Houston Police Officers' Union v. Houston Professional Fire Fighters' Association, Iaff Local 341

Supreme Court of Texas
══════════
No. 21‑0518
══════════

City of Houston, Texas,
Petitioner,

v.

Houston Professional Fire Fighters’ Association, Local 341,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════

~ consolidated with ~

══════════
No. 21-0755
══════════

Houston Police Officers’ Union, et al.,
Petitioners,

v.

Houston Professional Fire Fighters’ Association, IAFF Local 341,
et al.,
Respondents
 ═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════

Argued November 29, 2022

JUSTICE BLAND delivered the opinion of the Court.

Justice Huddle and Justice Young did not participate in the
decision.

The Fire and Police Employee Relations Act governs collective
bargaining between a government employer and its firefighters, should
the local government adopt it. When the parties cannot reach
agreement, the Act requires a government employer to compensate
firefighters based on terms that are “substantially equal” to those in
comparable private-sector employment.1
This dispute arises from the City of Houston’s
collective-bargaining impasse with the Houston Professional Fire
Fighters’ Association, Local 341. When the parties could not agree to an
employment contract, the Fire Fighters sued the City for compensation
under the Act, codified in Local Government Code Chapter 174. In this
initial suit, the Fire Fighters claimed that the City failed to meet
Chapter 174’s compensation standards, and they requested that the
trial court set their compensation for up to one year. The City responded
to the suit by challenging Chapter 174’s judicial-enforcement provisions,
claiming that such enforcement violates the Texas Constitution’s

1 Tex. Loc. Gov’t Code § 174.021(1).

2
separation of powers clause. The City further claimed that it is immune
from suit.
Meanwhile, the City’s voters approved a proposition to amend the
City’s charter, known as the “pay‑parity amendment.” The amendment
would require the City to set firefighter compensation commensurate
with police officer compensation at similar ranks. Upon the
amendment’s passage, the Houston Police Officers’ Union sued the Fire
Fighters, seeking a declaration that Chapter 174’s state-law
compensation standards and collective-bargaining process preempt the
pay‑parity amendment, rendering it unenforceable. The City joined in
the Police Officers’ claim against the Fire Fighters in this second suit.
In the first suit, the trial court rejected the City’s constitutional
and immunity challenges, and the court of appeals affirmed.2 In the
second suit, the trial court ruled that Chapter 174 preempts the
pay‑parity amendment. A divided court of appeals reversed, concluding
that state law does not preempt the local amendment. In its view, the
two standards do not conflict because they conceivably might result in
the same compensation in some instances.3 We granted review in both
cases.
We hold that Chapter 174 establishes reasonable standards for
judicial enforcement such that it does not violate the constitutional
separation of powers. Accordingly, we reject the City’s constitutional
challenge to judicial enforcement of the statute’s compensation

2 626 S.W.3d 1, 23 (Tex. App.—Houston [14th Dist.] 2021).
3 651 S.W.3d 41, 54–56 (Tex. App.—Houston [14th Dist.] 2021).

3
standard. We further hold that the Fire Fighters met all prerequisites
for seeking Chapter 174 enforcement, and thus the statute waives the
City’s immunity from the Fire Fighters’ lawsuit for Chapter 174
compensation.4 Finally, we hold that Chapter 174 preempts the
pay‑parity amendment. Local law may not supplant Chapter 174’s rule
of decision by requiring an inconsistent compensation measurement.
Because the court of appeals held differently, we reverse its judgment in
the second suit. We affirm its judgment in the initial suit and remand
the case to the trial court for further proceedings to establish whether
the City has complied with Chapter 174’s compensation standards and,
if not, to set appropriate firefighter compensation.

I

A

Resolving these cases requires familiarity with The Fire and
Police Employee Relations Act in Local Government Code Chapter 174.
Chapter 174 is a comprehensive framework that governs collective
bargaining for those municipal employers whose voters have adopted it.
Chapter 174 forbids strikes and work stoppages.5 In return, it
provides a statutory collective-bargaining process and authorizes
judicial remedies when the parties fail to reach a bargain.6

4 See Tex. Loc. Gov’t Code § 174.008 (“This chapter is binding and
enforceable against the employing public employer, and sovereign or
governmental immunity from suit and liability is waived only to the extent
necessary to enforce this chapter against that employer.”).
5 Id. § 174.202.
6 E.g., id. §§ 174.105, .252.

4
 Notably, Chapter 174 does not dictate the terms for any
agreement the parties may choose to make. Under Section 174.022, a
city and a bargaining unit may agree on compensation and employment
conditions that they find mutually acceptable.7 A city satisfies
Chapter 174’s compensation standards by reaching an agreement.8
When the bargaining parties cannot agree, however, Chapter 174
serves as a backstop. In such a case, Section 174.021 ties compensation
to comparable jobs in the private sector that require similar skills under
similar working conditions:
A political subdivision that employs fire fighters, police
officers, or both, shall provide those employees with
compensation and other conditions of employment that are:
(1) substantially equal to compensation and other
conditions of employment that prevail in comparable
employment in the private sector; and
(2) based on prevailing private sector compensation
and conditions of employment in the labor market
area in other jobs that require the same or similar
skills, ability, and training and may be performed
under the same or similar conditions.9
For Chapter 174 to govern, local voters must adopt it via an
adoption election.10 Once adopted, a city must “recognize an association

7 Id. § 174.022(a) (“A public employer that has reached an agreement
with an association on compensation or other conditions of employment as
provided by this chapter is considered to be in compliance with the
requirements of Section 174.021 as to the conditions of employment for the
duration of the agreement.”).
8 Id.
9 Id. § 174.021.
10 See id. §§ 174.051–.052.

5
selected by a majority of the fire fighters of the fire department of a
political subdivision as the exclusive bargaining agent for the fire
fighters of that department.”11 The firefighters’ bargaining association
must collectively bargain with the city separately from the police
officers’ bargaining association unless they voluntarily join together.12
Chapter 174 requires the bargaining parties to meet at
reasonable times, and to “confer in good faith regarding compensation,
hours, and other conditions of employment or the negotiation of an
agreement or a question arising under an agreement.”13 The association
must provide notice to the city that it requests collective bargaining,14
and bargaining deliberations must be open to the public.15 Chapter 174
does not require the city to make any concession or agree to any
proposal.16
Chapter 174’s judicial-enforcement road begins when the parties
arrive at an impasse. “[A]n impasse in the collective bargaining process
is considered to have occurred if the parties do not settle in writing each
issue in dispute before the 61st day after the date on which the collective
bargaining process begins,” unless the parties extend that time by
written agreement.17 At the point of impasse, either party may request

11 Id. § 174.101.
12 Id. § 174.103.
13 Id. § 174.105(b).
14 Id. § 174.107.
15 Id. § 174.108.
16 Id. § 174.105(c).
17 Id. § 174.152.

6
to arbitrate unresolved issues once the parties have exhausted “every
reasonable effort, including mediation,” to settle all issues and the party
seeking arbitration has provided written notice to the other party.18
Neither party, however, is required to arbitrate.19
If a bargaining association properly follows the statutory
prerequisites to request arbitration “and a public employer refuses to
engage in arbitration,” then “on the application of the association, 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.”20 If the court finds that the public employer
has failed to comply with Section 174.021’s compensation standard, it
must:
(1) order the public employer to make the affected
employees whole as to the employees’ past losses;
(2) declare the compensation or other conditions of
employment required by Section 174.021 for the period, not
to exceed one year, as to which the parties are bargaining;
and
(3) award the association reasonable attorney’s fees.21
Chapter 174 “preempts all contrary local ordinances, executive
orders, legislation, or rules adopted by . . . [a] home-rule municipality”

18 Id. § 174.153(a).
19 Id. § 174.163.
20 Id. § 174.252(a).
21 Id. § 174.252(b).

7
like the City of Houston.22 It also waives governmental immunity “to the
extent necessary to enforce” its provisions against a public employer.23

B

The City of Houston adopted Chapter 174 for firefighter collective
bargaining in 2003, but the last time the City reached a comprehensive
agreement with the Houston Professional Fire Fighters’ Association was
in 2011. That agreement expired in 2017. The City and the Fire Fighters
unsuccessfully attempted to reach a new agreement. In May 2017, the
Fire Fighters wrote the City that the parties’ negotiators had reached
an impasse under Chapter 174’s definition.24 The Fire Fighters
requested mediation and arbitration. The parties participated in a
mediation that proved unfruitful, and the City declined to arbitrate.
The Fire Fighters then sued the City, alleging that the City failed
to meet Chapter 174’s firefighter-compensation standards. The Fire
Fighters petitioned the trial court to declare their compensation and
conditions of employment for one year pursuant to Section 174.252.
In its answer, the City denied that it had violated Chapter 174,
and it claimed to be immune from suit. It challenged Chapter 174’s
judicial-enforcement provisions as unconstitutional under the

22 Id. § 174.005.
23 Id. § 174.008.
24 See id. § 174.152.

8
nondelegation doctrine derived from the separation of powers clause in
Article II, Section 1 of the Texas Constitution.25
The City sought summary judgment on its constitutional
challenge, arguing that Chapter 174 improperly delegates compensation
decisions to the judiciary without providing reasonable guidance. The
City further argued that the trial court lacked subject-matter
jurisdiction over the suit because Chapter 174 does not waive the City’s
governmental immunity. The Fire Fighters also moved for summary
judgment, seeking the opposite declarations: that Sections 174.252 and
174.021 do not violate the Constitution and that Section 174.008 waives
the City’s immunity.
The trial court rejected the City’s constitutional and immunity
challenges, and it granted partial summary judgment to the Fire
Fighters. The City appealed the denial of its jurisdictional plea as of

25 See Tex. Const. art. II, § 1 (“The powers of the Government of the
State of Texas shall be divided into three distinct departments, each of which
shall be confided to a separate body of magistracy . . . and no person, or
collection of persons, being of one of these departments, shall exercise any
power properly attached to either of the others, except in the instances herein
expressly permitted.”); Tex. Const. art. III, § 1 interp. commentary (West 2022)
(“A settled maxim of constitutional law is that the power conferred upon the
legislature to make the laws cannot be delegated by that department to any
other body or authority. The essential legislative functions are by this section
vested in the legislature and there they must remain.”); City of Pasadena v.
Smith, 292 S.W.3d 14, 17 (Tex. 2009) (observing that the nondelegation
doctrine is “the Texas Constitution’s restrictions on the delegation of
governmental power”); Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)
(observing that Article II, Section 1 “provides for the separation of powers of
the three branches of the state government and prohibits any of the three
departments from exercising any power properly attached to either of the other
branches. Article II, Section 1 is a direct prohibition of the blending of the
legislative, executive, and judicial departments.”).

9
right,26 and it sought and received permission to appeal the trial court’s
rejection of its constitutional challenge.27
The court of appeals affirmed in all respects.28 It concluded that
Section 174.021’s standards, including the requirement that the City
provide compensation to the Fire Fighters that is “substantially equal
to compensation and other work conditions in comparable employment
in the private sector” provided “sufficient guidance and parameters” for
a court to apply.29 The court of appeals also rejected the City’s argument
that it retained its governmental immunity.30
Meanwhile, the City’s voters approved Proposition B, the
pay-parity charter amendment.31 The amendment seeks to require the
City to set firefighter compensation commensurate with police officer
compensation “in a manner and amount that is at least equal and
comparable by rank and seniority with the compensation provided City
police officers.”32 Upon the amendment’s passage, the Houston Police
Officers’ Union sued both the City and the Fire Fighters to prevent the
amendment’s enforcement. Among other claims, the Police Officers
sought a declaratory judgment that Chapter 174 preempts the

26 See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
27 626 S.W.3d at 7–8.
28 Id. at 23.
29 Id. at 19–20 (emphases omitted).
30 Id. at 13.
31 See Tex. Loc. Gov’t Code § 9.004 (providing charter-amendment
election procedures).
32 Hous., Tex., City Charter art. IX, § 24 (2023).

10
pay‑parity amendment. The City agreed with the Police Officers that
Chapter 174 preempts the pay-parity amendment; thus, the City also
sought a declaratory judgment against the amendment’s enforcement.
The Fire Fighters counterclaimed, seeking a declaration that Chapter
174 does not preempt the pay‑parity amendment.
The trial court granted summary judgment in favor of the City
and the Police Officers, ruling that Chapter 174, as the governing state
law, preempts the pay‑parity amendment. The Fire Fighters appealed.
A divided court of appeals reversed.33 In the court of appeals’
view, Chapter 174 “does not prohibit the establishment of a
compensation floor nor does it bar with ‘unmistakable clarity’ the
consideration of other factors to determine fire fighter compensation.”34
The dissenting justice disagreed that the two standards were
compatible, observing that Chapter 174 “requires one standard:
comparable private sector compensation. The pay‑parity amendment
requires another standard: police officers’ compensation.”35
We granted review in both cases.

II

We begin with the City’s constitutional challenge. Article II,
Section 1 of the Texas Constitution divides the powers of government
“into three distinct departments,” and prohibits each from exercising

33 651 S.W.3d at 58.
34 Id. at 54.
35 Id. at 59 (Wise, J., dissenting).

11
“any power properly attached” to a different department. 36 The
Legislature, however, “does not violate the Constitution merely because
it legislates in broad terms, leaving a certain degree of discretion to
executive or judicial actors.”37
The City argues that Section 174.252’s judicial-enforcement
provision improperly delegates legislative power to the judiciary by
permitting courts to set firefighter compensation based on unreasonably
vague standards.
In evaluating whether a statute is constitutionally infirm, we
presume at the outset that it is constitutional.38 A party challenging a
statute as unconstitutional bears a heavy burden to overcome this
presumption.39 We give statutes a constitutional reading if one is
feasible.40

A

The City first contends that Chapter 174 is constitutionally
infirm because it requires courts to establish compensation rather than

36Tex. Const. art. II, § 1; see Gen. Servs. Comm’n v. Little-Tex Insulation
Co., 39 S.W.3d 591, 600 (Tex. 2001) (“The separation of powers doctrine
prohibits one branch of government from exercising a power inherently
belonging to another branch.”).
37 Touby v. United States, 500 U.S. 160, 165 (1991). “[T]he general
principles of constitutional law, as declared by . . . the Supreme Court of the
United States, on the subject of delegation of legislative power, are applicable
and may be examined in determining the meaning of our own constitutional
provisions.” Trimmier v. Carlton, 296 S.W. 1070, 1079 (Tex. 1927).
38 EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 754 (Tex. 2020).
39 Id.
40 Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011).

12
simply to adjudicate a dispute about compensation under established
rules. In the City’s view, establishing compensation in the first instance
is not a judicial task. Thus, it argues, Chapter 174’s foundation is an
abdication of legislative authority.
Under Chapter 174, however, the Legislature has provided a
standard against which to judge the City’s existing firefighter
compensation: comparable private-sector employment. Contrary to the
City’s position, the role of establishing compensation under this
standard in the first instance lies with the City. Before a court may
adjudicate a compensation claim under Chapter 174, it must first find
that the City’s existing compensation framework fails to mirror
comparable private-sector standards for the issues in dispute.41 If the
trial court finds that a public employer has not complied with Section
174.021’s private-sector pay standards, and further that the parties
have not reached a collective bargaining agreement or agreed to submit
the dispute to arbitration, then the court shall “declare the
compensation or other conditions of employment required by Section
174.021 for the period, not to exceed one year, as to which the parties
are bargaining.”42
In framing its constitutional challenge, the City ignores that
Section 174.252 requires a court to evaluate the City’s existing
compensation structure to determine whether the City has complied
with the statutory standard. A court does not declare compensation

Tex. Loc. Gov’t Code § 174.252(b) (“If the court finds that the public
41

employer has violated Section 174.021, the court shall [enforce remedies].”).
42 Id. § 174.252(b)(2).

13
unless the City’s existing compensation falls short of the statutory
standard.43 Because the statute provides a legislatively defined
standard by which to assess the City’s compensation structure and links
judicial enforcement of that standard to an evaluation of the City’s
existing compensation, we reject the City’s view that the
judicial-enforcement mechanism requires the judiciary to establish
compensation in the first instance.

B

The City next contends that the compensation standards in
Sections 174.021 and 174.252 are so vague as to render their judicial
application unconstitutional. The Fire Fighters respond that the
statutes provide workable compensation standards and fair notice of
those standards to the City.
Litigants frequently invoke the nondelegation doctrine in the
administrative rulemaking context to challenge an agency’s power to
implement a particular regulation. Rarer are constitutional challenges
to the judiciary’s competence to enforce a statute. One court of appeals
has observed that the nondelegation doctrine may call for a distinct
analysis when applied to the judiciary as opposed to an administrative
agency,44 but no party contends that we should apply different
standards in this case. Accordingly, we assume that the standards

43 Id. § 174.252(a)–(b).
44Tex. Bldg. Owners & Managers Ass’n v. Pub. Util. Comm’n of Tex.,
110 S.W.3d 524, 535 n.10 (Tex. App.—Austin 2003, pet. denied).

14
governing analysis of the nondelegation doctrine in the administrative
context may inform such an analysis in the judicial context.
When delegating authority, the Legislature must provide
standards that are “reasonably clear and hence acceptable as a standard
of measurement.”45 The Legislature need not, however, detail every rule
for implementing that authority.46 Because declaring a state law
unconstitutional nullifies the Legislature’s choices, courts find
constitutional infirmity under the nondelegation doctrine “sparingly,
when there is, in Justice Cardozo’s memorable phrase, ‘delegation
running riot.’”47
Accordingly, our Court has “upheld standards which are quite
broad.”48 For example, a delegation of authority to the Railroad
Commission to “prevent waste and promote conservation” did not violate
the separation of powers clause.49 While we approved this delegation in
the administrative rulemaking context, the principle holds in the
adjudicatory context that broad standards may be appropriate when the
Legislature cannot conveniently investigate that which it seeks to

45Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 741 (Tex. 1995)
(quoting Jordan v. State Bd. of Ins., 334 S.W.2d 278, 280 (Tex. 1960)).
46 Id.
47Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,
475 (Tex. 1997) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295
U.S. 495, 553 (1935) (Cardozo, J., concurring)).
48 R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.
1992) (quoting State ex rel. Grimes Cnty. Taxpayers Ass’n v. Tex. Mun. Power
Agency, 565 S.W.2d 258, 273 (Tex. App.—Houston [1st Dist.] 1978, writ
dism’d)).
49 Id.

15
regulate,50 or “cannot itself practically and efficiently exercise” its power
to prescribe the details.51
Our Court rejected a challenge similar to the City’s in Key Western
Life Insurance Co. v. State Board of Insurance.52 In that case, the
Commissioner of Insurance exercised his authority to disapprove of a
proposed insurance policy under a statute permitting the Commissioner
to do so if the proposed policy “contains provisions which encourage
misrepresentation or are unjust, unfair, inequitable, misleading,
deceptive or contrary to law or to the public policy of this state.” 53 Like
the City in this case, the insurer in Key Western contended that the
operative statutory provision was “so vague and grants such sweeping
powers, unbridled by any standard or guides, that it results in an
unconstitutional delegation of authority.”54 Our Court rejected that
argument, observing that the United States Supreme Court had upheld
similarly amorphous standards against separation of powers
challenges.55

50 Id.
51 Trimmier, 296 S.W. at 1079 (upholding delegation of authority to set
railroad rates).
52 350 S.W.2d 839 (Tex. 1961).
53 Id. at 841 & n.1 (quoting Act of May 13, 1957, 55th Leg., R.S., ch. 501,
sec. 1, 1957 Tex. Gen. Laws 1463, 1464 (repealed 2003)).
54 Id. at 844.
55 Id. at 845 (collecting such standards, including “‘just and reasonable,’
‘public interest,’ ‘unreasonable obstruction to navigation,’ ‘reciprocally unequal
and unreasonable,’ ‘public convenience, interest, or necessity,’ ‘tea of inferior
quality,’ ‘unfair methods of competition,’ ‘reasonable variations,’ ‘unduly or
unnecessarily complicate the structure’ of a holding company system or

16
 Chapter 174 is no stranger to constitutional challenges based on
the nondelegation doctrine, with two courts of appeals reaching opposite
conclusions. In City of Port Arthur v. International Ass’n of Fire Fighters,
Local 397, on which the Fire Fighters rely, the court of appeals held that
Chapter 174’s substantially identical predecessor statute did not run
afoul of separation of powers principles.56 The court reasoned that an
aggrieved bargaining unit must show that its public employer’s existing
compensation framework failed to comply with the requirement for
conditions of employment to be substantially equal to those in the
private sector before a court can order compensation under the judicial-
enforcement provision.57 In its view, permitting “the court to apply
whatever facts and figures were supplied by the evidence” to determine
compensation “is unquestionably a judicial function.”58
In contrast, the City relies on International Ass’n of Firefighters,
Local Union No. 2390 v. City of Kingsville, which held the same
predecessor statute unconstitutional under the nondelegation
doctrine.59 The court of appeals in that case viewed the judicial award of
compensation under the statute as reflecting “a policy determination

‘unfairly or inequitably distribute voting power among security holders’”
(quoting Jordan, 334 S.W.2d at 281)).
56 807 S.W.2d 894 (Tex. App.—Beaumont 1991, writ denied).
57 Id. at 898; accord Tex. Loc. Gov’t Code § 174.252(b).
58 Port Arthur, 807 S.W.2d at 898.
59 568 S.W.2d 391 (Tex. App.—Corpus Christi–Edinburg 1978, writ ref’d
n.r.e.).

17
which is legislative in nature.”60 The City emphasizes the reasoning in
Kingsville, arguing that Chapter 174’s standards are “too subjective to
prevent arbitrary and unequal application.”61
The court of appeals’ reasoning in Port Arthur is more persuasive.
Chapter 174 does not impermissibly delegate legislative power to the
judiciary. Instead, it is the “legislative creation of a cause of action
against employers whose offers violate” the statutory standard for
compensation.62 As the court of appeals in Port Arthur observed,
Section 174.021 expresses the Legislature’s policy judgment that
firefighters’ employment conditions should mirror the private sector.
Enforcing that standard in a given case does not impermissibly entangle
the judiciary in legislative functions.
We have held that permissible delegations need not furnish every
detail.63 Section 174.021 provides more than a few comparators,
including that:
• the compensation must be “substantially equal to compensation
and other conditions of employment”
• “that prevail in comparable employment in the private sector”
• “based on prevailing private sector compensation and conditions
of employment”

60 Id. at 395.
61 Id.
62 Port Arthur, 807 S.W.2d at 898.
63Lone Star Gas Co., 844 S.W.2d at 689 (“Requiring the legislature to
include every detail and anticipate unforeseen circumstances in the statutes
which delegate authority to the Commission would defeat the purpose of
delegating legislative authority.”).

18
 • “in the labor market area in other jobs”, and
• “that require the same or similar skills, ability, and training and
may be performed under the same or similar conditions.”64
Each emphasized term reflects the Legislature’s selection of detailed
comparative standards to account for circumstances affecting
compensation and any adjustments for differences in them. Although
subject to interpretation on the particulars, these standards are not so
capacious as to authorize a court to decide for itself the conditions of
firefighter employment.
Rather, the standards provide reasonable guidance to a court
evaluating evidence that the parties may adduce in support of their
competing compensation structures. These standards are less subjective
than others that our Court has enforced over the decades, like the
statutory authority to determine whether an insurance policy
“encourages misrepresentation,”65 whether an insurer’s directors or
officers are “not worthy of the public confidence,”66 or whether a pipeline
company is engaged in the “discriminatory production and taking of
natural gas.”67 Section 174.021’s directive that firefighter wages be set
to comparable private-sector employment, together with other
comparators, provides reasonable guidance to courts tasked with
evaluating whether the City’s current compensation meets the statute’s
standards.

64 Tex. Loc. Gov’t Code § 174.021 (emphases added).
65 Key W. Life Ins. Co., 350 S.W.2d at 845.
66 Jordan, 334 S.W.2d at 280.
67 Lone Star Gas Co., 844 S.W.2d at 690.

19
 The courts also routinely enforce compensation standards.
Section 174.021’s statutory standards are similar to the kind that courts
regularly apply in employment disputes, for example. To prevail in an
employment-discrimination case, plaintiffs must show that “they were
treated less favorably than similarly situated members” outside the
protected class.68 In those cases, courts use comparators like those found
in Chapter 174 to determine whether another employee is “similarly
situated.” In that context, we have held that “[e]mployees are similarly
situated if their circumstances are comparable in all material respects,
including similar standards, supervisors, and conduct,” though their
circumstances need not be identical.69 And to prove discrimination based
on disparate employee discipline, the employees’ misconduct must
reflect “comparable seriousness.”70 In short, employment law commonly
calls on courts to analyze whether a plaintiff’s compensation or
conditions of employment are substantially equivalent to another who

68 Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005);
see Tex. Lab. Code § 21.051 (“An employer commits an unlawful employment
practice if because of race, color, disability, religion, sex, national origin, or age
the employer: (1) fails or refuses to hire an individual, discharges an
individual, or discriminates in any other manner against an individual in
connection with compensation or the terms, conditions, or privileges of
employment[.]”).
69 Office of Att’y Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex.
2020); see Palasota v. Haggar Clothing Co., 499 F.3d 474, 486 (5th Cir. 2007)
(further defining and analyzing “substantially equivalent” employment).
70Monarrez, 177 S.W.3d at 917 (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 804 (1973)).

20
is similarly situated. Section 174.021’s standards are based on well
understood employment comparisons.71
Accordingly, we reject the City’s constitutional challenge to
Chapter 174’s judicial-enforcement provisions.

III

The City next contends that it is immune from a suit for judicial
enforcement. Chapter 174 waives governmental immunity “to the extent
necessary to enforce this chapter” against the public employer.72
Governmental immunity defeats a trial court’s subject-matter
jurisdiction over a lawsuit; we review whether it applies as a question of
law.73
The City asserts that the Fire Fighters failed to bargain in good
faith because they did not propose particular private-sector standards
during collective bargaining.74 Section 174.105, however, does not

We acknowledge the possibility that, in any given bargaining
71

impasse, Chapter 174’s standards may prove infeasible because the parties fail
to adduce evidence of comparable terms of employment. We express no view on
the proper outcome under such circumstances. We merely hold that
Chapter 174, on its face, contains sufficiently detailed standards to guide
courts in the performance of their judicial functions. On remand, the Fire
Fighters should have the opportunity to adduce “substantially equal”
comparator evidence.
72 Tex. Loc. Gov’t Code § 174.008.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26
73

(Tex. 2004).
See Tex. Loc. Gov’t Code § 174.252(a) (providing preconditions before
74

a court “may enforce” the Act).

21
require the Fire Fighters to make such proposals. It instead requires the
parties to:
(1) meet at reasonable times;
(2) confer in good faith regarding compensation, hours, and
other conditions of employment or the negotiation of an
agreement or a question arising under an agreement; and
(3) execute a written contract incorporating any agreement
reached, if either party requests a written contract.75
Unlike the compensation standards that the statute requires a court to
apply, the good faith provision does not require either party to negotiate
based on a particular standard or agree to particular terms. Rather, the
statute expressly recognizes that neither side must agree to a particular
employment condition.76 The City’s argument about the required
content of a negotiation lacks statutory support.
Further, Section 174.022 provides that a public employer is
“considered to be in compliance with the requirements of Section
174.021,” if the bargaining parties reach an agreement, regardless of the
particular provisions of that agreement.77 A collective-bargaining
agreement need not incorporate private-sector standards to comply with
Chapter 174.78

75 Id. § 174.105(b).
76 Id. § 174.105(c).
77 Id. § 174.022(a).
78See id.; see also id. § 174.105(b) (“[T]he duty to bargain collectively
means a public employer and an association shall . . . execute a written
contract incorporating any agreement reached, if either party requests a
written contract.” (emphasis added)).

22
 Instead, once the parties reach an impasse, Chapter 174’s
judicial-enforcement provision is triggered when two conditions are met:
(1) the collective-bargaining association requests arbitration, listing the
issues in dispute; and (2) the public employer refuses to engage in
arbitration.79
The Fire Fighters met these prerequisites to judicial enforcement.
They bargained with the City between March 14, 2017, and May 14,
2017, a period of sixty-one days.80 On May 15, they wrote to the City to
designate the unsettled issues and request arbitration. The City refused
to arbitrate but acceded to mediation. The parties proceeded to an
unsuccessful mediation. Only then did the Fire Fighters file suit.
We hold that the Fire Fighters satisfied Chapter 174’s
prerequisites to seeking judicial enforcement. Accordingly, the City’s
governmental immunity is waived for this suit.81

79 Id. § 174.252(a).
80 See id. § 174.152(a) (defining a bargaining impasse).
81 See id. § 174.008 (“[Chapter 174] is binding and enforceable against
the employing public employer, and sovereign or governmental immunity from
suit and liability is waived only to the extent necessary to enforce this chapter
against that employer.”).

23
 IV

Finally, we address whether Chapter 174 preempts enforcement
of the later-adopted local pay‑parity amendment.
Whether a state statute preempts a local regulation is a legal
question that a court reviews de novo.82 In the case of a home-rule city,
the Legislature must demonstrate its intent to preempt local law “with
unmistakable clarity.”83 If the statute makes that legislative intent
clear, then a local ordinance “is unenforceable to the extent it conflicts
with the state statute.”84 The party seeking to avoid enforcement of a
local law bears the burden of establishing that state law preempts it.85
Chapter 174 contains an express preemption provision, satisfying
the City’s burden to show the legislative intent to preempt local law with
unmistakable clarity. Section 174.005 provides that the chapter
“preempts all contrary” local ordinances or rules adopted by “a political
subdivision or agent of the state, including a . . . home-rule
municipality.”86 Further, the Texas Constitution provides that “no
charter or any ordinance passed under said charter shall contain any

82 See BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex.
2016).
Dall. Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d
83

489, 491 (Tex. 1993).
84 Id.
85 Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 84 & n.30 (Tex. 2009).
86 Tex. Loc. Gov’t Code § 174.005.

24
provision inconsistent with the Constitution of the State, or of the
general laws enacted by the Legislature of this State.”87
We turn to whether Section 174.021’s compensation standard is
inconsistent with the pay‑parity amendment. For three reasons, we
conclude that it is.88
First, Section 174.002(a) expresses an overarching state policy
with respect to collective-bargaining compensation: “The policy of this
state is that a political subdivision shall provide its fire fighters . . . with
compensation and other conditions of employment that are substantially
the same as compensation and conditions of employment prevailing in
comparable private sector employment.” By providing a different
compensation measure than comparable private-sector pay, the
pay-parity amendment is inconsistent with Chapter 174’s expressed
policy for setting compensation according to private-sector employment
standards.
Second, Section 174.103 provides that fire and police departments
must bargain independently with their public employer unless they
voluntarily join together.89 The pay‑parity amendment, however,
requires the City to pay firefighters “the same base pay as persons of

87 Tex. Const. art. XI, § 5(a).
Given our disposition, we have no occasion to reach and express no
88

view on whether the City’s pay‑parity amendment is void because it fails to
comply with Section 141.034 of the Local Government Code.
89 Tex. Loc. Gov’t Code § 174.103(a) (“Except [when they voluntarily
join], the fire and police departments of a political subdivision are separate
collective bargaining units under this chapter.”).

25
like seniority” as certain police officer classifications.90 Given the
required parallel compensation, the police officers’ bargaining unit will
effectively—and not necessarily voluntarily—represent the Fire
Fighters at the bargaining table. As the Police Officers observe, the
pay‑parity amendment in practice forces the two associations to join in
bargaining for compensation terms, despite Section 174.103’s
prohibition of this arrangement in the absence of their consent.
Third, Section 174.021 provides a specific compensation standard
for claims for judicial enforcement which conflicts with the pay‑parity
amendment. The two rules of decision provide different measurements,
using different inputs.91
Section 174.021 measures firefighter compensation according to
comparable private-sector pay and conditions of employment. The
pay‑parity amendment requires that certain firefighter classifications
“receive the same base pay as persons of like seniority” employed as
police officers, regardless of comparable private-sector pay.92
The two rules of decision cannot be reconciled.93 If comparable
private-sector compensation is less than police officer compensation,

90 Hous., Tex., City Charter art. IX, § 24 (2023).
91 Compare Tex. Loc. Gov’t Code § 174.021(1) (requiring a city to pay
compensation to firefighters that is “substantially equal to compensation . . .
that prevail[s] in comparable employment in the private sector”), with Hous.,
Tex., City Charter art. IX, § 24 (2023) (establishing equivalent ranks between
firefighters and police officers that “shall receive the same base pay”).
92 Hous., Tex., City Charter art. IX, § 24 (2023).
93See City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 593–94
(Tex. 2018) (“The [preemption] issue is whether the Ordinance falls within the

26
then the pay‑parity amendment contravenes Chapter 174 by mandating
that the City pay its firefighters more than the statute prescribes.
Chapter 174 establishes compensation for judicial-enforcement
purposes solely by reference to private-sector employment, not any
other.94
The court of appeals determined that the two measurements
might converge for a particular employee on occasion.95 We reject the
notion, however, that a hypothetical convergence of two different
measurements saves a local regulation from preemption when it
otherwise requires courts to apply incompatible rules of decision.
Two cases inform this outcome. In BCCA Appeal Group, Inc. v.
City of Houston, our Court considered whether the Texas Clean Air Act
preempted the City of Houston’s air-quality ordinance.96 The state law
provided air-quality standards and empowered the Texas Commission

Act’s ambit. To decide that, we look, as usual, to the statutory text and the
ordinary meanings of its words.” (footnote omitted)).
94See City of San Antonio v. Int’l Ass’n of Fire Fighters, Local 624, 539
S.W.2d 931, 935 (Tex. App.—El Paso 1976, no writ) (“The Act specifically
provides that the standard by which firemen’s wages are to be determined is
by reference to private sector employment. Thus, it excludes the wages paid in
public sector employment, including other City employees.”).
95 651 S.W.3d at 54 (“[D]epending on the context of their application,
section 174.021 and the pay-parity amendment can both apply to determine
fire fighters’ compensation.”).
96 496 S.W.3d 1 (Tex. 2016).

27
on Environmental Quality to enforce them.97 Like Chapter 174, the
Clean Air Act preempts inconsistent ordinances.98
In BCCA, the City sought to avoid preemption and to enforce its
locally enacted air-quality regulatory regime.99 Our Court held that the
Clean Air Act preempted the local ordinance because the local
“enforcement provisions authorize the City to enforce the state’s
air-quality standards in a manner that is inconsistent with the statutory
enforcement provisions.”100 We rejected the argument that hypothetical
convergence of the two enforcement regimes saved the ordinance from
preemption. That the City might choose to enforce its ordinance “in a
way that does not violate the statutory requirements,”101 did not mean
that the ordinance was consistent with state law. As a result, we
declined to “invalidate the enforcement provisions of the Ordinance only
‘to the extent’ that they will be inconsistent.”102 Local regulations that
authorize enforcement based on standards that are inconsistent with a
statutory standard are not saved from preemption merely because some
applications produce consistent results.
The Court of Criminal Appeals reached a similar conclusion in a
case analyzing whether a statute governing motorist speed preempted a

97 Id. at 9–10.
98 Tex. Health & Safety Code § 382.113(a).
99 BCCA Appeal Grp., 496 S.W.3d at 5.
100 Id. at 16 (emphasis added).
101 Id. at 17.
102 Id. at 18.

28
city’s speed ordinance.103 The statute prohibited motorists from driving
faster than “reasonable and prudent” under the circumstances.104 In
holding the local ordinance preempted, the court concluded that a local
ordinance was unenforceable because “contrary to the statute, [it] set a
rigid speed limit of 30 miles per hour (unless otherwise posted).”105 This
was the result even though a “reasonable and prudent” speed frequently
may have been thirty miles per hour on a given street.
Local regulations are preempted when they prescribe a governing
rule that is inconsistent with a state statute’s standards, even if
enforcement of the local law might hypothetically result in the same
outcome as enforcement of the statute. A court enforcing Chapter 174
may happen to reach a result consistent with the pay-parity
amendment. In such cases, no inconsistency exists.106 The pay-parity
amendment, however, never functions as the governing rule of decision
in such an instance because it can never force a result different from
that which Chapter 174 compels.107 Local regulations are not “ancillary

103 Abrams v. State, 563 S.W.2d 610 (Tex. Crim. App. [Panel Op.] 1978).
104 Id. at 615.
105 Id.
106 See Laredo Merchs. Ass’n, 550 S.W.3d at 593 (“[I]f the general law
and local regulation can coexist peacefully without stepping on each other’s
toes, both will be given effect or the latter will be invalid only to the extent of
any inconsistency.”).
107 In other words, the Act and the pay‑parity amendment cannot
“coexist peacefully without stepping on each other’s toes.” Id.

29
to and in harmony with” state statutes when they prescribe a different
rule of decision that coincidentally converges with the statutory rule.108

* * *

We hold that Chapter 174’s judicial-enforcement provision does
not violate the Texas Constitution’s separation of powers clause. We
further hold that Chapter 174 waives the City’s immunity from the Fire
Fighters’ suit for judicial enforcement. We therefore affirm the judgment
of the court of appeals in favor of the Fire Fighters in appellate cause
numbers 14‑18‑00976‑CV and 14‑18‑00990‑CV. We remand that case to
the trial court for further proceedings on the Fire Fighters’ claim for
judicial enforcement under Chapter 174’s compensation standards.
We further hold that Chapter 174 establishes the standard for
judicial enforcement of firefighter compensation to the exclusion of local
law, including the pay‑parity amendment. Accordingly, we reverse the
judgment of the court of appeals in appellate cause
number 14‑19‑00427‑CV and render judgment in favor of the City of
Houston and the Houston Police Officers’ Union.

Jane N. Bland
Justice

OPINION DELIVERED: March 31, 2023

108 City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).

30