AFFIRM; and Opinion Filed July 20, 2017.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-01227-CV

CITY OF DALLAS, MIKE RAWLINGS, SCOTT GRIGGS, ADAM MEDRANO, CASEY
   THOMAS II, CAROLYN KING ARNOLD, RICKEY D. CALLAHAN, MONICA R.
    ALONZO, TIFFINNI A. YOUNG, ERIK WILSON, MARK CLAYTON, B. ADAM
MCGOUGH, LEE M. KLEINMAN, SANDY GREYSON, JENNIFER S. GATES, PHILIP
               T. KINGSTON, AND A.C. GONZALEZ, Appellants
                                   V.
   DAVID S. MARTIN, JAMES A. BRADDOCK, OBIE CARTMILL, ROBERT DALE
    MARTIN, O.J. ADAIR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
 SIMILARLY SITUATED, AND GEORGE G. PARKER, JOE M. GUNN, STEPHEN W.
TOTH, NATHAN TRAMMEL, AND TODD A. STRATMAN, INDIVIDUALLY AND ON
  BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND DALLAS POLICE AND
                      FIRE PENSION SYSTEM, Appellees

                      On Appeal from the 382nd Judicial District Court
                                  Rockwall County, Texas
                             Trial Court Cause No. 1-95-506

                             MEMORANDUM OPINION
                          Before Justices Francis, Brown, and Schenck
                                  Opinion by Justice Schenck
       The City of Dallas (“City”) and Mike Rawlings, Scott Griggs, Adam Medrano, Casey

Thomas II, Carolyn King Arnold, Rickey D. Callahan, Monica R. Alonzo, Tiffinni A. Young,

Erik Wilson, Mark Clayton, B. Adam McGough, Lee M. Kleinman, Sandy Greyson, Jennifer S.

Gates, Philip T. Kingston, and A.C. Gonzalez (collectively “City Officials”) filed interlocutory

appeals from orders denying their jurisdictional challenges in two lawsuits current and former

police officers, firefighters, and rescue officers (“Officers”) filed against the City, in which the
Dallas Police and Fire Pension System (“Pension System”) intervened joining the City Officials

as third-party defendants. For the following reasons, we affirm the trial court’s orders denying

the City’s and the City Officials’ jurisdictional challenges. 1 Because all issues are settled in law,

we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                         FACTUAL AND PROCEDURAL BACKGROUND
         AND RELEVANT PRIOR DECISIONS OF THIS COURT AND THE TEXAS SUPREME COURT

           In 1979, the voters of Dallas approved a pay referendum for the City’s sworn officers,

and the City enacted an ordinance (the “Ordinance”) adopting the referendum. The Ordinance

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 fighter 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, § 4 (Jan. 22, 1979). In addition, the City passed two resolutions

implementing the Ordinance. In the succeeding years, the City raised salaries through annual

pay resolutions passed by City Council. As time passed, the Officers accused the City of failing

to maintain the percentage pay differential stated in clause 2 of the Ordinance.



     1
       The Officers make a powerful argument for denying serial appeals and motions for rehearing on jurisdictional challenges that could have
been raised in prior appeals. Given where the arguments on this appeal lead us, we reserve consideration and a decision on this issue for another
day.



                                                                     –2–
       In 1995, the Officers filed their lawsuits asserting the Ordinance requires the City to

continue maintaining the pay differentials established in 1979 between all Officer grades until

changed by referendum vote. The Pension System intervened with claims against the City

Officials for contributions to the pension fund it claims will be owed if the Officers recover on

their claims for back pay. The City and the City Officials maintain that the Ordinance was a

one-time salary adjustment and was not intended to apply to all future salary adjustments.

       On June 4, 2002, this Court reversed a summary judgment in favor of police officers and

firefighters in another case involving the Ordinance at issue here. In doing so, we concluded that

the Ordinance is patently ambiguous about whether it was intended to be a one-time salary

adjustment or to apply to all future salary adjustments. See Arredondo v. City of Dallas, 79

S.W.3d 657, 668 (Tex. App.—Dallas 2002, pet. denied) (“Arredondo I”). We further stated

“[b]ecause the Ordinance constitutes a contract between the City and Plaintiffs, resolution of the

ambiguity issue requires a determination by the fact-finder as to the intent of the parties to the

contract, i.e., what the City and Plaintiffs thought the Ordinance meant, as evidenced by, among

other things, their conduct and any information disseminated by them to the voters.” Id. We

additionally stated, “because in this instance the City was bound by the decision of the voters and

in fact had no authority to change any language in the Ordinance as drafted by the Dallas Police

and Fire Action Committee, the intent of the voters is also relevant in resolving the ambiguity.”

Id.

       After this Court reversed the summary judgment and remanded the Arredondo case for

further proceedings, the City filed pleas to the jurisdiction in the cases that are currently before

this Court, challenging subject-matter jurisdiction on immunity grounds. The trial court denied

the pleas, and the City appealed. On December 21, 2006, this Court affirmed the trial court’s

                                                –3–
denials of the City’s pleas as to the Officers’ declaratory-judgment claims and reversed the trial

court’s denials of the City’s pleas as to the Officers’ breach-of-contract claims. City of Dallas v.

Martin, 214 S.W.3d 638 (Tex. App.—Dallas 2006, pet granted), rev’d, 361 S.W.3d 560 (Tex.

2011).

           The Texas Supreme Court granted the City’s petition for review. During the pendency of

the appeals, the legislature amended the local government code to provide for a limited,

retroactive waiver of certain local governmental entities’ immunity to suit for certain breach-of-

contract claims. See TEX. LOC. GOV’T CODE ANN. § 271.152 (West 2016). 2 On December 16,

2011, the supreme court concluded the City is immune from suit as to the Officers’ declaratory-

judgment claims, and remanded the cases to the trial court to determine whether the amendments

to chapter 271 of the local government code effect a waiver of the City’s immunity as to the

Officers’ breach-of-contract claims. City of Dallas v. Martin, 361 S.W.3d 560, 561 (Tex. 2011).

The cases were then abated pending the resolution of a second appeal in the Arredondo case

(Arredondo II) in which the City complained of the trial court’s denial of its pleas to the

jurisdiction as to the Arredondo plaintiffs’ breach-of-contract claim.

           On August 13, 2013, we concluded in Arredondo II that the police officers and

firefighters alleged a unilateral contract with the City that satisfied the requirements of the

waiver of immunity for breach-of-contract claims in section 271.152 of the local government

code. City of Dallas v. Arredondo, 415 S.W.3d 327, 350 (Tex. App.—Dallas 2013, pet. denied).

In addition, we noted that we had previously concluded in Arredondo I that the language of the

Ordinance was ambiguous about whether the differential was intended to apply one time or to all

future salary adjustments and that resolution of that issue is one for the fact-finder. Id. (citing

     2
        Section 271.152 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.” TEX. LOC. GOV’T CODE ANN. § 271.152.



                                                                      –4–
Arredondo, 79 S.W.3d at 669).

          After our decision in Arrendondo II, the City filed second pleas to the jurisdiction in the

cases before us arguing, in part, that the Officers cannot plead a contract after April 1, 2002, to

trigger the immunity waiver in section 271.152 of the local government code because City

Council amended the City’s personnel rules to disavow the creation of an employment contract.

In addition, the City and the City Officials filed pleas to the jurisdiction urging the Pension

System cannot plead a valid waiver of immunity from suit or a valid ultra vires action. The City

and the City Officials also filed motions for summary judgment asserting, in part, that chapter

271 of the local government code does not provide a waiver of immunity for the Officers’

breach-of-contract claims because no term of their alleged contract could be breached because

the voters did not contemplate that the City would have to maintain differentials in any and all

post-1979 pay scales. The trial court denied the pleas to the jurisdiction and the motions for

summary judgment. These interlocutory appeals followed.

                                                              DISCUSSION

     I.         Summary Judgment

          In their first issue, the City and the City Officials argue the trial court erred in denying

their motions for summary judgment on jurisdictional grounds, urging there is no essential term

of the alleged contract that the City could have breached and no associated damages within

chapter 271’s waiver. 3

          A. Limited Interlocutory Appellate Jurisdiction

          An appellate court lacks jurisdiction to review an interlocutory order unless a statute

specifically authorizes an exception to the general rule, which is that appeals may only be taken

     3
        In their motions for summary judgment, the City and the City Officials asserted, in part, “There is no subject-matter jurisdiction for
Plaintiffs’ alleged breach of contract claims because the evidence conclusively establishes that the voters intended a one-time 15-percent pay
increase and, therefore, there was no essential term that the City could have breached in the alleged contract and no associated damages within
the waiver in Local Government Code chapter 271.”



                                                                    –5–
from final judgments. Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000)

(per curiam). Civil practice and remedies code section 51.014(a)(8) allows an appeal from an

interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit as that

term is defined in Section 101.001.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West

Supp. 2016) (emphasis added). An interlocutory appeal may be had when a trial court denies a

governmental unit’s challenge to subject-matter jurisdiction, “irrespective of the procedural

vehicle used.” Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). The availability of an

interlocutory appeal will not be decided by the form or caption of a pleading but will be

determined by the substance of the motion to determine the relief sought. Surgitek, Bristol–

Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999).

       In its motion for summary judgment and on appeal, the City confuses immunity from suit

with immunity from liability. Immunity from liability is an affirmative defense that can be stated

as a ground for summary judgment. State Tex. Dep’t of Transp. v. Allodial Ltd. P’ship, 280

S.W.3d 922, 926 (Tex. App.—Dallas 2009, no pet.) (citing Tex. Dept’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Immunity from liability may be challenged by

summary judgment as it is inherently a plenary merit determination with an eye towards final

judgment and all that proceeds it. The denial of a motion for summary judgment on immunity

from liability grounds is not a final judgment, and when the claim of immunity from liability is

not asserted in connection with an assertion of official immunity, is not an interlocutory order

that may be reviewed immediately by accelerated appeal. See, e.g., In re Lee, 995 S.W.2d 774,

778 (Tex. App.—San Antonio 1999, orig. proceeding [mand. denied]).

       Immunity from suit, on the other hand, concerns subject matter jurisdiction. Id. This

jurisdictional inquiry is a facial assessment as to whether the court even has the power to proceed

with the case and to entertain the merits of the case. Immunity from suit is properly asserted in a

                                                –6–
plea to the jurisdiction, not a motion for summary judgment, and irrespective of the vehicle

through which immunity from suit is raised, it is reviewed under the standards applicable to pleas

to the jurisdiction. Id. Because we liberally construe the issues presented, we construe the City

and the City Official’s first issue as a challenge to the denial of a plea to the jurisdiction. Perry

v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008).

       B. Standard of Review

       Generally, a plea to the jurisdiction may challenge the sufficiency of the claimant’s

pleadings or the existence of necessary jurisdictional facts. See Zachry Constr. Corp. v. Port of

Houston Auth. of Harris Cty., 449 S.W.3d 98, 110 n.53 (Tex. 2014). When the plea challenges

the claimant’s pleadings, we determine whether the claimant has pleaded facts that affirmatively

demonstrate the trial court’s jurisdiction, construing the pleadings liberally and in favor of the

claimant. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When

the plea appropriately challenges jurisdictional facts, we consider evidence submitted by the

parties. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). “The court should, of

course, confine itself to the evidence relevant to the jurisdictional issue.” Id. We do not look to

the merits of the claimant’s case, but consider only the pleadings and the evidence pertinent to

the jurisdictional inquiry, and we construe the pleadings liberally in favor of conferring

jurisdiction. Consumer Serv. All. of Tex., Inc. v. City of Dallas, 433 S.W.3d 796, 802 (Tex.

App.—Dallas 2014, no pet.). If the jurisdictional evidence creates a fact question, then the trial

court cannot grant the plea to the jurisdiction, and the issue must be resolved by the fact-finder.

Id.

       C. Waiver of Immunity

       In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

                                                –7–
to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The legislature waived a

local governmental entity’s immunity from suit for certain breach-of-contract claims by enacting

section 271.152 of the local government code, which 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 contract, subject to the terms and conditions of this subchapter.

TEX. LOC. GOV’T CODE ANN. § 271.152. To meet the definition of a “contract subject to this

subchapter,” the contract must: (1) be in writing; (2) state the essential terms of the agreement;

(3) provide for goods or services; (4) to the local governmental entity; and (5) be executed on

behalf of the local governmental entity. TEX. LOC. GOV’T CODE ANN. § 271.151(2) (defining

“contract subject to this subchapter”); City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.

2011).

         D. Applicable Law

         The City and the City Officials urge the Officers cannot satisfy the “essential terms of the

agreement” prerequisite to a waiver of immunity. More particularly, they claim the evidence

they submitted in support of their summary-judgment motions concerning the merits of the

Officers’ breach-of-contract claim establishes there is no essential term of the agreement that can

be breached because the Ordinance was intended to be a one-time pay increase.               But the

jurisdictional inquiry does not extend to a final determination of liability on the merits with the

non-movant obliged to come forward with its merits proof as it would after, for example, the

completion of discovery. The City and the City Officials are essentially asking us to entertain a

plenary interlocutory appeal of the denial of their motions for summary judgment on the merits

of the Officers’ breach-of-contract claims, an appeal over which we do not have jurisdiction.

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (a denial of a motion for

summary judgment is not a final judgment and is therefore generally not appealable).
                                                 –8–
       The City and the City Officials mistakenly rely on Zachry as a means to invoke our

jurisdiction over the merits of the Officers’ claims. Zachry, 449 S.W.3d at 109. In that case, the

supreme court stated “[t]he waiver does not depend on the outcome, though it does require a

showing of a substantial claim that meets the Act’s conditions.” Id. The “substantial claim”

reference concerned the issue of damages and whether the plaintiff pleaded damages that are

recoverable under the statute. Id. at 109–10. While the claimant must plead facts with some

evidentiary support that constitutes a claim for which immunity is waived, the claimant is not

required to demonstrate he or she will prevail on the claim. Id. at 110. When a plea to the

jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issues raised. Arredondo,

415 S.W.3d at 341 (emphasis added). The determination of voter intent the City presses as the

basis for this appeal is not relevant or necessary to resolution of the jurisdictional issue before us

on accelerated appeal, though it may be properly raised in summary judgment or at trial. What is

relevant are the documents the Officers rely on to establish the existence of a contract within

section 271.152’s immunity waiver.

       Under section 271.152, a local government entity that enters into a contract satisfying the

statutory requisites “waives sovereign immunity to suit for the purpose of adjudicating a claim

for breach of the contract.” See TEX. LOC. GOV’T CODE ANN. § 271.152 (emphasis added).

Courts that have considered this language in connection with a jurisdictional challenge have

declined to address the merits of a plaintiff’s breach-of-contract claim if the contract falls within

the provisions of the statute. See, e.g., City of Houston v. So. Elec. Servs., Inc., 273 S.W.3d 739,

744–45 (TEx. App.—Houston [1st Dist.] 2008, pet. denied) (“To observe that the claim will fail

does not deprive the trial court of jurisdiction to hear it—or in the Legislature’s own words,

‘adjudicate’ it.”); City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444, 448 (Tex. App—

                                                 –9–
Dallas 2008, pet. denied) (stating that “our only concern on appeal is whether the City’s

immunity from suit has been waived under the local government code” and declining to address

the merits of the breach-of-contract claim).

          E. Application of the Law to the Facts

          Section 271.151(2) requires that the written contract state the essential terms of the

parties’ agreement. TEX. LOC. GOV’T CODE ANN. § 271.151(2). In Williams, the supreme court

stated that the essential terms are “time of performance,” “price to be paid,” and “service to be

rendered.”     353 S.W.3d at 138–39.        The Officers here relied on the pay referendum, the

Ordinance, resolutions implementing the ordinance, and various provisions of the City’s charter

and code to supply the essential terms of the agreement. In Arredondo II, we determined that

these documents established the essential terms of “time of performance,” “price to be paid,” and

“service to be rendered.” Arredondo, 415 S.W.3d at 347–49. As a result, we concluded that the

Arredondo plaintiffs alleged a unilateral contract with the City that satisfies the requirements of

the waiver of immunity for breach of contract claims in section 271.152 of the local government

code. Id. at 350. We likewise conclude the Officers here have alleged a unilateral contract

within section 271.152’s waiver of immunity. Accordingly, we overrule the City and the City

Officials’ first issue.

          Because our review of the trial court’s denial of the jurisdictional challenge in this case is

not a merits review, the City and the City Officials’ objections to the Officers’ summary-

judgment evidence concerning the merits of the Officers’ claims are immaterial to this appeal.

Consequently, we overrule the City and the City Officials’ fourth issue.

    II.      The City’s Plea to the Jurisdiction

          In their second issue, the City and the City Officials urge the trial court erred in denying

the City’s second pleas to the jurisdiction because a change in the Dallas City Code precludes the

                                                  –10–
existence of a contract necessary to invoke the limited waiver of immunity contained in section

271.152 of the local government code after April 1, 2002. 4 In Arredondo II, this Court rejected

this argument noting, by its terms, section 34-1 of the Dallas City Code is specifically limited to

the provisions in chapter 34; it does not apply to the Ordinance. Arredondo, 415 S.W.3d at 345.

We further noted that “even if it did, the issue here is not whether the at-will employment

relationship between the City and the Officers was ‘convert[ed],’ but whether the Ordinance

constituted a unilateral employment contract regarding the Officers’ pay that the Officers

accepted by performance within the waiver of section 271.152.” Id. (emphasis added). We

recognize that the Arredondo plaintiffs were not seeking back pay after May 1998, but that fact

was of no import to our decision in Arredondo II and does not impact our decision here. We

overrule the City and the City Officials’ second issue.

     III.          Plea to the Jurisdiction - Pension System

            In their third issue, the City and the City Officials urge the trial court erred in denying

their pleas to the jurisdiction on the Pension System’s pension-contribution claims.

            A. Standard of Review

            Generally, a plea to the jurisdiction can challenge the sufficiency of the claimant’s

pleadings or the existence of necessary jurisdictional facts. See Zachry, 449 S.W.3d at 110 n. 53.

When, as here, the plea challenges the claimant’s pleadings, we determine whether the claimant

has pleaded facts that affirmatively demonstrate the trial court’s jurisdiction, construing the

pleadings liberally and in favor of the claimant. Tex. Ass’n of Bus., 852 S.W.2d at 446.



            4
                On March 27, 2002, Dallas city council amended the personnel rules of the Dallas City Code to read as follows:

            The provisions of this chapter are subject to modification, rescission, and amendment by the Dallas city council at any
            time. Nothing in this chapter conveys a contract of employment with the city of Dallas.

Dallas, Tex., Code ch. 34, § 34-1 (2011).




                                                                       –11–
       B. The Pension System’s Pleadings

       The Pension System sued the City Officials in their official capacities seeking declaratory

and injunctive relief for the payment of pension contributions on any awards to the Officers upon

final trial of the cases. In doing so, the Pension System alleged:

       The City Officials have a statutory duty to cause the City to make pension
       contributions to [the Pension System] when the City pays salary to Dallas police
       officers and firefighters. The City Officials are required to comply with Section
       6243a-1 [of the revised civil statutes] and cause Member and City Contributions
       to be paid to [the Pension System] in the future when and if back pay is paid to
       Plaintiffs. The payment of these Contributions is a ministerial act. This ultra
       vires claim is against the City Officials, only in their official capacities for
       prospective injunctive relief to comply with Section 6243a-1.

The City Officials contend there is no waiver of immunity because the Pension System: (1) does

not and cannot plead an ultra vires act or that the City Officials acted without authority or failed

to perform a purely ministerial act; and (2) seeks retroactive relief.

       C. Applicable Law

       Governmental immunity does not bar ultra vires claims seeking to compel a

governmental officer to comply with statutory or constitutional provisions. See City of El Paso

v. Heinrich, 284 S.W.3d 366, 371–72 (Tex. 2009). To fall within the ultra vires exception to

governmental or sovereign immunity, a suit must not complain of a government officer’s

exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without

legal authority or failed to perform a purely ministerial act.           Id. at 372.   In this context,

ministerial acts are those “where the law prescribes and defines the duties to be performed with

such precision and certainty as to leave nothing to the exercise of discretion or judgment.” City

of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994); see Sw. Bell Tel., L.P. v.

Emmett, 459 S.W.3d 578, 587 (Tex. 2015). On the other hand, discretionary acts require the

exercise of judgment and personal deliberation. See Emmett, 459 S.W.3d at 587; Ballantyne v.

Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004). In an ultra vires action, a plaintiff
                                                –12–
may not seek money damages, and further, the plaintiff may seek only “prospective” rather than

“retrospective” remedies. Heinrich, 284 S.W.3d at 373–74.

       D. Application of the Law to the Facts

       The City is commanded to make contributions to the Pension System. TEX. REV. CIV.

STAT. ANN. art. 6243a-1 (West Supp. 2016). Section 4.02(b) of Article 6243a-1 provides:

       The contributions shall be annually appropriated by the City Council and
       periodically paid on the basis of a percentage of the total wages and salaries of the
       members of the police and fire departments who are members of each of the plans
       within the pension system.

Id. § 4.02(b) (emphasis added). The required contribution percentages are set forth in article

6243a-1 sections 4.02(d) and 4.03. The law clearly spells out the duty to be performed by the

officials with sufficient certainty that nothing is left to the exercise of discretion. See In re

Phillips, 496 S.W.3d 769, 774 (Tex. 2016). Article 6243a-1 does not afford City Council

discretion or judgment to refuse to comply with this duty where it applies. Thus, the City

Council has a ministerial duty to cause to be withheld from pay to the Officers, member pension

contributions that are then promptly remitted to the Pension System, and to appropriate and make

City contributions to the Pension Funds.       The City Officials, through their counsel, have

indicated their belief that the Pension System’s claims are retroactive and that payments to the

Pension System based upon the Officers’ claims for back pay are not permissible. Government

officials’ anticipatory refusal to comply with a statute is an ultra vires act. See Emmett, 459

S.W.3d at 588–89. “It is the purpose of injunctive relief to halt wrongful acts threatened or that

are in the course of accomplishment, rather than to grant relief against past actionable wrongs or

to prevent the commission of wrongs not imminently threatened.” Tex. Emp’t Comm’n v.

Martinez, 545 S.W.2d 876, 877 (Tex. Civ. App.—El Paso 1976, no writ) (emphasis added). If

the Pension System waited until a judgment is rendered on the Officers’ claims to assert a claim

for pension contributions, its claims would run afoul of the City Officials’ immunity because the
                                              –13–
Pension System would be seeking retrospective monetary relief at that time. Construing the

pleadings liberally and in favor of the Pension System, we conclude the Pension System has

alleged an ultra vires act within the waiver of governmental immunity.

        In City of Houston v. Houston Municipal Employee Pension System, a municipal pension

system sought pension contributions from the City of Houston under article 6243h, which

concerns municipal pension systems for populations exceeding 1.5 million. 513 S.W.3d 114

(Tex. App.—Houston [14th Dist.] 2016, pet. filed). In that case, the City of Houston argued it

was immune from the pension system’s ultra vires claim “to the extent the [pension system]

seeks any relief for past periods.” Id. at 129. The court of appeals disagreed: “In its petition,

HMEPS expressly sought relief compelling the City appellants to allocate funding in the

‘current’ budget, to make such payments, to include proper contributions in ‘future’ budgets, and

pick up and pay such contributions.” Id. The court of appeals concluded “[t]hese do not

constitute retrospective requests for relief.” Id.

        In the context of the pension system for police officers and firefighters, the City

Officials’ legal obligation to cause the City to pay contributions to the Pension System is based

on the “total wages and salaries,” which means “all pay received” by a member of any plan

within the pension system. TEX. REV. CIV. STAT. ANN. art. 6243a-1 § 2.01(45). At this juncture,

the Officers have received no pay by virtue of their claims against the City, and they may or may

not in the future. Like Houston Municipal Employee Pension System, the Pension System is not

bringing a claim for payment of a past due sum. It is seeking to require the City Officials to

make payments that will become due in the future if the Officers prevail on their claims and

receive payment. Consequently, the Pension System’s claims do not constitute retrospective

requests for relief. See City of Houston, 513 S.W.3d at 129. We overrule the City and the City

Officials’ third issue.

                                                 –14–
                                        CONCLUSION

       We affirm the trial court’s orders denying the City and the City Officials’ motions for

summary judgment and pleas to the jurisdiction.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE


161227F.P05




                                             –15–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

CITY OF DALLAS, MIKE RAWLINGS,                        On Appeal from the 382nd Judicial District
SCOTT GRIGGS, ADAM MEDRANO,                           Court, Rockwall County, Texas
CASEY THOMAS II, CAROLYN KING                         Trial Court Cause No. 1-95-506.
ARNOLD, RICKEY D. CALLAHAN,                           Opinion delivered by Justice Schenck.
MONICA R. ALONZO, TIFFINNI A.                         Justices Francis and Brown participating.
YOUNG, ERIK WILSON, MARK
CLAYTON, B. ADAM MCGOUGH, LEE
M. KLEINMAN, SANDY GREYSON,
JENNIFER S. GATES, PHILIP T.
KINGSTON, AND A.C. GONZALEZ,
Appellants

No. 05-16-01227-CV          V.

DAVID S. MARTIN, JAMES A.
BRADDOCK, OBIE CARTMILL,
ROBERT DALE MARTIN, O.J. ADAIR,
GEORGE G. PARKER, JOE M. GUNN,
STEPHEN W. TOTH, NATHAN
TRAMMEL, TODD A. STRATMAN,
INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
AND DALLAS POLICE AND FIRE
PENSION SYSTEM, Appellees

        In accordance with this Court’s opinion of this date, the orders of the trial court denying
the City and the City Officials’ motions for summary judgment and pleas to the jurisdiction are
AFFIRMED.

    It is ORDERED that appellees DAVID S. MARTIN, JAMES A. BRADDOCK, OBIE
CARTMILL, ROBERT DALE MARTIN, O.J. ADAIR, GEORGE G. PARKER, JOE M.
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GUNN, STEPHEN W. TOTH, NATHAN TRAMMEL, TODD A. STRATMAN, AND
DALLAS POLICE AND FIRE PENSION SYSTEM recover their costs of this appeal from
appellants CITY OF DALLAS, MIKE RAWLINGS, SCOTT GRIGGS, ADAM MEDRANO,
CASEY THOMAS II, CAROLYN KING ARNOLD, RICKEY D. CALLAHAN, MONICA R.
ALONZO, TIFFINNI A. YOUNG, ERIK WILSON, MARK CLAYTON, B. ADAM
MCGOUGH, LEE M. KLEINMAN, SANDY GREYSON, JENNIFER S. GATES, PHILIP T.
KINGSTON, AND A.C. GONZALEZ.

Judgment entered this 20th day of July, 2017.




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