City of Orange v. State ex rel. City of Port Arthur, 7135

• Decision Date: 05 February 1970
• Docket Number: No. 7135,7135
• Citation: 450 S.W.2d 722
• Parties: CITY OF ORANGE et al., Appellants, v. STATE of Texas ex rel. CITY OF PORT ARTHUR, Appellees.
• Court: Texas Court of Appeals

Page 722

450 S.W.2d 722

CITY OF ORANGE et al., Appellants, v. STATE of Texas ex rel. CITY OF PORT ARTHUR, Appellees.

No. 7135.

Court of Civil Appeals of Texas Beaumont.

Feb. 5, 1970.

Rehearing Denied Feb. 26, 1970.

Davit A. Dunn, City Atty., Orange, Head & Kendrick, Corpus Christi, for appellants.

Black & Black, Port Arthur, W. C. Lindsey, Jr., Dist. Atty., Beaumont, George Wikoff, City Atty., Port Arthur, for appellees.

PER CURIAM.

This is an appeal from an order sustaining a motion to strike a plea of privilege. The appellants are the City of Orange, a municipal corporation domiciled in Orange County and its mayor and city councilmen sued in their official capacities (hereinafter called 'Orange'). Because of the involved nature of the proceedings, a rather detailed statement of the facts underlying the controversy must be set out.

CHRONOLOGY

On June 9, 1961, the State of Texas, by and through the Acting Criminal District Attorney of Jefferson County, Texas, upon relation of Orange, presented its original information in the nature of quo warranto challenging the validity of an annexation ordinance of the City of Port Neches, a municipal corporation domiciled in Jefferson County (hereinafter called 'Port Neches'). This was Cause No. B--77678 upon the docket of the 60th District Court of Jefferson County, Texas. The trial judge granted leave to file the information.

In this suit the Relator, Orange, alleged that Port Neches had adopted on first reading on May 16, 1961, a certain ordinance purporting to annex territory to Port Neches which included territory previously annexed to Orange by its ordinance adopted on August 9, 1960.

In due time, Port Neches answered with a plea in abatement contending in effect that the City of Port Arthur, also a municipal corporation domiciled in Jefferson County, Texas (hereinafter called 'Port Arthur') was an indispensable party since it, too, was claiming a part of the territory described in both the Orange and Port Neches Ordinances to be a part of the City of Port Arthur. Subject to the plea, Port Neches contended that its ordinance of May 16, 1961 was valid and that of Orange was invalid. The plea in abatement was not acted upon.

Shortly after the institution of Cause No. B--77678 by the State on relation of Orange, another suit was filed by the State of Texas against Port Neches, this time upon relation of Port Arthur. In this second suit, No. B--77690, as reflected in an agreed order found in our record applicable to both causes, the contention was made that the Port Neches Ordinance involved in Both suits conflicted with Port Arthur Ordinances Nos. 324, 1962, and 2540. The pleadings in this cause are not in our record.

On August 31, 1961, an agreed order was entered in both of the pending suits wherein it was stipulated, with the approval of the court, that none of the respective cities would take further action upon their respective ordinances pending a final determination of the two suits. The ordinances mentioned were as follows: Orange Ordinances dated August 9, 1960 and May 18, 1961; Port Neches Ordinance dated May 16, 1961; and Port Arthur Ordinances Nos. 324, 1962 and 2540. Counsel for each of the three cities approved the entry of the joint order.

Thereafter, on October 31, 1962, a final judgment was entered in the Port Arthur-Port Neches suit (No. B--77690) without any record showing of a participation therein by Orange. This judgment upheld the validity of Port Arthur's Ordinances as against Port Neches save as to certain specific areas which were apparently not within the area claimed by the Orange Ordinances to be within that city. There are, however, two significant adjudications in this final judgment: (1) Port Arthur's Ordinance No. 324, except as to the specific territory carved out in favor of Port Neches, was declared to be valid and vested exclusive jurisdiction over the territory remaining therein in Port Arthur 'to the exclusion of all other municipal authorities in the State of Texas;' and (2) the Port Neches Ordinance passed on first reading on May 16, 1961 'is null and void, and of no force and effect.' This judgment was approved by counsel for the respective cities of Port Neches and Port Arthur And the Criminal District Attorney of Jefferson County, Texas, appearing on behalf of the State.

Immediately thereafter, the prior order of August 31, 1960, maintaining the status quo in both of the suits was 'dissolved insofar as it pertains to the territory involved in the aforementioned controversy between the City of Port Arthur and the City of Port Neches, but is continued in full force and effect insofar as it relates to the territory involved in the controversy between the City of Orange and the City of Port Neches.' Again, we note that Orange did not appear to have been advised or consulted about the entry of this order.

Our record does not show that any action was taken in the original suit between Orange and Port Neches (No. B--77678) until June 17, 1969, when the State of Texas, acting by and through the Criminal District Attorney of Jefferson County, Texas, upon the relation of Port Arthur, presented to the judge of the 60th District Court of Jefferson County (where Cause No. B--77678 was then pending) a motion for leave to file 'an original information in intervention attached hereto in the nature of a quo warranto and requests leave to file the same against the Respondent, City of Orange (originally, Relator), upon the grounds, etc. * * *' Leave was granted, ex parte insofar as our record shows, and the information in intervention was filed in Cause No. B--77678. This suit named as respondents not only Orange, but also its mayor and city councilmen, in their respective official capacities. We note that the individual officials of Orange were not parties to the proceeding prior to the filing of the intervention.

In due time, Orange and its officials filed a plea of privilege in proper form to be sued in Orange County, the domicile of the City of Orange and the legal residence of its officials. Likewise, in due time, the State of Texas, acting by the Criminal District Attorney of Jefferson County, and Port Arthur filed what it denominated a controverting plea, but which was, in reality, a motion to strike the plea of privilege filed by Orange and its officials. Following a hearing upon the motion to strike the plea of privilege, the court entered an order sustaining the motion to strike and ordered that the plea of privilege be stricken.

In the meanwhile, following the filing of the plea of privilege and before the hearing on the motion to strike the plea, Port Neches filed an amended answer and cross-action in No. B--77678, contending that the Orange Ordinances of August 9, 1960 and May 18, 1961 (the very ordinances put in issue by Orange's original suit and the same ones attacked by Port Arthur's intervention) were void and of no effect. Port Neches sought in its cross-action a declaratory judgment that the two Orange Ordinances were invalid and that Port Neches had exclusive extraterritorial jurisdiction for a distance of one mile from its corporate boundary along the south bank of the Neches River in accordance with Article 970a, Sec. 3, subd. A(2), Vernon's Ann.Tex.Civ.St., enacted long after the original litigation was commenced in 1961.

It does not appear that Orange filed any responsive pleading to this cross-action nor does it appear that the cross-action of Port Neches precipitated any action by the court. Instead, the court entered the order striking Orange's plea of privilege, as noted above.

The respondents (City of Orange and its officials) excepted and gave notice of appeal and made a cash deposit in lieu of an appeal bond, utilizing the procedure under Rule 354.

JURISDICTIONAL QUESTIONS

There are two questions affecting our jurisdiction, one of which is raised by the parties (No. 1, discussed hereinafter) and one raised by the court upon oral submission (No. 2, infra).

No. 1: Does an appeal lie from an order of the trial court striking from the record a plea of privilege and refusing to enter an order either sustaining or overruling the plea of privilege?

No. 2: May Orange, an original Relator in a quo warranto proceeding instituted by the State, which now occupies the position of a respondent in an intervention filed by the State on relation of Port Arthur, appeal from an order striking its plea of privilege without being joined by the State in the appeal?

1. The appealable judgment question is best answered by the opinion in Gulf Refining Co. v. Needham, 233 S.W.2d 919, 922 (Eastland Civ.App., 1950, no writ), wherein the trial court dismissed the defendant's plea of privilege upon the ground that the defendant had urged the trial court to quash the citation before filing its plea of privilege. The ruling, as applicable here, was in these words:

'Although the order appealed from does not use the word 'overruled' it effectually and finally disposed of the plea of privilege and in our opinion, had the effect of overruling such plea .'

See also, Southport Petroleum Co. v. Carter, 139 Tex. 661, 165 S.W .2d 85 (1942); and Reed v. Garlington, 233 S.W.2d 185 (Eastland Civ.App., 1950, no writ). In the latter case (233 S.W.2d at 186), the court said:

'Giving effect to substance rather than form, appellant's plea of privilege was overruled because the court found he had waived the right to assert such privilege by previously answering to the merits .'

We hold that the order from which the appeal is taken is an appealable order under Article 2008, V.A.C.S.

2. Non-Joinder of the State in the Appeal: Acting under the authority conferred by Article 6253, V.A.C.S.,...