                    IN THE SUPREME COURT OF TEXAS
                                                     444444444444
                                                         NO . 11-0778
                                                     444444444444


                             THE CITY OF HOUSTON, TEXAS, PETITIONER,
                                                                v.


   ROGER BATES, MICHAEL L. SPRATT AND DOUGLAS SPRINGER, RESPONDENTS

              4444444444444444444444444444444444444444444444444444
                                 ON PETITION FOR REVIEW FROM THE
                       COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
              4444444444444444444444444444444444444444444444444444


          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”.1 Section 143.110(b) provides that

“[i]n addition to . . . base salary”, a firefighter may be entitled to various types of premium pay —



         1
              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.”
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”.2 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.

          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.3 But Section 143.110(b)’s predecessor, Article 1269m, § 8,


         2
           T EX . L OC . G OV ’T C O D E §§ 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.”).

         3
             Act of May 2, 1975, 64th Leg., R.S., ch. 131, § 1, 1975 Tex. Gen. Laws 302, 302, formerly T EX . R EV . C IV .
S TAT . A N N . 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

                                                                2
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.”4 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”.5 “Base salary”, too, did not include premium pay. As the

Court concedes, Article 1269m used “salary” and “base salary” interchangeably.

          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.6

Houston’s ordinance was consistent with Article 1269m. The substance of the ordinance has

remained in effect to this day.7




of his accumulated vacation leave [for up to 60 days].”

          4
           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 T EX . R EV . C IV . S TAT . A N N . art. 1269m, § 8(b), recodified in relevant part at T EX . L O C . G O V ’T C O D E §§ 143.110
-.111).

          5
              Id.

          6
              Houston, Tex., Ordinance 76-1882 § 1 (Nov. 2, 1976).

          7
              Houston, Tex., Code of Ordinances ch. 34, art.1, § 34-3(c).

                                                                    3
        In 1987, the provisions of Article 1269m were moved to the Local Government Code8 as part

of what the Legislature expressly stated was “a recodification only”, in which “no substantive change

in the law is intended”.9 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”.10 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.

        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.


       8
           Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 913, 915.

       9
           Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 51, 1987 Tex. Gen. Laws 707, 1308.

       10
            W EBSTER ’S T HIR D N EW I N T ’L D IC TIO N ARY 2280 (2002).

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        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.




                                             Nathan L. Hecht
                                             Justice

Opinion delivered:     June 28, 2013.




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