directed discovering in the public records and you know just for the for the record i should say that we're now we've called the case of tape versus the city of fort worth and the argument now writes solely to hearing i don't understand why your bill of rights argument under texas constitution is a separate argument why are you just bundling the texas constitutional issues together and saying that sixty six can't mean that it's not a contract because the other part you have to read them together and so it is a contract just like alaska i don't understand they're both constitutional provisions in what we're reading the constitution together in texas and so it becomes like alaska and hawaii if you say that's where that provision says that you can impair in it's a contract and so i and so it's not a separate fallback like the us constitute an argument it's it's part of how you interpret the sixty six and i don't understand why you're not arguing that i can answer that the reason it hasn't been argued to date is because there was no opportunity now when you argued sixty six you could've said we don't just look at this in the abstract we look at the texas constitution we do and i believe we did it because it is the constitution correct and i think i think this this is the important distinction and there is a case from another jurisdiction that helps make that distinction most of the states texas being one of them has its own impairment contract provision texas as a think there are three or four states that don't but to in the brief and i do not remember the case citation but it had to do with the judicial retirement system in arizona and it said the reason that you have a separate pension provision as well as in opinion and without discussing it it does say it was intended to change the rule and trample so to that extent that's the best jurisprudence that we have on the subject and i hope i've answered your honour's question that you did what difference they could vote about raising their contribution the pension board authorized the vote the city said you can't do that and we never got around to the question of whether the police officers are willing to pay more in tape there's a very important factual issue which is that during the collective bargaining and we discussed this at page six of our initial brief and it's at pages twelve of two and twelve of the rear of the record the firefighters offered to increase their own employee contribution because everybody puts money by more than fifty percent and that's significant because an enrolled actuary which is who determines the cost of pensions provided an affidavit which said if the city had taken the money from the firefighters it would have actually been making more money they would have had more money going into the plan than what the accrued benefit or benefit accrued reduction save it in other words the firefighters offered to put up more money than what the city wanted to cut from benefits so clearly this had nothing to do with money this was a political argument i think as your honor referred to it which doesn't belong here and that's why the jurisprudence about impairment of contract says a government can always find more use for money it can find more politically expedient ways to use money more popular ways but that doesn't excuse the government from impairing it's contra and the government can only in parrots contract as our founding fathers talked about and as the jurisprudence of this court talks about when it is reasonable and necessary to preserve the public welfare and we never got that opportunity  evidence in the record and there was a five hundred eighty eight pages of financial information in the tape record that points to the fact that the city in the worst economic times since the depression had a growing financial base that the firefighters offered to put in more money than what the city wanted to say and that the city touted to the bond market financial markets that things are great and that's a significant issue it's a significant record issue it would be true for the police as well except that the opportunity to develop that record was never presented there's also an issue with regard to the effect of the cola which is that acronym for cost of living adjustment virtually every firefighter adopted the  with the ad hoc coleman it was again sharing if the plan and above a certain number and got to a certain funding ratio depending on how much money was in the plan they could get anywhere from zero to four percent the city said even though we had an election some years ago we're going to undo that and we're going to have another irrevocable election but instead we're going to give you a two percent flat call now mom might argue that a guarantee of two is better than the chance to get four because in the economic records of the plan or in this record that show that it had outstanding economic years in twelve thirteen and fourteen which would have yielded a better cola than what the two per employees choice and consequently when you don't pay the employees not forced to take a reduction he has an opportunity to choose what is there what is their argument if you understand their argument is that their argument is that ad hoc cola was draining the bucket of money they said it was bad plan design it was costing too much money and had to paraphrase their brief every time the plan the retirement decisions that firefighters have made was undone because by offering a choice to the plan as a whole a significant number of people switched to the two percent out how it affects it in this way in order for this group of folks to get the zero to four to get the full schedule better and to get a three or four the plan had to be funded at a certain level and the fund gets funded at a certain level due to a number of things investment return other actuarial factors which could be how long people live and when they quit and all the i don't need to give  point being that there economics which affected but when you take a poll and that was dependent solely on earnings and now you make it a fixed benefit of the plan it has it's it has to be booked as a liability looking forward to infinity so now the funded ratio of the plan drops because it has a new liability on the books but you have to show that it would have had a better return and summary judgment should have been granted it is there evidence that you would have had i believe that there is evidence in the record but remember there was nowhere to need to do so we put in actuarial evidence that showed the in  fact i think four for one officer for one firefighter the effect was minus fifty seven thousand for another one was minus one hundred fourteen thousand the the factors and the record citations are in the brief and i would rely on those motion for summary judgment against the nonmoving party and there was no opportunity to test the validity of that or any other factor in this case what do you what do you do if we grieve with you on that part of the  because that judge means in judgment by rightly held that the city's ordinance amendments comply with six and sixty sixty essentially the same issues that are before the court and certainly with respect to the city's perspective on all of this it's what's what good for one is good for all so even if somebody's got fifty thousand dollars list it doesn't matter because there were they were allowed to think that that would just that correct what we are and that what we're allowed to do what the city is allowed to do is what the constitution provides and are bifurcated calculation in response to the attorney general opinion that said there are other ways to get at this even protested employees what you did with the two thousand and seven amendment doesn't get you there but you can address  benefits and calculates those and or a different method the two are then added together that would determine the ultimate pension for that employee completely consistent with the t constitution and there's no way to bring in and there are constitutional provisions from other states even the federal constitution or other provisions within the texas constitution to come to any other was all that is the proper result looking at this specific provision sixty sixty that was designed to do exactly what it has now done we are not remaining on a promise we are calculating benefits accrued under the formula in place up until the date of the change in the constitution allows us to make changes going forward what about the fact i'm just on the cold the coal if they if they had previously checked to chose in the other method obviously and then that part doesn't pay out as much because there's not enough money in the fund so that you suppose they took three of us choice and it was so in it was vested so matter the fact that everyone opted out of it would suggest that changing it was not a reduction or impairment if there were that many people that were interested in getting out of it but put that aside this is not subsequent unilateral legislative action that  took to reduce or a pair of benefits this is an option that was created with the intent of allowing the members a better situation right but what if as a result the people stick with the old do worse there's no way to is the other practical problem for that is there is there summary judgment evidence that the record of that there was evidence that was presented but that evidence is only relevant if the court has not properly ruled that these questions are decided as a matter of law that's the reason that judgment bride didn't need to get into the details that he determined that the amendments both for the five benefits calculation and for the cola were consistent with the constitution as a matter of law he ruled that all of the this evidence that there was just the discussion  about only is significant if you have determined that there was some sort of impairment and here is a matter of law there was the determination that there was not in the head i'm trying to pick apart to see if on that part is there an impairment because of the prior statement that you want to do elect that you know you're picking in the other method before is there an impairment as to that part as a matter of law no we did not impair and that is the distinction perhaps that we're drawing you're asking is there an impairment i'm saying are we were sponsible for an impairment know why because the constitution all it does is prohibit us from taking this subsequent unilateral legislative action that reduces or impairs benefits accrued by these people who would be able to recover that with any more service going forward i mean that's that's essentially what the provision me it giving  so if you didn't give a choice would that be an impact if it to suit your own moving into this other method and go look even if it helps the people because it pays out more and everybody likes it is it still perhaps it would be it would be a unilateral well ok with respect to going forward everyone would agree but looking forward with respect to going back to two percent fixed kolo for future benefits that is now apparent work talking about the current employees who had chosen the adhoc cola giving them the option to let them take responsibility for what they wanted to do hoping that that would help some of them were cover something when they had been recovering nothing under the ad hoc color for those years of service had we done something different we would have to look at that perhaps differently we did not require any action we said this is purely up to you and that is why i say as a matter of law that cannot constitute a reduction or impairment of accrued benefits under the constitution and that is why both judge means and judgment bride legitimately came to the conclusion that the ordinances whether it's an event happen case or is in the take case both comply with section sixty six and if there was no need then to get into whatever evidence may have affected different perk persons benefits the numbers of those benefits and everything else because as a matter of law we had not impaired there's something else you need to say you tell me your honor if there is anything else that we need to discuss on certification i kind of hit on that briefly certainly you know we would agree both with you judge  and with you judge all right in terms of how you've characterized the fact that they got into federal court in now wish that they perhaps had done something different we believe that this court is completely well suited to answer all of these questions and we would respectfully request that you a both of the summary judgments from judge means and judgment by what do you do you agree that our president requires us to follow the attorney general opinion assuming that it is not just outlandish i do not believe that you have to follow the attorney general opinion in france back you know all along the appellants have said that it's an toggled the difference we disagree you don't believe it gets different under our case law i do not know but that it's not a judicial determination and in tex's certainly not here is there reason to defer to it i think that when you read it in its full context giving it back to every bit of it it does in fact come to it helps us more than it helps them now we have cases that say we have to give deference i think looking at it is persuasive authority and deferring to it are two different things and maybe i'm splitting hairs but i don't think that you have to follow it particularly when it dealt with a different amendment maybe it would be different if it dealt with these particular amendment it does not it was a very different situation and in fact what the attorney general said in that two thousand and eight opinion is what very much motivated the city to take the actions that it did going forward and changing it had considered had done so there are several reasons you shouldn't defer the least of which frankly is that it's just an aging opinion and it's not some judicial authority the better reason not to defer to it is that it dealt with something entirely different than what we're dealing with in this particular case and as a result said things that don't have any application here and it didn't really address the question of law that we're doing with here but if you take it apart i think that the the best statement of what the a g opinion stands for is that city of words you can do this but you need to come at it in another way where vested employees are concerned and that is what i've been struggling with today and what i think the court charges with today is trying to get a handle around what's a benefit accrued like the good example i go on the planet says i can retire when i'm fifty and i after five years and i'm forty nine years eleven months twenty nine days city council passes a ordinance it's a step too bad got to work fifty thousand they want to get to fifty two the past one says you get to fifty four it becomes the legislat version of the legend of tantalus every time they go to drink from the water recedes or reach for the grapes the treat picks up that's in a crude benefit the accrued benefit i tested in that five years was the right to say i stood in the line of fire for till i was fifty and now i get to go in if they want to say the person that comes after me asked to be fifty five good and what you are now arguing as much right and wrong are not what words mean no it's not right or wrong judge it's what's legal if they're we didn't breach the contract there's a new contract can only be done when it is reasonable and necessary and that analysis was never done section sixty six would had would have enabled the court to avoid the federal question altogether and send to the texas constitution what they did was wrong win or lose on that if i went on that were done if i lose on that you should still send both cases back to do a reasonable necessary analysis under the very federal impairment test that we went to federal court most contracts with government because essentially if you rule against the firefighters and police officers in this case you're really saying the government has the ability legislatively to change any contract it wants going forward whether it's with their employees whether it's with the bond market whether it's with commercial vendors or builders or other people who provide services so like saying well you pave the street but we've passed an ordinance that says your contracts now less that's exactly what happened here these firefighters and police officers paid the street they did their jobs and now the city is changing the contract and that's what's what what is missing in an analysis from the lower court is the impairment analysis each judge only decided a state law question which would have avoided the federal question and while we believe we are absolutely correct and that would lead me to my final point about the a g page fourteen of the initial brief we have thirteen fourteen we have an outline the cases and your jurisprudence in the illand says we will give substantial attention to the chief legal officer of the state and your case was cited with approval by the eleventh circuit in brown vs the alabama department of transportation that says a district court is not free to proceed as if a matter was utterly open to independent consideration and i don't care how many times you hold that a g opinion up to the light and turn it around and take its pieces apart it supports the argument of an houghton in the argument and now i'd like to respectfully ask the court to do the  number one should the first both of them on the section sixty six issue but if you decide that against us at work you decide it's not worthy of certification then you should vacate the judgments below and send them back for what both groups of plaintiffs asked for regionally and that is to have the city's change of what texas is always called an employment contract for the since one nine hundred twenty eight