City of Pasadena v. State ex rel. City of Houston

Decision Date04 June 1969
Docket NumberNo. B--1013,B--1013
Citation442 S.W.2d 325
PartiesCITY OF PASADENA, Petitioner, v. The STATE of Texas ex rel. CITY OF HOUSTON et al., Respondents.
CourtTexas Supreme Court

Charles A. Easterling, Houston, for petitioner.

Joe G. Resweber, County Atty., Billy R. Kerr, Asst. City Atty., Sears & Burns, Will Sears, Frank L. Heard, Jr., Houston, for respondents.

POPE, Justice.

Houston's motion for rehearing is granted. We withdraw our original opinion and substitute this one for it.

The State of Texas, upon the relation of the City of Houston and others, instituted this quo warranto action to oust the City of Pasadena from certain territory which both cities claim they have annexed. Houston contends that it enacted an ordinance in 1963 and a group of other ordinances in 1965 which were earlier in time than Pasadena's 1965 annexation ordinances. Houston says that their annexation ordinances rendered the lands involved in the Pasadena ordinances nonadjacent to Pasadena. Pasadena asserts that all of the Houston ordinances are void. Both petitioner and respondents moved for summary judgment. The trial court rendered a summary judgment for Houston, sustaining the Houston ordinances and holding void the Pasadena ordinances. The court of civil appeals affirmed in part but severed the issues as to certain 1965 Houston ordinances, and ordered a dismissal of those issues. 428 S.W.2d 388. We reverse the judgments of both courts and remand the cause to the trial court. We shall discuss the validity of (1) Houston's 1962 annexation ordinances, (2) Houston's 1965 annexation ordinances, and (3) Pasadena's 1965 annexation ordinances.

During 1960 Houston and Pasadena were both enacting ordinances which sought the annexation of overlapping territory. The area involved is generally southeast of Houston and south of Pasadena. In June of 1962 the two cities resolved their differences by an agreed judgment. The judgment recognized Pasadena's annexation of the territory which was adjacent to and north of the Genoa-Red Bluff Road. The judgment also declared that Houston, by its 1960 Ordinance 60--989, 1 had effectively pre-empted and had exclusive annexation jurisdiction over all unannexed territory in Harris County at the time of the judgment. Ordinance 60--989 was an annexation ordinance which was designed to annex the whole of Harris County which was not then included in some other municipality. The ordinance, at the time of the judgment, had passed only on first reading.

The 1962 Houston Ordinance (62--1766)

On December 5, 1962, after the agreed judgment was entered, Houston passed Ordinance 62--1766 on first reading and finally passed the ordinance on January 6, 1963. By force of Ordinance 60--989 and the agreed judgment, Houston then had the exclusive jurisdiction to annex the territory described in its ordinance. Our only question is whether Houston validly exercised the power which the judgment preserved to it. Pasadena attacked the validity of the 1962 ordinance because it annexed territory which was not 'lying adjacent to said city * * *.' as required by Section 2, Article 1175, Vernon's Ann.Tex.Civ.Stats. The courts below have rejected this contention and have upheld the validity of the ordinance.

The property described in Ordinance 62--1766 was a long meandering strip of land which was ten feet wide. Commencing at Point A, which we have designated on the accompanying illustrative drawing, the strip touches ten feet of the Houston boundary and then extends in an easterly direction along and adjacent to the southern boundary of Pasadena for about five miles to Point B. It proceeds on to the east to Galveston Bay (Point C). At Point D the strip proceeds west and southwesterly to and along a portion of the city limits of the City of Webster, thence generally northwesterly along Clear Creek to Point E where the strip again opens upon the boundary of Houston for a distance of ten feet. This thread of land extends from Point A to B, C, D, and E for a distance of more than fifty miles, but the ten-foot strip embraces only 97.3 acres of annexed lands. Pasadena says that this 'filament' of land 'lassoes' a vast body of 44,637 acres of unannexed land. The encircled body of land stretches for a distance of seventeen miles from West to east and a distance of ten miles from north to south.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Pasadena argues that the strip of land touches Houston only at its two openings (Points A and E) for a total distance of twenty feet. Houston says that the strip is adjacent over its entire length since the 1962 agreed judgment accorded Houston exclusive annexation jurisdiction to the whole of the territory, including that which was encircled. We do not agree with Houston's contention. A city's jurisdiction or exclusive power to annex is not the equivalent of annexation. The agreed judgment was not, itself, an annexation ordinance and did not extend the boundaries of Houston. The judgment recognized that Houston's Ordinance 60--989, which was a true annexation ordinance, but which was never finally enacted, was effective to accord Houston exclusive jurisdiction to annex by appropriate ordinances. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134 (1948). The judgment did not purport to excuse Houston from complying with the requirements set by the law for effecting a valid annexation. If the judgment had done so, there would have been no occasion for Houston's annexation of the ten-foot strip; it would already have been within the Houston city limits.

We conclude, therefore, that Ordinance 62--1766 was enacted at a time when Houston had exclusive annexation jurisdiction over the strip taken as well as the large body of land which it encircled. We conclude that none of the area over which Houston had annexation jurisdiction, had actually been annexed at the time it passed the ordinance. Whether or not the ten-foot strip was annexed to Houston depends upon the validity of Ordinance 62--1766. More particularly the question is whether the strip was 'lying adjacent to said city,' because it touched Houston at both ends of the strip. City of Irving v. Callaway, 363 S.W.2d 832 (Tex.Civ.App.1952, writ ref. n.r.e.); 62 C.J.S. Municipal Corporations § 72.

In City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.Sup.1964), we held that adjacency was a law question. We held also that a finger of land which extended easterly from the eastern city limits of Irving, which body of land was surrounded on the north, east and south sides by the City of Dallas, was not adjacent to Irving. There are some factual differences between that case and this one, but we regard this case as one which presents a greater degree of non-adjacency than existed in City of Irving. From Point A to Point B on the map, the strip touches Houston for a distance of ten feet; it disproportionately touches Pasadena for a distance of five miles. We repeat our holding in State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957) that the Legislature used the word 'adjacent' in the sense of being 'contiguous' and 'in the neighborhood of or in the vicinity of' a municipality. In City of Irving, supra, we stated an illustration of non-adjacency:

'* * * 'Adjacency,' as between two Home Rule cities, must be tested by the facts in each case. By way of example, a 100-acre tract of land lying on the northern boundary line of the City of San Antonio is adjacent to that city but is not adjacent to Austin some 75 miles distant, although, conceivably, the 100-acre tract could be encompassed in lines drawn around a thin sliver or finger of unincorporated territory adjoining the southern boundary of Austin and running the full length of the 75 miles to the northern boundary of San Antonio.'

The ten-foot strip is not adjacent to Houston.

The 1965 Houston Ordinances

Houston also says it was entitled to a summary judgment because it enacted a number of annexation ordinances during 1965 which were prior in time to those enacted by Pasadena. Those ordinances, Houston argues, rendered the later Pasadena ordinances invalid since the Pasadena ordinances described lands which were not adjacent to Pasadena. The lands which Houston's 1965 ordinances purported to annex are indicated on the map by the shaded area. Pasadena, on the other hand, says that it is entitled to a summary judgment because Houston's 1965 ordinances are also void for non-compliance with the notice requirements of the Article 970a Municipal Annexation Act. Neither Houston nor Pasadena proved a right to a summary judgment.

On August 18, 1965, Houston, having doubts about the constitutionality of the Municipal Annexation Act, commenced annexation proceedings in two separate ways. It proceeded under the provisions of its charter and Article 1175 and independently of the Municipal Annexation Act, and accordingly passed Ordinances 65--1555A and 65--1555AR on first reading on August 17, 1965. It then passed Ordinance 65--1555AR on final reading on November 16, 1965. On August 18, 1965, Houston also passed its Ordinance 65--1561 by which it undertook to comply with the Municipal Annexation Act. On September 21, 1965, Houston passed Ordinance 65--1555BR on first reading and finally passed it on November 16, 1965.

After the 1962 agreed judgment, the 58th Legislature enacted the Municipal Annexation Act. The Act was a comprehensive statute which was designed to regulate all phases of municipal annexation and to avoid such conflicts between cities over unannexed territory as is evidenced by the history of the conflicts between...

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