City of San Antonio v. Hardee

• Decision Date: 05 December 2001
• Docket Number: No. 04-01-00231-CV.,04-01-00231-CV.
• Citation: 70 S.W.3d 207
• Parties: CITY OF SAN ANTONIO; Tim Bannwolf, Individually and as Chairman of the Annexation Committee of the City Council of San Antonio; Mario M. Salas, Individually and as a Member of the City Council of San Antonio; and Emil R. Moncivais, Director of the Department of Planning of the City of San Antonio, Appellants, v. R. Brooks HARDEE, Trustee of the Farmco Trust; Davenport, L.L.C., General Partner of VWC, Ltd.; and Clifford E. Morton, Appellees.
• Court: Texas Court of Appeals

70 S.W.3d 207

CITY OF SAN ANTONIO; Tim Bannwolf, Individually and as Chairman of the Annexation Committee of the City Council of San Antonio; Mario M. Salas, Individually and as a Member of the City Council of San Antonio; and Emil R. Moncivais, Director of the Department of Planning of the City of San Antonio, Appellants, v. R. Brooks HARDEE, Trustee of the Farmco Trust; Davenport, L.L.C., General Partner of VWC, Ltd.; and Clifford E. Morton, Appellees.

No. 04-01-00231-CV.

Court of Appeals of Texas, San Antonio.

December 5, 2001.

Patrick C. Bernal, Susan C. Rocha, Denton, Navarro & Bernal, P.C., San Antonio, for Appellant.

David L. Earl, Earl & Brown, P.C., William W. Sommers, Kevin M. Warburton, Gardner Law Firm, San Antonio, for Appellee.

Sitting: TOM RICKHOFF, Justice CATHERINE STONE, Justice PAUL W. GREEN, Justice.

OPINION

PAUL W. GREEN, Justice.

Appellees, R. Brooks Hardee, Trustee of the Farmco Trust (Farmco Trust); Davenport, L.L.C., General Partner of VWC, Ltd. (VWC); and Clifford E. Morton (Morton), are landowners who challenge the City of San Antonio's annexation of two tracts of land. Appellants City of San Antonio; Tim Bannwolf, Individually and as Chairman of the Annexation Committee of the City Council of San Antonio; Mario M. Salas, Individually and as a Member of the City Council of San Antonio; and Emil R. Moncivais, Director of the Department of Planning of the City of San Antonio (collectively "the City"), filed a plea to the jurisdiction, asserting appellees lacked individual standing to bring their claims. The trial court denied the plea, and the City filed this interlocutory appeal pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2001). We affirm the trial court's order in part and reverse in part.

Background

Appellees Farmco Trust and Morton own tracts of land in east Bexar County (the Foster Road Property) within a larger area designated by the City, for annexation purposes, as the Foster Meadows Area. Appellee VWC owns a tract of land in west Bexar County (the Potranco Road Property) included within a larger area designated by the City as the Potranco Road/FM 1604 Area. Both designated areas were annexed effective December 31, 2000.

Appellees filed suit before the effective annexation date claiming the City failed to comply with various statutory provisions. The City argues any improprieties in the annexation process are merely procedural irregularities, which may make the annexation voidable, but not void. Further, in its plea to the jurisdiction, the City claims the appellees have no individual standing to overturn the annexation because any challenges to the validity of an annexation proceeding must be brought as a quo warranto proceeding. See Tex. Civ. Prac. & Rem.Code §§ 66.001, 66.002 (Vernon 1997). Appellees counter they have standing to pursue an individual, collateral attack on the annexation because the City acted wholly outside its authority, rendering the attempted annexation void. The trial court denied the plea to the jurisdiction without stating its reasons.¹

Appellees argue the trial court's decision was correct because: (1) the City acted outside its authority by failing to adopt a required annexation plan under Tex. Loc. Gov't Code Ann. § 43.052; (2) the City acted outside its authority because it attempted to annex areas by resolution rather than by ordinance as required by the City Charter; and (3) the annexation of the Foster Road Area is void because it was undertaken in violation of the Texas Open Meetings Act.² Appellees also argue the City is estopped to challenge standing because the City entered into an agreed temporary order pending the outcome of the lawsuit.³

Standard of Review

In reviewing the denial of the City's plea to the jurisdiction, we take the factual allegations in the appellees' trial court petition as true and construe them in favor of the appellees. City of San Augustine v. Parrish, 10 S.W.3d 734, 737 (Tex. App.-Tyler 1999, pet. dism'd w.o.j.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). If the City challenges the validity of the appellees' factual allegations, the City must plead and prove the allegations were fraudulently made to confer jurisdiction. Denton County v. Howard, 22 S.W.3d 113, 117 (Tex.App.-Fort Worth 2000, no pet.). In this case, we are concerned only with the issue of appellees' standing to bring their claims, and we may not consider the merits of the underlying issues. See Montgomery County v. Fuqua, 22 S.W.3d 662, 665 (Tex.App.-Beaumont 2000, pet. denied); Tex. Dep't of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.-Austin 1999, no pet.).

Historically, review of an individual party's standing to challenge annexation inquires whether the challenge attacks the city's authority to annex the area in question or simply complains of some violation of statutory procedure. See City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex.App.-Fort Worth 2000, no pet.). "[D]istinction should be drawn between municipal acts unauthorized by law or color of law, and those consisting of a mere irregular exercise of power." Forbes v. City of Houston, 304 S.W.2d 542, 546 (Tex. Civ.App.-Galveston 1957, writ ref'd n.r.e.). Individual landowners have been allowed to bring private causes of action challenging (1) annexation of territory exceeding the statutory municipal size limits; (2) attempts to annex areas included in the extraterritorial jurisdiction of another city; (3) attempts to annex areas not contiguous with current city limits; and (4) annexation of an area with a boundary description that does not close. Pearce, 33 S.W.3d at 417 (citing Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex. 1991)). A quo warranto suit is the proper way to challenge procedural faults such as lack of notice, adequacy of the service plan, lack of quorum for hearing, and other deficiencies in the procedure of adopting the annexation ordinance. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex.1995); Pearce, 33 S.W.3d at 417; Forbes, 304 S.W.2d at 546.

Discussion

A. Tex. Loc. Gov't Code § 43.052

"The Texas Constitution confers the power to annex territory on cities and the legislature has provided the scheme to be followed." Alexander Oil Co., 825 S.W.2d at 439 (citing Tex. Const. art XI, § 5). A city may "annex area only in its extraterritorial jurisdiction unless [it] owns the area." Tex. Loc. Gov't Code Ann. § 43.051 (Vernon 1999). There are few other limitations on the authority or power of a city to annex areas. See Alexander Oil Co., 825 S.W.2d at 438 (listing appropriate challenges to a city's power to annex); see also Tex. Loc. Gov't Code Ann. § 43.021 (Vernon 1999) (specifying the total size limit of a city area according to classification of the municipality); Tex. Loc. Gov't Code Ann. § 43.054 (Vernon 1999) (prohibiting strip annexation); Tex. Loc. Gov't Code Ann. § 43.055 (Vernon 1999) (limiting the amount of territory which may be annexed in one year). Procedural irregularities in the exercise of the city's annexation power may render the annexation voidable but do not convert the action to one outside the city's exercise of valid authority. Alexander Oil Co., 825 S.W.2d at 438.

In 1999, the Legislature adopted a new version of Texas Local Government Code section 43.052, entitled Municipal Annexation Plan Required, which reads in part as follows:

(b) A municipality may annex an area identified in the annexation plan only as provided by this section.

(c) A municipality shall prepare an annexation plan that specifically identifies annexation that may occur beginning on the third anniversary of the date the annexation plan is adopted. The municipality may amend the plan to specifically identify annexations that may occur beginning on the third anniversary of the date the plan is amended.

Tex. Loc. Gov't Code Ann. § 43.052(b)-(c) (Vernon Supp.2001). Section 17 of the enabling legislation states:

(b) Each municipality shall adopt an annexation plan as required by Section 43.052, Local Government Code, as amended by this Act, on or before December 31, 1999, that becomes effective December 31, 1999.

(c) Except as provided in Subsections (d) and (g) of this section,⁴ the changes in law made by Sections 2 through 8 and 10 through 15 of this Act apply only to an annexation included in a municipality's annexation plan prepared under Section 43.052, Local Government Code, as amended by this Act. Except as provided by Subsection (d) of this section, a municipality may continue to annex any area during the period beginning December 31, 1999, and ending December 31, 2002, under Chapter 43, Local Government Code, as it existed immediately before September 1, 1999, if the area is not included in the annexation plan, and the former law is continued in effect for that purpose.

Acts of May 30,1999, 76th Leg., R.S., ch. 1167, § 17(b)-(c), 1999 Tex. Gen. Laws 4090. (emphasis added).

Appellees argue that because the City did not adopt an annexation plan prior to December 31, 1999, the City may not continue to annex non-plan areas during the period of 12/31/99 through 12/31/02 under Section 17, Subsection (c) of the enabling legislation. Appellees contend Section 17 is a limitation on the City's authority and, consequently, failure to adopt a plan by December 31, 1999 makes the attempted annexation void.

Notice and hearing requirements are procedural limits on annexation not affecting the municipality's authority to make the annexation. Laidlaw Waste Sys., 904 S.W.2d at 658; Alexander Oil Co., 825 S.W.2d at 438. Section 43.052(b)(c) of the Texas Local Government Code is a 1999 amendment to the prior notice and hearing requirements in the annexation law.⁵ The new section 43.052 does not limit the area or type of land a city may annex; rather, it prescribes a three year planning process, presumably to give the public...