Reversed and Remanded and Majority and Dissenting Opinion s filed July 29 ,

2021

.

In The



## Fourteenth Court of Appeals

NO. 14

- 19

- 00427

- CV

HOUSTON PROFESSIONAL FIRE FIGHTERS ASSOCIATION , IAFF LOCAL 341 ; PATRICK “MARTY” LANCTON ; GABRIEL ANGEL DOMINGUEZ ; R OY ANTHONY CO RMIER ; BRIA N RA Y WILCOX ; AND

DELANCE SHAW , Appellant s

V.

HOUSTON POLICE OFFICERS ’ UNION ; CITY OF HOUSTON ; MAYOR SYLVESTER TURNER ; COUN C ILMEMBERS AMY PE CK, TARSHA JACKSON, ABBIE KAMIN, CAROLYN EVANS

- SHABA ZZ, DAVE MARTIN, TIFFANY D. THOMAS, GRE G TRAVIS, KARLA CISNER OS, ROBERT GALLEGOS, EDWARD POLLARD, MARTHA CASTEX

TATUM, M IKE KNOX, DAVI D ROBINSON, MICHAEL KUBOSH , LETITIA PLUMMER, AND SALLIE ALCORN; CONTROLLER CHRIS BROWN ; AND FINANCE DEPARTMENT DIRECTOR TANTRI EMO , Appellee s

On Appeal from the 157th District Court

Harris County, Texas Trial Court Cause No. 2018

- 854652 D I S S E N T I N G O P I N I O N
I agree with the trial court that th e Appellees met their summary judgment

burden to show that the pay

- parity amendment is contrary to FPE RA

, and the Fire Fight er Appellants failed to raise a genuin e issue of material fact

. Thus, I respectfully dissent.

* * *

Because FPERA unmista kably preempts contrar y l ocal l aw, 1 t his case presents a simple question : Is the the pay

- parity amendment ’ s compensation

scheme cont rary to FPERA ? 2 T he answer is “ yes. ”

FPERA requires the City to provide fire fighter s with c ompensation that is

“ substantially equal to ” comparable employment in the private sector and “ based on prevailing private sector compensation ” for other jobs requi ring the same or similar skills, abilities, and training. See Tex. Loc. Gov ’ t Code § 174.021

. The

pay

- parity amendment provides, on the other hand, that the City must compensate

fire fighters in an amount that is at least equal to compensation provided t o the City ’ s police officers.

T he m ajority suggests that the pay

- parity amendment mer e ly es tablishes a compensation “ floor ” for fire fighter s . The majority envi sions a hypothetical

world in which fi re fighter s ’ compensation

, based on private sector FPERA

1 See Tex. Loc. Gov ’ t Code § 174.005 ( “ This chapter preempts all contrary local ordinan ces , exe cutive orders, legislation, or rules adopted by the state or b y a political subdivision or agent of the state, includin g a personnel board, civil service commissio n, or home

rule municipality. ” ).

2 See City of Laredo v. Laredo Merchants Assoc. , 550 S. W .3d 5 86, 593 (Tex. 2018) (“In this case, legislative intent in the Act to preempt local law is clear. The Act states that a local government or other political subdiv isi on may not adopt certain ordinances. The issue is whether the Ordinance falls wit hin the A ct’s ambit.” (quotations and punctua tion omitted)).3

standards

, might exceed police officers ’ compensation , so “ the p ay

- parity

amendment d o es not always foreclose the application of section 174.021 ’ s
standards. ” Maj. Op. at 17. Indeed, the amendment could be consistent with

FPERA if the City ’ s police offic ers were paid compensation tha t is substantially equal to compar able employment in th e private sector or based on prevailing private sec tor compensation. 3 But the only evidence adduced in this case on the subject matter shows that the City ’ s police office r s are not currently c ompensated in such a way. Former City of H ouston Chief of Poli c e Art Acevedo testified that police officers ’ compensation is not based on prevailing private sector compensation

. The Fire Fight er Appellants concede that , abs ent the p ay

- parity
amendment, the City ’ s police officers currently are pa i d substantially more than fire fighters

. The majority ’ s interpretation of FPERA that it does not establish the exclusive standard for determining fire fighter compensation is not a reasonable

co nstruction that gives effect to both FPERA and t he pay

- parity am e ndment

. FP ERA requi r es one standard: comparable private sec tor compensatio n. The pay

parity amendment requires another standard : police officer s ’ compensation. The undisputed evidence s how s that these two standards are not currently equivalent : police o fficer s ’ compensatio n is not based on private sector comp ensation , and their compensation is substantially more than fire fighters ’ compensation

. Thus,

there is an “ actual conflict ” bet we en FPERA and the amendment. H ypothetically

,
p olice officers ’ compensation could be bas e d on private sector compensation, thus

s a t isfying FPERA, but w e cannot rely on the Appellees to alter their metho d for compensating police officer s so that fire fighter s ’ compensation would comply

3 That is , assuming fire fighte rs and police officers are engaged in comparable employment utilizing the same or similar skills, abilities, and training.4

with FPER A ’ s pr ivate sec tor requirements

. See BCCA Appeal G rp., Inc. v. City of

Houston , 496 S.W.3d 1

, 17 (Tex. 2016) (reasoning that it would not be a

reasonable con struction of the statute and ordinance to rely on the city ’ s di scretion in not enforcing its more stringent ordinance ). 4

* * *

Because the pay

- par i ty amen dment ties fire f ighter s ’ compensa tion to a

standard that i s not based on prevailing private sector compensation, under the

uncontroverted evidence in this case , t he amendment is contrary to FPERA. The trial court did not err by granting summar y j u dgme nt to the Appellees.

/s/ Ken Wise Justice

Pa n el consists of J us ti ces Wise

, Spain, an d Hassan

. ( Hassa n, J., majority).

4 Moreover, t he majority cherry

- picks the po l icies underlying FPERA that s upport the majority ’ s result, ignorin g those that do not. See Tex. Lo c. Gov ’ t Code § 174.002(a) ( noting the pol icy of this state that fir e f ighters are provided c ompensation that is substantially the same as compensation p rev a iling in comparable private s ector employment). Our role i s not t o second

guess the policy choices that inform our statutes or to weigh the effectiveness of their res ult s ; rather, our ta sk is to interpret statutes to effectuate the Legislature ’ s inten t. See McIntyre v. Ram i rez , 109 S.W.3d 741, 748 (Tex. 2003).