Two Supreme Court of Texas Justices are True Advocates of Citizens Rights And Should Be Applauded. LIT’s the First to Say Thank You.

LIT EDITOR’S OPINION

Justice Boyd authored a dissenting opinion in this case, in which Justice Green joined. Whilst the thank you is a belated one, as the majority ruled against the people and first responders in Texas, the dissent provides HOPE, which is a scarce commodity in the judiciary and legislative branches in Texas government.  These two justices stood up for the firefighters, first responders and the citizens of Texas – which is duly recognized.

The dissenting opinion follows and basically outs the Texas Supreme Court for “wordsmithing” in order to make a wholly unlawful and unconstitutional amendment to disbursement of firefighters and first responders pension benefits seem lawful.

The majority penned a contemptible response to 2 certified questions posed by the Fifth Circuit, who have started a new format of not relying on their erie guesses (as they are usually wrong).

However, sadly we have to report  – and based on this disquieting majority opinion – which seemingly now “redirects” LIT’s anti-corruption warnings  back to the State of Texas, corruption in the judiciary’s highest court still prevails.

In this underlying case, when you’re a Supreme Court Justice on a majority panel concurring with an opinion protecting a mismanaged pension fund from being drained of cash as a result of news that the pension fund cannot support its obligations and disbursements to these pensioners, it’s politically motivated. In short form, it ratifies Texas’s support of corrupt bankers and investment advisers in Wall Street.

The smart people know that “Justice for Sale” in this State’s Supreme Court is still in place, 32 years after the damning 60 minutes documentary. Whether you’re a republican or a democrat is irrelevant in the State of Texas. It’s all about the money – and the dirty money in Texas politics buys “justice”.

The simple facts were tweeted by LIT on Friday, shortly after these opinions were released by the Supreme Court of Texas.

Hat tip to Justice Boyd for his correct interpretation of the statute and Justice Green for joining. Controlling the income and assets (in this case pension) of Texas firefighters and first responders because your State fund has been mismanaged is unlawful https://t.co/7UPfz1pAPx

— LawsInTexas (@lawsintexasusa) January 31, 2020

IN THE SUPREME COURT OF TEXAS
══════════
No. 19-0234
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LADONNA DEGAN, RIC TERRONES, JOHN MCGUIRE, REED HIGGINS,MIKE GURLEY,LARRY EDDINGTON, AND STEVEN MCBRIDE, APPELLANTS,
v.
THE BOARD OF TRUSTEES OF THE DALLAS POLICE AND FIRE PENSION SYSTEM,APPELLEE
══════════════════════════════════════════
ON CERTIFIED QUESTIONS FROM THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
══════════════════════════════════════════
JUSTICE BOYD, joined by JUSTICE GREEN, dissenting.

On January 9, 2020, Governor Greg Abbott posted on Twitter to celebrate “National #LawEnforcementAppreciationDay” and to thank “the men and women of law enforcement who bravely serve our communities and keep us safe.”1

That night, as winter storms approached the State, he posted another tweet, asking Texans to keep “all of Texas’ first responders in their prayers.”2

The following morning, a driver lost control on an icy Lubbock highway, striking and killing Lubbock police officer Nicholas Reyna and Lubbock firefighter Eric Hill and critically injuring firefighter Matt Dawson while they were helping others who had been involved in two

1 Gov. Greg Abbott (@GovAbbott), TWITTER (Jan. 9, 2020, 12:03 PM), https://twitter.com/GovAbbott/ status/1215363534995050496.

2 Id. (Jan. 9, 2020, 7:00 PM), https://twitter.com/GovAbbott/status/1215468476900552705.

previous accidents.3 Numerous Texas officials, agencies, organizations, and individuals tweeted condolences and gratitude for these first responders’ commitment to public service.4 Uniformly, the expressions were sincere, meaningful, and appropriate.

But Texans know that thoughtful expressions aren’t nearly enough. When it comes to public employees’ retirement and death benefits, Texans have bound their government to actively preserve what public employees have entrusted to it. In 2003, Texans ratified a constitutional amendment providing that local public retirement systems cannot retroactively “reduce or otherwise impair” a public officer’s or employee’s retirement benefits. TEX. CONST. art. XVI, 66(d), (e), (f). Honoring this constitutional guarantee has proven difficult, however, as public pension systems have struggled to maintain solvency for one reason or another. See Eddington v. Dall. Police & Fire Pension Sys., S.W.3d , 2019 WL 1090799, at *2 (Tex. Mar. 8, 2019).

The Dallas Police and Fire Pension System provides retirement, death, and disability benefits for roughly 9,300 police officers and firefighters. In 1993, the pension system began offering a Deferred Retirement Option Plan as an incentive to retain experienced first responders who would otherwise leave their departments when they became eligible for retirement. See Act of May 26, 1993, 73d Leg., 3 R.S., ch. 872, § 1, 1993 Gen. Laws 3432, 3465–67. Under the DROP,

police officers and firefighters who become eligible for retirement can elect to continue serving and drawing their salary while also receiving retirement payments in the form of a monthly annuity deposited into their DROP accounts. When the officers or firefighters ultimately leave active

3 KCBD Staff, Firefighter, Police Officer Struck, Killed While Working Wreck on I-27, KCBD, Jan. 12, 2020, https://www.kcbd.com/2020/01/11/firefighter-police-officer-struck-killed-while-working-wreck-i-/.

4 See City of Lubbock (@cityoflubbock), TWITTER (Jan. 11, 2020, 3:24 PM), https://twitter.com/cityoflubbock/status/1216138816190386178.

service, they begin receiving their monthly retirement payments and can also access the funds that have accrued in their DROP accounts. As originally designed, the retirees could elect to withdraw all of their DROP funds as one single lump-sum payment, through partial lump-sum payments as needed, through self-designated equal payments over a specific period of time, or through monthly annuity payments calculated on the retiree’s life expectancy.

In 2016, word got out that the pension system was substantially underfunded and might require an infusion of extra funds to honor all of its payment obligations. Hearing this news, retirees began withdrawing their DROP funds at increasing rates.

In response, the pension system’s board of trustees temporarily froze all DROP withdrawals and then adopted a DROP addendum restricting retirees’ access to the funds in their DROP accounts.

The Texas legislature eventually stepped in and amended the statute that governs public employee pension systems. TEX. REV. CIV. STAT. art. 6243a-1, § 6.14(e); see Act of May 30, 2017, 85th Leg., 4 R.S., ch. 318, §§ 1.01–.50,

2017 Tex. Gen. Laws 639, 639–709 (amending TEX. REV. CIV. STAT. art. 6243a-1). Under the amended statute, retirees can no longer withdraw all of their DROP-account funds or take self- designated partial payments when they leave active service; instead, subject to a few limited exceptions, the only way they can access their DROP-account funds is through monthly or annual annuity payments based on their life expectancy.

The appellants in this case all elected to enter the DROP when they began working for the Dallas police and fire departments. When they became eligible for retirement, they chose to remain in active service and allowed their retirement payments to be deposited into their DROP accounts.

No one disputes that the funds in those accounts belong exclusively to the appellants, and not to the State or the pension system. The appellants all allege that they relied on the fact that they could withdraw all or part of their DROP funds when they left active service, but the statutory amendments now prevent them from doing so.

Before the 2017 amendments, for example, Larry Eddington had more than $800,000 in his DROP account, and he planned to withdraw substantial partial payments to supplement his pension and pay additional living expenses; but now, he is limited to an annuity payment of just over $5,000 per month.

LaDonna Degan requested a lump-sum distribution to cover her daughter’s medical-school tuition and expenses. John McGuire needed the funds to pay for his daughter’s college education and for post-retirement business activities he had planned.

Mike Gurley requested a lump-sum distribution to pay tuition for his daughter’s last semester of college. Ric Terrones requested distributions to pay for major home repairs.

Reed Higgins relied on lump-sum withdrawals to supplement his monthly pension and to pay for major home repairs, and has now had to seek additional employment to provide for his family.

Steven McBride used to take out funds two or three times a year to cover his living and home-related expenses.

The funds in their DROP accounts—which they each exclusively own—remain the same, but because of the 2017 amendments, these retired first responders can no longer access the funds as provided when they opted to participate in the DROP.

The issue is whether the 2017 amendments violate article XVI, section 66 of the Texas Constitution, which prohibits pension-plan changes that retroactively “reduce or otherwise impair” the first responders’ retirement benefits. TEX. CONST. art. XVI, § 66(d), (f).

No one disputes that the legislature and the pension system changed the DROP withdrawal provisions as a good-faith effort to resolve an impending financial crisis. And we must presume that they “intended for the law to comply with the United States and Texas Constitutions, to achieve a just and reasonable result, and to advance a public rather than a private interest.”

Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377, 381 (Tex. 2002) (citing TEX. GOV’T CODE § 311.021; Spence v. Fenchler, 180 S.W. 597, 605 (Tex. 1915)).

“Nevertheless, the Legislature may not authorize an action that our Constitution prohibits.” Id.

The Court concludes that the monthly retirement payments deposited into an employee’s DROP account and the interest the account accrues on those funds qualify as “benefits” that section 66 protects, but the “method of withdrawal” of funds from the account does not. Ante at .

Based on these conclusions, the Court holds that the 2017 amendments did not “reduce or otherwise impair” the retirees’ benefits because they did not “take away an accrued or granted annuity payment,” affect “the dollar amount of the funds previously credited to DROP,” or “negatively affect the amount of money in” the DROP accounts, but instead “merely change[d] the method of withdrawal.” Ante at .

I agree that, because the 2017 amendments did not retroactively decrease the amount of the monthly payments or prospectively lessen the amount of funds in the DROP accounts, they did not “reduce” the first responders’ retirement benefits.

But the Constitution guarantees that the benefits will not be “reduced or otherwise impaired.” TEX. CONST. art. XVI, § 66(d), (e), (f).

While concluding that the amendments do not “reduce” the benefits, the Court completely ignores whether the amendments “otherwise impair” the benefits.

The Constitution does not define the terms “reduce or otherwise impair,” so we must consider their common, ordinary meanings. See Anadarko Petroleum Corp. v. Hous. Cas. Co., 573 S.W.3d 187, 192–93 (Tex. 2019). To “reduce” is “to diminish in size, amount, extent, or number.” Reduce, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1905 (2002). “Otherwise” means “in a different way or manner.” Otherwise, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1598 (2002).

To “impair” is “to diminish the value of (property or a property right).” Impair, BLACK’S LAW DICTIONARY 754 (7th ed. 1999); see also Impair, WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1131 (2002) (“to make worse : diminish in quantity, value, excellence, or strength”). Giving effect to all of the Constitution’s words, section 66 prohibits any change that either diminishes the amount of the funds in the DROP accounts or in some other way diminishes the value of the first responders’ right to those funds.

Although the Court begins its analysis by reciting platitudes about the framers’ chosen language and how courts must interpret the Constitution’s words, ante at , it never actually makes any effort to interpret the words “reduce” or “impair” or to distinguish their related but different meanings.

Instead, the Court lumps the two terms together and turns immediately to “contextual factors,” including the provision’s “purpose” and legislative history, the “conditions and spirit of the times, the prevailing sentiments of the people, the evils intended to be remedied, and the good to be accomplished.” Ante at (citing Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009)).

While these contextual factors may be helpful, they can never replace the text itself. We begin with and “rely heavily on the literal text,” Harris Cty. Hosp. Dist., 283 S.W.3d at 842, so much so that courts need not consider contextual evidence at all when the meaning of the text itself is plain. Eddington,     S.W.3d at      , 2019 WL 1090799, at *5;   see also Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997) (“When interpreting our state Constitution, we rely heavily on its literal text and are to give effect to its plain language.” (citations omitted)). Inexplicably, the Court in this case ignores the text and considers only the context instead.

As the Court observes, allowing access only through monthly lifetime annuity payments does not diminish the amount of funds in the DROP accounts. Ante at   .

But it does diminish   the value of the first responders’ right to those funds. Everyone agrees the first responders are the exclusive owners of the funds in their DROP accounts.

These funds are “accrued” benefits—those “that have been earned by service, not those that may be earned by future service.” Eddington,       

S.W.3d at , 2019 WL 1090799, at *4. As the exclusive owners of the funds, the first responders enjoy a “bundle of rights” that includes the right to possess, use, and transfer those funds as they may wish, and to exclude others from doing the same.

Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 382–83 (Tex. 2012) (“Some of the key rights in American jurisprudence that make up the bundle of property rights include the rights to possess, use, transfer and exclude others.”) (citing Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979); United States v. Gen. Motor Corp., 323 U.S. 373, 378 (1945)).

Prior to the 2017 amendments, the first responders had the legal right to exercise that “bundle of rights” whenever they left active service. After the amendments, they may no longer exercise their bundle of rights as they see fit.

Instead, the pension system enjoys the right to possess, use, and transfer the funds as it sees fit, so long as it does not reduce the total amount of those funds.

The amendments diminished the value of the funds to those who actually own them, and thus “otherwise impaired” the benefits.

As the Court notes, “nothing in Section 66’s text ‘suggests that all retirement plan terms are protected benefits.’” Ante at       (quoting Eddington,       S.W.3d at       , 2019 WL 1090799, at *4-*5) (emphasis added).

A prospective-only change in the formula for calculating the amount of future payments, which does not in any way reduce or impair the payments that have already been earned, does not violate section 66. Van Houten v. City of Fort Worth, 827 F.3d 530, 538 (5th Cir. 2016). Nor does a prospective-only change in the interest rate those funds may earn in the future. Eddington, S.W.3d at , 2019  WL  1090799, at *5.

But a  change that  restricts or prohibits access to funds already earned does. Funds previously deposited into a first responder’s DROP account are “protected benefits,” and section 66 prohibits any plan-term change that retroactively “reduces or otherwise impairs” those benefits.

The change at issue here did not merely prospectively alter a contractual right. Instead, it diminished the value of an accrued property right by restricting access to that property.

While it did not “reduce” the amount of the funds accrued, it “otherwise impaired” those benefits in violation of section 66.

By conceding that “an outright denial of access to these funds might reasonably be considered an impairment,” the Court acknowledges that the Constitution protects the first responders’ access to the funds in their DROP accounts. Ante at  .

Yet contrary to the reasons  the Court provides for its ultimate holding, an outright denial of access to the funds would not “negatively affect the amount of money in” the DROP accounts. Ante at  .

Nevertheless, the Court concedes that a denial of access would “impair” the benefits even though it wouldn’t “reduce” them.

Having made that concession, the only remaining question is: how much of an “impairment” does it take to violate the Constitution?

Could the pension system delay all DROP- account withdrawals for a period of fifty years, or twenty-five, or ten, or two? Could it limit withdrawals to no more than $10,000, $1,000, $100, or even $10 per month?

The Constitution answers that question: neither the legislature nor the pension system may “reduce” (diminish the amount) or “otherwise” (in any other way) “impair” (diminish the value of) the funds in the DROP accounts.

It does not prohibit only changes that “reduce or completely impair,” or “substantially impair,” or “unreasonably impair” the benefits; it prohibits changes that “reduce or otherwise impair” the benefits. We need not engage in the kind of line-drawing to which the Court alludes, because the Constitution’s text leaves no room for it.

To be sure, the 2017 amendments did not completely eliminate the first responders’ DROP benefits or outright deny access to them, but that’s not what the Constitution prohibits.

These appellants elected to participate in the DROP, agreed to continue working once they became eligible for retirement, and permitted their retirement payments to be deposited into an account they could not access until they ultimately left active service.

But they did all this under a plan that gave them the right to decide at that point whether to withdraw all of their funds, withdraw partial payments, or fund an annuity based on their life expectancy.

By retroactively depriving them of that right and forcing them to accept only lifetime annuity payments, the 2017 amendments “otherwise impaired” the accrued DROP benefits by diminishing their value to their exclusive owners.

Because the Court holds otherwise, I respectfully dissent.

Justice Boyd

Opinion delivered: January 31, 2020

Place 7

Jeffrey S. Boyd joined the Court on December 3, 2012, appointed by Governor Rick Perry to fill Justice Dale Wainwright’s unexpired term. Wainwright resigned September 30th. Justice Boyd was the governor’s chief of staff since September 2011. Before that he was Gov. Perry’s general counsel.

Boyd is a graduate of Abilene Christian University and earned his law degree summa cum laude from Pepperdine University, where he graduated second in his law school class. After graduation he clerked for Judge Thomas M. Reavley on the Fifth Circuit U.S. Court of Appeals.

He spent 15 years with Thompson & Knight L.L.P. in two stints, leaving first in 2000 to join then-Texas Attorney General John Cornyn as deputy attorney general for general litigation and continuing with Attorney General Greg Abbott. He rejoined Thompson & Knight as senior partner in 2003. In January 2011 he left Thompson & Knight to join the Governor’s Office as general counsel.

Justice Boyd was named a Texas Super Lawyer for government practice in 2004 and in 2006-2010. He has been a Supreme Court Advisory Committee member since 2003.

He has served as board president and director of Volunteer Legal Services of Central Texas, as chair and director of Goodwill Industries of Central Texas and as a director of the Freedom of Information Foundation of Texas. He is serving a one-year term as president of the American Inns of Court, Robert W. Calvert Inn.

Before he went to law school, Boyd worked as youth and family minister of the Brentwood Oaks Church of Christ in Austin and was on the Brentwood Christian School board from 1994 to 2000.

He and his wife, Jackie, have twin daughters, Hanna and Abbie, and a son, Carter.

Justice Boyd was re-elected on November 4, 2014, for a term that began on January 1, 2015, and will expire on December 31, 2020.

Place 5

Justice Green was elected to the Supreme Court of Texas in 2004. Before joining the Court, he served for 10 years as a Justice on the Fourth Court of Appeals in San Antonio.

A native of San Antonio, Justice Green received his business degree from the University of Texas at Austin in 1974 and his law degree from St. Mary’s University School of Law in 1977.

After law school, Justice Green, a third-generation lawyer, joined his father in a mid-sized litigation practice and remained there for 17 years until he was elected to the Court of Appeals in 1994.

During his career as a lawyer, Justice Green served as president of the San Antonio Bar Association, director of the State Bar of Texas, and as a member of the House of Delegates of the American Bar Association. He is a member of The American Law Institute and the American Judicature Society and is also a Life Fellow of the Austin, San Antonio, Texas and American Bar Foundations. Justice Green has been honored by St. Mary’s University Law School as a distinguished law graduate, and as a recipient of the Rosewood Gavel Award for achievement in the judiciary.

Justice Green was re-elected in 2016, and his current term ends on December 31, 2022.