The Court makes three basic errors in construing the statute governing this cause, former article 1269m, section 26, Tex.Rev.Civ.Stat.Ann.1 These errors are: *Page 938 (i) failing to recognize that the statute treats illnesses differently from injuries; (ii) improperly analyzing article 1269m's treatment of leaves for injuries incurred in the line of duty; and (iii) erroneously limiting the phrase "for any reason leaves the classified service" to voluntary departures. These errors lead the Court to an improper reversal of the court of appeals' judgment. Therefore, I respectfully dissent.
Former article 1269m, section 26 set forth the legislature's design for sick and injury leaves of absence for police officers and fire fighters. Paragraphs (a) and (b) governed the accumulation of sick leave, allowing it to accrue at a rate of fifteen days per year. Tex.Rev.Stat.Ann. art. 1269m, § 26(a) (repealed 1987).2 Such sick leave could be built up "without limit" and used while an employee was "unable to work because of any bona fide illness." Id. § 26(b). In the event that the employee could "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." Id.
The statute also provided a general rule for compensation for an employee who "for any reason leaves the classified service": the employee received a lump sum payment for up to ninety days accumulated sick leave. Id. § 26(c).3 The statute then set out four exceptions to this general rule.
The first exception was for a police officer or fire fighter killed in the line of duty.4 The city had to pay the survivors the total value of the accumulated sick leave.Id. § 26(d).
The second exception was for a pensioned police officer or fire fighter temporarily disabled in the line of duty.5 The city had to provide such an individual a leave of absence at full pay for at least one year if the disability lasted that long. Id. § 26(e). The leave of absence could be extended beyond one year (at "full or reduced pay"), as it was in Captain Odle's case. Id. No matter how long the leave was extended, it did not deplete the employee's accumulated sick leave. See, e.g., City of Houston v.Caldwell, 582 S.W.2d 494 (Tex.Civ.App.-Beaumont 1979, no writ). *Page 939
If the employee was still disabled at the end of the leave of absence period, or if the city extended the leave of absence at less than 60% of full pay, the employee could, at his option, be retired on pension until able to return to duty. Tex.Rev.Civ.Stat.Ann. art. 1269m, § 26(e) (repealed 1987). When able to return to active service, he was entitled to reinstatement. Id. § 26(h).6 No provision was made in this situation for the police officer or fire fighter to draw on accumulated sick leave.
The third exception existed for the police officer or fire fighter without a pension plan.7 If temporarily disabled by illness or injury in the line of duty, the employee was entitled to use any accumulated sick leave time after the leave of absence expired. Id. § 26(f). When the sick leave was exhausted, the employee was placed on temporary disability leave, receiving no compensation from the city. Again, however, the employee was entitled to reinstatement when able to return to active service. Id. § 26(h).
The final exception dealt with a temporary disability not incurred in the line of duty.8 In that situation the employee, whether under a pension plan or not, could use all accumulated sick leave time before going on temporary disability leave. Id. § 26(g). As under the previous scenarios, the employee was entitled to reinstatement when able to return to active service.
The Court concludes that Captain Odle, having been injured in the line of duty, is covered by section 26(b), thus entitling him to his entire accumulated sick leave of four hundred seventy-three days.9 In so holding, the Court fails to account for the distinction between "illness" (the subject of § 26(b)) and "injury" (dealt with in other paragraphs). In common understanding, "illness" and "injury" are not identical; they connote quite different conditions. "Illness" is a "functional disorder," William H.L. Dornette, Steadman'sMedical Dictionary 692 (5th ed. 1982), while "injury" is "the damage or wound of trauma." Id. at 725. If the statute were silent as to injury, it might be a permissible judicial construction to read "illness" expansively to include injury. Other sections of the statute, however, explicitly recognize and provide for injuries as well as illnesses.See Tex.Rev.Civ.Stat.Ann. art. 1269m, § 26(e)-(g) (repealed 1987). Thus, the Court errs in concluding that the legislature used these terms interchangeably.
The Court commits its second error by, in effect, placing Captain Odle within the exception set forth in § 26(f). It allows Odle, who was covered by a pension plan and who suffered an injury in the line of duty, to use all of his accumulated sick leave. This is the same remedy that the legislature provided for those situations where a police officer or fire fighter without a pension plan suffered an injury in the line of duty. In those cases the employee was allowed to use all accumulated sick leave time, and under the provision of § 26(b), *Page 940 the city could advance additional sick leave time if the employee could conclusively prove that he was disabled because of an illness incurred in the line of duty.
However, Captain Odle's situation most closely resembles that of a police officer or fire fighter, under a pension plan, who suffered a temporary disability in the line of duty.Id. § 26(e). Both Odle and the employee in § 26(e) suffered a line of duty injury. Both were under a pension plan. Both were entitled to a one year injury leave plus any extension that the city might wish to grant. In fact, Odle received a one year leave of absence at full pay, plus an eleven month extension at full pay voluntarily granted by the City. Rather than allowing Captain Odle to draw temporarily on his pension plan after his leave of absence, the City caused Odle, who was sixty-seven years old, to draw permanently on his pension plan, thereby effectively retiring him from the active service. As with any disabled employee covered by a pension plan who incurs an injury in the line of duty, Captain Odle is not entitled to use of all of his accumulated sick leave. Since the City retired Odle, he is limited to the ninety day provision set out in paragraph (c).
The Court commits its third and final error in interpreting the general rule of paragraph (c) itself to exclude Odle. Paragraph (c) by its terms applied to an employee who, "for any reason leaves the classified service." The Court determines that "leaves" includes only voluntary departures, citingCity of Fort Worth v. Bostick, 479 S.W.2d 350, 352-54 (Tex.Civ.App.-Fort Worth 1972, writ ref'd n.r.e.), which determined that the word "leaves" connotes a voluntary departure.10 However, there is nothing in the statute to indicate that "leaving" must be voluntary. Indeed, the word "leave" generally means "to go away from permanently; to remove from, cease to reside . . . , to cease to belong to. . . ." The Oxford English Dictionary Volume I L-164 (1988) (compact edition). I find the court's reasoning inCity of Galveston v. Landrum, 533 S.W.2d 394 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.), more persuasive. That court construed the phrase "for any reason leaves the classified service" to mean "leaves the classified service, whether voluntarily or involuntarily."Id. at 397. Surely, this is the ordinary common understanding of the phrase; and I see nothing in the language, history, or structure of the statute to suggest another reading. When Odle was discharged, he ceased being an employee of the department. Thus, he left for "a reason." What that reason was, or who initiated the events resulting in the leaving, is not within the statutory inquiry; what matters is that the employee is no longer with the department.
It is easy to sympathize with Captain Odle, who rendered more than thirty years of service to the City of Denison as a fire fighter without ever using the fifteen days per year of sick leave he could have claimed if ill. But sympathy is an insufficient and ultimately inequitable ground for statutory construction. I read the former law which governs this case as requiring the taxpayers of Denison to pay Captain Odle one year injury leave, any desired extension (here, eleven months at full pay), plus ninety days for accumulated sick leave. I do not read the law as requiring, in addition to that, a further three hundred eighty-three days of sick leave. Hence, I dissent.
(a) Permanent and temporary employees in the classified service shall be allowed a total of sick leave with full pay computed upon a basis of one and one-fourth (1 1/4) full working days for each full month employed in a calendar year, so as to total fifteen (15) working days to an employee's credit each twelve (12) months. Employees shall be allowed to accumulate fifteen (15) working days of sick leave with pay in one (1) calendar year.
(b) Sick leave with pay may be accumulated 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 in the performance of his duties, an extension of sick leave in case of exhaustion of time shall be granted.
In the event that a Fireman or Policeman for any reason leaves the classified service, he shall receive, in a lump sum payment, the full amount of his salary for the period of his accumulated sick leave, provided that if the Fireman or Policeman has more than ninety (90) working days of accumulated sick leave, the employer may limit the payment to that sum equal to the sum that the employee would have been paid had he been allowed to use the ninety days of accumulated sick leave during the last six (6) months of employment.
coming under the provisions of this Act shall provide injury leaves of absence and line of duty leaves of absence for Firemen . . . with full pay for periods of time commensurate with the nature of the line of duty illness or injuries for at least one (1) year. At the expiration of said one-year period, the City Council or governing body may extend such line of duty illness or injury leave, at full or reduced pay, provided that in cities that have a Firemen's or Policemen's Pension Fund, that if said injured employee's salary should be reduced below sixty percent (60%) of his regular monthly salary, said employee shall have the option of being retired on pension until able to return to duty.
If there are no pension benefits available to an employee who is temporarily disabled by a line of duty injury or illness and the year at full pay and any extensions which may have been granted by the employer have expired, the employee may use accumulated sick leave, vacation time, and other accrued benefits before being temporarily placed on leave.end
If an employee is temporarily disabled by an injury or illness not related to the employee's line of duty, the employee may use all sick leave, vacation time, and any other time the employee may have accumulated before being placed on temporary leave.
GONZALEZ, HECHT, and CORNYN, JJ., join in this dissent.