Odle v. City of Denison

ON APPLICATION FOR WRIT OF ERROR OPINION COOK, Justice. This case presents the question whether, under article 1269m section 26 of the Revised Civil Statutes, a fire fighter who was involuntarily retired is entitled to be paid for all his accumulated sick leave. We hold that he is and, therefore, reverse the judgment of the court of appeals, 808 S.W.2d 153, and affirm the judgment of the trial court. Captain R.H. Odie was a fire fighter for the City of Denison (the City) for more than thirty years. In August 1985, while working in the line of duty, Odie sustained a back injury that rendered him permanently disabled. The City placed Odie on an injury leave of absence for twenty-three months. During this time he received full compensation. On July 31, 1987, over his objection, Odie was retired from the fire department. Although Odie had accumulated 473 days of sick leave at a rate of fifteen days per year, the City paid him only ninety days’ worth of sick leave. Odie then brought this suit against the City for all accumulated sick leave. On stipulated facts, the trial court granted summary judgment for Odie and awarded him full compensation, interest, and attorney’s fees. The court of appeals reversed and remanded the cause to the trial court. [936] Odle’s right to compensation for his accumulated sick leave is controlled by article 1269m section 26, of the Revised Civil Statutes.1 That statute allows fire fighters to accumulate sick leave at the rate of fifteen days per calendar year. Art. 1269m § 26(a). The statute further provides that sick leave “may be accumulated without limit and may be used while an employee is unable to work because of any bona fide illness.” Art. 1269m § 26(b). However, if the fire fighter “leaves the classified service,” he is entitled to receive only a lump sum payment for up to ninety days’ worth of his accumulated sick leave. Art. 1269m § 26(c). Therefore, in order to recover all his accumulated sick leave, Odie must demonstrate that his inability to work was the result of a “bona fide illness” and that he did not “leave” the service of the fire department. For the following reasons, we hold that Odie met this burden. Section 26(b) states that sick leave may be used when a fire fighter is unable to work because of “any bona fide illness.” Although this language might appear to prevent the use of sick leave when a fire fighter is suffering from an injury instead of an illness, that result clearly was not intended by the legislature. Section 26(g), which relates to temporary disabilities incurred outside the line of duty, provides that a fire fighter who is disabled either by an illness or by an injury may use all his accumulated sick leave before being placed on temporary leave. To be able to use accumulated sick leave, a fire fighter must be suffering from a “bona fide illness.” Therefore, that term, as used in article 1269m section 26(b), must include both illnesses and injuries. If we held otherwise “bona fide illness” would include injuries sustained outside the line of duty but would not include injuries incurred in the line of duty. We decline to sanction this disparity. The “bona fide illness” requirement found in section 26(b) is merely a way to ensure that sick leave is used only when a fire fighter is suffering from a genuine disability. The requirement is intended to prevent the use of sick leave for feigned disabilities. This language does not prevent fire fighters from using sick leave when they are suffering from an injury sustained in the line of duty. The court of appeals held that the language in section 26(c), “leaves the classified service,” means “leaves the classified service, whether voluntarily or involuntarily.” We disagree. The term “leave” connotes a voluntary departure.2 Therefore, in City of Fort Worth v. Bostick, 479 S.W.2d 350 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n.r.e.), the court correctly determined that, as used in section 26(c), the word “leave” implies “voluntary action or the exercise of volition by the person leaving.” Id. at 354. In City of Galveston v. Landrum, 533 S.W.2d 394 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.), the court rejected this holding of Bostick. Id. at 396-97. In Landrum two police officers contended that they were entitled to payment for all accumulated sick leave when they reached the mandatory retirement age of 65. Therefore, unlike the fire fighter in Bostick, the police officers were not suffering from a “bona fide illness.” In fact, the Landrum court approved of the holding in [937] Bostick that “a city cannot terminate an employee who is sick and desires to use accumulated sick leave until it is fully used_” Id. We disapprove of the portion of Landrum that holds that the term “leaves the classified service” means “leaves the classified service, whether voluntarily or involuntarily.” Id. Because Odie was involuntarily retired, he did not “leave” the fire department and is not limited to payment for only 90 days’ worth of his accumulated sick leave. In determining that Odie was not entitled to be paid for all his sick leave, the court of appeals focused on section 26(b). That section provides: Sick leave with pay may accumulate without limit and may be used while an employee is unable to work because of any bona fide illness. In the event that the said employee can conclusively prove that the illness was incurred while in performance of his duties, an extension of sick leave in case of exhaustion of time shall be granted. Art. 1669m, § 26(b). The court of appeals determined that if it permitted a permanently disabled fire fighter like Odie to use all his accumulated sick leave, the second sentence of section 26(b) would allow a fire fighter disabled in the line of duty to stay on sick leave for the rest of his life. The court stated that this result would create an irreconcilable conflict with article 6243e section 7, of the Revised Civil Statutes3 which permits the involuntary retirement of disabled fire fighters. Therefore, the court of appeals held that section 26(b) applied only to temporary disabilities. The conflict perceived by the court of appeals, however, does not exist. The second sentence of section 26(b) does not mean that fire fighters injured in the line of duty would be entitled to sick leave for life. That sentence entitles fire fighters with a line of duty disability to an extension of “sick leave.” “Sick leave” is leave which is earned at the rate of 15 days per calendar year. Art. 1268m § 26(a). It is earned leave which is specifically tied to the length of service. Where a fire fighter is to be credited with unearned leave because of a line of duty disability, the term “leave of absence” is used Art. 1268m § 26(e). The second sentence of section 26(b) does not provide that a fire fighter with a line of duty disability shall be granted an extended leave of absence after their sick leave is exhausted. Instead, the second sentence states that the fire fighter is to receive an extension of sick leave. In this context, the words “extension of sick leave” mean an advance of sick leave. Therefore, a fire fighter with a line of duty disability is entitled to an advance of sick leave. The sick leave which is advanced must be earned after the fire fighter returns to duty. Therefore, a permanently disabled fire fighter would not be entitled to an advance of sick leave because he would be unable to later earn the sick leave advanced to him. As a result, section 26(b) does not conflict with article 6243e. We reject the court of appeals’ holding that section 26(b) only applies to temporary disabilities. We are not presented with, nor do we address the question of what amount of sick leave must be extended to a fire fighter who is not permanently disabled. We hold that Odie is entitled to compensation for what he earned — 473 days of accumulated sick leave. Therefore, we reverse the judgment of the court of appeals and affirm the judgment of the trial court. Dissenting Opinion by Chief Justice PHILLIPS joined by Justices GONZALEZ, HECHT, and CORNYN. Dissenting Opinion by Justice HECHT. Footnotes [1] See Act of June 17, 1983, 68th Leg., R.S., ch. 420, § 11, 1983 Tex.Gen. Laws 2246, 2270-73, repealed by Act of May 21, 1987, 70th Leg., R.S., ch. 149, § 49, 1987 Tex.Gen. Laws 707, 1307 (current version at Tex. Local Gov’t Code Ann. §§ 143.045, 143.073, 143.074 (Vernon 1988)). [2] See King v. American Academy of Dramatic Arts, 102 Misc.2d 1111, 425 N.Y.S.2d 505, 507 (1980) (finding that "leave” connotes voluntary departure and does not include expulsion); Turley v. John Hancock Mut. Life Ins. Co., 110 Pa.Super. 578, 168 A. 356 (1933) (stating that word “leaving” must be construed in its usual sense with reference to employment and involves some voluntary act on the part of employee); Muesling v. International Ry. Co., 85 Misc. 309, 147 N.Y.S. 177 (1914) (stating that primary meaning of “leave” is to quit or depart, implying volition on the part of the person leaving or departing). But see Olliver/Pilcher Ins., Inc. v. Daniels, 148 Ariz. 534, 715 P.2d 1222, 1224 (1985), vacated on other grounds, 148 Ariz. 530, 715 P.2d 1218 (1986) (rejecting argument that language "leave our employment" in covenant not to compete refers only to employees who voluntarily leave). [3] See Act of May 22, 1957, 55th Leg., R.S., ch. 275, § 5, 1957 Tex.Gen.Laws 617, 622-23, amended by Act of May 15, 1989, 71st Leg., R.S., ch. 98, 1989 Tex.Gen.Laws 426.