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).

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 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.

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 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.

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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.

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________________________________________

Phil Johnson

Justice

OPINION DELIVERED: December 16, 2011

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