dissenting.
The majority holds that a “proper” construction of the pre-1987 language of Texas Revised Civil Statute art. 1269p, section 6, results in the reversal of a money judgment in favor of appellee, Spainhouer and rendition of a take nothing judgment in favor of appellant, City of Dallas. I disagree with the majority’s rationale of the “proper” construction of the statute at issue and therefore, dissent.
As a Dallas Fire Department photographer, Spainhouer was required to be on call during all periods he was not actually working, sick or on vacation from July 30, *6201980, to June 23, 1984, and during every alternate week from June 24, 1984 to February 10, 1986. While on call, he was required to be available for contact by telephone at his home, by radio in his vehicle, or by a pager which he carried on his person. As a non-firefighting employee of the department, Spainhouer brought this action claiming the statute entitled him to back pay for hours spent “on-call” since July of 1980.
Spainhouer filed a motion for summary judgment on the theory that the statute applied to him as an employee whose duties did not include fighting fires. The City moved for summary judgment on the theory that the statute (prior to its amendment in 1985) applied only to firefighting personnel. The City’s motion was denied, Spain-houer’s motion was sustained and as a result of a non-jury trial on damages, Spain-houer recovered a money judgment for back pay for all hours spent on-call, totaling $477,841.60, plus interest. The trial court held that Spainhouer was entitled “to recover pay at time and one-half for ‘any and all hours during which [he is] required to remain available for immediate call to duty’ to the extent such hours exceed the ‘normal work week’ applicable to him.” This holding by the trial court sustained Spainhouer’s argument and rejected the City’s theory.
The majority holds that the statute, when “properly construed” does not entitle Spa-inhouer to be paid for hours not actually worked on the job. The majority contends that Spainhouer’s argument ignores the plain words of the pre-1987 statute and holds that those provisions require overtime pay only for hours actually worked in excess of the maximum set by the statute. The majority further states the statute nowhere requires the city to pay members of the fire department for hours not spent on the job. The majority contends that this distinction between hours actually worked and hours free for personal use subject to call was drawn more clearly by the Legislature in its 1987 amendments to section 6 of the act, and states that the amendment makes clearer that by the pre-1987 language, “available for immediate call to duty by continuously remaining in contact with the fire department office by telephone or by radio,” the Legislature meant “on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes.” The majority states the amendment demonstrates that the Legislature never intended to require cities to pay members of the fire department overtime for hours during which they were merely “accessible.”
The majority further contends that to construe the pre-1987 statute, as claimed by Spainhouer would yield a foolish and absurd result. The majority asserts that the language of the applicable section requires payment only for hours worked, as anyone would certainly expect. The majority asserts it would be a foolish statute indeed that obligates tax-payers to pay a fire department photographer nearly half a million dollars in overtime pay for twenty-four hours a day everyday for nearly six-years, simply because a photographer might have been called to work.
Paraphrasing Justice C.L. Ray in a recent case, the vice in all this, apart from its obvious nature as dicta, is that the majority substitutes its rationale of what the Legislature must have intended for the consequences of what the Legislature plainly did. Actions speak louder than words and here we do not even have words; only the active imagination of the majority and what it deduces must have been the Legislature’s intent regarding the pre-1987 versions of the statute. See State v. Prestar, 751 S.W.2d 477, 483-84 (Tex.1988) (Ray, concurring opinion).
In my view, the Supreme Court’s interpretation of the pre-1987 statute in Kier-stead v. City of San Antonio, 643 S.W.2d 118 (Tex.1982) is determinative of this appeal and, when “properly” applied to the facts in this case, dictates an affirmance of the trial court’s judgment.
In Kierstead, the Supreme Court held that:
Art. 1269p, § 6 simply distinguishes between fire employees that fight fires and those who do not. Any kind of official *621work assignment that does not include firefighting and exceeds the regular 40 hour week is compensable as overtime unless the Art. 1269p, § 6 right to a maximum 40 hour week.
Although the majority recognizes that to determine whether activity by a member of the fire' department is compensable, the Supreme Court uses the standard of “official work assignment,” it then proceeds to run roughshod over that standard in its haste to apply its interpretation of the statute in order to avoid what the majority considers is a foolish and absurd result. In my view, the majority goes far afield from its function as intermediate appellate court; because it, although recognizing the standard established by the Texas Supreme Court in Kierstead, proceeds to ignore it when applied to the facts in this case.
As stated, the standard, pre-1987, is “any kind of official work assignment that does not include firefighting and exceeds the forty hour week is compensable as overtime unless the right to a maximum forty hour week has been waived.” Spain-houer’s summary judgment evidence established the following: (1) that non-firefighting employees and most City of Dallas employees work a normal work week of forty hours per week; (2) that he was a photographer for the Dallas Fire Department and his duties with the department at no time included fighting fires; (B) that he was on call seven days per week, twenty-four per day from June 30, 1980 to June 23, 1984; (4) that he was on call seven days per week, twenty-four hours per day during alternate weeks from June 24, 1984 to February 10, 1986; (5) that he was required to be on call during the period specified and that he was required to be on call by telephone in his home, by the radio in his vehicle, and by a pager device; (6) that he was provided a specially equipped fire department automobile, was issued special fire protection equipment, was issued a fire department identification card to allow him to go into restricted areas and was provided a uniform identifying him as a fire department employee; (7) that the pager that he carried operated through a special fire department paging system.
Spainhouer’s on-call was not voluntary but was required by the city as part of his job responsibility. Of great significance and importance is that at oral argument, the city conceded and did not dispute that Spainhouer’s on-call duty was mandatory and part of his “official work assignment.” It was also conceded by the city that there was no circumstances that could be invoked as a waiver of whatever rights Spainhouer had under article 1269p, section 6. Thus, it is without dispute that Spainhouer’s on-call duty was part of his “official work assignment” and that he was on call in excess of a forty-hour regular work week. Since his on-call duty was part of his official work assignment, I would hold that Spainhouer is entitled to compensation at overtime rates for any time in excess of a forty hour week. See Kierstead v. San Antonio, 643 S.W.2d at 121. I am further of the opinion that the majority’s reasoning in attempting to distinguish the other authorities relied upon by Spainhouer is faulty; and, to the contrary, believe that those cases apply the standard established by the Supreme Court as it should be applied in this case. See City of Brownsville v. Salazar, 712 S.W.2d 577 (Tex.App. — Corpus Christi 1986, no writ); and Privitt v. City of Irving, 666 S.W.2d 541 (Tex.App. — Corpus Christi 1983, writ ref’d n.r.e.).
Because of the foregoing reasons, the trial court’s judgment should be affirmed.