City of Houston v. Harris Co. Eastex Oaks W. & S. Dist.

• Decision Date: 20 February 1969
• Docket Number: No. 15342,15342
• Citation: 438 S.W.2d 941
• Parties: CITY OF HOUSTON, Appellant, v. HARRIS COUNTY EASTEX OAKS WATER AND SEWER DISTRICT et al., Appellees. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 941

438 S.W.2d 941

CITY OF HOUSTON, Appellant, v. HARRIS COUNTY EASTEX OAKS WATER AND SEWER DISTRICT et al., Appellees.

No. 15342.

Court of Civil Appeals of Texas Houston (1st Dist.).

Feb. 20, 1969.

Rehearing Denied March 27, 1969.

Wm. A. Olson, City Atty., Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellant.

Burford, Ryburn & Ford, Logan Ford, J. Dan Bohannan, Dallas, Harold B. Mills, Houston, for appellees.

On Motion for Rehearing

PEDEN, Justice.

Appellant's motion for rehearing is granted. Our opinion of November 21, 1968 is withdrawn and the following is substituted for it:

The City of Houston has perfected this appeal from an order permanently enjoining it from proceeding further under its Ordinance No. 67-262 with annexation of an area described in the ordinance as Portion No. 1 (consisting of 2.119 square miles located between the Cities of Houston and Humble), from levying taxes and from acquiring by annexation the properties and assets of the Harris County Eastex Oaks Water and Sewer District. Trial was to a jury, but when the parties had completed their presentation of evidence neither party submitted any jury issues and the trial court granted appellees' motion for instructed verdict. Sixty residents of Portion No. 1 joined the Water and Sewer District as parties plaintiff. We will refer to the plaintiffs-appellees as Eastex and to the City of Houston as Houston. The City of Humble was joined as a party defendant by Eastex but was dismissed by the trial court and is not involved in this appeal.

In its petition Eastex attacked the validity of Ordinance 67-262 on several bases but has not abandoned all of them but one: that the are which Houston seeks to annex by such ordinance is not adjacent and contiguous to Houston's lawful boundaries because certain 1965 annexation ordinances are void and it was by such void ordinances that Houston purports to have annexed the only areas which would connect Houston to the territory covered by the inchoate ordinance. The 1965 ordinances of which Eastex complains consist of Ordinance No. 65-1562 (which we will refer to as the Notice Ordinance) and Ordinances No. 65-1556 AR and No. 65-1556 BR (which we will refer to as the Annexation Ordinances).

It is uncontroverted that if such 1965 annexation is void then the land sought to be annexed in 1967 by Ordinance 67-262 would not be contiguous to Houston, so it would not meet the contiguity requirements of Article 970a, Vernon's Texas Civil Statutes, the Municipal Annexation Act. Eastex asserts that the 1965 Notice Ordinance and Annexation Ordinances were void because 1) Houston attempted to annex areas already within the corporate limits of the City of Humble, 2) Houston attempted to annex part of the extraterritorial jurisdiction of the City of Humble, 3) there is no ascertainable area encompassed within either the Notice Ordinance or the Annexation Ordinances because of defects, gaps, hiatuses and omissions in the metes and bounds descriptions contained in each of these ordinances, 4) there are discrepancies between the territory purportedly included within the Notice Ordinance and that attempted to be included within the Annexation Ordinances and 5) Houston failed to comply with the notice requirements of Art. 970a, Sec. 6, V.A.C.S.

This suit constitutes a collateral attack on 1967 Annexation Ordinance 67-262 by means of a collateral attack on the 1965 ordinances; it is not in the nature of a quo warranto proceeding and the State is not a party. Houston has shown that since the 1965 ordinances were enacted it has exercised dominion over the territories annexed (or sought to be annexed) and asserts that this was such de facto dominion as constituted color of law.

The Texas Supreme Court stated in Deacon v. City of Euless, 405 S.W.2d 59 (1966): 'A taxpayer may maintain a suit challenging the validity of ordinances which are utterly void because not authorized by law or color of law.' And the corollary to that principle of law is: unless the act of extension or annexation is wholly beyond the powers of the municipality, annexation may be challenged only by a direct suit in the nature of a quo warranto or in a proceeding to which the state is a party. 39 Tex.Jur. 23 435, Municipal Corporations, § 83, citing many Texas cases. In the event annexation proceedings taken by a city were not void but were only an irregular exercise of power, they are not subject to a collateral attack by private citizens. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134 (1948), citing Kuhn v. City of Yoakum, 6 S.W.2d 91 (Tex.Com.App., 1928).

Texas courts have held municipal annexation ordinances to be void and not merely voidable on several different grounds. In Deacon v. City of Euless, supra, it was stated that if the territories sought to be annexed by the ordinances exceed the ten per cent area limitation fixed by Sec. 7B of Art. 970a, the ordinances are void by the very terms of the statute.

A suit which challenges an annexation because 1) the ordinance attempts to annex territory within the corporate limits of another municipal corporation and 2) it attempts to annex property not adjacent to its city limits, is a suit that alleges facts which, if proved, would demonstrate that the ordinance is void ab initio and not merely voidable for irregularities, and such suit may be brought in the nature of a collateral attack rather than through quo warranto proceedings. City of Irving v. Callaway, 363 S.W.2d 832 (Dallas, Tex.Civ.App., 1962, writ ref., n. r. e.), citing many cases.

A city annexation ordinance containing a description under which it is impossible to close the boundary of the territory to be annexed is void. State ex rel. Rose v. City of La Porte, 386 S.W.2d 782 (Tex.Sup.1965).

We will look to the Notice Ordinance to determine whether it was void. The notice required by Sec. 6 of Article 970a is a prerequisite to annexation. It states:

'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. Additional notice by certified mail should be given to railroad companies then serving the city and on the city's tax roll where the right-of-way thereof is included in the territory to be annexed. Annexation of territory by a city shall be brought to completion within ninety (90) days of the date on which the governing body of such city institutes annexation proceedings or be null and void. Provided, however, any period of time during which a city is restrained or enjoined from annexing any such territory by a court of competent jurisdiction shall not be computed in such 90-day limitation period.'

Eastex has shown that there were defects in the Notice Ordinances, which was passed on August 18, 1965, was duly published on August 21 of that year and gave notice of a public hearing to be held on September 1. Its description of territories to be annexed engulfs and thus includes both the City of Humble and what has been stipulated to have been its extraterritorial jurisdiction of one-half mile beyond Humble's corporate limits unless such areas are carved out of the territory described in the Notice Ordinance by its savings clause. Such clause, which appears after the boundary description, states: 'SAVE and except the City of Humble, Texas as shown on official maps and ordinances of official record at the Harris County Courthouse.' The uncontroverted evidence showed that the City of Humble contained a number of areas duly annexed from time to time, only about half of which were shown on official maps and ordinances of official record at the Harris County Courthouse.

Thus we note that in effect notice was given that the areas proposed to be annexed by Houston included several areas within Humble's corporate limits not so recorded in the Courthouse plus Humble's extraterritorial jurisdiction as provided by Article 970a. It is also noted that all of Humble's one-half mile extraterritorial jurisdiction was overlapped by the five mile extraterritorial jurisdiction awarded to Houston by Article 970a. Sec. 3B of that article states that the extraterritorial jurisdiction of a city shall not be reduced without the written consent of the governing body of such city except in cases of judicial apportionment of overlapping extraterritorial jurisdictions. There had been no judicial apportionment and written consent was not obtained from the governing body of Humble until the two cities agreed in writing to divide their overlapping extraterritorial jurisdiction in November, 1967, If the defect under examination had been in the Annexation Ordinances instead of the Notice Ordinance, such Annexation Ordinances would have been void when enacted, and the later release of some of the overlapped areas by Humble would not operate to revive such ordinances. State ex rel. City of Everman v. City of Fort Worth, 363 S.W.2d 500 (Fort Worth, Tex.Civ.App., 1962, writ ref., n. r. e.). And if the notice was held to be void because it included overlapped areas, the same principle would seem to apply and the 1967 agreement would not breathe life into the 1965 annexation.

As to defects in the description of the boundaries of the area to be annexed, the Notice Ordinance contained several:

1. The first call states: 'Beginning at a point, the intersection of the northerly line of the William Whitlock Survey A-85 and a Sinclair (2" - 12"), U. Gas pipeline northeasterly and northwesterly along said Sinclair pipeline to the center line of...