City of Temple v. Taylor

• Decision Date: 16 October 2008
• Docket Number: No. 03-07-00630-CV.,03-07-00630-CV.
• Citation: 268 S.W.3d 852
• Parties: CITY OF TEMPLE, Texas, Appellant, v. Steven TAYLOR, Appellee.
• Court: Texas Court of Appeals

268 S.W.3d 852

CITY OF TEMPLE, Texas, Appellant, v. Steven TAYLOR, Appellee.

No. 03-07-00630-CV.

Court of Appeals of Texas, Austin.

October 16, 2008.

Stuart Smith, Naman, Howell, Smith & Lee, LLP, Waco, TX, for Appellant.

R. John Cullar, Cullar & McLeod, LLP, Waco, TX, for Appellee.

Before Justices PATTERSON, PURYEAR and HENSON.

OPINION

DIANE M. HENSON, Justice.

We overrule Taylor's motion for rehearing, withdraw our opinion and judgment issued August 27, 2008, and substitute the following in its place.

The City of Temple appeals from a summary judgment granted in favor of Steven Taylor regarding the computation of Taylor's back-pay award under the Fire Fighters' and Police Officers' Civil Service Act ("the Civil Service Act"). See Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (West 2007). Taylor filed suit seeking a declaratory judgment that he was entitled to the full amount of back pay incurred during the time he was suspended from employment with the City's police department. Both parties filed motions for summary judgment, and the trial court granted Taylor's motion, declaring that the City must pay the full amount of wages for the period of Taylor's suspension without reduction for compensation he earned from other sources. The City appeals, arguing that the trial court's order results in an improper windfall recovery for Taylor. Because we have determined that Taylor's back-pay award must be reduced by the amount of compensation earned from other sources during the period of suspension, we reverse the judgment of the trial court to the extent that it prohibits the City from offsetting the award with outside income.

BACKGROUND

On June 27, 2005, Taylor was indefinitely suspended from his employment with the City as a police officer. Taylor appealed the suspension under the Civil Service Act, which the City has adopted for members of its police and fire departments.¹ See id. §§ 143.004, .053. After a hearing before a third-party hearing examiner, see id. § 143.057(a), the hearing examiner reduced Taylor's suspension to fifteen days and ordered that Taylor be reinstated to the police force. Taylor requested that the City pay him compensation for the period of suspension, less the fifteen days upheld by the hearing examiner, pursuant to section 143.0539(f) of the Civil Service Act. In response, the City requested an accounting of Taylor's earnings from other sources during the time of his suspension, in order to reduce the back-pay award by the amount of any such compensation. Taylor refused, filing suit to seek a declaratory judgment and mandamus relief requiring the City to pay him the full amount of back pay incurred during his suspension without a reduction for earnings from other sources. The trial court granted summary judgment in favor of Taylor, declaring that the City was required to pay him the full compensation for time lost during the suspension without offsets for outside earnings. The trial court also granted Taylor's request for attorney's fees, which the City does not challenge on appeal.

The parties agree that the full compensation Taylor would have earned during the suspension, after deducting compensation for the 15-day period of unpaid suspension, is $32,405.35. The parties also agree that Taylor earned $15,119.40 from other sources during his suspension. In its sole issue on appeal, the City argues that Taylor's back-pay award under the Civil Service Act should be reduced by the amount he earned from other sources, so that Taylor is only entitled to an award of $17,285.95, while Taylor argues that he is entitled to the full amount of $32,405.35. The City has not yet paid Taylor any amount toward the compensation that he is entitled to receive under the Civil Service Act.

STANDARD OF REVIEW

Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When both parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, the appellate court considers the summary-judgment evidence presented by both sides, determines all questions presented, and if the reviewing court finds that the trial court erred, renders the judgment the trial court should have rendered. Id.

The facts of this case are undisputed and the sole issue on appeal is a matter of statutory construction. Statutory construction is a legal question that we review de novo, ascertaining and giving effect to the legislature's intent as expressed by the plain and common meaning of the statute's words. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). We must read the statute as a whole, rather than just isolated portions, giving meaning to the language that is consistent with other provisions in the statute. Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 872-73 (Tex.2005); Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004).

DISCUSSION

The Civil Service Act allows a fire fighter or police officer who has been suspended for disciplinary reasons to appeal the suspension to the Fire Fighters' and Police Officers' Civil Service Commission.² See Tex. Loc. Gov't Code Ann. §§ 143.003(1), .053. If the Commission finds, as it did in the present case, that the period of suspension should be reduced, it may order a reduction in the period of suspension and restore the employee to the position or class of service from which he was suspended. Id. § 143.053(f). A fire fighter or police officer who is restored to his position or class of service is also entitled to "full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended." Id. § 143.053(f)(1). Because Taylor's appeal resulted in a reduced suspension and reinstatement to the position from which he was suspended, he qualified for a back-pay award under section 143.053(f).³

The Civil Service Act does not specifically address whether back-pay awards under section 143.053(f) are to be offset by income earned from other sources during the suspension, but merely states that the officer is "entitled to ... full compensation" for the time lost. See id. Taylor, citing City of Waco v. Bittle, 167 S.W.3d 20 (Tex.App.-Waco 2005, pet. denied), argues that the phrase "entitled to" necessarily creates a right to the full back-pay amount without offsets. However, the court in Bittle did not reach the issue of offsets for outside earnings, holding only that once a suspended fire fighter or police officer has been reinstated, the Commission does not have jurisdiction to determine that a reinstated employee is entitled to anything less than the full amount of an award under the Civil Service Act.⁴ Id. at 30 ("the [C]ommission does not have exclusive jurisdiction to determine whether a reinstated firefighter or police officer is entitled to compensation and benefits under subsection (f) or the amount of such compensation and benefits"). Contrary to Taylor's assertions, Bittle does not dictate how an award of full compensation is to be calculated, holding only that a reinstated officer has a statutory right to such an award.

Significantly, however, the court in Bittle also states, "The purpose of subsection (f) is to restore a firefighter or police officer who has been improperly suspended to the position⁵ he would have occupied had the suspension not occurred." The parties agree that if Taylor's suspension had not occurred, his earnings during that time would have been $32,405.35. A back-pay award of $32,405.35, when coupled with the $15,119.40 Taylor earned from outside sources, would not restore Taylor to the position he would have occupied had the suspension not occurred, but would instead result in a windfall recovery that violates the purpose of subsection (f) as described by the court in Bittle.

In City of Texarkana v. Fincher, 657 S.W.2d 842, 843 (Tex.App.-Texarkana 1983, writ ref'd n.r.e.), the court interpreted the predecessor to section 143.053 to address facts similar to the present case, where the appellant argued that the trial court erred in reducing his back-pay award under the Civil Service Act by amounts earned from other sources during his suspension. The court of appeals affirmed the reduction, stating:

[Appellant] contends Section 18 of Article 1269m[ ] provides for his recovery, and that because it states, "the court shall order the City to pay lost wages" ..., no offset is permissible. Section 18 is silent as to mitigation. Section 16, effective at the time Section 18 was added, provides that a wrongfully suspended employee shall be fully compensated. A reading of Section 18 with Section 16 convinces us that the legislature intended to do no more than compensate the employee. The doctrine of mitigation of damages is applicable to computing lost wages under Article 1369m.

Id.

Like the predecessor statute described in Fincher, section 143.053(f) provides that a wrongfully suspended employee shall be fully compensated, but remains silent on the issue of mitigation. We agree with the Fincher court that the legislature, in enacting the Civil Service Act, "intended to do no more than compensate the employee." Id.⁶ As a result, we hold that a calculation of "full compensation" under section 143.053(f) necessarily includes offsets for income earned from other sources during the period of suspension.

Our holding today is consistent with the general rule of employment law requiring wrongfully terminated employees to mitigate damages.⁷ See, e.g., Gulf Consol Int'l v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983) ("The correct measure of damages for wrongful discharge of an employee is the present cash value of the contract if it had not been breached, less any amounts that the employee should ... be able to earn through other employment."); Greater Fort Worth & Tarrant County Cmty. Action Agency v. Mims, 627 S.W.2d 149, 151 (Tex. 1982) (in...