      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                               ON MOTION FOR REHEARING



                                      NO. 03-07-00630-CV



                               City of Temple, Texas, Appellant

                                                 v.

                                    Steven Taylor, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 216,776-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                                          OPINION


               We overrule Taylor’s motion for rehearing, withdraw our opinion and judgment

issued August 27, 2008, and substitute the following in its place.

               The City of Temple appeals from a summary judgment granted in favor of

Steven Taylor regarding the computation of Taylor’s back-pay award under the Fire Fighters’ and

Police Officers’ Civil Service Act (“the Civil Service Act”). See Tex. Loc. Gov’t Code Ann. §§

143.001-.363 (West 2007). Taylor filed suit seeking a declaratory judgment that he was entitled to

the full amount of back pay incurred during the time he was suspended from employment with the

City’s police department. Both parties filed motions for summary judgment, and the trial court

granted Taylor’s motion, declaring that the City must pay the full amount of wages for the period of

Taylor’s suspension without reduction for compensation he earned from other sources. The City
appeals, arguing that the trial court’s order results in an improper windfall recovery for Taylor.

Because we have determined that Taylor’s back-pay award must be reduced by the amount of

compensation earned from other sources during the period of suspension, we reverse the judgment

of the trial court to the extent that it prohibits the City from offsetting the award with outside income.


                                           BACKGROUND

                On June 27, 2005, Taylor was indefinitely suspended from his employment with the

City as a police officer. Taylor appealed the suspension under the Civil Service Act, which the City

has adopted for members of its police and fire departments.1 See id. §§ 143.004, .053. After a

hearing before a third-party hearing examiner, see id. § 143.057(a), the hearing examiner reduced

Taylor’s suspension to fifteen days and ordered that Taylor be reinstated to the police force. Taylor

requested that the City pay him compensation for the period of suspension, less the fifteen days

upheld by the hearing examiner, pursuant to section 143.0539(f) of the Civil Service Act. In

response, the City requested an accounting of Taylor’s earnings from other sources during the time

of his suspension, in order to reduce the back-pay award by the amount of any such compensation.

Taylor refused, filing suit to seek a declaratory judgment and mandamus relief requiring the City to

pay him the full amount of back pay incurred during his suspension without a reduction for earnings

from other sources. The trial court granted summary judgment in favor of Taylor, declaring that the

City was required to pay him the full compensation for time lost during the suspension without




        1
         The City stated in its responses to interrogatories that a local election to adopt the Civil
Service Act was held on January 30, 1948. See Tex. Loc. Gov’t Code Ann. § 143.004 (West 2007).


                                                    2
offsets for outside earnings. The trial court also granted Taylor’s request for attorney’s fees, which

the City does not challenge on appeal.

                The parties agree that the full compensation Taylor would have earned during the

suspension, after deducting compensation for the 15-day period of unpaid suspension, is $32,405.35.

The parties also agree that Taylor earned $15,119.40 from other sources during his suspension. In

its sole issue on appeal, the City argues that Taylor’s back-pay award under the Civil Service Act

should be reduced by the amount he earned from other sources, so that Taylor is only entitled to an

award of $17,285.95, while Taylor argues that he is entitled to the full amount of $32,405.35. The

City has not yet paid Taylor any amount toward the compensation that he is entitled to receive under

the Civil Service Act.


                                   STANDARD OF REVIEW

                Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). When both parties move for summary judgment on the same

issues and the trial court grants one motion and denies the other, the appellate court considers the

summary-judgment evidence presented by both sides, determines all questions presented, and if the

reviewing court finds that the trial court erred, renders the judgment the trial court should have

rendered. Id.

                The facts of this case are undisputed and the sole issue on appeal is a matter of

statutory construction.   Statutory construction is a legal question that we review de novo,

ascertaining and giving effect to the legislature’s intent as expressed by the plain and common

meaning of the statute’s words. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We must read

                                                  3
the statute as a whole, rather than just isolated portions, giving meaning to the language that is

consistent with other provisions in the statute. Dallas County Cmty. Coll. Dist. v. Bolton,

185 S.W.3d 868, 872-73 (Tex. 2005); Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d

637, 642 (Tex. 2004).


                                             DISCUSSION

                The Civil Service Act allows a fire fighter or police officer who has been suspended

for disciplinary reasons to appeal the suspension to the Fire Fighters’ and Police Officers’ Civil

Service Commission.2 See Tex. Loc. Gov’t Code Ann. §§ 143.003(1), .053. If the Commission

finds, as it did in the present case, that the period of suspension should be reduced, it may order a

reduction in the period of suspension and restore the employee to the position or class of service

from which he was suspended. Id. § 143.053(f). A fire fighter or police officer who is restored to

his position or class of service is also entitled to “full compensation for the actual time lost as a result

of the suspension at the rate of pay provided for the position or class of service from which the

person was suspended.” Id. § 143.053(f)(1). Because Taylor’s appeal resulted in a reduced

suspension and reinstatement to the position from which he was suspended, he qualified for a back-

pay award under section 143.053(f).3




        2
         Section 143.053 applies only to municipalities with a population of less than 1.5 million.
The parties agree that the City of Temple falls into this category.
        3
          Under the Civil Service Act, a suspended fire fighter or police officer may elect to appeal
to “an independent third party hearing examiner,” rather than the Commission, as Taylor did in the
present case. See id. § 143.057(a) (West 2007). When such an election is made, “the hearing
examiner has the same duties and powers as the [C]ommission.” Id. § 143.057(f).

                                                     4
                The Civil Service Act does not specifically address whether back-pay awards under

section 143.053(f) are to be offset by income earned from other sources during the suspension, but

merely states that the officer is “entitled to . . . full compensation” for the time lost. See id. Taylor,

citing City of Waco v. Bittle, 167 S.W.3d 20 (Tex. App.—Waco 2005, pet. denied), argues that the

phrase “entitled to” necessarily creates a right to the full back-pay amount without offsets. However,

the court in Bittle did not reach the issue of offsets for outside earnings, holding only that once a

suspended fire fighter or police officer has been reinstated, the Commission does not have

jurisdiction to determine that a reinstated employee is entitled to anything less than the full amount

of an award under the Civil Service Act.4 Id. at 30 (“the [C]ommission does not have exclusive

jurisdiction to determine whether a reinstated firefighter or police officer is entitled to compensation

and benefits under subsection (f) or the amount of such compensation and benefits”). Contrary to

Taylor’s assertions, Bittle does not dictate how an award of full compensation is to be calculated,

holding only that a reinstated officer has a statutory right to such an award.

                Significantly, however, the court in Bittle also states, “The purpose of subsection (f) is

to restore a firefighter or police officer who has been improperly suspended to the position5 he would

have occupied had the suspension not occurred.” The parties agree that if Taylor’s suspension had

        4
          While the City of Waco argued in Bittle that offsets should be awarded “for Bittle’s interim
earnings from other sources,” the court did not address this issue because it held that the City was
entitled to offset the back-pay award with benefits Bittle received during his suspension, and the total
offset amount for such benefits actually exceeded the back-pay award. City of Waco v. Bittle,
167 S.W.3d 20, 30-32 (Tex. App.—Waco 2005, pet. denied).
        5
         Because the Bittle court makes this statement in the context of allowing the City to offset
the appellant’s back-pay award with benefits received during the suspension, we read the word
“position” to refer to the employee’s compensation and benefits, rather than merely rank or class of
service. See id. at 31.

                                                    5
not occurred, his earnings during that time would have been $32,405.35. A back-pay award of

$32,405.35, when coupled with the $15,119.40 Taylor earned from outside sources, would not

restore Taylor to the position he would have occupied had the suspension not occurred, but would

instead result in a windfall recovery that violates the purpose of subsection (f) as described by the

court in Bittle.

                   In City of Texarkana v. Fincher, 657 S.W.2d 842, 843 (Tex. App.—Texarkana 1983,

writ ref’d n.r.e.), the court interpreted the predecessor to section 143.053 to address facts similar to

the present case, where the appellant argued that the trial court erred in reducing his back-pay award

under the Civil Service Act by amounts earned from other sources during his suspension. The court

of appeals affirmed the reduction, stating:


        [Appellant] contends Section 18 of Article 1269m[] provides for his recovery, and
        that because it states, “the court shall order the City to pay lost wages” . . . , no offset
        is permissible. Section 18 is silent as to mitigation. Section 16, effective at the time
        Section 18 was added, provides that a wrongfully suspended employee shall be fully
        compensated. A reading of Section 18 with Section 16 convinces us that the
        legislature intended to do no more than compensate the employee. The doctrine of
        mitigation of damages is applicable to computing lost wages under Article 1369m.


Id.

                   Like the predecessor statute described in Fincher, section 143.053(f) provides that

a wrongfully suspended employee shall be fully compensated, but remains silent on the issue of

mitigation. We agree with the Fincher court that the legislature, in enacting the Civil Service Act,

“intended to do no more than compensate the employee.” Id.6                 As a result, we hold that a


        6
         See City of Waco v. Kelley, 226 S.W.3d 672, 677 (Tex. App.—Waco 2007, pet. granted)
(“Although the Legislature did not retain the same language when it codified the provisions of the
Civil Service Act in the Local Government Code, no substantive change was intended thereby.”).

                                                     6
calculation of “full compensation” under section 143.053(f) necessarily includes offsets for income

earned from other sources during the period of suspension.

               Our holding today is consistent with the general rule of employment law requiring

wrongfully terminated employees to mitigate damages.7 See, e.g., Gulf Consol. Int’l v. Murphy,

658 S.W.2d 565, 566 (Tex. 1983) (“The correct measure of damages for wrongful discharge of an

employee is the present cash value of the contract if it had not been breached, less any amounts that

the employee should . . . be able to earn through other employment.”); Greater Fort Worth & Tarrant

County Cmty. Action Agency v. Mims, 627 S.W.2d 149, 151 (Tex. 1982) (in proving damages for

wrongful discharge, “any income actually earned during the period in question was properly

admissible as rebuttal evidence”); Smith v. Hamilton, 237 S.W.2d 774, 777 (Tex. Civ.




        7
           We note that our holding is limited to the facts of this case, recognizing the common
practice of police officers to engage in off-duty law enforcement employment. As Taylor points out
in his brief, such off-duty employment generally must be authorized by the department. See Corbitt
v. City of Temple, 941 S.W.2d 354, 355 (Tex. App.—Austin 1997, writ denied) (“Under the rules
and policies of the Temple Police Department, the Chief of Police . . . has discretion to grant or deny
an officer permission to engage in off-duty employment that requires an officer to wear a police
uniform and represent the police department.”). In situations where an officer held part-time
employment prior to a suspension, a back-pay award under the Civil Service Act may not necessarily
require reduction for income earned at the same part-time employment during the suspension.

        Federal employment law suggests, for example, that the doctrine of mitigation of damages
does not require an employee’s back-pay award to be reduced by amounts earned from a part-time
job that the employee held prior to being wrongfully terminated. See National Labor Relations Bd.
v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 573-74 (5th Cir. 1966) (permitting “non-deduction
of supplemental earnings . . . where an employee who had spare-time earnings prior to discharge
from his regular job continued in the same spare-time job during his period of discharge,” and further
holding that as long as employee was “moonlighting before his unlawful discharge,” amounts earned
in any “spare time employment” should not be used to reduce back-pay award).

                                                  7
App.—Austin 1951, no writ) (“By the weight of Texas authority, . . . the measure of recovery is the

profits that would have been earned under the contract, less what the employee earned in other

employment . . . .”). This doctrine of mitigation of damages was applied to a police officer’s claim

for lost wages resulting from an improper suspension in City of Laredo v. Rodriguez, 791 S.W.2d 567

(Tex. App.—San Antonio 1990, writ denied), although the back-pay award provided by the

Civil Service Act was not at issue. Comparing an indefinite suspension to a wrongful termination,

the court stated, “In a wrongful discharge from employment case, the rule is that a discharged

employee must use reasonable diligence to mitigate his damages by seeking other employment.”

Rodriguez, 791 S.W.2d at 571.

               The general rule that a wrongfully terminated employee’s back-pay award should be

reduced by the amount of any interim earnings is similarly reflected in federal case law. See, e.g.,

Heinrich Motors, Inc. v. National Labor Relations Bd., 403 F.2d 145, 148 (2d Cir. 1968) (“The

general rule in back pay cases is that a wrongfully discharged employee is entitled to the difference

between what he would have earned but for the wrongful discharge and his actual interim earnings

from the time of discharge until he is offered reinstatement.”); Florence Printing Co. v. National

Labor Relations Bd., 376 F.2d 216, 219 (4th Cir. 1967) (describing the “common law ‘loss of

earnings’ rule, under which the measure of an employee’s recovery is the earnings which he has lost,

less any other earnings which he has obtained or wilfully refused to obtain”).

               In light of Fincher and the general rule that a wrongfully discharged employee is

entitled to no more and no less than “compensation for the loss he has sustained,” Smith, 237 S.W.2d

at 777, we hold that an award of “full compensation” under section 143.053(f) of the local


                                                 8
government code should be offset by income earned from outside sources during the period

of suspension.8

               The City does not raise a point of error on appeal regarding the award of attorney’s

fees to Taylor. In a declaratory-judgment action, a party need not prevail on its claim in order to be

entitled to an attorney’s-fee award. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2007) (in

declaratory judgment action, “the court may award costs and reasonable and necessary attorney’s fees

as are equitable and just”); Barshop v. Medina County Underwater Conservation Dist., 925 S.W.2d

618, 637 (Tex. 1996); Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 228 S.W.3d 864, 866



        8
          Taylor also argues that his back-pay award should not be reduced for interim earnings
because a hearing examiner’s decision is considered final and binding under section 143.057(c). See
Tex. Loc. Gov’t Code Ann. § 143.057(c). While the hearing examiner’s decision is not included in
the record on appeal, the City admitted in a request for admissions that “the hearing examiner
ordered the City to pay plaintiff ‘back pay and to restore his benefits and seniority during the time
in which he was indefinitely suspended until the date of his reinstatement, minus a period of 15 days
of unpaid suspension.’” A calculation of Taylor’s back-pay award that includes offsets for interim
earnings is not inconsistent with the hearing examiner’s decision, which refers only to an award of
“back pay.” Furthermore, the hearing examiner had no jurisdiction to make a determination
regarding the appropriate amount of Taylor’s back-pay award. See id. § 143.053(e), (f) (providing
only for decision regarding whether suspended officer should be dismissed, suspended, or restored
to former position and whether and by how long suspension period should be reduced); Bittle,
167 S.W.3d at 30 (holding that hearing examiner had no jurisdiction to determine appropriate
amount of compensation and benefits to be awarded under section 143.053).

        Taylor further argues that unless a hearing examiner is permitted to make final and binding
decisions regarding any appropriate offsets, there will be no recourse to resolve disputes regarding
the amount of a back-pay award. We disagree. An officer who takes issue with the amount of his
back-pay award may, as Taylor has done in the present case, file a declaratory action and petition for
mandamus in district court. See Bittle, 167 S.W.3d at 23 (holding that district court had authority
to grant declaratory judgment and mandamus relief in dispute over manner in which City sought to
restore officer’s compensation and benefits); see also City of Round Rock v. Whiteaker, 241 S.W.3d
609, 636 (Tex. App.—Austin 2007, pet. filed) (stating that “legislature necessarily waived
governmental immunity for administrative back pay awards . . . under section 143.053(f)”).

                                                  9
(Tex. App.—Austin 2007, pet. denied). Furthermore, reversal of a trial court’s decision on a

declaratory judgment does not necessarily require reversal of an award of attorney’s fees to the party

who prevailed in the trial court. See Sava Gumarska v. Advanced Polymer Sci., Inc., 128 S.W.3d 304,

324 (Tex. App.—Dallas 2004, no pet.) (holding that while court of appeals may remand attorney’s-fee

award for reconsideration when declaratory judgment is reversed, “[w]e are not required to do so”);

see also Vincent v. Bank of America, N.A., 109 S.W.3d 856, 864 (Tex. App.—Dallas 2003,

pet. denied) (stating that reversal of declaratory judgment does not require reversal of attorney’s-fee

award where complaining party fails to establish that trial court abused its discretion in

granting award).

                A trial court’s grant or denial of attorney’s fees in a declaratory-judgment action need

not be reversed on appeal “unless the complaining party clearly shows the trial court abused its

discretion.” State Farm Lloyds v. Borum, 53 S.W.3d 877, 893-94 (Tex. App.—Dallas 2001,

pet. denied). In the present case, the City has not only failed to demonstrate that the trial court abused

its discretion, but has asserted no point of error on appeal challenging the award of attorney’s fees and

therefore has waived all complaints in this regard. See State v. Biggar, 873 S.W.2d 11, 14

(Tex. 1994).


                                           CONCLUSION

                Because we have determined that Taylor’s back-pay award under the Civil Service Act

was subject to a reduction for income earned from other sources during the period of suspension, we

reverse the trial court’s order to the extent it declares that (1) the City failed to comply with

section 143.053(f) of the local government code and (2) Taylor is entitled to mandamus relief

                                                   10
requiring the City to pay him a total sum of $32,405.35, and we render judgment that Taylor is

entitled to mandamus relief requiring the City to pay him a total sum of $17,285.95, representing

offsets for income earned from outside sources.          We affirm the remainder of the trial

court’s judgment.




                                                Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed in Part; Reversed and Rendered in part on Motion for Rehearing

Filed: October 16, 2008




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