Alexander Oil Co. v. City of Seguin, 04-88-00373-CV

• Decision Date: 13 September 1989
• Docket Number: No. 04-88-00373-CV,04-88-00373-CV
• Citation: 823 S.W.2d 309
• Parties: ALEXANDER OIL COMPANY, Appellant, v. The CITY OF SEGUIN, Appellee.
• Court: Texas Court of Appeals

Page 309

823 S.W.2d 309

ALEXANDER OIL COMPANY, Appellant, v. The CITY OF SEGUIN, Appellee.

No. 04-88-00373-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 13, 1989.

Rehearing Denied Oct. 23, 1989.

James W. Saunders, San Antonio, for appellant.

Sharon E. Callaway, Crofts, Callaway & Jefferson, Paul A. Drummond, Groce, Locke & Hebdon, San Antonio, for appellee.

Before CHAPA, PEEPLES and BISSETT, JJ.

BISSETT, Assigned Justice. ^*

This appeal arises out of the annexation of 192.43 acres of land by Ordinance No. 814 ("the ordinance") into The City of Seguin, Texas ("the City"). Prior to annexation, the 192.43 acres, which included property owned by Alexander Oil Company ("Alexander"), was within the extraterritorial jurisdiction of the City, as defined by TEX.REV.CIV.STAT.ANN. art. 970a § 3 (now codified as TEX. LOCAL GOV'T CODE ANN. § 42.021 (Vernon 1988)). The City undertook the following steps in compliance with the requirements of article 970a governing municipal annexations: 1) on November 14 and 16, 1986, it published a joint notice in the Seguin Gazette-Enterprise of two public hearings to be held November 25 and 26, 1986, on the matter of the annexation; 2) in addition to the newspaper notice, the City Secretary posted the agenda of the public hearings on the front door of the Seguin Municipal Building on November 19, 1986.

The two required public hearings were held as scheduled on November 25 and 26, 1986. Section 10 of article 970a (now codified as TEX. LOCAL GOV'T CODE ANN. § 43.056(a) (Vernon 1988)) also requires that prior to notice of the public hearings the City's planning department prepare a service plan to provide for extension of municipal services into the area to be annexed. There is a dispute in the record as to when the service plan was prepared and whether it was presented, explained, or amended at the public hearings, and whether it was attached to the ordinance during all three "readings" by the City Council. A service plan was ultimately incorporated into the annexation ordinance.

The City Council then undertook the necessary "readings" of the proposed annexation ordinance in three successive meetings held on December 16, 17 and 18, 1986. The ordinance was approved upon each reading.

On December 18, 1986, the City Council passed ordinance No. 814, which annexed the 192.43 acres. Notice of that passage was published in the Seguin Gazette-Enterprise on December 23 and 26, 1986. On March 3, 1987, Alexander Oil Company filed suit asking, among other relief which has no bearing on this appeal, that the annexation be declared void.

Both parties filed motions for summary judgment and responses to the opposing party's motion. Alexander sought summary judgment in its favor, arguing that the ordinance was void and the City was liable to it in damages because the City had failed to properly prepare or present a service plan, and had failed to give notice of public hearings in accordance with article 970a and its charter. In addition, Alexander sought damages based on the service plan, as incorporated in the ordinance, providing for services lesser than those provided prior to annexation. The City sought summary judgment in its favor and argued that the summary judgment proof established as a matter of law that the ordinance was not void ab initio, which was an essential element of Alexander Oil Company's collateral attack on the ordinance in this non quo warranto proceeding. Additionally, the City argued as to Alexander's complaints about the level of municipal services provided in the ordinance, that as a matter of law disannexation was its sole remedy, and that since this suit was not a disannexation proceeding, no justiciable controversy was presented.

The trial court denied Alexander Oil Company's motion and granted the City's motion for summary judgment, ordering that Alexander, plaintiff in the trial court, take nothing by way of its suit. Alexander appeals from that judgment.

The City is a Home Rule City, and the power to annex territory is a legislative power conferred upon it by the TEX. CONST. art. XI, § 5. City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571 (Tex.1964). Article XI, section 5 of the Texas Constitution, in relevant part, provides:

that no ... 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; ....

In keeping with the Texas Constitution, the legislature enacted TEX.REV.CIV.STAT.ANN. art. 1175(2) (now codified as TEX. LOCAL GOV'T CODE ANN. § 43.021 (Vernon 1988)), enumerating powers of Home Rule Cities, to wit:

The power to ... provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city, ... according to such rules as may be provided by said charter not inconsistent with the procedural rules prescribed by the Municipal Annexation Act [Tex.Rev.Civ.Stat.Ann. art. 970a].

Section 6 of art. 970a (now codified as TEX. LOCAL GOV'T CODE ANN. § 43.052 (Vernon 1988)), in pertinent part, provided:

Before any city may institute annexation proceedings, the governing body of such city shall provide an opportunity for all interested persons to be heard at a public hearing to be held not more than twenty (20) days nor less than ten (10) days prior to institution of such proceedings. Notice of such hearing shall be published in a newspaper having general circulation in the city and in the territory proposed to be annexed. The notice shall be published at least once in such newspaper not more than twenty (20) days nor less than ten (10) days prior to the hearing ...

The Home Rule Charter of the City requires compliance with the Municipal Annexation Act, as follows:

Section 1.03(d) COMPLIANCE: Any proceeding for annexation under the provision of this article shall comply with the terms and conditions of TEX.REV.CIV.STAT.ANN. art. 970a.

Alexander presents twenty-three points of error. It contends in points one through twelve and in fifteen that the trial court erred in granting summary judgment for the City because as a matter of law the annexation ordinance was void. In support of such contention, it asserts, in summary: 1) the City did not hold two public hearings on the matter of the annexation of the involved land "not more than twenty (20) days nor less than ten (10) days prior to institution of such proceedings," as required by section 6 of art. 970a; 2) there were no directions or instructions given to the City Director of Planning to publish notices of public hearings to be held on November 25 and 26, 1986; 3) publication of the notice on November 16, 1986 advising that a public hearing on the proposed annexation would be held on November 26, 1986 is less than the required ten (10) day interval mandated in section 6 of the Municipal Annexation Act; 4) section B of the Municipal Annexation Act requires the publication of a single notice of each public hearing, and publication of a joint notice of the two public hearings in two issues of the local newspaper does not comport with the provision of the Act; 5) the posted notice and the published notices of the public hearings do not include as a part of the notice that the subject matter of the public hearings would include an explanation of a service plan to provide for the extension of municipal services to the proposed annexed area, as required by section E of the Municipal Annexation Act; and 6) a service plan for the proposed annexed area was not in existence on November 25 and 26, 1986, when the two public hearings were held, which was in violation of sections 10 A and 10 E of the Municipal Annexation Act.

Generally speaking, the validity of an annexation by a city can be attacked only by a direct suit in the nature of a quo warranto proceeding by the state, or in a proceeding in which the state is a party. Hoffman v. Elliott, 476 S.W.2d 845, 846 (Tex.1972); Kuhn v. City of Yoakum, 6 S.W.2d 91 (Tex. Comm'n App.1928); City of Houston v. Savely, 708 S.W.2d 879, 889 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 698 (1987).

A suit challenging an annexation ordinance where the state is not a party is a collateral attack on the ordinance. Collateral attacks by private parties are permissible, but only when that party can show that the ordinance in question is wholly void because not authorized by law or color of law. Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex.1966); City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695, 698 (1944).

In the event the annexation proceedings by a city are not void, but are only an irregular exercise of power, a private party does not have standing to attack the annexation ordinance. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134, 138 (1948).

There is a difference, however, between an ordinance being utterly void because not authorized by law or color of law and being voidable for irregularities in its adoption. City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 907 (Tex.Civ.App.--Houston [1st Dist.] ), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex.1980). To collaterally attack an annexation ordinance, a private party must show that it is void ab initio, meaning that the act of annexation was wholly beyond the powers of the municipality or that there was an entire want of power on the party of the city of annex. City of Houston v. Harris County Eastex Oaks Water & Sewer Dist., 438 S.W.2d 941, 944 (Tex.Civ.App.--Houston [1st Dist.] 1969, writ ref'd n.r.e.).

Annexations have been declared void ab initio in the following instances: First, annexing territory and exceeding the 10 percent limitation of section 7 B of art. 970a (now codified as TEX. LOCAL GOV'T CODE ANN. § 43.055 (Vernon 1988)) rendered the ordinance void. Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex.1966). Second, violating article...