     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                  NO. 03-08-00594-CV


  Clifton Alexander, Rob Acker, Joe Augeri, James Baker, Brad Ballard, John Banning,
  Scott Bartell, Edward Baxter, Dan Beard, David Bearden, David Belknap, Mikel Borg,
David Brietzke, Drew Britcher, Becky Brooks, Kevin Brooks, Malvin Brown, Palmer Buck,
 Richard Bunte, Jeremy Burke, Richard Candelario, Alfred Cervera, Bret Carr, Michael
 Chappell, Duncan Charlton, Andrew Chelf, John Cherry, Ed Cisler, Larry Clowry, Jerry
 Cohen, Wade Crain, Greg Crowley, Prestin Curtis, Marshall Dandridge, Richard Davis,
   Scott Decuir, Doug Dedear, David Dixon, Tom Dodds, Anthony Dwyer, Lynn Eichler,
Donald Eickhoff, Doug Eickhoff, Dan Elliott, Tracy Evans, George Felix, Stuart Finnessey,
Crocket Foster, Lionel Foster, Doug Fowler, Faron Fowler, Ken Fowler, Mike Frick, Daniel
   Galvan, Mike Geraty, Lawrence Gess, John Green, Guy Groomer, Randy Gunn, Luis
   Gutierrez, Bob Hamilton, Rob Hayden, Daniel Herman, Gregorio Hernandez, David
  Hiebert, Patrick Holman, Mary Ann Hubbard, Phil Jack, Scott Janecek, Randy Jones,
  Andre Jordan, Travis Jordan, Janet Kallus, Clifford Kealey, Bryan Kent, Coit Kessler,
   Edgar Kneupper, Kelly Knobloch, Chris Lafferre, Brad Landi, John Lenz, Raymond
 Lescbher, Mike Littrell, Ken Lones, Joe Loughran, John Lowery, David Lundstedt, Eric
  Lupton, Mark Madison, Thomas Madison, Carmen Maguire, Danny Marquis, Juan J.
  Martinez, Steve Martinez, Matt McBrayer, Donald McCullough, Matt McElerney, Les
Mckay, Marion McKibbin, William McLain, Richard Mendez, Brent Meisenheimer, Chad
 Messersmith, Larry Miller, Will Moncrief, Ricky Moore, Phil Mueller, Mike Nascimbeni,
Randell Nations, Michael Norris, Glen O’Dell, Terrence Oertli, Joe Olague, Lonnie Owen,
   Robert A. Parker, Greg Paschall, Wayne Parrish, Mike Pearson, Angel Perez, Kregg
   Phillips, Paul Phillips, Mark Pigg, Hunter Pomroy, Todd Pomroy, Greg Powers, Tye
     Prange, Gary Priest, Carie Pritchard, Andy Reardon, Gret Reddish, Tom Reiner,
   Scott Reynolds, Roy Richardson, Joe Ridgeway, Alex Rodriguez, Edward Roel, Dean
 Rumel, Chris Sandman, Marcello Saenz, Nicholas Schappe, Kim Schmidt, Mark Schultz,
Barbara Scotti, Vincente Serrano, Andrew Shultz, David Smith, Mike Stephenson, Tracey
   Suire, Roger Tanner, Everett Thomas, Kathy Touretellotte, Tim Treckman, Stephen
  Truesdell, Rene Vallejo, Stan Van Hoose, Miguel Vasquez, Robert Vickery, Art Vieria,
  Mike Villarreal, Brandon Wade, Bryan Wagers, John Wakefield, Scott Walters, Chris
Watson, Charles Weise, John Weller, Lawrence Wesley, Jan Wesson, Carlton Whitehorst,
  Tommy Wilkins, Michael Williams, Lance Williamson, Hugh Woodard, Gerald Worry,
                                and Scott Worth, Appellants

                                           v.

                                City of Austin, Appellee
     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
        NO. D-1-GN-07-002423, HONORABLE JON N. WISSER, JUDGE PRESIDING



                                            OPINION


                A number of current and former Austin fire fighters (collectively, “the Fire Fighters”)

filed suit against the City of Austin (“the City”), claiming violations of the Fire Fighter and Police

Officer Civil Service Act, see Tex. Loc. Gov’t Code Ann. §§ 143.001-.363 (West 2008) (“the Civil

Service Act”). The Fire Fighters sought declaratory, injunctive, and mandamus relief, as well as an

award of back pay. The parties filed cross-motions for summary judgment, and the trial court issued

a final order granting summary judgment in favor of the City. The Fire Fighters then brought the

present appeal from the trial court’s order granting summary judgment. We affirm the order granting

summary judgment.1


                                          BACKGROUND

                The Fire Fighters brought the present suit in response to City of Austin

Ordinance 020926-13, which they allege violates sections 143.041 and 143.044 of the Civil Service

Act by preventing them from simultaneously receiving both certification pay and educational

incentive pay.2 See id. §§ 143.041, .044. Section 143.041 provides that all fire fighters in the same

classification are entitled to the same base salary, and that in addition to their base salary, each fire


        1
            The parties’ motions for leave to file supplemental post-submission briefs are hereby
granted.
        2
          The parties stipulated at trial that the City of Austin is a home-rule city subject to the
relevant provisions of the Civil Service Act.

                                                   2
fighter is entitled to certain types of supplemental compensation at the discretion of the municipality,

including “educational incentive pay” and “certification pay” as authorized by section 143.044. Id.

§ 143.041(b), (c); see also id. § 143.044(b), (c). Section 143.044 governs the provision of

educational incentive pay and certification pay as follows:


        (b) If each fire fighter or police officer in a municipality is afforded an opportunity
        to qualify for certification, the municipality’s governing body may authorize
        certification pay to those fire fighters who meet the requirements for certification set
        by the Commission on Fire Protection Personnel Standards and Education or for
        those police officers who meet the requirements for certification set by the
        Commission on Law Enforcement Officer Standards and Education.

        (c) If the criteria for educational incentive pay are clearly established, are in writing,
        and are applied equally to each fire fighter or police officer in a municipality who
        meets the criteria, the municipality’s governing body may authorize educational
        incentive pay for each fire fighter or police officer who has successfully completed
        courses at an accredited college or university.


Id. § 143.044.

                 In Ordinance 020926-13, the City set forth the requirements and criteria for fire

fighters to receive supplemental compensation pursuant to section 143.044. Of relevance to this

appeal, the ordinance includes the following language: “A firefighter shall not be entitled to receive

both Firefighter Certification Pay and Education Incentive Pay.”

                 In response to the ordinance, the Fire Fighters filed the present suit, alleging that the

ordinance violated the Civil Service Act by preventing them from receiving both types of

supplemental pay. The trial court granted summary judgment in favor of the City, and this appeal

followed.




                                                    3
                                   STANDARD OF REVIEW

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

164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must

show that there is no issue of material fact and that it is entitled to judgment as a matter of law.

TX Far West, Ltd. v. Texas Invs. Mgmt., Inc., 127 S.W.3d 295, 301 (Tex. App.—Austin 2004,

no pet.). Evidence favorable to the non-movant is taken as true and every reasonable inference must

be indulged in favor of the non-movant and any doubts resolved in its favor. Id.


                                          DISCUSSION

               In two points of error on appeal, the Fire Fighters argue that the City’s ordinance

prohibiting individual fire fighters from simultaneously receiving both certification pay and

educational incentive pay violates the Civil Service Act by (1) failing to award certification pay to

all those fire fighters who qualify and (2) failing to award educational incentive pay to all fire

fighters who meet the criteria.

               Because home-rule cities derive their power from the Texas Constitution, see

Tex. Const. art. XI, § 5, and possess the full power of self-government, home-rule city ordinances

are presumed valid. In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002). Furthermore, “a general law

and a city ordinance will not be held repugnant to each other[] if any other reasonable construction,

leaving both in effect, can be reached.” City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)

(emphasis omitted). Accordingly, if we can reach a reasonable construction of the City’s ordinance

and the Civil Service Act that leaves both laws in effect, we must do so.




                                                 4
                Section 143.044(b), governing certification pay, states that if each fire fighter in a

municipality is afforded an opportunity to qualify for certification, the municipality “may authorize

certification pay to those fire fighters who meet the requirements for certification.” Tex. Loc. Gov’t

Code Ann. § 143.044(b) (emphasis added). This language clearly indicates that the City’s payment

of certification pay is discretionary. The Fire Fighters argue, however, that once the City has

exercised its discretion to provide certification pay, the statute requires that the payment be made to

“those fire fighters” meeting the requirements, without exception. Id.

                We find it significant that the statute uses the word “may,” rather than “shall,” in

connection with the authorization of certification pay. See Tex. Gov’t Code Ann. § 311.016

(West 2005) (in interpreting statutes, “may” creates discretionary authority or grants permission or

power, while “shall” imposes duty). Keeping in mind that we must reach a reasonable construction

of the ordinance that is consistent with section 143.044(b) if it is possible to do so, we hold that by

providing that the City “may authorize certification pay to those fire fighters who meet the

requirements,” section 143.044(b) grants the City discretionary authority to set conditions resulting

in the award of certification pay to some fire fighters meeting the requirements, but not others.3 See

id. (emphasis added).

                Similarly, section 143.044(c) provides that a municipality may authorize educational

incentive pay “[i]f the criteria for educational incentive pay are clearly established, are in writing,


        3
          Our analysis is limited to the facts of this case, in which there is no assertion that the City
is withholding certification pay based on membership in a protected class or in any manner that
would fail to satisfy a rational basis review in the event of an equal protection challenge. See, e.g.,
Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 784 (Tex. 2005) (observing
that when no suspect class or fundamental right is involved, “the government is permitted to give
classes disparate treatment . . . as long as it has a rational basis for doing so”).

                                                   5
and are applied equally” to each fire fighter who meets the criteria. Id. § 143.044(c). The statute

does not limit the municipality’s authority to promulgate the criteria for educational incentive pay.

In this case, the City has included a criterion that in order to receive educational incentive pay, the

fire fighter must not also be receiving certification pay. This requirement is clearly established, is

in writing, and is applied equally to each fire fighter, as required by the statute. See id. The

ordinance provides written notice to all fire fighters employed by the City that in order to be eligible

for educational incentive pay, they must not also be receiving certification pay.4 This is all that the

statute requires.     As a result, we hold that the City’s ordinance is not inconsistent with

section 143.044(c).

               With respect to both certification pay and educational incentive pay, the Fire Fighters

also contend that the ordinance violates a “non-discrimination requirement” applicable to pay

supplements under the Civil Service Act. In support of this argument, the Fire Fighters cite

section 143.041(b), which states that all fire fighters “in the same classification are entitled to the

same base salary.” Id. § 143.041(b). While this provision refers only to base salary, the Fire Fighters

cite City of Austin v. Castillo, 25 S.W.3d 309, 311 (Tex. App.—Austin 2000, pet. denied), and City

of Harlingen v. Avila, 942 S.W.2d 49, 53 (Tex. App.—Corpus Christi 1997, writ denied), for the

proposition that the non-discrimination requirement has also been applied to the supplemental

payments listed in section 143.041(c). See Tex. Loc. Gov’t Code Ann. § 143.041(c). In response,

the City contends that the non-discrimination requirement does not apply to supplemental pay and

that even if it does, the City’s ordinance is non-discriminatory.


        4
          Those fire fighters who qualify for both educational incentive pay and certification pay may
elect to receive the benefit that provides the greatest amount of remuneration.

                                                   6
                Because we agree that the City’s ordinance is neutral and non-discriminatory, we need

not resolve the issue of whether the non-discrimination requirement applicable to base salary also

applies to supplemental pay. The City’s ordinance, which limits fire fighters to receiving either

educational incentive pay or certification pay but not both, is applied equally to all fire fighters and

treats all similarly situated fire fighters the same. Any fire fighter who qualifies for both certification

pay and educational incentive pay must elect to receive only one of those benefits. Because the pay

supplements authorized by the City are disbursed in a fair, even-handed, and non-discriminatory

manner, the ordinance is consistent with the Civil Service Act. See Avila, 924 S.W.2d at 53 (holding

that once city chooses to provide seniority or longevity pay supplements under section 143.041(c),

it “must do so in a fair, even-handed, non-discriminatory manner”).

                We overrule the Fire Fighters’ points of error and hold that the City’s ordinance does

not violate the Civil Service Act.

                                            CONCLUSION

                We affirm the trial court’s order granting summary judgment.




                                                 __________________________________________

                                                 Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: November 20, 2009



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