Antony TIJERINA, Petitioner, v. CITY OF TYLER, Respondent, 846 S.W.2d 825

OPINION DOGGETT, Justice. We consider whether a fire department employee is entitled to pay for time spent on call and determine that both of the applicable statutes mandate such compensation. I. Antony Tijerina worked as a fire investigator for the City of Tyler from September 16, 1984, through April 27, 1987. In addition to working a 40-hour week, Tijerina was sometimes available for recall while not on regular duty, during which time he would remain in contact with the fire department by use of radio pager or walkie-talkie.

Although the City paid him for time spent on regular duty and for investigations he conducted when recalled, it did not compensate him for time spent on call while not performing other duties. Tijeri-na brought this action under two pre-1987 versions of

article 1269p, § 6 to recover compensation for that time. The trial court granted

summary judgment for the City, and the court of appeals affirmed. 822 S.W.2d 799. We reverse the judgment of the court of appeals and' remand for trial. II. The pre-1987 versions of

article 1269p, § 6, provided in relevant part: (b)... [T]he number of hours in the work cycle [week] of members of the fire department whose duties do not include fighting fires, including but not limited to mechanics, clerks, investigators, inspectors, fire marshals, fire alarm dispatchers and maintenance men, shall not, except in an emergency, average more hours in a week than [exceed] the number of hours in the normal work week of the majority of the employees of said city other than fire fighters and police officers [firemen and policemen]_ (c) ... [I]n computing the hours in the work week or the average number of hours in a work week in a work cycle of a fire fighter or other member of the fire department [of-firemen] subject to the provisions of this

section [the preceding paragraph], there shall be included and counted any and all hours during which such fire fighter or other member of the fire department is [firemen-are] required to remain available for immediate call to duty by continuously remaining in contact with a fire department office by telephone or radio. (

d) A fire fighter or other member of the fire department who is required in an emergency to work more hours in a work week or work cycle than authorized by Subsection (

a) or (

b) of this

section is entitled to be paid overtime for the excess hours worked in accordance with Subsection (

e) of this

section without regard to the number of hours worked in any one week of the work cycle. (

e) A fire fighter or other member of the fire department [Provided, however, that in any such city-having more than ten thousand (10,000)-inhabitants, in the event-ef an emergency, firemen] may be required to work more than the maximum hours herein provided; and in such event the fire fighter or other member of the fire department [firemen] working more than the maximum hours herein provided shall be compensated for such overtime at a rate equal to one and one-half times the compensation paid to the fire fighter or other member of the fire department [such firemen] for regular hours.

Tijerina argues that both of these pre-1987 versions define time spent on call as work for which compensation is due, since the term “work week” or “work cycle” is defined to include hours during which an employee is “required to remain available for immediate call to duty by continuously remaining in contact with a fire department office by telephone or radio.” In 1985, “work cycle” was expressly defined to include “other member[s]” of the department as well as fire fighters.

The 1959 version had the same effect by defining “work week” to include “firemen subject to the provisions of the preceding paragraph”, which paragraph encompassed “members of the fire department whose duties do not include fighting fires.” While these unambiguous statutory

definitions provide sufficient support for Tijerina’s contention, he also appropriately relies on our only prior decision addressing this particular statute. In Kierstead v. City of San Antonio, 643 S.W.2d 118 (Tex.1982), we stated that “[a]ny kind of official work assignment that does not include firefighting and exceeds the regular 40 hour week is compensable as overtime.” Id. at 121 (interpreting the 1959 version). The City concedes that it assigned Tijerina to on call duty; such a mandatory directive is an “official work assignment” under this statute.

This same statute in its 1959 form has been held twice to mean exactly what it says — that cities must pay fire department employees for time spent “available for immediate call to duty by continuously remaining in contact with a fire department office by telephone or radio.” See Harrison v. City of Victoria, 730 S.W.2d 119, 121 (Tex.App—1987, writ ref’d n.r.e.); City of Brownsville v. Salazar, 712 S.W.2d 577, 580 (Tex.App.—Corpus Christi 1986, no writ). The court in City of Dallas v.

Spainhouer, 758 S.W.2d 611, 621 (Tex.App.—Dallas 1988, writ denied), reached a contrary result that the statute has at no time required a city to compensate fire department employees for portions of the “work week” or “work cycle” in which they are not actually working. This conclusion was based primarily on the last two paragraphs of the 1985 version and the last paragraph of the pre-1985 version, which establish the circumstances under which employees are entitled to overtime compensation.

Id. at 614. “[R]equir[ing] overtime pay only for hours actually worked in excess of the maximum set by the statute,” this provision allegedly does not require compensation for time spent on call that could be used for personal purposes and was thus not spent “on the job.” Id. (emphasis in original). This reasoning renders the statutory

definitions of “work week” and “work cycle” meaningless. If the Legislature had not intended that fire department employees be paid for time spent on call, it would not have expressly included such time within these

definitions. Whether or not time spent on call would ordinarily be considered “work” is not the determining factor when the statute clearly defines it as such. Statutory

definitions must be given effect; ordinary meanings should be applied only to undefined terms. See Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.1987). The City also argues that through 1987 amendments to

article 1269p, § 6, the Legislature clarified its desire that cities not be required to pay employees for all periods of time they are subject to recall. Under these amendments, on call time is part of an employee’s “work cycle” only when the employee “is required to remain ... on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes.” Act of Aug. 31, 1987, 70th Leg., R.S., ch. 933, § 1, 1987 Tex.Gen. Laws 3124; Act of Aug. 4, 1987, 70th Leg., 2d C.S., ch. 63, § 1, 1987 Tex.Gen.Laws 203.

Without any explanation or support from the words of the statute or its legislative history, the City argues that this amendment is a “clarification” of prior versions rather than a change in their substance. See Spainhouer, 758 S.W.2d at 615. However, the 1987 amendments clearly changed the effect of the statute because paragraph (

c) of the 1985 version and the corresponding portion of the pre-1985 version both provide that “any and all hours” during which an employee is required to remain in contact with the fire department by radio or telephone are part of the “work cycle” or “work week.” To read the limitation imposed by the 1987 amendments into this definition would directly contradict the plain wording of the prior statutes. III. The underlying issue posed by the dissent is whether a court should invalidate legislation when a judge declares this “strikes me as odd.” 846 S.W.2d at 831.

Surely the effect of this now repealed statute is “odd.” The notion that public employees should be paid when principally engaged in personal pursuits does not strike any of the members of this Court as sound policy. But as judges, we are called upon to apply a statutory command even when it produces a policy of which we disapprove. To manipulate and misconstrue statutory language in the manner urged by the dissent would provide a precedent for abuse of judicial power far more costly than any matter directly at issue today.

While we may permissibly consider public policy in construing the intent of the Legislature from an ambiguous provision, we cannot rewrite or, as the dissent attempts to do, deconstruct a plainly worded statute because we believe it does not effectuate sound policy. See Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983) (“[i]f the disputed statute is clear and unambiguous extrinsic aids and rules of statutory construction are inappropriate”) (citing Ex Parte Roloff, 510 S.W.2d 913, 915 (Tex.1974)); RepublicBank Dallas, N.A. v.

Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) (“[ujnless a statute is ambiguous, we must follow the clear language of the statute”). Today we do not approve the wisdom of the Legislature’s decision to require that cities pay fire department employees for on call time, but we recognize that the Legislature in pre-1987 versions of the statute unequivocally implemented that requirement. While the dissent contends that the Legislature’s failure to define expressly “immediate call” and “continuously in contact” renders this enactment ambiguous, we disagree.

The reading urged by the dissent contradicts the statutory language providing that employees be paid for remaining in contact “by telephone or radio.” If, as the dissent argues, this phrase requires that employees remain at the fire station, 846 S.W.2d at 830, then there would obviously be no need for either employer or employee to contact one another by telephone or radio.

Furthermore, if the Legislature’s original policy choice was wrong, it was corrected when the statute was amended in 1987 to redefine work so that “[t]he time a person is required to leave a telephone number where he or she may be reached, or is required to remain accessible by radio or pager is not considered as hours worked.” Act of Aug. 31, 1987, 70th Leg., R.S., ch. 933, § 1, 1987 Tex.Gen.Laws 3124. Apparently, the older provision also struck the Legislature as “odd,” but that does not justify this Court’s invalidating an unequivocal statutory command solely because a judge finds it personally displeasing.

Accordingly, we disapprove of the writing in Spainhouer, Finally, the City claims that the Legislature inadvertently placed three paragraphs of the 1959 version in the wrong order, and that, when appropriately reconstructed, that version’s definition of “work week” applies only to fire fighters and not to other department employees. Even if the statute was ambiguous, such a radical construction would require compelling evidence of legislative intent, none of which the City offers. The statute plainly encompasses all employees of the fire department, including those who do not fight fires.

See Harrison, 730 S.W.2d at 120 (rejecting a similar argument). IV. We remand this case to the trial court to determine whether while Tijerina was on call he was required to remain in “continuous contact” with the department and was subject to “immediate call to duty,” such that his on call duty was part of his “work cycle” or “work week” as defined by the pre-1987 versions of

article 1267p, § 6. If his on call duty required him to be within reach by radio pager or telephone at all times, Tijerina was in “continuous contact”; and further, if his duty when called was to arrive in some reasonable amount of time, allowing for preparation and travel, he was subject to “immediate call.” V. We reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion. .

The Legislature amended this statute both in June 1985 and August 1987, and thus two different pre-1987 versions apply to Tijerina’s claim— one effective prior to June 1985 ("1959 version”), and one after ("1985 version"). . The two versions are set out in the format used by the Legislature, in which language unique to the pre-1985 version is bracketed and struck out, language added by the 1985 amendments is italicized, and language common to both is in ordinary roman type.

See Act of June 14, 1985, 69th Leg., R.S., ch. 725, § 1, 1985 Tex.Gen.Laws 2522-23. .Act of June 14, 1985, 69th Leg., R.S., ch. 725, § 1, 1985 Tex.Gen.Laws 2522-23 amended Act of June 1, 1959, 56th Leg., R.S., ch. 356, § 1, 1959 Tex.Gen.Laws 781-82. This statute was originally codified at art. 1583-1,

section 6 of the Texas Penal Code, until that code was revised in 1973 and the statute was redesignated art. 1269p,

section 6, Texas Revised Civil Statutes. . The 1987 Legislature also repealed the statute and recodified it as Texas Local Government Code § 142.001. Act of May 1, 1987, 70th Leg., R.S., ch. 149 §§ 1, 49, 1987 Tex.Gen.Laws 707, 881-82, 1307. While the codification did not reflect the 1987 change to the statute, the amendment remained operative under the proviso of Tex. Govt.Code Ann. § 311.031(c). The Legislature reintroduced the above-quoted language to the codified version of the statute as part of

Section 142.0015, which was added to the TexXocal Govt.Code in 1989. Act of March 1, 1989, 71st Leg., R.S., ch. 1, §§ 1(a), 24(a), 1989 Tex.Gen. Laws 1, 29. . That writing was persuasively critiqued: the majority substitutes its rationale of what the Legislature must have intended for the consequences of what the Legislature plainly did. Actions speak louder than words and here we do not even have words; only the active imagination of the majority and what it deduces must have been the Legislature's intent regarding the pre-1987 versions of the statute. 758 S.W.2d at 621 (Baker, J., dissenting).