City of Houston v. Savely

• Decision Date: 13 February 1986
• Docket Number: No. 01-85-0178-CV,01-85-0178-CV
• Citation: 708 S.W.2d 879
• Parties: CITY OF HOUSTON, et al., Appellants, v. Robert T. SAVELY, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 879

708 S.W.2d 879

CITY OF HOUSTON, et al., Appellants, v. Robert T. SAVELY, et al., Appellees.

No. 01-85-0178-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 13, 1986.

Rehearing Denied April 17, 1986.

William A. Olson, Olson & Olson, Houston, for appellants.

Mike Gallagher, Fisher, Gallagher, Perrin & Lewis, Houston, D. Douglas Brothers, Loenard, Koehn & Hurt, Austin, for appellees.

Before COLEMAN, C.J. (Retired), and DUGGAN and HOYT, JJ.

OPINION

COLEMAN, Chief Justice (Retired).

This is an appeal from a judgment that held two City of Houston annexation ordinances void. These ordinances numbers 77-1423 ("the strip annexation") and 77-1668 ("the block annexation") purported to annex the unincorporated area known as Clear Lake City. The plaintiffs, Clear Lake City Water Authority and 12 private citizens, sued the City of Houston and various present and former officials of the city ("Houston" or "the city") seeking to have the annexation ordinances declared void by reason of alleged violations of the Municipal Annexation Act, Tex.Rev.Civ.Stat.Ann. art. 970a (Vernon 1963 & Supp.1986). The State of Texas through the County Attorney intervened on the side of the plaintiffs by filing an Information in the Nature of Quo Warranto attacking only the strip annexation ordinance.

After a trial to a jury, judgment was rendered declaring each of the ordinances void ab initio and permanently enjoining Houston from imposing or collecting taxes in the area in dispute or otherwise exercising jurisdiction over such area.

Appellants first attack special issue number four and the jury's answer thereto. This issue inquired whether all plaintiffs wishing to be heard before the Houston City Council on the subject of the block annexation ordinance were given an opportunity to be heard. The court directed the jurors to answer either "all plaintiffs were not heard" or "all plaintiffs were heard." The city objects to this issue for the reason that the wording of the proposed answer suggests that the inquiry is whether all plaintiffs were heard and not whether all plaintiffs were given the opportunity to be heard. While we consider that the wording of the proposed answers was unduly favorable to the plaintiffs, we cannot say that the error was calculated to cause and probably did cause a rendition of an improper judgment.

The only evidence supporting the answer made to special issue number four was the testimony of Lynn Otto that she had signed up to speak at the hearing and was not given an opportunity to do so. Those wishing to be heard at the block annexation hearing were required to call the city secretary and sign up before 5:00 p.m. on Monday, August 8, 1977. The list furnished to the city council by the city secretary contained 291 names. Some of the names were marked out with a notation "cancelled." All of the names not marked out were called to speak, generally in the order in which they appeared on the list. One hundred seventy-nine of the people who signed up either spoke or had someone speak for them. One hundred seven people were not present when their names were called and did not speak. All of the speakers were opposed to the annexation.

Ms. Otto's name was not on the list. She testified that she signed up and that she saw her name added as the last name on the list. She was present at two sessions of the hearing, including the last session. Her name was never called. While her name did not appear on the list for speakers on the block annexation, it did appear as the last name on the list of speakers for the strip annexation. There is no evidence that Ms. Otto objected at the last session because her name was not called.

The hearings continued over parts of three days and consumed 16 hours. An orderly and reasonable procedure was followed in calling on the speakers, and there is no evidence that the city in any way stifled the opposition to its proposed action. If in fact Ms. Otto told the city secretary that she desired to speak to the block annexation ordinance, as she testified, rather than the strip ordinance, it is apparent that the city secretary inadvertently put her name on the wrong list of speakers. Because the failure to call Ms. Otto as a speaker was not called to the attention of the council, Ms. Otto's testimony is insufficient to support the answer of the jury that all plaintiffs were not given the opportunity to be heard. The city substantially complied with the provisions of Tex.Rev.Civ.Stat.Ann. art. 970a, sec. 6 in effect at the time ordinance 77-1668 was passed. ¹

A statute should be construed as a whole; legislative intent should control, and common sense should govern. If possible, a court should place upon a statute a construction that will not result in injustice, unreasonableness, prejudice to the public interest, or absurd consequences. National Surety Corp. v. Ladd, 131 Tex. 295, 301, 115 S.W.2d 600, 603 (1938). Texas Liquor Control Board v. Falstaff Distributing Co., 369 S.W.2d 483, 486 (Tex.Civ.App.--Houston 1963, no writ).

Special Issue No. four should not have been submitted to the jury, and the answer to such issue should have been disregarded. See Cain v. Tennessee-Louisiana Oil Co., 382 S.W.2d 794, 799 (Tex.Civ.App.--Tyler 1964), aff'd, 400 S.W.2d 318 (Tex.1966); Lee v. Continental Trailways, 564 S.W.2d 392, 394 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.).

To summarize, there is no evidence that Ms. Otto advised the city council that she had reserved time to speak, that her name had not been called, and that she wished to be heard. Consequently, there is no evidence that Ms. Otto was denied the opportunity to be heard. See Kirkpatrick v. Raggio, 319 S.W.2d 362, 366 (Tex.Civ.App.--Fort Worth 1958, writ ref'd n.r.e.).

The jury found in answer to special issue number six that the property described in the block annexation ordinance encroached upon the boundaries and extraterritorial jurisdiction of Pasadena, Webster, and Nassau Bay "as depicted in Plaintiffs' Exhibit No. 134." The jury also found, in answer to special issue number eight, that the property described in the block annexation ordinance was outside the extraterritorial jurisdiction of Houston. Finally, the jury found, in answer to special issue number 11, that the City of Houston intended to disclaim extraterritorial jurisdiction west of the line set forth in the Houston/Pasadena agreement by which certain territories were exchanged and Houston specifically ceded to Pasadena extraterritorial jurisdiction in certain territory.

The limits of the extraterritorial jurisdiction of Houston and Pasadena depend largely on the validity of two Houston ordinances, 65-1555-AR and 65-1555-BR, which represented attempts by Houston to extend southward and to outflank Pasadena's annexations in the same general area. Litigation between Houston and Pasadena with regard to the validity of the two Houston annexation ordinances eventually reached the Supreme Court of Texas. In the City of Pasadena v. State ex rel. City of Houston, 12 Tex.Sup.Ct.J. 273 (Feb. 26, 1969), the Supreme Court held the City of Houston Ordinances void. However, a motion for rehearing was granted, the opinion was withdrawn, and a second opinion was issued holding that Pasadena had not properly preserved the issue of procedural defects in the passage of the ordinances. The case was remanded to the trial court. City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325 (Tex.1969).

Prior to the issuance of the second opinion, Pasadena and Houston jointly requested that the action be dismissed. The Supreme Court refused to grant the dismissal and issued the opinion. The withdrawn opinion must be treated as if it had never been rendered. Mixon v. Wallis, 161 S.W. 907, 911 (Tex.Civ.App.--San Antonio 1913, writ ref'd).

By a judgment signed on December 5, 1969, the district court granted a summary judgment declaring the Houston Annexation Ordinance No. 65-1555-BR valid and declaring certain Pasadena annexation ordinances invalid. On December 30, 1969, Houston Ordinance No. 69-2386 and Pasadena Ordinance No. 69-309 were finally passed. These two ordinances embodied an agreement between Houston and Pasadena, wherein the two cities exchanged some territory inside their corporate limits, and Houston released to Pasadena all of its extraterritorial jurisdiction to the east of a line running generally north and south at the east side of the Clear Lake City area.

Although it was not set out in the ordinances, it was understood between the two cities that the judgment of December 5, 1969, would not be appealed. The two ordinances became effective on April 1, 1970. The summary judgment sustaining the validity of the Houston annexation ordinances became final within 30 days after it was signed on December 5, 1969, and as a result, it was final prior to the date the two ordinances became effective.

The plaintiffs contend that Houston's Annexation Ordinance No. 65-1555-BR is ineffective, despite the district court judgment of December 5, 1969, because the judgment was superseded by the settlement agreement. There is no direct evidence, written or otherwise, of an agreement between the two cities that the judgment would be set aside. In the absence of a proper ordinance authorizing the action, a city cannot abandon territory within its city limits even to implement an agreement with another city. City of Hitchcock v. Longmire, 572 S.W.2d 122, 126-27 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.); see Houston City Charter, Art. 7, secs. 3 & 10. As a result, the territory described in the Houston Annexation Ordinance No. 65-1555-BR was validly annexed.

The evidence establishes that if Houston's extraterritorial jurisdiction is measured from the city limits as established by ordinance No. 65-1555-BR, the territory annexed subsequently by ordinance No. 77-1668, the block annexation, was within Houston's extraterritorial jurisdiction.

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