City of West Lake Hills v. State ex rel. City of Austin

• Decision Date: 28 April 1971
• Docket Number: No. B--2373,B--2373
• Citation: 466 S.W.2d 722
• Parties: The CITY OF WEST LAKE HILLS, Petitioner, v. The STATE of Texas ex rel. CITY OF AUSTIN, Respondent.
• Court: Texas Supreme Court

Page 722

466 S.W.2d 722

The CITY OF WEST LAKE HILLS, Petitioner, v. The STATE of Texas ex rel. CITY OF AUSTIN, Respondent.

No. B--2373.

Supreme Court of Texas.

April 28, 1971.

Turman & Mitchell, Austin, Graves, Dougherty, Gee, Hearon, Moody & Garwood, William L. Garwood, Austin, for petitioner.

Don R. Butler, City Atty., Ned Granger, County Atty., Ludlum, Brady & Womack, Stayton, Maloney, Black, Hearne & Babb, John W. Stayton, Austin, for respondent.

REAVLEY, Justice.

This is a quo warranto suit against the City of West Lake Hills which necessitates decisions as to its existence and boundaries. The trial court upheld the city insofar as it lay south of Bee Creek but abrogated its extensions north of that creek. The court of civil appeals held the original incorporation of West Lake Hills to be a 'sham' and annulled the city entirely. (Tex.Civ.App., 457 S.W.2d 398) We reinstate the judgment of the trial court.

West Lake Hills was incorporated under the general laws in 1953, and its original filed notes are indicated by the hatched field notes are indicated by the hatched rough sketch is made by this court solely for the purpose of illustrating the issues discussed in this opinion.) In 1954 West Lake Hills annexed a 50 vara wide strip as shown to ring the bulk of the land to its north.

Since 1929 the incorporated area of the City of Austin has included Lake Austin as it runs to the east, north, and west of the sketched territory. The trial court found 'that the area comprising several thousand acres of land lying west and northwest of Bee Creek adjacent to and bordered on the east, north and northwest by the City of Austin, is an area that but for the artificial buffer zone attempted to be created by the City of West Lake Hills would be within the immediate normal growth pattern of the City of Austin * * *'

West Lake Hills has no bonded indebtedness and collects no ad valorem taxes. Except for a few fees and fines, the finances of the city depend upon voluntary contributions. Nevertheless, municipal services have been provided, chief of which has been police protection in the persons of two fulltime marshals. Since the date of its original incorporation, West Lake Hills (in the words of the trial court) 'acting as a city, has performed governmental functions including police protection, building codes, zoning protection, health protection, subdivision control and other basic city functions.' There is no water supplied by the city, nor does it have a sewerage system.

This litigation was initiated by thirteen individuals owning land in the encircled and unincorporated area in the attempt to remove West Lake Hills' noose so that they might seek annexation and the city services of Austin. When the City of West Lake Hills moved to dismiss this action for lack of standing of the plaintiffs, the County Attorney of Travis County filed a quo warranto intervention along with its relator, the City of Austin. The quo warranto action, as defined by the pleading of the City of Austin, attacked the 'incorporated buffer zone' as invalid and sought a declaratory judgment that the territory surrounded by that 'buffer' be declared to be within the extraterritorial jurisdiction of the City of Austin. The City questioned the validity of the incorporation of West Lake Hills but did not specifically seek the demise of West Lake Hills in its prayer for relief.

A petition of the City of Austin to have the trial court apportion overlapping areas of extraterritorial jurisdiction between West Lake Hills and Austin, pursuant to Article 970a § 3, subd. B, Vernon's Anno.Tex.Civil Statutes, was severed into a separate cause to await the determination of the boundaries of West Lake Hills.

West Lake Hills contends that there was a jurisdictional bar to the appeal by plaintiffs and intervenors because of their failure to file the record with the court of civil appeals within 20 days after the final judgment as required by Rule 384, Texas Rules of Civil Procedure. The trial court entered two judgments, one on January 9, 1970 and the second on February 5, 1970. West Lake Hills cites Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (1941) for the proposition that if there is nothing to show that the first judgment was vacated, the second judgment is a nullity and the time of appeal must be measured by the date of the first one. This leaves the question of whether the second judgment shows that it is replacing the first one. It is not necessary that the second judgment expressly state that the first judgment is vacated, though this would be the preferable procedure. In Luck v. Hopkins, 92 Tex. 426, 49 S.W. 360 (1899) the later judgment 'reformed' the first judgment, and it was held that the effect was to vacate and set aside the earlier judgment.

The trial court placed this heading on its February 5 judgment: 'Corrected Final Judgment.' We construe this to be an entry of a correct judgment to replace the January 9 decree which had been headed: 'Judgment.' The corrected judgment provides for the payment of costs of court, whereas the earlier judgment was silent in that respect. Since the trial court retained jurisdiction of its judgment for 30 days, and since the record was filed with the court of civil appeals within proper time after the February 5 decree, we hold that Rule 384 was satisfied. Cf. Davila v. Caller Times Publishing Co., 308 S.W.2d 592 (Tex.Civ.App.1957, no writ).

West Lake Hills objects to the consideration of any relief sought by the individual plaintiffs on the ground that these individuals are not proper parties. The trial court and the court of civil appeals both regarded these landowners as entitled to pursue their action because West Lake Hills' buffer zone deprived them of property without due process of law. The court of civil appeals held that this constitutional bar prevented the Legislature from validating the West Lake Hills' buffer zone. We disagree.

These landowners clearly had no grievance against the original incorporation of West Lake Hills. After the annexation by West Lake Hills to complete the buffer zone and after the passage of 15 years had given some indication that if their land were annexed by the City of Austin its value would be greater, we can understand their wish to escape the noose. However, there is no evidence in this record that these individual plaintiffs have been deprived of their property, nor do we find any justiciable interest to give them standing in this litigation.

It is well established that private parties who are directly affected may collaterally attack a void incorporation or annexation. Walling v. North Central Texas Municipal Water Authority, 162 Tex. 527, 348 S.W.2d 532 (1961); City of Corsicana v. Willmann, 147 Tex. 377, 216 S.W.2d 175 (1949); Parks v. West, 102 Tex. 11, 111 S.W. 726 (1908). However, even if the municipal act is void, the private party must suffer some burden peculiar to himself to acquire standing to sue. Most commonly that special burden is the imposition of tax. Otherwise, no action lies by the individual to restrain an interference with the public interest. City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888); Franks v. Welch, 389 S.W.2d 142 (Tex.Civ.App.1965, writ ref'd n.r.e.); Cf. Scott v. Board of Adjustment, 405 S.W.2d 55 (Tex.Sup.1966).

The City of West Lake Hills has imposed no burden upon these property owners by taxation or otherwise. The evidence shows that the market value of their land is increasing. Their position is no better than that of the plaintiffs in San Antonio Conservation Society v. San Antonio, 250 S.W.2d 259 (Tex.Civ.App.1952, writ ref'd), who alleged that their property would depreciate in value as a result of the building of a proposed bridge over the San Antonio River; nor is the grievance any greater than the complaint in Harrell v. Lynch, 65 Tex. 146 (1885) where the moving of the county seat lessened the value of the plaintiffs' property.

The plaintiffs have not shown such injury as would entitle them to attack the incorporation or annexations by West Lake Hills. They are improper parties here. We regard the action purely in the nature of quo warranto within the scope of the relief sought by the State on the relation of the City of Austin.

We come to the problem with the West Lake Hills incorporation. The incorporators intended to include a ribbon of land between West Lake Drive on the west and the city limits of Austin on the east running from Bee Creek on the south to the north line of land owned by Dan Grieder. They knew that Austin had annexed Lake Austin but they did not know either the exact contour elevation or where the Austin limit line lay on the ground. They assumed that this line was at the...