Wayne M. Huckabay
Duane E. Hundl
Jimmy D.
Hunter
Charles L.
Itzen
David E. Jahnke
Manuel B. Jalomo
Doyle D.
Johnson
Robert L.
Johnson, Jr.
Ronald W.
Johnson
Robert E. Kercho
Bobby G.
Key
Charles
Knott
David Lantrip
Dale H.
Larson
Johnnie Leggio
Harry D. LeMaster
Stephen M.
Levell
Peter A.
Lozano
Timothy C.
Lund
James C. Maddux
Thomas E. Malek
James H.
Martin
Dennis L. Maday
Joseph W. McAnally
Marvin G.
McClelland
Burl D.
McMahan, Jr.
Eddie L. Meschwitz
Michael S.
Miller
Stephen P.
Mitchell
Olin M.
Musgrave
Donny R.
Myers
Rickie L. Neyhard
Michael D.
Owin
Lawrence J. Pander
Joe V.
Patterson
Ignacio J.
Pena
Robert Pilkenton
Pruitt Daniel H.
Gerald
Wayne Pulpan
Raul C.
Rivera
Norman J.
Roberts
Armando Ronje
Glen A.
Rust
Michael E.
Schifani
Donald R.
Schroeder
Sherman K. Sims
Newton Smith
James E.
Stahl
Carl W.
Stephens
Hubert G.
Taylor
Roger G.
Teague
Julio L.
Terry
David Venegas
Stephen A.
Waldrep
James H.
Walker
Thomas L.
Watson
Eugene Wiley
Darrell W.
Williams
Richard K.
Williams
Ronald F. Wischnewsky
Ricky J.
Wood 
 
 







[1]  In their brief, the firefighters
state, AFire Fighter Steve Williams is not a party to this case or
appeal, having dismissed his claims sometime ago.  For purposes of
consistency and ease of case identification, the parties have continued to use
his name in the style of the case.@  A complete list of the
plaintiffs= names as they appeared in the style of the live
pleading (the ninth amended petition) may be found in the Appendix to this
opinion.


[2]  The trial court reserved for a later trial Aall
issues of damages, injunctive relief, other requests for declaratory judgment
relief, interest, costs and attorneys=
fees.@


[3]  In our first opinion, we held the City was not
immune from liability because it had contracted with the firefighters.  City
of Houston v. Williams, 183 S.W.3d 409, 413B14 (Tex. App.CHouston
[14th Dist.] 2005), rev=d, 216 S.W.3d 827 (Tex. 2007) (per curiam).  The City has not challenged that
holding.  The issue in the present case is whether, under Local Government
Code sections 271.151(2) and 271.152,  the City
has waived immunity from suit by entering into that contract.  See Tex. Loc. Gov=t Code Ann.
'' 271.151(2), .152 (Vernon 2005).


[4]  A[T]his
subchapter@ refers to subchapter I. of Texas Local
Government Code chapter 271, AAdjudication of Claims
arising under Written Contracts with Local Governmental Entities.@  Subchapter I.
comprises sections 271.151 through 271.160.


[5]  Available at http://www.municode.com/resources/gateway.asp?pid=10123&sid=43 (last visited March 20, 2009).


[6]  Although we confine our analysis to section
34-59, a similar analysis may be applied to other ordinances relevant to the
firefighters= employment.  By not analyzing each of the
ordinances on which the firefighters relied in the trial court, we do not
intend to imply they fall outside the section 271.151(2) definition.


[7]  In Seals, the plaintiffs alleged the
fire chief had violated the city=s
charter, civil service rules, and the fire department=s general procedures manual when he transferred five
firefighters from another division into the division where the plaintiffs
worked.  Seals v City of Dallas, 249 S.W.3d 750,
752B53 (Tex. App.CDallas
2008, no pet.).


[8]  Adoption of a civil service system does not
necessarily eliminate the possibility of at-will employment.  See
County of Dallas v. Wiland, 216 S.W.3d 344, 353
(Tex. 2007) (ANothing prohibits a county from adopting a civil service
system that affords only procedural rights while employment remains at‑will.@).


[9]  The proof comprises affidavits of former
firefighter Richard C. Mumey and termination pay
worksheets for many of the firefighters.


[10]  The Dallas
court referred to the ordinance both as constituting part
of the contract and as the contract.  See Arredondo
v. City of Dallas, 79 S.W.3d 657, 659, 667, 668 (Tex. App.CDallas 2002, pet.
denied).  Neither
party disputed that the ordinance in question was part of the city=s contract with the firefighters.  See id. at
667.  The question before the Dallas
court concerned whether the ordinance was ambiguous and what effect the
ambiguity had on the appropriateness of summary judgment.  See id. at 668B69.


[11]  We note that the 1995 and 1997 Agreements and
the 2005 CBA contain provisions by which the Agreements and the CBA are to supercede, or take precedence over, conflicting
ordinances.  We take no position on the degree to which these provisions
may affect the firefighters= ability to
succeed on the merits of a breach-of-contract claim based on the
ordinances.   See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (AA plea to the jurisdiction is a dilatory plea, the
purpose of which is to defeat a cause of action without regard to whether the
claims asserted have merit.@).   



