Tijerina v. City of Tyler
| Decision Date | 31 December 1992 |
| Docket Number | No. D-2185,D-2185 |
| Court | Texas Supreme Court |
| Parties | 1 Wage & Hour Cas.2d (BNA) 336 Antony TIJERINA, Petitioner, v. CITY OF TYLER, Respondent. |
David R. Weiner, Thomas J. Stutz, Dallas, for petitioner.
Sharon K. Fisher, Gary C. Landers, Tyler, for respondent.
We consider whether a fire department employee is entitled to pay for time spent on call and determine that both of the applicable statutes mandate such compensation.
Antony Tijerina worked as a fire investigator for the City of Tyler from September 16, 1984, through April 27, 1987. In addition to working a 40-hour week, Tijerina was sometimes available for recall while not on regular duty, during which time he would remain in contact with the fire department by use of radio pager or walkie-talkie. Although the City paid him for time spent on regular duty and for investigations he conducted when recalled, it did not compensate him for time spent on call while not performing other duties. Tijerina brought this action under two pre-1987 versions of article 1269p, § 6 1 to recover compensation for that time. The trial court granted summary judgment for the City, and the court of appeals affirmed. 822 S.W.2d 799. We reverse the judgment of the court of appeals and remand for trial.
The pre-1987 versions of article 1269p, § 6, 2 provided in relevant part:
(b) ... [T]he number of hours in the work cycle of members of the fire department whose duties do not include fighting fires, including but not limited to mechanics, clerks, investigators, inspectors, fire marshals, fire alarm dispatchers and maintenance men, shall not, except in an emergency, average more hours in a week than the number of hours in the normal work week of the majority of the employees of said city other than fire fighters and police officers ....
(c) ... [I]n computing the hours in the work week or the average number of hours in a work week in a work cycle of a fire fighter or other member of the fire department subject to the provisions of this section there shall be included and counted any and all hours during which such fire fighter or other member of the fire department is required to remain available for immediate call to duty by continuously remaining in contact with a fire department office by telephone or radio.
(d) A fire fighter or other member of the fire department who is required in an emergency to work more hours in a work week or work cycle than authorized by Subsection (a) or (b) of this section is entitled to be paid overtime for the excess hours worked in accordance with Subsection (e) of this section without regard to the number of hours worked in any one week of the work cycle.
(e) A fire fighter or other member of the fire department may be required to work more than the maximum hours herein provided; and in such event the fire fighter or other member of the fire department working more than the maximum hours herein provided shall be compensated for such overtime at a rate equal to one and one-half times the compensation paid to the fire fighter or other member of the fire department for regular hours. 3
Tijerina argues that both of these pre-1987 versions define time spent on call as work for which compensation is due, since the term "work week" or "work cycle" is defined to include hours during which an employee is "required to remain available for immediate call to duty by continuously remaining in contact with a fire department office by telephone or radio." In 1985, "work cycle" was expressly defined to include "other member[s]" of the department as well as fire fighters. The 1959 version had the same effect by defining "work week" to include "firemen subject to the provisions of the preceding paragraph", which paragraph encompassed "members of the fire department whose duties do not include fighting fires."
While these unambiguous statutory definitions provide sufficient support for Tijerina's contention, he also appropriately relies on our only prior decision addressing this particular statute. In Kierstead v. City of San Antonio, 643 S.W.2d 118 (Tex.1982), we stated that "[a]ny kind of official work assignment that does not include firefighting and exceeds the regular 40 hour week is compensable as overtime." Id. at 121 ( the 1959 version). The City concedes that it assigned Tijerina to on call duty; such a mandatory directive is an "official work assignment" under this statute. This same statute in its 1959 form has been held twice to mean exactly what it says--that cities must pay fire department employees for time spent "available for immediate call to duty by continuously remaining in contact with a fire department office by telephone or radio." See Harrison v. City of Victoria, 730 S.W.2d 119, 121 (Tex.App--1987, writ ref'd n.r.e.); City of Brownsville v. Salazar, 712 S.W.2d 577, 580 (Tex.App.--Corpus Christi 1986, no writ).
The court in City of Dallas v. Spainhouer, 758 S.W.2d 611, 621 (Tex.App.--Dallas 1988, writ denied), reached a contrary result that the statute has at no time required a city to compensate fire department employees for portions of the "work week" or "work cycle" in which they are not actually working. This conclusion was based primarily on the last two paragraphs of the 1985 version and the last paragraph of the pre-1985 version, which establish the circumstances under which employees are entitled to overtime compensation. Id. at 614. "[R]equir[ing] overtime pay only for hours actually worked in excess of the maximum set by the statute," this provision allegedly does not require compensation for time spent on call that could be used for personal purposes and was thus not spent "on the job." Id. (emphasis in original).
This reasoning renders the statutory definitions of "work week" and "work cycle" meaningless. If the Legislature had not intended that fire department employees be paid for time spent on call, it would not have expressly included such time within these definitions. Whether or not time spent on call would ordinarily be considered "work" is not the determining factor when the statute clearly defines it as such. Statutory definitions must be given effect; ordinary meanings should be applied only to undefined terms. See Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.1987).
The City also argues that through 1987 amendments to article 1269p, § 6, the Legislature clarified its desire that cities not be required to pay employees for all periods of time they are subject to recall. Under these amendments, on call time is part of an employee's "work cycle" only when the employee "is required to remain ... on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes." Act of Aug. 31, 1987, 70th Leg., R.S., ch. 933, § 1, 1987 Tex.Gen.Laws 3124; Act of Aug. 4, 1987, 70th Leg., 2d C.S., ch. 63, § 1, 1987 Tex.Gen.Laws 203. 4
Without any explanation or support from the words of the statute or its legislative history, the City argues that this amendment is a "clarification" of prior versions rather than a change in their substance. See Spainhouer, 758 S.W.2d at 615. However, the 1987 amendments clearly changed the effect of the statute because paragraph (c) of the 1985 version and the corresponding portion of the pre-1985 version both provide that "any and all hours" during which an employee is required to remain in contact with the fire department by radio or telephone are part of the "work cycle" or "work week." To read the limitation imposed by the 1987 amendments into this definition would directly contradict the plain wording of the prior statutes.
The underlying issue posed by the dissent is whether a court should invalidate legislation when a judge declares this "strikes me as odd." 846 S.W.2d at 831. Surely the effect of this now repealed statute is "odd." The notion that public employees should be paid when principally engaged in personal pursuits does not strike any of the members of this Court as sound policy. But as judges, we are called upon to apply a statutory command even when it produces a policy of which we disapprove. To manipulate and misconstrue statutory language in the manner urged by the dissent would provide a precedent for abuse of judicial power far more costly than any matter directly at issue today.
While we may permissibly consider public policy in construing the intent of the Legislature from an ambiguous provision, we cannot rewrite or, as the dissent attempts to do, deconstruct a plainly worded statute because we believe it does not effectuate sound policy. See Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983) () (citing Ex Parte Roloff, 510 S.W.2d 913, 915 (Tex.1974)); RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) (). Today we do not approve the wisdom of the Legislature's decision to require that cities pay fire department employees for on call time, but we recognize that the Legislature in pre-1987 versions of the statute unequivocally implemented that requirement.
While the dissent contends that the Legislature's failure to define expressly "immediate call" and "continuously in contact" renders this enactment ambiguous, we disagree. The reading urged by the dissent contradicts the statutory language providing that employees be paid for remaining in contact "by telephone or radio." If, as the dissent argues, this phrase requires that employees remain at the fire station, 846 S.W.2d at 830, then there would obviously be no need for either employer or employee to contact one another by telephone or radio. Furthermore, if the Legislature's original policy choice was wrong, it...
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Eckles v. City of Lubbock, D-2878
...for time spent on-call. Because the facts and legal issue in this case are controlled by our decision today in Tijerina v. City of Tyler, 846 S.W.2d 825 (Tex.1992), without hearing oral argument, we grant petitioners' application for writ of error, reverse the judgments of the courts below,......