William Pratt, individually and as next friend of Nicole Crystal Pratt v. Employees' Retirement Fund--Appeal from 67th District Court of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00013-CV

William Pratt, individually

and as next friend of

Nicole Crystal Pratt,

Appellant

v.

Employees' Retirement Fund,

Appellee

From the 67th District Court

Tarrant County, Texas

Trial Court No. 67-203622-03

MEMORANDUM Opinion

William Pratt appeals from the trial court s judgment granting summary judgment in favor of Employees Retirement Fund and denying summary judgment in favor of Pratt. Because the Fund was entitled to summary judgment as a matter of law, we affirm the trial court s judgment.

In his first issue, Pratt contends the trial court erred in granting the Fund s traditional motion for summary judgment. Summary judgment is appropriate only when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The defendant as movant must disprove at least one essential element of the plaintiff's causes of action to prevail on summary judgment. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). The parties agree there are no disputed issues of material fact. The question then becomes whether the Fund is entitled to summary judgment as a matter of law.

Pratt was injured in the line of duty as a firefighter for the City of Fort Worth. He received disability benefits which were reduced because he earned more than his base hourly rate of pay for 2002. Pratt filed suit under the Declaratory Judgments Act and alleged he was entitled to full disability benefits under article 6243, et seq., of the Texas Revised Civil Statutes and under an ordinance of the City of Fort Worth.

The Fund set out in its motion for summary judgment that each subsection of article 6243 did not apply to Pratt s situation. Pratt offered no rebuttal to the Fund s motion on this issue. After reviewing article 6243, we agree with the Fund. The Fund argued in its summary judgment motion that, instead, Pratt s complaint was governed solely by Section 2-209(G) of the City of Fort Worth s Retirement Ordinance. Subsection (G) provides, in relevant part:

If the member s total receipt of Earned Income, Net Earnings from Self-employment, and City disability retirement benefits, shall exceed the member s annualized base hourly rate of pay at the time a disability pension was granted by the Board, then as soon as practicable, the Board shall reduce the amount of disability benefits to be paid to the member by the amount of such excess earnings.

The Fund presented summary judgment evidence that at the time Pratt s pension was granted, his base hourly rate of pay was $19.44 per hour, or $40,435 per year. The Fund also presented summary judgment evidence that Pratt received a disability pension of $27,175 per year, and in 2002, Pratt earned $23,467 in business income. That income exceeded Pratt s hourly rate of pay by $10,197. Thus, according to the City Ordinance, Pratt s disability was to be reduced by that excess amount.

Pratt does not dispute the Fund s interpretation of the Ordinance or any of the Fund s evidence or calculations. Instead, he contends that case-law prohibits the reduction of his disability benefits. Pratt cites only two cases for the proposition that a city employee who becomes disabled on the job is entitled to full disability benefits regardless of whether outside employment was obtained. The decision in Board of Firemen s Relief, Etc. v. Marks does not stand for that proposition. Board of Firemen s Relief, Etc. v. Marks, 237 S.W.2d 420 (Tex. Civ. App. Austin), rev d, 242 S.W.2d 181 (Tex. 1951). In Marks, the Board denied Marks s request for disability benefits. The parties disagreed as to whether Marks s disability was caused by his service as a firemen and whether he was disabled because he was currently earning more money than as a fireman. Id. at 422. The court of appeals affirmed the trial court s decision to grant Marks disability benefits. But it based that decision on the determination that Marks sustained his disabling injuries while working as a fireman. Id. at 424. The Texas Supreme Court reversed the court of appeals decision. Board of Firemen s Relief & Retirement Fund Trustees v. Marks, 242 S.W.2d 181 (Tex. 1951). The decision in City of Dallas v. Watkins does stand for the proposition stated by Pratt but is distinguishable. City of Dallas v. Watkins, 651 S.W.2d 923 (Tex. App. Dallas 1983, no writ). In that case, the court of appeals interpreted article 6243a of the Texas Revised Civil Statutes[1] which, unlike Section 2-209(G) of the City of Fort Worth s Retirement Ordinance, did not allow a reduction in benefits without a change in degree of disability. Id. at 925. Thus, the case-law relied on by Pratt does not trump the Retirement Ordinance.

Pratt also argues that the Texas Constitution prohibits the reduction in his disability benefits. See Tex. Const. art. XVI, 66. Specifically, Pratt relies on subsection (e) which provides, Benefits granted to a retiree before the effective date of this section and in effect on that date may not be reduced or otherwise impaired. Id. (e). But, section 66 does not apply to disability benefits that a retirement system determines are no longer payable under the terms of the retirement system as those terms existed on the date the retirement system began paying the disability benefits. Id. (c)(3). Pratt interprets this subsection to mean that section 66 does not apply to disability payments that are no longer payable because the retiree is no longer disabled. That is not what (c)(3) says. And, when interpreting our State Constitution, we rely heavily on its literal text and give effect to its plain language. Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 344 (Tex. 2001). Subsection (c)(3) is plainly stated; and under the terms of the City s Retirement Ordinance in effect at the time the Fund began paying Pratt, Pratt s benefits could be reduced if he earned more in any given year than his base hourly rate of pay. Thus, section 66 of the Texas Constitution does not prevent or prohibit Pratt s disability payments from being reduced. See Op. Tex. Att y Gen. No. GA-0227 (2004).

The Fund disproved an essential element of Pratt s cause of action; therefore, the Fund was entitled to summary judgment as a matter of law. Pratt s first issue is overruled.

In his second issue, Pratt argues for the same reasons that the trial court erred in denying his traditional motion for summary judgment. Our disposition of the first issue controls the disposition of this issue. Pratt s second issue is overruled.

The trial court s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 19, 2006

[CV06]

[1] Article 6243a was repealed in 1989 and replaced by article 6243a-1. Act of 1989, 71st Leg., ch. 533, 2 (eff. June 14, 1989) (current version at Tex. Rev. Civ. Stat. Ann. 6243a-1 (Vernon Supp. 2005)). Article 6243a-1 does not apply to the City of Fort Worth. Tex. Rev. Civ. Stat. Ann. 6243a-1, Sec. 2.01(13) (Vernon Supp. 2005).