Fuller Springs v. State ex rel. City of Lufkin

• Decision Date: 17 July 1974
• Docket Number: No. B--4483,B--4483
• Citation: 513 S.W.2d 17
• Parties: FULLER SPRINGS, Petitioner, v. STATE of Texas ex rel. CITY OF LUFKIN, Respondent.
• Court: Texas Supreme Court

Page 17

513 S.W.2d 17

FULLER SPRINGS, Petitioner, v. STATE of Texas ex rel. CITY OF LUFKIN, Respondent.

No. B--4483.

Supreme Court of Texas.

July 17, 1974.

Rehearing Denied Sept. 24, 1974.

William Drew Perkins, Lufkin, for petitioner.

Robert L. Flournoy, Lufkin, for respondent.

STEAKLEY, Justice.

This is a proceeding in quo warranto filed by the State of Texas by and through the District Attorney of Angelina County upon the relation of the City of Lufkin seeking to have the incorporation of the town of Fuller Springs declared void on the ground that Lufkin had previously obtained extraterritorial jurisdiction over the land in question. See Art. 970a, Sec. 3, subd. A(2). ¹ Trial was originally to the jury; after hearing evidence, the trial court withdrew the case from the jury and rendered judgment for the State of Texas ex rel City of Lufkin. The Court of Civil Appeals affirmed with a divided court. 503 S.W.2d 351. We reverse and render.

The facts and sequence of events are not in dispute. On August 17, 1971, the City Commissioners of Lufkin authorized, on the oral motion of the City Manager, preparation of a proposed annexation ordinance and publication of notice of a hearing thereon. See Art. 970a, Sec. 6. Accordingly, notice of the hearing on the proposed annexation was published in the local newspaper on August 27, 1971. Three days later, on August 30, citizens of the Fuller Springs area filed a petition for incorporation with the County Judge pursuant to Art. 1133, et seq, and the election for the proposed incorporation was set for September 14. On September 7, the hearing on Lufkin's proposed annexation ordinance No. 1479 was held and on this same day the ordinance was passed on the first reading. The Fuller Springs election was held on September 14, and incorporation of the area was approved.

The territory sought to be annexed by the Lufkin ordinance would bring a portion of the land incorporated by Fuller Springs within the extraterritorial jurisdiction of Lufkin and hence, if valid, would preclude the Fuller Springs incorporation. So it was, as later noticed in more detail, that the State ex rel City of Lufkin rested its right to relief in quo warranto upon the alleged validity of the Lufkin annexation ordinance No. 1479.

We are met at the outset, then, with the fact that the Lufkin ordinance was passed on the same day of the requisite public hearing and hence the annexation proceedings instituted thereby were not in compliance with Art. 970a, Sec. 6. ² We held in City of Duncanville v. City of Woodland Hills, 484 S.W.2d 111 (Tex.Civ.App. writ ref'd n.r.e.), 489 S.W.2d 557 (Tex.1972), that full compliance with the statutory requirements of notice and hearing is necessary to the validity of an annexation ordinance, and that an ordinance is invalid when the annexation proceedings are commenced less than ten days after the public hearing.

Notwithstanding, the trial court declared the Lufkin ordinance valid and decreed the Fuller Springs incorporation to be illegal and void, presumably in the conclusion that Lufkin had previously established its jurisdiction over a portion of the area incorporated by Fuller Springs.

While recognizing the invalidity of the Lufkin ordinance under Duncanville, the majority of the intermediate court was of the view that this question was not before the trial court and was not litigated. The majority appears to have been of the view that the validity of the Lufkin ordinance could not be put in issue by Fuller Springs except by the filing of a cross action in the nature of a proceeding in quo warranto. We disagree. In the first place, it is the recognized view that quo warranto proceedings are those through which the State acts to protect itself and the good of the public generally, through the duly chosen agents of the State who have full control of the proceeding. See Staples v. State, 112 Tex. 61, 245 S.W. 639 (1922); State ex rel Candler v. Court of Civil Appeals, Fourth Supreme Judicial Dist.,123 Tex. 549, 75 S.W.2d 253 (1934). The State is the real prosecutor of such a suit. Ellis v. State, 383 S.W.2d 635 (Tex.Civ.App. 1964, no writ). Fuller Springs was thus foreclosed from seeking relief in quo warranto by cross action since the State itself brought the proceeding in question. Apart from this, however, the right to the relief sought by the State ex rel. Lufkin rested altogether on Lufkin's ordinance No. 1479 ³ and it was the burden of the State to establish its validity. Lufkin could not acquire jurisdiction over the area in question, as it asserted, except by a valid and effective annexation proceeding.

The general denial filed by Fuller Springs to the pleadings of the State ex rel Lufkin was not an attack on the ordinance but served to join issue on its...