State ex rel. Grimes County Taxpayers Ass'n v. Texas Municipal Power Agency

• Decision Date: 02 March 1978
• Docket Number: No. 17079,17079
• Parties: STATE of Texas, Appellant, ex rel. GRIMES COUNTY TAXPAYERS ASSOCIATION et al., Relators, v. TEXAS MUNICIPAL POWER AGENCY et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 258

565 S.W.2d 258

STATE of Texas, Appellant ex rel. GRIMES COUNTY TAXPAYERS ASSOCIATION et al., Relators, v. TEXAS MUNICIPAL POWER AGENCY et al., Appellees.

No. 17079.

Court of Civil Appeals of Texas,Houston (1st Dist.).

March 2, 1978.

Rehearing Denied March 30, 1978.

Joe S. Falco, Jr., County Atty., Navasota, Sears & Burns, Will Sears, Robert L. Burns, Houston, for appellant State of Texas.

Davis, Davis, Durham & Schulze, Charles Davis, Huntsville, Naman, Howell, Smith, Lee & Muldrow, Hilton H. Howell, Albert Witcher, Roy L. Barrett, Waco, for appellee Texas Municipal Power Agency.

Pete Eckert, City Atty., Merril E. Nunn, Asst. City Atty., Garland, for appellee City of Garland, Texas.

Joel V. Roberts, City Atty., Bryan, for appellee City of Bryan, Texas.

Paul C. Isham, City Atty., James A. Blanton, Asst. City Atty., Denton, for appellee City of Denton, Texas.

Donald A. Parks, City Atty., Greenville, for appellee City of Greenville, Texas.

COLEMAN, Chief Justice.

The State of Texas, acting by and through Joe S. Falco, County Attorney of Grimes County, Texas, on the relation of Grimes County Taxpayers Association and others, filed an original information in the nature of a quo warranto in the District Court of Grimes County, Texas, complaining of the Texas Municipal Power Agency, hereinafter referred to as TMPA. The information questioned the legal existence of TMPA and the validity of various actions taken by it.

TMPA filed an original answer and a motion for summary judgment with supporting affidavits and set a hearing thereon. Each of the cities of Bryan, Greenville, Denton and Garland filed a plea of intervention alleging that the intervenor "adopts the allegations of defendant's original answer and joins in defendant's motion for a summary judgment." The State then filed its first amended original information seeking relief against TMPA and the four cities.

A hearing was held on TMPA's motion for summary judgment, and the trial court rendered a judgment which decreed the defendants not guilty of the charges alleged by the State, granted defendants' motion for a summary judgment and decreed that all charges made by Plaintiff and Relators against all defendants and all relief requested by Plaintiff and Relators against all defendants be denied. This appeal resulted. We affirm.

The Texas Municipal Power Agency was created by concurrent ordinances adopted by the cities of Bryan, Denton, Garland and Greenville on July 18, 1975, as authorized by Article 1435a, Section 4a, Texas Revised Civil Statutes. Each of the cities was engaged in the generation of electricity to supply electric power to its inhabitants through the city-owned, gas-fired generating plants. The demands on the cities' electric systems had almost quadrupled in the prior eleven years. The cities feared that because of a Railroad Commission order requiring curtailment of the use of natural gas as a boiler fuel beginning January 1, 1981, the electric generating facilities of the city would no longer be able to produce the electricity necessary to fill the needs of the inhabitants of the cities.

The cities determined that their need for electricity could best be met by the use of a generating facility using lignite coal as fuel. The cities created the TMPA in order that that entity could issue bonds and construct a facility to generate electricity. A supply of lignite for fuel was located in Grimes County, Texas. In August, 1976, the Grimes County project was adopted. This project envisioned the construction of a generating plant in Grimes County. In the Fall of 1976, the TMPA issued and sold Fifty Million Dollars in bonds. Work on the project was in progress at the time this suit was filed.

The trial court did not commit reversible error by refusing to postpone or continue the hearing on the motion for a summary judgment which was set for September 14, 1977, in order to provide the State an opportunity for discovery. The cause of action was filed by the appellants on July 25, 1977; and the motion for summary judgment was filed on August 9, 1977, by TMPA. At that time, the court set a hearing on the motion for September 6, 1977, almost three weeks more than the rules require. The cities filed their pleas in intervention, answering and joining in the motion for summary judgment more than ten days before the date set for the hearing. On September 6, the day of the hearing, appellants filed an amended information with leave of court and the hearing was postponed until the 14th day of September. Briefs on the points raised by the amended information were filed on behalf of all parties prior to the hearing.

When the case was called for trial, appellants announced ready to proceed with the argument but requested the right to supplement the summary judgment evidence. The trial court advised that it was going to commence the hearing and after the law was developed, if the court felt that there was material summary judgment proof needed which appellants had not had the opportunity to obtain, the court would continue the hearing until they had an opportunity to obtain it. After the issues had been argued to the court, it considered all of the points, including points raised for the first time in the amended information, and granted summary judgment in favor of the agency and the cities.

The contention of appellants is that the act under which the agency was created is unconstitutional, that certain activities of the agency and the cities are unconstitutional, and that others exceed the powers granted these political subdivisions by law. These contentions appear to raise questions of law for decision by the court. No questions of fact were suggested to this court either in the briefs or at oral argument. The record contains pleadings, deposition testimony, numerous other documents and affidavits which establish as a matter of law that the provisions of the statute authorizing the creation of the agency have been properly complied with and that all of the necessary prerequisites to the subsequent validating acts have been met.

The appellants failed to file an affidavit, as authorized by Rule 166-A(f), stating reasons why they were unable to present by affidavit the facts essential to justify their opposition. Had such an affidavit been filed, the court would have been authorized to refuse the application for a judgment and/or to order a continuance to permit discovery to be had.

If an application for continuance fails to conform to the provisions of the rule regulating continuances, the granting of relief is within the sound discretion of the trial court. Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App. Amarillo 1968, writ ref'd n. r. e.). No facts are presented which demonstrate that the trial court abused its discretion in requiring appellants to proceed to trial in this case. Traweek v. Radio Brady, Inc., 441 S.W.2d 240 (Tex.Civ.App. Austin 1969, writ ref'd n. r. e.).

The appellants also assert in their brief that the judgment is interlocutory and unappealable because the judgment granted summary judgment as to the four cities intervening in the cause although they did not file separate motions for summary judgment. Each of the cities merely filed pleadings joining in the motion filed by TMPA. Appellants' argue that the judgment is ineffective as to the cities and therefore does not dispose of all of the parties. This contention will not be sustained. The judgment expressly disposes of all the parties. Whether the court was in error in so doing is an issue to be determined.

Prior to the adoption of our present rules of civil procedure, it was held that an intervenor could adopt the pleadings of one of the original parties to the suit. Texarkana and Ft. S. Ry. Co. v. Hartford Ins. Co., 17 Tex.Civ.App. 498, 44 S.W. 533 (1897, writ ref'd). Rule 58, T.R.C.P. provides that statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion so long as the pleading adopted has not been superceded by an amendment. Each of the intervening cities filed an answer in which they specifically adopted the allegations of TMPA's answer and "joined in" the motion for a summary judgment. By joining in the motion, the intervenors have sufficiently adopted the allegations of the motion for a summary judgment.

The intervenors have sufficiently complied with Rule 166-A, supra, which permits either a plaintiff or a defendant to move for summary judgment, at any time after the adverse party has answered, with or without supporting affidavits. The motion for summary judgment must state specific grounds therefore. The intervenors' petition was served on the appellant more than ten days prior to the date set for the hearing on the motion. Since the intervenors joined in the motion filed by TMPA, they were parties to the subsequent procedural steps taken by TMPA. The appellants failed to object to the procedure adopted by the intervenors in presenting their motion for summary judgment. These procedural deficiencies do not present reversible error. Youngstown Sheet and Tube Company v. Penn, 363 S.W.2d 230 (Tex.1962); Spray v. Stash, 523 S.W.2d 262 (Tex.Civ.App. Eastland 1975, writ ref'd n. r. e.); Wiseman v. Horn, 309 S.W.2d 253 (Tex.Civ.App. Houston 1958, no writ history); Navarro v. Secret Harbor Farms, 506 S.W.2d 337 (Tex.Civ.App. Houston (1st Dist.) 1974, writ ref'd n. r. e.).

The principal points raised by appellants are (1) whether the statute authorizing the formation of the power district, Article 1435a, § 4a, Vernon's Annotated Civil Statutes, is constitutional and (2) whether certain of appellees' contracts and activities are unlawful. We first address the question of whether the cities, in executing and performing the power sales contract with TMPA, violated art. III, § 52 of the Tex.Const.

In 1963, the cities of Bryan, Garland and Greenville entered into an association with ...