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Court of Appeals of Texas,Beaumont.

James VANDEVENDER, Appellant, v. Honorable G. Mitch WOODS, In His Official Capacity as Sheriff of Jefferson County, Texas and Jefferson County, Texas, Appellees.

No. 09-04-477 CV.

Decided: October 20, 2005

Before GAULTNEY, KREGER and HORTON, JJ. Richard L. Aman, CLEAT Senior Staff Atty., Houston, for appellant. Tom Maness, Criminal Dist. Atty., Thomas F. Rugg, First Asst., Civil Division, Beaumont, for appellees.


Our prior opinion is withdrawn and the following opinion is issued.   The motion for rehearing is overruled.

Appellant James VanDevender filed a declaratory judgment action in which he alleged appellees failed to pay his full salary during a second term after he sustained an on-the-job injury in his first term of employment as a deputy sheriff.   See Tex. Const. art. III, § 52e (Vernon 1997).   VanDevender sought a judgment declaring appellees were to pay his full salary until he returned to work, fully recovered, or through the end of the second term, whichever occurred first.   He cited article III, section 52e of the Texas Constitution, which provides as follows:

Each county in the State of Texas is hereby authorized to pay all medical expenses, all doctor bills and all hospital bills for Sheriffs, Deputy Sheriffs, Constables, Deputy Constables and other county and precinct law enforcement officials who are injured in the course of their official duties;  providing that while said Sheriff, Deputy Sheriff, Constable, Deputy Constable or other county or precinct law enforcement official is hospitalized or incapacitated that the county shall continue to pay his maximum salary;  providing, however, that said payment of salary shall cease on the expiration of the term of office to which such official was elected or appointed.   Provided, however, that no provision contained herein shall be construed to amend, modify, repeal or nullify Article 16, Section 31, of the Constitution of the State of Texas.

Id.  The parties stipulated VanDevender was acting in the course and scope of his employment when he was injured on April 11, 2000.1  He returned to work on August 14, 2000.   The Sheriff's term ended on December 31, 2000.   The Sheriff was elected to another four-year term, which began on January 1, 2001.   VanDevender was re-deputized, and he suffered another period of disability beginning March 2, 2001.   He testified this second period of disability was caused by the injury of April 11, 2000.

After a bench trial, the trial court entered judgment that VanDevender take nothing.   The court found as follows:  the evidence neither proved nor disproved VanDevender's current disability was caused by his on-the-job injury;  VanDevender was paid the constitutional benefit to which he was entitled;  and VanDevender's entitlement to constitutional benefits ended on December 31, 2000, concurrently with the end of the Sheriff's term.2

 VanDevender argues the trial court misinterpreted article III, section 52e of the Texas Constitution.   See Tex. Const. art. III, § 52e (Vernon 1997).   VanDevender contends the constitutional provision is in essence a workers' compensation provision and must be liberally construed in favor of the injured worker.   He cites The Kroger Co. v. Keng, 23 S.W.3d 347 (Tex.2000), in which the Supreme Court stated, “it would be injudicious to construe the statute [worker's compensation] in a manner that supplies by implication restrictions on an employee's rights that are not found in [the section's] plain language.”  Id. at 349.   VanDevender contends the constitutional provision should be construed to permit the payment of his full salary during a second term of employment in which the disability continued.

When section 52e was adopted, county law enforcement officers were not entitled to receive workers' compensation benefits.  Frasier v. Yanes, 9 S.W.3d 422, 424 (Tex.App.-Austin 1999, no pet.).   The workers' compensation statute was amended in 1973 to provide coverage for law enforcement officers.   Id. at 425.   Appellees argue that construing the constitutional provision as VanDevender asks would ignore the plain language of the provision and would create “a windfall never envisioned or intended by the framers of the amendment at issue.”   Appellees assert a sheriff receives a limited budget to staff the office, and the construction VanDevender advocates may encourage a particular sheriff to reappoint or not reappoint a deputy based solely on the possibility of future incapacity.   Under VanDevender's construction, if a deputy continued to be reappointed for each new term, a county would be required to continue full salary payments during incapacity;  if a deputy was not reappointed, the continued salary payments would be prohibited.   Appellees argue constitutional rights are not normally “bestowed or not bestowed by the whim of an elected official.”

 When interpreting the Texas Constitution, courts presume its language was carefully selected and construe its words as they are generally understood.  Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000) (citing City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex.1995)).   Courts “rely heavily on the plain language of the Constitution's literal text.”  Id. (citing Republican Party v. Dietz, 940 S.W.2d 86, 89 (Tex.1997)).   Effect is to be given to all phrases of a constitutional provision.   See In Interest of McLean, 725 S.W.2d 696, 697-98 (Tex.1987).

 Article III, section 52e states the required “maximum salary” payment during the incapacity shall cease on the expiration of the term of office to which the official was elected or appointed.  Tex. Const. art. III, § 52e (Vernon 1997).   A deputy sheriff's term expires when the sheriff's term expires.  Samaniego v. Arguelles, 737 S.W.2d 88, 90 (Tex.App.-El Paso 1987, no writ).   In Samaniego, the court explained that “[t]he recovery of working capacity or the consequent expiration of the coincident term of the sheriff, whichever comes first, would proscribe the deputy's claim.”   Samaniego, 737 S.W.2d at 90.   The Samaniego court held a sheriff's discharge of an at-will deputy in mid-term did not affect the deputy's right to receive his full salary during incapacity until the end of the term.  Id.  VanDevender characterizes Samaniego as a case in which the court “declined the opportunity to interpret the constitutional provision in a manner that would restrict or limit the benefits afforded to injured law enforcement officers.”   However, Samaniego does not support the interpretation of Article III, section 52e that VanDevender asks us to adopt.   See id.   To the contrary, the Samaniego court explained the expiration of the term of office would proscribe the claim if the term expired before the deputy recovered working capacity.  Id;  see also Tarrant County v. Van Sickle, 98 S.W.3d 358, 364(Tex. App.-Fort Worth 2003, pet. denied).

In Tarrant Co. v. Van Sickle, the court held an injured deputy's constitutional right to full salary during incapacity ended when the sheriff's term ended.   See id.   In so holding the court said that “absent a formal rehiring of a deputy at the beginning of the sheriff's next term, the Texas Constitution prohibits a county from paying the deputy hired during the sheriff's previous term once the term expires.”  Id. The court held the trial court erred in ordering the county to pay Van Sickle his salary until the effective date of his retirement.   The Van Sickle court did not answer the somewhat different question presented here:  whether the Texas Constitution requires a county to pay the full salary during incapacity if the deputy is rehired for an additional term or terms.

We conclude that to construe the provision as VanDevender asks would fail to give effect to the plain meaning of the clause requiring the salary payment for an injury cease on the expiration of the term of office to which the official was elected or appointed.   Given the requirement in the limiting phrase that the payments “shall cease” on expiration of the term, we cannot construe the provision to give additional length to the “incapacity” phrase.   The provision uses the word “term,” not “terms,” to describe the limitation on the required payment.   As the court noted in County of El Paso v. Hill, 754 S.W.2d 267, 268 (Tex.App.-El Paso 1988, writ denied), “[t]he time of the injury in relation to the remaining days of the term can produce unequal recovery on the part of different deputy beneficiaries.”   Nevertheless, the Hill court held entitlement to salary continuation ceases at the end of the term or the date of recovery, “which ever comes first.”  Id.  VanDevender states Hill is distinguishable because the injured deputy in Hill was not re-deputized when a newly-elected sheriff took office.   See id. at 267.   However, nothing in Hill suggests the court would have reached a different result if the deputy had been re-deputized for a second term.   Rather, the court held the limitation was tied to the expiration of the term even if the incapacity continued beyond the end of the term.   See id.

We conclude the trial court did not err in construing article III, section 52e.   See Tex. Const. art. III, § 52e (Vernon 1997).   VanDevender's third issue is overruled.   Because of this resolution of issue three, we need not address issues one and two.   The judgment of the trial court is affirmed.



1.   VanDevender denied any other on-the-job injury occurred.

2.   VanDevender does not dispute the trial court's finding of fact that he was paid his constitutional benefits from the date of his injury through December 31, 2000.   His entitlement to workers' compensation benefits is not at issue in this case.


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