Jimenez v. City of Aransas Pass
| Decision Date | 13 December 2018 |
| Docket Number | NUMBER 13-17-00514-CV |
| Parties | DANIEL JIMENEZ AND PAUL HARRISON, Appellants, v. CITY OF ARANSAS PASS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 343rd District Court of San Patricio County, Texas.
Before Justices Rodriguez, Contreras, and Benavides
By three issues, appellants Daniel Jimenez and Paul Harrison appeal a summary judgment granted in favor of appellee, the City of Aransas Pass ("the City"). We affirm in part and reverse and remand in part.
We draw our recitation of the background facts from the summary judgment record. On September 8, 2015, the Aransas Pass City Council announced plans to annex a neighborhood in San Patricio County. It passed a resolution arranging for a service plan and public hearings concerning the annexation, both of which are steps in the annexation process.
Appellants owned property in the neighborhood, and they opposed annexation. On December 28, 2015, they filed this suit seeking a temporary restraining order and an injunction to prevent the City from annexing the land. The trial court denied appellants the relief they sought, and the city council passed an ordinance annexing the neighborhood on January 4, 2016.
On that same day, appellants filed their first supplemental petition adding new claims to their suit. Among other things, appellants sought a declaratory judgment that the annexation was void because the City failed to comply with two requirements set out in the annexation statute.
The City filed a motion for summary judgment arguing that it had complied with the annexation statute and that, even assuming it had not complied, appellants had no standing to complain of mere procedural violations of the statute.
Following the City's motion, Gail Degrange intervened in the suit and filed multiple claims against the City. Also, appellants filed a second supplemental petition adding multiple new claims. The City did not subsequently amend its motion for summary judgment to address these new claims. Nonetheless, the trial court granted summary judgment against all claims filed by Degrange and appellants. Only appellants have appealed.
To begin, we address appellants' second and third issues, in which they argue that the City made errors during the annexation process which render the annexation void. Appellants allege that the City failed to comply with two requirements in the annexation statute: (1) the requirement to establish a three-year annexation plan and (2) the requirement to complete the annexation proceedings within ninety days after they are instituted. They argue that because the City failed to comply with these requirements, the trial court erred in summarily disposing of their claim for a declaration that the annexation is void.
We review the trial court's granting of a traditional motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). To prevail on a traditional summary-judgment motion, a movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
Appellants complain that the City failed to establish and adhere to a three-year annexation plan and argue that this failure renders the annexation wholly void. Statutory annexation procedures generally require municipalities to prepare annexation plans specifically identifying areas to be annexed beginning on the third anniversary of the date the plan is adopted or amended. City of Rockwall v. Hughes, 246 S.W.3d 621, 623 (Tex. 2008) (citing TEX. LOC. GOV'T CODE ANN. § 43.052(c)).
The City argues that even assuming the three-year plan requirement applies, the City's failure to establish a three-year plan is a procedural defect that does not render the annexation ordinance void, but only voidable. The City contends that because the annexation is not wholly void, appellants have no standing to challenge the procedural error. We agree with the City.
A quo warranto suit by the State on behalf of its citizens is the only proper method to challenge procedural defects in an annexation. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex. 1991); Isabel v. Pinnell, 207 S.W.3d 394, 408 (Tex. App.—Corpus Christi 2006, no pet.). Through quo warranto proceedings, "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." Alexander Oil, 825 S.W.2d at 437. This procedure avoids the specter of numerous successive suits by private parties attacking the validity of annexations. Id.
However, a citizen may have standing to bring a private challenge where an annexation ordinance is wholly void.1 Id. at 436; Pinnell, 207 S.W.3d at 408. Procedural irregularities in the exercise of a city's annexation power may render the annexation voidable, but not void. See Alexander Oil, 825 S.W.2d at 439; City of San Antonio v. Hardee, 70 S.W.3d 207, 211 (Tex. App.—San Antonio 2001, no pet.).
Courts have consistently held that the failure to develop and adhere to a three-year plan is a procedural requirement, and that failure to comply with it renders anannexation voidable only. Werthmann v. City of Fort Worth, 121 S.W.3d 803, 807 (Tex. App.—Fort Worth 2003, no pet.); City of Balch Springs, Tex. v. Lucas, 101 S.W.3d 116, 121-22 (Tex. App.—Dallas 2002, no pet.); Hardee, 70 S.W.3d at 212; see also Round Rock Life Connection Church, Inc. v. City of Round Rock, No. 03-09-00523-CV, 2011 WL 589832, at *4 (Tex. App.—Austin Feb. 18, 2011, pet. denied) (mem. op.). The three-year plan requirement exists "to give the public better notice of proposed city growth and services," Hardee, 70 S.W.3d at 212, and under controlling precedent, deficient notice is a procedural defect that does not render an annexation void. See Alexander Oil, 825 S.W.2d at 438-39; Pinnell, 207 S.W.3d at 408.
Because the complained-of defects would not render the annexation void, appellants have no standing to challenge these procedural defects through this private suit. See Alexander Oil, 825 S.W.2d at 436. The sole available means to attack these deficiencies is a quo warranto action brought by the State. See Lucas, 101 S.W.3d at 122.
Appellants next complain that the City failed to complete the annexation proceedings within ninety days after they were "instituted," as required by local government code section 43.064. See TEX. LOC. GOV'T CODE ANN. § 43.064 (West, Westlaw through 2017 1st C.S.). Section 43.064 provides that the annexation of an area must be completed within ninety days after the date the governing body "institutes the annexation proceedings," else those proceedings are void. Id.; Hughes, 246 S.W.3d at 624; see City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27 (Tex. 2003).
Appellants contend that the City "instituted" annexation proceedings on September 8, 2015, when the city council instructed its staff to prepare an annexation service plan and publish notices of public hearings. See TEX. LOC. GOV'T CODE ANN. §§ 43.056(a), 43.0561(c), 43.063(c), 43.065(a) (West, Westlaw through 2017 1st C.S.). Appellants contend that because the annexation proceedings were "instituted" on September 8, 2015, those proceedings had to be completed within ninety days, on or before December 7, 2015. See id. § 43.064. It is undisputed that the annexation was not completed until January 4, 2016.
The City counters that appellants have fundamentally misconstrued what it means to "institute" an annexation proceeding and that annexation proceedings are not "instituted" when a municipality first begins to make arrangements for the notice of public hearing, as appellants contend. We agree with the City.
The annexation statute shows that "institution" does not occur until after two public hearings have occurred. Subchapters 43C and 43C-1 provide that before a municipality "may institute annexation proceedings, the governing body of the municipality must conduct two public hearings . . . ." Id. §§ 43.0561(a), 43.063(a). Since annexation proceedings may not be instituted until after the public hearings are held, it is an impossibility that the city council's September 8 instruction to schedule those hearings could constitute "institution" of annexation proceedings.
Rather, precedent makes clear that annexation proceedings are generally "instituted" by the passage of an annexation ordinance—either on first reading2 orotherwise. In City of Duncanville v. City of Woodland Hills, a city passed an ordinance attempting to annex an area, and our supreme court held that this "event constitutes the institution of annexation proceedings as contemplated in" the annexation statute. 489 S.W.2d 557, 558 (Tex. 1972) (per curiam), overruled on other grounds by Alexander Oil, 825 S.W.2d 434. Intermediate Texas courts have reached the same conclusion concerning what institutes annexation proceedings. See City of San Antonio v. City of Boerne, 61 S.W.3d 571, 574 (Tex. App.—San Antonio 2001) (op. on reh'g) ("The passage of annexation ordinances on first reading effectively institutes the act of annexation."), rev'd on other grounds, 111 S.W.3d 22 (Tex. 2003); Red Bird Vill. v. State ex rel. City of Duncanville, 385 S.W.2d 548, 549-50 (Tex. Civ. App.—Dallas 1964, writ ref'd) ().
In City of Houston v. Savely, the court extended the logic of this rule to its natural conclusion: it rejected the contention that annexation proceedings were instituted by the posting of notice for public hearings. 708 S.W.2d 879, 889 (Tex. App.—Houston [1st Dist.] 1986, writ...
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