Supreme Court of Texas

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No. 21‐0518

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City of Houston, Texas,

Petitioner,

v.

Houston Professional Fire Fighters’ Association, Local 341,

Respondent

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

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~ consolidated with ~

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No. 21-0755

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Houston Police Officers’ Union, et al.,

Petitioners,

v.

Houston Professional Fire Fighters’ Association, IAFF Local 341,

et al.,

Respondents
2

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

═══════════════════════════════════════

Argued November 29, 2022

JUSTICE BLAND delivered the opinion of the Court.

Justice Huddle and Justice Young did not participate in the 

decision.

The Fire and Police Employee Relations Act governs collective 

bargaining between a government employer and its firefighters, should 

the local government adopt it. When the parties cannot reach 

agreement, the Act requires a government employer to compensate 

firefighters based on terms that are “substantially equal” to those in 

comparable private-sector employment.

1

This dispute arises from the City of Houston’s 

collective-bargaining impasse with the Houston Professional Fire 

Fighters’ Association, Local 341. When the parties could not agree to an 

employment contract, the Fire Fighters sued the City for compensation 

under the Act, codified in Local Government Code Chapter 174. In this 

initial suit, the Fire Fighters claimed that the City failed to meet 

Chapter 174’s compensation standards, and they requested that the 

trial court set their compensation for up to one year. The City responded 

to the suit by challenging Chapter 174’s judicial-enforcement provisions, 

claiming that such enforcement violates the Texas Constitution’s 

1 Tex. Loc. Gov’t Code § 174.021(1).
3

separation of powers clause. The City further claimed that it is immune 

from suit.

Meanwhile, the City’s voters approved a proposition to amend the 

City’s charter, known as the “pay‐parity amendment.” The amendment 

would require the City to set firefighter compensation commensurate 

with police officer compensation at similar ranks. Upon the 

amendment’s passage, the Houston Police Officers’ Union sued the Fire 

Fighters, seeking a declaration that Chapter 174’s state-law 

compensation standards and collective-bargaining process preempt the 

pay‐parity amendment, rendering it unenforceable. The City joined in 

the Police Officers’ claim against the Fire Fighters in this second suit.

In the first suit, the trial court rejected the City’s constitutional 

and immunity challenges, and the court of appeals affirmed.2 In the 

second suit, the trial court ruled that Chapter 174 preempts the 

pay‐parity amendment. A divided court of appeals reversed, concluding 

that state law does not preempt the local amendment. In its view, the 

two standards do not conflict because they conceivably might result in 

the same compensation in some instances.3 We granted review in both 

cases.

We hold that Chapter 174 establishes reasonable standards for 

judicial enforcement such that it does not violate the constitutional 

separation of powers. Accordingly, we reject the City’s constitutional 

challenge to judicial enforcement of the statute’s compensation 

2 626 S.W.3d 1, 23 (Tex. App.—Houston [14th Dist.] 2021).

3 651 S.W.3d 41, 54–56 (Tex. App.—Houston [14th Dist.] 2021).
4

standard. We further hold that the Fire Fighters met all prerequisites 

for seeking Chapter 174 enforcement, and thus the statute waives the 

City’s immunity from the Fire Fighters’ lawsuit for Chapter 174 

compensation.

4 Finally, we hold that Chapter 174 preempts the 

pay‐parity amendment. Local law may not supplant Chapter 174’s rule 

of decision by requiring an inconsistent compensation measurement. 

Because the court of appeals held differently, we reverse its judgment in 

the second suit. We affirm its judgment in the initial suit and remand 

the case to the trial court for further proceedings to establish whether 

the City has complied with Chapter 174’s compensation standards and, 

if not, to set appropriate firefighter compensation.

I

A

Resolving these cases requires familiarity with The Fire and 

Police Employee Relations Act in Local Government Code Chapter 174.

Chapter 174 is a comprehensive framework that governs collective 

bargaining for those municipal employers whose voters have adopted it.

Chapter 174 forbids strikes and work stoppages.5 In return, it 

provides a statutory collective-bargaining process and authorizes 

judicial remedies when the parties fail to reach a bargain.6

4 See Tex. Loc. Gov’t Code § 174.008 (“This chapter is binding and 

enforceable against the employing public employer, and sovereign or 

governmental immunity from suit and liability is waived only to the extent 

necessary to enforce this chapter against that employer.”).

5 Id. § 174.202.

6 E.g., id. §§ 174.105, .252.
5

Notably, Chapter 174 does not dictate the terms for any

agreement the parties may choose to make. Under Section 174.022, a 

city and a bargaining unit may agree on compensation and employment 

conditions that they find mutually acceptable.7 A city satisfies 

Chapter 174’s compensation standards by reaching an agreement.8

When the bargaining parties cannot agree, however, Chapter 174 

serves as a backstop. In such a case, Section 174.021 ties compensation 

to comparable jobs in the private sector that require similar skills under 

similar working conditions:

A political subdivision that employs fire fighters, police 

officers, or both, shall provide those employees with 

compensation and other conditions of employment that are:

(1) substantially equal to compensation and other 

conditions of employment that prevail in comparable 

employment in the private sector; and

(2) based on prevailing private sector compensation 

and conditions of employment in the labor market 

area in other jobs that require the same or similar 

skills, ability, and training and may be performed 

under the same or similar conditions.9

For Chapter 174 to govern, local voters must adopt it via an 

adoption election.10 Once adopted, a city must “recognize an association 

7 Id. § 174.022(a) (“A public employer that has reached an agreement 

with an association on compensation or other conditions of employment as 

provided by this chapter is considered to be in compliance with the 

requirements of Section 174.021 as to the conditions of employment for the 

duration of the agreement.”).

8 Id.

9 Id. § 174.021.

10 See id. §§ 174.051–.052.
6

selected by a majority of the fire fighters of the fire department of a 

political subdivision as the exclusive bargaining agent for the fire 

fighters of that department.”11 The firefighters’ bargaining association 

must collectively bargain with the city separately from the police 

officers’ bargaining association unless they voluntarily join together.12

Chapter 174 requires the bargaining parties to meet at 

reasonable times, and to “confer in good faith regarding compensation, 

hours, and other conditions of employment or the negotiation of an 

agreement or a question arising under an agreement.”13 The association 

must provide notice to the city that it requests collective bargaining,14

and bargaining deliberations must be open to the public.15 Chapter 174 

does not require the city to make any concession or agree to any 

proposal.16

Chapter 174’s judicial-enforcement road begins when the parties

arrive at an impasse. “[A]n impasse in the collective bargaining process 

is considered to have occurred if the parties do not settle in writing each 

issue in dispute before the 61st day after the date on which the collective 

bargaining process begins,” unless the parties extend that time by 

written agreement.17 At the point of impasse, either party may request 

11 Id. § 174.101.

12 Id. § 174.103.

13 Id. § 174.105(b).

14 Id. § 174.107.

15 Id. § 174.108.

16 Id. § 174.105(c).

17 Id. § 174.152.
7

to arbitrate unresolved issues once the parties have exhausted “every 

reasonable effort, including mediation,” to settle all issues and the party 

seeking arbitration has provided written notice to the other party.

18

Neither party, however, is required to arbitrate.19

If a bargaining association properly follows the statutory 

prerequisites to request arbitration “and a public employer refuses to 

engage in arbitration,” then “on the application of the association, a 

district court for the judicial district in which a majority of affected 

employees reside may enforce the requirements of Section 174.021 as to 

any unsettled issue relating to compensation or other conditions of 

employment of fire fighters.”20 If the court finds that the public employer 

has failed to comply with Section 174.021’s compensation standard, it 

must:

(1) order the public employer to make the affected 

employees whole as to the employees’ past losses;

(2) declare the compensation or other conditions of 

employment required by Section 174.021 for the period, not 

to exceed one year, as to which the parties are bargaining; 

and

(3) award the association reasonable attorney’s fees.21

Chapter 174 “preempts all contrary local ordinances, executive 

orders, legislation, or rules adopted by . . . [a] home-rule municipality” 

18 Id. § 174.153(a).

19 Id. § 174.163.

20 Id. § 174.252(a).

21 Id. § 174.252(b).
8

like the City of Houston.22 It also waives governmental immunity “to the 

extent necessary to enforce” its provisions against a public employer.23

B

The City of Houston adopted Chapter 174 for firefighter collective 

bargaining in 2003, but the last time the City reached a comprehensive 

agreement with the Houston Professional Fire Fighters’ Association was 

in 2011. That agreement expired in 2017. The City and the Fire Fighters 

unsuccessfully attempted to reach a new agreement. In May 2017, the 

Fire Fighters wrote the City that the parties’ negotiators had reached 

an impasse under Chapter 174’s definition.24 The Fire Fighters 

requested mediation and arbitration. The parties participated in a 

mediation that proved unfruitful, and the City declined to arbitrate.

The Fire Fighters then sued the City, alleging that the City failed 

to meet Chapter 174’s firefighter-compensation standards. The Fire 

Fighters petitioned the trial court to declare their compensation and 

conditions of employment for one year pursuant to Section 174.252.

In its answer, the City denied that it had violated Chapter 174,

and it claimed to be immune from suit. It challenged Chapter 174’s 

judicial-enforcement provisions as unconstitutional under the 

22 Id. § 174.005.

23 Id. § 174.008.

24 See id. § 174.152.
9

nondelegation doctrine derived from the separation of powers clause in 

Article II, Section 1 of the Texas Constitution.25

The City sought summary judgment on its constitutional 

challenge, arguing that Chapter 174 improperly delegates compensation 

decisions to the judiciary without providing reasonable guidance. The 

City further argued that the trial court lacked subject-matter 

jurisdiction over the suit because Chapter 174 does not waive the City’s 

governmental immunity. The Fire Fighters also moved for summary 

judgment, seeking the opposite declarations: that Sections 174.252 and 

174.021 do not violate the Constitution and that Section 174.008 waives 

the City’s immunity.

The trial court rejected the City’s constitutional and immunity 

challenges, and it granted partial summary judgment to the Fire 

Fighters. The City appealed the denial of its jurisdictional plea as of 

25 See Tex. Const. art. II, § 1 (“The powers of the Government of the 

State of Texas shall be divided into three distinct departments, each of which 

shall be confided to a separate body of magistracy . . . and no person, or 

collection of persons, being of one of these departments, shall exercise any 

power properly attached to either of the others, except in the instances herein 

expressly permitted.”); Tex. Const. art. III, § 1 interp. commentary (West 2022) 

(“A settled maxim of constitutional law is that the power conferred upon the 

legislature to make the laws cannot be delegated by that department to any 

other body or authority. The essential legislative functions are by this section 

vested in the legislature and there they must remain.”); City of Pasadena v. 

Smith, 292 S.W.3d 14, 17 (Tex. 2009) (observing that the nondelegation 

doctrine is “the Texas Constitution’s restrictions on the delegation of 

governmental power”); Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) 

(observing that Article II, Section 1 “provides for the separation of powers of 

the three branches of the state government and prohibits any of the three 

departments from exercising any power properly attached to either of the other 

branches. Article II, Section 1 is a direct prohibition of the blending of the 

legislative, executive, and judicial departments.”).
10

right,26 and it sought and received permission to appeal the trial court’s 

rejection of its constitutional challenge.27

The court of appeals affirmed in all respects.28 It concluded that 

Section 174.021’s standards, including the requirement that the City 

provide compensation to the Fire Fighters that is “substantially equal 

to compensation and other work conditions in comparable employment 

in the private sector” provided “sufficient guidance and parameters” for 

a court to apply.29 The court of appeals also rejected the City’s argument 

that it retained its governmental immunity.30

Meanwhile, the City’s voters approved Proposition B, the 

pay-parity charter amendment.31 The amendment seeks to require the 

City to set firefighter compensation commensurate with police officer

compensation “in a manner and amount that is at least equal and 

comparable by rank and seniority with the compensation provided City 

police officers.”32 Upon the amendment’s passage, the Houston Police 

Officers’ Union sued both the City and the Fire Fighters to prevent the 

amendment’s enforcement. Among other claims, the Police Officers 

sought a declaratory judgment that Chapter 174 preempts the 

26 See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

27 626 S.W.3d at 7–8.

28 Id. at 23.

29 Id. at 19–20 (emphases omitted).

30 Id. at 13.

31 See Tex. Loc. Gov’t Code § 9.004 (providing charter-amendment 

election procedures).

32 Hous., Tex., City Charter art. IX, § 24 (2023).
11

pay‐parity amendment. The City agreed with the Police Officers that 

Chapter 174 preempts the pay-parity amendment; thus, the City also 

sought a declaratory judgment against the amendment’s enforcement. 

The Fire Fighters counterclaimed, seeking a declaration that Chapter 

174 does not preempt the pay‐parity amendment.

The trial court granted summary judgment in favor of the City 

and the Police Officers, ruling that Chapter 174, as the governing state 

law, preempts the pay‐parity amendment. The Fire Fighters appealed.

A divided court of appeals reversed.33 In the court of appeals’ 

view, Chapter 174 “does not prohibit the establishment of a 

compensation floor nor does it bar with ‘unmistakable clarity’ the 

consideration of other factors to determine fire fighter compensation.”34

The dissenting justice disagreed that the two standards were 

compatible, observing that Chapter 174 “requires one standard: 

comparable private sector compensation. The pay‐parity amendment

requires another standard: police officers’ compensation.”35

We granted review in both cases.

II

We begin with the City’s constitutional challenge. Article II, 

Section 1 of the Texas Constitution divides the powers of government 

“into three distinct departments,” and prohibits each from exercising 

33 651 S.W.3d at 58.

34 Id. at 54.

35 Id. at 59 (Wise, J., dissenting).
12

“any power properly attached” to a different department.36 The 

Legislature, however, “does not violate the Constitution merely because 

it legislates in broad terms, leaving a certain degree of discretion to 

executive or judicial actors.”37

The City argues that Section 174.252’s judicial-enforcement

provision improperly delegates legislative power to the judiciary by 

permitting courts to set firefighter compensation based on unreasonably 

vague standards.

In evaluating whether a statute is constitutionally infirm, we 

presume at the outset that it is constitutional.38 A party challenging a 

statute as unconstitutional bears a heavy burden to overcome this 

presumption.39 We give statutes a constitutional reading if one is 

feasible.40

A

The City first contends that Chapter 174 is constitutionally 

infirm because it requires courts to establish compensation rather than 

36 Tex. Const. art. II, § 1; see Gen. Servs. Comm’n v. Little-Tex Insulation 

Co., 39 S.W.3d 591, 600 (Tex. 2001) (“The separation of powers doctrine 

prohibits one branch of government from exercising a power inherently 

belonging to another branch.”).

37 Touby v. United States, 500 U.S. 160, 165 (1991). “[T]he general 

principles of constitutional law, as declared by . . . the Supreme Court of the 

United States, on the subject of delegation of legislative power, are applicable 

and may be examined in determining the meaning of our own constitutional 

provisions.” Trimmier v. Carlton, 296 S.W. 1070, 1079 (Tex. 1927).

38 EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 754 (Tex. 2020).

39 Id.

40 Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011).
13

simply to adjudicate a dispute about compensation under established 

rules. In the City’s view, establishing compensation in the first instance 

is not a judicial task. Thus, it argues, Chapter 174’s foundation is an 

abdication of legislative authority.

Under Chapter 174, however, the Legislature has provided a 

standard against which to judge the City’s existing firefighter 

compensation: comparable private-sector employment. Contrary to the 

City’s position, the role of establishing compensation under this 

standard in the first instance lies with the City. Before a court may 

adjudicate a compensation claim under Chapter 174, it must first find 

that the City’s existing compensation framework fails to mirror 

comparable private-sector standards for the issues in dispute.41 If the 

trial court finds that a public employer has not complied with Section

174.021’s private-sector pay standards, and further that the parties 

have not reached a collective bargaining agreement or agreed to submit 

the dispute to arbitration, then the court shall “declare the 

compensation or other conditions of employment required by Section 

174.021 for the period, not to exceed one year, as to which the parties 

are bargaining.”42

In framing its constitutional challenge, the City ignores that 

Section 174.252 requires a court to evaluate the City’s existing 

compensation structure to determine whether the City has complied 

with the statutory standard. A court does not declare compensation 

41 Tex. Loc. Gov’t Code § 174.252(b) (“If the court finds that the public 

employer has violated Section 174.021, the court shall [enforce remedies].”).

42 Id. § 174.252(b)(2).
14

unless the City’s existing compensation falls short of the statutory 

standard.43 Because the statute provides a legislatively defined 

standard by which to assess the City’s compensation structure and links 

judicial enforcement of that standard to an evaluation of the City’s 

existing compensation, we reject the City’s view that the 

judicial-enforcement mechanism requires the judiciary to establish 

compensation in the first instance.

B

The City next contends that the compensation standards in 

Sections 174.021 and 174.252 are so vague as to render their judicial 

application unconstitutional. The Fire Fighters respond that the 

statutes provide workable compensation standards and fair notice of 

those standards to the City.

Litigants frequently invoke the nondelegation doctrine in the 

administrative rulemaking context to challenge an agency’s power to 

implement a particular regulation. Rarer are constitutional challenges 

to the judiciary’s competence to enforce a statute. One court of appeals

has observed that the nondelegation doctrine may call for a distinct 

analysis when applied to the judiciary as opposed to an administrative 

agency,44 but no party contends that we should apply different 

standards in this case. Accordingly, we assume that the standards 

43 Id. § 174.252(a)–(b).

44 Tex. Bldg. Owners & Managers Ass’n v. Pub. Util. Comm’n of Tex., 

110 S.W.3d 524, 535 n.10 (Tex. App.—Austin 2003, pet. denied).
15

governing analysis of the nondelegation doctrine in the administrative 

context may inform such an analysis in the judicial context.

When delegating authority, the Legislature must provide 

standards that are “reasonably clear and hence acceptable as a standard 

of measurement.”45 The Legislature need not, however, detail every rule 

for implementing that authority.46 Because declaring a state law 

unconstitutional nullifies the Legislature’s choices, courts find 

constitutional infirmity under the nondelegation doctrine “sparingly, 

when there is, in Justice Cardozo’s memorable phrase, ‘delegation 

running riot.’”47

Accordingly, our Court has “upheld standards which are quite 

broad.”48 For example, a delegation of authority to the Railroad 

Commission to “prevent waste and promote conservation” did not violate 

the separation of powers clause.

49 While we approved this delegation in 

the administrative rulemaking context, the principle holds in the 

adjudicatory context that broad standards may be appropriate when the 

Legislature cannot conveniently investigate that which it seeks to 

45 Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 741 (Tex. 1995) 

(quoting Jordan v. State Bd. of Ins., 334 S.W.2d 278, 280 (Tex. 1960)).

46 Id.

47 Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 

475 (Tex. 1997) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 

U.S. 495, 553 (1935) (Cardozo, J., concurring)).

48 R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex. 

1992) (quoting State ex rel. Grimes Cnty. Taxpayers Ass’n v. Tex. Mun. Power 

Agency, 565 S.W.2d 258, 273 (Tex. App.—Houston [1st Dist.] 1978, writ 

dism’d)).

49 Id.
16

regulate,50 or “cannot itself practically and efficiently exercise” its power 

to prescribe the details.51

Our Court rejected a challenge similar to the City’s in Key Western 

Life Insurance Co. v. State Board of Insurance.

52 In that case, the 

Commissioner of Insurance exercised his authority to disapprove of a 

proposed insurance policy under a statute permitting the Commissioner 

to do so if the proposed policy “contains provisions which encourage 

misrepresentation or are unjust, unfair, inequitable, misleading, 

deceptive or contrary to law or to the public policy of this state.”53 Like 

the City in this case, the insurer in Key Western contended that the 

operative statutory provision was “so vague and grants such sweeping 

powers, unbridled by any standard or guides, that it results in an 

unconstitutional delegation of authority.”54 Our Court rejected that 

argument, observing that the United States Supreme Court had upheld 

similarly amorphous standards against separation of powers 

challenges.55

50 Id.

51 Trimmier, 296 S.W. at 1079 (upholding delegation of authority to set 

railroad rates).

52 350 S.W.2d 839 (Tex. 1961).

53 Id. at 841 & n.1 (quoting Act of May 13, 1957, 55th Leg., R.S., ch. 501,

sec. 1, 1957 Tex. Gen. Laws 1463, 1464 (repealed 2003)).

54 Id. at 844.

55 Id. at 845 (collecting such standards, including “‘just and reasonable,’ 

‘public interest,’ ‘unreasonable obstruction to navigation,’ ‘reciprocally unequal 

and unreasonable,’ ‘public convenience, interest, or necessity,’ ‘tea of inferior 

quality,’ ‘unfair methods of competition,’ ‘reasonable variations,’ ‘unduly or 

unnecessarily complicate the structure’ of a holding company system or 
17

Chapter 174 is no stranger to constitutional challenges based on 

the nondelegation doctrine, with two courts of appeals reaching opposite 

conclusions. In City of Port Arthur v. International Ass’n of Fire Fighters, 

Local 397, on which the Fire Fighters rely, the court of appeals held that 

Chapter 174’s substantially identical predecessor statute did not run 

afoul of separation of powers principles.56 The court reasoned that an 

aggrieved bargaining unit must show that its public employer’s existing 

compensation framework failed to comply with the requirement for 

conditions of employment to be substantially equal to those in the 

private sector before a court can order compensation under the judicialenforcement provision.57 In its view, permitting “the court to apply

whatever facts and figures were supplied by the evidence” to determine 

compensation “is unquestionably a judicial function.”58

In contrast, the City relies on International Ass’n of Firefighters,

Local Union No. 2390 v. City of Kingsville, which held the same 

predecessor statute unconstitutional under the nondelegation 

doctrine.59 The court of appeals in that case viewed the judicial award of 

compensation under the statute as reflecting “a policy determination 

‘unfairly or inequitably distribute voting power among security holders’”

(quoting Jordan, 334 S.W.2d at 281)).

56 807 S.W.2d 894 (Tex. App.—Beaumont 1991, writ denied).

57 Id. at 898; accord Tex. Loc. Gov’t Code § 174.252(b).

58 Port Arthur, 807 S.W.2d at 898.

59 568 S.W.2d 391 (Tex. App.—Corpus Christi–Edinburg 1978, writ ref’d 

n.r.e.).
18

which is legislative in nature.”60 The City emphasizes the reasoning in 

Kingsville, arguing that Chapter 174’s standards are “too subjective to 

prevent arbitrary and unequal application.”61

The court of appeals’ reasoning in Port Arthur is more persuasive. 

Chapter 174 does not impermissibly delegate legislative power to the 

judiciary. Instead, it is the “legislative creation of a cause of action 

against employers whose offers violate” the statutory standard for 

compensation.62 As the court of appeals in Port Arthur observed, 

Section 174.021 expresses the Legislature’s policy judgment that 

firefighters’ employment conditions should mirror the private sector. 

Enforcing that standard in a given case does not impermissibly entangle 

the judiciary in legislative functions.

We have held that permissible delegations need not furnish every 

detail.63 Section 174.021 provides more than a few comparators, 

including that:

• the compensation must be “substantially equal to compensation 

and other conditions of employment”

• “that prevail in comparable employment in the private sector”

• “based on prevailing private sector compensation and conditions 

of employment”

60 Id. at 395.

61 Id.

62 Port Arthur, 807 S.W.2d at 898.

63 Lone Star Gas Co., 844 S.W.2d at 689 (“Requiring the legislature to 

include every detail and anticipate unforeseen circumstances in the statutes 

which delegate authority to the Commission would defeat the purpose of 

delegating legislative authority.”).
19

• “in the labor market area in other jobs”, and

• “that require the same or similar skills, ability, and training and

may be performed under the same or similar conditions.”64

Each emphasized term reflects the Legislature’s selection of detailed 

comparative standards to account for circumstances affecting 

compensation and any adjustments for differences in them. Although 

subject to interpretation on the particulars, these standards are not so 

capacious as to authorize a court to decide for itself the conditions of 

firefighter employment.

Rather, the standards provide reasonable guidance to a court 

evaluating evidence that the parties may adduce in support of their 

competing compensation structures. These standards are less subjective 

than others that our Court has enforced over the decades, like the 

statutory authority to determine whether an insurance policy 

“encourages misrepresentation,”65 whether an insurer’s directors or 

officers are “not worthy of the public confidence,”66 or whether a pipeline 

company is engaged in the “discriminatory production and taking of 

natural gas.”67 Section 174.021’s directive that firefighter wages be set 

to comparable private-sector employment, together with other 

comparators, provides reasonable guidance to courts tasked with 

evaluating whether the City’s current compensation meets the statute’s 

standards.

64 Tex. Loc. Gov’t Code § 174.021 (emphases added).

65 Key W. Life Ins. Co., 350 S.W.2d at 845.

66 Jordan, 334 S.W.2d at 280.

67 Lone Star Gas Co., 844 S.W.2d at 690.
20

The courts also routinely enforce compensation standards. 

Section 174.021’s statutory standards are similar to the kind that courts 

regularly apply in employment disputes, for example. To prevail in an 

employment-discrimination case, plaintiffs must show that “they were 

treated less favorably than similarly situated members” outside the 

protected class.68 In those cases, courts use comparators like those found 

in Chapter 174 to determine whether another employee is “similarly 

situated.” In that context, we have held that “[e]mployees are similarly 

situated if their circumstances are comparable in all material respects, 

including similar standards, supervisors, and conduct,” though their 

circumstances need not be identical.69 And to prove discrimination based 

on disparate employee discipline, the employees’ misconduct must 

reflect “comparable seriousness.”70 In short, employment law commonly 

calls on courts to analyze whether a plaintiff’s compensation or 

conditions of employment are substantially equivalent to another who 

68 Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); 

see Tex. Lab. Code § 21.051 (“An employer commits an unlawful employment 

practice if because of race, color, disability, religion, sex, national origin, or age 

the employer: (1) fails or refuses to hire an individual, discharges an 

individual, or discriminates in any other manner against an individual in 

connection with compensation or the terms, conditions, or privileges of 

employment[.]”).

69 Office of Att’y Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex. 

2020); see Palasota v. Haggar Clothing Co., 499 F.3d 474, 486 (5th Cir. 2007) 

(further defining and analyzing “substantially equivalent” employment).

70 Monarrez, 177 S.W.3d at 917 (quoting McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 804 (1973)).
21

is similarly situated. Section 174.021’s standards are based on well

understood employment comparisons.71

Accordingly, we reject the City’s constitutional challenge to 

Chapter 174’s judicial-enforcement provisions.

III

The City next contends that it is immune from a suit for judicial 

enforcement. Chapter 174 waives governmental immunity “to the extent 

necessary to enforce this chapter” against the public employer.72

Governmental immunity defeats a trial court’s subject-matter 

jurisdiction over a lawsuit; we review whether it applies as a question of 

law.73

The City asserts that the Fire Fighters failed to bargain in good 

faith because they did not propose particular private-sector standards 

during collective bargaining.74 Section 174.105, however, does not 

71 We acknowledge the possibility that, in any given bargaining 

impasse, Chapter 174’s standards may prove infeasible because the parties fail 

to adduce evidence of comparable terms of employment. We express no view on 

the proper outcome under such circumstances. We merely hold that 

Chapter 174, on its face, contains sufficiently detailed standards to guide 

courts in the performance of their judicial functions. On remand, the Fire 

Fighters should have the opportunity to adduce “substantially equal” 

comparator evidence.

72 Tex. Loc. Gov’t Code § 174.008.

73 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 

(Tex. 2004).

74 See Tex. Loc. Gov’t Code § 174.252(a) (providing preconditions before 

a court “may enforce” the Act).
22

require the Fire Fighters to make such proposals. It instead requires the 

parties to:

(1) meet at reasonable times;

(2) confer in good faith regarding compensation, hours, and 

other conditions of employment or the negotiation of an 

agreement or a question arising under an agreement; and

(3) execute a written contract incorporating any agreement 

reached, if either party requests a written contract.75

Unlike the compensation standards that the statute requires a court to 

apply, the good faith provision does not require either party to negotiate 

based on a particular standard or agree to particular terms. Rather, the 

statute expressly recognizes that neither side must agree to a particular 

employment condition.76 The City’s argument about the required 

content of a negotiation lacks statutory support.

Further, Section 174.022 provides that a public employer is 

“considered to be in compliance with the requirements of Section

174.021,” if the bargaining parties reach an agreement, regardless of the 

particular provisions of that agreement.77 A collective-bargaining 

agreement need not incorporate private-sector standards to comply with 

Chapter 174.78

75 Id. § 174.105(b).

76 Id. § 174.105(c).

77 Id. § 174.022(a).

78 See id.; see also id. § 174.105(b) (“[T]he duty to bargain collectively 

means a public employer and an association shall . . . execute a written 

contract incorporating any agreement reached, if either party requests a 

written contract.” (emphasis added)).
23

Instead, once the parties reach an impasse, Chapter 174’s 

judicial-enforcement provision is triggered when two conditions are met: 

(1) the collective-bargaining association requests arbitration, listing the 

issues in dispute; and (2) the public employer refuses to engage in 

arbitration.79

The Fire Fighters met these prerequisites to judicial enforcement. 

They bargained with the City between March 14, 2017, and May 14, 

2017, a period of sixty-one days.80 On May 15, they wrote to the City to 

designate the unsettled issues and request arbitration. The City refused 

to arbitrate but acceded to mediation. The parties proceeded to an 

unsuccessful mediation. Only then did the Fire Fighters file suit.

We hold that the Fire Fighters satisfied Chapter 174’s 

prerequisites to seeking judicial enforcement. Accordingly, the City’s 

governmental immunity is waived for this suit.81

79 Id. § 174.252(a).

80 See id. § 174.152(a) (defining a bargaining impasse).

81 See id. § 174.008 (“[Chapter 174] is binding and enforceable against 

the employing public employer, and sovereign or governmental immunity from 

suit and liability is waived only to the extent necessary to enforce this chapter 

against that employer.”).
24

IV

Finally, we address whether Chapter 174 preempts enforcement 

of the later-adopted local pay‐parity amendment.

Whether a state statute preempts a local regulation is a legal 

question that a court reviews de novo.82 In the case of a home-rule city, 

the Legislature must demonstrate its intent to preempt local law “with 

unmistakable clarity.”83 If the statute makes that legislative intent 

clear, then a local ordinance “is unenforceable to the extent it conflicts 

with the state statute.”84 The party seeking to avoid enforcement of a 

local law bears the burden of establishing that state law preempts it.85

Chapter 174 contains an express preemption provision, satisfying 

the City’s burden to show the legislative intent to preempt local law with 

unmistakable clarity. Section 174.005 provides that the chapter 

“preempts all contrary” local ordinances or rules adopted by “a political 

subdivision or agent of the state, including a . . . home-rule

municipality.”86 Further, the Texas Constitution provides that “no 

charter or any ordinance passed under said charter shall contain any 

82 See BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 

2016).

83 Dall. Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 

489, 491 (Tex. 1993).

84 Id.

85 Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 84 & n.30 (Tex. 2009).

86 Tex. Loc. Gov’t Code § 174.005.
25

provision inconsistent with the Constitution of the State, or of the 

general laws enacted by the Legislature of this State.”87

We turn to whether Section 174.021’s compensation standard is 

inconsistent with the pay‐parity amendment. For three reasons, we 

conclude that it is.88

First, Section 174.002(a) expresses an overarching state policy 

with respect to collective-bargaining compensation: “The policy of this 

state is that a political subdivision shall provide its fire fighters . . . with 

compensation and other conditions of employment that are substantially 

the same as compensation and conditions of employment prevailing in 

comparable private sector employment.” By providing a different 

compensation measure than comparable private-sector pay, the 

pay-parity amendment is inconsistent with Chapter 174’s expressed 

policy for setting compensation according to private-sector employment 

standards.

Second, Section 174.103 provides that fire and police departments 

must bargain independently with their public employer unless they 

voluntarily join together.89 The pay‐parity amendment, however, 

requires the City to pay firefighters “the same base pay as persons of 

87 Tex. Const. art. XI, § 5(a).

88 Given our disposition, we have no occasion to reach and express no

view on whether the City’s pay‐parity amendment is void because it fails to 

comply with Section 141.034 of the Local Government Code.

89 Tex. Loc. Gov’t Code § 174.103(a) (“Except [when they voluntarily 

join], the fire and police departments of a political subdivision are separate 

collective bargaining units under this chapter.”).
26

like seniority” as certain police officer classifications.90 Given the 

required parallel compensation, the police officers’ bargaining unit will 

effectively—and not necessarily voluntarily—represent the Fire 

Fighters at the bargaining table. As the Police Officers observe, the 

pay‐parity amendment in practice forces the two associations to join in 

bargaining for compensation terms, despite Section 174.103’s 

prohibition of this arrangement in the absence of their consent.

Third, Section 174.021 provides a specific compensation standard 

for claims for judicial enforcement which conflicts with the pay‐parity 

amendment. The two rules of decision provide different measurements, 

using different inputs.91

Section 174.021 measures firefighter compensation according to 

comparable private-sector pay and conditions of employment. The 

pay‐parity amendment requires that certain firefighter classifications 

“receive the same base pay as persons of like seniority” employed as 

police officers, regardless of comparable private-sector pay.92

The two rules of decision cannot be reconciled.93 If comparable 

private-sector compensation is less than police officer compensation, 

90 Hous., Tex., City Charter art. IX, § 24 (2023).

91 Compare Tex. Loc. Gov’t Code § 174.021(1) (requiring a city to pay 

compensation to firefighters that is “substantially equal to compensation . . . 

that prevail[s] in comparable employment in the private sector”), with Hous., 

Tex., City Charter art. IX, § 24 (2023) (establishing equivalent ranks between 

firefighters and police officers that “shall receive the same base pay”).

92 Hous., Tex., City Charter art. IX, § 24 (2023).

93 See City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 593–94 

(Tex. 2018) (“The [preemption] issue is whether the Ordinance falls within the 
27

then the pay‐parity amendment contravenes Chapter 174 by mandating 

that the City pay its firefighters more than the statute prescribes.

Chapter 174 establishes compensation for judicial-enforcement

purposes solely by reference to private-sector employment, not any 

other.94

The court of appeals determined that the two measurements 

might converge for a particular employee on occasion.95 We reject the 

notion, however, that a hypothetical convergence of two different 

measurements saves a local regulation from preemption when it 

otherwise requires courts to apply incompatible rules of decision.

Two cases inform this outcome. In BCCA Appeal Group, Inc. v. 

City of Houston, our Court considered whether the Texas Clean Air Act 

preempted the City of Houston’s air-quality ordinance.96 The state law 

provided air-quality standards and empowered the Texas Commission 

Act’s ambit. To decide that, we look, as usual, to the statutory text and the 

ordinary meanings of its words.” (footnote omitted)).

94 See City of San Antonio v. Int’l Ass’n of Fire Fighters, Local 624, 539 

S.W.2d 931, 935 (Tex. App.—El Paso 1976, no writ) (“The Act specifically 

provides that the standard by which firemen’s wages are to be determined is 

by reference to private sector employment. Thus, it excludes the wages paid in 

public sector employment, including other City employees.”).

95 651 S.W.3d at 54 (“[D]epending on the context of their application, 

section 174.021 and the pay-parity amendment can both apply to determine 

fire fighters’ compensation.”).

96 496 S.W.3d 1 (Tex. 2016).
28

on Environmental Quality to enforce them.97 Like Chapter 174, the 

Clean Air Act preempts inconsistent ordinances.98

In BCCA, the City sought to avoid preemption and to enforce its 

locally enacted air-quality regulatory regime.99 Our Court held that the

Clean Air Act preempted the local ordinance because the local 

“enforcement provisions authorize the City to enforce the state’s 

air-quality standards in a manner that is inconsistent with the statutory 

enforcement provisions.”100 We rejected the argument that hypothetical 

convergence of the two enforcement regimes saved the ordinance from 

preemption. That the City might choose to enforce its ordinance “in a 

way that does not violate the statutory requirements,”101 did not mean 

that the ordinance was consistent with state law. As a result, we 

declined to “invalidate the enforcement provisions of the Ordinance only 

‘to the extent’ that they will be inconsistent.”102 Local regulations that 

authorize enforcement based on standards that are inconsistent with a 

statutory standard are not saved from preemption merely because some 

applications produce consistent results.

The Court of Criminal Appeals reached a similar conclusion in a 

case analyzing whether a statute governing motorist speed preempted a 

97 Id. at 9–10.

98 Tex. Health & Safety Code § 382.113(a).

99 BCCA Appeal Grp., 496 S.W.3d at 5.

100 Id. at 16 (emphasis added).

101 Id. at 17.

102 Id. at 18.
29

city’s speed ordinance.103 The statute prohibited motorists from driving 

faster than “reasonable and prudent” under the circumstances.104 In 

holding the local ordinance preempted, the court concluded that a local 

ordinance was unenforceable because “contrary to the statute, [it] set a 

rigid speed limit of 30 miles per hour (unless otherwise posted).”105 This 

was the result even though a “reasonable and prudent” speed frequently 

may have been thirty miles per hour on a given street. 

Local regulations are preempted when they prescribe a governing 

rule that is inconsistent with a state statute’s standards, even if 

enforcement of the local law might hypothetically result in the same 

outcome as enforcement of the statute. A court enforcing Chapter 174

may happen to reach a result consistent with the pay-parity 

amendment. In such cases, no inconsistency exists.106 The pay-parity 

amendment, however, never functions as the governing rule of decision

in such an instance because it can never force a result different from 

that which Chapter 174 compels.107 Local regulations are not “ancillary 

103 Abrams v. State, 563 S.W.2d 610 (Tex. Crim. App. [Panel Op.] 1978).

104 Id. at 615.

105 Id.

106 See Laredo Merchs. Ass’n, 550 S.W.3d at 593 (“[I]f the general law 

and local regulation can coexist peacefully without stepping on each other’s

toes, both will be given effect or the latter will be invalid only to the extent of 

any inconsistency.”).

107 In other words, the Act and the pay‐parity amendment cannot 

“coexist peacefully without stepping on each other’s toes.” Id.
30

to and in harmony with” state statutes when they prescribe a different 

rule of decision that coincidentally converges with the statutory rule.108

* * *

We hold that Chapter 174’s judicial-enforcement provision does 

not violate the Texas Constitution’s separation of powers clause. We 

further hold that Chapter 174 waives the City’s immunity from the Fire 

Fighters’ suit for judicial enforcement. We therefore affirm the judgment 

of the court of appeals in favor of the Fire Fighters in appellate cause 

numbers 14‐18‐00976‐CV and 14‐18‐00990‐CV. We remand that case to 

the trial court for further proceedings on the Fire Fighters’ claim for 

judicial enforcement under Chapter 174’s compensation standards.

We further hold that Chapter 174 establishes the standard for 

judicial enforcement of firefighter compensation to the exclusion of local 

law, including the pay‐parity amendment. Accordingly, we reverse the

judgment of the court of appeals in appellate cause 

number 14‐19‐00427‐CV and render judgment in favor of the City of

Houston and the Houston Police Officers’ Union.

Jane N. Bland

Justice

OPINION DELIVERED: March 31, 2023

108 City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).