Firefighters score a win in court

I confess, I had forgotten about this.

A panel of appellate court judges on Thursday rejected the city’s attempt to strike down a key provision of state law that governs how police and firefighters negotiate their wages and benefits, dealing a blow to Mayor Sylvester Turner in his long-running dispute with the Houston fire union.

Barring a city appeal, the ruling clears the way for a judge to set Houston firefighters’ pay for up to a year and compensate them for “past losses.”

Firefighters have received raises of just 3 percent since 2011, after rejecting offers they say included too many concessions. Voters in 2018 approved a ballot measure granting firefighters pay “parity” to police of similar rank and seniority, but a district judge ruled the measure unconstitutional.

Thursday’s ruling came in a case that arose in June 2017 after Turner and the Houston Professional Fire Fighters Association failed to agree on a new contract through collective bargaining.

The union sued the city, claiming Turner’s administration failed to negotiate in good faith. As part of that lawsuit, the firefighters invoked a provision of state law that allows a state district judge to set their pay after Turner declined to enter contract arbitration. The city responded by arguing it was unconstitutional for judges to determine the pay of firefighters and police officers.

Justices Ken Wise, Charles A. Spain and Meagan Hassan of Texas’ 14th Court of Appeals sided against the city, ruling the provision does not run afoul of the Texas Constitution separation of powers clause that prohibits one branch of government — the judiciary, in this case — from exercising power that belongs to another branch.

The justices also rejected the city’s argument that state lawmakers did not set specific enough guidelines for courts to determine firefighters’ compensation. Texas law requires public employers to give firefighters pay that is “substantially equal” to “comparable employment in the private sector.”

“The Legislature chose sufficiently detailed but not too confining language to account for the many different circumstances affecting compensation and other conditions of employment,” the justices wrote in their opinion, in which they also ordered the city to cover the fire union’s legal fees.

See here for the background, and here for a copy of the opinion. In the story, the city said it hadn’t decided whether or not to appeal this ruling. It would be fine by me if the next step were for the city and the firefighters to try the bargaining table again. Or I guess they could roll the dice and let a judge decide the firefighters’ salaries, as they had tried to make happen. Who knows how that might turn out?

Related Posts:

This entry was posted in Legal matters and tagged , , , , , , , . Bookmark the permalink.

11 Responses to Firefighters score a win in court

  1. David Fagan says:

    Who has two thumbs and is happy about this?


  2. Jason Hochman says:

    I signed the new petition for the firefighters. They were outside the post office there.

    It is reprehensible how Turner kept the first petition off the ballot, and then blamed Mrs. Russell for not counting the signatures fast enough. Mrs. Russell was one of the nicest, most hard working people at City Hall, and wouldn’t have delayed the count.

    It is also reprehensible how Turner talks about “police reform,” yet did nothing and has done nothing to get justice in the killing of the Tuttles. He needs to go up to Minnesota and see how it’s done. Chauvin was suspended immediately after the killing, fired the next day, and convicted in under one year. He’ll probably be executed by the end of the year. Meanwhile, in the Tuttle killings, there is much more clear cut of a case for murder. I don’t see how they proved that Chauvin’s intent was to kill. Meanwhile the cops who killed the Tuttles breached the home and were carrying machine guns. That is much more murderous intent. The cops were never fired, much less charged, until the federal charges were filed. And still no convictions, over two years later.

    Impeach Turner.

  3. Manny says:

    When a Russian bot claims to live in Houston it tends to make errors.

    David, I support the firefighters, I signed their petition and I agree with equity. But should it come up again, because of you I will choose not to take sides?

  4. David Fagan says:

    Just like every American, including me, you are fully entitled to make your decisions based on your values, Manny. I’ve said it before and I’ll say it again. But. Please don’t think for a second your opinion dictates mine.

    Happy Mother’s day, Manny!

  5. Manny says:

    I form opinions based on people like you, David, and my opinion of firefighters has gone down because of people like you.

    So if the city appeals and the state supreme court overrules the appeals court, I will come here and give it two thumbs up. Or if it goes back to the court that ruled against the firefighters and the judge’s idea of what firefighters should get, I will cheer.

    That is what the David Fagans of the world do.

  6. David Fagan says:

    Manny, you make absolutely zero sense, but have fun with that.

  7. mollusk says:

    Chauvin will not be executed. His charges wouldn’t support it, even here in Texas. Beyond that, Minnesota abolished the death penalty in 1911.

  8. Manny says:

    David, I am sorry, but I try to write where people with a sixth-grade education would comprehend. I feel sorry for you.

  9. Jason Hochman says:

    mollusk, if the death penalty is banned in Minnesota, they will make sure that Chauvin has a fight or maybe suicide in prison.

  10. Pingback: Houston gets to have a boring budget – Off the Kuff

  11. Kibitzer Curiae says:


    Besides the outcome – the City lost again, but not finally — the appellate portion of this dispute is interesting for appellate nerds and for folks doing empirical legal research, and – by extension – those who advance arguments based on appellate court activity statistics.

    Regarding the latter, we have an example that illustrates how the appellate caseload of a court of appeals is affected not just by litigiousness of plaintiffs, but also by the aggressiveness of defendants.

    Here, the City of Houston is the Defendant and filed two appeals, not just one, and neither one involves a final judgment, leaving open the possibility of additional litigation activity, i.e., the third appeal, or even more.

    But any future appeal will have to go back to the same appellate court, based on local rules governing First and Fourteenth COA. Ergo, no guessing as to which COA’s precedents apply going forward.


    So, for counting, i.e. statistical, purposes, there is one underlying case in the trial court, but — so far — there are two appellate case numbers (NO. 14-18-00976-CV and NO. 14-18-00990-CV) associated with it, although the two appeals were here consolidated and resolved through a single opinion. Worth remembering this scenario next time you hear an argument about imbalances in the caseloads pro judge, and an alleged need to revamp the entire appellate system to correct such inefficiencies. One opinion could actually involved 2 appeals, and 2 appeals could actually involve a single lawsuit, not to mention that appeals vary greatly in complexity, which affects the time justices and staff attorneys have to spend on it.

    And also remember that individual justices have the option to write a separate opinion if they find themselves in disagreement with the majority on the panel (or the entire court, on an en banc rehearing motion). This didn’t happen here, but it occurred in another recent case involving the City of Houston, in which Justice Randy Wilson wrote a dissent. That was in 14-19-00214-CV, the Turner v. Pidgeon same-sex benefits case. Disagreements among justices can slow cases down, and courts and panels with mixed composition are more prone to find themselves disagreeing.


    One appeal in the fire fighter litigation is an interlocutory appeal of the denial of the City’s jurisdictional plea in the trial court (based on an assertion of immunity), the other one is a *permissive* appeal on the constitutionality of a particular portion of the state statute at issue. The latter category of appeal is rare and requires that both the trial court and the court of appeals agree that the parties’ dispute presents an important legal issue that merits immediate attention, and should not therefore be deferred to an appeal from a final judgment.

    Here, the City challenged the constitutionality of a legislative delegation of power to the judiciary, namely the power of a district judge to set adequate compensation in the event no collective bargaining agreement (CBA) is reached and arbitration is not used to resolve the labor dispute. Specifically, the challenged statute provides that “a district court for the judicial district in which a majority of affected employees reside may enforce the requirements of Section 174.021 as to any unsettled issue relating to compensation or other conditions of employment of fire fighters…”. It’s a fallback provision for the benefit of public employees who are not permitted to go on strike, and have weaker collective bargaining leverage vis- à-vis their public employer for that reason.

    The City of Houston failed in both appeals, but Justice Hassan went to considerable length setting forth the reasoning why the separations-of-powers principle was not violated.

    You can access the 34-page PDF opinion via the docket sheet at

    Note that similar legal arguments about unconstitutional delegation of powers to another branch have been made in legal challenges to Gov. Abbott’s emergency orders based on the Texas Disaster Act.

    When the constitutionality of a statute is challenged, the Attorney General must be given notice and an opportunity to defend that statute (unless the AG is already involved in the case). Here, AG Paxton didn’t file a brief. That’s another interesting aspect of this case in the bigger scheme of things.

    Additionally, there is a procedural particularity related to elections. The appeal was filed in 2018, and the composition of the appellate court has changed in the interim (twice). That necessitated a reconstitution of the three-justice panel to resolve it. Over the entire course of the appellate litigation, more than just three appellate judges dealt with this dispute. The justices on the original panel that issued the consolidation order – Frost, Jamison, and Donovan – are all gone from the court. One can only speculate how they would have decided.

    It will be interesting to see whether the City of Houston requests rehearing en banc, or files a petition in the Texas Supreme Court in a bid to obtain a different outcome from the court of last resort.

Comments are closed.