IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0587

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Houston Municipal = Employees Pension=20 System, = Petitioner

Craig E. Ferrell, = Jr., et=20 al., Respondents

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On Petition for Review from = the

Court of Appeals for the First = District of=20 Texas

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Argued January 23,=20 2007

Justice Brister, joined by = Justice O=92Neill, = concurring.

&nbs= p;=20 I join fully in the Court=92s opinion and judgment. I write separately = only to=20 emphasize the unusual nature of this statute.

&nbs= p;=20 The 29 remaining plaintiffs assert the courts have jurisdiction to = decide who=20 should credit their pensions for time served in Houston=92s police = academy.=20 Apparently the City=92s pension system for police says cadets are = covered by the=20 City=92s pension system for general employees, while the latter says = they are=20 covered by the former. Despite its breathtaking 20,290 words, article = 6243h=20 (governing pensions for general employees) says nothing about this = matter. Thus,=20 to decide whether the plaintiffs should get that credit, someone must = interpret=20 the statute or supplement its terms.

&nbs= p;=20 The Legislature expressly provided that only the City=92s pension board = could do=20 either =97 that the board could =93interpret and construe this Act=94 = and could=20 =93supply any omission.=94[1]=20 The statute also says that the board=92s decisions in doing so =93are = final and=20 binding on any interested party, including members.=94[2]=20 =93Final and binding=94 means no appeal, unless the context says = otherwise.[3]=20 This was surely no mistake, as the Legislature said the same thing about = pension=20 systems for Texas firefighters and police officers in cities large,[4]=20 small,[5]=20 and in-between.[6]=20

&nbs= p;=20 This ban on judicial review might look odd until one looks at the = broader=20 context. According to the list of prior laws in the statute books, the = pension=20 statute for the City=92s police officers has been amended 33 times since = 1947,=20 while that for the City=92s general employees has been amended 25 times = since=20 1943. Of the 31 Legislatures that met from 1943 until 2003, all but five = tinkered with one statute or both. Our legislators having decided they = wish to=20 be the final (and frequent) arbiter of disputes about how these pension = systems=20 should be run, we must leave them to it, as the Texas Constitution = expressly=20 allows the Legislature to grant jurisdiction to administrative bodies = rather=20 than the courts.[7]

&nbs= p;=20 A different case might be presented if the plaintiffs alleged the board = was=20 clearly violating some provision of the statute. Article 6243h gives the = pension=20 board complete discretion to interpret the statute, but not to violate = it. Had=20 the Legislature meant for the board to do whatever it wanted, there = would have=20 been no reason for this palaverous statute. But the plaintiffs argue = only that=20 the board is misinterpreting the statute, a charge we cannot adjudicate = without=20 interpreting the statute ourselves. Exercising their constitutional = prerogative,=20 the Legislature has said the courts cannot do so. Accordingly, I agree = with the=20 Court that we cannot respond (as the plaintiffs request) =93Oh yes we = can.=94

___________________________

Scott=20 Brister

Justice

OPINION=20 DELIVERED: November 30, 2007

^{^[1]}=20 Tex. Rev. Civ. Stat. = art. 6243h,=20 =A7 (2)(x)(2)=96(3).

^{^[2]}=20 Id. =A7 (2)(y).

^{^[3]}=20 See City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006); = see=20 also Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex. 2005).

^{^[4]}=20 Tex. Rev. Civ. Stat. = art.=20 6243e.2(1), =A7 2(j), art. 6243g-4, =A7 6(f).

^{^[5]}=20 Tex. Rev. Civ. Stat. = art. 6243p,=20 =A7 5.03(d).

^{^[6]}=20 Tex. Rev. Civ. Stat. = art. 6243o,=20 =A7 5.10(i).

^{^[7]}=20 Tex. Const. art. V, =A7 = 8=20 (=93District Court jurisdiction consists of exclusive, appellate, and = original=20 jurisdiction of all actions, proceedings, and remedies, except in cases = where=20 exclusive, appellate, or original jurisdiction may be conferred by this=20 Constitution or other law on some other court, tribunal, or = administrative=20 body.=94); State v. Morales, 869 S.W.2d 941, 942 (Tex. 1994) = (=93[T]he=20 jurisdiction of Texas courts =97 the very authority to decide cases =97 = is conferred=20 solely by the constitution and the statutes of the=20 state.=94).