Affirmed and Opinion filed May 6 , 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 009 76

- CV NO. 14

- 18

- 00990

- CV

CITY OF HOUSTON, TEXAS , Appellant

V.

HOUSTON PROFESSIONAL FIRE FIGHTERS ’ ASSOCIATION, LOCAL 341 , Appellee

On Appeal from the 234th Dis trict Court

Harris County, Texas Trial Court Cause No. 2017

- 42885

OPINION

T he City of Houston (the “ City ” ) appeals the denial of its interlocutory plea to the jurisdiction based on gov ernmental immunity in ca se number 14

- 18

- 00990

- CV

. T h e C i t y also a p p e a l s the interlocutory den ial o f its motion for summary judgment based on the un constitutionality of T e xas Loc al Govern m ent Code
section 174.252 in ca se number 14

- 18

- 009 76

- CV. W e affirm the trial court ’ s2

order s denying the City ’ s plea to the jurisdictio n a nd mo t ion for summar y judg ment

.
B AC KGROUND

T his case arose after the City and the Houston Professional Firefighters ’
Association , Local 341 (the “ A ssociation ” ) negotiated but failed to reach a collective bargaining agreement regarding Houston fire figh ter s ’ compensa tio n, ho urs, an d ot her w orking conditions pursuant t o 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

pr ovi des fir e f

ighters a nd po lice of

fice rs of a political subdivision t he right to

org anize and collectively bargain with their public employers regarding t heir compensation and employment conditions ( which should be substantially the same

a s compensation an d c ondi tio ns of employm ent prevail ing in com parable private sector employment )

. See id

. § § 174.00 2 (a), (b) ; 174.021

. The City and the Association entered into a collective bargaining agreement
in 2011 , which was set to terminate on Dece mber 31, 2016. I n A ugus t 2 016, both

pa rties agre ed to extend the agre ement u ntil June 30, 2017 , at which time the agreement would terminate

. In the me antime, the Association sent the City a written notice ( as required by the Act ) in January 2017 ; this notice requested

“ c oll ecti ve bargaining to negotiate wages, rates of pay, benefits, and wo rking

c onditions 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 th e Ass oci atio n a greed to several “ ground rules for the n egotiations regarding
a Coll ective Bargaining Agreement ( “ CBA ” ) pursuant to the Fire and Police Employee Relations Act , ” including “ the principle of good faith bargaining

. . . to
reach a mutual agreem ent t h at is con sisten t with the int ent and purpose of C hapter3

174

. ”

After ba rgainin g for 60 days, the parties failed to reach a collective bargaining agreement

. T he A ssociation sent the City a letter in May 2017 , stating that the parties reached an impass e ( as de fine d i n the Act ) regarding a s uccessor agreement to the 2011 collecti ve barg ainin g agreement and requesting arbitration pursuant to the Act

. S pecifically, the letter stated:

Pursuant to Texas Local Government Code § 174

. 152, the 60

- day statutory impa s se dead lin e has arrived. Hav in g b egun bargaining on Ma r ch 14, 2017 and failing to rea ch agreement by May 1 4, 2017 , under law, the City of Houston and the Houston Professional Fire Fighters Association are at impasse regarding a successor agreement to the 201 1 CB A [ Collective Bargaini ng Ag reement]

. The Houston Professional Fire Fighters Association , Local 34 1

. . . on b ehalf of all Houston f ire fi ghters requests ar

bitration to resolve the remaining issues in dispute. Pursuant to section 174 .1 53, [the Assoc i ati on] spe cifi e s the followin g iss ues to b e in dispute:

• Compensation;

• Ho urs of work;

• Overtime;

• Paid leaves, including sick leave and vacation leave;

• Staffin g; a n d

• Dispute resolution (commonly referred to as the grievance procedure).
T he City d id not agre e to arb itr ate , and the Act do es no t require compulsory

ar bitration. Instead, t he City suggested mediation , and the part ies proceeded to
mediate unsucc essfully.

O n June 28, 2017 , t he Association sued the City for allegedly violating
section 174.021

. Speci fic al ly , t he Asso ciation allege d t he City was failing to provide fire fighters with substantially equal compensation and conditions of4

employment that prevail ed in comparable private sector employment

. See id . §
1 74. 021. The Asso ciation sought judi cial e nfo rcem ent ( in accordance with sec tion
174

. 252 ) and ask ed 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, t he City filed an original an swe r , s pec ial exception s , and amen ded special exceptions to the Association ’ s original petition.

T he trial court signed an order on Oct ober 12, 2017 that requir ed the
Association to ame nd its pe tition and to re

- plead facts (1) supporting it s c laim that

t he Ci ty fail ed to bargain in good fa ith ; (2) specifying which issues remained
unresolved whe n the parties re ached an impasse; and (3) identi fying “ the relief
claimed to ‘ make whole ’ th e employees, including any compensa tion or conditions of empl oyment whic h wer e c hang ed or eliminated. ” T he Ass ociation then filed an amended petition , and the City filed an answer thereto

. The Association filed a motion for summary judgment on the C it y ’ s
gover nmental immunity defense in November 2017. In Septe mber 2018, the City
fil ed a pl ea to the jurisdictio n a nd cross

- motion for summary ju dgment (1) asking
the trial court to dismiss the case fo r lack of jurisdiction and (2) arguing (a) the
Association failed to establi sh a waiver of im munity because it did not bargain or negoti ate in goo d faith “ for ‘ wages, be nefits , or conditions of employment ’ unde r the private sector labor standards provisions of the statute ” and (b) absent “ proof
that employment compensati on and cond itions [are] l ess than those enjoyed by similar private se cto r fi ref ighters , ” the Associa ti o n cannot establis h “ the statutory condition required for this Court’ s jurisdiction under Cha pter 174

. ” T he City also
asked the trial court to dismis s the case for want of juris diction with regard to “ an y subjects which a re not man d atory subjects for b arg aining u nder Texas l aw ” , contend ing the Association failed to plead facts establish ing each of the bargaining5

subjects were mandatory subjects under the Act

. Additi onally, the City moved for s ummary judgment on ground s tha t ( 1) t he
A ssociation did not b arg ain in g ood faith wh en it failed t o 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 b y t he A sso c iation in their plea din g “ were mand atory subjects of bargaining ”

an d therefore the trial court has “ no jurisdiction to determine or enforce any . . . topics as listed by the Asso ci ation as ha ving reached ” imp asse; and (3) section
174.252 violate s t he s epa r ation of powers prov isi on in the Texas Constitution

“ because it delegates the exclusively legislative power to de clare the compensation of pu blic office rs to the judicia ry without prescribing sufficient and adequate
standa rds to guide the discre tio n co nfe r red. ”

T he Associatio n f

iled its response to the City ’ s plea to the jurisdiction and

cross

- moti on for summary judgment o n October 15, 2018

. F our da ys la ter, t he City fil ed a reply

. Th e trial court held a hearing on the Ci ty ’ s plea to the jurisd ict ion and cross

- motion for sum mar y judgment on October 22, 2018. A fter the hearing , the trial court signed an order denying both b ut granting the
Association ’ s summary ju dgment motion concerning governmental immunity

. T he
trial cour t also signed an “ O rd er G ran t in g Tex

. Civ

. Prac. & R em. Code § 51.014(d) Joint Motion for Written Order Pe rmitting In terlocutory Appea l of Order Denying Defendant City of Ho uston ’ s Moti on for S ummary J udgment with Respect to Constitutionality of Tex. Loc. Gov ’ t Code § § 174.021 an d 17 4.2 5 2. ”
T he o rder state s i n relevant part:
It is ORDERED, ADJUDGED and DECRE ED that the Joint Motion for Written Order Permitting Interlocutory Appeal of Or der Denying Defendant City of Houston ’ s Motion for Summary Judgment with Respect to Constitu tio nali ty o f Tex. Loc. Gov ’ t Co de §§ 174.021 and6

174.252 is hereby granted. This Cou rt denies th e motion for sum mary judgment filed by Defendant City of Houston ass erting that Tex. Loc. Gov’t Code §§ 174.021 and 174.252 are unconstitutional as constituting an
unc ons t itutional delegation of legislative authority (the “ Order ” ). This Court f

inds that t he Order to be ap pealed involves the following controlli ng questions of law as to which there is a substa ntial ground for difference of opinion based on the dec isi ons in I nternational Associa tio n of Firefighters, Local No. 2390 v. City of Kingsv ille , 568 S .W.2d 391 (Tex. C iv. App.

— Corpus Christi 1978, writ ref’ d n.r.e.)

an d City of Port Arthur v. Internationa l Ass’n of Fire Fighters, Local 397 , 807 S.W.2d 894 (Te x. Civ. Ap p

. — Beaumont 1991, wri t d enied):
1. WHETHER OR NOT TEX. LOC. GOV ’ T CODE §§ 1 74.021 AND 174.252 ARE CONST ITUTIONAL 2. WHETHER OR NOT TEX. LOC. G OV ’ T CODE §§ 174.021 AND 174.252 CONSTITUTE AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY
Imme dia te a ppe a l of the constitutio nal issue would terminate threshold uncertainty concer ning the va lidity of the sta tutory provisions and the constitutiona lity of the claims asserted by Pl aintiff and would streamline and narrow issues to be resolved at the tr ial on the merits and the relie f, if any, that can or cannot be afforded by this Cour t. Immedia te appeal of the O rder with respect to constitutionality may also fa cilitate resolution by settlement because the parties would be afforded some degree of certa int y of th e constitutionality i ssu es. For these reasons, this Court finds that an imme diate appe al for the Order w ith respect to constitutionality may m aterially ad vance the ultimate ter

mination of the litigation On November 6, 201 8 , the City filed a petit ion for pe r miss ion to app eal th e t rial

cour t’s October 22, 2018 order denying th e City’s mot ion for summary judgment pursuant to section 51.014(f) of the Civil Practices and Remedies Code . In its petition , the City assert ed that T e x a s L o c a l G o v e r n m e n t C o d e s ecti ons 174.021 and
174.252 are unconstitutional delegation s of legislativ e auth ority and that the requireme nts for a permissive appeal are met in this case

. That appeal was assigned to this court under case number 14

- 18

- 00976

- CV. The Association file d7

a res pon s e ind icating that it di d not oppose the petition for permissi on to appe al

. On N ovember 12, 201 8, pursuant to section 51.014( a ) (8) of the Civil
Practices and Remedies Code , the City filed a notice of interlocutory appeal from
the trial court’ s Oct ober 22 , 2018 order denying its plea to the jurisdiction

. That appeal wa s assigned to this court und er case number 14

- 18

- 00990

- CV. On November 27, 2018, th is court ( in a per curiam order ) consolidated c ase numb er 14

- 18

- 00976

- CV with case number 14

- 1 8

- 0 099 0

- CV , s tating that bo th “ inv olv e the same suit and the same order signed by the trial court on October 22, 2018 [.] ”

On September 1, 20 20, this court granted the City ’ s petition for perm ission

to appeal , provided n otice to the Texas Attorney General ( pu r sua nt t o T exas Government Code sec tion 402.010 ) that the City filed a petit ion for permission to appeal challenging the constitutionality of sections 174.021 and 174.25 2 , requested
the Texas Attor ney General to weigh in on the issues presented in the peti t ion for

p e rmission to appeal by Se ptember 30, 2 020 , and abated the appeal s

. The court did not receive the requested b rie fing. T he court then granted the A ssociation ’ s motion to reinstate the appeal s and set a briefing schedule on October 27, 2020.

A NALY SIS

We be g in our analysis w ith th e C ity ’ s challenge to the trial court ’ s denial of its plea to the jurisdictio n based on gov ernmental immunity in the in terlo cutory appeal in ca se number 14

- 18

- 00990

- CV ; we then address the City ’ s arguments challenging the con s titu ti o nality of secti on 1 74.2 52 presented in the permissive appeal in c a se number 14

- 18

- 009 7 6

- CV

.
I. Plea to the Jurisdiction
In two issues, t he City co ntends that the trial court erroneously denied its plea to the jurisdiction because (1 ) the Act ’ s gov e rnme nt a l immunity wai ver8

“ requ ire s good faith collective bargaining based o n prevailing p r ivate sector comparators f

or compen sation and other conditi ons of em ployment ” , and (2) the

“ City ’ s evidence supporting its plea to the jurisdiction con clusively s how e d th at
Associatio n ba rgaining wit h the City was not based on private sector com parator

compens ation

. ”

A. Standard of Rev iew and Governing Law

G overnmental immunity a nd s overeign immunity are related common law doctrines protecting the government from suit

. H arri s C ty

. v. Ann ab , 547 S.W.3 d
6 09, 61 2 (Tex. 2018) ; Travis Cent. Appraisal Di st. v. Norman , 342 S.W.3d 54, 57

- 58 (Tex. 2011). Sovereign immunity protects the s tate and its various divisions ( such as agencies and boards ) f rom suit and liability wh ile go v ernm en t al immuni ty provides si mil ar protection to the political subdivisions o f the state ( su ch as counties, cities, and school districts )

. Annab , 547 S.W.3d at 612 ; Norman , 342
S.W .3d at 57

- 58 ; see also Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 69 2 , 69 4 n .3 (Te x. 2 003). An assert ion of governmental immunity implicates a cour t ’ s subject mat ter jurisdiction and is therefore properly asserted in a plea to the jurisdiction. Annab , 547 S.W.3d at 61 3 ; Tex

. Dep ’ t of Parks & Wildlife v.
Miranda , 133 S.W

. 3d 2 1 7, 225

- 2 6 (T ex. 2004)

. A pl ea questioning the trial

court ’ s jurisdiction raises a questi on of law that is reviewed de novo

. State v.
Holland , 221 S.W.3d 63 9, 642 (Tex. 2007).
A plea to the jurisdiction can challenge either the pleadings or the e xis t ence of juris dict ional fac ts. Se e Miranda , 133 S.W.3d at 226

- 27 ; City of Houst on v. Ranjel , 4 07 S.W.3d 880, 887 (Tex. App

. — Houston [14th Dist.] 2013, no pet.)

. When a plea to the jurisdic tion challenges a plaintiff ’ s pleadings, the determination pivo ts o n w h e th e r t

he ple ader has alleged sufficient facts to demonstrate the court ’ s

s ubject matter j urisdiction over the matter. Miranda , 133 S.W.3d at 226

- 27

. We9

con strue the pleadings liberally in favor of the plaintif f and look to the pleader ’ s intent. An n ab , 5 47 S.W .3d at 6 12

- 1 3 ; City of Waco v. Kirwan , 298 S.W.3d 6 18, 621 (Tex. 2009). A plaintiff generally will not be req uired to marshal evidence and prove a cla im just to overcome a p lea to the jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Gar c ia , 3 72 S.W .3d 62 9, 637 (T ex. 201 2). If the pleadings do not contain sufficient facts to affirmatively de monstrate the t rial court ’ s jurisdiction but do not affi rmativel y demonstrate incurable defects in jurisdiction, the issue is one of pleading suff ici e ncy a nd the plain t iff shou ld be a fforded the opportunity to amend. Miranda , 133 S.W.3d at 226

- 27. If the pleadings
affir matively negate the existence of jurisdic tion, th en a plea to the jurisdiction may be granted without allowing the plaintiff an opp ort u nity to ame nd. I d

. at 227

. If a plea to the jurisdiction challenges the existence of jurisdictional facts , we consider r elevant evidence submitted by the parties when ne cessary to resolve the jurisdictional issues raised, even where those facts may im pli c ate t he mer its of
th e caus e of ac tion. Kirwan , 298 S.W.3d at 622 ; Miranda , 133 S.W.3d at 227

. If
the evi dence creates a fact issue as to the jurisdictional issu e, then it is for the
factfinder to decide. Kirwan , 298 S.W.3d at 622

. If the relevant e vid e nce i s

u ndi sputed or fails to rai se a fact question on the jurisdictional i ssue, the trial court
rules on the plea to the jurisdiction as a matter of law. Id

. I n consid ering this evidence, we take as true all evidence favorable to the nonmovant and i ndu l ge

e v er y re asonab le infere nce and resolve any doubts in the nonmovant ’ s favor

. Id

.
B. Waiver of Governmental Immunity

The C ity claims that “ with out good faith colle ctive bargaining based on

pre vailing private sector comparators for compensation , and othe r c o ndit i on s of emplo yment, th er e is no waiver

. ” The City argues that the gov ernmental immunity waiver provid ed in the A ct i s narrow in that it requires ( as a conditi on precedent )10

that t he Association engaged in good faith collective bargain ing based on p riv a te

s e ct o r l abor s tandards “ consis tent with ” sections 174. 021 and 174.105

. A ccording to the City , the Legi slature did not intend a cour t to have jurisdiction over a suit
under the Act “ to resolve unsettled § 174. 021 compensation issues without p rima
f a cie proo f b y publicly employed firefi ghters (or police) of compensation bargaining based on private sector co mparators. ”

T he L egislature must use clear and unambiguous language indicating its
inten t to w aive governmental immunity

. See Kirby Lake Dev., Ltd

. v. C l ea r Lake City Water A uth. , 3 20 S.W.3d 829, 838 (Tex. 2010); Harris Cty. Hosp . Dist. v.
Tomb all Reg ’ l Hosp. , 283 S.W.3d 838, 84 2 (Tex

. 2009). 1 W hether the L egislature has imposed conditi ons pre cedent to a waiver of gov ernmen t al immunity is a

matte r o f sta t ut o ry interpretation

. See J e fferson C ty

. v. Jefferson C ty

. Constables
As s ’ n , 546 S.W.3d 661, 667 (Tex. 2018)

. “ I n construing the Act, as with any statute, our prima ry obje ctive is to give effect to the Legislature ’ s intent. ” Id

. We begin with the “ord i na r y meaning of the st atutory text.” In re Ford Motor Co. , 442
S.W.3d 26 5, 271 (Tex. 2014) (orig. proceeding)

. “We analyze statutor y language in context, considering the specific sect ion at issue as well as the sta tute as a whole.” CHCA Woman ’

s Hosp. , L .P. v. Lidji , 40 3 S

. W.3d 22 8, 2 32 (Tex. 2013).

1 See also Tex. Gov ’ t Code Ann. § 311.034 . The Code of Construction Act provides:

§ 311.034. Waiver of Sovereign Immunity In order to preserve the leg islature's interest in ma naging state fiscal matters through the approp riat ions pr ocess, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. In a statute, the use of “person,” as defined by Section 311 .005 to include governmental entities, does no t in dica te legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice,

are jurisdictional requirements in all suits again st a gov ern mental entity.
Id

.11

“We p resume the Legislature selecte d language in a statute with care and that every word or phrase was used with a purpose in mind.” Tex. Lot tery Com m ’ n v. First Stat e Bank of DeQueen , 325 S.W.3d 628, 635 ( Tex . 2010). Her e, t he
L egi slature has further instruc ted that the Act “shall be liberally construed.” T ex. Loc. Gov ’ t Code Ann. § 174.004. Applying these principles, we conclude the Act (1 ) waive s the City ’ s governmental immunity for the Association ’ s c lai m under
secti on 1 74.2 52 and (2) does not imp ose as a condition precedent good faith collective bargaining based on private sector labor standards

. The Act im

plements several express policies. See J efferson C ty

. , 546
S.W.3d at 667. First, it mandates “ tha t a politic al sub divi sio n shall provide its fire
fi ghters and police off

icers with compensation and other condit ions of em ployment that are substantially the same as compensation an d conditions of employment prevailing in comparable private sector emp lo yme nt. ” See T ex. Lo c. G ov ’ t Code
Ann. § 174.00 2( a )

. Second, “ it gives fir e fighters and police officers ‘ the righ t to

organ ize for collective bargaining ’ as ‘ a fair and practical met hod for determining compensation and other conditions of employment. ’ ” 2 Se e J efferson C

t y

. , 546
S. W.3d at 667 (quoting Tex. L oc. Gov ’ t Code Ann. § 174.00 2(b) )

. Third, “ despite granting this right , the Act stops short of allowing t hese employees to engage in strikes and other work stoppages ” ; instead , it prov i d es “ ‘ reasonable al ternatives ’
li ke arbi tra tion and judicial en forceme nt of the Act ’ s requiremen ts. ” Id

. (quoting

2 A majority of fire fighters of the fire department of the political subdiv ision , o r a
m a j o r i t y o f p o l i c e o f

f i c e r s o f t h e p o l i c e d e p a r t m e n t o f t h e p o l itic al subdivi sion, may s elec t an associ ation to func tion as its exclusive barg aini n g agent. I d . §§ 174.101, 174.102. If the fire fighters or police officers of a political subdivi sion are represent ed by such an associ a tion , the publ i c employer and the assoc iation “sh all bargain col lectively ” , and the assoc iation may enter into a c olle c ti ve bargaining agreement with the public employer on behalf of the fire fighters or police offic ers. Id . § 174.10 5. If a public emplo y er a nd an asso c iation reach a collectiv e bargaini ng agreemen t un der the Act , the agreement “is binding and enforce able a g ainst a public employer, an association, and a fire fighter or police officer covered by the ag reement.” Id . § 1 74.109.12

Tex. Loc. Gov ’ t Code Ann. § 174 .002(c), (d) )

. “ The provi sion of alternatives to strikes is intended to protect the ‘ health, safety, and welfare of the publi c ’ in light
of ‘ t he esse nti al and emergency nat ure of the public service perform ed by fire fighters and police officers. ’ ” Id

. at 667

- 68 (quoting Tex. Loc. Gov ’ t Code Ann. §
174.0 02(c), (d) )

. As applicable in this case, the Act waive s the City ’s governmen tal immunity

t o e nsu re j udi cial enforcement of the A ct ’ s requirements in section 174.021

. See
Tex. Loc. Gov ’ t Code Ann. § § 174.00 8 , 1 74.25 2

. T he cl ear s tatutory language

r egard ing waiver of govern mental immunity , viewed in context , lends no support

to th e C ity ’ s asser

t io n t hat wit hout good faith co llective bargaining based on prevailing private sect or c omparators, “ subject matter jurisdic tion does no t exist
under § § 174.00 8 and 174.252 to waive immunity from suit

. ” 3 T ogether , these two

3 See id. § § 1 74.0 08 , 174.252

. Section 174.008 , titl ed “ Waiver of Immunity ” , expressly provides: “ T his chapter is binding and enfo rce able agai nst the employing p ublic employer, and

sover eign or governm ental im mu nity from suit and liabili ty is waived only to the exten t
nec essary to e nforce this chapter agai nst that e m ployer. ” Id

. § 174.008 . Further, s ection 174.252, titled “ Judi cial En forcement When Public Employer De clines Arbitration ” , provides: (a) If an associatio n requests arbitration as provided by Subchapter E and a public

e mployer refuses to engag e in arbit ra tion, on the application of the association, a district court f

or t he judicial district in which a majority of affected employees resid e may enforce the re quirements of Section 174.021 as to any unsettled issu e relating to compensation or other condition s of employment of fire fighters, police officers, or both. (b) I f th e c ourt finds that the public employer has v iolated Section 174.021, the court shall: (1 ) order the public employer to make the affected e mplo yees whole as to the employees’ pas t losses; (2 ) declare the compensation or other conditions of employment re quir ed by Section 174.021 for the period, not to exceed one year, as to which the parties ar e bargaining; and (3) award the association reaso n able attorney’s fees. (c) The court cos ts of an a ct ion under thi s section, including costs for a master if one is appo int ed, shall be taxed to the public employer

.13

sections unambiguo usl y waiv e the Ci ty ’ s go ver nmental immunity with respe ct t o the Association ’ s claim (1) brought under section 174.252 ; (2) to enforce the requirements o f section 174.0 21 as to any un settle d issue r elating to c o mpensation
or other e mployment co n di tions of f ire fighters; and (3 ) af

ter a n impasse in t he
collecti ve bargaining process occurred between the City and the Association and the City refused to engage in arbitration

. S ee Tex. Loc. Gov ’ t Co de Ann. § §
174.00 8 , 174.252 ; cf. Stines v. Jefferson Cty. , 550 S.W. 3d 17 8, 179

- 80 (T ex. 201 8) (per curiam) ; Jefferson C t y

. v. Stine s , 523 S.W.3d 691 , 713, 720

- 21 (Tex. App.

— Beaumont 2017), rev ’ d in part and vacated in p art , 550 S .W.3d 178 (Tex. 201 8)

. There is nothin g in s e ct ions 174.008 and 1 74.252 ( or in any other sta tutory provision of th e Act ) t hat wou ld support the C ity ’ s conte ntion that the Act ’ s
gov ernmental immun it y waiver r e q u i r e s good faith collective b argain ing based on private sector labor standards , nor has the City cited to any ap plicable authorities

. 4

Id

. § 174.252 (footnote omitted).

4 T he City ’ s rel iance on State v. Lueck , 290 S .W.3d 87 6 (Tex . 2009) is mispl aced because it is distinguis hable

. Under th e waiver of immunity provis ion in the Texas Whistl eb lo we r Act, sovereign immunity is waived when a public employee alleges “ a violati on of this c hapter ” , n amely chapter 554 of t h e Texas G o v e r n m e n t C o d e

. Id

. at 878 (citing Tex . Go v ’ t Code An n. § 554.0035 )

. A c hapter 554 violation occurs when a government al e nt i t y retaliates against a public employee for making a good faith report o f a violation of law to an appropriate law enforcement authori t y. Id

. (cit ing Tex . Gov ’ t Code Ann. § 554.002(a) )

. The Lueck c o urt hel d that there are two juri sdictional requir emen ts i n the waiver of im m unity section , so that “ [ f ] or the government ’ s immun ity to be waived , the plaintiff must ( 1 ) be a public employee , and ( 2 ) alle ge a violation of t his cha

pter

. ” Id

. at 881 (emph as i s in original ) (citing Tex . Gov ’ t Code Ann. § 554 .003 5 )

. The c ourt stated that “ it necessarily follows from this language that Luec k must actually allege a violation of the Act for there to be a waiver fro m suit. Therefo re, the elements

u nder section 55 4 .002(a) must be considered in order to ascertain what c o nstitut es a violation, and whether that violation has actually been alleged. ” Id

. T he court concluded that the elements of section 5 5 4.00 2(a) can be considered as j urisdic tional fact s when it is ne c essary to resolve whether a plaintiff has alleged a v io l ation u nder the Act. Id

. Here, the Act contains no provision that require s g ood faith collective bargaining based on prevailing priv a te s ector la bor standards , and the Ass ociation wa s n ot require d t o plead and present evidence that the parties neg otia te d based on pre vailing private sector comparators for compensation and other e mp loyment conditions to establish a waiver of governmental immu nity14

I nstead , t he City cite s s ect ion s 17 4. 0 21 and 174.105 t o s upport i ts
contentions

. 5 However, neither of these sections impose s a statu tory requirem ent
th at parties collectively bargain based on private sector labor standards as des cri bed in s ection 174.021 a nd , th us, lend no suppor t f or the Cit y ’ s argument

. Specificall y , 174.1 05 lacks any requirement that the parties collectively bargain
based on prevailing private sector c omparators outli ned in section 174.021 , and
does not even me ntion “ private sec tor labo r standards ” or “ compa rat ors ”

. See Tex.
Loc. Gov ’ t Co de Ann. § 174. 105. A dditionall y, sect ion 174.0 21 ( titled “ Prevailing Wage and Working Conditions Requi red ” ) lays out a more detailed outline of the required wage and work cond it i ons the Ac t requires pol itica l subdivisions to

prov ide fire fighters and polic e o ffic er s in or der to satisfy the Act ’ s policy stated in
section 174. 002. See id

. § 174. 021. However, it does not mention private sector
labor standards in the conte xt of collectiv e bargai n ing

.

und er the Act. See al

so infr a pp. 13

- 15

. 5 Section 1 74

. 105, titled “ Duty to Bargain Collectively in Good Fai th ” states: (a) If the fire fighters, police officers, or both of a po litical subdivision are represented by an association as provided b y Se ctions 174. 101

- 174.104, the public employer a nd the associ at i on shall bargain collectively. (b) For purposes o f th is section, t he duty to bargain collectively means a public employer an d an association shall: (1) meet at reasonable times; (2) confer i n goo d faith reg arding compensation, ho urs, and ot her condition s o f employment or the negotiation of an agreement o r a que stion arising under an agreement; and (3) execute a written contract incorporating any agreement reached, if either party requests a w r itte n contract. (c) This section does not requi re a public emp lo y er or an association to: (1) agree to a proposa l; or (2) make a concession. Tex. Loc. Gov’t Code Ann. § 174.105

.15

If t he Le gislature int ended to require parties to collec ti vel y ba rg ain in good
faith bas ed on preva il ing private sector compensation and work conditions , it could have easily done so

. 6 Instead, the Legisla ture allow ed for a public employer and an
association to re ach an agreement that would be deem ed to be in co mpl ianc e with

pr evailing priva te sector s tandards mandated in section 174.021, even if the agreement d id not a ctually comply with th e re quir ements of section 174.021. See
id

. § 174. 02 2 (a)

. 7 Thus, the Legi s lature specifical ly pr ovided that a publ ic emplo y er is c on side red to be in comp liance with the s t andards expressed in section
174.021 regardless of whether the collectively bargained

- for agreement actually is
in compliance therewith

. See id

. T his un dermi nes the City ’ s a rgument that the Act imposes a re qui reme nt to co l lectivel y barg ain based o n section 174.021 prevai ling private sector lab o r standards

. We conclude t hat the government ’ s waiver of immunity does not r equire as a condition precedent tha t t he Association and the City engaged in good faith

c oll ecti ve bar gai n ing based on pre vailing private sector comparators f or compensation and other empl oyment conditions

. We t herefore also conc lude th at

6 See City of Rockwall v. Hughes , 246 S.W.3d 6 21, 631 (Tex. 2008) (“If the Leg i slat ure desires to amend the statute to add words so that the s t atute will then say what is contended for by the E stat e, we are confident it will do so. However, changing the meaning of the statute by adding words to it, w e believe, is a legislative func t ion, not a judi cial function.”) (citi ng 67 Tex. J ur. 3d Statut e s § 85 (2003) (noting that it is for the Legi slatur e, n ot the courts, to remedy deficiencies, if any, in laws)) ; see also RepublicBank Dallas, N.A. v. Interkal, Inc. , 691 S.W.2d 605, 607 (Tex. 1985 ) (“Courts must take statutes as they find th em. More tha n th at, they should be willing to take them as they find th em

. . . . They are not responsible for omissions in legislation. They are responsible for a true an d fair interpretation of the wri t ten law. It mu st be an interpretatio n which expr esses only th e wi ll of the makers of the law, not forced no r stra ined , b ut simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.” ) (quoting Simmons v. Arnim , 220 S.W. 66 ( Tex. 1 920)).

7 Section 174 .022 (a) , tit led “ Certain P ublic Employers Considered to be in Complia nce ” , st ate s : “ A public employer tha t has reached an agreement with an asso ciation on compensation or other conditio ns of em ployment as provided by t hi s chapter is considered to be in co mpliance wit h the require m e n ts of Section 174.021 as to the condi tions of emp loym ent for the duration of t he agreement. ” I

d

.16

the Association was not required to present evidenc e of collective bargain ing based

on private sector lab or stan da rds to establish a wa iver of gov ernmental immunity
under the Act. A ccordingly, we hold th e trial court did not err in denying the City ’ s p lea to the jurisdic tion because the Association proper ly pl eaded a waiver of
the City ’ s governmental immunit y a nd i nv oked th e trial court ’ s jurisdict ion . W e overrule the City ’ s two issues.

II. Constituti onality of the Act

W e next turn to the City ’ s argum ents in the permiss ive appeal challenging
the constitu tiona lity of the Act

. T h e C i t y c o n t e n d s the trial cou rt erre d in d eny ing
its motion for summar y ju dgment because se ction 174.252 of the T e xas Loc al
Gover n m ent Code constitutes an unconstitutional delegatio n of a l egislative
function to the judiciary in vi olati on of the separation of powers provision in the
T exa s Co ns titu tio n. We disagre e.

A. Stan dard of Review and Go vern ing Law

We review a trial cour t’s denial of a tr aditional motion for summary judgment de novo

. Cmty . Health Sys. Prof ’ l Serv s

. Corp. v. Hans en , 525 S.W.3d
671 , 680 (Tex. 2017) ; Laverie v. W eth erbe , 517 S.W .3d 748 , 752 ( Tex. 2017)

. A party moving for traditional summary judgment must establish there is no genuine
issue of material fact and that it is entitle d to judgment as a matter of la w. S ee Tex. R. Civ. P. 166a(c); Hansen , 525 S.W.3d at 68 1; P ro vide nt Life & Acciden t Ins. Co.
v. Knott , 128 S.W.3d 211, 215

- 16 (T ex. 2003)

. We take all evidence favorabl e to
the nonmovant as true , indulge ev ery reasonabl e inference , and resolve any doubt s in its favor. See Hansen , 525 S.W.3d at 68 1; Knott , 12 8 S. W. 3d a t 2 15.

Addition ally, w hen we eval uate the constitutionality of a statute, we start with the presumption th at statutes enacted by th e Legislature comply with t he17

Texas Constitution

. EBS S ols., Inc. v. Hegar , 601 S.W.3d 744 , 754 (Tex. 2020) ; Pat el v

. Tex. De

p ’ t of Licensi ng & Reg ula tion , 4 69 S.W.3d 69, 87 (Tex. 2015) ; Edgewood Indep. Sch. Dist. v. Meno , 917 S .W .2d 717, 725 (Tex. 1995). 8 “ In line with this presump tion, if a statute is susce ptibl e to two interpretations

— one constitutional and t he other unco nst itutional

— then the constit

utional interpretation will prevail. ” Hegar , 601 S.W.3d at 754 ( citing Key W. L ife Ins. Co. v. Sta te Bd

. of Ins. , 350 S.W.2d 839, 8 49 ( Tex. 1961) ) ; City of Pa s adena v. S mith , 292 S.W.3d 14, 19 (Tex. 2009)

. The p art y ass e rtin g t hat a statute i s unconstit utional bears a high burden

. Hegar , 601 S.W.3d a t 754 ; Patel , 469 S.W.3d at 87.

The Texas Constituti on provi des for the separ ation of powers bet ween the

execut i ve, legislative, and judicial branch es of state gove rnm ent an d pro h ib its one
branch of state go vernment from exercising power inherently belonging to a nother
branch

. See T e x . C onst . art. II , § 1 ; Gen. S erv s

. Comm ’ n v. Lit tle

- Tex Insulation
Co. , 39 S.W.3d 591 , 600 (Tex. 2001) ; City of Houston v. H ouston Fir efi

ghters ’
Rel i ef & Ret. Fund , 5 02 S.W.3d 4 69 , 474 (Tex. App.

— Houston [14th Dist.] 2016, no pet.)

. T he Texas Constitutio n expressly vests legislative power in the Legisl ature. See T ex . C onst . art. III, § 1. “ Defining what legislative power is or
when it ha s been dele g at ed is no easy t ask. ” FM P rop s

. Operating Co. v. City of
Austin , 22 S.W.3d 868 , 87 3 (Tex. 20 00)

. Texas courts have defined l egislativ e
power broadly

. I

d

. While it includes th e power t o set public policy , it also
includes “ many functions th at hav e adm ini strative aspec ts, includin g the power to provid e the details of the law, to promulgate r ules and reg ulations to apply the law,
and to ascert ain conditions upon which existing laws may op e rate. ” Id

. ; see also
Tex

. Boll Weevil Eradication F oun d., In c

. v. Le wellen , 952 S. W.2d 454, 46 6

- 67 (Tex. 1997)

.

8 See also Tex. Gov ’ t Code Ann. § 311.0 21(1) ( “ In enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the Unit e d States is intended ” .)18

A lthough t he power to pass laws in Texas rests wit h the Legislature and

“ cannot be delegated to some c ommission or other tribunal ” , “ these bla n ket pronouncements should not be read too literally. ” Boll W e evil , 9 52 S.W.2d at 466.

“ Even i n a simple society, a legislative body would be hard put to contend wit h

ever y detail involved in carrying out its laws; in a complex society it is absolutely
i m possible to do so. ” Id

. T herefore , delegation of p owe r to e n forc e a nd apply law
is n ot only p roper but necessary. Id

. “ Such power must almost always be

e xercised with a certain amount of discretion, and at times th e line bet ween maki ng laws and enforc i ng them may blur. ” Id

. Beca u s e no statute can be e nti r ely p r ecis e

a nd some judgments , includi ng judgment s involving policy consideration s, “ ‘ must
be left to the off

icers executing the law and t o the judges applying i t, the debate

over constitutional del e gation becomes a deba te not over a point of principl e b ut

ove r a q ues tion of degree. ’ ” Id . ( qu oting Mistretta v. United States , 488 U.S. 361, 415 ( 1989) (Scalia, J., disse nting)).

G enerally , t he Texas Legislature may delegate its powers so long as it

est a blishes “ rea sonable standards ” to guide the entity o r t ribuna l to whi ch it delegates pow er

. Se e FM Prop s

. Operating Co. , 22 S.W.3d at 873; Meno , 91 7
S.W.2d at 740; R.R. Co mm ’ n of Tex. v. Lone Star Gas Co. , 844 S.W.2d 6 79 , 689 (Tex. 1992)

. To satisfy t he separation of powers provision , the standards of
del ega tion m

u st b e “ ‘ reasonably clear an d henc e acceptable as a standard of

measurement. ’ ” Meno , 9 17 S.W.2d at 74 1 ( quotin g Jordan v. State Bd. of Ins. , 334
S.W.2d 278, 280 ( Tex. 1960))

. However, t he L egi s lature is not required to include every detail or an tic ipate e very ci rcumstance in statute s whe n delegating power ; such a requirement would defeat the p urpose of delegatin g legislative authority.
See i d . at 740; Lone Sta r Gas Co. , 844 S.W.2d at 689. B ro a d standards included in legislative delegat ion may p ass const i tuti ona l scrutiny , especiall y whe n “ conditions19

must be considered which cannot be convenientl y investigated by th e legislature. ”
See L one Star Gas Co. , 844 S. W.2d at 68 9

.
B. Constitutional De l ega tion of Legislative Power
The City argue s that th e r emedia l pro vis ion in section 174.25 2 of the Texas
Local Government Code is unconstitutional because “ i t delegate s a legislative function to the judiciary and does not ‘ prescribe [] sufficient guideline s to guide the
District Court’s discretion, ’ as held in Intern a tion al Ass’n of F irefighters

, Loc al
No. 2390 v. C ity of Kingsville , 568 S.W.2d 391 (Tex. Civ. A pp.

— Corpus Christi 1978, writ ref’d n.r.e.). ” According to the C ity , section 174.252 violates the
constit u tion ’ s separation of powers provision becaus e ( 1) it r equi res courts to
declare fi re fi ghter compensation and other work conditions as mand ated by
section 174 .021 and (2) said section “ establi shes a private s ector standard for compensatio n and ben e fits but does not do so with sufficient and adequate

sa feguar d s to gu ide the judicial disc retio n conferred

. ”

The Legislature ’ s enact ment of s e ction 174.25 2 includes a judicial
enforcement pro vision to ensure that fire fighters have a re asonable alternati v e to
enforce the Act ’ s policy and requirements outl i ned in se c tion s 1 74.0 02 and
174.0 21

. See T ex. Loc. Gov’t Code Ann. § § 174.002, 174.021, 174. 25 2

. T he
Act ’ s enforcement provision (1) auth orizes court s to e nforce the re quirement s of
section 174.021 and (2) instructs court s to (a) order the public employ e r t o make
the aff ected employees who le as t o the employees’ past losses if it finds the publi c employer violated section 174.021 ; (b) declare t he compensation or other employ ment conditions required by s e ctio n 174.021 for a one

- year period ; and (c)
award r e as onable atto rne y’s fees. See id

. § 174.2 52 ; see also id. § 174.0 21

. 9

9 Section 174.021 , titled “ Pre vai ling Wage and Working Conditions Required ” , provides:20

I n support of their respective argu ments, t he parties poin t us to the only two
cases that have analyzed whet her section 174.252 “ pr o vides for an unconstitutional delegation of a legis l ati ve fun c ti on to the ju d iciary. ” See City of Port Arthur v.
Int ’ l Ass ’ n of Fire Fighte rs, Local 397 , 807 S.W.2d 89 4 , 897

- 99 (Tex. App.

— Beaumont 1991, writ denied) ; Kingsville , 56 8 S.W.2d at 392

- 96. Th e City urges
us to follow the K

ingsville court and h o ld tha t s e ctio n 1 74.252 p rovide s a n
unconst itutional delegation of legi slative au thority to the judicial bra nch because the guidelines the Legislature furnishe d in section 174.021 are insufficient to gui de

a court ’ s discretion. 10 Conversely, t he Associati o n a sks us to r eje ct t he Ki ngsville

A po l i tica l subdivisi on that employs fire fighte rs, pol ice officers, or both, shall provi de those employees with c ompe nsation and other conditio n s of employment that are: (1) substantially equal to c omp ensation and other conditions of employment that prevail i n comp arable empl oy ment in the private secto r; and (2) based on p rev ailing private se ctor compensation and con diti ons of employment in the l a

bor market area in other jobs that require t he sam e or si milar skills, ability, and training and may be performed u n d er t he same

or si milar conditions.
I d. § 174.0 21

.

10 In conclud ing that the Legislature did not prescribe adequat e standards to guide the d i scretion it conferred on the courts to enforce sec tion 17 4.021 ’ s requirements in section 174.252, t he Kingsville cou r t st ated: The g u ideline for directi ng the Distric t Court ’ s dis cre tion, that compe nsation and conditions of emplo yment s hall be “substantia l ly the same” as those that prevail in private sect or e mpl oy ment, is too subjective to prevent a rbitrary and unequal

a ppli cation of i t s provisions notwit hstanding the enumeration o f f actors the Legis lature prescribed for the court s to co nsider. In our comp l ex society, the terms and conditions of employment are no l onger a simple hourly wage or other easily determinable a m ount

. In addit i on to a flat salary or hourly rat e, conditions su ch as: overtime pay; seniority; sick leave;

sev erance and lay

- off pay; fr i nge benefits including paid vacations, training an d fu rth er education, insurance benefits, and profit sharing; and s p ecia l working f a cilities such as lu nchrooms, show ers, athletic cl ubs, and staff m edical personnel, all defy quan tificat ion or comparison i n a uniform manner. For a court to decide which of the ab ove cond itions of employment are appro priate for any partic u lar21

court ’ s holding and f

ollow the “ better reasoned a nalysis ” of the Port Arthu r court ( determining that section 174.252 is not unconstitutional bec ause the Legislatur e
pro vide d sufficient guidelines in section 174.021 to en f orc e that sect ion ’ s requirements )

. 11

group of fi r emen, subject only to a guideline of “substant ial ly the same” wou ld represent a policy determina tion wh ich is legislative i n nature. The generality of the guideline would f

orce Di strict Courts to make certain rules fo r the future as to ho w con ditions of e mployment would be determined

.

* * *
As w e s tated,

. . . a d elegation of a legislative powe r is v alid if it is so com p lete in all its terms and provisions when it leave s th e l egislative branch that nothing is lef t to the judgment of t h e re cipient of a delegated power. We find that s everal matter s a re left to the j udgment of the District Court, as we have pointed out, an d accordingly find Section 16 of the Act to be unco nsti tut ional.
See Kingsville , 568 S.W.2d at 395 (internal citation s omi tted). We note that t he former T he Fire and Police Employee Relations Act , 63d L e g. , R.S. , ch. 83 , 1973 Tex . Gen. Laws 151 ( unofficia l ly designated Tex. Rev. Civ. Stat. Ann. art. 5154 c

- 1, sin c e a mend ed ) was repealed and codified in 1993 to its current designation as Texas Local Government Code Chapter 174. Former a rticle 5154c

- 1, section 16 ( discus sed in King sville and Port Arthu r ) is n ow codif ied in Texas Local Government Code sectio n 17 4.2 52. The wording of former article 5154c

- 1, s ection 16 did not materially change in that codification.

11 The Port Arthur court determined that section 174.252 is constituti onal and criticized K ing svi l le ’s d ecision:
The Kingsville co urt held § 16 unc on st itu tional as it did not provide sufficient and adequate stan dards to guide district courts in resolving impasses brought about b y recalcitrant employers. The Kin g sville cour t cited the general ru le tha t the l egislature cannot impose a f unction upon th e ju dic iary that is legislative in nature, but also recognized i n the same breath an exception to the rule. The leg islature may, ho wever, delegate to a subordina t e b o dy the duty to administer and enf orce i t s legi slative function as long as t he legislature p re scr ibes sufficient and adequate standards to guide the discr etion conferred. The Kingsville court was apparentl y structuring co urts as subordinate bodies of t he l egislature w hich needless to say was im p roper. The Kingsville court concluded that the T ex as Le gislature failed to provide such standards to guide distr ict courts in their discretion.

. . . We disagree with the decisio n in Kingsville th at § 16 of t h e A c t is uncons t itutional. We take i ssue w i th the Corpus Christi court ’ s finding that:

‘ The gu id eli ne for directing the District Court ’ s discretion, that co mpensation and conditions of employment shall be “ substantially the same ” as those that prevail22

T he Ci ty rel ies heavily on Kingsville to support its contention that the
standard s set forth in section 174.021 are s o broad, generic, and amorpho u s tha t

“ [e]very jud ge a

nd every juror would have a differing vi ew of wh a t w as the ‘ sam e

o r similar, ’ and w hat ‘ empl oyment ’ was comparable. ” T he City contends the

in pri v ate sector e mployment, is too sub jectiv e to pr event arbitrary and unequal application of it s pro visions notwithstanding the enumeration of factors the Le gislature prescribed for the courts to consider. ’
In order fo r a cou rt to find that a city is in v i ola t ion of § 4 , as is initially requi red

un d er § 1 6, probative evidence must be presented by the emp loyees. The employees certainly could not prevail sho uld they fail to do so. The burden of proof is on t he employees. I f a trial court is satisfied, aft e r c o nsiderin g al l of the evidence pre sented , that a city is in violation of § 4, the Act per m its the court to apply whatever facts and figures were suppli ed by the evidence in satisfaction of the Act ’ s requ irement under § 16. This is unquestionably a jud i cia l functio n

. S imply put, § 4 sets o ut a c i ty ’ s o bligation to provide compensation for fire f ight ers and/or policemen that is “substantially the same” as that in the private sector. Section 4 is a State po licy mandate

. . . to make compensation and condi t ion s of empl o yme nt for firefighters a nd/or p olicem en substantially the same as the private s e ctor

. Section 16 is the judicial enforcement provision of th at duty. A district court reviews the evidence and makes a determin ation as to whether § 4 has been c omp l ied with

. T his is a legislative creati o n of a cause of action against employers whose o f

fers vi olate § 4. Courts are not subordinate legislative bod ies and the Kingsville court was in error in so stat ing.

* * *
The Kingsville court recognized tha t the lan g uag e of § 16 was intrins ically intert wined with the language of § 4. Indeed, i t was ac tually the language of § 4 that gave the Kingsville co urt the most concern; ultimately finding t hat the la nguage of § 4 pr ovided insufficient guidance for d ist r ict cour t s. For this reason, the Kings v ille c ourt found that the stated exception to th e gen era l rule prohibiting the legislature from imposing a leg islative function on the judiciary did not apply. R ecall that the e xception is that so long as the l e gis l ature pr o vid es sufficient guideli nes to the su bordinate body (district court), then the l egis lature may delegate to this subordinate body the duty to administer and enforce its legislation. Carry ing th e Kingsville rat ionale to its logical conclusion, any section i n t he Act that provides for ad m inistr ation and/or enforcement of § 4 by a “subo r dina te body” would also be unconstitutional.

. . . To our P andora ’ s Box we are unwilling to apply the Kingsvill e key.
See Port Arth ur , 808 S.W.2d at 898

- 99

. We not e tha t f ormer article 5154c

- 1, sec tion 4 (discu ssed in Port Arthur ) is now codified in Tex as L oca l Government Code s ectio n 174.021. The wording of former art. 5154c

- 1, section 4 did not materially change in the codification.23

statutory language contains no meaningful standards, criteria, or li mits to

“ determine which priva te sector comp arat ors should apply on how they should change exi st i ng HFD pa y

. ” The City complains t he “ statu te essentially leaves the parties and the c ourts to guess at the methods for any comparisons and places no
limits on the outcomes ” because there a re “ no limits, eit her annually or formulaically ” , “ no specified pr o fes sional disc ipl ines with recogni zed stand ards or
certifications as to competence and reliability ” , and “ no listed labor or wage rate comparisons from government or industry to be used as a reference or gui de. ” The City insists that “ [ w ] i th no more th an the gener a lize d c omparison words i n §
174.0 21, any expert will be making it up as they go forward, not following established law or professional discipline, as required under Rule 702 and T exas case law. ”

For a constitutionally acceptable standard , th e C ity p oint s to the statute
establis hin g the pension system fo r the City ’ s fire fighters this court analyzed in City of Houston v. Houston Firefighters ’ Relief & Re t irement Fund , and maintain s that the sta tute before us requires similar parameters to be a c o nst itutio n al
d ele gation of legisla tive auth ority. 502 S.W.3d at 471, 477

- 80

. In the pension fund case, the City s ought a declaration tha t the statut e violate s the constitution ’ s

se paration of powers pr ovis ion because it is an improper delegation to a no n

le gislat i ve e nti ty. Id

. at 4 73. This cou rt held that the st atute was constitutional because the Legislature established reasonable standards to guid e the board of

trustees in exercising t he powers bes t owe d under the statute to , among other things, re ce i ve, manag e , an d d isburse retiremen t funds

. Id

. at 477

- 79. The statute (1) set the Ci ty ’ s contributions based on member salaries and contributi ons and not based on an arbitrary decision by the board; (2 ) se t the member con tributions as a percentage of th e ir salary ; (3) ma de the City ’ s con tribut ion rate als o depend e nt on24

the results of an a ctuarial valuation according to certain criteria ; (4) allow ed the board to select the actuary but requir e d the actuar y to possess certa in qualifications; an d (5) allow ed the board to a dop t binding rules , policies, and procedures so long as they are consist ent with the statute

. Id . at 478

- 79.
The City claims that , jus t as in the pension fund case, for there to be a prop er d elegation of legislative authority in this cas e , the Legis l atur e c ould have include d
the fol lowing “ parameters and safe guards ” : (1) “ s et maximum or minimum amounts, or thresholds for annual increases in compensation based on judicial
revi ew of private sec tor pay data from many possible data resources ” ; (2) “ requ i re

a nal ysis by experts w ith certi fications or credentials ” to “ remove the ab solutely subjective guesswork that is now required ” ; and (3) “ provide for some correlation to, or factor in c onsidera tion of, the prior compliant pay and benefits. ”

Fo r s eve ral re a sons , w e cannot agree wi th the Ci ty ’ s contention that section
174.252 is an unconstitutional de legation of legislative authority to the judiciary
because the Legislatur e provide d i nadequate gui deli nes in section 174.021 for

courts to enforce t ha t se ction ’ s req uir ements

.
T o begin with , we take issue with the Kingsville court ’ s pro nouncem ents
tha t “ a delegation of a legislative power is valid if it is so complete in all its terms
and provisio ns wh en i t leaves the legislative branch that nothing i s l eft to th e jud gme nt of the recipie nt of a d elegated power. ” Kingsville , 568 S.W.2d a t 395. This pronouncement runs afoul of binding precedent because t he supreme court
has stated that dele gated pow er m ust almost always be exercised with a cer tain

amou nt of discre t ion and that the Legisla ture need not include every detail or anticipate ev ery circumstance when permissibly delegating power

. See Boll
Weevil , 952 S.W.2d at 466; Meno , 917 S.W.2d at 740; Lone S tar Gas C o. , 844
S.W.2d at 689.25

We also reje ct t h e c ontent i on t hat the sta ndards outl ined in section 174.021 are too subjective and discretionary with no meaningful criteria so that different

courts “ would have a different view of what was the ‘ same or similar , ’ and what

‘ employm ent ’ was compa rable ” , an d wo uld ha v e to ma ke “ the problematic choice
of a labor marke t for comparison. ” T he terms used in the Act to p rovide the
standards to guide courts in determin ing if there was a violation of section 174.0 21
and dec lar ing co mpensation an d work cond itions re q uir ed b y s ecti on 174.02 1 are
not too subjec tive and amorph ous and already have been applied routinely by

courts without difficult y in different areas of the law

. See Hertz Equip. Rental Corp. v. Barouss e , 365 S.W.3d 46 , 5 9 (Tex. App.

— Houston [1st Dist.] 2 011 , pet.
deni ed) (applyi ng standard of “ co mparable ” emplo yment in retalia tory discharge

case ) ; Basic Capital Mgmt., Inc. v. Phan , No. 05

- 00

- 00147

- CV, 2001 WL 893986 , at * 7 (Tex. A pp.

—

Dallas Aug. 9, 2001 , pet. denied) (applying stand ard s o f

“ co m par able ” e mplo yme nt and “ substantially e qui valent ” employment in employme nt discrimination and retaliation case)

. 12

More over , at least one Texas c ourt has applied the Act ’ s jud icial
enforcement provision in section 174.252 and the required standards set o u t i n
sect i on 1 74. 021. See City of San Anto nio v. Int ’ l Ass ’ n of Fire Fighters, Local 624,

12 S ee also Ford Motor C

o. v . E. E. O. C. , 458 U.S. 219, 231

- 32 (1982 ) ( ap plying stan dard of “ substanti ally equivalent ” emp loy ment in the c onte xt of mitigat i o n d a m a g e s in Title VII case ) ; Hazelwood Sch. Dist. v. United States , 433 U.S. 299, 308

- 13 (1977) ( discussing

“ rele v ant labor market are a ” co nsiderations fo r an ultimat e det ermination w hether employer engaged i n discri mina tio n in a Title VII case); Palasota v. Haggar Clothing Co. , 49 9 F.3d 474, 486 (5th Cir. 2007) ( a p p l y i n g standards of “ comparable ” employment and “ sub s tant i ally equivalent ” emp loyment in the cont ext of m i tiga tion damage s in Title VII case ) ; Newark Branc h, N

. A

. A

. C

. P

. v. Tow n of Harrison , 940 F.2d 792 , 800

- 01 (3d Cir. 1 991) (determining relevant

“ labor market ” in Title VII case) ; Sel l ers v. Delgado Coll. , 902 F.2d 1 189 , 1193 (5th Cir. 1990) ( app lyin g standa r d of “ substanti ally equivalent ” employment in the con tex t of mi tigati on d amages in Title VII case ); Sellers v. Delg ado Cmty. Coll. , 839 F.2d 11 32, 1138 (5th Cir. 1988) ( applying st a ndar ds of “ comparable ” employmen t and “ substant i ally equivalen t ” e mploymen t in the context of mitigation damages in Title VI I ca se )

.26

San Antonio , 539 S.W.2d 931 , 933

- 35 (T ex. Civ. App.

— El Paso 1976, no writ)

. There , the fire fighter s brought s u it under th e Act ’ s judicial enforcement provision
in sec tion 1 7 4.25 2 b ecause the City of San An t onio re jected arbitration after faili ng
to agree to a requested pay increase

. Id

. at 933. The fire fighters presented
evidence fro m one expert who determine d the fire fi ghters ’ wages should be increased by 53% t o s atisfy sect ion 174.021 requirements

. Id

. The trial court
concluded the presented evidence was insufficient to establish tha t the city vi olated the requirements of section 174. 021 , and the court of a ppeals did not disturb the
trial court ’ s finding on a ppe al

. I d . at 93 3

- 34.

W e also reject the C ity ’ s c ontention that the Legislature gave “ virtually no parameters ” and failed to “ set tru e standards or criteria ” to guide the courts. As we have quoted abov e, the Legi slature in section 174.021 provided de scr i pti ve , ea s ily
und erst andable language and c ommonly used and routinely applied terms in

emp loyment law and other area s of the law as we ll as several factors as guiding posts for cou rts to d e termine f ire f ighters ’ co mpensation and work conditions that

are s u bst antial l

y eq ual to compensation and other work c onditions in comparable employment in the private sector based on prevailing private se ctor compensation
and work conditions in th e labor market are a in other jobs that require the same or similar skills , a bil ity , a n d tr ain ing and may be performed u nder th e same or similar
conditions

. The Legislature chose sufficiently detailed but not t oo confining language to account for the many different circumst ances affecting compensation
and other condi tions of empl o yme nt

.
In that re gard, we disagree with the City t hat the Act does not provide
reasonable standards because it fails t o “ set maximum o r minimum amounts, or
thresholds for annual in creases in compens ation based on j udicial review of private sector pay data fro m many poss ibl e data resources

. ” S ettin g minim um , maximum ,27

or threshold amount s for annual compensation increases c ould be unworka ble and

pro blematic. For one, a minimum or ma ximum amount would addr ess employe es ’ compensation only; it would not addre s s s ubstan t iall y e qual conditions of employm ent

. D epending on the labor market area and othe r employment
conditions , a maximum or mini mum compensation amount that is substantially equal base d on pre vaili ng pr ivat e sector compensation in one geo graphic are a ca n be s u bsta nti ally different f rom anothe r geogr aphic area. Also, setting minimum
and maximum amounts might be detrimental to employer s or e mployees depending on w hether the private sect or employees ’ compensat io n remains stagnant or drastically increas e s o r decr e ases

. For example, setting thres holds f or annual increases in compensation might not account for a n unexpectedly higher
increase in prevailing pr ivate sect or compensation and thu s not satisfy the Legis la tur e ’ s policy to provide fire fighters wi t h s ubstan t iall y e qual compensation.
See Te x. Loc. Gov’t Code Ann. § § 174.002, 174.021

. Th erefore , the Legislature ’ s standards in section 174.021 g ive sufficient guidance and parameters while b eing
flui d enough fo r c ourts to consider various different c i rcu mstance s tha t m ake not only p ay but also other work c onditions substantially equal to the private sector

.
A dditionally, we disagree with the City ’ s contention that usin g “ prior compliant pay and benef its ” as a t hre shold or as a factor would provide mo r e
g uidance and pre cise standards in determin ing substant ially equal compensation
and employment conditions

. A previously “ compliant ” collective b argaining

agreeme nt may on ly have been compliant because t he parties agr eed to it and not because it actually com

plied w i th t he requirements of section 17 4.021. See id

. §
174.0 22. A previous agreement also may be many years old and , even if compliant

at the t ime it was signed , ma y be significantly out of step w ith prevail ing private sector compensation and othe r wo rk cond i tion s s o as to provide not much28

g uidance

.
F urther, we reject the City ’ s assertion that reasonable standards to guide

courts ’ discreti on require d the Legislatur e to pr o scribe “ analysi s by expe rts with

ce rti fications or credentials ” so that exp e rts “ will [ not] be making it up as they go
f orward, not following established law or professional discipline, as required under
Rule 702 and Texas case law. ” It is not ess ential to specifically mandate a nalysis by exp erts with particular qualifications b e cau se cour t s on ly can consider expert
testim ony that com plies with Texas Rule of Evidence 702 , namely “ ‘ [a] n expert witness may testify regarding ‘scientific, technical, or other specialized’ mat ters if

t he expert i s q ualified and if the expert ’ s opinion i s r elevant a nd bas ed on a reliable foundatio n

. ’ ” See Transco n. Ins. Co. v. Crump , 330 S.W.3d 211 , 215 (Tex. 2010) (emphasis added) (quoting Ma ck Trucks, Inc. v. Tamez , 2 06 S.W.3d 572, 578 (Te x

. 2006) ) ; Tex. R. Evid

. 702 ( “ A witness who is qualified as a n e xpert
b y kno wle dge, skill, experience, tr aining, or education may testify in the form of an opinion or otherwise i f the expert ’ s scientific, technical, or other specialized knowledge will hel p the trier of fact to understand the evidence or to determin e a fact in issu e. ” ). In determining whether expert testimony is reliable, court s must
consider non

- exclusive factor s 13 firs t set out in E.I. du Pont d e Nemours & Co.,
Inc. v. Robins on , 923 S.W.2 d 549 , 55 7 (Tex. 1995) , as well a s t he expert ’ s experience, k

n owl edge, a n d tr ain ing

. Crump , 330 S.W.3d at 215

- 16.

The lack of a mandate that only experts with specific “ certifications or

13 F actors inclu de, but are not limited to: (1) the ext ent to which the theory has been or can be tested; (2) the extent t o whi ch the technique relies upon the subjective interpretation of the expe r t ; ( 3) whether the theory has been subjected to p eer rev iew and/or p ublic ation; (4) the technique ’ s potential rat e of error; (5) whether the underlying theory or technique has been gene rally accepted as valid by t he relevant sci ent ific communi ty; and (6) t he n on

- judicial uses which have been made of the theo ry or technique

. E.I. du Pont de Nemours & Co., Inc. v. Robinson , 923 S.W.2d 549, 557 (Tex. 1995)

.29

credentials ” can testif

y presented no obstacle for the San Antonio trial cour t to apply t he Act ’ s ju dicial enforcement provisio n in sectio n 174 .25 2 and the required
standar ds set out in section 174.021. See Int ’ l Ass ’ n of Fire Fighters, Local 624 , 539 S.W.2d at 933

- 3 4 ( refusing to reverse the trial court ’ s f inding that th e fire
fi ghters ’ expe rt evidence was insufficient to establ i sh the cit y vi o lat ed the requirements of sec tion 174.021 )

. As the Po rt Arthur court stated in its assessment
that section 174.252 is a constitutional delegation of a legi slative fun ction to the judiciary to determine whether a public employer violate d se c tio n 174. 0 2 1 :

I n o rder fo r a court to find t hat a city is in viola tion of § 4 , as is initially required under § 16 , probative evi dence must be presented by the employees. The employees certainl y cou ld not prevail sho uld t hey fail to do so. The burden of pro of is o n t he em ployees. If a trial court is satisfied, after c onsidering all of the evidence presented, that a city is in vio lation of § 4, the Act permits the court to app ly whatever facts and f igures were suppli ed by the evidence in satisfaction of t he Act ’ s
r e qu ir eme nt under § 16. This is un questionably a judicia l function. Simply put, § 4 sets out a city ’ s obligation to pro vide compensation for firefighters and/or polic emen that is “subs tanti ally the same” as that in the private sector. Section 4 is a State po li cy mandate

. . . to make comp ensation and condition s of employment for firefighters and/or policemen substantially the same as the private sector. Section 16 is the judicial enfo rceme nt provision of th at du ty. A district court reviews the evi dence a n d ma kes a determination as to whe ther § 4 has been comp lied with. This is a legislative creation of a cause of action against employers whose offers violate § 4. Port Arthur , 807 S .W.2d at 898

.
W e acknow ledge that the statute in the pension f und case 14 p rovi ded more detailed standards a nd guidance than the A ct before us , but we disagree with the City that such standards are minimum req uired standards to pass constit utional scrutiny

. T he supreme court has made clear that t he L egislature is not req uired t o

14 See Houston Firefighters’ Reli ef & Re tirement Fund , 502 S .W.3d at 477

- 80

.30

inc lud e every de tail or anticipa te every circumstance when delegating power because such a requirement would defeat the purpose of delegations

. Meno , 917
S.W.2d at 740; Lone Star Ga s Co. , 844 S.W.2d at 68 9

. N or are statute s invalid
based on a le gislat i v e fa ilu re to include specific det ails. Lone Star Gas C o. , 844
S.W.2d at 689

. T he s upr eme court explained that delegated po wer “ must almost always be exercised with a cert ain amount of discretion, and at t imes the lin e between making laws and e nfo rcing t h em m ay blur. ” Boll Weevil , 952 S .W.2d at
466. The court recognized that because statutes c annot be entirely precise , some judgm ents ( even involving policy consideratio ns ) mu st be le ft to the judges applyi ng the statut es

. Id

. Thus, broad sta n dar ds incl u ded in legislati ve delegation

may pass constitutional must er , particularly when “ conditions must be considered which cannot be conveniently investigated by the legislat ure. ” See Lone Star Gas
Co. , 844 S.W. 2d at 689.

Here , the Legislature ’ s pas s age of sec t ion 174 .252 provided the judiciar y with both the authority and the duty to enforce the Act ’ s policy that public employers provide fire fighter s w ith compensation and other employment
conditio ns that are sub stantially equal to compensation and e m plo yment c o ndit ion s prevailing in comparable private sector employmen t. See Tex. Loc. Gov’t Code
Ann. § § 17 4.002, 174.021 , 174.252

. As stated above, the L egislature in section
174.021 used des criptive language, comm on and routinely applied terms, and

mu l tip l e fact o rs f

or courts to consider in exer cising the enforcement au thority

. A lthough the stated requ ireme nts are not the most detailed and precise, a

con stitutional standard may be broad and encompas s a multitude o f factors if it is
no more extensive t h an the pub l ic i nte rest demands

. See Jordan v. State Bd. of
Ins. , 334 S.W.2d 278 , 280 ( Tex. 1960) ; Tex. Bldg. Owners & Managers Ass ’ n , Inc

. v. Pub. Util. Co mm ’ n of Tex. , 110 S.W.3d 524 , 535 (T ex. App.

— A ustin 2003, pet

.31

denied)

. If the idea embodied in a p hra se is r e ason abl y clear, and we find that it is,
a court should fin d it to be acceptable as a standar d of measurement. See J ordan , 334 S.W.2d at 280. S t andards far less descriptive and pre cise ( and even amorphous ) have been uphe ld as adequate and reas o nab le stan d ards to guide
entities to which a uthority was delegated

. 15

15 See Mid

- Am. Ind em. Ins. C

o. v. King , 22 S.W.3d 321 , 323, 327

- 28 (Tex. 199 5) ( con cluding Legislature may delegate authority to courts to dispense with the statutory requirement that b efore filing a pleadin g in defense of a suit, an unauth orized insurer must deposit funds “in an am o unt to be determined by the court su fficient to se cu re the payment of any final judgment that may be rendered” , if the court determines the insurer establishes that it

ma intains f

u nds or securities that are “suff icient and avai lable to satisfy an y final j u dgm ent” that may be rendered in the suit ); see a ls o Lon e Star Gas Co. , 844 S.W.2d at 6 89

- 90 ( upholding the

“ broad standards i n the statutes which delegate author ity to the Railroa d Com mission includ [ing] (1) the prevention of d iscriminatory produ ction and tak ing of natural gas, (2) the prev ention of

was t e a nd (3) th e promotion of conservation ” ; “It is utterly impossible for the Legis lature to meet the demands of every detail in the enac tment of laws relating to th e production of oil and gas.” ) ; Ke y W. Life Ins . Co. v. State Bd. of Ins. , 350 S.W.2d 839, 8 4 4

- 4 5 ( Tex. 1961) ( concluding L egislature may delegate authority to the former State Board of Insurance under the statut e ’ s

“ encour a ges misrepresentation ” provision ; the “ standa rd s the Supreme Cou rt (of the U nit ed States) ha s held adequate in clude ‘just an d re aso nab le,’ ‘public i nterest,’ ‘unreasonable obstruction to n avigation,’ ‘reciprocally unequal and unreasonable,’ ‘public conven i ence , interest, or necessity,’ ‘tea of inferi or quality,’ ‘unfai r methods o f co mpetition,’ ‘ reasonable variati ons,’ ‘unduly or u nne ces sarily complic ate the structure’ of a holding company system or ‘unfairly or ine quitably distribute voting power among se c urit y holders ’ ” ) ; Jordan , 334 S.W.2d at 280 ( ap proving a statutory grant of pow er to the Ins urance C ommissioner to dete rmine if an offi cer or directo r of an insurance company is “not worthy of public confidence ” ; “ While the term ‘not worthy of the public c onfi dence’ is broad and undoubtedly encompass es a multitude of factors, it i s n o more exten s ive than the public interest dem ands

. F urth er the idea em bodied within the phrase is reasonably clear and hence acceptable as a standard of measurement. ” ) ; Sw. Sav

. & L oan Ass ’ n v. Falkn er , 331 S.W.2d 917, 920 ( Tex. 1960) ( upholding Legis l atur e ’ s dele gatio n of power to the Banking Commis sion er to ascertain “ whether the public convenience and advantage will be promoted by allo wing such pr oposed building and loan asso c iati on to be inc orporated and engaged in busi n ess, and whether the populat i on i n the neighbo rhood of such place and in the s urro und ing country af fords a reasonable promise of adequate support for the proposed build ing and loan association ” before granting a ce rtificate to establish and op erate a bran c h office ; “ The stat utory sta n dard s of public c onve nience and advantage, and ad equa te population to assure reasonable support, are sufficient statutory basis for the rul es and regulations

. ” ) ; Holloway v. Butler , 828 S.W.2d 810 , 811

- 13 (Tex. App.

— Houston [1 s t Dist.] 1992, writ denied) ( upho lding the con stitutionality of a statute perm itti ng tria l courts t o set court reporters ’ fees ; “ I f an objection is made t o the amount o f the transcript fee, the judge shall det e rmin e a reasonable fee , taking into considera t ion the difficulty and techn i cali ty of the32

B ased on the foregoing analysis and au thorities , w e conclude (1) t he City
failed to e stablish that section 174.252 i s an unconstitutional delegat i on of a legislat ive function to the ju d i ci ar y in v iola tio n of the separation of pow ers provision in the Texa s Constitution, and (2) the trial court did not err i n denying the City ’ s motion for su mmary judgment . A ccordingly , we ove rrule the City ’ s first is sue.

C

. Good Faith and M andatory Subje c ts

I n addi t ion to the con trolli ng question s the trial court identifie d in its order permi tting an interlocutory appeal , the City raises two add itional issues which were also raised below. The City argues in its secon d is sue that (1) its motion for

summar y ju dgment c oncl usi vely proved the Asso ciatio n never negotiated in goo d faith for compensation or benefits based on preva iling private sector compensation
and conditions of employment as requir ed by section 174.021 , an d (2) “ [ t ] he lack
of this essential fa c tua l eleme n t de pri ves the court of jurisdi ct ion over this matter. ”
I n its third issue, the City contends the trial cour t erroneously denied its motion for summary judgment because (1) any “ st atutory right to enfor cem ent ” in section
174.252 “ is limited to ‘ ma n datory subj ect s ’ of bargai ning and negot iation ” , and (2)
there is no “ evidence that key contract elements plea ded by the Association meet
the test under Texas law for ‘ mandatory subjects. ’ ”

T hese two issues are not within the s cope of this permissiv e in terloc u t ory
app eal

. We construe section 51.014(d) o f the Texas Civil Pra ctice and Remedies

mat erial to be transcribed and any time co nstraints im posed by the person requesting the transcript. ” ) ; Tex. Bldg. Owners & M anagers Ass ’ n , Inc

. , 110 S.W.3d at 535

- 36 (uph olding a statutory deleg ation of authorit y to the Public Utility Commi s sion t o enforce t he right of a property owner to requ i re a utility t o pay “ reasonable ” and “ nondiscrimina tory ” compensation when a utility gains access to the prop erty and rejectin g an a rgument that the statute s do not contain sufficient standards to guid e the Commission i n making its determination )

.33

Code strictly because it provides for an interlocutory appeal, which is an exception to the gener al rule that only final j udgments are appealable. Lakes of Rosehil l
Ho meow ners As s ’ n, Inc. v. Jones , 552 S.W.3d 4 14 , 418 (Te x. App.

— Houston [14th Dist.] 2018, no pet.) ; Gulf Coast Asp halt Co. v. Lloyd , 45 7 S.W.3d 539, 545 (Tex. App.

—

Houston [14th Dist.] 2 015, no pet.). “ Our scop e of review in a permissive interlocutory a ppe al i s li m it ed to controlling legal question s on which
there are subst antial grounds for disagreement and the imme diate resolution of
whi ch may materially advance the ultimate terminatio n of the litigation. ” Jo nes , 552 S.W.3d at 418 ; see also Tex. Civ. Pra c. & Rem

. C ode Ann. § 51.014(d); Tex. R. Ap p. P. 28.3( e); Tex. R. Civ . P. 168. The parties may not add to the tr ial court ’ s description of the controlling le gal question. Jones , 552 S .W.3d at 418 ; see also
Ll oyd , 457 S.W.3d at 544; White Point Minera l s, Inc. , v. Sw antner , 464 S.W.3d 884, 890

- 91 ( Tex. App.

— C orpus Christi 2 015, no pet.)

. The trial court permitted the City to file interlocutory appeal s to address the controlling question s of law identified by the trial court . W e granted the City ’ s
pe t itio n for pe r m iss ion to appeal to address these controllin g questions of law , and

we addressed the m i n our analysis o f the City ’ s first is sue

. We therefore do not address other matters argue d in the City ’ s or the As sociation ’ s brie fs. Accordingly, we ov e rrul e the Ci t y ’ s second 16 and third issues

. C ONC LUSION

W e a ffirm the trial court ’ s order denying the City ’ s plea to th e jur isdiction
and cros s

- motion f

or summary judgment

.

16 We no te that b ecause t he City ’ s second issue in the permissi ve appeal basically mirro rs the second issue it raise s in its plea to the jurisdiction appeal , we have already addr e ssed sa id i ssue in our pl ea t o th e jurisdictio n analysis

.34 /s/ Meagan Hass an J ustice

Panel consists of Justice s Wi se, S pain, and Hassan

.