Tijerina v. City of Tyler

846 S.W.2d 825, 1992 WL 387412
CourtTexas Supreme Court
DecidedJanuary 27, 1993
DocketD-2185
StatusPublished
Cited by27 cases

This text of 846 S.W.2d 825 (Tijerina v. City of Tyler) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tijerina v. City of Tyler, 846 S.W.2d 825, 1992 WL 387412 (Tex. 1993).

Opinions

[826]*826OPINION

DOGGETT, Justice.

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.

I.

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. Tijeri-na brought this action under two pre-1987 versions of article 1269p, § 61 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.

II.

The pre-1987 versions of article 1269p, § 6,2 provided in relevant part:

(b)... [T]he number of hours in the work cycle [week] 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 [exceed] 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 [firemen and policemen]_
(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 [of-firemen] subject to the provisions of this section [the preceding paragraph], there shall be included and counted any and all hours during which such fire fighter or other member of the fire department is [firemen-are] 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 [Provided, however, that in any such city-having more than ten thousand (10,000)-inhabitants, in the event-ef an emergency, firemen] 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 [firemen] 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 [such firemen] for regular hours.3

[827]*827Tijerina 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 (interpreting 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 ...

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Bluebook (online)
846 S.W.2d 825, 1992 WL 387412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tijerina-v-city-of-tyler-tex-1993.