Rotello v. Brazos County Water Control and Improvement Dist. No. 1
| Decision Date | 06 June 1974 |
| Docket Number | No. 16323,16323 |
| Citation | 511 S.W.2d 392 |
| Parties | Tom ROTELLO et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1 et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Sears and Burns, Robert L. Burns, Houston, for appellants.
John M. Barron, Billy M. Payne, Bryan, for appellees.
This is an appeal from a trial court's order dismissing appellants' suit without prejudice on appellee's plea to the jurisdiction.
Appellee, Brazos County Water Control & Improvement District No. 1, was created by order of the Brazos County Commissioners Court in 1957 and its creation validated by the Texas Legislature in 1959. (Acts 1959, 56th Legislature, 1st C.S., Ch. 10) In 1965 the Legislature by amendment provided for procedures excluding from the District property which would not be benefited by proposed projects. (Acts 1965, 59th Leg., Ch. 529) Under the procedures set forth in the 1965 Act and pursuant to Article 7880--76, Vernon's Ann.Civ.St., a hearing was held on September 8, 1967 to determine what land should be ordered excluded and a nunc pro tunc order of exclusion was entered on January 13, 1968. On October 17, 1967, after the hearing but prior to the entry of the order, an election was held to authorize bonds for the area still included within the District, but no sale was made of such bonds and they were cancelled. On September 24, 1968, another election was held in which the qualified resident voters owning real property within the District voted to authorize issuance of bonds.
In May, 1970, plaintiffs Rotello, Hill and Simons, claiming to be taxpayers and property owners in the District (Hill and Simons claiming also to be qualified voters in the District) filed suit seeking to have the 1965 Act and the order of exclusion declared unconstitutional and void and for injunctive relief with respect to the District's actions under the Act and the order of exclusion. Citation was issued and served upon the Attorney General but citation on the District was withheld and not served until July 17, 1973.
On February 13, 1973, prior to service on the District, the bonds which had been authorized by the election of September 24, 1968 were approved by the Attorney General and registered with the State Comptroller. Article 7880--34, V.A.C.S., in effect until the enactment of the Texas Water Code (Acts of 1971, Section 51.416, V.T.C.A.), provided that any party interested might bring suit questioning the validity of such bonds at any time prior to their registration by the State Comptroller but not thereafter.
On August 1, 1973 appellee District filed a motion to dismiss appellants' suit for want of prosecution asserting that the suit had been pending for over three years with no effort being made to prosecute. On September 12, 1973 appellants Rotello and Hill filed their first amended petition suggesting the death of the plaintiff Simons pendente lite and asserting representation of a class of resident and non-resident property owners and resident qualified voters. Appellants charged that resident qualified voters who did not own property in the District and non-resident property owners were excluded from voting in the election and that the latter would be injured by the taxes levied by the District; they asserted notices of hearing on exclusion and of the meeting of the Board at which the election was ordered were improperly given and that the Act of 1965, the election and the order of exclusion, as well as the bonds issued pursuant thereto, should be declared void.
On October 22, 1973 appellee District filed plea to the jurisdiction, asserting that appellant's petition had not been filed within thirty days after the election as required by Art. 9.03 of the Texas Election Code, V.A.T.S., and that plaintiffs' action was barred by laches and the two year statute of limitations.
On November 12, 1973 hearing was held on appellee's plea to the jurisdiction and after hearing evidence in the case the trial court found:
(a) that the bond election of September 24, 1968 was presumed to be valid and that the appellants were 'out of time' in their action not having complied with the laws of the State for revision of elections, the suit having been filed on May 18, 1970 and citation having been withheld until June 17, 1973 as to the District;
(b) that the order of exclusion was presumed valid and that the appellants were out of time for revision or cancellation of the order due to the time lapse mentioned above;
(c) that Article 6252--17, V.A.C.S., was inapplicable to the election or the order of exclusion because 'the matters' took place prior to September 1, 1967, the effective date of the public meeting laws and therefore no notices were required to be posted under that Act;
(d) That for the reasons stated in paragraph (c) above there was no merit in appellants' argument that the election of September 24, 1968 was unconstitutional.
The court ordered appellants' case dismissed without prejudice reciting that its judgment was based 'on jurisdictional grounds.'
Appellants argue that their suit was not brought as a statutory election contest but rather as a suit to enjoin the sale of bonds. They assert that their suit is a challenge of the bonds authorized under Article 7880--34, V.A.C.S., and is not an election contest. We are inclined to agree with appellants' construction. While appellants' pleading challenges the validity of the 1965 Act, the election and the order of exclusion, the basic relief sought by appellants is injunctive in nature and the primary purpose of appellants' action is to have the District's bonds declared void and to enjoin their sale. See Yoakum County Water C. & I. Dist. v. First State Bank, 449 S.W.2d 775 (Tex.Sup.1969).
Article 7880--34, V.A.C.S., expressly authorizes suit by a party interested to question the validity of bonds issued by a Water District provided it is filed prior to the registration of the bonds by the State Comptroller. The record in this case shows that the bonds were registered by the Comptroller prior to the time the District was made a party to the action by issuance and service of citation.
The record shows that plaintiffs' original petition was filed on May 18, 1970 and that the Attorney General's answer of general denial was filed on June 9, 1970; that on May 21, 1970, appellants' original counsel wrote to the District Clerk requesting that he hold citation on the District until it could be 'confirmed where it is to be served'; that on July 17, 1973 citation and service of plaintiffs' petition on the District was effected by serving William J. Terrell, a member of the District's board of directors since 1968.
The record also reflects that the bonds were approved by the Attorney General on February 12, 1973 and registered by the Comptroller of Public Accounts on February 13, 1973. This evidence was uncontroverted and received without objection.
Appellants do not apparently contend the District was not an indispensable party to their action questioning the bonds. See McDonald, Texas Civil Practice, Revised 1965, Vol. 4, § 3.16; 64 Am.Jur.2d, § 507, p. 525. See also Lockhart v. Snyder, 139 Tex. 411, 163 S.W.2d 385 (1942); Lowe v. City of Del Rio, 132 Tex. 111, 122 S.W.2d 191 (1938).
Although plaintiffs' petition was filed almost three years prior to the registration of the bonds, service of citation on the District was not sought until five months thereafter. Appellants permitted some 38 months to elapse between the time of the filing of their petition and the issuance and service of citation upon the District.
It is settled law in Texas that a plaintiff, upon filing suit, has a duty to exercise reasonable diligence in perfecting service of process and such duty is a continuing one. Selman v. Lynch, 461 S.W.2d 452 (Tex.Civ.App.--Tyler, 1972, writ ref'd n.r.e.); Buie v. Couch, 126 S.W.2d 565 (Tex.Civ.App.--Waco 1939, writ ref'd). The trial court could justifiably conclude, as a matter of law, that a delay of 38 months in securing issuance and service of citation was not the exercise of reasonable diligence. Rigo Manufacturing Co. v. Thomas, 458 S.W.2d 180 (Tex.Sup.1970); Buie v. Couch,supra. The record is devoid of any showing of justification or excuse for such delay and the burden, in this respect, rested upon appellants. Selman v. Lynch, supra, 461 S.W.2d at p. 454. The filing of appellants' original petition and service upon the Attorney General did not, in our opinion, negate the duty of appellants to exercise reasonable diligence in obtaining issuance and service of citation on the District, a primary...
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