Melton v. City of Wichita Falls

• Decision Date: 28 November 1990
• Docket Number: No. 2-89-090-CV,2-89-090-CV
• Citation: 799 S.W.2d 778
• Parties: Billy G. MELTON, Appellant, v. CITY OF WICHITA FALLS and Jerry Gross, General Manager of the Wichita Falls Water Utilities, Appellees.
• Court: Texas Court of Appeals

Page 778

799 S.W.2d 778

Billy G. MELTON, Appellant, v. CITY OF WICHITA FALLS and Jerry Gross, General Manager of the Wichita Falls Water Utilities, Appellees.

No. 2-89-090-CV.

Court of Appeals of Texas Fort Worth.

Nov. 28, 1990.

Law Offices of Ron L. Yandell and Ron L. Yandell and Suzan R. Sanders, Wichita Falls, for appellant.

H.P. Hodge, Jr., City Atty., and Bill Sullivan, Asst. City Atty., Wichita Falls, for appellees.

Before JOE SPURLOCK, II, HILL and MEYERS, JJ.

OPINION

JOE SPURLOCK, II, Justice.

This appeal is from the trial court's judgment denying Billy G. Melton, appellant, his request for city water service to his property lying outside of the city limits of the City of Wichita Falls, Texas, appellee. Melton's request for a permanent injunction to keep the city from stopping temporary service was also denied. Melton raises five points of error complaining of certain findings of fact and conclusions of law made by the trial court.

We affirm.

In his first four points of error, Melton argues that there was either insufficient or no evidence to support the trial court's findings of fact numbers eight (point of error one), seven (point of error number two), four (point of error number three), and three (point of error number four). We will discuss the evidence only as it relates to each point of error. In point of error five, Melton complains that there was no evidence to support the court's conclusion of law number two. While Jerry Gross is listed as an appellee and is a general manager of the Wichita Falls Water Utilities, in this opinion, by "appellee," we refer only to the City of Wichita Falls.

The appeal is from a judgment denying Melton a permanent injunction against the City of Wichita Falls by which he sought to establish permanent water service to his residence located outside the city limits. There had been a temporary injunction entered in his favor in November of 1988, establishing the water service at the residence located at 3101 Old Windthorst Road from a twelve inch main which belonged to the city and existed south of the city limits along that road. Water and sewer service is currently being furnished to the residence, but the city is prohibited from discontinuing such service until the appeals have been exhausted.

Melton complains of certain findings of fact made by the trial court as a result of the hearing on the request for permanent injunction. In point of error number one, Melton complains that the court had either no evidence or alternatively insufficient evidence to support its finding of fact number eight that he, Melton, was not similarly situated to other non-residents who were granted service before the adoption of the City of Wichita's resolution number 69-86. That resolution, adopted on May 20, 1986, repealed a previous resolution number 10-57 and prohibited any connections for water service outside the corporate limits of the City of Wichita Falls. Almost two years after the adoption of resolution 69-86 Melton made his request for water service from the city. He asserts that he is similarly situated to other non-residents who receive water service under the old resolution 10-57, and therefore should have been connected to water service when he applied after the new ordinance went into effect.

Under section 402.001 of the Local Government Code the powers of the city are listed in regards to the operation of the water system. These powers include specifically the power to purchase, construct or operate a utility system inside or outside the municipal boundaries and to regulate the system in a manner that protects the interest of the municipality. The city notes that the section provides the power to contract with persons outside its boundaries to permit them to connect with the utility system on terms that the municipality considers to be in its best interest. TEX.LOCAL GOV.CODE ANN. sec. 402.001 (Vernon 1988). The city argues that the evidence established that the new ordinance 69-86 as passed, approved and repealed resolution 10-57 and prohibited any new connections for water service for any persons outside the corporate limits of the town. The city argues this was the purpose of the ordinance and the major effect of its passage. The appellant's request, almost two years after passage of 69-86, was treated the same as all other requests for new service from persons similarly situated at that time. That is, no one outside the city limits not already connected to the system before the adoption of resolution 69-86 was thereafter connected to the system.

The city concludes, and, by implication, the trial court found, that the operation of ordinance 69-86 is a reasonable exercise of the express power granted to the city. The exercise of such power is legislative in nature and will not be regulated by the courts unless the exercise by the city is clearly an abuse of its power. The law presumes that city officials act within the limits of their authority, in good faith, and in the best interest of the city they serve. Kimbrough v. Walling, 371 S.W.2d 691, 692 (Tex.1963).

Testimony by the witness for the city was that the adoption of the resolution was an attempt by the city to protect the interest of the municipality by controlling improper growth on its periphery and by encouraging the development of land within its corporate limits. There was no showing of any bad faith in the adoption of the ordinance, nor any favoritism shown to any affected by it. We agree with the city that the evidence is clearly sufficient to support the trial court's finding that appellant was not similarly situated to other non-residents outside the city who made applications for water service before the adoption of the new ordinance. He was treated alike with other non-residents who applied after the ordinance went into effect. We overrule point of error one.

In his second point of error Melton complains that the city failed to demonstrate a reasonable basis to differentiate between those persons who were granted water service under the old resolution 10-57 and those who were denied water service after the adoption of resolution 69-86. In this connection he complains that there was either no evidence or in the alternative only insufficient evidence to support the court's finding of fact that a reasonable basis existed.

Melton argues that the evidence at trial showed that non-residents received water under the old resolution 10-57, if their property was contiguous to the city limits or to a city water line. The new resolution was passed to provide that no connection would be allowed outside the city limits of Wichita Falls. Melton does not argue that on its face the resolution is unreasonable in denying connection. He does not argue that the city officials acted in bad faith, or that their action in passing the ordinance was a clear abuse of their power to act. However, he argues that in practice the ordinance has been applied in an unreasonable and discriminatory fashion. To support his argument he points out that no connections existing outside the city limits were discontinued upon the passage of resolution 69-86. He argues in essence that people outside the city limits are therefore treated in an arbitrary fashion depending upon whether or not they had service by a certain date.

He additionally argues that the city did give a new water meter to an existing customer outside the city limits for a sprinkler system after the passage of resolution 69-86. Further, Jerry Gross, the Utilities Manager for the city, testified that there was no substantial difference between Melton's property on Windthorst Road and other properties on Windthorst Road which were receiving...