The City of Dallas v. the Employees' Retirement Fund of the City of Dallas

Supreme Court of Texas
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No. 22-0102
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The City of Dallas,
Petitioner,

v.

The Employees’ Retirement Fund of the City of Dallas,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued October 4, 2023

JUSTICE YOUNG delivered the opinion of the Court.

We must decide whether a city ordinance may bestow on a third
party the perpetual right to “veto” categories of future lawmaking. We
hold that such an alienation of lawmaking authority is impermissible.
The court of appeals, by contrast, relied on principles of trust law to
reach the opposite conclusion, holding that the City of Dallas cannot
amend Chapter 40A of its own code of ordinances unless the board of
trustees of the Employees’ Retirement Fund agrees to the amendment.
We reverse the court of appeals’ judgment.
I
In 1935, the legislature authorized larger Texas cities “to
formulate and devise a pension plan for the benefit of all employees in
the employment of such city.” Tex. Rev. Civ. Stat. art. 6243d, § 1. A
city’s “governing body” would develop such a plan, which “shall be
submitted in ordinance form by said governing body to the qualified
electors of such city” and “be approved by said qualified electors at an
election duly held.” Id.
Eight years later, the Dallas City Council announced that “there is
hereby established, subject to the approval of the electorate of the City at
an election to be called for that purpose, ‘The Employees’ Retirement Fund
of the City of Dallas.’” Dallas, Tex., Ordinance No. 3470 (Nov. 24, 1943).
The voters so approved and the Fund came into existence. The ordinance
creating and governing it is codified, as amended, as Chapter 40A of the
Dallas City Code.
Chapter 40A describes the Fund as a “trust fund” and a “public
entity” that is “established for the exclusive purpose of providing benefits
to members and their beneficiaries.” Dallas, Tex., Code of Ordinances
§ 40A-2(a)–(b).1 A seven-member board of trustees administers the Fund:
three city-council appointees, three City employees “who are elected by
members of the retirement fund and who are members of the retirement
fund,” and the city auditor. § 40A-2(c)(1). As of 2018, the Fund’s assets
exceeded $3.6 billion, benefiting more than 16,000 families.
The 1943 ordinance creating the Fund expressly provided that the

1 Citations in this opinion reference the Dallas Code of Ordinances unless

otherwise indicated.

2
city council could make unilateral amendments until 1945. See infra
note 16 and accompanying text. The city council approved at least one
amendment during that period. See Dallas, Tex., Ordinance No. 3577
(Oct. 26, 1944). Since 1945, the Fund says, Chapter 40A has mandated
that any amendments to Chapter 40A be placed on the ballot. We assume
that representation to be true.2 The record reflects, at least, that by 1977,
Chapter 40A incorporated the following amendment procedure:
This chapter may not be amended except by ordinance
adopted by the city council and approved by a majority of
the voters voting at a general or special election.
Dallas, Tex., Ordinance No. 15414 (Feb. 7, 1977) (then codified as § 40A-34;
recodified as amended as § 40A-35(a)).
In 1991, however, a city ordinance granted authority to the Fund’s
board that both parties here have described as a “veto” power. It did so
by adding these underlined words:
This chapter may not be amended except by ordinance
recommended by the board, adopted by the city council and
approved by a majority of the voters voting at a general or
special election.
Dallas, Tex., Ordinance No. 20960 (June 12, 1991) (then codified as
§ 40A-35; recodified as amended as § 40A-35(a)).3
In 2004, another amendment (to which the board unsurprisingly

2 See infra note 17 and accompanying text.

3 Two years later, the provision was renumbered as § 40A-35(a),
accompanied by a new § 40A-35(b) that is not at issue here but that (for
reference) concerned amendments “determined by the board” as “necessary to
comply with federal law.” Dallas, Tex., Ordinance No. 21582 (Feb. 24, 1993).
At the same time, subsection (a) was amended with the following underlined
language added and the stricken character deleted: “Except as provided in
Subsection (b) of this section, Tthis chapter may not be amended . . . .” Id.

3
consented) further strengthened the board’s veto power. The following
underlined language was added and the stricken language was deleted,
modifying § 40A-35(a) from its immediately preceding form:
Except as provided in Subsection (b) of this section, this
chapter may not be amended except by a proposal initiated
by either the board or the city council that results in an
ordinance approved recommended by the board, adopted by
the city council, and approved by a majority of the voters
voting at a general or special election.
Dallas, Tex., Ordinance No. 25695 (Aug. 11, 2004) (codified as amended
as § 40A-35(a)). The Fund contends and the City does not dispute that,
from 1991 onward, all amendments to Chapter 40A were adopted in
accordance with § 40A-35(a)—that Chapter 40A was never amended
without the board’s consent.
But then came the City’s desire to impose term limits on members
of city boards. The city council could unilaterally impose limits on every
board except (because of § 40A-35(a)) the Fund’s. The City passed a
general “board member” term-limit provision in 1994, when “member”
was defined as “a duly appointed member of a board.” See Dallas, Tex.,
Ordinance No. 22259 (Nov. 9, 1994) (codified as amended as § 8-1.5(a)).
The Fund did not object to term limits for board members “appointed” by
the city council. Its views were quite different as to the elected board
members, who declined to observe the term-limit provision, thus creating
an apparent “loophole.”
In 2017, without securing board approval, the city council amended
Chapter 8 of the City Code once more, this time expressly reaching the
Fund’s elected board members:
A person who has served on the board of the employees’
retirement fund pursuant to Section 40A-3(a)(1) of this code,

4
as amended, for three consecutive terms, of whatever length
of time, will not again be eligible to serve on that same board
until at least one term has elapsed, whether service was as
a member, chair, or other position on the board.
Dallas, Tex., Ordinance No. 30555 (Aug. 9, 2017) (codified as amended as
§ 8-1.5(a-1)). Included with this amendment was a definitional change
to the word “member,” which now included “a duly appointed or elected
member of a board.” Id. (codified as amended as § 8-1(8)).
The City then informed the Fund that § 8-1.5(a-1) rendered all
three elected board members ineligible for reelection. The City notified
the two members whose terms were set to expire at the end of 2018 of
their ineligibility and threatened to sue them if they sought another term.
The Fund disagreed with the City’s position. Invoking its authority
to interpret Chapter 40A, see § 40A-4(a)(18), (h),4 the Fund adopted
Resolution No. 2018-1 regarding board term limits. The Fund resolved
that: (1) Chapter 40A imposes no term limits on its elected board

4 See § 40A-4(a)(18) (“In addition to other powers and duties it may have

under state or federal law, the board shall have the power and duty to . . .
interpret this chapter as necessary to resolve any problems created by any
ambiguities, inconsistencies, or omissions that might be found in this
chapter . . . .”), (h) (“If the board, in good faith, is in doubt as to the construction
or interpretation of any provision of this chapter, or has any other question that
may arise during the administration of the retirement fund, the board may
resolve all such doubts and questions without obtaining a judicial construction.
All constructions and interpretations made by the board are binding and
conclusive.”).
We express no view regarding the general meaning or enforceability of a
delegation of interpretive authority of this sort and do not rely on it or defer to
the board when we conclude, as the board did, that § 8-1.5(a-1) operates as an
amendment to Chapter 40A. To the extent that the board’s authority to interpret
a city ordinance is invoked as a basis to impede the city council’s authority to
revise the law, however, our decision today necessarily rejects that contention.

5
members and (2) imposing such limits “would constitute an amendment
to Chapter 40A that would be required to comply with the procedure set
forth under Chapter 40A-35(a).” The Fund therefore contended that
§ 8-1.5(a-1) was ineffective. Accordingly, the two purportedly ineligible
elected board members ran for and won reelection to new terms.
The Fund sued the City and the City brought counterclaims. Both
sides sought declaratory relief regarding § 8-1.5(a-1)’s validity and
enforceability in light of § 40A-35(a). The parties cross-moved for
summary judgment on that issue and the trial court rendered judgment
for the City.
The court of appeals reversed and rendered judgment for the Fund.
636 S.W.3d 692 (Tex. App.—Dallas 2021). According to that court,
Chapter 40A was a codified “Trust Document” that may not be amended
except as that document provides. Id. at 694. Citing U.S. Term Limits,
Inc. v. Thornton, 514 U.S. 779 (1995), and Burroughs v. Lyles, 181 S.W.2d
570 (Tex. 1944), the court reasoned that imposing term limits on the
elected board members “added a substantive qualification for office” that
improperly “effected a fundamental change to the Trust Document.” Id.
at 697. The “City’s attempt to impose term limits on the elected members
of the Fund’s board by amending Chapter 8” was “invalid,” it explained,
so § 8-1.5(a-1) was “void and unenforceable.” Id. at 698.
We granted the City’s petition for review. The City defends
§ 8-1.5(a-1) as valid because that provision does not amend Chapter 40A.
Under § 40A-35(a), the board may veto only amendments to Chapter 40A,
not Chapter 8, so the City argues that the board had nothing to veto. But
even if § 8-1.5(a-1) does amend Chapter 40A, the City claims that it did

6
not need board consent because § 40A-35(a)’s veto power is unenforceable.
Otherwise, the City contends, § 40A-35(a) would unconstitutionally
delegate lawmaking authority to the Fund’s board.
The Fund responds that § 8-1.5(a-1), despite its location in the
Code, plainly amends Chapter 40A. The Fund also defends Chapter 40A
as invulnerable to that or any other revision absent compliance with
§ 40A-35(a)’s procedure, which requires the board’s consent. This result,
the Fund says, is simply the natural consequence of Chapter 40A’s status
as a “trust document.” The Texas Trust Code thus shields Chapter 40A
from any unwelcome amendments, the Fund claims.
II
Under the Texas Constitution, cities may “adopt or amend their
charters,” provided that “no charter or any ordinance passed under said
charter shall contain any provision inconsistent with the Constitution of
the State, or of the general laws enacted by the Legislature of this State.”
Tex. Const. art. XI, § 5(a). Whatever power the City exercises is delegated
by the State through our Constitution. As is typical, the City of Dallas
exercises this delegated power through its city council. See Dallas City
Charter, ch. III, § 1. The city council, in turn, adopted § 8-1.5(a-1), the
ordinance that the Fund has challenged. We conclude that the consent
of the Fund’s board has no bearing on whether the ordinance is valid and
enforceable.
A
The City regards the case as easy because § 40A-35(a) purports to
give the board a veto only over amendments to Chapter 40A, and
§ 8-1.5(a-1) amends Chapter 8, not Chapter 40A. According to the City,

7
we therefore can reverse and render judgment solely on this ground.
We reject this argument. Section 8-1.5(a-1) expressly references
Chapter 40A and creates a term limit specifically applicable to the board
of trustees under that chapter. The ordinance that imposes term limits
on the board’s members necessarily amends Chapter 40A’s governance
of the board’s composition. Whether the City chooses to codify this
amendment within Chapter 40A or Chapter 8 or anywhere else within
its code of ordinances is immaterial.
Moreover, § 8-1.5(a-1)’s amendment of Chapter 40A goes beyond
adopting previously absent term limits. It also amends Chapter 40A
because it acts as a partial repeal by implication of § 40A-35(a). See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 278 (2012) (repealability canon). This Court long ago
explained that “the rule is well settled, that though the law does not favor
repeals by implication, yet a subsequent statute, revising the subject
matter of a former one, and intended as a substitute for it, although it
contains no express words to that effect, will operate a repeal of the
former, to the extent to which its provisions are supplied or repealed.”
Stirman v. State, 21 Tex. 734, 736 (1858); see also, e.g., Gordon v. Lake,
356 S.W.2d 138, 139 (Tex. 1962); Cole v. State, 170 S.W. 1036, 1037 (Tex.
1914). “The law makes no distinction between express and implied
repeals,” so courts are not “authorized to give an effect to one different
from that attached to the other.” Stirman, 21 Tex. at 736. Once an
implied repeal is established, in other words, its consequence is the same
as if the statute had expressly provided for that result. These principles
fully apply here because we “construe municipal ordinances the same way

8
we construe statutes.” Powell v. City of Houston, 628 S.W.3d 838, 842
(Tex. 2021).
Under § 40A-35(a), the City must follow the multi-step amendment
procedure—which includes obtaining the board’s consent—to modify even
comparatively modest matters, like how many terms board members may
serve. Unless it consents, the board is deemed to veto an amendment
such that it could never become part of the City’s law at all. Enacting
§ 8-1.5(a-1), in other words, implies rejecting § 40A-35(a)’s procedure and
replacing it, at least for the term-limit purposes of § 8-1.5(a-1), with the
traditional method of amending ordinances.5
Courts do not readily find implied repeals. If we can reasonably
harmonize two seemingly inconsistent enactments of the same level of
authority—like two constitutional provisions, two statutes, or two
ordinances—we will do so. But “as a matter of statutory construction, if
statutes are irreconcilable, the statute latest in date of enactment
prevails.” Jackson v. State Off. of Admin. Hearings, 351 S.W.3d 290, 297

5 Legislative procedural rules—even codified ones—are not immune to

implied repeals, as multiple supreme courts across the country have observed:
“It is generally recognized that a ‘council may abolish, suspend, modify or waive
its own rules. This also may be done by implication, when action is had not in
accordance therewith.’ ” Smith v. City of Dubuque, 376 N.W.2d 602, 605 (Iowa
1985) (quoting 4 E. McQuillan, The Law of Municipal Corporations § 13.42,
at 749–50 (3d ed. 1985)). See also, e.g., State ex rel. La Follette v. Stitt, 338
N.W.2d 684, 687 (Wis. 1983) (stating that “the failure to follow such procedural
rules amounts to an implied ad hoc repeal of such rules”); Patterson v. Dempsey,
207 A.2d 739, 745 (Conn. 1965) (explaining how the “action” of passing a law
can impliedly repeal the “prohibitory part” of another law). We agree that this
principle necessarily flows from the bedrock rule that a legislative body cannot
bind its successor, including by erecting procedural hurdles. Only if a higher
source of law mandates the procedural hurdle would a legislature be bound to
follow it in exercising its lawmaking function. See infra note 11.

9
(Tex. 2011) (internal quotation marks omitted).
This principle is, in essence, a choice-of-law rule that requires
courts to apply a later-enacted provision that clearly contradicts a prior
one—which is another way to describe an implied repeal. See Scalia &
Garner, supra, at 279, 327.6 Because § 8-1.5(a-1) is inherently
incompatible and inconsistent with § 40A-35(a)’s procedure, § 8-1.5(a-1)
necessarily repealed § 40A-35(a)’s board-veto provision. We therefore
cannot avoid the parties’ dispute about whether, unlike other ordinances,
the board-veto provision was beyond the city council’s authority to modify,
supersede, or repeal.
B
To justify denying this legislative authority to the city council, the
Fund and the court of appeals point to trust law and the Texas Trust
Code (which is codified within the Texas Property Code, see §§ 111.001–
117.012). Even assuming for argument’s sake that the Trust Code governs
the Fund,7 we disagree that trust law affects the city council’s authority
to make city law.
The specific statute that created the Fund, article 6243d, expressly

6 The Code Construction Act expresses the legislature’s understanding of

this principle. Tex. Gov’t Code § 311.025(a) (“[I]f statutes enacted at the same
or different sessions of the legislature are irreconcilable, the statute latest in
date of enactment prevails.”).
7 The parties apparently agree that Chapter 40A is a trust or pension

trust “document” governed by the Trust Code. Chapter 40A itself refers to the
Fund as a “trust fund” “entity” instead of a “trust.” § 40A-2(a)–(b); cf. Ditta v.
Conte, 298 S.W.3d 187, 191 (Tex. 2009) (“A trust is not a legal entity; rather it
is a fiduciary relationship with respect to property.” (internal quotation marks
omitted)). In any event, as we explain, we need not resolve whether or to what
extent the Trust Code applies to the Fund or others like it and thus expressly
reserve that question as open in this Court.

10
and unambiguously insisted that every provision in Chapter 40A be first
and foremost a codified city “ordinance”—not part of a city charter, not a
distinct stand-alone “trust” (a word that does not even appear in the
statute), or anything else. Instead, the “ordinance” adopting the plan
“shall be so worded as to authorize the governing body of such city or
town” to select one of two stated means to fund it (annual appropriations
from “the general revenue” to “carry out” the plan or through “a general
ad valorem tax sufficient to provide for” it). Rev. Civ. Stat. art. 6243d,
§ 1. Chapter 40A is part of the code of ordinances because the statute
demanded that it be an ordinance.
Chapter 40A’s status as an ordinance entails the consequence
that § 8-1.5(a-1) is one ordinance amending another, not an ordinance
purporting to amend something that exists apart from city law or
something that has higher legal status than an ordinance. U.S. Term
Limits, on which the court of appeals relied, involved a provision of the
Arkansas Constitution that, the Supreme Court held, amounted to
modifying the minimum electoral requirements that the U.S.
Constitution prescribes for members of Congress. See 514 U.S. at 783.
A state constitution, of course, may not amend the federal Constitution.
Likewise, this Court observed in Burroughs that a Texas statute could
not expand the Texas Constitution’s eligibility requirements for election
as a state senator. See 181 S.W.2d at 574. These principles do not
govern a city council’s ability to amend a city ordinance.
Article 6243d’s statutory mandate to enact an “ordinance”
implicates at least two relevant constitutional principles. The first “is
traditionally known as the nonentrenchment doctrine,” Scalia & Garner,

11
supra, at 278,8 which is an ancient maxim that applies as fully here as to
lawmaking bodies at any level of government: “[O]ne Legislature cannot
bind the hands of a subsequent Legislature by the enactment of laws
which may not be altered or repealed by a subsequent Legislature.”
Jefferson County v. Bd. of County & Dist. Rd. Indebtedness, 182 S.W.2d
908, 915 (Tex. 1944). In short, a “legislature cannot prevent future
legislatures from amending or repealing a statute.” Cent. Power & Light
Co. v. Pub. Util. Comm’n of Tex., 649 S.W.2d 287, 289 (Tex. 1983).9
Like any legislative act, § 40A-35(a) was “alterable when the
legislature shall please to alter it.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803). The city council that adopted the veto

8 “Resting as it does on sheer logic, the principle dates from time
immemorial. As Cicero wrote to Atticus: ‘When you repeal the law itself, . . . you
at the same time repeal the prohibitory clause, which guards against such
repeal.’ ” Scalia & Garner, supra, at 278 (quoting 1 William Blackstone,
Commentaries on the Laws of England § 3, at 90–91 (1765)).
9 The Dallas City Charter, which of course is superior to an ordinance,

reaffirms the city council’s legislative power to pass ordinances. E.g., Ch. XVIII,
§§ 3–4. Section 3 contemplates the city council (not the board or any other body)
having final legislative authority over ordinances, except where “state law or
this charter provides for a different procedure.” Having received its authority,
the city council could not share it with the board absent some higher authority
to do so. Section 4 provides that every ordinance “shall require on final passage
the affirmative vote of a majority of the members present unless more is required
by state law, this Charter, or ordinance.” (Emphasis added.) Under the last-
quoted word, the city council could by ordinance change the number of votes
needed for passing a future ordinance. We need not resolve whether an
ordinance that purported to require a larger-than-majority vote for a different
future ordinance (as opposed to the very ordinance at issue) would bind a future
city council because this case does not involve an effort to require the city council
to pass an ordinance by a super-majority. It instead addresses a purported
transfer of authority to an entirely different body; whether and to what extent
the city charter could allow that is also something we need not address, in part
because Section 3 of the charter already disclaims it.

12
amendment in 1991, in other words, could not bind the city council in
2017 from further amending Chapter 40A to impose term limits on the
elected board members. Granting the board the authority to veto future
amendments to Chapter 40A is a self-evident impairment of a future city
council’s ability to amend city law.10 The veto, if it truly bound a future
city council, would clearly violate the nonentrenchment doctrine.
A second principle is that, to whatever extent cities may legislate,
they do so by drawing upon the State’s authority that has been vested in
them. See Tex. Const. art. XI, § 5(a). It is not within the power of a Texas
city to alienate to some third party the governmental authority that the
State allows the city alone to exercise. This basic principle applies in
multiple contexts—governmental immunity, for example. As we stated
in a case involving another city, “[e]ven if a governmental unit would be
happy to waive ‘its’ immunity, it is not the governmental unit’s immunity
to waive.” Rattray v. City of Brownsville, 662 S.W.3d 860, 867 (Tex. 2023).
Ordinances have the force of law—the ability to bind those resident
in or who come into a city. The source of such power is not the city, but
the State. After all, a city is not a sovereign entity—not even close. Cities
are municipal corporations (which is why Article XI’s title is simply
“Municipal Corporations”). See City of Brenham v. Brenham Water Co.,
4 S.W. 143, 149 (Tex. 1887) (“It is now universally conceded that powers
are conferred on municipal corporations for public purposes; and, as their
powers cannot be delegated, so they cannot be bargained or bartered

10 Notably, the voters can limit the city council’s ability to amend certain

ordinances by following procedures that the city charter specifies. See Dallas
City Charter ch. XVIII, § 11. Nothing would prohibit the voters from taking this
step in the future.

13
away.” (internal quotation mark omitted)); Kirby Lake Dev., Ltd. v. Clear
Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010).
Like other corporations, municipal corporations depend on the
State for their existence. Before the 1912 adoption of the “home-rule
amendment” in Article XI, § 5, cities came into existence when the
legislature granted an individual charter—a tedious exercise that
exhausted considerable legislative time. See City of San Antonio v. City
of Boerne, 111 S.W.3d 22, 26 n.5 (Tex. 2003). What we call the home-rule
amendment streamlined the method of incorporating cities. But it
certainly did not purport to recognize authority in cities that in any sense
was independent of the State itself. To the contrary, Article XI, § 5 states
with marked clarity that “no charter or any ordinance passed under said
charter shall contain any provision inconsistent with the Constitution of
the State, or of the general laws enacted by the Legislature of this State.”
Tex. Const. art. XI, § 5(a).
A city’s authority over the law is not within a city’s power to give
away any more than the legislature could hand away its own power. Even
assuming that trust law or the Trust Code otherwise apply, that does not
change how ordinances are drafted and by whom, which is a matter of
constitutional import. State law may preempt the substantive reach of
city law, see, e.g., City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586,
592–93 (Tex. 2018), just as federal law may preempt state law.11 But

11 Section 8-1.5(a-1) does not purport to divest Fund beneficiaries of any

vested pension rights, which would present a different question. See infra Part
II.C. Our opinion today addresses only the city council’s formal ability to amend
its own city code, and our holding that the city council retains that authority—
and never validly gave it up—does not mean, of course, that the substantive
content of any municipal enactment is immune to challenge by a proper plaintiff.

14
trust law no more stops a city from amending city law than it stops the
legislature from amending state law. Neither trust law generally nor the
Trust Code specifically purports to allow—much less require—cities to
grant authority to other entities over the content of city law. The board
never received that authority from the City because it was not the City’s
to give. Said differently, state law does not compel the City to retain the
arrangement that the Fund defends because state law never allowed the
City to bind itself to that arrangement in the first place. Until now, the
city council was willing to accommodate the board by not amending
Chapter 40A without the board’s consent. But that practice in no way
implies that the city council was legally bound to do so, even though it
may well have been prudent then—and in the future—for the city council
to closely involve the board before amending Chapter 40A.
The Fund is to be commended for its candor in arguing that trust
law entails the legal consequences that we reject. At oral argument, it
agreed that under its theory any number of unconstitutional alienations
of authority could be achieved simply by the artifice of creating a trust
with some rather tenuous link to the subject matter. It confirmed, for
example, that even our legislative process could be converted from a
bicameral into a tricameral system for broad swaths of our law. How?
Suppose that the legislature decided that future legislatures would likely
be benighted about higher-education policy. Imagine that it put the
property of state universities into a “trust” and, within a relevant “trust
document,” included the requirement that amendments to the law
governing those universities could not be presented to the governor for
his signature without the concurrence of the two houses of the legislature

15
and the University of Texas faculty senate. The Fund readily agreed that
such a result would be permissible and not even particularly troubling.
The contrary is true. Embracing the Fund’s approach would
represent an earthquake in our constitutional order. It would amount to
an escape hatch both from the principle that one legislature cannot bind
its successors and the principle that core lawmaking authority vested by
the State cannot be given away.12 The Fund’s candor and consistency are
helpful because they illustrate the underlying infirmity of the Fund’s
position. If trust law could provide so simple a way to “crack the code” of
the basic constitutional principles of self-government, it surely would
have been discovered long ago.13

12 The higher-education hypothetical differs from this case in one obvious

and significant respect: city councils cannot repeal state law (like trust law), but
the legislature can. For the Fund to contend that trust law could compel even
the legislature to honor a transmission of legislative power to the faculty senate,
the Fund still must (at minimum) reject the application of the implied-repeal
doctrine. Otherwise, the Fund could not deny a future legislature’s ability to
instantly revoke the faculty senate’s legislative power. The Fund’s theory also
requires it to reject the other core principle: that any entity vested with
constitutional authority to enact legislation cannot hand that power away. The
Fund’s view that trust law not only tolerates but mandates such a result triggers
the Fund’s ready acquiescence to farfetched hypotheticals. But—even if only as
a matter of constitutional avoidance—we cannot accept any view of trust law
that allows commandeering of the legislative process in this way.
13 The Fund sought to persuade us to deny the petition by arguing that

the City had not preserved any argument that § 40A-35(a) would be
unconstitutional if deemed binding. Notably, the Fund did not even mention
that position at oral argument. We believe that the Fund was right to abandon
(or at least not press) that position. We have reviewed the City’s filings in the
trial court and, while the City obviously did not seek a declaratory judgment
against itself that one of its own ordinances was unconstitutional, it repeatedly
emphasized that § 40A-35(a) could not constitutionally impede the city council
from imposing term limits. The argument is not waived.

16
C
At the same time, we pause to note that our decision today does not
imperil the interests that seemingly animate the Fund’s arguments. The
Fund invokes trust principles to vaguely, but grimly, warn that allowing
amendments to Chapter 40A without board approval would destabilize
the rights of employee participants in the Fund. World history confirms
that the threatened image of craven politicians freely raiding the Fund is
less far-fetched than one might wish. That possibility is why our law
takes those concerns seriously. Important as they are, however, those
concerns have nothing to do with the question before us, which is only
whether the City may lawfully give the board veto power over city law.
For purposes of this case, we can readily accept the Fund’s
underlying principle: that the city council cannot abridge the vested
rights of the Fund’s participants. But that is true regardless of the board’s
consent. Said differently, individual rights are not subject to violation
even if the board agrees. Various sources of Texas law protect those
rights—maybe the Texas Constitution’s contracts clause, probably Texas
contract law, perhaps trust law, presumably the provisions of our
Constitution that address public-employee retirement, and possibly more
still.14 Article 6243d required, from the moment of the Fund’s creation,
that it be “for the benefit of all employees in the employment of [the] city.”
Rev. Civ. Stat. art. 6243d, § 1 (emphasis added). Whatever else that

14 The Fund invokes Article 16, § 67 of the Texas Constitution for the

proposition that Chapter 40A is a trust. If anything, § 67 bolsters the point
made by this footnote’s accompanying text, as it provides: “The assets of a
system are held in trust for the benefit of members and may not be diverted.”
Paramount constitutional protections over such assets neither depend on a
board’s veto nor would be sacrificed upon a board’s consent.

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provision might mean, it does not authorize the City to raid the Fund at
will (and the City certainly does not claim otherwise).
Such protection should alleviate any concerns about the ordinance
“just” being an ordinance—part of Dallas law that can be amended in the
normal course without a bespoke “veto” over legislative enactments. The
Fund’s assets are protected, and its participants’ own rights are protected
in many other ways. In myriad contexts, the Constitution and our laws
protect all sorts of rights—but they have never been understood to
prevent a legislative body from legislating in the first place or to authorize
some third party to veto legislation based on that party’s special concern
with a given right. A unique calcification of the legislative process in
Dallas is not necessary to protect the Fund’s legitimate interests and
would contravene the constitutional principle forbidding the city council
from giving away its authority to legislate.15

* * *
We hold that the board’s veto in § 40A-35(a) is unenforceable and
cannot prevent an otherwise-valid ordinance from taking effect.
III
We decline, however, to resolve whether the City must hold an
election that submits § 8-1.5(a-1) to the voters before it may enforce that

15 The Dallas City Council could choose to refrain from amending
Chapter 40A absent the board’s consent—just like any member of the city
council could choose to not vote for any given measure absent some external or
internal sign of approval. As we have noted, it may be wise to amend
Chapter 40A only after at least consulting the board, and perhaps only with the
board’s agreement. The problem is not if a city council chooses to act in such a
way, but if it purports to legally bind itself, and successive city councils, to that
practice.

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provision. At least two possible grounds may require such an election,
one of which is foreclosed while the other remains open. Specifically, to
the extent that the Fund argues that any amendment to Chapter 40A
requires an election because of § 40A-35(a), our decision today necessarily
rejects that contention. Our holding concerning the board’s veto relies on
the principle that the city council that adopted § 40A-35(a) could not bar
a subsequent city council from amending Chapter 40A, including by
impliedly repealing § 40A-35(a)’s procedural requirements. The adoption
of § 8-1.5(a-1) without board approval or popular election means that
§ 40A-35(a)’s election requirement has been repealed just like the board-
veto requirement, without any impediment from trust-law doctrines.
But law other than Texas trust law may compel a different result,
such as requiring an election here. The specific issue that we leave
unresolved today does not implicate § 40A-35(a) at all: whether article
6243d would obligate the City to seek voter approval of amendments to
Chapter 40A even if § 40A-35(a) had never required such elections.
As we have noted, article 6243d requires voter approval before a
city may enact a pension plan like Chapter 40A. Rev. Civ. Stat.
art. 6243d, § 1. The voters of Dallas so approved in 1943. The city council
had unilateral authority to amend what is now Chapter 40A until 1945,
and it approved at least one amendment during that period.16 The Fund

16 The ordinance approved by the voters provided as follows: “Governing

Body May Change Ordinance. With the exception of the sections relating to
contributions to the Fund by employee members and contributions by the City,
the City Council, or other Governing Body, shall have the power by ordinance to
amend all the terms and provisions of this ordinance without submitting such
amendments to a vote of the electorate, provided that the power of amendment
given herein shall expire on January 1, 1945.” Dallas, Tex., Ordinance No. 3470
(Nov. 24, 1943).

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asserts that, after 1945, every ordinance amending Chapter 40A has been
put to the voters for their approval.17 Whether § 8-1.5(a-1) must be
submitted to a popular election turns on whether the practice was
commanded by the statute (and if so, whether the city council’s initial
authority to amend it without elections was unlawful or was excused for
some other reason).
We decline to address this question in the first instance. “As a
court of last resort, it is not our ordinary practice to be the first forum to
resolve novel questions, particularly ones of widespread import.” In re
Troy S. Poe Tr., 646 S.W.3d 771, 780 (Tex. 2022). The court of appeals
did not address whether the voters must approve this or other
amendments to Chapter 40A, in part because that court’s holding
regarding the board’s role made it unnecessary to further consider
whether an election was also required (much less whether article 6243d
would be the source of such a requirement). That court likely also
declined to reach that question because the briefing addressing it was

17 For purposes of this case, we assume the truth of this proposition, but

note that the record does not clearly support it. The Fund claims that each
amendatory ordinance after 1945 (the next one came in 1947) until 1991
expressly required voter approval to become effective. See, e.g., Dallas, Tex.,
Ordinance No. 19470 (Feb. 18, 1987) (“That this ordinance shall take effect
immediately from and after its approval by the voters of the City of Dallas in a
special election on April 4, 1987, and it is accordingly so ordained.” (emphasis
added)). But at least two amendments during that period textually omit the
requirement, leaving the extent of voter involvement in passing them unclear.
See Dallas, Tex., Ordinance No. 17713 (Mar. 2, 1983) (“That this Ordinance shall
take effect immediately from and after its passage and publication in accordance
with the provisions of the Charter of the City of Dallas, and it is accordingly so
ordained.”); Ordinance No. 18181 (Feb. 29, 1984) (similar). Indeed, similar
language omitting voter (and board) approval appears in amendments
postdating 1991. See, e.g., Dallas, Tex., Ordinance No. 28739 (Aug. 8, 2012).
Nothing in our opinion turns on these details.

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insubstantial compared to the arguments surrounding the board’s
authority, which has always been the case’s central focus. The parties’
briefing in this Court gave even less attention to whether the voters must
approve amendments to Chapter 40A. The State as amicus briefly
addressed the question and the Fund briefly responded, but no party has
provided sufficient briefing for us to resolve the question in the first
instance. A decision by this Court that determines whether the statute
requires continuing voter approval would have “widespread import,” id.,
because it would provide a rule that would also bind every other city plan
created under article 6243d. If we must address such a question, we will
not do so until it is fully presented.
We instead have resolved the issues that were briefed and argued
to us, which are sufficient to reverse the judgment below and to remand
the case to the court of appeals. We leave it in the first instance for that
court to determine if the parties have adequately preserved any question
regarding the statutory basis for any continuing need for elections to
validate amendments to Chapter 40A. If the court concludes that the
issue was properly before it, that court should resolve the issue. If the
court concludes otherwise, then it should render judgment for the City of
Dallas and reinstate the trial court’s judgment.
The judgment of the court of appeals is accordingly reversed and
the case is remanded to that court.

Evan A. Young
Justice

OPINION DELIVERED: March 15, 2024

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