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City of Houston v. Williams (Tex. 2011)(per curiam)
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Argued October 13, 2010.
Opinion delivered: March 18, 2011.
Justice GUZMAN delivered the opinion of the Court.
Section 271.152 of the Local Government Code, under certain circumstances, waives governmental immunity for suits alleging
breach of a written contract. For a second time on interlocutory appeal, we review the City of Houston's plea to the jurisdiction in a
suit by 540 former Houston Firefighters.[1] The Firefighters allege wrongful underpayment of lump sums due upon termination of
their employment, but the City claims the Firefighters' suit is barred by governmental immunity. At issue is whether the City's
immunity from suit is waived by section 271.152. The Firefighters point to three distinct writings they assert constitute qualifying
written contracts under that section: (1) certain City of Houston Ordinances, (2) Chapter 143 of the Local Government Code, and (3)
two Meet and Confer Agreements (MCAs) and a Collective Bargaining Agreement (CBA) (collectively, the Agreements) negotiated
by the Houston Professional Fire Fighters Association (the Union) on behalf of the Firefighters with the City.
We hold the Ordinances and Agreements constitute written contracts within the scope of section 271.152. But we conclude that
Chapter 143, standing alone, does not establish a contract between the City and the Firefighters, and as such does not fall within
the scope of section 271.152's waiver of immunity. Accordingly, we affirm the court of appeals' judgment in part, reverse in part,
and remand the case to the trial court for further proceedings consistent with this opinion.
I. Background
The Firefighters assert two claims against the City, both based on alleged underpayment of lump sums owed to them when their
employment with the City terminated. The first is the "debit dock" claim, alleging that previously paid overtime amounts were
improperly deducted from the termination payment. The second is the "termination pay" claim, alleging the improper exclusion of
premium pay from calculation of the termination payment. Both claims are ably described in the original court of appeals opinion,
and we do not restate the details here. See City of Houston v. Williams, 183 S.W.3d 409, 417-18 (Tex. App.-Houston [14th Dist.]
2005), rev'd, 216 S.W.3d 827 (Tex. 2007).
This case first came before us after the trial court granted a partial judgment in 2004, denying the City's plea to the jurisdiction and
upholding the Firefighters' claims. The court of appeals affirmed that ruling, holding that governmental immunity had been waived
because (1) the Firefighters were seeking a declaratory judgment, and (2) the "sue and be sued" language in the City's Charter,
and the "plead and be impleaded" language of Local Government Code section 51.075, effectuated a waiver of governmental
immunity. See id. at 426. On petition to this Court, we reversed on both grounds. As to the first, we held that because the only
conceivable remedy for the Firefighters was money damages, the Firefighters "`cannot circumvent the State's sovereign immunity
from suit by characterizing a suit for money damages . . . as a declaratory-judgment claim.'" City of Houston v. Williams (Williams I),
216 S.W.3d 827, 829 (Tex. 2007) (quoting Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002)). As
to the second ground, we held, applying our then-recent ruling in Tooke v. City of Mexia, that immunity was not waived by the
Charter and statutory language empowering the City to "sue and be sued"[2] or "plead and be impleaded." Id. at 828-29 (citing
Tooke v. City of Mexia, 197 S.W.3d 325, 346-47 (Tex. 2006)).
However, in the interim between the trial court's partial judgment and our initial review of this case, the Legislature retroactively
waived governmental immunity for certain contract claims by enacting Subchapter I, Local Government Code Chapter 271,
particularly section 271.152. See Act of May 23, 2005, 79th Leg., R.S., ch. 604, §§ 1-3, 2005 Tex. Gen. Laws 1548, 1548-49
(codified at TEX. LOC. GOV'T CODE §§ 271.151-.160); Tooke, 197 S.W.3d at 344-45. As a result, numerous pending suits against
governmental units that had rested on "sue and be sued" assertions of waiver were reversed and remanded to the trial courts for
consideration of whether immunity was waived under section 271.152. See, e.g., City of Midland v. Goerlitz, 201 S.W.3d 689, 690
(Tex. 2006) (per curiam); City of Houston v. Jones, 197 S.W.3d 391, 392 (Tex. 2006) (per curiam); City of Houston v. Clear Channel
Outdoor, Inc., 197 S.W.3d 386, 386-87 (Tex. 2006) (per curiam). This case was one such suit. Williams I, 216 S.W.3d at 828-29.
Accordingly, on remand to the trial court, the Firefighters argued that certain City of Houston Ordinances constituted a written
contract for which immunity was waived under section 271.152. Both the trial court and court of appeals agreed, determining again
that the City's immunity had been waived. 290 S.W.3d 260, 262. The Firefighters also argued that Local Government Code Chapter
143, the two MCAs from 1995 and 1997, and the 2005 CBA, all likewise constituted written contracts within the scope of section
271.152's waiver of immunity. The court of appeals disagreed as to these points, holding Chapter 143 was not executed on behalf
of the City, and the Firefighters as individuals lacked standing to enforce the Agreements. 290 S.W.3d at 265-67, 271. We now
review those determinations.
II. Jurisdiction
Interlocutory appeals such as this are generally final in the court of appeals. TEX. GOV'T CODE § 22.225(b)(3). However, there are
exceptions, and, as relevant here, we may review an interlocutory appeal when the intermediate court's decision conflicts with a
prior decision of another court of appeals, or of this Court. Id. §§ 22.001(a)(2), 22.225(c). The standard governing whether two
decisions conflict for purposes of interlocutory jurisdiction was broadened by the Legislature in 2003.[3] Stephen F. Austin State
Univ. v. Flynn, 228 S.W.3d 653, 656 n.3 (Tex. 2007). Before 2003, two decisions conflicted "when the two are so similar that the
decision in one is necessarily conclusive of the decision in the other." Id. at 656. The current, broader standard grants this Court
conflicts jurisdiction when there is "inconsistency in [courts of appeals'] respective decisions that should be clarified to remove
unnecessary uncertainty in the law and unfairness to litigants." TEX. GOV'T CODE § 22.225(e).
The parties dispute which standard should apply to this case,[4] but we need not decide which governs, because jurisdiction
would lie under either standard. The court of appeals in this case held certain City of Houston ordinances "constitute a contract."
290 S.W.3d at 270. In direct conflict with that holding, the First Court of Appeals has held that "ordinances alone . . . cannot form a
contract . . . . The record must evidence a contract in writing between the plaintiffs and the city into which the ordinances can be
read." Overton v. City of Houston, 564 S.W.2d 400, 403-04 (Tex. Civ. App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.). Here, the two
decisions would be conclusive of each other, thus conferring jurisdiction under the old standard, and the inconsistency between
the two should be clarified in order to prevent uncertainty and unfairness, thus establishing jurisdiction under the current rule.
Thus, we conclude this Court has jurisdiction over this interlocutory appeal under Government Code sections 22.001(a)(2) and
22.225(c).
III. Discussion
A. Standard of Review
Immunity from suit deprives a trial court of jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999) (per
curiam). Accordingly, a governmental entity properly asserts immunity in a plea to the jurisdiction. Tex. Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a trial court possesses jurisdiction is a question of law we review de novo.
IT-Davy, 74 S.W.3d at 855. Hence, we review de novo the central issue in this case: whether the City's governmental immunity
deprives the trial court of jurisdiction.
B. Governmental Immunity
When performing governmental functions, political subdivisions derive governmental immunity from the state's sovereign
immunity.[5] See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). Under the common-law doctrine of sovereign
immunity, the sovereign cannot be sued without its consent. Tooke, 197 S.W.3d at 331. Although this rule was originally justified by
the fiction that "the king can do no wrong," id. (citing 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 254
(1768)), in modern times its "purpose is pragmatic: to shield the public from the costs and consequences of improvident actions
of their governments," id. at 332.
Sovereign immunity has two components: immunity from suit, and immunity from liability.[6] Gen. Servs. Comm'n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). First, the state retains immunity from suit unless it has been expressly waived by
the Legislature. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (superseded by statute on other grounds). Like
sovereign immunity, governmental immunity can be waived, but we defer to the Legislature to do so by statute. City of Galveston,
217 S.W.3d at 469. The Legislature has mandated that a statute shall not be construed as waiving immunity absent "clear and
unambiguous language." TEX. GOV'T CODE § 311.034; Tooke, 197 S.W.3d at 328-29.
Second, immunity from liability shields the state from money judgments even when the Legislature has given consent to sue. Little-
Tex, 39 S.W.3d at 594. Nevertheless, immunity from liability is waived when the state contracts with a private party. Id. Because
immunity from liability constitutes an affirmative defense, not a jurisdictional bar, only immunity from suit is properly before us
today. See Miranda, 133 S.W.3d at 224.
C. Local Government Code Section 271.152's Waiver of Governmental Immunity
Local Government Code section 271.152 waives qualifying local governmental entities' immunity from suit for certain breach of
contract claims, providing:
A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract
subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract,
subject to the terms and conditions of this subchapter.
TEX. LOC. GOV'T CODE § 271.152. According to its plain terms, the statute by clear and unambiguous language waives a
governmental entity's immunity from suit for breach of written contract. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.
Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex. 2006).
For section 271.152's waiver of immunity to apply, three elements must be established: (1) the party against whom the waiver is
asserted must be a "local governmental entity" as defined by section 271.151(3), (2) the entity must be authorized by statute or the
Constitution to enter into contracts, and (3) the entity must in fact have entered into a contract that is "subject to this subchapter," as
defined by section 271.151(2). Tex. Loc. Gov't Code §§ 271.151-.152. A "contract subject to this subchapter" is defined as "a written
contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is
properly executed on behalf of the local governmental entity." Id. § 271.151(2).
The first and second elements are present as to each of the Firefighters' claims. Regarding the first, the waiver of immunity in
section 271.152 applies to "local governmental entities," which include municipalities, public school and junior college districts,
and various special-purpose districts and authorities. Id. § 271.151(3). The City is incorporated as a home-rule city—a type of
municipality—see id. §§ 1.005, 5.004; Act of Mar. 18, 1905, 29th Leg., R.S., ch. 17, 1905 Tex. Spec. Laws 131 (granting Houston's
present Charter), and thus is a "local governmental entity" for whom immunity is waived for certain contract suits under section
271.152. Concerning the second element, because the City is a chartered home-rule city, it meets section 271.152's requirement
that it be "authorized by statute or the constitution to enter into a contract." See Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)
(noting that home-rule cities possess all powers of the state not inconsistent with "the Constitution, the general laws, or the city's
charter," except where limited by statute). Indeed, the City's Charter specifically authorizes it to "contract and be contracted with."
HOUSTON, TEX., CHARTER art. II, § 1.
The third element presents a more difficult inquiry; that is, whether the City has entered into a "contract subject to this subchapter."
Section 271.151(2) effectively states five elements a contract must meet in order for it to be a contract subject to section 271.152's
waiver of immunity: (1) the contract must be in writing, (2) state the essential terms of the agreement, (3) provide for goods or
services, (4) to the local governmental entity, and (5) be executed on behalf of the local governmental entity. TEX. LOC. GOV'T
CODE § 271.151(2). To answer that inquiry, we turn to the three separate writings the Firefighters contend are contracts under
sections 271.151(2) and 271.152: (1) certain City Ordinances, (2) Local Government Code Chapter 143, and (3) the Agreements.
D. Certain City Ordinances as Contract for Purposes of Local Government Code Section 271.152's Waiver of Governmental
Immunity
The Firefighters assert that, when read together, certain sections of Chapter 34 of the Houston Code of Ordinances constitute a
unilateral employment contract between the City and the Firefighters.[7] The City disagrees, arguing that the Legislature did not
intend for section 271.152's waiver of immunity for certain breach of contract claims to apply to municipal ordinances. Our inquiry
thus centers on whether these Ordinances, in aggregate, constitute a unilateral employment contract between the City and the
Firefighters so as to waive the City's immunity from suit under Local Government Code section 271.152. To resolve this dispute,
we first examine the law of unilateral contracts before applying the requirements of section 271.151(2) to the Ordinances.
1. Law of Unilateral Contracts
Unlike a bilateral contract, in which both parties make mutual promises, Hutchings v. Slemons, 174 S.W.2d 487, 489 (Tex. 1943),
a unilateral contract is created when a promisor promises a benefit if a promisee performs, Vanegas v. Am. Energy Servs., 302 S.
W.3d 299, 303 (Tex. 2009). The requirement of mutuality is not met by an exchange of promises; rather, the valuable consideration
contemplated in "exchange for the promise is something other than a promise," i.e., performance. RESTATEMENT OF
CONTRACTS § 12 cmt. a (1932). A unilateral contract becomes enforceable when the promisee performs. Vanegas, 302 S.W.3d
at 303. We have explained that "`[a] unilateral contract occurs when there is only one promisor and the other accepts . . . by actual
performance,'" rather than by the usual mutual promises. Id. at 302 (quoting 1 RICHARD A. LORD, WILLISTON ON CONTRACTS §
1.17 (4th ed. 2007)).
Although the concept of a unilateral contract has been questioned by some authorities, see, e.g., RESTATEMENT (SECOND) OF
CONTRACTS § 1, rptrs. note on cmt. f (1981), the concept enjoys continued recognition among many scholars of contract law, see,
e.g., 1 WILLISTON ON CONTRACTS § 1.17, and has recently been reaffirmed as part of the common law of Texas by this Court,
see Vanegas, 302 S.W.3d at 302. In Vanegas, we held that when an employer offered to share five percent of the proceeds of a
sale or merger of the company with certain employees if they remained employed until the sale or merger, a unilateral contract
was formed when the employees remained employed for the requested time. Id. at 303. We noted that "`unilateral contract
analysis is applicable to the employer's promise to pay a bonus or pension to an employee in case the latter continues to serve for
a stated period.'" Id. (quoting 2 JOSEPH M. PERILLO & HELEN HADJIYANNAKIS BENDER, CORBIN ON CONTRACTS § 6.2
(1995)). Thus, a unilateral employment contract is created when an employer promises an employee certain benefits in exchange
for the employee's performance, and the employee performs.
2. General Standing Ordinances as Unilateral Contracts
Relying on Overton v. City of Houston, the City contends that general standing ordinances, however detailed, can never constitute a
unilateral employment contract.[8] See 564 S.W.2d at 403-04. In Overton, employees relied on city ordinances in asserting a right
to termination pay. Id. at 402. The First Court of Appeals declined to treat the ordinances as a contract for purposes of
determinating the appropriate statute of limitations governing the case, stating: "The ordinances alone . . . cannot form a contract
with the plaintiffs in this case." Id. at 403-04 (emphasis added). To the extent the reasoning in Overton suggests an ordinance
alone can never establish a unilateral contract, we disapprove it, and conclude that, in some circumstances, an ordinance or
group of ordinances can constitute a unilateral contract.
A municipality utilizes ordinances as a means to conduct its business. Cf. Cent. Power & Light Co. v. City of San Juan, 962 S.W.2d
602, 613 (Tex. App.-Corpus Christi 1998, pet. dism'd w.o.j.). It is therefore unsurprising that this Court has implicitly recognized that
municipalities sometimes contract with third parties by way of ordinance. See City of San Antonio v. Frizzell, 91 S.W.2d 1056, 1056-
57 (Tex. 1936) (noting that an ordinance evidenced the entire contract between a city and a third party). When an ordinance
evidences a contract, and is sought to be enforced as one, we have construed it as any other contract. See id. (construing the
ordinance as a contract, and ruling accordingly). We have further concluded that a statute (and ordinances passed pursuant to it)
authorizing a pension plan for policemen and firefighters was "necessarily a part of the contract of employment." Byrd v. City of
Dallas, 6 S.W.2d 738, 740 (Tex. 1928). In Byrd, by virtue of their employment with the city and acceptance of the pension scheme,
the policemen and firemen's participation in the pension plan became "as much a part of the agreed compensation as is the
monthly stipend." Id. at 741. Although the pension scheme at the time of the decision was derived from a statute, it was also
realized through ordinances. See id. at 739. Similarly, a franchise agreement between a municipality and a gas company was
"embodied" in a city ordinance, apparently standing alone. See S. Union Co. v. City of Edinburg, 129 S.W.3d 74, 76 (Tex. 2003). In
reviewing the City of Edinburg's contract claims against a natural gas utility, we construed the city's ordinance as a contract,
discerning from it the parties' intent and the scope of their respective obligations. See id. at 84-85.
We have also read two ordinances and related documents together as a single agreement, and noted that "a court may determine,
as a matter of law, that multiple documents comprise a written contract." Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.
3d 831, 840-41 (Tex. 2000). It is "well-established law that instruments pertaining to the same transaction may be read together to
ascertain the parties' intent."[9] Id. at 840. In addition, the multiple documents need not contain all of the terms; instead, only the
essential terms are required. Osborne v. Moore, 247 S.W. 498, 499 (Tex. 1923). Therefore, different ordinance sections can
potentially be read together in a single contract. See City of Fort Worth, 22 S.W.3d at 840-41.
Further, no particular words are required to create a contract; therefore the fact that an ordinance does not contain the word
"contract" in its text does not preclude it from having contractual effect. See 14 TEX. JUR. 3D Contracts § 46 (2006); Farmers' State
Bank & Trust Co. v. Gorman Home Refinery, 3 S.W.2d 65, 66 (Tex. Comm'n App. 1928, judgm't adopted); Coffman v. Woods, 696 S.
W.2d 386, 387-88 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.).
3. City Ordinances as Unilateral Contract Under Section 271.151(2)
Guided by these principles, we turn to the particular Ordinances at issue to determine if they constitute a unilateral employment
contract between the City and the Firefighters within section 271.152's waiver of immunity. As discussed above, in order to
determine if the Ordinances can collectively constitute a contract to which section 271.152 applies, we must determine whether
five elements are met: (1) the contract must be in writing, (2) state the essential terms of the agreement, (3) provide for goods or
services, (4) to the local governmental entity, and (5) be properly executed on behalf of the local governmental entity. TEX. LOC.
GOV'T CODE § 271.151(2). Because the Ordinances at issue here meet each of these five elements, we conclude the Ordinances
collectively constitute a unilateral employment contract between the City and the Firefighters, thereby meeting the third requirement
of section 271.152's waiver of immunity.
First, the Ordinances comprise a contract, and that contract is in writing. "A promise, acceptance of which will form a contract, `is a
manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a
commitment has been made.'" Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998) (quoting RESTATEMENT
(SECOND) OF CONTRACTS § 2(1)). The City manifested its intention to act in a specific way in the Ordinances by its extensive use
of the word "shall"[10] and similar provisions that make the benefits offered to the Firefighters mandatory upon performance. The
Ordinances are authored by the City, and are addressed to a discrete group of offerees: those persons qualifying as "eligible
employees," who are defined as "all classified members of the fire department." HOUSTON, TEX., CODE OF ORDINANCES ch.
34, art. III, § 34-59(a)(2). As such, the Ordinances constitute an offer that was communicated to the Firefighters, see
RESTATEMENT OF CONTRACTS § 22, which the Firefighters accepted by performing, see Vanegas, 302 S.W.3d at 303.
The City's Ordinances further promised the Firefighters specific compensation in the form of overtime pay and termination pay.
That promise required acceptance by performance, making the promise a unilateral contract that became binding when the
Firefighters performed. See id. The performance the City requested is detailed in parts of Chapter 34, Article III,[11] of the Houston
Code of Ordinances. See HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. III, §§ 34-46, 34-48, 34-50. Those sections
describe the duties of the Firefighters generally, id. § 34-46, and of the three particular divisions of the fire department: fire
prevention, id. §§ 34-48, 34-50(d), fire suppression, id. § 34-50(b), and fire alarm, id. § 34-50(c). These duties include valuable
services such as "extinguishing fires and conflagrations and preventing loss of human life and property," id. § 34-50(b), "operating
the fire alarm system," id. § 34-50(c), and "conducting inspections, reviewing plans for construction and conducting public
information campaigns to reduce the loss of life and property by fire," id. § 34-50(d). The Firefighters each performed such services
for various periods of time, rendering the City's promises binding as to each of them individually. Those promises included
overtime compensation, id. § 34-59(a)(3), (b), (d), holidays, and compensation for holidays not taken, id. § 34-59(e)(1), (e)(2), (e)
(6), sick leave, id. § 34-59(i), vacation leave, id. § 34-59(j), and compensation for accrued sick and vacation leave upon termination
of employment, id. § 34-3(b).
The contract is also in writing. See generally Houston, Tex., Code of Ordinances, ch. 34. As explained earlier, "written" contracts
may be "embodied in more than one document," RESTATEMENT (SECOND) OF CONTRACTS § 95 cmt. b, including, as here,
multiple ordinances, see City of Fort Worth, 22 S.W.3d at 840-41.
Second, the Ordinances state the essential terms of the agreement between the Firefighters and the City. Section 271.151(2) does
not define "essential terms," but we have characterized "essential terms" as, among other things, "`the time of performance, the
price to be paid, . . . [and] the service to be rendered.'" Kirby Lake Dev. Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex.
2010) (quoting Liberto v. D.F. Stauffer Biscuit Co., 441 F.3d 318, 324 (5th Cir. 2006)). In the context of employment agreements,
typical essential terms include, among others, "compensation, duties or responsibilities." Martin v. Credit Prot. Ass'n, Inc., 793 S.W.
2d 667, 669 (Tex. 1990). Here, the Ordinances plainly reflect such terms. The time of performance is specified in the definitions of
"workweek," HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. III § 34-59(a)(5), "time actually worked or actual work," id. § 34-
59(a)(6), and "overtime," id. § 34-59(a)(3); and in the various holiday, vacation, and leave provisions, id. § 34-59(e), (i), (j). The price
to be paid or compensation is located in the definitions of "overtime," id. § 34-59(a)(3), and "regular rate of pay," id. § 34-59(a)(4);
and in the various termination pay, overtime, holiday, vacation, and leave provisions, id. §§ 34-3, 34-59(d), (e), (i), (j). The services
to be rendered (duties or responsibilities) are likewise described in the Ordinances, as discussed above. See id. §§ 34-46, 34-48,
34-50 (describing the duties of the Firefighters).
Third, the Ordinances provide for goods or services. We have previously held that "services" under section 271.151(2) encompass
a wide array of activities, generally including any act performed for the benefit of another. Kirby Lake, 320 S.W.3d at 839. The
Firefighters benefitted the City by providing fire protection services as defined in the Ordinances themselves. HOUSTON, TEX.,
CODE OF ORDINANCES ch. 34, art. III, §§ 34-46, 34-48, 34-50.
Fourth, the services were provided to a local governmental entity. The services were rendered to the City, and the Firefighters'
performance of those services was tracked by the fire chief. See id. § 34-59(c); see also Byrd, 6 S.W.2d at 740-41 (noting that a
pension plan was given to retired firefighters as compensation for services rendered to the City of Dallas).
Finally, the Ordinances were executed by the City. The City does not deny that the Ordinances were duly enacted, but does
challenge whether they were "executed." Section 271.151(2) does not define "executed." We have noted that to "execute" means to
"finish" or to "complete," and that it is not necessary to sign an instrument in order to execute it, unless the parties agree that a
signature is required. Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 157 (Tex. 2010) (per curiam). No
agreement between the City and the Firefighters establishing that a signature was required is before us. Therefore, the
Ordinances, when duly enacted by the City with the intent to be bound, were "executed" under section 271.151(2). See id.
In summary, the Ordinances meet each of the five elements required by section 271.151(2), and thus comprise a unilateral
employment contract within the scope of section 271.152's waiver of immunity.
4. Debt in Violation of Article XI, Section 5, Texas Constitution
In an effort to negate contractual intent behind the Ordinances, the City argues that it could not have intended to be contractually
bound by the Ordinances, because doing so would create a debt in violation of Article XI, Section 5, of the Texas Constitution. Our
Constitution ordains that "no debt shall ever be created by any city, unless at the same time provision be made to assess and
collect annually a sufficient sum to pay the interest thereon and create a sinking fund of at least two per cent. thereon." TEX.
CONST. art. XI, § 5. But we long ago noted that this prohibition does not extend to "that class of pecuniary obligations in good faith
intended to be, and lawfully, payable out of either the current revenues for the year of the contract or any other fund within the
immediate control" of the municipality. McNeill v. City of Waco, 33 S.W. 322, 323-24 (Tex. 1895). In practice, municipal contract
expenses can be covered with current revenues. Cf. Mun. Admin. Servs. Inc. v. City of Beaumont, 969 S.W.2d 31, 39 (Tex. App.-
Texarkana 1998, no pet.). Therefore, Article XI, Section 5 does not necessarily preclude an ordinance-based contract.
5. Disclaimer of Vested Rights
In a further effort to negate contractual intent, the City asserts that Houston Ordinance No. 96-1088 disclaims any contractual effect
in the Ordinances at issue in this case. Houston Ordinance No. 96-1088 provides:
That the provisions of article III of chapter 14 of the Code of Ordinances, Houston, Texas, as amended in section 2 of this
ordinance, are subject to amendment or repeal at any time and payment of benefits thereunder is subject to the appropriation or
allocation of funds for that purpose by the city council. No provision of this ordinance shall be construed to create a vested right of
compensation for sick leave benefits or, where applicable, for termination payments.
Houston, Tex., Ordinance 96-1088 § 7 (Oct. 23, 1996).
The City points us to several cases in which documents that might otherwise have constituted contracts included statements that
effectively disclaimed contractual intent, particularly County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007). In Wiland, the
disclaimer stated: "Nothing in this [manual] is to be construed as a contract of employment or a provision guaranteeing the
specific term or tenure of employment." Id. at 349. We recognized that this statement precluded giving the manual in question any
contractual effect. Id. at 352, 354. The City contends the instant ordinance likewise disclaims contractual intent. We disagree.
Disclaiming a vested right to compensation is not equivalent to a disclaimer of contractual intent—to the contrary, an employee
may have a valid employment contract, promising that benefits will accrue upon performance, but those benefits will not vest until
the employee actually performs. See Vanegas, 302 S.W.3d at 303 ("But whether the promise was illusory at the time it was made
is irrelevant; what matters is whether the promise became enforceable by the time of the breach."). The disclaimer amounts to a
warning to City employees that the City can change the benefits over time—in other words, the offer that the City is making, as
regards to sick leave benefits, is subject to change.[12] At most, the disclaimer indicates that the promises contained in the
Ordinances remained illusory until the Firefighters performed. See id. ("Almost all unilateral contracts begin as illusory promises.").
Further, the scope of the disclaimer in Ordinance 96-1088 is limited by its express language. It refers only to Article III of Chapter
14 of the Houston Code of Ordinances. That Article is concerned only with sick leave for City civil service employees generally, see
HOUSTON, TEX., CODE OF ORDINANCES ch. 14, art. III, while the Ordinances the Firefighters point to as evidencing contractual
intent are located in the Fire Department provisions of Chapter 34, not Chapter 14. The disclaimer is likewise limited to "sick leave
benefits or, where applicable, for termination payments." The plain meaning of the clause "where applicable, for termination
payments" is to include accrued sick leave benefits that would give rise to a termination payment. Thus, even if we accept the City's
construction of the disclaimer—that it is a contractual disclaimer—its scope would only cover the Firefighters' right to that portion of
their claims based on sick leave. But, in fact, the Firefighters' claims are based on several other components of compensation,
such as premium pay, vacation leave, holiday leave, and overtime pay, see City of Houston, 183 S.W.3d at 419, 424, all of which fall
outside the scope of any disclaimer achieved by Ordinance 96-1088.
6. Scope of Section 271.152's Waiver of Immunity
The City next claims that the Firefighters seek to avoid, rather than enforce, their ordinance-based contract, and their suit is
therefore not a suit for breach of a contract within the limited scope of section 271.152's waiver. See TEX. LOC. GOV'T CODE §
271.152 (waiving immunity "for the purpose of adjudicating a claim for breach of the contract"). The pleadings provide some
indication that the Firefighters' ultimate recovery could depend on a showing that certain parts of the City of Houston Code of
Ordinances violated state law, specifically the civil service provisions of Chapters 142 and 143 of the Local Government Code. See
City of Houston, 183 S.W.3d at 424-25. That indeed was the basis for much of the court of appeals' original opinion in favor of the
Firefighters. See generally id. at 419-26. We decline to decide whether any of the Ordinances violate these specific statutory
provisions, leaving this merits determination to the trial court, see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000),
but conclude the City's argument fails because the Firefighters' claim is, overall, one for breach of contract.
In determining whether jurisdiction is proper, we look to the pleadings, "construing them liberally in favor of the plaintiffs and
looking to the pleader's intent." City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). Viewing the Firefighters' pleadings as a
whole, the Firefighters currently plead a cause of action for breach of contract.
Further, it is "settled that the laws which subsist at the time and place of the making of a contract . . . form a part of it, as if they were
expressly referred to or incorporated in its terms." Von Hoffman v. City of Quincy, 71 U.S. 535, 550 (1867). Relevant statutes can
form a part of an employment contract. Byrd, 6 S.W.2d at 740 (holding that a state law governing civil service pensions was "part of
the contract of employment and is read into the contract as fully as though it had been actually incorporated therein"); see also
Wilson v. Andrews, 10 S.W.3d 663, 667-68 (Tex. 1999) (holding that the Civil Service Act, as amended, becomes part of the
employment contract between a city and its firefighters when the city adopts it). The trial court may determine that at least some
portions of the relevant statutes form a part of the unilateral contract between the City and Firefighters. Therefore, the Firefighters'
suit is properly characterized as one for breach of contract.
7. Intersection of Local Government Code Sections 271.152 and 180.006
The City asserts the Legislature did not intend for section 271.152 to waive immunity in this type of suit, as evidenced by its
subsequent enactment of Local Government Code section 180.006. The City argues that the Legislature's enactment of section
180.006—which prospectively waives governmental immunity from back-pay claims by police and firefighters[13]—would be a
meaningless act if the same waiver already existed under section 271.152. The City contends the Firefighters' claims would clearly
fall within the scope of section 180.006, but for the fact that section 180.006 is not retrospective. See Act of May 25, 2007, 80th Leg.,
R.S., ch. 1200, § 3, 2007 Tex. Gen. Laws 4071, 4072. Accordingly, the City claims that if the Legislature had intended to waive
immunity for a suit of this type, it would have made the waiver in section 180.006 retrospective. The City invokes the rule of statutory
construction that "the legislature is never presumed to do a useless act." Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551
(Tex. 1981). We disagree that applying section 271.152 here would in any way render section 180.006 "useless" given the
distinctions between the two statutes.
Sections 180.006 and 271.152 differ significantly in scope and effect. Section 271.152 is a retroactive waiver of immunity, while
section 180.006 is prospective only. Compare Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex. Gen. Laws 1548, 1549,
with Act of May 25, 2007, 80th Leg., R.S., ch. 1200, § 4, 2007 Tex. Gen. Laws 4071, 4072. Section 271.152 applies to breaches of
contract generally, while section 180.006 is limited to back-pay claims and related penalties only. Compare TEX. LOC. GOV'T
CODE § 271.152, with id. § 180.006(b)-(c). Moreover, section 180.006 does not require a contract in writing, while section 271.152
does. Compare id. § 180.006(b), with id. § 271.151(2). Finally, section 180.006 is limited to a specific class of persons—civil
service firefighters or police officers—while section 271.152 has no such limitation. Compare id. § 180.006(a), with id. § 271.152.
Although the Firefighters' suit might fall within the scope of both waivers if it accrued and were filed today, that does not render
section 180.006 "useless." Because section 180.006 does not require a written contract, it also applies to those qualifying civil
service firefighters and police officers who, unlike the Firefighters in this case, cannot point to a written contract, and for whom
there was previously no waiver of immunity until its enactment. See id. § 180.006(a). Accordingly, the "no useless act" rule of
construction does not preclude applying section 271.152 to the Firefighters' claims.[14]
Moreover, section 271.152 is otherwise clear and unambiguous, and so there is no reason to speculate further as to legislative
intent. See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006). We have determined that a written
contract exists here, as embodied in the Ordinances, and the contract meets the elements the Legislature set forth in section
271.151(2). Therefore, by its plain language, section 271.152's waiver applies to this suit.
8. Other Considerations and Conclusion
Finally, the City and amici raise concerns about the impact of our holding, claiming it will transmute vast numbers of ordinances
into contracts. But this fear overlooks the basic requirements of contract law—just as with any writing alleged to be a contract, an
ordinance can only be enforced as a contract in a court of law if it satisfies the requirements of a contract. Moreover, most
municipal ordinances will not function as contracts within the meaning of section 271.151(2), because most will not contain the
detailed request for performance and promised compensation found in Chapter 34 of the Houston Code of Ordinances, nor will
they be cognizable as an offer to identifiable offerees as these Ordinances are. In addition, as discussed above, ordinances have
long functioned at times as contractual instruments in this state, without any apparent adverse effect. See, e.g., City of San Antonio,
91 S.W.2d at 1056-57.
In conclusion, because the Ordinances at issue are addressed to the Firefighters, promising in detail specific compensation in
return for specified services, and meet each element in the definition of a contract under Local Government Code section 271.151
(2), we hold the relevant provisions of Chapter 34 of the City of Houston Code of Ordinances constitute a unilateral contract that
became effective and enforceable as to these retired Firefighters who have completed the requested performance, and the City's
immunity is thereby waived pursuant to section 271.152.[15]
E. Civil Service Statutes as Contract
In their cross-petition, the Firefighters assert that certain provisions of Local Government Code Chapter 143 likewise constitute a
contract between the City and the Firefighters. Chapter 143 creates a civil service classification system for emergency service
personnel in those qualifying municipalities that vote to adopt it. TEX. LOC. GOV'T CODE § 143.002(a); Wilson, 10 S.W.3d at 666.
The Firefighters argue that, when the City voted to "opt-in" to Chapter 143, the statute became an offer by the City that the
Firefighters accepted by performing.
In order to qualify as a contract, the document or documents must evidence the parties' intent to be bound. See Owen v. Hendricks,
433 S.W.2d 164, 166-67 (Tex. 1968). That intention must be manifested in a way that justifies a promisee's understanding that a
promise has been made to him. See Montgomery Cnty. Hosp. Dist., 965 S.W.2d at 502. Because Chapter 143 was written by the
Legislature, not by the City, we cannot presume that it is a communication of intent by the City. Rather, we must examine the
manner in which the City adopted Chapter 143 to determine whether the City communicated an intent to be bound to any potential
promisees. Although the original City Ordinance adopting Chapter 143 is not part of the record, we note the reference to Chapter
143 that currently appears in the Houston Code of Ordinances is as follows:
At an election held in the city January 31, 1948, this Act was adopted by a majority vote of the votes cast at the election. It differs in
many important respects from the city's civil service charter provisions (Art. Va of the foregoing charter) and no action should be
taken in the matter of civil service, whether pertaining to policemen and firemen or to other employees without first consulting ch.
143 . . . since some of its provisions touch upon the entire subject of composition of the city's civil service commission and of the
executive administration of the civil service functions.
HOUSTON, TEX., CODE OF ORDINANCES app. B.
Unlike the Ordinances discussed above, which make specific, detailed promises to the Firefighters, the above statement is
addressed to City policy makers and the City's civil service commission. It is a warning to them that the City, having elected to be
governed by the Civil Service Act, must comply with it, or risk adverse consequences in court. See Wilson, 10 S.W.3d at 668 ("As
long as the Civil Service Act governs [the city], however, it must adhere to the Act[] . . . ."). In other words, it fails the basic contract
requirement of communication of an offer to the offeree. See RESTATEMENT (SECOND) OF CONTRACTS § 24; RESTATEMENT
OF CONTRACTS § 23 ("[I]t is essential to the existence of an offer that there should be a proposal by the offeror to the offeree . . .
."). Accordingly, we cannot say the City has adopted Chapter 143 in a manner that communicates a promise or an offer to the
Firefighters. We thus conclude that Chapter 143 does not, in itself, constitute a contract entered into by the City, and so cannot be a
"contract subject to this subchapter" for purposes of section 271.152's waiver of immunity.
We of course do not hold that a statute cannot be incorporated by reference into a contract—as mentioned above, the trial court
may conclude that at least some portions of Chapter 143 were incorporated by reference into the unilateral employment contract at
issue here. Rather, we hold that when a municipality adopts Chapter 143—without sufficient manifestation of an intent to be
contractually bound in the ordinance or other instrument by which it is adopted—Chapter 143 does not, in itself, constitute a stand-
alone municipal contract.[16]
F. The Agreements as Contracts for Purposes of Local Government Code Section 271.152's Waiver of Governmental Immunity
As a final basis for waiver of immunity under Local Government Code section 271.152, the Firefighters' cross-petition also attacks
the court of appeals' holding that those Firefighters whose employment fell within the scope of the MCAs and the CBA lacked
standing to sue under those Agreements. 290 S.W.3d at 271. Finding a lack of standing, the court of appeals did not reach the
issue of whether the Agreements qualify under section 271.152's waiver of immunity. See id. We first address the issue of
standing, then determine whether the Agreements fall within the scope of section 271.151(2)'s definition of a "contract subject to
this subchapter."
Standing is a constitutional prerequisite to suit. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). It is founded in the separation-of-
powers doctrine, and in the Texas open-courts provision. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 447 (Tex.
1993). The separation-of-powers doctrine precludes courts from issuing advisory opinions on abstract questions of law that do not
bind actual parties. See Tex. Const. art. II, § 1; Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). In complementary fashion, the open-
courts provision guarantees access to the courts, but the purpose is to make whole those who have suffered actual injury, not to
provide a forum for general injuries or hypothetical complaints. Tex. Air Control Bd., 852 S.W.2d at 444. "Thus, as a general rule, to
have standing an individual must demonstrate a particularized interest . . . distinct from . . . the public at large." S. Tex. Water Auth.
v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007) (per curiam).
1. Standing Under the MCAs
In holding the Firefighters had no standing to sue for alleged breaches of the MCAs, the court of appeals invoked the doctrine of
inclusio unius est exclusio alterius, 290 S.W.3d at 271, which is the presumption that purposeful inclusion of specific terms in a
writing implies the purposeful exclusion of terms that do not appear. See Newman v. Blum, 9 S.W. 178, 178 (Tex. 1888). Both
MCAs state they were negotiated "by and between the Houston Professional Fire Fighters Association and the City of Houston,
Texas." Both provide that grievances may be resolved either through the statutory grievance procedures of Local Government Code
sections 143.127-.134, or by judicial resolution under section 143.206 upon "application by either party." Section 143.206 (which
the MCAs incorporate by reference) likewise speaks in terms of "either party" and "other party." TEX. LOC. GOV'T CODE § 143.206
(b). "The state district court of the judicial district in which the municipality is located has full authority and jurisdiction on the
application of either party aggrieved by an action or omission of the other party . . . ." Id. (emphasis added). From this language,
applying the inclusio unius doctrine, the court of appeals concluded that only the Union and the City had standing to sue for breach
of the MCAs. 290 S.W.3d at 271. Although inclusio unius is a sound maxim of construction, judicial review cannot start and end on
such a narrow basis when, as here, there is another valid ground to confer standing—the Firefighters' status as third-party
beneficiaries under the MCAs.
Texas law recognizes that third parties have standing to recover under a contract that is clearly intended for their direct benefit.
Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) (per curiam). In determining whether there is intent to benefit a third party, we look
to the entire agreement, giving effect to all its provisions. Id. at 590. The contract need not have been executed solely to benefit the
noncontracting party. Id. at 591. We do not create a third-party benefit by implication; the presumption is the parties contracted only
for themselves, absent a clear showing of intent otherwise. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651-52
(Tex. 1999). However, the agreement need not state "third-party beneficiary" or any similar magic words. See Stine, 80 S.W.3d at
590-91. Finally, a third party cannot enforce a contract if the third party benefits only incidentally from it. MCI, 995 S.W.2d at 651-52.
The MCAs reflect an intent to benefit the Firefighters as third parties to the agreements—indeed, the Union was required by its duty
of representation to seek benefits for the Firefighters in the agreements. Both agreements make this purpose plain in their
preambles by stating that one purpose is to provide certain wages, hours, and conditions of employment.[17] Both agreements
directly guarantee benefits to the Firefighters, in particular in terms of salary and termination payments,[18] overtime pay,[19] and
vacation leave.[20] These benefits are not offered to the world at large as a general beneficence, but are limited to the Firefighters
through the definition of "employee"[21] included in the agreements. These guarantees of compensation are not promised to the
City or to the Union, but to the Firefighters. As such, the City and the Union expressed a clear intent to benefit the Firefighters when
they contracted through the MCAs.[22] Accordingly, the Firefighters have standing to enforce the agreements.[23]
2. Standing under the CBA
The City asserts two arguments to defeat the Firefighters' claim to standing under the CBA: failure to establish a breach of the duty
of fair representation by the Firefighters' Union, and failure to exhaust the CBA's grievance procedures. We reject both objections,
and conclude the Firefighters have standing as third-party beneficiaries to sue for breach of the CBA.
The court of appeals held the Firefighters lack standing under the CBA because they failed to establish that their Union breached
its duty of fair representation. The court of appeals reasoned that showing such a breach "is an `indispensable predicate' to an
employee's action against the City for violation of the collective bargaining agreement." 290 S.W.3d at 271 (quoting Metro. Transit
Auth. v. Burks, 79 S.W.3d 254, 257 (Tex. App.-Houston [14th Dist.] 2002, no pet.)). However, that "predicate" only applies to "hybrid"
suits—cases in which the employee alleges both breach of the collective bargaining agreement by the employer, and breach of
the duty of fair representation by the union, as when the union has mishandled grievance and arbitration proceedings. See Reed v.
United Transp. Union, 488 U.S. 319, 328 (1989). It typically is an issue in suits under federal labor law, such as when an employee
who is covered by a collective bargaining agreement sues for wrongful termination after losing under grievance and binding
arbitration procedures. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 62 (1981). Here, no grievance or arbitration occurred at
all, so whether the Union breached its duty is not an issue. See id. As such, the Firefighters are not required to establish the
predicate of any breach of duty. In short, the rule invoked by the court of appeals does not apply to this case.
The City argues in the alternative the Firefighters have no standing under the CBA because they have not exhausted the
administrative remedies required by it.[24] This argument ignores the undisputed fact that the Firefighters are no longer active
employees or members of the bargaining unit, but are retirees. As retirees, the CBA's grievance procedures by their own plain
language no longer apply to the Firefighters.
Once employees retire, they cease to be employees and become retirees. See Allied Chem. & Alkali Workers, Local Union No. 1 v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 168 (1971). "The ordinary meaning of `employee' does not include retired workers;
retired employees have ceased to work for another for hire." Id. Indeed, such retirees are no longer even a part of the collective
bargaining unit. Id. at 175-76. This is so not only because they are no longer employees, but because their interests are no longer
adequately aligned with that of active employees so as to be jointly represented as a unit. Id. at 172-73.
The CBA's plain language does not include retired firefighters in the class of persons who are bound by the Agreement.[25] Article
14 of the CBA makes the grievance procedure available only to the Union and active firefighters: "The Association or any
bargaining unit Firefighter may file a grievance under the terms of this Agreement." (Emphasis added.) Article 1 of the CBA defines
both "Member of the Bargaining Unit" and "Firefighter" as "any full time, permanent paid employee" of the Fire Department. As
retirees, the Firefighters do not meet that definition: they are no longer full-time employees, nor are they paid employees. See id. at
168. Therefore they do not fall within the class of persons to whom the grievance procedure is made available.
Moreover, the terms of the grievance procedures confirm that they do not logically apply to retirees like the Firefighters. Article 14,
section 2, of the CBA encourages an aggrieved firefighter to "verbally inform his/her immediate supervisor of the grievance." As
retirees, the Firefighters have no immediate supervisors to inform.
Further, because the Firefighters' cause of action only accrued when they received their allegedly deficient termination payments,
which was after they retired, they had no grievance to assert during the time period when they were employees governed by the
CBA's grievance procedures. Accordingly, we conclude the Firefighters' failure to exhaust the CBA's administrative remedies is not
a bar to their standing to sue.
Finally, as with the MCAs, the Firefighters have standing as third-party beneficiaries under the CBA. Like the MCAs, it was
negotiated by the Union with the clear intent to benefit the Firefighters. Significantly, collective bargaining agreements are
recognized as a type of third-party beneficiary contract. See RESTATEMENT (SECOND) OF CONTRACTS § 302 cmt. d, illus. 14 ("A,
a labor union, enters into a collective bargaining agreement with B, an employer, in which B promises not to discriminate against
any employee because of his membership in A. All B's employees who are members of A are intended beneficiaries of the
promise.").
The CBA states:
It is the intent and purpose of this Agreement to achieve and maintain harmonious relations between the parties, adjust and to
establish the rates of pay, hours of work, and other conditions of employment for all Bargaining Unit Members and provide for the
equitable and orderly adjustment of grievances which may arise during the term of this Agreement.
In its references to rates of pay, hours of work, and conditions of employment, this is a clear statement of an intent to benefit
parties other than the Union and the City. As former Bargaining Unit Members, the Firefighters became entitled to rights under the
agreement by performing in accordance with it. Like the MCAs, the CBA made specific promises to the Firefighters when they were
active employees. In particular, these included terms concerning salary,[26] overtime pay,[27] sick leave,[28] and vacation leave.
[29] All these provisions in the CBA demonstrate a manifest intent to benefit the Firefighters by guaranteeing certain terms of
compensation to them. As such, we conclude the Firefighters have standing as third-party beneficiaries to enforce the CBA.
3. Section 271.152's Waiver of Immunity as to the MCAs and CBA
The MCAs and CBA, like the Ordinances, constitute contracts subject to section 271.152's waiver of immunity, because they also
meet the five definitional elements in section 271.151(2). First, they are indisputably written contracts. Second, they each state the
essential terms of the agreement, such as salary, overtime compensation, vacation leave, and work conditions. Third, like the
Ordinances, they provide for services, namely the provision of fire protection services to the City. Fourth, the services are provided
to a local governmental entity—the City. Finally, all three Agreements are signed by the mayor of the City, who appears to have
been duly authorized to do so, thus constituting execution of the Agreements.
IV. Conclusion
Having concluded the City entered into a unilateral contract with the Firefighters through its Ordinances, and because the
Legislature waived the City's immunity from suit through its enactment of Local Government Code section 271.152 for a suit
claiming breach of that contract, we hold the trial court properly denied the City's plea to the jurisdiction. We also hold that section
271.152 waives immunity from suit for breach of the MCAs and CBA, and the Firefighters have standing to sue under those
Agreements. Finally, we hold Chapter 143 of the Local Government Code, as adopted by the City, does not, in itself, constitute a
contract between the City and the Firefighters, and it therefore is not a contract within the scope of section 271.152's waiver of
immunity. Accordingly, we affirm the judgment of the court of appeals in part, reverse in part, and remand the case to the trial court
for further proceedings consistent with this opinion.
Appendix
HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. I, § 34-3(b)—Payment for sick or vacation leave upon firemen's or
policemen's death or termination of employment; repayment upon reemployment.
(a) Reserved.
(b) Firefighters or police officers who are members of the classified service of the fire and police departments of the city may
accumulate vacation time to a total of 720 working hours; however, any firefighter or police officer who leaves the classified service
for any reason shall receive, in a lump sum payment, the full amount of his salary for the period of his accumulated vacation leave,
minus any hours of vacation leave previously taken during the calendar year in which the termination occurs. However, any fire
fighter or police officer who loses his life, or is forced to leave the classified service, as a result of a line of duty injury or illness, or
the beneficiaries of such fire fighter or police officer, shall receive in a lump sum payment the full amount of his salary for the total
number of his working hours of accumulated vacation time.
(c) For purposes of determining the amount to which a fireman or policeman or his beneficiaries is entitled under subsections (a)
and (b) of this section, "salary" shall mean the authorized base pay of the employee plus the longevity rate he has attained up to
the date of separation or death. For purposes of this section, "salary" shall not include educational or training incentive pay or any
other form of premium pay except as provided above.
(d) Reserved.
(Code 1968, § 2-35; Ord. No. 71-1592, § 1, 9-1-71; Ord. No. 75-139, § 1, 1-28-75; Ord. No. 76-1882, § 1, 11-2-76; Ord. No. 78-180,
§ 1, 2-1-78; Ord. No. 90-1138, § 2, 9-19-90; Ord. No. 96-1076, § 5, 10-16-96; Ord. No. 96-1088, § 4, 10-23-96).
HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. III, § 34-46-Created; duties generally.
There is hereby created a fire department, the officers and employees of which, excepting those attending the firemen's training
school, those designated as apprentice fireman and those who are on probation, are charged with the duty of preventing and
extinguishing fires and conflagrations and preventing the loss of human life and property by fire, and doing all such other duties as
are imposed upon them by ordinance of the city council. In addition to the duties and functions specifically set forth in this article for
the various officers of the fire department, each of such officers and those employees acting under them shall perform such other
and further duties as may be required of them by the mayor or their superior officers, or by the provisions of the state law, the
Charter and ordinances of the city.
(Code 1968, § 18-1; Ord. No. 73-2079, § 1, 11-21-73).
HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. III, § 34-48-Fire prevention division; duties generally.
The fire prevention division of the fire department and its personnel shall be charged with the primary duty of enforcing all laws of
the state and ordinances of the city covering the following:
(1) The prevention of fires.
(2) The storage and use of explosives and inflammables.
(3) The installation and maintenance of automatic and other fire alarm systems and protection systems, fire extinguishers and
equipment.
(4) The maintenance and regulation of fire escapes.
(5) The means and adequacy of exits in cases of fires from factories, schools, lodging houses, convalescent homes, hotels,
asylums, hospitals, churches, public halls, theaters, and in all other places where numbers of persons work, live, or congregate
from time to time for any purposes.
(6) The investigation of causes, origin and circumstances of fire.
(7) The conducting of fire prevention campaigns and the circulation of fire prevention literature, for the benefit of civic clubs, labor
organizations, business and commercial enterprises, schools, factories, lodging houses, hotels, lodges, hospitals, convalescent
homes, churches, halls, theaters and the general public in the interest of fire prevention and public safety.
(8) Such other duties as may be imposed from time to time by the mayor, the laws of the state, ordinances of the city, and by the
chief of the fire department and the fire marshal.
(Code 1968, § 18-3; Ord. No. 73-2079, § 1, 11-21-73).
HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. III, § 34-50-Divisions of fire department; general duties and responsibilities
of each division.
(a) The fire department shall consist of three divisions, to be known as the fire suppression division, the fire alarm division and the
fire prevention division.
(b) The fire suppression division and its personnel shall be charged with the primary duty of extinguishing fires and conflagrations
and preventing the loss of human life and property by fire.
(c) The fire alarm division of the fire department and its personnel shall be charged with the primary duty of operating the fire alarm
system in the city, and performing or causing to be performed such other duties and functions as may be assigned to or required
of it or them by the mayor, the chief of the fire department, by state law and the provisions of the Charter or ordinances of the city.
(d) The fire prevention division and its personnel shall be charged with the primary duty of conducting inspections, reviewing plans
for construction and conducting public information campaigns to reduce the loss of life and property by fire.
(e) In addition to the duties of the divisions and their personnel, as hereinabove set out, each division and its personnel shall do
and perform, or cause to be done and performed, such other duties and functions as may be assigned to or required of such
section by the mayor, the fire chief, and the provisions of the state law, the Charter and ordinances of the city.
(Code 1968, § 18-5; Ord. No. 73-2079, § 1, 11-21-73; Ord. No. 2010-803, § 9, 10-13-2010).
HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. III, § 34-59-Workweek; overtime compensation; sick leave; vacation leave.
(a) Definitions. Unless otherwise indicated, the following words shall, for purposes of this section, have the following meanings:
(1) Compensatory time or compensatory time off. Hours during which eligible employees are not working and which are not
counted as hours worked during the applicable workweek for purposes of overtime compensation and for which the employee is
compensated at the employee's regular rate.
(2)Eligible employee. All classified members of the fire department subject to the provisions of articles 1269m and 1269p of the
Revised Civil Statutes of Texas.
(3) Overtime. Dependent upon the duty assignment and work cycle of the firemen, overtime shall be that time worked in excess of
either:
a. 40 hours in a workweek; or
b. An average number of hours of actual work per week over a calendar year of 46.7 hours as authorized by the provisions of article
1269p.
(4) Regular rate of pay. Regular rate of pay shall include:
a. Base pay;
b. Longevity pay;
c. Educational incentive pay;
d. Assignment pay; and
e. Higher classification pay where authorized.
The term "regular rate of pay" shall not include compensation excluded under Section 7(e) of the Fair Labor Standards Act of 1938,
as amended, or the interpretative regulations and administrative or judicial opinions construing that section.
(5) Workweek. Dependent upon the duty assignment and work cycle of the fireman, the workweek shall be either:
a. Forty hours of actual work within the consecutive one hundred sixty-eight-hour period beginning with the dayshift Saturday; or
b. An average number of hours of actual work per week over a calendar year of 46.7 hours as authorized by the provisions of article
1269p.
(6) Time actually worked or actual work. The time the employee is actually on duty or on a council declared holiday, on authorized
sick leave, vacation leave, compensatory time off, death in the family leave or any other authorized leave, provided that this is for the
purpose of overtime calculations dealt with in this section only and not for purposes of determining compliance with article 1269p,
section 6(D) of the Revised Civil Statutes of Texas, which shall be governed by state law. Hours spent by a fireman doing the work
of an injured or ill fireman pursuant to section 26(h) of article 1269m shall not count as hours worked for purposes of overtime
compensation. Hours worked in "substitution" pursuant to subsection (f) hereof shall not be counted as time actually worked for
purposes of overtime compensation. Calculation of time actually worked shall commence upon the arrival of the fireman at his or
her assigned place of duty for the particular duty day at the time established for the commencement of the work shift.
(b) Eligible employees shall have a regularly scheduled workweek on a schedule established by the department. Any fireman
whose duties involve either the extinguishment of fires or the delivery of emergency medical services shall be entitled to overtime
pay for those hours in excess of the scheduled work cycle as established pursuant to article 1269p. Any fireman whose duty
assignment is not described by the foregoing shall be entitled to overtime pay for all time actually worked in excess of his or her
forty-hour workweek.
(c) The fire chief shall cause to be maintained accurate, complete and permanent records of all employee attendance and time
actually worked during each workweek. He shall make reports of attendance and time actually worked as may be prescribed by the
civil service commission. He shall certify the correctness of the reports. The reports shall be forwarded to the human resources
department on a weekly basis.
(d) All eligible employees shall be compensated for working overtime beyond their regularly scheduled workweek by the payment
of either monetary compensation at the rate of 1 ½ times their regular rate of pay or compensatory time at the rate of 1 ½ hours for
each overtime hour worked. The following shall apply to the payment of overtime compensation:
(1) The fire chief or his designated subordinate shall verify that the overtime is needed to complete a required city service or
operation.
(2) Upon request of the fireman, the fire chief may, in his discretion, grant compensatory time in lieu of cash payment for overtime.
Where overtime is paid in cash it shall be paid in the pay period in which it is earned or as soon thereafter as is possible, taking
into consideration both the work cycle and the payroll system used.
(3) Where the employee is granted compensatory time the following shall apply:
a. The number of hours of compensatory time which may be accumulated shall not exceed 480.
b. Accrued compensatory time which is given must be used within 365 calendar days from the date accrued, provided that it does
not unduly disrupt departmental operations. The fire chief shall issue appropriate regulations governing the use of compensatory
time.
c. Accrued compensatory time not taken within 365 days from the date of accrual shall be paid for, in cash, at the greater of:
1. The employee's average regular rate of pay over the employee's last three years of employment by the city preceding the date of
payment; or
2. The employee's regular rate of pay as of the end of the pay period preceding the date of payment.
Such payment shall be made in the pay period following expiration of the three hundred sixty-five-day period.
d. The fire department shall maintain detailed records of the accumulation and use of compensatory time on a form prescribed by
the human resources director.
e. Accumulated compensatory time shall be used in accordance with the first-in-first-out (FIFO) accounting principle.
f. Any compensatory time accrued prior to April 15, 1986 and not used shall be carried on the records of the department until such
time as it is used by the employee. The employee shall not be entitled to monetary compensation for any compensatory time
accrued prior to April 15, 1986.
(e) All classified firefighters of the fire department who are subject to the provisions of chapter 142 and chapter 143 of the Local
Government Code shall be entitled to the same number of holidays or days in lieu thereof as are granted to all other employees of
the city as provided below:
(1) All holidays shall have an accrual value of eight hours. When a classified employee is unable to take the holiday, he or she
shall have eight hours posted to his or her accrued holiday balance. When an accrued holiday day is taken in lieu of the regularly
scheduled holiday, eight hours will be charged; however, its usage value will be dependent upon the shift worked by the classified
employee at the time the day in lieu of the holiday is taken. Any classified employee in the Emergency Operations Division
assigned to the average of 46.7 hours per week work schedule shall receive 12 hours off for each holiday accrued. Classified
personnel assigned to ten-hour work days shall receive ten hours of leave and all other classified personnel shall receive eight
hours off for each holiday accrued.
(2) Where a holiday falls on a regularly scheduled day off, any employee so affected shall accrue the holiday in the manner
described in subsection (e)(1) above.
(3) Employees in the Emergency Operations Division and assigned to the average of 46.7 hours per week work schedule who are
normally scheduled to work on the actual dates of July 4th, December 24th, December 25th, and January 1st, as well as the
following City approved Holidays (Martin Luther King Jr. Day, Memorial Day, Labor Day, Veteran's Day, Thanksgiving Day, and the
day after Thanksgiving Day) shall accrue two holidays, provided the member is physically on-duty and completes the entire 24-
hour shift, beginning at 0630 hours of the holiday in question. The holidays will accrue as two eight-hour accruals for the holiday
shift worked.
Employees in the Emergency Operations Division, not normally scheduled to work, that are called in to work on the actual dates of
July 4th, December 24th, December 25th, and January 1st, as well as the following City approved Holidays (Martin Luther King Jr.
Day, Memorial Day, Labor Day, Veteran's Day, Thanksgiving Day) shall accrue one eight-hour accrual for the holiday shift worked.
(4) Employees in the Emergency Operations Division and assigned to the average of 46.7 hours per week work schedule who are
not normally scheduled to work, that are called in to work on the actual dates of July 4th, December 24th, December 25th and
January 1st, as well as the following City approved Holidays (Martin Luther King Jr. Day, Memorial Day, Labor Day, Veteran's Day,
Thanksgiving Day, and the day after Thanksgiving Day) shall be paid at the rate of time and one-half the hourly rate for actual hours
worked during the 24-hour period beginning at 0630 hours of the holiday in question in lieu of the extra board straight time rate.
(5) When a holiday occurs during any paid leave of absence (vacation, sick time, injury on duty, etc.), the holiday is considered to
have not been observed and the holiday shall be accrued and that day's absence will be changed against paid leave.
(6) Any classified employee who terminates his or her employment and has an accrued holiday leave-balance shall be paid for
such holidays, not to exceed a total of 11 holidays. The limitation of 11 holidays shall not apply to a classified employee who
leaves the classified service because of disability or death, and in such event, the employee, or his/her estate, shall be paid for all
of the accrued holiday balance. All holidays for which payment is made upon termination, disability or death shall be valued at
eight hours, regardless of the scheduled work hours or duties assigned to the firefighter at the time they were earned.
(f) The fire chief shall prepare and issue administrative guidelines to implement the provisions of section 26(h) of article 1269m
wherein firemen are authorized to voluntarily do the work of an injured or ill fireman.
(g) If the fire chief elects to permit "substitution," as that term is used in the context of the Fair Labor Standards Act and as the
practice is described by section 7 of article 1269p, he shall prepare and issue administrative guidelines to implement the
provisions of section 7 of article 1269p subject to all applicable provisions of the Fair Labor Standards Act and the interpretations
thereof.
(h) The fire chief shall prepare and issue administrative guidelines regarding on-call status for firemen. Such guidelines shall be
structured so as to limit the number of firemen on-call to a number reasonably required to meet the needs of the department.
Further, such policy shall conform with the standards pertaining to overtime pay for on-call time under the Fair Labor Standards Act
of 1938, as amended, and the interpretations thereof.
(i) Employees of the fire department classified pursuant to article 1269m of the Revised Civil Statutes of Texas, shall be allowed
sick leave consistent with the provisions of section 26(b)(a) of article 1269m and Ordinance No. 84-1962, as amended. When a
sick day is taken, its value will be dependent upon the shift or duty assignment held by the fireman at the time the day is taken. Any
fireman engaged in fighting fires or the actual delivery of emergency medical services shall receive 12 hours off for each sick day
taken. All other classified personnel shall receive eight hours off for each sick day taken. Officers and employees whose absences
on authorized sick leave are for periods other than a full working day as defined herein shall be assessed sick leave in proportion
to the number of full working days or fraction thereof they are absent.
(j) Officers and employees of the fire department classified pursuant to article 1269m of the Revised Civil Statutes of Texas, shall
earn 15 days of vacation with pay per year to be accrued at a rate of 1 ½ days per month. After 15 years of service employees shall
be entitled to a vacation according to the following schedule:
16 years .....
16 days
17 years .....
17 days
18 years .....
18 days
19 years .....
19 days
20 years .....
20 days
21 years .....
21 days
22 years .....
22 days
23 or more years .....
22 days
When a vacation day is taken, its value will be dependent upon the shift held by the fireman at the time the day is taken. Any
fireman engaged in fighting fires or the actual delivery of emergency medical services shall receive 12 hours off for each vacation
day taken. All other classified personnel shall receive eight hours off for each vacation day taken. Officers and employees whose
absences on authorized vacation leave are for periods other than a full working day as defined herein shall be assessed vacation
leave in proportion to the number of full working days or fractions thereof they are absent.
(Code 1968, § 18-20; Ord. No. 73-2079, § 1, 11-21-73; Ord. No. 74-2184, § 1, 12-17-74; Ord. No. 77-2411, § 1, 11-22-77; Ord. No.
79-1035, § 1, 6-21-79; Ord. No. 80-2873, § 1, 9-30-80; Ord. No. 81-1319, § 1, 7-8-81; Ord. No. 86-489, § 1, 4-9-86; Ord. No. 86-517,
§ 1, 4-15-86; Ord. No. 92-1412, § 1, 10-28-92; Ord. No. 94-189, § 1, 2-23-94; Ord. No. 94-1005, § 1, 9-21-94; Ord. No. 96-1290, §§
25, 26, 12-4-96; Ord. No. 98-669, § 1, 8-19-98).javascript:void(0)
[1] Houston firefighter Steve Williams is no longer a party to this suit, but the parties agreed to keep his name in the style for clarity
and consistency.
[2] For convenience, we hereinafter use "sue or be sued" to refer to the entire class of statutory provisions that do not alone waive
governmental immunity. See Tooke, 197 S.W.3d at 328. Other examples include "prosecute and defend," "defend or be defended,"
"answer and be answered," and "complain and (or) defend." Id. For a partial, but extensive, list of such statutes, see id. app.
[3] See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.02, sec. 22.225(e), 2003 Tex. Gen. Laws 847, 848-49 (codified at TEX.
GOV'T CODE § 22.225(e)).
[4] The Firefighters argue that because the original suit was filed before 2003, the narrower, pre-2003 standard applies. Because
our earlier decision denying jurisdiction and remanding the case to the trial court took place after 2003, the City argues the prior
action was a nullity and the current standard applies.
[5] Governmental immunity is distinct from sovereign immunity, and refers to the protection afforded to political subdivisions such
as counties, cities, school districts, and others. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
[6] For a useful exposition on the two components of sovereign immunity in Texas, see generally James L. Hartsfield, Jr.,
Governmental Immunity from Suit and Liability in Texas, 27 Tex. L. Rev. 337 (1949).
[7] The relevant Ordinances appear in full in the Appendix to this opinion.
[8] The City cites several other court of appeals decisions to support this contention as well, but these cases addressed the
question of what limitations period applies to a statutory right, and none of them considered whether there was a contract. See, e.
g., Creps v. Bd. of Firemen's Relief & Ret. Fund Trs. of Amarillo, 456 S.W.2d 434, 439-40 (Tex. Civ. App.-Amarillo 1970, writ ref'd n.r.
e.).
[9] This rule is echoed in statute of frauds jurisprudence: in order to satisfy a statute of frauds, multiple documents can be read
together. RESTATEMENT (SECOND) OF CONTRACTS § 132.
[10] See, e.g., HOUSTON, TEX., CODE OF ORDINANCES ch. 34, art. I, § 34-3(b) ("[A]ny firefighter . . . who leaves the classified
service for any reason shall receive . . . .") (emphasis added); id. § 34-59(b) ("Any fireman . . . shall be entitled to overtime pay . . . .")
(emphasis added).
[11] Article III is entitled "Fire Department."
[12] This warning is not strictly necessary; offerors generally have the power to revoke or modify offers until the offeree accepts or
performs, assuming the revocation or modification is communicated to the offeree before any attempted acceptance. See Antwine
v. Reed, 199 S.W.2d 482, 485 (Tex. 1947); RESTATEMENT (SECOND) OF CONTRACTS § 42 cmt. a, illus. 1 (offer that states it is
open for thirty days can nevertheless be revoked the next day, unless it was an option contract).
[13] Section 180.006 waives governmental immunity for suits by firefighters or police officers whose employment falls under (1)
Chapters 141, 142, or 143 of the Local Government Code, (2) "a municipal charter provision conferring civil service benefits of a
municipality that has not adopted Chapter 143," or (3) a municipal ordinance enacted under Chapter 142 or 143. TEX. LOC. GOV'T
CODE § 180.006(a). The waiver is limited to "denial of monetary benefits associated with the recovery of back pay" and to certain
related monetary penalties. Id. § 180.006(b)-(c). Finally, section 180.006's waiver does not apply to contract-based claims. Id. §
180.006(c).
[14] Indeed, if the Legislature had intended to reinstate immunity from a suit like the Firefighters' when it enacted section 180.006,
it could have done so by amending section 271.152. See Act of May 25, 2007, 80th Leg., R.S., ch. 1200, § 2, 2007 Tex. Gen. Laws
4071, 4071-72 (amending Chapter 174 of the Local Government Code in light of the addition of section 180.006). However, section
180.006's enabling Act provides that "[a] claim initially asserted before the effective date of this Act is governed by the law in effect
when the claim was initially asserted, and the former law is continued in effect for that purpose." Id. § 3.
[15] We do not decide today whether other documents are incorporated by reference into the unilateral contract evidenced in
Chapter 34, but simply note that, as with any contract, incorporation by reference is possible under contract law. See City of Fort
Worth, 22 S.W.3d at 840-41.
[16] The parties' briefs also contest whether (1) Chapter 143 was "executed on behalf of the local governmental entity" within the
meaning of Local Government Code section 271.151(2), or (2) the City waived that issue in the lower courts. Because Chapter 143
does not independently constitute a contract between the Firefighters and the City, we do not reach either issue.
[17] Both the 1995 and 1997 MCAs contain the following statement of purpose in their preambles: "It is the purpose of this
Agreement to achieve and maintain harmonious relations between the parties; to establish proper standards for wages, hours
and other conditions of employment; and to provide for equitable and peaceful adjustments to differences which may arise."
[18] Article 16 of the 1995 MCA and Article 19 of the 1997 MCA make the following promises, among others, as to the Firefighters'
salary: (1) longevity pay of two dollars bi-weekly for year of service, up to twenty-five years maximum, (2) classification pay as
specified in Local Government Code sections 141.033(b) and 143.111, (3) educational incentive pay, assignment pay, and
bilingual pay as per Local Government Code sections 143.112 and 143.113 and applicable ordinances, and (4) lump-sum
termination pay for "all unpaid salary, accumulated overtime, and compensatory time. They shall also receive a lump sum payment
for vacation leave, holiday leave, and sick leave in accordance with TEXAS LOCAL GOVERNMENT CODE §§143.115, 143.1155
and 143.116, and applicable City of Houston Ordinances."
[19] Article 7 of the 1995 MCA and Article 9 of the 1997 MCA both state "All overtime pay and hours calculations . . . shall be
governed by the Fair Labor Standards Act, and the TEXAS LOCAL GOVERNMENT CODE Chapter 142 and applicable city
ordinances."
[20] Article 17 of the 1995 MCA and Article 20 of the 1997 MCA both promise vacation leave as per Local Government Code §
143.046, "except that employees with [fifteen] or more years of seniority will earn one (1) additional vacation day with pay per year
for each year of longevity in excess of [fifteen], to a maximum of [twenty-two] vacation days per year."
[21] Article 1 of both MCAs defines "employee" as: "all fire fighters, as the term fire fighter is defined in TEXAS LOCAL
GOVERNMENT CODE §143.003(4), in the Houston Fire Department except the head of the department and assistant department
heads in the rank or classification immediately below that of the department head."
[22] It is worth noting that although some language in Local Government Code Chapter 143 likewise appears intended to benefit
firefighters and police officers, that language is not found in a contract, but in a statute (as discussed above). Third-party
beneficiary status is a rule of contract law, not of statutory enforcement or interpretation. As such, third-party beneficiary analysis,
while relevant to the MCAs as contracts, is irrelevant to the preceding discussion of Chapter 143, because it is not, in itself, a
contract.
[23] The City also asserts the Firefighters lack standing because they failed to exhaust the grievance procedures under the MCAs.
The court of appeals did not reach this issue, having incorrectly found a lack of standing based on the language in the MCAs and
section 143.206. We do not decide it either, finding it waived by the City's stipulation that "[a]t the time each Plaintiff received their
termination pay check, Plaintiffs were no longer subject to the jurisdiction of the Civil Service Commission of the City of Houston,
Texas or the grievance procedure in Texas Local Government Code, Chapter 143." See Shepherd v. Ledford, 962 S.W.2d 28, 33
(Tex. 1998). Since the grievance procedure in both MCAs is simply an incorporation of Chapter 143 by reference, the City's
stipulation and waiver extends to them. Indeed, the court of appeals originally acknowledged this stipulation and held the
Firefighters were not required to exhaust the grievance procedures. City of Houston, 183 S.W.3d at 416, 416 n. 4.
[24] The court of appeals did not reach this issue, finding a lack of standing when it incorrectly concluded the Firefighters were
required to show a breach by the Union of the duty of fair representation, as discussed above.
[25] Article 1 of the CBA provides: "`Member,'`Employee,'`Firefighter,' `Member of the Bargaining Unit' means any full time,
permanent paid employee of the Houston Fire Department who has been hired in substantial compliance with Chapter 143 of the
Texas Local Government Code excluding municipal employees (civilians), volunteer fire fighters, applicants and the head of the
Fire Department (Fire Chief)." (Emphasis added.)
[26] Article 21 sets base salary, while Article 23 includes additional salary components, including among others: longevity pay,
classification pay, and education and training pay.
[27] Article 29 specifies regular work hours for Emergency Operations Division firefighters as an average of 46.7 hours per week,
in twenty-four-hour shifts, within a seventy-two-day work cycle. Article 30 provides: "Except as may otherwise be specified in the
terms of this Agreement, all Firefighters shall be compensated at the rate of time-and-one-half (1 1/2) that of their regular rate of
pay for all actual hours worked outside that of their regular scheduled 24 hour shift or work schedule."
[28] Article 20 governs sick leave by incorporating by reference "Chapter 143 of the Texas Local Government Code and applicable
federal statutes."
[29] Article 26 provides modifications to the Firefighters' existing vacation leave entitlement, allowing them to use vacation leave
accrued in a year within the same year, but requiring that a "Firefighter may request the use of additional accrued leave balances,
which shall be subject to the scheduling needs of the Department."
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
City of Houston v. Williams (Tex. 2011),
No. 09-0770 (Tex. Mar 18, 2011) (Guzman)(governmental
immunity)
Section 271.152 of the Local Government Code, under
certain circumstances, waives governmental immunity for
suits alleging breach of a written contract. For a second time
on interlocutory appeal, we review the City of Houston’s plea
to the jurisdiction in a suit by 540 former Houston
Firefighters.1 The Firefighters allege wrongful underpayment
of lump sums due upon termination of their employment, but
the City claims the Firefighters’ suit is barred by
governmental immunity. At issue is whether the City’s
immunity from suit is waived by section 271.152. The
Firefighters point to three distinct writings they assert
constitute qualifying written contracts under that section: (1)
certain City of Houston Ordinances, (2) Chapter 143 of the
Local Government Code, and (3) two Meet and Confer
Agreements (MCAs) and a Collective Bargaining
Agreement (CBA) (collectively, the Agreements) negotiated
by the Houston Professional Fire Fighters Association (the
Union) on behalf of the Firefighters with the City.
We hold the Ordinances and Agreements constitute written
contracts within the scope of section 271.152. But we
conclude that Chapter 143, standing alone, does not
establish a contract between the City and the Firefighters,
and as such does not fall within the scope of section
271.152’s waiver of immunity. Accordingly, we affirm the
court of appeals’ judgment in part, reverse in part, and
remand the case to the trial court for further proceedings
consistent with this opinion.
THE CITY OF HOUSTON v. STEVE WILLIAMS, ET AL.; from Harris County;
14th district (14-08-00059-CV, 290 SW3d 260, 03-31-09)
2 petitions
The Court affirms in part and reverses in part the court of appeals' judgment
and remands the case to the trial court.
Justice Guzman delivered the opinion of the Court. [pdf]
View Electronic Briefs 09-0770 THE CITY OF HOUSTON v. WILLIAMS
No. 09-0770 (Tex. Mar 18, 2011) (Guzman)(governmental
immunity)
Section 271.152 of the Local Government Code, under
certain circumstances, waives governmental immunity for
suits alleging breach of a written contract. For a second time
on interlocutory appeal, we review the City of Houston’s plea
to the jurisdiction in a suit by 540 former Houston
Firefighters.1 The Firefighters allege wrongful underpayment
of lump sums due upon termination of their employment, but
the City claims the Firefighters’ suit is barred by
governmental immunity. At issue is whether the City’s
immunity from suit is waived by section 271.152. The
Firefighters point to three distinct writings they assert
constitute qualifying written contracts under that section: (1)
certain City of Houston Ordinances, (2) Chapter 143 of the
Local Government Code, and (3) two Meet and Confer
Agreements (MCAs) and a Collective Bargaining
Agreement (CBA) (collectively, the Agreements) negotiated
by the Houston Professional Fire Fighters Association (the
Union) on behalf of the Firefighters with the City.
We hold the Ordinances and Agreements constitute written
contracts within the scope of section 271.152. But we
conclude that Chapter 143, standing alone, does not
establish a contract between the City and the Firefighters,
and as such does not fall within the scope of section
271.152’s waiver of immunity. Accordingly, we affirm the
court of appeals’ judgment in part, reverse in part, and
remand the case to the trial court for further proceedings
consistent with this opinion.
THE CITY OF HOUSTON v. STEVE WILLIAMS, ET AL.; from Harris County;
14th district (14-08-00059-CV, 290 SW3d 260, 03-31-09)
2 petitions
The Court affirms in part and reverses in part the court of appeals' judgment
and remands the case to the trial court.
Justice Guzman delivered the opinion of the Court. [pdf]
View Electronic Briefs 09-0770 THE CITY OF HOUSTON v. WILLIAMS
