City of Hous. v. Hous. Prof'l Fire Fighters' Ass'n

• Decision Date: 06 May 2021
• Docket Number: NO. 14-18-00976-CV, NO. 14-18-00990-CV,14-18-00976-CV
• Citation: 626 S.W.3d 1
• Court: Texas Court of Appeals
• Parties: CITY OF HOUSTON, Texas, Appellant v. HOUSTON PROFESSIONAL FIRE FIGHTERS' ASSOCIATION, LOCAL 341, Appellee

626 S.W.3d 1

CITY OF HOUSTON, Texas, Appellant

v.HOUSTON PROFESSIONAL FIRE FIGHTERS' ASSOCIATION, LOCAL 341, Appellee

NO. 14-18-00976-CV

NO. 14-18-00990-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 6, 2021

Lowell Frank Denton, San Antonio, Joseph Alan Callier, Houston, Richard J. Navarro, Harlingen, for Appellant.

E. Troy Blakeney, Richard Charles Mumey, Houston, Vincent L. Marable, III, Wharton, for Appellee.

Panel consists of Justices Wise, Spain, and Hassan.

Meagan Hassan, Justice The City of Houston (the "City") appeals the denial of its interlocutory plea to the jurisdiction based on governmental immunity in case number 14-18-00990-CV. The City also appeals the interlocutory denial of its motion for summary judgment based on the unconstitutionality of Texas Local Government Code section 174.252 in case number 14-18-00976-CV. We affirm the trial court's orders denying the City's plea to the jurisdiction and motion for summary judgment.

BACKGROUND

This case arose after the City and the Houston Professional Firefighters' Association, Local 341 (the "Association") negotiated but failed to reach a collective bargaining agreement regarding Houston fire fighters' compensation, hours, and other working conditions pursuant to The Fire and Police Employee Relations Act (the "Act"). See Tex. Loc. Gov't Code Ann. §§ 174.001 -.253.

The Act is codified in chapter 174 of the Texas Local Government Code and provides fire fighters and police officers of a political subdivision the right to organize and collectively bargain with their public employers regarding their compensation and employment conditions (which should be substantially the same as compensation and conditions of employment prevailing in comparable private sector employment). See id. §§ 174.002(a), (b); 174.021.

The City and the Association entered into a collective bargaining agreement in 2011, which was set to terminate on December 31, 2016. In August 2016, both parties agreed to extend the agreement until June 30, 2017, at which time the agreement would terminate. In the meantime, the Association sent the City a written notice (as required by the Act) in January 2017; this notice requested "collective bargaining to negotiate wages, rates of pay, benefits, and working conditions requiring the appropriation of monies that would have an impact on the next fiscal year's operating budget." See id. § 174.107. In February 2017, the City and the Association agreed to several "ground rules for the negotiations regarding a Collective Bargaining Agreement ("CBA") pursuant to the Fire and Police Employee Relations Act," including "the principle of good faith bargaining ... to reach a mutual agreement that is consistent with the intent and purpose of Chapter 174."

After bargaining for 60 days, the parties failed to reach a collective bargaining agreement. The Association sent the City a letter in May 2017, stating that the parties reached an impasse (as defined in the Act) regarding a successor agreement to the 2011 collective bargaining agreement and requesting arbitration pursuant to the Act. Specifically, the letter stated:

Pursuant to Texas Local Government Code § 174.152, the 60-day statutory impasse deadline has arrived. Having begun bargaining on March 14, 2017 and failing to reach agreement by May 14, 2017, under law, the City of Houston and the Houston Professional Fire Fighters Association are at impasse regarding a successor agreement to the 2011 CBA [Collective Bargaining Agreement].

The Houston Professional Fire Fighters Association, Local 341 ... on behalf of all Houston fire fighters requests arbitration to resolve the remaining issues in dispute. Pursuant to section 174.153, [the Association] specifies the following issues to be in dispute:

• Compensation;

• Hours of work;

• Overtime;

• Paid leaves, including sick leave and vacation leave;

• Staffing; and

• Dispute resolution (commonly referred to as the grievance procedure).

The City did not agree to arbitrate, and the Act does not require compulsory arbitration. Instead, the City suggested mediation, and the parties proceeded to mediate unsuccessfully.

On June 28, 2017, the Association sued the City for allegedly violating section 174.021. Specifically, the Association alleged the City was failing to provide fire fighters with substantially equal compensation and conditions of employment that prevailed in comparable private sector employment. See id. § 174.021. The Association sought judicial enforcement (in accordance with section 174.252 ) and asked the trial court to declare the compensation and other conditions to which the fire fighters were entitled under section 174.021. See id. § 174.252. In August 2017, the City filed an original answer, special exceptions, and amended special exceptions to the Association's original petition.

The trial court signed an order on October 12, 2017 that required the Association to amend its petition and to re-plead facts (1) supporting its claim that the City failed to bargain in good faith; (2) specifying which issues remained unresolved when the parties reached an impasse; and (3) identifying "the relief claimed to ‘make whole’ the employees, including any compensation or conditions of employment which were changed or eliminated." The Association then filed an amended petition, and the City filed an answer thereto.

The Association filed a motion for summary judgment on the City's governmental immunity defense in November 2017. In September 2018, the City filed a plea to the jurisdiction and cross-motion for summary judgment (1) asking the trial court to dismiss the case for lack of jurisdiction and (2) arguing (a) the Association failed to establish a waiver of immunity because it did not bargain or negotiate in good faith "for ‘wages, benefits, or conditions of employment’ under the private sector labor standards provisions of the statute" and (b) absent "proof that employment compensation and conditions [are] less than those enjoyed by similar private sector firefighters," the Association cannot establish "the statutory condition required for this Court's jurisdiction under Chapter 174." The City also asked the trial court to dismiss the case for want of jurisdiction with regard to "any subjects which are not mandatory subjects for bargaining under Texas law", contending the Association failed to plead facts establishing each of the bargaining subjects were mandatory subjects under the Act.

Additionally, the City moved for summary judgment on grounds that (1) the Association did not bargain in good faith when it failed to bargain for compensation or benefits based upon private sector labor standards or comparators and therefore there is immunity from suit; (2) there is no evidence that the items set out by the Association in their pleading "were mandatory subjects of bargaining" and therefore the trial court has "no jurisdiction to determine or enforce any ... topics as listed by the Association as having reached" impasse; and (3) section 174.252 violates the separation of powers provision in the Texas Constitution "because it delegates the exclusively legislative power to declare the compensation of public officers to the judiciary without prescribing sufficient and adequate standards to guide the discretion conferred."

The Association filed its response to the City's plea to the jurisdiction and cross-motion for summary judgment on October 15, 2018. Four days later, the City filed a reply. The trial court held a hearing on the City's plea to the jurisdiction and cross-motion for summary judgment on October 22, 2018. After the hearing, the trial court signed an order denying both but granting the Association's summary judgment motion concerning governmental immunity. The trial court also signed an "Order Granting Tex. Civ. Prac. & Rem. Code § 51.014(d) Joint Motion for Written Order Permitting Interlocutory Appeal of Order Denying Defendant City of Houston's Motion for Summary Judgment with Respect to Constitutionality of Tex. Loc. Gov't Code §§ 174.021 and 174.252." The order states in relevant part:

It is ORDERED, ADJUDGED and DECREED that the Joint Motion for Written Order Permitting Interlocutory Appeal of Order Denying Defendant City of Houston's Motion for Summary Judgment with Respect to Constitutionality of Tex. Loc. Gov't Code §§ 174.021 and 174.252 is hereby granted.

This Court denies the motion for summary judgment filed by Defendant City of Houston asserting that Tex. Loc. Gov't Code §§ 174.021 and 174.252 are unconstitutional as constituting an unconstitutional delegation of legislative authority (the "Order"). This Court finds that the Order to be appealed involves the following controlling questions of law as to which there is a substantial ground for difference of opinion based on the decisions in International Association of Firefighters, Local No. 2390 v. City of Kingsville , 568 S.W.2d 391 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e.) and City of Port Arthur v. International Ass'n of Fire Fighters, Local 397 , 807 S.W.2d 894 (Tex. Civ. App.—Beaumont 1991, writ denied) :

1. WHETHER OR NOT TEX. LOC. GOV'T CODE §§ 174.021 AND 174.252 ARE CONSTITUTIONAL

2. WHETHER OR NOT TEX. LOC. GOV'T CODE §§ 174.021 AND 174.252 CONSTITUTE AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY

Immediate appeal of the constitutional issue would terminate threshold uncertainty concerning the validity of the statutory provisions and the constitutionality of the claims asserted by Plaintiff and would streamline and narrow issues to be resolved at the trial on the merits and the relief, if any, that can or cannot be afforded by this Court. Immediate appeal of the Order with respect to constitutionality may also facilitate resolution by settlement because the parties would be afforded some degree of certainty of the constitutionality issues. For these reasons, this Court finds that an immediate appeal for the Order with respect to constitutionality

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