OPINION No. 04-09-00731-CV
Matthew COOKE, President, and Alice Police Officers’ Association, on behalf of similarly situated officers, Appellants
v.
CITY OF ALICE, Appellee
From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 08-02-46695 Honorable Richard C. Terrell, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: September 29, 2010
AFFIRMED
This appeal involves statutory interpretation of sections 143.045 and 143.046 of the
Texas Civil Service Act which provide for the accrual of annual vacation and sick leave for
police officers and fire fighters. TEX. LOC. GOV’T CODE ANN. §§ 143.045, 143.046 (West 2008).
Specifically, we must determine whether the implementing rules adopted by the City of Alice
with respect to police officers’ leave accrual violate the statutes. We hold that the City is not
violating the state leave statutes, and therefore affirm the trial court’s judgment. 04-09-00731-CV
FACTUAL AND PROCEDURAL BACKGROUND
The City of Alice is a home rule municipality governed by the Texas Civil Service Act,
Chapter 143 of the Texas Local Government Code. TEX. LOC. GOV’T CODE ANN. §§ 143.001-
.363 (West 2008 & Supp. 2010). Sections 143.045 and 143.046 of the Code govern the accrual
and use of sick leave and vacation leave by police officers and fire fighters. With respect to sick
leave, section 143.045(a) provides that, “[a] permanent or temporary fire fighter or police officer
is allowed sick leave with pay accumulated at the rate of 1¼ full working days for each full
month employed in a calendar year, so as to total 15 working days to a person’s credit each 12
months.” TEX. LOC. GOV’T CODE ANN. § 143.045(a). Section 143.046(a) of the Code provides
that, “[e]ach fire fighter or police officer is entitled to earn a minimum of 15 working days’
vacation leave with pay in each year.” TEX. LOC. GOV’T CODE ANN. § 143.046(a). The City of
Alice, through its Civil Service Commission, has enacted rules implementing the statutory
scheme for accrual and use of sick and vacation leave by its police officers and fire fighters. The
City’s rules define a “day” of sick leave or vacation leave accrual for all of its police officers as
eight hours. Specifically, the City’s rules provide as follows:
Section 143.045: A “day” of sick leave accrual for Police Officers shall be eight (8) hours. A “day” of sick leave accrual for Fire Fighters working shifts shall be twelve (12) hours, and eight (8) hours for administrative employees. An employee who is absent from work due to illness shall have his or her sick leave bank reduced by the actual number of work hours missed.
Section 143.046: A “day” of vacation leave accrual for Police Officers shall be eight (8) hours. A “day” of vacation leave accrual for Fire Fighters shall be twelve (12) hours, and eight (8) hours for administrative employees. An employee who is absent from work due to vacation shall have his or her vacation pay reduced by the actual number of work hours missed.
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Matthew Cooke, a police officer for the City of Alice, is assigned to work a 10-hour shift
four days per week. Some Alice police officers are assigned to work an 8-hour shift five days
per week. Both sets of police officers work a total of 40 hours per week, and accrue 120 hours of
vacation and sick leave per calendar year. Cooke, on behalf of himself and the Alice Police
Officers’ Association, sued the City of Alice complaining that the officers working a 10-hour
day are treated unfairly because the 120 hours of annual leave means, in reality, they accrue only
twelve 10-hour “working days” of sick and vacation leave each year, while the officers working
an 8-hour day accrue the statutory fifteen 8-hour “working days” of sick and vacation leave each
year. Cooke asserted that he and the other similarly situated officers receive unequal treatment
because they must use 10 hours of leave to take off one “working day,” while the 8-hour shift
officers need only use 8 hours of leave to take off one “working day.” By defining a working
“day” for all police officers as eight hours, Cooke asserted the City has violated sections 143.045
and 143.046 of the Local Government Code which require the accrual of “15 working days” of
sick and vacation leave each year. Cooke only challenged the City’s method of accruing leave
for the officers, not its method of debiting for leave taken. In his petition for declaratory
judgment, Cooke requested that judgment be entered stating the City has violated the Local
Government Code, and that he and the similarly situated officers be credited with all vacation
and sick leave days accrued pursuant to the law from April 2007 to the present date. The suit
proceeded to a bench trial during which the parties stipulated to the relevant evidence. After
hearing the legal arguments, the trial court entered judgment in favor of the City of Alice. Cooke
now appeals.
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ACCRUAL OF LEAVE FOR POLICE OFFICERS
On appeal, Cooke contends the trial court’s judgment should be reversed because the City
of Alice is violating sections 143.045 and 143.046 of the Local Government Code by failing to
provide its police officers who work a 10-hour day with the statutorily required “15 working
days” of sick and vacation leave per year. Cooke asserts that a “working day” as used in sections
143.045 and 143.046 means the number of hours a particular officer is scheduled to work each
day, i.e., his or her 8-hour or 10-hour shift. Cooke concedes that the City is debiting the police
officers’ leave correctly, i.e., on an hourly basis; his contention is that the City is not accruing
leave correctly for its police officers who work a 10-hour shift. The City of Alice responds that
its rules implementing the state leave statutes, and defining a work “day” for all police officers as
a standard 8-hour day, result in uniformity of leave and do not violate the statutes; both the
accrual and usage of leave are calculated on an hourly basis, and all police officers receive the
same 120 hours of annual sick and vacation leave. We must determine whether the City’s rules
interpreting the statutory guidelines and defining a work “day” for all its police officers as a
traditional 8-hour day conflicts with the statutory leave requirements.
Standard of Review
A person whose rights are affected by a statute may petition a court to determine a
question of construction under the statute, and may request a declaration of his rights under the
statute. TEX. CIV. PRAC. & REM. CODE ANN. § 37.002 (West 2008). We review declaratory
judgments under the same standards as any other judgment. Id. § 37.010 (West 2008). Here,
Cooke asserts he was entitled to a judgment declaring that the City of Alice’s rules defining a
police officer’s work “day” as a standard 8-hour day violate the statutory requirement that all
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police officers receive fifteen “working days” of annual sick and vacation leave. We begin our
analysis by stating the basic principles of statutory construction.
Principles of Statutory Construction
Questions of statutory interpretation are questions of law which we review de novo. City
of DeSoto v. White, 288 S.W.3d 389, 394-95 (Tex. 2009). Under the well settled principles of
statutory construction, we begin with the statutory language itself. State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006). Our primary goal is to give effect to the Legislature’s intent, and we turn
first to the plain meaning of the words and terms chosen. Id.; Owens & Minor, Inc. v. Ansell
Healthcare Prods, Inc., 251 S.W.3d 481, 483 (Tex. 2008) (“[I]t is a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses should be the surest
guide to legislative intent.”). We presume that every word in a statute was chosen by the
Legislature for a purpose. City of Rockwall v. Hughes, 246 S.W.3d 621, 628 (Tex. 2008). When
a term is not defined in the statute, we give the term its ordinary meaning—within the context of
the statute, not in isolation. Guitar Holding Co., L.P. v. Hudspeth County Underground Water
Conservation Dist. No. 1, 263 S.W.3d 910, 915-16 (Tex. 2008). When the Legislature uses a
particular term in one section of a statute and excludes it in another, we must give the term
meaning where used and must not imply it where it was excluded. Laidlaw Waste Sys. (Dallas),
Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); Cameron v. Terrell & Garrett, Inc.,
618 S.W.2d 535, 540 (Tex. 1981).
If the statutory language is clear and unambiguous, we interpret its words according to
their plain and common meaning unless that interpretation would lead to absurd results. Barshop
v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996).
When a statute’s language is unambiguous, it is inappropriate to resort to rules of construction or
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extrinsic aids. City of Rockwall, 246 S.W.3d at 626; Fitzgerald v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). The judiciary’s role “is not to second-guess the
policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our
task is to interpret those statutes in a manner that effectuates the Legislature’s intent.” F.F.P.
Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 690 (Tex. 2007) (quoting McIntyre v.
Ramirez, 109 S.W.3d 741, 748 (Tex. 2003)). In ascertaining legislative intent, we consider the
plain statutory language in the context of the entire act, as well as the objective of the statute,
its history, and the consequences of a particular construction. TEX. GOV’T CODE ANN.
§ 311.023(1), (3), (5) (West 2005); City of Rockwall, 246 S.W.3d at 626 n.6; Jones v. Fowler,
969 S.W.2d 429, 432 (Tex. 1998).
Powers of Home Rule Municipality
As a home rule municipality, the City of Alice has the power to legislate, limited only by
the Texas Constitution, general laws, or its own charter. TEX. CONST. art. XI, § 5; TEX. LOCAL
GOV’T CODE ANN. § 51.072 (West 2008); Lower Colorado River Auth. v. City of San Marcos,
523 S.W.2d 641, 644 (Tex. 1975); Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 649 (1951)
(legislature may by general law withdraw a particular subject from a home rule city’s domain).
Merely because the Legislature has enacted a law addressing a certain subject does not, however,
mean the entire subject matter is completely preempted. City of Richardson v. Responsible Dog
Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990). In particular, when a state statute contains an
undefined term, a home rule city is empowered to enact rules and regulations defining the term
and implementing the statutory provision. See City of Sweetwater v. Geron, 380 S.W.2d 550,
553 (Tex. 1964) (recognizing that cities retain residual control over aspects of civil service
employment that are not specifically defined in the Civil Service Act, and that such residual
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control must be exercised in good faith and for the betterment of municipal service); see also
Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown, 837 S.W.2d 783, 788 (Tex. App.—
Houston [1st Dist.] 1992, pet. denied) (where longevity or seniority pay was not defined in Civil
Service Act, Baytown city council acted within its legislative authority by enacting
compensation plan abolishing automatic base salary increases based on fire fighters’ longevity,
and its ordinance did not violate the same base salary requirement of section 143.041 of Civil
Service Act). When a home rule city ordinance appears to be in conflict with a state statute, our
duty is to reconcile the two “if any fair and reasonable construction of the apparently conflicting
enactments exist[s] and if that construction will leave both enactments in effect.” City of
Baytown, 837 S.W.2d at 787 (citing City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206
(1927)). If it is not possible to reconcile the two enactments, the state statute trumps the city
ordinance. Dallas Merchant’s and Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489,
491 (Tex. 1993) (home rule city’s ordinance that attempts to regulate subject matter preempted
by state statute is unenforceable to extent it conflicts with statute).
Here, neither the Constitution or city charter, nor sections 143.045 and 143.046,
expressly preempts the City of Alice’s power to regulate and “fill in the gap” left by the statutes
by providing a specific method for calculating leave accrual by its police officers. See City of
Sweetwater, 380 S.W.2d at 552 (acknowledging the broad powers granted to home rule cities
may be limited by the Legislature, but stating that “should the Legislature decide to exercise that
authority, its intention to do so should appear with unmistakable clarity”); see also Glass, 244
S.W.2d at 652 (same). Therefore, we must first determine whether the City’s rules conflict with
the statutory requirements of sections 143.045 and 143.046, as alleged by Cooke, or merely
provide a method for implementing the statutory requirements. If we determine that a conflict
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exists, we must then attempt to reconcile the two with a fair and reasonable construction of each
enactment so that each remains in effect. City of Baytown, 837 S.W.2d at 787. If reconciliation
fails, the state statute prevails. Dallas Merchant’s, 852 S.W.2d at 491. Administrative rules are
construed in the same manner as statutes. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248,
254 (Tex. 1999).
Statutory Interpretation of a “Working Day” in Sections 143.045 & 143.046
In order to determine whether the City’s definition of a police officer’s work “day” as an
8-hour day conflicts with the statutory requirement of fifteen “working days” of annual leave, we
must determine what the Legislature intended the phrase “working day” to mean. As noted, both
statutes governing accrual of sick and vacation leave for police officers require the accumulation
of “15 working days” of annual leave time. TEX. LOC. GOV’T CODE ANN. §§ 143.045(a),
143.046(a). The term “working day” is not defined in either statute, or anywhere in Chapter 143
of the Local Government Code. 1 Both sides agree that “working day” must be accorded its plain
meaning, but differ as to what is the plain meaning of the term within the context of Chapter 143.
Cooke asserts that a “working day” means each individual officer’s daily shift, while the City
contends a “working day” means a traditional 8-hour work day. Both sides rely on City of
Lubbock v. Elkins, 896 S.W.2d 346 (Tex. App.—Amarillo 1995, no pet.), in which the Amarillo
court construed the undefined term “day” as used in section 143.010 of the Code as governing
the time period during which a police officer may file an appeal of a disciplinary suspension. Id.
at 350 (noting that in drafting Chapter 143 the Legislature “clearly recognized the significance of
using various terminologies . . . as it utilized the following nomenclature throughout the chapter,
1 In the briefs, the parties refer to a definition of “working days” in section 143.312(b)(4), but that subsection defines “normally assigned working hours,” a different term; moreover, that statute does not apply to municipalities the size of the City of Alice. TEX. LOC. GOV’T CODE ANN. 143.312(b)(4) (West 2008).
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viz: days, calendar days, working days, and business days”); TEX. LOC. GOV’T CODE ANN. §
143.010 (West 2008). Elkins is factually distinguishable and does not resolve the issue before
us, but we agree with the methodology employed by the Amarillo court. Acknowledging that
Chapter 143 does not define the term “day,” the court focused on the term’s ordinary meaning
within the context of the statute, and also looked to “the purpose intended to be accomplished by
the provision within which the term is used and the effect that various interpretations of the term
will have when applied to the subject matter.” Elkins, 896 S.W.2d at 350-51. We will employ
the same analysis to construe the undefined term “working day.”
1. Ordinary Meaning Within Context of Statute
We begin by considering the plain and ordinary meaning of the words chosen—viewed
within the context of Chapter 143. Guitar Holding Co., 263 S.W.3d at 915-16. We are also
mindful of the fact that the Legislature chose to use the particular terms “working day,”
“calendar day,” “business day,” and, simply, “day” in different provisions of Chapter 143, and
we must attribute value to that legislative word choice. Laidlaw, 904 S.W.2d at 659; Elkins, 896
S.W.2d at 350-51.
Turning to the leave provisions at issue in this case, we note that the Legislature set forth
a specific method of accruing sick leave on a monthly basis, not a daily basis, i.e., “at the rate of
1¼ full working days for each full month employed in a calendar year so as to total 15 working
days to a person’s credit each 12 months.” TEX. LOC. GOV’T CODE ANN. § 143.045(a). Such
specificity by the egislature suggests it was not focused on the number of hours any individual
officer worked on a particular day, but instead on a uniform method of leave accrual by month
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for all officers. Indeed, the Alice police officers all work a typical 40-hour work week,
regardless of whether their shifts are 8 hours or 10 hours in a day. 2
We also note that in section 143.046, the vacation leave provision, the Legislature stated
in subsection (a) that each officer is entitled to accrue “a minimum of 15 working days’ vacation
leave with pay in each year,” but when explaining how to compute the usage of vacation leave,
the Legislature specified that “only those calendar days during which the person would be
required to work if not on vacation may be counted as vacation days.” Id. § 143.046(a), (b).
This legislative choice to use “working days” for the accumulation of vacation leave and
“calendar days” for the usage of vacation leave logically suggests the Legislature was
acknowledging the fact that police officers’ “working days” are the calendar days on which they
are required to work, i.e., a police officer may work on any of the seven days in a week, not just
Monday through Friday.
The methods for calculating leave set forth in both statutes, when read according to the
ordinary meaning of the language used, suggests the Legislature was not focused on any
individual officer’s daily work shift, but rather on establishing a uniform system of leave for all
police officers.
2. Purpose of the Act
We next consider the overall purpose and objective of Chapter 143, the Civil Service Act.
City of Rockwall, 246 S.W.3d at 626 n.6; Jones, 969 S.W.2d at 432. The stated purpose of
Chapter 143 is “to secure efficient fire and police departments composed of capable personnel
who are free from political influence and who have permanent employment tenure as public
2 Cooke relies on an unpublished case in which the Austin Court of Appeals held that City of Austin fire fighters who worked varying daily shifts were entitled to accrue leave according to the hours worked. See City of Austin v. Int’l Assoc. of Fire Fighters, Local 975, No. 03-89-00255-CV (Tex. App.—Austin 1990, no writ) (not designated for publication). That case is distinguishable because the Austin fire fighters did not all work the same number of hours each year as the Alice police officers do in this case.
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servants.” TEX. LOC. GOV’T CODE ANN. § 143.001(a) (West 2008); City of DeSoto, 288 S.W.3d
at 398. Chapter 143 further provides that police officers and fire fighters of the same rank are
entitled to receive the same base salary, i.e., be compensated equally, except for other types of
special pay like longevity pay. See TEX. LOC. GOV’T CODE ANN. §143.041(b),(c) (West 2008);
City of Harlingen v. Avila, 942 S.W.2d 49, 53 (Tex. App.— Corpus Christi 1997, writ denied)
(legislative intent of section 143.041 is to require equal and fair pay). Section 143.045 treats sick
leave as a form of compensation, providing that when an officer leaves employment he or she is
entitled to a lump-sum payment for accumulated sick leave. TEX. LOC. GOV’T CODE ANN. §
143.045(c). Toward Chapter 143’s purpose of fair and equal treatment, both leave provisions
provide that all police officers shall earn the same amount of sick leave and vacation leave each
year, to wit: 15 “working days.” Id. at §§ 143.045(a), 143.046(a). Reading the statutory leave
provisions in view of the overall purpose of Chapter 143, it is clear the Legislature intended to
establish a uniform, equal system of leave accrual for all police officers.
3. Consequences of Particular Interpretations
Finally, we consider the consequences of the parties’ proposed interpretations of a
“working day.” City of Rockwall, 246 S.W.3d at 626 n.6; Jones, 969 S.W.2d at 432. The City
asserts its definition of a “working day” as a traditional 8-hour day is a reasonable and ordinary
understanding of the term, and is consistent with the statutory mandate of equal treatment
apparent in the leave statutes and the Act as a whole; the City’s interpretation results in the same
120 hours of annual leave being credited to each officer, without regard to daily shifts. On the
other hand, Cooke’s contention that, in order to comply with the statutory requirement of “15
working days,” the officers who work 10-hour shifts must be credited with fifteen 10-hour
“working days,” which results in total annual leave of 150 hours for those officers, while the
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officers who work 8-hour shifts receive only 120 hours—resulting in unequal treatment among
the officers. Rather than demanding equal treatment, Cooke concedes that he is indeed asking
for 30 more leave hours per year for the officers who work their forty hours per week in four 10-
hour shifts. This is an unequal result which the Legislature could not have intended given the
overall purpose of Chapter 143. See Barshop, 925 S.W.2d at 629. The consequence of Cooke’s
interpretation of “working day” to mean each particular officer’s daily shift not only undermines
the stated purpose of Chapter 143 to ensure fair and equal treatment among all police officers,
but conflicts with the statutory leave provisions’ clear intent to provide all officers with the same
amount of annual leave.
Conclusion
We conclude the City’s rules defining a work “day” as a traditional 8-hour day for
purposes of leave accrual for all its police officers do not conflict with, or violate, the language
of the state leave statutes or the overall purpose of Chapter 143. Because the term “working
day” used in sections 143.045(a) and 143.046(a) was not defined by the Legislature, the City of
Alice is empowered to enact rules implementing the leave statutes and setting forth a basis to
calculate leave accrual that applies to all police officers, and results in the accrual of equal
amounts of annual hourly leave. See City of Sweetwater, 380 S.W.2d at 553; see also City of
Baytown, 837 S.W.2d at 788. Accordingly, we overrule Cooke’s issue on appeal.
ATTORNEY’S FEES
Finally, Cooke argues the trial court abused its discretion in denying his request for
attorney’s fees under the Declaratory Judgment Act. TEX. CIV. PRAC. & REM. CODE ANN.
§ 37.009 (West 2008) (providing trial court may award costs and reasonable and necessary
attorney’s fees “as are equitable and just”); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446
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(Tex. 1994) (attorney’s fees may be awarded against governmental entities under DJA). While
we recognize that the court may, in its discretion, award attorney’s fees to a party seeking
declaratory relief even though the party does not prevail, we cannot say the court abused its
discretion by declining to award Cooke his attorney’s fees. See Barshop, 925 S.W.2d at 637.
Cooke asserts his recovery of attorney’s fees was justified because the facts are undisputed and
the clear language of the statute supports his claim of entitlement to increased vacation and sick
leave accrual. As discussed, supra, we disagree that the plain language of the governing statutes
supports Cooke’s position. Moreover, Cooke has failed to establish that the trial court abused its
discretion by ruling arbitrarily, unreasonably, or without regard to guiding legal principles. See
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Accordingly, we decline to hold the trial
court abused its discretion by denying Cooke’s request for attorney’s fees.
Based on the foregoing analysis, we overrule Cooke’s issues on appeal and affirm the
trial court’s judgment.
Phylis J. Speedlin, Justice
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