City of Austin v. Austin Professional Fire Fighters Ass'n, 03-96-00132-CV

• Decision Date: 06 November 1996
• Docket Number: No. 03-96-00132-CV,03-96-00132-CV
• Citation: 935 S.W.2d 179
• Parties: CITY OF AUSTIN, Appellant, v. AUSTIN PROFESSIONAL FIRE FIGHTERS ASSOCIATION, Mark W. Warren, Mickey L. Pike, James D. Hibbs and Michael J. Marks, Individually and on behalf of Affected Fire Fighters Employed by the City of Austin, Appellees.
• Court: Texas Court of Appeals

Page 179

935 S.W.2d 179

CITY OF AUSTIN, Appellant, v. AUSTIN PROFESSIONAL FIRE FIGHTERS ASSOCIATION, Mark W Warren, Mickey L. Pike, James D. Hibbs and Michael J. Marks Individually and on behalf of Affected Fire Fighters Employed by the City of Austin, Appellees.

No. 03-96-00132-CV.

Court of Appeals of Texas,

Austin.

Nov. 6, 1996.

Rehearing Overruled Jan. 9, 1997.

Andrew F. Martin, City Attorney, Frederick A. Hawkins, Assistant City Attorney, Austin, for Appellant.

B. Craig Deats, Jenkins & Deats, P.C., Austin, for Appellees.

Before POWERS, ABOUSSIE and JONES, JJ.

JONES, Justice.

Appellees, a class of affected fire fighters employed by the City of Austin (collectively "fire fighters") ¹ sought declaratory and injunctive relief against the City of Austin ("City"), appellant. The fire fighters' claims hinged on whether the time they had spent in the fire academy as trainees counted toward their years of service in the fire department for purposes of longevity pay. Holding that time spent in the fire academy should be included in a fire fighter's service time, the district court granted the fire fighters' motion for summary judgment and denied the City's motion for summary judgment. The City appeals, arguing that (1) time spent in the fire academy is not a part of a fire fighter's length of service, and (2) the fire fighters' claims are barred by the statute of limitations. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts on which the district court's judgment is based are undisputed. The City is and has been subject to the Fire Fighters' and Police Officers' Civil Service Act, now contained in Chapter 143 of the Texas Local Government Code, and to other provisions of the Texas Local Government Code (hereinafter "Code"). Under these statutes, fire fighters employed by the City are entitled to certain pay increments and benefits based on The City measures the total length of service time in the fire department differently depending on when a fire fighter was hired. If a fire fighter was hired prior to September 1974, the City includes time spent as a cadet in the fire academy in calculating service time. For a fire fighter hired after September 1, 1974, however, time spent as a cadet at the academy is not included as part of his or her total length of service in the fire department. ²

service time with the department. The City pays several seniority increments based on total length of service in the fire department. Seniority in the Austin Fire Department affects a fire fighter's longevity pay, step increases within a classification, and, in some circumstances, overtime pay. See Code §§ 141.032, 143.033 (West 1988 & Supp.1996). It also affects the number of seniority points added to a promotional examination grade and the date an employee can become eligible to take a promotional examination. See Code §§ 143.030, .033(b) (West 1988).

On September 3, 1993, the fire fighters filed the present suit against the City seeking declaratory and injunctive relief. They claimed the City violated portions of the Fire Fighters' and Police Officers' Civil Service Act and other provisions of the Code by failing to include time spent as a cadet in the academy as service time. They also sought recalculation and payment of longevity pay and benefits earned after September 3, 1989. The trial court granted the fire fighters' motion for summary judgment, awarded reimbursement of longevity pay, and ordered the City to comply with the requirements of the Code. The City appeals.

DISCUSSION

In its first point of error, the City argues that the trial court erred in interpreting the Code to include time spent as a fire academy cadet as service time in the fire department. The cardinal rule of statutory interpretation is to effectuate the intent of the legislature. Union Bankers Ins. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). Matters of statutory construction are questions of law for the court to decide rather than issues of fact. Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989); Pulido v. Dennis, 888 S.W.2d 518, 519-20 (Tex.App.-El Paso 1994, no writ). Legal conclusions of a trial court are always reviewable on appeal and are given no particular deference. As the final arbiter of the law, the appellate court has the power and duty to independently evaluate legal determinations of the trial court. Pulido, 888 S.W.2d at 520; Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 903 (Tex.App.-Houston [14th Dist.] 1991, writ denied). Because the trial court's judgment was based on its construction of the Code, which no party asserts is ambiguous, we may reverse the summary judgment if we find the court's statutory construction to be erroneous.

In the present case, legislative intent is obtained from the language of pertinent sections of the Code, including the longevity pay provision. See Sherman v. Public Util. Comm'n, 643 S.W.2d 681, 684 (Tex.1983). The longevity pay provision of the Code states:

In a municipality with a population of 10,000 or more, each member of the fire or police department is entitled to receive, in addition to all other money paid for service rendered in the department, longevity pay of $4 a month for each year of service in the department, not to exceed 25 years.

Code § 141.032 (West 1988) (emphasis added).

The City contends that the intention of the legislature not to include time as an academy cadet in the calculation of service time is found in the statutory definition of the word "member." The City argues that under section 141.032 only members are entitled to receive longevity pay, and under the Code fire academy cadets are not members of the department. See Code § 141.009 (West Supp.1996). ³ Thus, the City contends We do not read section 141.032 as indicating that service time cannot begin until membership in the department is achieved. The importance of the word "member" is that present membership is required in order to receive longevity pay, not that membership is relevant to the actual calculation of service time. While the City is correct that academy cadets are not "members" of the department as defined by the Code, that does not address the issue before us. The decisive question is whether the City is required to count the time spent as a cadet in the fire academy as part of the fire fighter's total length of service. Therefore, we reject the City's argument that a fire fighter must be a "member" of the fire department before length of service begins.

that time as a fire academy cadet does not constitute service time, and, therefore, the City is not required to include time in the academy in determining longevity pay under the statute. We disagree.

We conclude that including time spent in the fire academy in calculating a fire fighter's service time is the most reasonable construction of section 141.032. Other provisions of the Code are relevant in this inquiry. For example, section 143.027 evinces a legislative intent to include time in the fire academy as service time. Under section 143.027, a fire fighter's time as an academy trainee expressly counts toward the completion of the required year-long probationary period: ⁴ "A person appointed to a beginning position in the fire or police department must serve a probationary period of one year beginning on that person's date of employment as a fire fighter, police officer, or academy trainee." Code § 143.027(a) (West 1988) (emphasis added). Thus, by starting the year long probationary period "from the date of employment as a[n] ... academy trainee," section 143.027 expressly treats an academy trainee as someone who holds "a beginning position in the fire department." As with calculation of the probationary period, it is reasonable that service time in the department begins on one's appointment to a beginning position in the department. ⁵ Cf. Klinger v. City of San Angelo, 902 S.W.2d 669, 675 n. 6 (Tex.App.-Austin 1995, writ denied) (stating that employee is entitled to credit for time served in probationary position); City of Pasadena v. Cunningham, 693 S.W.2d 751, 753 (Tex.App.-Houston [14th Dist.] 1985, no writ) (holding that time spent as probationary police officer is used to determine seniority points). It would be logically inconsistent for the City to count the time spent as a fire cadet as part of the fire fighter's probationary year in the fire department, but not as The City also asserts that, in order to accumulate service time with the department, an academy cadet must be in a "classified" position authorized by city ordinance in accordance with section 143.021(a) of the Code and that the City has discretion whether or not to "classify" probationary employees. See Code § 143.021(a) (West 1988). Currently, the City does not classify the position of "fire cadets" and "probationary fire fighters." ⁶ We believe, however, that whether or not a fire fighter holds a "classified" position is immaterial to the issue at hand. The longevity pay provision of the Code refers only to "service in the department" and does not require that service time be limited to positions that are classified in accordance with section 143.021(a).

part of the fire fighter's service time in the department.

In addition, other provisions of the Code manifest a similar legislative intent. For example, section 143.033(b) provides distinct methods of earning seniority points for police officers and fire fighters:

Each police officer is entitled to receive one point for each year of seniority as a classified police officer in that department, with a maximum of ten points. Each fire fighter is entitled to receive one point for each year of seniority in that department, with a maximum of ten points.

Code § 143.033(b) (West 1988) (emphasis added). Thus it appears that under § 143.033(b) police officers must be classified to receive seniority credit. See Cunningham, 693 S.W.2d at 753. Yet for fire fighters, all service in the...