Justia.com Opinion Summary: This matter arose out of a dispute over whether the City of Dallas paid its firefighters and police officers in accord with a 1979 ordinance adopted pursuant to a voter-approved referendum. Claiming the City had not properly paid them, some firefighters and police officers brought a class action asserting breach of contract claims and seeking a declaratory judgment. For the reasons set out in City of Dallas v. Albert, the court concluded that: (1) the ordinance's adoption by means of referendum did not result in the City's loss of immunity from suit; (2) the City had immunity from suit as to the declaratory judgment action; (3) by non-suiting its counterclaim the City did not reinstate immunity from suit as to the Officers' claims that were pending against the City when it non-suited the counterclaim; and (4) the case must be remanded for the trial court to consider whether the Legislature waived the City's immunity by amending the Local Government Code.
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IN THE SUPREME COURT OF TEXAS
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NO. 07-0288
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CITY OF DALLAS, PETITIONER,
v.
DAVID S. MARTIN AND GEORGE G. PARKER, ET AL., RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
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Argued December 17, 2009
JUSTICE JOHNSON delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON,
JUSTICE HECHT, JUSTICE WAINWRIGHT, JUSTICE MEDINA, JUSTICE GREEN, JUSTICE GUZMAN, and
JUSTICE LEHRMANN joined.
JUSTICE WILLETT filed a dissenting opinion.
This appeal involves issues of governmental immunity from suit. With the exception that
this matter is a class action, which does not affect our analysis or conclusions, and one argument that
we address separately, the material facts, procedural background, issues, and arguments presented
are similar to those we considered in City of Dallas v. Albert, ___ S.W.3d ___ (Tex. 2011). Thus,
our conclusions and holdings are the same as those in Albert.
The matter1 arises out of a dispute over whether the City of Dallas paid its firefighters and
police officers in accordance with a 1979 ordinance adopted pursuant to a voter-approved
1
This appeal involves two petitions, City of Dallas v. Martin (No. 07-0288) and City of Dallas v. Parker (No.
07-0289), which we consolidated.
referendum.2 Claiming the City had not properly paid them, some firefighters and police officers
(collectively, the Officers) brought a class action asserting breach of contract claims and seeking a
declaratory judgment.
As it did in Albert, the City filed a counterclaim, later filed a plea to the jurisdiction based
on governmental immunity, and then dismissed its counterclaim. The trial court denied the City’s
plea to the jurisdiction and the City filed an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(8). While the appeal was pending at the court of appeals, the Legislature amended the
Local Government Code to provide for a limited, retroactive waiver of certain local governmental
entities’ immunity from suit. See TEX. LOC. GOV’T CODE § 271.152.3 In light of judicial4 and
2
The ordinance, in relevant part, states:
Be it ordained that: (1) From and after October 1, 1978, each sworn police officer and fire fighter and
rescue officer employed by the City of Dallas, shall receive a raise in salary in an amount equal to not
less than 15% of the base salary of a City of Dallas sworn police officer or fire fighter and rescue
officer with three years service computed on the pay level in effect for sworn police officers and fire
fighters and rescue officers of the City of Dallas with three years service in effect in the fiscal year
beginning October, 1977; (2) The current percentage pay differential between grades in the sworn
ranks of the Dallas Police Force and the Fire Fighter and Rescue Force shall be maintained; and (3)
Employment benefits and assignment pay shall be maintained at levels of not less than those in effect
for the fiscal year beginning October, 1977.
Dallas, Tex., Ordinance 16084 (Jan. 22, 1979).
3
Section 271.152 of the Local Government Code provides:
A local governmental entity that is authorized by statute or the constitution to enter into a
contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit
for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions
of this subchapter.
4
More specifically, we decided Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) and Reata Construction
Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). In Tooke we held that the phrases “sue and be sued” and “plead
and implead” do not constitute clear and unambiguous waivers of governmental immunity. 197 S.W.3d at 342. In Reata
we held that a governmental entity does not have immunity from monetary claims against it that are “germane to,
connected with, and properly defensive to” affirmative claims made by the entity, to the extent the claims against the
entity offset the entity’s claims. 197 S.W.3d at 378.
2
legislative proceedings that took place after the trial court made its rulings, the court of appeals
affirmed in part, reversed in part, and remanded the case for reconsideration by the trial court. 214
S.W.3d 638, 644.
For the reasons set out in Albert we conclude that: (1) the ordinance’s adoption by means
of referendum did not result in the City’s loss of immunity from suit; ___ S.W.3d at ___; (2) the City
has immunity from suit as to the declaratory judgment action; ___ S.W.3d at ___; (3) by non-suiting
its counterclaim the City did not reinstate immunity from suit as to the Officers’ claims that were
pending against the City when it non-suited the counterclaim; ___S.W.3d at ___; and (4) the case
must be remanded for the trial court to consider whether the Legislature waived the City’s immunity
by amending the Local Government Code. ___ S.W.3d at ___.
In addition to arguments made in Albert and addressed above, the Officers in this case assert
that the City’s immunity from suit is waived because the suit implicitly involves the validity of pay
resolutions adopted by the city council. See TEX. CIV. PRAC. & REM. CODE § 37.006(b) (“In any
proceeding that involves the validity of a municipal ordinance . . . the municipality must be made
a party . . . .”). However, the Officers’ pleadings do not support this contention. Their pleadings
reference the ordinance as having become a term of their employment contracts and two resolutions
as possible bases for calculating their damages. They do not question the validity of either the
ordinance or a resolution.
We reverse the judgment of the court of appeals and remand the case to the trial court for
further proceedings.
3
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: December 16, 2011
4
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