City of Houston v. Houston Endowment, Inc.

• Citation: 428 S.W.2d 706
• Decision Date: 25 April 1968
• Docket Number: No. 15287,15287
• Parties: CITY OF HOUSTON, Texas, et al., Appellants, v. HOUSTON ENDOWMENT, INC., Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 706

428 S.W.2d 706

CITY OF HOUSTON, Texas, et al., Appellants, v. HOUSTON ENDOWMENT, INC., Appellee.

No. 15287.

Court of Civil Appeals of Texas.

Houston (1st Dist.).

April 25, 1968.

Rehearing Denied June 6, 1968.

Wm. A. Olson, City Atty., W. Lawrence Cook, Jr., Senior Asst. City Atty., Houston, for appellants.

Liddell, Dawson, Sapp & Zivley, Willis Witt, John C. Nabors, Houston, for appellee.

PEDEN, Justice.

This is an appeal from the granting of an order temporarily enjoining the City of Houston, its mayor, acting tax assessorcollector and the members of its city council, from passing on final reading Ordinance 67--2146, which would annex 220 acres of unimproved land owned by Houston Endowment. The tract in question lies within a strip of land that extended 20 air miles down the Houston Ship Channel. This long strip was specially annexed by Houston in 1913 pursuant to Articles 1183--1187, inclusive, Vernon's Annotated Texas Statutes, for the limited purposes of navigation and wharfage, but it is not within the general city limits.

In September, 1967, the Houston City Council declared its intention with respect to the specially annexed strip to 1) enter industrial district contracts with property owners who applied before October 31, 1967; and 2) generally annex the property of any owner who did not apply. Guidelines were established for such contracts; they provided that as to land an owner should pay the City a sum equal to that which would be paid in city ad valorem taxes if the land were within the general city limits. As to other property the rate would be begun at a low figure, then increased on a specified, graduated basis for each of the first five years and thereafter would equal the tax rate on property within the general city limits. Article 1187--1, V.A.T.S., authorizes this procedure. Houston Endowment did not apply for an industrial district contract.

The trial court's order granting Houston Endowment a temporary injunction recited that the court found that the land in question is not adjacent to the City of Houston, nor is it within the City's extraterritorial jurisdiction, and that the ordinance is therefore void; further, that Houston Endowment would be irreparably injured if an injunction were not granted.

Ordinance 67--2146 provides that a strip or stem 150 feet wide and six and one-eighth miles long connects the subject 220 acre tract to the general city limits of Houston. Both the tract and the stem are within the area specially annexed by Houston in 1913. The subject tract is only about two miles from the nearest point in Houston's general city limits, however.

Appellant asserts as points of error that the trial court erred:

1. in holding that the subject land is not within Houston's extraterritorial jurisdiction,

2. in sustaining a collateral attack on the ground of non-adjacency, and

3. in holding that the subject land is not adjacent to the City of Houston.

We sustain appellants' first point. The limiting of a Home Rule city's annexation authority to that land which is within its extraterritorial jurisdiction is found only in Article 970a, V.A.T.S. As to a city of Houston's size, the statute defines its extraterritorial jurisdiction as that unincorporated area contiguous to and within five miles of Houston's corporate limits. Article 970a was enacted as Article I of Acts 1963, 58th Legislature, p. 447, ch. 160. Article III of such act includes the following sentence: 'It is expressly provided that this Act shall not repeal or affect Article 1183 to Article 1187, both inclusive, Revised Civil Statutes of Texas, 1925, nor apply to any territories held by any city or town under the provisions of said Articles or the laws of which said Articles were a codification.'

As mentioned above, the subject land was specially annexed to Houston in 1913 under Articles 1183--1187, inclusive, so Article 970a does not apply to such land, and Houston is not limited to its extraterritorial jurisdiction in annexing for general purposes land which lies within the specially annexed strip. It was pointed out in Tod v. City of Houston, 276 S.W. 419 (Tex.Com.App., 1925), that Houston had the right under Articles 1183--1187 to run its lines 20 miles down the channel for limited purposes, and has the other and concurrent right to extend its limits by the reasonable addition of adjacent territory for all purposes.

Appellants' third point states that the trial court erred in holding that the subject land is not adjacent to the City of Houston .

As to whether proposed annexation includes territory which is not adjacent is stated by the Supreme Court of Texas in State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957), to be a law question, and the courts will determine whether or not it lies 'in the neighborhood of' or 'in the vicinity of' and contiguous to the annexing city.

Houston Endowment's tract is not subject to annexation by any Home Rule city other than Houston; the rights of others to annex the subject property were foreclosed by Houston's special annexation of it in 1913. City of Galena Park v. City of Houston, 133 S.W.2d 162 (Galv.Civ.App.1939, error ref.).

We have indicated the unusual distances involved: the stem is six and one-eighth miles long, but Houston Endowment's tract is only two miles from the general city limits. 'It is well settled that each and every tract of land sought to be annexed need not adjoin or be contiguous to the municipality. If only one tract of a contiguous body adjoins, this is sufficient * * * the 10-ft. strip (was) (the only property actually adjacent) * * * Bluff View Estates may be deemed 'adjoining' or 'adjacent' to existing boundaries of Dallas, within meaning of its charter and State law; * * *' Lefler v. City of Dallas, 177 S.W.2d 231 (Dallas Civ.App.1943, no writ).

The validity of establishing adjacency and contiguity by stems or strips was also upheld in State ex rel. City of West Orange v. City of Orange, 300 S.W.2d 705 (Beaumont Civ.App.1957, writ ref., n.r.e.) .

The parties to this case have stipulated: 'The land described in Ordinance No. 67--2146 consists of that part of the land owned by Plaintiff in the Thomas Earle Survey, Harris County, Texas, which is located within the boundaries of the...