Ryan Services, Incorporated v. Spenrath, No. 13-08-00105-CV (Tex. App. 8/28/2008)
| Decision Date | 28 August 2008 |
| Docket Number | No. 13-08-00105-CV.,13-08-00105-CV. |
| Parties | RYAN SERVICES, INCORPORATED AND TIMOTHY RYAN, Appellants, v. PHILLIP SPENRATH, ED ERWIN, KENNY MARTIN, ROBERT BOONE, ANTHONY COLLINS, GLORIA HARRIS, CINDY CERNY, AND THE CITY OF EL CAMPO, TEXAS, Appellees. |
| Court | Texas Court of Appeals |
On Appeal from the 329th District Court of Wharton, County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and VELA.
Through a verified petition, application for temporary restraining order, and petition for writ of mandamus filed in the trial court, appellants, Ryan Services, Inc. and Timothy Ryan, sought to compel the City of El Campo to either revoke three annexation ordinances or submit them to a city-wide vote. The trial court granted a plea to the jurisdiction filed by appellees, Phillip Spenrath, Ed Erwin, Kenny Martin, Robert Boone, Anthony Collins, Gloria Harris, Cindy Cerny, and the City of El Campo, Texas, and this appeal ensued. This Court has previously considered and denied a petition for writ of mandamus concerning this case. See In re Ryan, No. 13-08-179-CV, 2008 Tex. App. LEXIS 2956, at *9 () (mem. op.).1
We affirm the order of the trial court granting the plea to the jurisdiction.
The City of El Campo, acting through its City Council, issued four annexation ordinances on December 11, 2007. On January 10, 2008, pursuant to section 7.03 of the El Campo City Charter, citizens of the City filed three petitions asking the City Council to reconsider three of the annexation ordinances and, if the City Council chose not to repeal them, to submit the ordinances to a popular referendum vote. Section 7.03 of the City Charter, entitled "Referendum," provides that:
Qualified voters of the City of El Campo may require that any ordinance or resolution passed by the City Council be submitted to the voters of the city for approval or disapproval, by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication . . . . Thereupon the City Council shall immediately reconsider such ordinance or resolution and; if it does not entirely repeal the same, shall submit it to popular vote as provided in section 6.07 of this Charter. Pending the holding of such election, such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.
Taking the position that annexation ordinances were not subject to the referendum provision of the City Charter, the City Council took no action on the three petitions.
Ryan and Ryan Services, Inc., brought suit against the City and City Council in the 329th Judicial District Court of Wharton County, Texas, seeking declaratory, injunctive, and mandamus relief. They alleged that the El Campo City Charter is valid under Texas law, the petitions regarding the ordinances complied with the City Charter, and the annexation ordinances were suspended in accordance with the Charter. In short, Ryan and Ryan Services, Inc. alleged that the referendum provision in the Charter required the City to either repeal the ordinances or call a popular election on their validity, and the ordinances were not effective unless approved by a majority of the qualified voters at an election.
The City and Council members answered this suit and filed a plea to the jurisdiction on grounds that Ryan and Ryan Services, Inc. did not have standing to bring suit and the trial court, accordingly, lacked jurisdiction. The City and Council alleged that individual property owners cannot challenge irregularities in a municipality's annexation; rather, such challenges may be brought only through a quo warranto proceeding. The trial court granted the plea and dismissed Ryan and Ryan Services, Inc.'s claims without prejudice. This appeal ensued.
Through three issues, appellants contend that: (1) the trial court erred in granting the plea to the jurisdiction regarding their request for injunctive and mandamus relief challenging the annexation petitions as void; (2) the trial court erred in granting the plea to the jurisdiction regarding their request for a declaration concerning the City Charter when that request did not directly challenge the annexation ordinances; and (3) the trial court erred in dismissing the case in its entirety instead of offering appellants the opportunity to replead because there was no incurable jurisdictional defect.
"Quo warranto proceedings are used by the State to protect itself and the good of the public through agents of the State who control the proceedings."City of Rockwall v. Hughes, 246 S.W.3d 621, 627 (Tex. 2008). The State is the proper party to bring a quo warranto action. See Tex. Civ. Prac. & Rem. Code Ann. § 66.002 (Vernon 1997);see City of Rockwall, 246 S.W.3d at 627; Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 437 (Tex. 1991). By requiring the State to bring such a proceeding, "the judgment settles the validity of the annexation on behalf of all property holders in the affected area."Alexander Oil Co., 825 S.W.2d at 437; Town of Fairview v. Lawler, 252 S.W.3d 853, 856 (Tex. App.-Dallas 2008, no pet.). The Texas Supreme Court explained the rationale for quo warranto proceedings as follows:
The only proper method for attacking the validity of a city's annexation of territory is by quo warranto proceeding, unless the annexation is wholly void. The purpose of a quo warranto proceeding is to question the right of a person or corporation, including a municipality, to exercise a public franchise or office. In this case, Alexander questions the City's annexation authority. 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." Therefore, the State must bring the action to question irregular use of the delegated annexation authority.
Furthermore, quo warranto proceedings serve another purpose. By requiring that the State bring such a proceeding, we avoid the specter of numerous successive suits by private parties attacking the validity of annexations. The judgments of suits brought by private parties are binding only on the parties thereto so conflicting results might be reached in subsequent suits by other individuals. These problems are avoided by requiring quo warranto proceedings because the judgment settles the validity of the annexation on behalf of all property holders in the affected area.
The requirement that an action seeking to set aside annexation for irregular use of power be brought as a quo warranto proceeding dates back as early as 1886. It continues to be followed today. The fact that the Legislature has reacted to other holdings regarding annexation, but has not acted to expressly provide a private action to set aside annexation in reaction to these cases, supports the position that a quo warranto proceeding is required to set aside annexation unless it is void.
Alexander Oil Co., 825 S.W.2d at 437. A private challenge of an annexation ordinance is proper only when the ordinance is void or the Legislature expressly grants a private right to challenge the annexation in some manner. City of Rockwall, 246 S.W.3d at 627; Alexander Oil Co., 825 S.W.2d at 436; Town of Fairview, 252 S.W.3d at 856.
In their first issue, appellants contend that the trial court erred in granting the plea to the jurisdiction regarding their requests for injunctive and mandamus relief challenging the annexation petitions as void. In connection with this issue, appellants assert that: (1) the ordinances are void and not merely voidable; (2) annexation ordinances are subject to a referendum petition under section 7.03 of the City Charter; and (3) the quo warranto doctrine cannot deprive Ryan of his constitutional right to vote on the ordinances. Appellants do not argue that they have been granted a private right to challenge the annexation, and accordingly, we focus our attention on their contention that the ordinances are void.
We determine whether an individual has standing to challenge an annexation by inquiring whether the challenge attacks the city's authority to annex the area in question or simply complains of some violation of statutory procedure.City of Balch Springs v. George F. Lucas Irrevocable Family Trust, 101 S.W.3d 116, 119-20 (Tex. App.-Dallas 2002, no pet.); City of San Antonio v. Hardee, 70 S.W.3d 207, 210 (Tex. App.-San Antonio 2001, no pet.); see City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417(Tex. App.-Fort Worth 2000, no pet.). Stated in other words, "[d]istinctions should be drawn between municipal acts unauthorized by law or color of law, and those consisting of a mere irregular exercise of power." Hardee, 70 S.W.3d at 210 (quoting Forbes v. City of Houston, 304 S.W.2d 542, 546 (Tex. Civ. App.-Galveston 1957, writ ref'd n.r.e.)).
Individuals have been allowed to bring private causes of action when challenging annexation of territory that (i) exceeds statutory size limitations, (ii) is within the corporate limits of another municipality, (iii) is not contiguous with current city limits, and (iv) has a boundary description that does not close. See Alexander Oil Co., 825 S.W.2d at 437;City of Balch Springs, 101 S.W.3d at 119-20; Hardee, 70 S.W.3d at 210; Pearce, 33 S.W.3d at 417. In contrast, a quo warranto suit is the proper way to challenge procedural irregularities such as the adequacy of a service plan, lack of notice, lack of a quorum for hearing, and "other deficiencies in the procedure of adopting the annexation ordinance." Hardee, 70 S.W.3d at 210; see ...
To continue reading
Request your trial