Roger Borgelt, Mark Pulliam, Jay Wiley, and the State of Texas v. Austin Firefighters Association, Iaff Local 975 City of Austin And Marc A. Ott, in His Official Capacity as the City Manager of the City of Austin

Supreme Court of Texas
══════════
No. 22-1149
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Roger Borgelt, Mark Pulliam, Jay Wiley, and the State of Texas,
Petitioners,

v.

Austin Firefighters Association, IAFF Local 975; City of Austin;
and Marc A. Ott, in His Official Capacity as the City Manager of
the City of Austin,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

JUSTICE BUSBY, joined by Justice Boyd and Justice Devine,
dissenting in part and concurring in the judgment in part.

The Gift Clauses of the Texas Constitution exist to protect
taxpaying citizens from their government, which our history shows is
vulnerable to capture by private special interests who seek to use public
funds for their own ends. That is what happened here.
The parties have stipulated that the Austin Firefighters
Association is a private “labor union with organizational independence
from” the City of Austin that represents most but not all city firefighters
in collective bargaining and other employment-related matters. The
Association extracted the following promise from the City: to pay about
$1.25 million in public funds to the Association’s president and other
authorized association representatives when they take time off from
firefighting work to conduct association business that supports its
mission. Their agreement recognizes that the Association’s mission is
distinct from the Fire Department’s mission. And the agreement defines
“association business” to include matters in which association
representatives take actions adverse to the City. Thus, the City pays
these representatives to bargain against it and to represent association
members in contract grievances and disciplinary challenges.
I acknowledge the evidence that some association business serves
important public purposes, including safety. But the record of the bench
trial conclusively demonstrates that many actual uses of this paid time
off either fall outside the agreement’s broad definition of association
business or otherwise promote the association’s private interests. For
example, association representatives have used paid leave to attend
association PAC meetings and to support and oppose candidates for
public office. And most of the agreement’s few restrictions on paid leave
have not been applied to the Association’s president, who is off work all
the time yet draws a full city salary. The City has employed no
meaningful controls to separate the wheat from the chaff.
When a city pays some of its firefighters to perform work for an
independent organization in this manner, it violates the plain terms of
the Gift Clauses. The payments are commonly used for “private or
individual purposes,” especially political purposes, which shows that
any notional government control over the paid time off has proven

2
woefully inadequate to protect the government’s investment of public
funds. TEX. CONST. art. XVI, § 6. For this reason alone, the trial court
erred in rejecting the request by city taxpayers and the State to declare
this portion of the agreement unconstitutional as implemented. I also
have serious concerns about some reasons the Court gives for rejecting
the argument that the payments are a “donation” or gratuitous “grant”
in aid of a “private . . . association” because city taxpayers do not receive
clear and sufficient consideration in return for the paid time off. Id. art.
III, §§ 51, 52(a); id. art. XI, § 3.
The Court attempts to avoid declaring the payments
unconstitutional by (1) recasting our precedent in a manner that
unfortunately obscures what the words of the Gift Clauses require and
(2) reinterpreting the agreement so that it will prohibit future
expenditures the Court considers improper—something no party to the
agreement or to this case has asked the Court to do. These maneuvers
cannot erase the violations that have already occurred. And even if
those violations were not conclusively established on this record, the
Court’s novel interpretation deprives the parties of fair notice and an
opportunity to be heard regarding whether the Court’s newly announced
contractual controls were ever implemented by the City.
In essence, the Court fashions a paper tiger contract: as long as
ambiguous wording can later be construed—and contrary wording
recast—in a manner consistent with the Gift Clauses, it does not matter
if the parties understood that contract differently and actually applied
it in ways that violated the Clauses. I disagree. If the parties
themselves did not think the agreement limited their private uses of

3
city-funded leave, courts should believe them and enforce the
constitutional restrictions—not create contractual restrictions that are
recognized by neither party and cannot be enforced by anyone else.
Because the Court’s decision today threatens to pull the Gift Clauses’
teeth, I respectfully dissent from the Court’s opinion and most of its
judgment. Yet because I would grant the taxpayers and the State
partial declaratory relief, I concur in the portion of the Court’s judgment
reversing the award of fees and sanctions against them.

I

The Gift Clauses of the Texas Constitution broadly and
repeatedly prohibit the State and its subdivisions from “giving,”
“grant[ing],” “appropriati[ng],” “donating,” “subscribing,” “lending,” or
“pledging” any “public money or thing of value” either (1) “in aid of, or
to” “any individual, association or corporation whatsoever” or (2) “for
private or individual purposes.” TEX. CONST. art. III, §§ 50, 51, 52(a); id.
art. XI, § 3; id. art. XVI, § 6(a). “Our goal when interpreting the Texas
Constitution is to give effect to the plain meaning of the text as it was
understood by those who ratified it.” In re Abbott, 628 S.W.3d 288, 293
(Tex. 2021). Cases interpreting the clauses have so far said little about
how the ratifiers would have understood them, though the Court today
sketches some of the Gilded Age practices that the clauses presumably
were intended to stop. But our cases closest to the time of ratification
did hew closely to the plain meaning of the text. Our more recent cases?
Not so much.
In 1920, for example, we remarked in Bexar County v. Linden that
“[n]o feature of the Constitution is more marked than its vigilance for

4
the protection of the public funds and the public credit against misuse,”
as shown by its “numerous provisions” with “broad” language. 220 S.W.
761, 761 (Tex. 1920). “The giving away of public money, its application
to other than strictly governmental purposes, is what [the Gift Clauses
are] intended to guard against.” Id. at 762. The Clauses’ “prohibition is
a positive and absolute one,” which denies government “any power to
grant or to authorize the grant of public money.” Id. Thus, if “the effect
of the [challenged provision] is to bestow [public] funds . . . as a gratuity,
or for uses not related to . . . governmental duties, it would be invalid.”
Id. (emphasis added).1
Recognizing the breadth and strictness of these limits, the people
of Texas have repeatedly amended the Constitution to authorize specific
expenditures of public funds for private purposes when they have
concluded as a policy matter that it is appropriate to do so. 2 The
Constitution assigns this power to decide what it should say to the
people and their elected legislators, not to judges sworn to protect the

1 See also, e.g., State v. City of Austin, 331 S.W.2d 737, 742 (Tex. 1960);

Seydler v. Border, 115 S.W.2d 702, 706 (Tex. Civ. App.—Galveston 1938, writ
ref’d) (applying Linden’s “strictly governmental purposes” standard); Jones v.
Alexander, 59 S.W.2d 1080, 1083 (Tex. [Comm’n App.] 1933) (“The Constitution
prohibits the Legislature from appropriating the public money to other than
strict governmental purposes.”); City of Tyler v. Tex. Emps. Ins. Ass’n, 288 S.W.
409, 412 (Tex. Comm’n App. 1926, judgm’t adopted).
2 See, e.g., TEX. CONST. art. III, § 51-a-1 (amending on November 7,
1989, to authorize financial assistance to local fire departments and other
public firefighting organizations); id. § 51-c (amending on November 6, 1956,
to authorize aid and compensation to persons improperly fined or imprisoned);
id. § 51-d (amending on November 8, 1966, to authorize payment of assistance
to survivors of public servants who suffered death in performance of hazardous
duties).

5
Constitution as it exists. See TEX. CONST. art. XVII; McCombs v. Dallas
County, 136 S.W.2d 975, 981 (Tex. Civ. App.—Dallas 1940, writ ref’d)
(explaining that general constitutional prohibition on expenditures
controls absent special constitutional provision authorizing expenditure
at issue).
Our recent cases have usurped this power, transforming Linden’s
plain-text approach to the Gift Clauses into the hodgepodge of
overlapping multi-factor tests that the Court describes. See, e.g., ante
at 14-15 & n.14; Tex. Mun. League Intergovernmental Risk Pool v. Tex.
Workers’ Comp. Comm’n, 74 S.W.3d 377, 383-84 (Tex. 2002) [hereinafter
TML].3 Because this development has not been tied to constitutional
text, Texans are left to guess when a court may consider it appropriate
to apply the Gift Clauses and when an amendment may be necessary.
See TML, 74 S.W.3d at 389-392 (Owen, J., dissenting).
These wishy-washy cases have stunted the formerly healthy
constitutional dialogue between Texas citizens and their legislators
about when public funds may be given away, encouraging governments
and taxpayers alike to look to courts and to the Attorney General for
answers that we are neither constitutionally elected nor well-suited to
provide. Texas has chosen a republican constitutional system that
expressly separates and limits government power and reserves
important rights to the people. See TEX. CONST. art. I, § 2; id. art. II, § 1;
id. art. XVII. Courts interpreting such a Constitution keep the system

3 This phenomenon is not unique to the Gift Clauses: our decisions have

similarly muddled the Constitution’s twin jury-trial guarantees. See, e.g., In
re Troy S. Poe Tr., 646 S.W.3d 771, 781 (Tex. 2022) (Busby, J., concurring).

6
vital by staying in our lane and drawing clear text-based lines that
require other constitutional actors to do their own assigned jobs, hard
as they may be. We must not arrogate more power to ourselves, or
permit these other actors to abdicate their responsibilities in favor of the
judicial branch, by sending murky messages about where the
boundaries lie.
With the hope that better days are ahead for our jurisprudence
on the Gift Clauses, I encourage interested parties, attorneys,
historians, and other amici to help us explain their meaning clearly
based on the text as understood by its ratifiers.4 But as the Court
observes, the parties in this case have not pressed a request that we
reexamine our precedent. Thus, like the Court, I apply that precedent
here. Our recent cases do retain some textual touchstones, as I explain
below.
The Court begins by setting its sights on a narrower but perhaps
equally challenging objective: to reformulate those cases’ tests for
determining when a transfer of public money violates the Gift Clauses.
Unfortunately, the Court’s reformulation obscures that the Gift Clauses
impose at least two distinct textual requirements for any payment, loan,
or pledge of public funds by the State or one of its political subdivisions
to or for the benefit of a private individual, association, or corporation.
First, the payment cannot be a “donation” or gratuitous “grant,” TEX.
CONST. art. III, §§ 51, 52(a); id. art. XI, § 3, which our cases have said
requires “sufficient . . . return consideration” that clearly benefits the

4 See Poe Tr., 646 S.W.3d at 782 (Busby, J., concurring).

7
subdivision’s taxpayers.5 Second, the payment must at least
predominantly serve a legitimate public purpose6 rather than “private
or individual purposes,” id. art. XVI, § 6, which we have explained
includes the retention of sufficient “public control” over the funds to
“ensure that the public purpose is accomplished and to protect the
public’s investment.”7
The court of appeals found our precedent unclear regarding
whether it is “enough to determine that [a] payment is not gratuitous.”
684 S.W.3d 819, 829 (Tex. App.—Austin 2022). But we answered that
question a century ago in a manner consistent with the Gift Clauses’

5 TML, 74 S.W.3d at 383-84 (explaining that “[a] political subdivision’s

paying public money is not ‘gratuitous’ if the political subdivision receives
return consideration” that is a “clear public benefit” and, although such return
consideration need not necessarily be “equal,” it must be, at minimum,
“sufficient” (emphases added)); id. at 384 (holding government must “ensure
that the political subdivision receives a return benefit”); see also Am. Precision
Ammunition, L.L.C. v. City of Mineral Wells, 90 F.4th 820, 826 (5th Cir. 2024)
(holding agreement did not indicate any return benefit in exchange for city’s
payment). Sufficient return consideration must be received by the relevant
political subdivision that authorized the payment. Cf. Edgewood Indep. Sch.
Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995) (upholding transfer of funds
outside school district where “voters in the school district” received benefit in
return (emphasis added)); Brazos River Auth. v. Carr, 405 S.W.2d 689, 694
(Tex. 1966) (upholding transaction that “redounds to the benefit of the public
which is served by the [Brazos River] Authority”).
6 TML, 74 S.W.3d at 383-84.

7 TML, 74 S.W.3d at 384; see also Davis v. City of Lubbock, 326 S.W.2d

699, 702, 707 (Tex. 1959); Corsicana Indus. Found., Inc. v. City of Corsicana,
685 S.W.3d 171, 178 (Tex. App.—Waco 2024, pet. filed); Key v. Comm’rs Ct. of
Marion County, 727 S.W.2d 667, 669 (Tex. App.—Texarkana 1987, no pet.);
Tex. Att’y Gen. Op. No. MW-89, 1979 WL 31300, at *2 (1979). The Court
recounts the history that led to this requirement of public control. Ante at 13
n.11.

8
plain text: the payment is prohibited unless both requirements are met.
Linden, 220 S.W. at 762 (recognizing that the Gift Clauses prohibit
payment of public funds “as a gratuity, or for [nonpublic] uses”
(emphasis added)).

II

In applying the Gift Clauses’ requirements, I agree with the Court
that our focus should be on Article 10 of the agreement, which provides
for the paid leave in question. Ante at 17-18. As the Court explains,
analyzing these requirements at the level of the agreement as a whole
would lead to absurd results: for example, as discussed at oral
argument, the City could agree to buy a red Ferrari for the Association
president because another provision of the same agreement obligates
firefighters to provide firefighting services that benefit Austin
taxpayers. That approach would render the Gift Clauses meaningless.
With this focus and the presumption of constitutionality in mind,
I conclude the challengers carried their burden to prove that Article 10
leave payments violated the Gift Clauses’ requirements. The trial court
should have rendered judgment for the taxpayers and the State,
declaring the Article 10 payments unconstitutional as implemented.

A

The City violated the Gift Clauses by providing publicly funded
leave to conduct association business because the City did not actually
“retain public control over the funds to ensure that the public purpose is
accomplished and to protect the public’s investment.” TML, 74 S.W.3d
at 384. Instead, the trial record conclusively shows that leave is either

9
unmonitored or rubber stamped and has been commonly used for private
purposes, including association political activities.
Texas courts have not had many opportunities to address this
control requirement, but it is clear that the test is not merely whether
the documents governing the payment—like the Soviet Constitution8—
have the right words on paper that allow control. Of course, a Gift
Clause violation will occur if the government does not even have the
option to control how the payment is used. E.g., Tex. Pharm. Ass’n v.
Dooley, 90 S.W.2d 328, 330 (Tex. Civ. App.—Austin 1936, no writ)
(holding law void that “directs [public funds] be paid over to a private
corporation, not under the control of the Board of Pharmacy, nor
regulated by the act itself”).
But the Gift Clauses also demand more: the government must
require that the funds serve a public purpose by actually implementing
“adequate contractual or other controls” to “ensure its realization.” Tex.
Att’y Gen. Op. No. MW-89, 1979 WL 31300, at *2 (1979) (emphasis
added); TML, 74 S.W.3d at 384 (holding government “must . . . retain
public control . . . to ensure that the public purpose is accomplished”).
“Long before the Texas Municipal League decision, when determining
the constitutionality of any provision authorizing use of public funds

8 As Justice Scalia memorably observed in several speeches, the Soviet

Constitution contained a much more robust bill of rights than the American
one; but it was merely “words on paper, what our Framers would have called
a parchment guarantee.” Considering the Role of Judges Under the
Constitution of the United States: Hearing Before the S. Comm. on the
Judiciary, 112th Cong. 6-7 (2011) (statement of Antonin Scalia, Associate
Justice, Supreme Court of the United States) (citing THE FEDERALIST NO. 48
(James Madison)).

10
committed in furtherance of some public purpose, courts have
considered whether the governmental entity properly supervised and
controlled the enterprise.” Corsicana Indus. Found., Inc. v. City of
Corsicana, 685 S.W.3d 171, 178 (Tex. App.—Waco 2024, pet. filed)
(citing cases); see Byrd v. City of Dallas, 6 S.W.2d 738, 741 (Tex.
[Comm’n App.] 1928) (considering whether “maladministration” of the
funds had been shown). Put simply, “continuing public control” over
“the performance of the contract” is “necessary to insure that the
[government] receives its consideration: accomplishment of the public
purpose.” Key v. Comm’rs Ct. of Marion County, 727 S.W.2d 667, 669
(Tex. App.—Texarkana 1987, no pet.) (emphasis added).9
We must apply this legal standard to the facts regarding the
parties’ implementation of Article 10, not merely to that article as
written or as construed by the Court. The taxpayers and the State
sought a declaration that the City has granted benefits under Article 10
in violation of the Gift Clauses, and the trial court denied respondents’
motion for summary judgment in part with regard to the City’s
implementation of the agreement. The court then conducted a bench
trial on that issue and concluded that the City’s implementation did not
violate the Gift Clauses. The taxpayers and the State challenge this
conclusion on appeal, arguing that the record shows conclusively that

9 The Court agrees that the Gift Clauses cannot be “honored in name

yet ignored in practice.” Ante at 3. And I agree with the Court that “errant
one-off” failures to apply controls would not constitute a Gift Clause violation.
Id. at 29. But there is no need for fine line-drawing here. As discussed below,
the record conclusively shows that there were wholesale failures to use the few
controls the parties thought they had and no attempts to use the new controls
the Court discerns in the agreement today.

11
the City did not exercise meaningful control over actual use of the leave
in practice. I agree that the record supports their challenge.
Article 10 creates two types of leave in separately numbered
paragraphs: one for the Association’s president, who is always on city-
funded leave to conduct “any lawful association business activities
consistent with the Association’s purposes”; and another for other
association representatives, who may use leave for specified
“Association business activities that directly support the mission of the
Department or the Association, but do not otherwise violate the specific
terms of this Article.” The evidence showed that neither was subject to
adequate public “control over the performance of the contract” to ensure
the leave accomplishes a predominant public purpose. Id. at 669.
Regarding the Association’s president, the trial record
conclusively establishes that the City had no say in who was appointed
to the position, could not remove him, did not direct his activities during
the relevant time, did not supervise or even review his performance, and
placed no prohibitions on his work for the Association. More
importantly, both the City’s representative and the president himself
admitted that he did not—and was not required to—describe on his
timesheets how he used his paid leave. Thus, there was no way for the
City to monitor that use, and it never disapproved any use of leave by
the president. The president was in essence a publicly funded full-time
employee of the Association who did no work for the Fire Department.10

10 The court of appeals observed that the president was also a
Department employee and could be fired from the latter position, 684 S.W.3d
at 836, but that does not give the City authority to rewrite the agreement to
restrict how he—or any successor—uses the leave while serving as president.

12
Similarly, the record shows that the publicly funded activities of
other authorized association representatives approved by its president
and executive board were not controlled or directed by the City. Over
75 percent of their leave time was reported to the City simply as “other
association business,” which is not even a category of leave recognized
by the agreement. And the fire chief’s designee tasked with reviewing
the association-approved requests to use leave rubber stamped
99 percent of them, many of which did not contain a statement of
purpose that would permit meaningful review.11 That outcome is
unsurprising, as Article 10 provides that the Chief “shall approve timely
[leave] requests, subject only to the operational needs of the
Department,” and the City’s governing policy provided that timely
“[r]equests for authorized ABL from the Association . . . are
automatically approved” subject to operational needs.
In short, no reasonable factfinder could determine that this
process “ensure[s] that [a] public purpose is accomplished” by the leave
or “protect[s] the public’s investment” in this private association. TML,
74 S.W.3d at 384. Instead, the City’s representative testified and the
president himself admitted that he routinely used publicly funded leave
for political activities like supporting and opposing candidates for
election, preparing and providing endorsements, and arranging for

11 The Court mentions that the chief’s designee did deny leave to other

association representatives—but not the president—in a few instances.
Specifically, he testified that he denied about one percent of requests. But as
discussed below, he testified at trial that he routinely approved use of leave by
these representatives for association PAC meetings—which Article 10
expressly prohibits.

13
placement of political signs, and he spent twenty-five to thirty percent
of his leave time lobbying the City Council and the Legislature.12 Other
authorized association representatives were regularly approved to use
leave to participate in meetings of the Association’s political action
committee even though Article 10 expressly says leave “shall not be

12 This point is not simply a matter of my “beliefs.” Compare ante at 32-
33 n.30, with 4 RR 66-69, 144; 5 RR 98, 101, 123; 2 SCR 470-71. For example,
the City’s representative testified that the president “does, in fact, while he’s
utilizing [leave], conduct political activities” and “lobbying activities” despite
“policies that you can’t on City time conduct political activities.” In the City’s
view, “there was only ever one restriction” on the president’s use of leave for
political activities, which was “that he could not on [leave] hand off money,
checks, things like that to candidates.”
Turning to the president, although he responded evasively at trial when
confronted with several answers he had given at his deposition, he eventually
admitted that “25 to 30 percent of [my] time” is “spent on lobbying activities”
with the City Council and Legislature. He also acknowledged that he and other
association members “when they’re on duty . . . would use [leave] for those
[PAC] meetings,” where they “discuss . . . and decide what recommendations
the PAC board is going to make regarding political issues, referendums, or
candidates,” including “supporting candidates for political office” and deciding
“whether to give political contributions.” And the president conceded that he
“prepare[s] endorsement or opposition statements for political candidates” and
“I do it during my work week.” Similarly, he said “during the regular business
hours, the work week, do I write a check for somebody to put out [political]
signs? Yes, that is true.”
The president also voiced his belief that these activities should not be
considered part of his leave “because my work week well exceeds 40 hours.”
But he also testified that he does not “receive overtime for work over 40 hours,”
which is “time I’m volunteering as part of the duties of my position.” In any
event, the trial court did not base its decision on this legal question about
whether after-hours work can somehow replace, for leave purposes, political
activity conducted during business hours. The court did not mention the
matter in its conclusions of law.

14
utilized for legislative and/or political activities that are sponsored or
supported by the Association’s Political Action Committee(s).”13
The Court responds that the taxpayers and the State have not
challenged any particular factual findings by the trial court. This
response fails to blunt the force of the conclusive evidence I have just
summarized for three reasons. First, there are no findings that directly
address whether the City actually exercised control sufficient to ensure
that the leave was used for public purposes. For example, the trial court
found that the City was “not aware” of any uses of leave for political or
other private purposes, but that head-in-the-sand approach is precisely
the constitutional deficiency. Second, even if there were such findings,
they would be contrary to the conclusively established facts I have just
recounted. And third, now that the Court has reinterpreted Article 10
to permit even greater control that the City failed to exercise, the trial
court’s findings are immaterial because they are based on the wrong
legal standard.
In particular, the Court concludes that Article 10’s authorization
of paid leave should be interpreted far more narrowly than the parties
to the agreement and to this case have, and that the fire chief “should
deny” future leave requests outside that scope and “may” discipline
those who misuse leave in violation of the agreement. Ante at 19, 23-24,
31-32. But that will not fix the problem: language in Article 10 expressly

13 See 4 RR 91-96, 139-40; 7 RR 453; 2 SCR 546-568. The Court
describes this evidence as merely things the taxpayers and the State “allege”
or “say,” and it implies that these uncontrolled uses may have occurred only
“on errant one-off occasions.” Ante at 6-7, 29. The documentary evidence of
approved leave requests for PAC meetings shows otherwise.

15
permits using publicly funded leave for some political and lobbying
purposes, and no language prohibits its use to support the association
fundraising activities the Court questions today, so there will be no basis
for either discipline or denial of leave.14
More importantly, the Court’s forward-looking response misses
the present point of this case: the City has already made many
uncontrolled payments to aid the Association in accomplishing its own
private purposes. The Gift Clauses are violated when a government
entity routinely “give[s],” “donates,” or “grant[s] public money” to a
“private . . . association” without the controls necessary to prevent its
use “for private or individual purposes.” TEX. CONST. art. III, §§ 50, 51,
52(a); id. art. IX, § 3; id. art. XVI, § 6.
This is a practical, facts-on-the-ground inquiry that deals in past
occurrences and present realities: nothing in the constitutional text or
our precedent suggests that it matters one whit whether the payments
of public funds were in accordance with or contrary to a court’s later
thoughts about how the parties to a contract should have interpreted
and applied it. Payments that violate the Clauses need not be made
under a contract at all, and if they were, it is no defense that the
payments repeatedly breached the contract—to the contrary, such
evidence proves the ineffectiveness of any contractual controls. See
TML, 74 S.W.3d at 384. Because the record conclusively shows that the
City did not limit leave to public purposes, the taxpayers and the State

14 Indeed, there is no language in the agreement or policies authorizing

the chief to deny any leave to the Association’s president.

16
are entitled to their requested declaration that leave payments under
Article 10 violated the Gift Clauses.
Put another way, the Court’s sua sponte reinterpretation of the
agreement to allow or require additional controls just makes it even
more clear that the City utterly failed to use those controls to ensure
that a public purpose is accomplished. The evidence conclusively shows
that the fire chief’s designee did not apply Article 10’s limits on leave for
other authorized association representatives to the president, cf. ante at
23-24 & n.21; indeed, it applied no limits to his leave whatsoever. Nor
is there any evidence that the chief’s designee categorically denied leave
for activities that “lack[ed] a clear nexus to a predominant and
legitimate public purpose,” id. at 28, or even that he could do so on a
tight timeline given the limited information available to him. For
example, the record conclusively shows that he approved leave for
“fishing fundraisers, boxing matches, parties, and the like” without
inquiring whether those activities predominantly advanced a public
purpose. Id. at 28.15
Even if this record did not conclusively establish the failure to use
controls, the parties to the agreement and to this litigation can hardly
be faulted for failing to anticipate the Court’s new understanding of the
controls Article 10 requires, which none of them requested. In
circumstances where the governing legal standard changes on appeal,
particularly in a manner that no party advocated in the trial court, the

15 Like the Court, I would not go so far as to hold that the fundraising

events are prohibited at this juncture. See ante at 29 n.24; infra Part II.B. The
record includes evidence that proceeds from these events were used to benefit
the public, though there is no indication the chief’s designee knew that.

17
parties generally should receive a fair opportunity on remand to be
heard and present tailored evidence addressing whether that standard
was met.16 The Court’s contrary approach deprives the parties of due
process. See Byrd v. Blue Ridge Elec. Co-op., Inc., 356 U.S. 525, 531-32
(1958) (holding party “cannot be penalized by the denial of his day in
court to try the issue under the correct interpretation”).
Turning to whether the taxpayers and the State are also entitled
to an injunction against continued payments under Article 10, I agree
with the Court that we should consider whether the City will abide by
the agreement’s terms going forward. Ante at 30. But “[a] defendant’s
cessation of challenged conduct does not, in itself, deprive a court of the
power to hear or determine claims for prospective relief.” Matthews v.
Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). Instead, the
defendant bears a “heavy” burden to show that “subsequent events make
absolutely clear that the challenged conduct could not reasonably be
expected to recur.” Id. (internal quotation marks omitted).

16 E.g., Carowest Land, Ltd. v. City of New Braunfels, 615 S.W.3d 156,

158-59 (Tex. 2020) (explaining that “[t]he most compelling case for a remand
in the interest of justice is where we overrule existing precedents on which the
losing party relied at trial” (internal quotation marks omitted)); Sw. Bell Tel.
Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992) (holding that “[t]o
ask the [fact finder] to resolve this [factual] dispute without a proper legal
definition to the essential legal issue was reversible error” and remanding for
new trial); Coker v. Coker, 650 S.W.2d 391, 392, 394-95 (Tex. 1983) (remanding
for trial where both parties were mistaken regarding interpretation of
governing contract language); W. Union Tel. Co. v. Midgett, 251 S.W. 253, 257
(Tex. Civ. App.—Beaumont 1923, no writ) (“The case having been tried upon
an incorrect interpretation . . . , the cause ought to be remanded, unless we are
able to say that the record shows with reasonable certainty that appellees will
not be able to establish by proof the cause of action [under the correct
interpretation], and we cannot so say.”).

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The City cannot make that showing here. Throughout this
litigation, the City has not indicated any willingness to modify its
Article 10 leave practices. And even if I agreed with the Court about
what the new terms of the agreement are, which I do not, there is no
certainty that compliance with those terms would abate the Gift Clause
violations. Instead, as I have explained, the Court’s terms provide no
basis for discipline or denial of leave for many of the private purposes at
issue. Accordingly, I would render judgment granting the taxpayers and
the State declaratory relief that the implementation of Article 10
violated the Gift Clauses and remand for further proceedings regarding
the need for injunctive relief and their request for attorney’s fees.

B

Finally, I disagree with some of the reasons the Court gives for
rejecting an alternative theory offered by the taxpayers and the
State: that Article 10 payments violate the Gift Clauses because using
public funds to pay firefighters to work for the Association is a
gratuitous grant in aid of a private entity, which does not provide Austin
taxpayers with a clear and sufficient benefit in return for that work. See
TML, 74 S.W.3d at 383-84. The court of appeals emphasized that the
Legislature has statutorily granted firefighters the right to organize for
collective bargaining with cities regarding their compensation and other
conditions of employment. See TEX. LOC. GOV’T CODE § 174.002(b). But
we presume that the Legislature did so knowing that the Constitution’s
Gift Clauses limited the kinds of substantive terms that cities had the
authority to accept through the collective bargaining process. See In re
Tex. Educ. Agency, 619 S.W.3d 679, 687-88 (Tex. 2021).

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In other words, a city cannot give away public funds to non-
employees just because it agrees to do so as part of a collective
bargaining agreement with its employees. The Supreme Court of the
United States has drawn a similar distinction, holding that an interest
in “labor peace” does not support compelling employees to subsidize
public-sector unions at the expense of their constitutional rights to
freedom of association. Janus v. Am. Fed’n of State, County, & Mun.
Emps., Council 31, 585 U.S. 878, 895-96 (2018). Neither should that
interest support obligating taxpayers to subsidize unions at the expense
of constitutional restrictions on how their taxes may be spent.
The Court, for its part, contends that there is sufficient return
consideration for the Article 10 payments in part because firefighters
who receive their ordinary salaries and benefits from the City are simply
performing business activities related to their employment that advance
the interests of the Fire Department. Ante at 18-19. But as the Court
itself recognizes elsewhere, this case challenges only paid leave to work
for the Association under Article 10, which must be considered
separately from the ordinary salaries and benefits of firefighters under
Article 9. Moreover, accepting the Court’s suggestion that Article 10
payments to perform work for the Association are “a negotiated benefit
available to all City firefighters, including those who are not members
of the union,” id. at 26, would mean that the agreement requires
nonmembers to use part of their compensation to subsidize private

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union activities they may not support—a violation of the First
Amendment.17
Nevertheless, I agree with the Court that under a narrow
paid-leave provision structured the way the Court views this one,
individual firefighters would be more likely to use leave to help the
department better serve the public, maintain a productive employment
relationship with the City, and promote firefighter safety, ante at 24-
28—uses that arguably provide a sufficient return benefit to Austin
taxpayers. Given the lack of briefing from the parties regarding the
constitutionality of such an agreement, I am not prepared to hold today
that the agreement would, on its face, violate the Gift Clause on the
alternative ground that it did not provide taxpayers with sufficient
return consideration.

III

The taxpayers and the State have proven conclusively that
Article 10 grants public funds to aid a private association without
implementing controls to ensure that the funds predominantly serve
legitimate public purposes. Accordingly, the trial court should have
rendered judgment in their favor, declaring that Article 10 leave was
implemented in violation of the Gift Clauses. Because the Court affirms

17 See Janus, 585 U.S. at 893 (“Compelling a person to subsidize the

speech of other private speakers raises similar First Amendment concerns.”);
id. (recognizing “that a significant impingement on First Amendment rights
occurs when public employees are required to provide financial support for a
union” (internal quotation marks omitted)); id. at 930 (holding it violates the
First Amendment to collect a “payment to [a public-sector] union . . . from a
nonmember’s wages . . . unless the employee affirmatively consents to pay”).

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the trial court’s contrary judgment, I respectfully dissent. I concur in
the court’s judgment reversing the award of fees and sanctions against
the taxpayers and the State, however, and I would remand for the trial
court to consider their requests for fees and injunctive relief.

J. Brett Busby
Justice

OPINION FILED: June 28, 2024

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