City of Corpus Christi v. Herschbach, 1097

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation536 S.W.2d 653
Docket NumberNo. 1097,1097
PartiesCITY OF CORPUS CHRISTI, Texas, Appellant, v. R. J. HERSCHBACH, Appellee.
Decision Date29 April 1976

Gerald Benadum, Asst. City Atty., Corpus Christi, for appellant.

Curtis B. Dyer, Corpus Christi, for appellee.


BISSETT, Justice.

This is an appeal from a judgment by the trial court which awarded R. J. Herschbach, an employee of the City of Corpus Christi, full benefits under both the workmen's compensation and civil service statutes. The trial was before the court, sitting without a jury, and on stipulated facts.

Richard J. Herschbach, hereinafter called 'appellee', a twenty-one (21) year veteran of the City of Corpus Christi's Fire Department, was seriously injured in the line of duty on December 23, 1974. Subsequently thereafter (on December 24. 1974), appellee began a period of sick leave from the Fire Department until his return to duty on April 29, 1975.

Pursuant to Tex.Rev.Civ.Stat.Ann. art. 8309h § 2(a), appellee began to receive workmen's compensation benefits from the City of Corpus Christi, hereinafter called 'appellant', in the amount of $70.00 per week. He received a total of $1,260.00 by way of such benefits for the period he was on leave of absence for the injury. In addition to the workmen's compensation benefits, appellee, as a civil service employee, continued to receive his full salary for the same period of injury leave as required by Tex.Rev.Civ.Stat.Ann. article 1269m, § 26(a).

On February 2, 1975, appellant, acting under its Ordinance 8127, began withholding $70.00 from appellee's bi-monthly payroll check to recover what, in its belief, was an overpayment to appellee. The provision in the Ordinance on which appellant relied, in part, reads as follows:

'. . . in no case will the combined total of workmen's compensation and supplemental compensation exceed the employee's regular salary . . .'

Appellee, on July 17, 1975, then filed suit to recover the accumulated sums withheld by appellant and to prohibit further deductions from his payroll wages. On July 23, 1975, appellant filed a counterclaim seeking from counter-defendant $4,779.92 allegedly overpaid in error to appellee. The trial court, after waiver of a jury trial and stipulations of all material facts by both parties, then rendered judgment in favor of appellee, and ordered appellant to pay appellee the sum of $1,260.00, being the total amount of workmen's compensation benefits paid and subsequently deducted from appellee's wages, plus interest thereon at the rate of 6% Per annum.

The trial judge, in his findings of fact, found: 1) appellee is an employee of the City of Corpus Christi's Fire Department; 2) that appellee was injured in the course and scope of his employment on December 23, 1974, necessitating leave of absence until April 29, 1975; 3) that appellee received $1,260.00 in workmen's compensation and appellant deducted the same amount from his wages.

The trial court, in its conclusions of law, concluded: 1) under art. 1269m, § 26, appellee was entitled to full pay during his leave of absence; 2) under art. 8309h, § 2(a), appellee was entitled to workmen's compensation benefits; and 3) neither statute authorized appellant to deduct from appellee workmen's compensation benefits.

In essence, it is appellant's position in this appeal that under a statutory interpretation of either statute, appellee is not entitled to receive the full amount of his regular salary in addition to workmen's compensation benefits. In order to better state the contentions of the parties, we now discuss the applicable sections of the statutes involved.

Article 1269m, entitled 'Firemen's and Policemen's Civil Service in cities of 10,000', was enacted in 1947 for the purpose of creating a firemen's and policemen's civil service. Section 26 of the statute requires cities coming under the provisions of the Act to:

'. . . provide injury leaves of absence with full pay for periods of time commensurate with the nature of injuries received while in line of duty for at least one (1) year . . .'

The second statutory provision requiring payment of benefits by appellant to appellee for injury is art. 8309h. This statute, entitled 'Workmen's compensation insurance for employees of political subdivisions,' became effective July 1, 1974, and under Section 2(a) it is provided:

'All political subdivisions of this state shall become either self-insurers, provide insurance under workmen's compensation insurance contracts or policies, or enter into interlocal agreements with other political subdivisions providing for self-insurance, extending workmen's compensation benefits to their employees.'

Appellant, as a political subdivision, thereafter became self-insured and a participant in a joint fund as allowed under § 4 of the statute.

The Legislature, in enacting art. 8309h, enumerated in Section 5 the legislative 'purpose' it sought to achieve, to-wit:

'It is the purpose of this article that the compensation herein provided for shall be paid from week to week and as it accrues and directly to the person entitled thereto, unless the liability is redeemed as in such cases provided elsewhere herein. . . .'

Subsequently, the Legislature, in 1975, amended Section 5 of art. 8309h to read as follows:

'. . . Provided further, however, that any and all sums for incapacity received in accordance with Chapter 325, Acts of the 50th Legislature, 1947, as amended (article 1269m, Vernon's Texas Civil Statutes), and any other statutes now in force and effect that provide for payment for incapacity to work because of injury on the job that is also covered by this Act are hereby offset as against the benefits provided under this Act to the extent applicable.'

It is on this amendment that appellant primarily relies in support of its contention that it should be permitted to offset the sums received by appellee as payment for his inability to work on account of injuries suffered.

When in the course of any controversy a question as to the effect or operation of a statute is presented, it becomes the duty and it is in the province of this Court to construe the statutory language and to give it, if possible, the effect and scope intended by the Legislature. 53 Tex.Jur.2d, Statutes, § 119. In such instances, where the intent of the legislature is not clear, the courts must resort to rules of construction in order to give meaning to the legislative enactment. When intent is ascertained, the courts will construe the statute so as to give effect to the intent of the legislature. Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916); 53 Tex.Jur.2d, Statutes, § 125. When such intent is clear or is made clear, it will be given effect by the courts even to the extent of adding words to the language used by the Legislature. Sweeny Hospital District v. Carr, 378 S.W.2d 40 (Tex.Sup.1964).

In circumstances where there has been an amendment to an act, in order for us to arrive at the intention of the Legislature in enacting the amendment, it is our duty to look primarily to the act itself as an entirety. American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715 (1931, opinion adopted). The court may properly consider the amendment to arrive at the legislative intent, without, however, being bound thereby. Calvert v. Audio Center, Inc., 346 S.W.2d 420 (Tex.Civ.App.--Austin 1961, writ ref'd n.r.e.).

With respect to statutory amendment, the guiding rule of statutory construction is that the original provisions appearing in the amended act are to be regarded as having been the law since they were first enacted and still speak from that time, while the new provisions are to be construed as enacted at the time the amendment took effect. Shipley v. Floydada Independent School District, 250 S.W. 159, (Tex.Comm'n App.1923). Additionally, it is a well established presumption that an amendment to a statute is presumed to operate prospectively, not retroactively, unless terms of the statute show a contrary intention. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.Sup.1966).

It was stated in City of Austin v. Clendennen, 323 S.W.2d 158 (Tex.Civ.App.--Austin 1959, writ ref'd n.r.e.):

'To allow an offset for money earned by appellee subsequent to his injury would violate the well-established rule that a person is not...

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    ...24 Tex.B.J. 1037, 1090 (1961). 11 The Chappell court summarized its own holding in the case of City of Corpus Christi v. Herschbach, 536 S.W.2d 653, 657 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n. r. e.): "(T)his Court has in the past rejected the argument that the receipt of benefits ......
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