San Antonio v. City of Boerne

• Decision Date: 22 August 2001
• Docket Number: No. 04-00-00555-CV,04-00-00555-CV
• Parties: (Tex.App.-San Antonio 2001) CITY OF SAN ANTONIO, Appellant v. CITY OF BOERNE, Appellee
• Court: Texas Court of Appeals

Page 571

61 S.W.3d 571 (Tex.App.-San Antonio 2001)

CITY OF SAN ANTONIO, Appellant v. CITY OF BOERNE, Appellee

No. 04-00-00555-CV

Court of Appeals of Texas, San Antonio

August 22, 2001

Rehearing Overruled September 14, 2001

From the 216th Judicial District Court, Kendall County, Texas Trial Court No. 98-005 Honorable Stephen B. Ables, Judge Presiding

Donald S. Bayne, Asst. City Atty., Michael P. Hodge, Litigation City Atty. Harvey L. Hardy, San Antonio, for Appellant.

Randall B. Richards, The Law Offices of Randall, B. Richards, Boerne, M. Stephen Cichowski, Watkins, Cichowski & Gonzalez, P.C., San Antonio, for Appellee.

Sitting Tom Rickhoff, Justice, Catherine Stone, Justice, Sarah B. Duncan, Justice

ON APPELLEE'S MOTION FOR REHEARING

Catherine Stone, Justice

Appellee, City of Boerne, has filed a motion for rehearing. We grant the motion for rehearing, withdraw our opinion and judgment of May 30,2001, and substitute the following. Our opinion and judgment remain unchanged except for the final disposition, which no longer includes a remand.

In this case involving competing claims of two cities, we are asked to construe the Texas Municipal Annexation Act. This is an appeal of a declaratory judgment and injunction rendered against the City of San Antonio in a suit brought by the City of Boerne to determine the respective boundaries of extraterritorial jurisdiction, that area of land which serves as a "buffer zone" against expansion from other cities. We affirm the trial court's decision and hold that extraterritorial jurisdiction acquired in annexation proceedings does not attach until the annexation is complete. We further hold that county commissioners, authorized by the Legislature to build and maintain county roads, have the power to request that county roads be included within the extraterritorial jurisdiction of a municipality.

The Controversy

On November 5, 1987, an ordinance was passed "on first reading"¹ by San Antonio to annex a strip of land in northern Bexar County. The city planned for tax purposes to have the annexation effective on December 31,1987. Under usual circumstances, the five-mile zone extending past the new boundary would have converted into the extraterritorial jurisdiction of San Antonio.² After San Antonio initiated the annexation process, however, the landowners near the neighboring City of Boerne reacted by requesting inclusion in Boerne's extraterritorial jurisdiction. The Boerne city council accepted the landowners' petitions and passed ordinances accepting the properties into Boerne's extraterritorial jurisdiction. As part of the requirement that the parcels of land be adjoining, certain county roads linking some of the properties were also accepted into Boerne's extraterritorial jurisdiction. The petitions to include those roads were submitted by the county commissioners of Comal and Kendall Counties. Boerne perfected its competing claim of extraterritorial jurisdiction, effective December 28, 1987, and portions of the areas claimed by the two cities overlapped. Overlap is prohibited by statute; nor may a municipality extend its extraterritorial jurisdiction into the extraterritorial jurisdiction of any other municipality unless the other municipality consents. Tex. Loc. Gov't Code Ann. § 42.022(c) (Vernon 1999).

In 1998, more than ten years after the annexation, this suit for declaratory judgment and injunction was brought by the City of Boerne against the City of San Antonio to establish whether certain contested areas of land lie within the extraterritorial jurisdiction of Boerne or San Antonio. On stipulated facts, the trial court granted summary judgment to Boerne, awarding declaratory and injunctive relief, as well as attorney's fees. The parties do not dispute that the annexation by San Antonio was valid and they concur that resolution of the legal issues will determine which of three potential boundaries should comprise the respective extraterritorial jurisdictions of the parties. We first address the issue of whether San Antonio gained exclusive rights over the proposed area of extraterritorial jurisdiction at the commencement of annexation proceedings.

Annexation Jurisdiction

Municipalities, once unrestricted in their annexation powers, had their authority circumscribed by passage of the Municipal Annexation Act of 1963.³ The Act defined extraterritorial jurisdiction as adjoining, unincorporated land and dictated that future annexations be from within the existing limits of a municipality's extraterritorial jurisdiction, except if the city already owned the land. See Tex. Loc. Gov't Code Ann. § 43.051 (Vernon 1999). The amount of land that could be annexed was relegated by the size of the municipal population. Id. at § 42.021. In Texas, annexation of land by passage "on first reading" has been the common practice. See Ashcroft & Balfour, Municipal Annexation in Texas at 524. Under this method, a city which first passes an ordinance annexing certain land has the right to annex the land at some point in the future, and to exclude all other municipalities from interfering with that right. Prior to the creation of the Municipal Annexation Act, cities could carve out what was essentially extraterritorial jurisdiction. In effect, they were able to control development over unlimited areas with no obligation to develop the areas. Id. This practice, until abolished by the Municipal Annexation Act of 1963, created impenetrable barriers against expansion into the affected areas by other political subdivisions. Id

. The passage of annexation ordinances on first reading effectively institutes the act of annexation. City of Houston v. Savely, 708 S.W.2d 879, 888-89 (Tex. App. Houston [1st Dist.] 1986, writ ref'd n.r.e.). Despite the revisions within the Municipal Annexation Act of 1963, passage on first reading remains effective to secure jurisdictional priority for annexation purposes. See City of La Porte v. State ex rel. Rose, 376 S.W.2d 894, 907 (Tex. Civ. App. Austin 1964), rev'd in part on other grounds, 386 S.W.2d 782 (Tex. 1965)(noting that the first municipality to take steps toward annexation acquires annexation jurisdiction). As stated by the court in City of LaPorte, "annexation priority between cities depends upon the first exercise of annexation jurisdiction by first reading." City of La Porte, 376 S.W.2d at 907.

Annexation priority is significant because it bars expansion by other municipalities into the proposed area to be annexed. City of Arlington v. City of Grand Prairie, 451 S.W.2d 284, 291 (Tex. Civ. App. Fort Worth 1970, writ ref'd n.r.e), citing Beyer v. Templeton, 147 Tex. 94, 101, 212 S.W.2d 134,138 (1948); Redbird Village v. State ex rel. City of Duncanville, 385 S.W.2d 548, 550 (Tex. Civ. App. Dallas 1964, writ ref'd)(noting that the first city to take any action towards incorporation obtains priority). San Antonio seeks to expand the priority concept by contending that the extraterritorial jurisdiction which accompanies annexation should attach when the annexation process begins, rather than upon completion of annexation.

A similar fact situation was presented in Universal City v. City of Selma, 514 S.W.2d 64 (Tex. Civ. App. Waco 1974, writ ref'd n.r.e.). In that case, the City of Selma filed an application for incorporation, thereby invoking jurisdiction over the proposed land to be incorporated. Following the "first in time" rule, the court held that municipal jurisdiction over the land to be incorporated attached at the filing of the incorporation application. Universal City, 514 S.W.2d at 70. It also noted that under the well-established rule, "the [first municipality] to commence legal proceedings asserting authority over the territory thereby acquires jurisdiction over it which cannot be defeated by [another municipality's] attempted jurisdictional activity." Id.

Similar to San Antonio's argument in the instant case, the City of Selma argued that the first in time rule should apply as well to extraterritorial jurisdiction and that it attached when incorporation proceedings were begun. Id. The court refused to accept this logic, and observed that the first in time rule was in existence well before the inception of extraterritorial jurisdiction. Id. The court noted that it was implied throughout the Municipal Annexation Act that extraterritorial jurisdiction vests in a proposed municipality only at the time of incorporation. Id. In the case at bar, San Antonio similarly asks this court to find that exclusive extraterritorial jurisdiction attached when legal proceedings were commenced, although the legal proceedings were annexation, rather than incorporation.

We cannot find any source to indicate that the first in time rule has been broadened to encompass extraterritorial jurisdiction. The rule awards exclusive jurisdiction specifically "over the area sought to be incorporated or annexed." Village of Creedmoor v. Frost Nat'l Bank, 808 S.W.2d 617, 618 (Tex. App. Austin 1991, writ denied). Furthermore, as the court in Creedmoor cautioned, the statutory framework for extraterritorial jurisdiction would factor into the determination of jurisdiction, "rather than priority in time alone." Id. Thus the court's decision confirmed the statutory constraints pertaining to extraterritorial jurisdiction.

The facts in Universal City v. City of Selma are a compelling parallel to those in the present case, and there do not appear to be other cases dealing with this particular issue. Thus, rules of statutory construction are useful in deciding whether the same result should apply in this case. A fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature "as expressed in the language of that statute." State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979). If a "statute is clear and unambiguous extrinsic aids and rules of statutory construction are inappropriate; and the statute should be given its...