Opinion=20
issued May 5, 2006
=
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-04-00807-CV
__________
CITY =
OF HOUSTON,=20
Appellant
V.
THE =
HOUSTON=20
FIREFIGHTERS=E2=80=99 RELIEF AND RETIREMENT FUND, =
Appellee
On =
Appeal from=20
the 151st District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 1997-22188
O P I =
N I O=20
N
<=
/SPAN>Appellant,=20
the City of Houston (the =E2=80=9CCity=E2=80=9D), challenges the =
trial court=E2=80=99s summary=20
judgment rendered in favor of appellee, the Houston =
Firefighters=E2=80=99 Relief=20
and Retirement Fund (the =E2=80=9CFund=E2=80=9D), affirming the =
Fund=E2=80=99s decision to award=20
prior service credits to 22 firefighters pursuant to the Texas =
Local Fire=20
Fighters Retirement Act ![3DFootnote](3D"")
(the =
=E2=80=9CAct=E2=80=9D) and ordering the City to pay its =
statutorily=20
required contributions pursuant to the Act.
In=20
five issues, the City contends that the trial court erred in =
granting=20
summary judgment because (1) the=20
trial court lacked subject matter jurisdiction over the case =
because the=20
firefighters =E2=80=9Cfailed to comply with the 20-day mandatory =
jurisdictional=20
requirement for appealing the decision of the Fund,=E2=80=9D (2) =
the firefighters=20
failed to timely apply for the prior service credits within 60 =
days of=20
membership in the Fund, (3) the firefighters failed to meet =
certain=20
conditions precedent to obtain prior service credits, (4) the =
City=E2=80=99s=20
payment of contributions for prior service credits would =
constitute an=20
illegal =E2=80=9Cgift of public funds,=E2=80=9D and (5) the =
firefighters and the Fund are=20
estopped from bringing their claims by the doctrine of laches. =
Also, the=20
City, in a supplemental issue, contends for the first time on =
appeal that=20
the Fund=E2=80=99s action against the City =E2=80=9Cis barred by =
sovereign=20
immunity.=E2=80=9D
<=
/SPAN>We=20
affirm.
Background
<=
/SPAN>The=20
Fund is a statutory firefighters=E2=80=99 pension fund created by =
former article=20
6243e.2 of the Texas Revised Civil Statutes.
In 1995 and 1996, approximately 100 City =
firefighters applied to the Fund for prior service credits toward=20
retirement under section 30 of former article 6243e.2, which =
provided that=20
a firefighter may receive or transfer service credits toward =
retirement=20
for time previously worked in another fire department if certain =
statutory=20
criteria are met. See former Tex. Rev. Civ. Stat. =
Ann. art.=20
6243e.2, =C2=A7 30(a).
<=
/SPAN>On=20
January 23, 1997, after =
holding=20
hearings in which the firefighters were permitted to offer proof =
in=20
support of their applications for prior service credits, the board =
of=20
trustees for the Fund (the =E2=80=9CBoard=E2=80=9D) determined =
that 22 of the=20
approximately 100 firefighters met the eligibility criteria of the =
pension=20
statutes. The Board approved the applications of these 22 =
firefighters,=20
contingent upon the City making its statutory contributions as =
required by=20
section 30 of former article 6243e.2. Id. The Board denied the remaining=20
applications.
<=
/SPAN>The=20
firefighters then made a demand on the City for the required =
statutory=20
contributions. Following the City=E2=80=99s rejection of this =
demand, all of the=20
approximately 100 firefighters who had applied for prior service =
credits,=20
including both those whose applications were approved and those =
whose were=20
denied, filed suit against =
the Fund=20
seeking judicial review of the Board=E2=80=99s decisions. =
The 22 firefighters whose =
applications were=20
approved filed suit, in part, to challenge the Fund=E2=80=99s =
conditioning of the=20
award of prior service credits upon the City first making its =
required=20
statutory contributions. The firefighters also filed suit against =
the City=20
for its refusal to make its statutorily required =
contributions. The Fund=20
subsequently filed a cross-claim against the City, seeking a =
declaratory=20
judgment that the City was obligated to make its statutory =
contributions=20
to the Fund for the 22 approved applications for prior service =
credits and=20
an injunction ordering the City to pay its required contributions =
for=20
these firefighters.
<=
/SPAN>The=20
parties filed cross-motions for summary judgment and/or dismissal. =
In an=20
order dated June 9, 2000, the trial court granted the =
Fund=E2=80=99s summary=20
judgment motion on its claims against the City, granted the Fund=E2=80=99s motions to =
dismiss and for=20
summary judgment as to the firefighters=E2=80=99 claims, denied =
the firefighters=E2=80=99=20
cross-motions for summary judgment, and denied the City=E2=80=99s =
motion for=20
summary judgment.
Governmental=20
Immunity
<=
/SPAN>At the outset, we note that the City, in =
a=20
supplemental issue in its reply brief, for the first time in this =
case,=20
argues that the trial court =
lacked=20
subject matter jurisdiction over the Fund=E2=80=99s action because =
the=20
firefighters, =E2=80=9Cby seeking back pay and interest,=E2=80=9D =
are making claims for=20
money damages. The City =
notes that=20
=E2=80=9Cit is established that a suit which is brought ostensibly =
for the purpose=20
of declaring rights, but actually seeks to impose liability on a=20
subdivision of a state, is barred by sovereign immunity.=E2=80=9D =
See Thayer v.=20
Houston Mun. Employees Pension Sys., 95 S.W.3d 573, 577 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2002, no pet.). The City appears to concede that its =
immunity=20
would have been waived if the Fund had sought to construe a =
legislative=20
pronouncement or if it had =E2=80=9Ca mandatory statutory =
obligation=E2=80=9D to make the=20
contribution. However, the City asserts that because the =
firefighters did=20
not meet the prescribed statutory criteria, there was no such =
obligation=20
and, thus, no waiver of its immunity.
<=
/SPAN>The=20
Fund argues that the City is not entitled to governmental immunity =
because=20
the Fund =E2=80=9Cneither sought nor received a money =
judgment,=E2=80=9D the City=E2=80=99s=20
obligation to make the statutory contribution =E2=80=9Cis =
ministerial,=E2=80=9D=20
=E2=80=9C[governmental] immunity does not protect the [City] from =
suits for=20
injunctive or declaratory relief,=E2=80=9D and the trial court =
merely ordered the=20
City to comply with its statutory obligation. Alternatively, the =
Fund=20
contends that the City waived its governmental immunity from=20
suit.
<=
/SPAN>Under=20
the doctrine of governmental immunity, a unit of government may =
not be=20
sued without the express consent of the Legislature. =
Gen. Servs. Comm=E2=80=99n v. Little-Tex =
Insulation=20
Co., 39 S.W.3d 591, 594 =
(Tex.=20
2001). Governmental =
immunity=20
generally serves to protect governmental units from lawsuits for =
money=20
damages. Id. It also protects a governmental unit from =
lawsuits=20
that seek to control the unit=E2=80=99s lawful actions by a final =
judgment made by=20
a court of law. Tex. Mun. Power Agency v. Pub. Util. =
Comm=E2=80=99n, 100=20
S.W.3d 510, 515 (Tex. App.=E2=80=94Austin 2003, pet. denied). In =
the absence of a=20
waiver of governmental immunity, a court has no subject matter=20
jurisdiction to entertain a suit against a governmental unit. =
Tex.=20
Dep=E2=80=99t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. =
1999).
<=
/SPAN>Here,=20
the Fund seeks declaratory relief under the Uniform Declaratory =
Judgment=20
Act (=E2=80=9CDJA=E2=80=9D), which is a =E2=80=9Cremedial statute =
designed to settle and to afford=20
relief from uncertainty and insecurity with respect to rights, =
status, and=20
other legal relations=E2=80=9D and allows courts to declare relief =
whether or not=20
further relief is or could be claimed. Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 37.002(b) (Vernon =
1997). The DJA provides that =E2=80=9C[a] =
person . . . whose=20
rights, status, or other legal relations are affected by a statute =
. . .=20
may have determined any question of construction or validity =
arising under=20
the . . . statute . . . and obtain a legal declaration of rights, =
status,=20
or other legal relations thereunder.=E2=80=9D =
Id. =C2=A7 37.004(a).
<=
/SPAN>The=20
Texas Supreme Court has noted that certain declaratory judgment =
actions do=20
not implicate the doctrines of sovereign or governmental =
immunity. See,=20
e.g., Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. =
1994);=20
Tex. Highway Comm=E2=80=99n v. Tex. Ass=E2=80=99n of Steel =
Imps., Inc., 372 S.W.2d=20
525, 530 (Tex. 1963); and Cobb v. Harrington, 190 S.W.2d =
709, 712=20
(Tex. 1945). Accordingly, Texas courts =E2=80=9Cdistinguish suits =
to determine a=20
party=E2=80=99s right against the State from suits seeking =
damages=E2=80=9D and =E2=80=9C[a] party=20
can maintain a suit to determine its rights without legislative=20
permission.=E2=80=9D Fed. Sign v. Tex. S. Univ., 951 S.W.2d =
401, 404 (Tex.=20
1997). However, a plaintiff cannot circumvent the doctrine of =
governmental=20
immunity simply by characterizing a suit for money damages, such =
as a=20
contract dispute, as a declaratory judgment action. See Tex. =
Natural=20
Res. Conservation Comm=E2=80=99n v. IT-Davy, 74 S.W.3d 849, =
856 (Tex.=20
2002); City of San =
Benito v.=20
Ebarb, 88 S.W.3d 711, 721 (Tex. App.=E2=80=94Corpus Christi =
2002, pet.=20
denied).
<=
/SPAN>In=20
determining the nature of the Fund=E2=80=99s suit and the relief =
granted, we=20
consider the petition, the summary judgment motion, and the final=20
judgment. In its petition, the Fund sought
<=
/SPAN>(1) a=20
declaratory judgment under chapter 37 of the Texas Civil Practice =
and=20
Remedies Code that the City is obligated to pay to the Fund the =
amount set=20
forth in Section 30(b) of the Act for any firefighter who is =
eligible for=20
prior service credit under Section 30 of the Act;
<=
/SPAN>(2) an=20
injunction ordering the City to pay the Fund the payment required =
under=20
Section 30 of the Statute in connection with the twenty-two =
approved=20
applications involved in this case; and
<=
/SPAN>(3) its=20
attorneys=E2=80=99 fees incurred in connection with this =
cross-claim under Section=20
37.009 of the Texas Civil Practice and Remedies Code.
<=
/SPAN>In=20
its summary judgment motion, the Fund sought summary judgment on =
the=20
ground that =E2=80=9Cbecause the Board approved the twenty-two =
firefighters=20
applications for prior service credit pursuant to its statutory=20
adjudicative authority, the City is required to provide the =
funding=20
mandated by subsection 30(b) of [former] Article 6243e.2.=E2=80=9D =
The Fund=20
further sought summary judgment on the ground that =E2=80=9Cthe =
City has no right=20
to review the Fund=E2=80=99s decisions regarding benefits =
determinations and has=20
no discretion to refuse its statutorily required payments =
following the=20
Fund=E2=80=99s approval of prior service credits.=E2=80=9D =
Conversely, the City asserted=20
that =E2=80=9C[t]he only role the City would =
have ever assumed=20
in this action is that the City would have contributed a certain=20
percentage to the Fund in the event [that] the firefighters had =
properly=20
and timely applied for the previous service credit=E2=80=9D and =
that =E2=80=9C[b]ecause=20
none of the firefighters had properly and timely applied for =
previous=20
service credit, any offer of payment rests solely with the =
Fund.=E2=80=9D=20
<=
/SPAN>The=20
trial court granted the Fund=E2=80=99s summary judgment motion =
and, on June 9,=20
2000, entered an order and final judgment, later modified by a =
judgment=20
nunc pro tunc, stating, in pertinent part:
<=
/SPAN>The=20
undisputed appellate record provides the following background. The =
plaintiff/appellant firefighters applied for prior service credit =
in the=20
Fund under Tex. Rev. Civ. Stat. art. 6243e.2, =C2=A7 30, which =
provides that a=20
firefighter may receive, or transfer, service credit toward =
retirement for=20
time worked previously in another fire department provided that =
certain=20
statutory criteria are met. After holding hearings in which the=20
firefighters were permitted to offer proof in support of their =
claims, the=20
Board approved the applications of 22 of the plaintiff/appellant=20
firefighters . . . . The Defendant City of Houston refused to make =
its=20
statutorily required contributions. . . .
<=
/SPAN>[T]he=20
Court finds that the Fund is administered solely by the Board, and =
in=20
accordance with art. 6243e.2, =C2=A7 2(j), the Board has the =
exclusive power to=20
hear and determine all applications for retirement benefits, =
including=20
applications for prior service credit, under Section 30. . . =
.
. . . .
<=
/SPAN>[F]urthermore,=20
because the City has failed to make its statutorily required =
contribution,=20
the Board=E2=80=99s condition of prior service credit upon receipt =
of the City=E2=80=99s=20
required contribution is in all things AFFIRMED, and, it is =
furthermore,=20
ORDERED, ADJUDGED and DECREED that . . . =
the=20
Fund=E2=80=99s Cross-Action against the City of Houston is in all =
things GRANTED,=20
and the City of Houston is accordingly ORDERED to pay into the =
Fund, in=20
accordance with article 6243e.2, =C2=A7 30(b), an amount equal to =
the amount it=20
would have paid had each of the following plaintiff/appellant [22] =
firemen
been employed by the City of =
Houston=20
instead of the city from which the named plaintiff/appellant =
fireman=20
transferred plus six percent (6%) interest, compounded=20
annually.
<=
/SPAN>As=20
noted by the trial court, the underlying facts are largely =
undisputed; the=20
issue presented to the trial court concerned the proper =
construction and=20
application of the Act. In resolving the dispute between the Fund =
and the=20
City, the trial court was required to review and construe the =
relevant=20
provisions of the Act and then make a declaration concerning the =
Fund=E2=80=99s=20
and the City=E2=80=99s rights and legal relations under that Act. =
Although the=20
trial court=E2=80=99s judgment contains reference to the =
City=E2=80=99s statutory=20
obligation to make contributions to the Fund, such reference is=20
necessitated by the subject matter of the Act and the rights being =
declared; the trial court=E2=80=99s judgment simply tracked the =
language of the=20
relevant sections of the Act. Because=20
the Fund brought a declaratory judgment action seeking to =
determine the=20
proper construction of the Act and to obtain a declaration of the =
parties=E2=80=99=20
rights, status, and other legal relations under the Act and =
because the=20
trial court made a declaration concerning such rights, we hold =
that the=20
trial court did not render a =E2=80=9Cmoney judgment=E2=80=9D that =
would implicate=20
the doctrine of =
governmental=20
immunity. See Houston Mun. Employer Pension Sys. v. =
Ferrell, 177=20
S.W.3d 502, 511 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, pet.=20
filed); see also City of =
Waco v.=20
Bittle, 167 S.W.3d 20, 26=E2=80=9327 (Tex. App.=E2=80=94Waco =
2005, pet. denied)=20
(finding action seeking declaratory judgment that City failed to =
comply=20
with duty to pay compensation and benefits and writ of mandamus =
compelling=20
City to comply with such duty was not barred by governmental=20
immunity).
<=
/SPAN>The=20
issue presented here is similar to the issue presented in City =
of=20
Houston v. Williams, 183 S.W.3d 409 (Tex. App.=E2=80=94Houston =
[14th Dist.]=20
2005, no pet.). In that case, retired firefighters brought suit =
against=20
the City for improperly deducting overtime amounts from their =
termination=20
payouts and for failing to provide them with =E2=80=9Cpremium =
pay.=E2=80=9D Id. at=20
415. The City asserted that the trial court lacked jurisdiction =
because=20
the firefighters were seeking money damages. Id. Our sister =
court=20
rejected this argument because the trial court reserved any =
determination=20
of money damages and because =E2=80=9Cthe firefighters asked the =
trial court to,=20
and the trial court did, construe the relevant statutory =
provisions before=20
declaring that the City=E2=80=99s methods of calculating the =
firefighters=E2=80=99 pay did=20
not comply.=E2=80=9D Id. at =
416.
<=
/SPAN>Contrary to the City=E2=80=99s =
assertions, this case is=20
distinguishable from IT-Davy, in which the plaintiff sought =
a=20
declaration from the trial court that it had =E2=80=9Cperformed =
additional work=20
and incurred additional expenses beyond the [scope of the =
contract] and=20
thus, the [State] owed [it] more money.=E2=80=9D 74 S.W.3d at =
859. In IT-Davy, the Texas Supreme Court held that the =
plaintiff=20
was =E2=80=9Cseeking a declaratory judgment only in an attempt to =
have the trial=20
court decide its breach-of-contract claim.=E2=80=9D Id. at 860. This case is also=20
distinguishable from Ebarb, 88 S.W.3d 711. The city employees in Ebarb =
sought=20
=E2=80=9Cdeclaratory relief=E2=80=9D that they were entitled to be =
compensated in=20
accordance with a city ordinance, in spite of a conflicting, =
newly-enacted=20
ordinance, and that they were entitled to the =
=E2=80=9Clieutenant=E2=80=9D salary=20
classification. Id. at 722. The court noted that the =
employees=20
neither challenged the validity of the ordinances nor raised any =
question=20
regarding the construction of the ordinances, but instead the =
employees=20
sought only a declaration that they were entitled to compensation =
had the=20
city not reduced the salary classifications under the newly =
enacted=20
ordinance and that they were entitled to a different salary=20
classification. Id. Moreover, the plaintiffs did not assert =
that=20
the newly enacted ordinance was invalid or =E2=80=9Cthat the City =
acted outside=20
its authority.=E2=80=9D Id. Thus, a mere declaration of the =
plaintiffs=E2=80=99=20
rights under the original ordinance would not have resolved their =
claims=20
that they were entitled to a certain amount of compensation =
=E2=80=9Cin spite of=20
the City=E2=80=99s promulgation of [the newly enacted] =
ordinance.=E2=80=9D=20
Id.
<=
/SPAN>Here,=20
as noted above, the trial court was required to review and =
construe the=20
relevant provisions of the Act and then make a declaration =
concerning the=20
Fund=E2=80=99s and the City=E2=80=99s rights and legal relations =
under that=20
Act. Because the Fund has =
brought a=20
declaratory judgment action to determine the proper construction =
of the=20
applicable provisions of former article 6243e.2 and to obtain a=20
declaration of its rights, status, and legal relations under the =
Act, we=20
hold that its action does not implicate the doctrine of =
governmental=20
immunity.
<=
/SPAN>We=20
overrule the City=E2=80=99s supplemental issue.
Notice =
of Intent=20
to Seek Judicial Review
=
In its first issue, the City argues that =
the trial=20
court lacked subject matter jurisdiction over the Fund=E2=80=99s =
cross-claim=20
because the firefighters =E2=80=9Cfailed to comply with the 20-day =
mandatory=20
jurisdictional requirement =
for=20
appealing the decision of the Fund.=E2=80=9D
See Tex. Rev. Civ.=20
Stat. Ann. art. =
6243e.2(1), =C2=A7=20
12(a) (Vernon Supp. 2005).=20
The Fund appears to concede =
that the=20
firefighters did not provide notice of their intent to seek =
judicial=20
review of the Board=E2=80=99s decision until after the statutorily =
prescribed=20
20-day period. However, the Fund notes that, on January 28, 1997, =
five=20
days after the Board rendered its decision, the firefighters and =
the Fund=20
entered into a rule 11 agreement,
whereby the Fund granted the =
firefighters=20
the right to provide their notices of intent to appeal until April =
2,=20
1997, and that the =
firefighters=20
provided such notices on March 27, 1997. The Fund asserts that =
although=20
the 20-day notice period is mandatory, it is not jurisdictional, =
and that=20
the Fund and the firefighters were entitled to waive or modify the =
20-day=20
period. The Fund also asserts that its cross-claim against the =
City is not=20
a statutory appeal brought under section [12(a) of article =
6243e.2(1)],=20
but rather is an action brought pursuant to the provisions of the =
DJA.=20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7=C2=A7 37.001=E2=80=93.011=20
(Vernon 1997 & Supp. 2005). The=20
Fund contends that the DJA provides a separate and independent =
basis of=20
subject matter jurisdiction and that its cross-claim is not =
subject to the=20
20-day period prescribed in section 12(a) of article=20
6243e.2(1).
<=
/SPAN>Section=20
12(a) of article 6243e.2(1) provides:
A member who is eligible for retirement =
for length=20
of service or disability or who has a claim for temporary =
disability, or=20
any of the member=E2=80=99s beneficiaries, who is aggrieved by a =
decision or order=20
of the board, whether on the basis of rejection of a claim or of =
the=20
amount allowed, may appeal from the decision or order of the board =
to a=20
district court in the county in which the board is located by =
giving=20
written notice of the intention to appeal. . . . The notice must =
be served=20
personally on the chair, secretary, or treasurer of the board not =
later=20
than the 20th day after the date of the order or decision. . .=20
.
Tex. Rev.=20
Civ. Stat. Ann. art. =
6243e.2(1), =C2=A7 12(a).
<=
/SPAN>In=20
regard to the parties=E2=80=99 dispute concerning the =
effectiveness of the rule 11=20
agreement, nothing in the statute precludes the Fund from =
modifying the=20
20-day period prescribed in section 12(a) or allows the City to =
object to=20
the Fund=E2=80=99s agreed modification. The=20
notice period in section 12(a) is=20
designed to benefit the Fund; it does not mandate that an =
aggrieved party=20
formally notify the City of its intent to appeal a decision by the =
Board.
Since=20
the City was not entitled to receive any formal statutory notice =
under the=20
Act (separate and apart from the notice the Board was entitled to=20
receive), the Board=E2=80=99s decision to modify the 20-day notice =
period cannot=20
be said to have any detrimental effect upon the City.
<=
/SPAN>In=20
support of its argument that the trial court had no jurisdiction =
to hear=20
the Fund=E2=80=99s claim because of the firefighters=E2=80=99 =
failure to provide notice of=20
their intent to appeal the Board=E2=80=99s decision until after =
the statutorily=20
prescribed 20-day period, =
the City=20
cites Carson v. Hudson, 398 S.W.2d 321 (Tex. =
App.=E2=80=94Austin 1966, no=20
writ). In Carson, =
which is=20
substantively distinguishable, a=20
firefighter failed to give notice of his intent to appeal within a =
statutorily prescribed 20-day period, and the district court =
dismissed the=20
firefighter=E2=80=99s appeal, holding that compliance with the =
20-day notice=20
provision was mandatory. Id. at 323. However, there was no evidence that the =
20-day=20
period had been modified by agreement, and the fund in Carson =
was=20
the party asserting that the firefighter=E2=80=99s appeal was =
barred due to the=20
firefighter=E2=80=99s failure to provide timely notice of his =
intent to appeal.=20
Id. at 324. Here, it =
is=20
undisputed that the Fund agreed to an extension of the notice =
period, and=20
this modification could be considered to constitute an agreement =
by the=20
Board to hold or to stay its January 23, 1997 decision until 20 =
days=20
before April 2, 1997, the agreed-upon notice deadline. We conclude =
that=20
the Fund=E2=80=99s agreed extension of the notice =
period did not deprive the trial court of =
subject matter=20
jurisdiction and that the City is not entitled to complain about =
the=20
extension.
<=
/SPAN>More=20
importantly, however, we agree with the Fund=E2=80=99s contention =
that the notice=20
deadline provided in section 12(a) is not even applicable because =
the Fund=20
is not pursuing a statutory appeal authorized under that section. =
Instead,=20
the Fund brought its cross-claim against the City requesting =
=E2=80=9Ca=20
declaratory judgment under chapter 37 of the Texas Civil Practice =
and=20
Remedies Code . . . that the City is obligated to pay to the Fund =
the=20
[statutorily mandated] amount . . . [to] any fire fighter who is =
eligible=20
for prior service credit=E2=80=9D and =E2=80=9Can injunction =
ordering the City to pay the=20
Fund [the statutorily mandated] payment in connection with the =
[22]=20
approved applications involved in this case.=E2=80=9D See =
Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7=C2=A7 =
37.001=E2=80=93.011. The Fund seeks a declaration of the =
City=E2=80=99s=20
obligation under section 30(b) of former article 6243e.2 of the =
Act, which=20
provides:
The city to which the fire fighter has =
transferred=20
shall pay an amount equal to the amount it would have paid had the =
fire=20
fighter been employed by that city instead of the city from which =
he=20
transferred, plus six percent interest, compounded =
annually.
Former Tex.=20
Rev. Civ. Stat. Ann. art. 6243e.2, =C2=A7 =
30(b). The Fund=E2=80=99s action, filed in =
response to the=20
City=E2=80=99s refusal to make the statutorily required payments, =
is brought under=20
the DJA. Accordingly, we hold that the =
firefighters=E2=80=99=20
failure to provide notice of their intent to appeal the =
Fund=E2=80=99s decision=20
within 20 days from the date of the Fund=E2=80=99s decision did =
not deprive the trial court of subject =
matter=20
jurisdiction over the Fund=E2=80=99s cross-claim.
<=
/SPAN>We=20
overrule the City=E2=80=99s first issue.
Timeliness in=20
Applying for Prior Service Credits
<=
/SPAN>In=20
its second issue, the City contends that the trial court =
improperly=20
granted summary judgment in favor of the Fund because the =
firefighters=20
failed to timely apply for the prior service credits within 60 =
days of=20
commencement of membership in the Fund. The City relies on section =
16 of=20
article 6243e.2(1), which provides that a person who becomes a =
firefighter=20
and meets other statutory criteria may receive prior service =
credits if=20
=E2=80=9Cthe firefighter applies for that credit not later than =
the 60th day after=20
the date on which membership [in the Fund] begins.=E2=80=9D Tex. Rev. Civ.=20
Stat. Ann. art. =
6243e.2(1), =C2=A7=20
16(a)(4) (Vernon Supp. 2005). The=20
City argues that the firefighters=E2=80=99 claims in the trial =
court were void as=20
a matter of law because each firefighter became a member of the =
Fund at=20
least four years before filing their applications for prior =
service=20
credits and that, consequently, the City cannot be liable for=20
contributions for prior service credits. The Fund counters that =
the 60-day=20
provision cited by the City is contained in section 16 of article=20
6243e.2(1), which was made effective on November 1, 1997. The Fund =
contends that section 16 of article 6243e.2(1) does not apply because the firefighters =
filed=20
their applications, and the Board made decisions on those =
applications,=20
prior to the effective date of that section.
The Fund argues in favor of =
application of=20
section 30 of former article 6243e.2, which did not contain a =
provision=20
requiring the firefighters to apply for the prior service credits =
within=20
60 days of commencement of membership in the Fund.
<=
/SPAN>In=20
support of its argument, the City, citing Williams v. Houston =
Firemen=E2=80=99s=20
Relief & Ret. Fund, No. 01-98-00681-CV, 1999 WL 82441, at =
*2 n.3=20
(Tex. App.=E2=80=94Houston [1st Dist.] Feb. 11, 1999, no pet.) =
(not designated for=20
publication), asserts that =
this Court=20
has previously held that =
claims for=20
prior service credits are governed by section 16 of article =
6243e.2(1).=20
However, contrary to the =
City=E2=80=99s=20
assertion, we merely held in Williams that a firefighter=E2=80=99s right to =
appeal the decision=20
of the Board was governed by the current section of the Act =
relating to=20
appeals. Id. We did so because, as previously noted, the =
current=20
provision of the Act relating to appeals has no savings clause. =
Id.=20
We did not hold that all claims for prior service credits, =
regardless of=20
the date on which the claims were filed or considered, are =
governed by=20
section 16 of article 6243e.2(1). In=20
fact, we specifically stated in Williams that =
=E2=80=9C[b]ecause the=20
parties assume that former section 30 applies, and because =
[section 16 and=20
former section 30] differ materially, we will refer to the former =
section=20
30 . . . without deciding its application.=E2=80=9D Id. at =
2=20
n.2.
<=
/SPAN>The=20
City also argues that section 16 applies retroactively because =
there is no=20
savings clause in the newer version of the statute. =E2=80=9CA =
savings clause is a=20
clause providing that [a] former law is continued in effect for =
certain=20
purposes.=E2=80=9D =
Firemen=E2=80=99s Pension=20
Comm=E2=80=99n v. Jones, 939 S.W.2d 730, 733 (Tex. =
App.=E2=80=94Austin 1997, no writ).=20
However, a savings clause is only necessary to avoid a retroactive =
application of a statute if the newly enacted statute repeals a =
cause of=20
action or revokes a special remedy. Houston Indep. Sch. Dist. =
v.=20
Houston Chronicle Pub=E2=80=99g, 798 S.W.2d 580, 586 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1990, writ denied); see also Jones, 939 S.W.2d at =
733=20
(noting that if cause of action is based on statute, repeal or =
amendment=20
of statute without savings clause for pending suits is given =
immediate=20
effect). Here, section 16 =
neither=20
repealed nor amended a cause of action nor revoked a special =
remedy. Tex. Rev. Civ.=20
Stat. Ann. art. =
6243e.2(1), =C2=A7=20
16(a)(4). Rather, section =
16 simply=20
modified the statutory criteria for eligibility for qualifying for =
prior=20
service credits. Id. Specifically, the provision at issue =
added by=20
section 16 required a firefighter to apply for such credits not =
later than=20
the 60th day after beginning membership in the Fund. Id.
Contrary to the City=E2=80=99s argument, =
the requirements=20
contained in section 16 do not apply to applications for prior =
service=20
credits filed and decided before the effective date of section=20
16.
<=
/SPAN>The=20
City next argues that, even if the 60-day provision contained in =
current=20
section 16 does not apply, the firefighters=E2=80=99 claims for =
prior service=20
credits are barred because =E2=80=9C[i]t is well established . . . =
that Texas=20
obligations granted by statute are subject to bar by a two year =
statute of=20
limitations.=E2=80=9D The City cites Hamilton v. Bd. of =
Firemen=E2=80=99s Relief &=20
Ret. Fund Trustees, 408 S.W.2d 781 (Tex. Civ. =
App.=E2=80=94Texarkana 1966,=20
writ ref=E2=80=99d n.r.e.). In Hamilton, the court ruled =
that an appeal=20
from a board=E2=80=99s decision to deny a party pension benefits, =
filed more than=20
two years after the denial, was barred by the statute of =
limitations.=20
Id. at 784. Here, however, the Board approved the =
applications for=20
prior service credits on January 23, 1997. The City refused to =
make its=20
statutorily required contributions on April 17, 1997. The Fund =
filed its=20
cross-claim shortly thereafter, seeking declaratory and injunctive =
relief=20
in response to the City=E2=80=99s refusal to make the required =
contributions. The=20
two-year statute of limitations cited by the City does not apply =
to bar=20
the Fund=E2=80=99s claim.
<=
/SPAN>The=20
Board construed section 30 of former article 6243e.2 to permit the =
firefighters to file their applications for prior service credits =
without=20
reference to when they began employment with the City and =
commenced=20
membership in the Fund. We conclude that the Board=E2=80=99s =
construction is=20
consistent with the Act and that the City is not entitled to =
refuse to=20
make its statutorily required contributions on the ground that the =
firefighters were required to file their applications not later =
than the=20
60th day after the date on which their membership in the Fund=20
began. Accordingly, we hold =
that the=20
trial court did not err in granting the Fund=E2=80=99s summary =
judgment motion=20
and in rejecting the =
City=E2=80=99s=20
contention that the firefighters failed to timely apply for their =
service=20
credits.
<=
/SPAN>We=20
overrule the City=E2=80=99s second issue.
Conditions=20
Precedent for Award of Prior Service Credits
<=
/SPAN>In=20
its third issue, the City argues that the trial court erred in =
denying its=20
summary judgment motion and in granting the Fund=E2=80=99s summary =
judgment motion=20
because the firefighters failed to meet certain conditions =
precedent to=20
obtain their prior service credits and because the Fund=E2=80=99s =
decision to=20
award the prior service credits was made in total disregard of =
these=20
conditions precedent. The City contends that, in granting the=20
firefighters=E2=80=99 applications for prior service credits, the =
Fund, without=20
any authority, waived the conditions precedent. The Fund asserts =
that no=20
provision in the Act provided the City with any authority to =
challenge the=20
Fund=E2=80=99s decisions in granting the prior service credit =
applications and=20
that all decisions regarding such credits are vested with the =
Board.=20
Section 30 of former =
article=20
6243e.2
provides:
<=
/SPAN>(a) A=20
fire fighter who transfers from the fire department of one city to =
that of=20
a city covered by this Act and desires to participate in the fund =
of that=20
city shall:
&=
nbsp; (1) be=20
less than 35 years old;
&=
nbsp; (2) pass=20
a physical examination taken at his expense and performed by a =
physician=20
selected by the board; and
&=
nbsp; (3) pay=20
in to the fund of that city an amount equal to the total =
contribution he=20
would have made had he been employed by that city instead of the =
city from=20
which he transferred, plus six percent interest.
=
(b) Th=
e=20
city to which the fire fighter has transferred shall pay an amount =
equal=20
to the amount it would have paid had the firefighter been employed =
by that=20
city instead of the city from which he transferred, plus six =
percent=20
interest, compounded annually.
Former Tex.=20
Rev. Civ. Stat. Ann. art. 6243e.2, =C2=A7 30(a), =
(b).
<=
/SPAN>In=20
support of its argument that the City has no authority to contest =
Board=20
decisions regarding eligibility for prior service credits, the =
Fund cites=20
section 2(a)(3) of former article 6243e.2, which =
provides:
The board . . . shall receive, handle =
and control,=20
manage, and disburse the fund for the respective city. The board =
shall=20
have the power and authority to hear and determine all =
applications for=20
retirement, claims for disability . . . .
Act of May 27, 1975, 64th Leg., R.S., =
ch. 432, =C2=A7=20
2, 64 Tex. Gen. Laws 1135, 1135=E2=80=9336, amended by Act =
of May 28, 1989,=20
71st Leg., R.S., ch. 1095, =C2=A7 2(a)(3), 1989 Tex. Gen. Laws =
4492, 4492,=20
repealed by Act of May 21, 1997, 75th Leg., R.S., ch. 1268, =
=C2=A7 3, 75=20
Tex. Gen. Laws 4794, 4811. The Fund=20
also cites section 2(j) of former article 6243e.2, which=20
provides:
The board of trustees has, in addition =
to all=20
other powers and duties arising out of this Act and not otherwise=20
specifically reserved or delegated to others, the duty and power =
to=20
control and manage the operation and administration of the fund =
according=20
to the terms and purposes of this Act and all applicable sections =
of the=20
code and all powers necessary to accomplish these purposes =
including the=20
power to:
<=
/SPAN>(1) adopt=20
for the administration of the fund written rules and guidelines =
not=20
inconsistent with this Act;
<=
/SPAN>(2) construe=20
all provisions of this Act, except that each construction must =
meet any=20
qualification requirements established under section 401 of the=20
Code;
<=
/SPAN>(3) correct=20
any defect, supply any omission, and reconcile any inconsistency =
that may=20
appear in this Act in a manner and to the extent that the board =
considers=20
expedient to administer this Act for the greatest benefit of all =
members;=20
[and]
<=
/SPAN>.=20
. . .
<=
/SPAN>(5)=20
determine all questions =
relating to=20
eligibility for participation, service, or benefits or relating to =
the=20
administration of the fund for the purpose of promoting the =
uniform=20
administration of the fund for the benefit of all =
members.
Act of May 27, 1975, 64th Leg., R.S., =
ch. 432, =C2=A7=20
2, 64 Tex. Gen. Laws 1135, 1135=E2=80=9337, amended by Act =
of May 28, 1989,=20
71st Leg., R.S., ch. 1095, =C2=A7 2(j), 1989 Tex. Gen. Laws 4492, =
4493=E2=80=9394 [hereinafter =
=E2=80=9Cformer Tex. Rev. Civ. Stat. Ann. =
art.=20
6243e.2, =C2=A7 2(j)=E2=80=9D], repealed by=20
Act of May 21, 1997, 75th Leg., R.S., ch. 1268, =C2=A7 3, 75 =
Tex. Gen. Laws=20
4794, 4811.
<=
/SPAN>The=20
Fund=E2=80=99s jurisdiction is broad, and a court has only limited =
review of=20
administrative action. Williams v.=20
Houston Firemen=E2=80=99s Relief & Ret. Fund, 121 S.W.3d =
415, 427 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2003, no pet.) (noting that =
statutory provisions=20
for review under Act are mandatory and exclusive and that since =
Act=20
requires exhaustion of remedies, courts have only limited review =
of=20
administrative action). The Act clearly provides the Fund with =
the power=20
to adopt written rules and guidelines, to construe the Act, to =
correct=20
defects, to supply omissions, to reconcile inconsistencies, and to =
determine all questions relating to eligibility for participation =
in and=20
benefits of the Fund. Former Tex.=20
Rev. Civ. Stat. Ann. art. 6243e.2, =C2=A7 2(j); see Williams, 121 S.W.3d at=20
428=E2=80=9329. The Act =
does not provide the=20
City with any authority to challenge the Fund=E2=80=99s decisions =
concerning=20
eligibility for prior service credits, and the City has not cited =
any=20
authority supporting its efforts to dispute the Fund=E2=80=99s =
decision to grant=20
the firefighters=E2=80=99 applications for the prior service =
credits. We also note=20
that =E2=80=9Cunder the plain language of the Act, the only =
section allowing a=20
right of judicial review is section 12(a), which limits the =
statutory=20
right of appeal of Fund decisions to aggrieved =
=E2=80=98members=E2=80=99 who are =E2=80=98eligible=20
for retirement=E2=80=99 for length of service or disability or =
have a claim for=20
temporary disability and any of these members=E2=80=99 =
beneficiaries.=E2=80=9D=20
Williams, 121 S.W.3d =
at 428.=20
The City has no statutory right to judicially challenge the =
Fund=E2=80=99s=20
decision to grant the firefighters=E2=80=99 applications. In fact, =
section 30(b)=20
of former article 6243e.2 states that a =E2=80=9Ccity to which the =
firefighter has=20
transferred shall pay an amount equal to the amount it =
would have=20
paid had the firefighter been employed by that city instead of the =
city=20
from which he transferred . . . .=E2=80=9D Former Tex. Rev. Civ. Stat. Ann. =
art.=20
6243e.2, =C2=A7 30(b) =
(emphasis=20
added).
<=
/SPAN>The=20
City argues that it should not have to make its statutorily =
required=20
contributions because =E2=80=9Cnone of the [22] firefighters have =
paid money into=20
the Fund.=E2=80=9D The City asserts that because the award of the =
prior service=20
credits is contingent upon the City paying first, the award is =
void on its=20
face. The record establishes that, pursuant to its statutory =
authority,=20
the Board adopted various guidelines for purposes of administering =
the=20
fund and determining the firefighters=E2=80=99 eligibility for =
prior service=20
credits. One of the guidelines adopted by the Board provides that =
=E2=80=9Cthe=20
firefighter and the City of Houston must pay into the Houston =
Firemen=E2=80=99s=20
Relief and Retirement Fund amounts outlined in [article 6243e.2, =
section=20
30(a)-(b)].=E2=80=9D We agree with the trial court=E2=80=99s =
finding that this guideline,=20
which predicates an award of prior service credits upon the City =
making=20
its statutory contributions, is reasonable, is consistent with the =
language of section 30 of former article 6243e.2, and is entitled =
to=20
serious consideration. See Tarrant Appraisal Dist. v. =
Moore, 845=20
S.W.2d 820, 823 (Tex. 1993) (stating that construction of statute =
by=20
administrative agency charged with its enforcement is entitled to =
serious=20
consideration, so long as construction is reasonable and does not=20
contradict plain language of statute). Accordingly, we hold that the City is =
not excused=20
from making its statutorily required contributions because of the=20
contingency placed on the Fund=E2=80=99s approval of the prior =
service credit=20
applications.
<=
/SPAN>The=20
City=E2=80=99s argument that it is excused from its statutorily =
required=20
contributions because the firefighters did not take a physical =
examination=20
at their own expense is also misplaced. Section 10(d)(2) of former =
article=20
6243e.2 specifically permits the Fund to rely upon the physical =
exam=20
performed on behalf of the City to determine whether a new member =
meets=20
its physical requirements, and the Board has an option of =
requiring an=20
additional exam at its expense. Act of May 27, 1975, 64th Leg., =
R.S., ch.=20
432, =C2=A7 10(d), 64 Tex. Gen. Laws 1135, 1142, amended by =
Act of May=20
8, 1987, 70th Leg., R.S., ch. 144, =C2=A7 1, 1987 Tex. Gen. Laws =
313,=20
314, amended by Act =
of May 11,=20
1993, 73rd Leg., R.S., ch. 265, =C2=A7 6, 1993 Tex. Gen. Laws 574, =
577=E2=80=9378,=20
repealed by Act of =
May 21,=20
1997, 75th Leg., R.S., ch. 1268, =C2=A7 3, 75 Tex. Gen. Laws 4794, =
4811.=20
Although section 30 of former article =
6243e.2 does=20
state that a member shall =E2=80=9Cpass a physical examination =
taken at his=20
expense,=E2=80=9D in this case the Fund has interpreted the =
physical exam=20
requirement in section 30 of former article 6243e.2 to be =
satisfied by the=20
performance of the initial exam performed on behalf of the City. =
As stated=20
earlier, the Act clearly provides the Fund with the authority to =
construe=20
the statute, correct defects, supply omissions, reconcile =
inconsistencies,=20
and determine all questions relating to eligibility for =
participation in=20
and benefits of the Fund. Former Tex. Rev. Civ. Stat. Ann. =
art.=20
6243e.2, =C2=A7 2(j).
<=
/SPAN>Finally,=20
the City argues that the conditions precedent must be met=20
contemporaneously with a transfer to the Fund and not 30 years =
later. The=20
City asserts that because the Act only contemplates the =
application for=20
and award of prior service credits concurrently with a =
firefighter=E2=80=99s=20
commencement of membership in the Fund, and does not provide for=20
retroactive relief, =E2=80=9Cthe District court cannot read into =
the statute what=20
is left unexpressed.=E2=80=9D However, the trial court did not =
=E2=80=9Cread=E2=80=9D anything=20
into the statute. Rather, the Fund, as it is statutorily =
authorized to do,=20
has construed the Act, specifically section 30 of former article =
6243e.2,=20
so that a firefighter is not required to apply for prior service =
credits=20
contemporaneously with his transfer to the Fund but instead may =
apply for=20
them subsequent to his initial employment date. The =
Board=E2=80=99s construction=20
is consistent with the language of section 30 of former article=20
6243e.2.
Accordingly, we hold that the =
trial court=20
did not err in rejecting the City=E2=80=99s contention that the =
Fund waived=20
conditions precedent to the firefighters=E2=80=99 obtaining the =
service credits=20
and we further hold that the trial court did not err in denying =
the City=E2=80=99s=20
summary judgment motion and in granting the Fund=E2=80=99s summary =
judgment motion=20
on this ground.
<=
/SPAN>We=20
overrule the City=E2=80=99s third issue.
Gift =
of Public=20
Funds
<=
/SPAN>In=20
its fourth issue, the City contends that it may not pay the =
contributions,=20
as ordered by the trial court, because it would constitute a =
=E2=80=9Cgift of=20
public funds.=E2=80=9D The City alleges that payment of the =
contributions would=20
constitute a gift because the firefighters did not meet the =
statutory=20
requirements to receive the prior service credits, and that =
forcing the=20
City to pay the contributions would violate sections 44, 51, and =
53 of=20
Article III of the Texas Constitution. Tex. Const. art. =
III, =C2=A7=C2=A7 44,=20
51, 53. The City =
asserts that=20
sections 44 and 53 prohibit the payment of additional compensation =
to=20
municipal employees after service has been rendered and that =
section 51=20
prohibits the grant of public moneys for unauthorized =
purposes.
<=
/SPAN>Section=20
44 of the Texas Constitution provides:The Legislature shall provide by law for =
the=20
compensation of all officers, servants, agents and public =
contractors, not=20
provided for in this Constitution, but shall not grant extra =
compensation=20
to any officer, agent, servant, or public contractors, after such =
public=20
service shall have been performed or contract entered into, for =
the=20
performance of the same; nor grant, by appropriation or otherwise, =
any=20
amount of money out of the Treasury of the State, to any =
individual, on a=20
claim, real or pretended, when the same shall not have been =
provided for=20
by pre-existing law; nor employ any one in the name of the State, =
unless=20
authorized by pre-existing law.
Tex.=20
Const. art. III, =C2=A7 44. Section 51 of the Texas Constitution=20
provides:
The Legislature =
shall have=20
no power to make any grant or authorize the making of any grant of =
public=20
moneys to any individual, association of individuals, municipal or =
other=20
corporations whatsoever; provided that the provisions of this =
Section=20
shall not be construed so as to prevent the grant of aid in cases =
of=20
public calamity.
Tex.=20
Const. art. III, =C2=A7 51. Section 53 of the Texas Constitution=20
provides:
The Legislature =
shall have=20
no power to grant, or to authorize any county or municipal =
authority to=20
grant, any extra compensation, fee or allowance to a public =
officer,=20
agent, servant or contractor, after service has been rendered, or =
a=20
contract has been entered into, and performed in whole or in part; =
nor=20
pay, nor authorize the payment of, any claim created against any =
county or=20
municipality of the State, under any agreement or contract, made =
without=20
authority of law.
Tex.=20
Const. art. III, =
=C2=A7=20
53.
<=
/SPAN>In=20
Byrd v. City of Dallas, 6 S.W.2d 738, 740=E2=80=9341 (Tex.=20
1928), the Texas Supreme =
Court=20
addressed constitutional challenges to state pension laws similar =
to those=20
presented in this case. Specifically, the court addressed the =
argument=20
that certain pension laws were invalid because of the limitations =
on=20
legislative power found in sections 44, 51, 52, and 53 of article =
3 of the=20
Texas Constitution. Id. at 740. The court noted that the=20
above-cited sections of the constitution were =E2=80=9Cintended =
to prevent the=20
application of public funds to private purposes; in other words, =
to=20
prevent the gratuitous grant of such funds to any individual, =
corporation,=20
or purpose whatsoever.=E2=80=9D Id. at 740. =
In finding that the pension established =
by statute=20
was part of the compensation package provided to employees for =
services=20
rendered and that the pension laws constituted a valid exercise of =
the=20
legislative power, the court stated:
There is no reason why a city may not =
engage its=20
servants and employees upon any terms of payment acceptable to =
both=20
parties. The plan authorized by the statute contemplates in legal =
effect=20
that as compensation the officers and employees named =
shall=20
receive the salaries agreed upon to be paid periodically and shall =
be=20
entitled to participate in the fund provided for pensions =
according to=20
the statutory plan. . . . When an officer =
or=20
employee coming within the statute is employed and evidences his =
assent to=20
the pension scheme, he thereupon has a binding contract with his =
employer=20
for the stipulated salary and likewise to be =E2=80=9Centitled to =
participate=E2=80=9D in=20
the fund upon the terms prescribed. The right to =
participate in=20
such fund is therefore not a gratuity or donation in any sense. It =
is as=20
much a part of the agreed compensation as is the monthly stipend.=20
Id. at 6 S.W.2d at 740=E2=80=9341 =
(emphasis=20
added).
<=
/SPAN>Here,=20
the terms of the statutory plan permitted the firefighters to file =
their=20
application for prior service credits subsequent to their =
commencement of=20
membership in the Fund. While the City disagrees with the =
Fund=E2=80=99s decision=20
to grant 22 of the applications for prior service credits, the =
City has=20
not established that the Fund=E2=80=99s decisions, with respect to =
those=20
applications, were invalid or otherwise illegal. Accordingly, we =
hold that=20
requiring the City to contribute to the Fund pursuant to its =
statutory=20
obligation does not violate the Texas Constitution. See=20
Williams, =
183=20
S.W.3d at 424 (stating =E2=80=9Cthat requiring the =
City to pay the fire=20
fighters statutorily-authorized compensation that they have earned =
for=20
services rendered for the public good does not violate the Texas=20
Constitution=E2=80=9D).
<=
/SPAN>We=20
overrule the City=E2=80=99s fourth issue.
Laches
<=
/SPAN>In its fifth issue, the City contends =
that the=20
firefighters, and therefore the Fund, are estopped from bringing =
their=20
actions by the doctrine of laches because the firefighters waited =
up to 30=20
years to apply for prior service credits, delayed in making the =
demand to=20
the city for the statutory contributions, and delayed in filing =
the=20
appeal. The City contends that the firefighters =E2=80=9Cshould be =
prohibited from=20
pursuing this action that would equitably subject City taxpayers =
to=20
hundreds of thousands of dollars in unwarranted =
liability.=E2=80=9D
<=
/SPAN>We=20
have held that the firefighters applied for prior service credits =
pursuant=20
to the terms of the statutory plan and that the firefighters =
timely filed=20
their appeal of the Board=E2=80=99s decision in accordance with =
their rule 11=20
agreement with the Fund. We have also held that nothing in section =
30=20
of former article 6243e.2=20
required the firefighters to apply for service =
credits=20
contemporaneously with or not later than 60 days from the date of =
of their=20
transfer to the City and their commencement of membership in the =
Fund. The=20
Board=E2=80=99s determination that =E2=80=9Capplicants who have =
applied for prior service=20
credit not be rejected only because they did not apply at the time =
they=20
transferred=E2=80=9D is consistent with section 30 of former article 6243e.2. Accordingly, we further hold that the =
firefighters=20
and the Fund were not estopped from bringing their actions under =
the=20
doctrine of laches.
<=
/SPAN>We=20
overrule the City=E2=80=99s fifth issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Terry=20
Jennings
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
Higley.
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