Vernon v. State ex rel. City of San Antonio

• Decision Date: 25 August 1966
• Docket Number: No. 204,204
• Parties: Emory F. VERNON et al., Appellants, v. STATE of Texas ex rel. CIY OF SAN ANTONIO et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 236

406 S.W.2d 236

Emory F. VERNON et al., Appellants, v. STATE of Texas ex rel. CIY OF SAN ANTONIO et al., Appellees.

No. 204.

Court of Civil Appeals of Texas.

Corpus Christi.

Aug. 25, 1966.

Rehearing Denied Sept. 15, 1966.

H. Gordon Davis, Harvey L. Hardy, San Antonio, for appellants.

James E. Barlow, Sam S. Wolf, J. Bruce Aycock, Marvin T. Deane, San Antonio, for appellees.

OPINION

NYE, Justice.

This is a quo warranto proceeding filed by the State of Texas, as plaintiff, on the relation of the City of San Antonio and the Town of Windcrest attacking the validity of the incorporation as a municipality the Town of Stonegate in Bexar County, Texas.

The trial was to a jury. At the close of the evidence, most of which was of a documentary nature, the trial court granted the plaintiffs' motion for judgment and took the case from the jury, declaring that the Town of Stonegate was void and that the officials be ousted. The trial court found that the attempted incorporation of the Town of Stonegate, Texas, was void from the beginning for: 1) the lack of compliance with Article 970a, Vernon's Ann.Civ.St.; and, 2) for the reason that on October 8, 1964, the City of San Antonio by a duly enacted ordinance took the first legal step asserting annexation jurisdiction over the territory. The defendants in the trial court were the Mayor and Aldermen and certain inhabitants of the Town of Stonegate. They have perfected their appeal to this Court.

Appellants' points on appeal are:

1. That the trial court erred in not granting defendants' motion for instructed verdict and judgment and in not rendering judgment for defendants declaring the Town of Stonegate to be validly incorporated because:

(a). Article 970a is unconstitutional under Article II, Section 1 of the Constitution of the State of Texas, Vernon's Ann.St.

(b). The ordinance passed December 10, 1959, by the City of San Antonio, as a first reading of annexation, was no longer effective on October 30, 1964.

(c). Ordinance #32815 City of San Antonio dated October 8, 1964, was not an assertion of annexation jurisdiction.

2. The trial court erred in not sustaining defendants' special exception to the effect that Ordinance #32815 (and others) were improperly pleaded.

3. The trial court erred in not submitting the question of abandonment of the Ordinance #28156 to the jury.

The chronological order of events leading up to this litigation that effect the decision of this case are as follows:

May, 1963 The Municipal Annexation Act of 1963 certified as Art. 970a, V.A.C.S., was passed and approved by the Legislature and took effect 90 days after May 24, 1963, adjournment date.

Aug. 22, 1963 Effective date of Municipal Annexation Act, Art. 970a, V.A.C.S.

Nov. 20, 1963 All ordinances not brought to completion (within 90 days of effective date of act) are abandoned and released as a matter of law from the jurisdiction of City of San Antonio. Art. 970a, Sec. 7D, V.A.C.S.

Oct. 8, 1964 Ordinance No. 32815 adopted in compliance with Art. 970a, Sec. 6, V.A.C.S. (calling for public hearing of proposed annexation of subject Stonegate area).

Oct. 9, 1964 Notice of Public hearing published in newspaper (Ordinance No. 32815) Art. 970a, Sec. 6, V.A.C.S.

Oct. 22, 1964 Public hearing held on Oct. 22, 1964. (Ordinance No . 32815) Art. 970a, Sec. 6, V.A.C.S.

Oct. 30, 1964 Application to incorporate the Town of Stonegate filed with County Judge.

Nov. 5, 1964 Ordinance No. 32874 passed (first reading) annexing Stonegate territory. (result of public hearing, Ordinance No. 32815)

Nov. 5, 1964 Ordinance 32875 passed by City of San Antonio adopted agreement with City of Windcrest apportioning the overlap extraterritorial jurisdiction. Art. 970a, Sec. 3 B, First paragraph .

Nov. 6, 1964 Ordinance No. 32874 published in newspaper.

Nov. 6, 1964 Election ordered by County Judge to determine question of incorporation of Stonegate.

Nov. 9, 1964 Agreement to apportion the overlapped extraterritorial jurisdiction approved by the City of Windcrest.

Dec. 4, 1964 County Judge declared Town of Stonegate duly incorporated.

Dec. 8, 1964 This quo warranto suit instigated by the State of Texas.

Dec. 17, 1964 Ordinance No. 32874 finally passed by City of San Antonio annexing Stonegate territory. Art. 970a, Sec. 6.

Jan. 9, 1965 Election of Mayor and Aldermen of Town of Stonegate.

The City of San Antonio was a home rule city, having a population in excess of six hundred thousand (600,000) inhabitants. The Town of Windcrest situated northeast of the city limits of San Antonio was a duly incorporated municipality, having a population of less than five thousand (5,000) inhabitants. The area in question sought to be incorporated as a Town called Stonegate, lies adjacent to and northeast of the City of San Antonio and also adjacent to the Town of Windcrest.

On October 8, 1964, the City Council of the City of San Antonio adopted an Ordinance (No. 32815) in compliance with Art. 970a, Sec. 6 giving notice to all interested persons of the City's intention to annex certain territory which included that portion of the Stonegate area in question. Notice of the public hearing was published (October 9, 1964) and the hearing was held on October 22, 1964.

On October 30, 1964, application to incorporate the Town of Stonegate was filed with the County Judge of Bexar County, Texas. This application admittedly complied with all applicable statutes, other than Art. 970a, V.A.C.S. The area included in the application to incorporate Stonegate was situated within the extraterritorial jurisdiction of the City of San Antonio. More than half of the area proposed by the incorporators to be included within the Town of Stonegate, was situated within the Exclusive extraterritorial jurisdiction of the City of San Antonio and the remainder of such Stonegate area was situated within an area that overlapped the extraterritorial jurisdiction of the Town of Windcrest and the City of San Antonio. In other words, the proposed area to be incorporated as the Town of Stonegate was within the extraterritorial jurisdiction of the City of San Antonio, a part of which was also in the extraterritorial jurisdiction of the Town of Windcrest.

On November 5, 1964, the City of San Antonio, pursuant to its expression of its intention to annex the territory in question as expressed in Ordinance No. 32815, passed on first reading Ordinance No. 32874 annexing the Stonegate area. On the same day the City of San Antonio passed Ordinance No. 32875 adopting a written agreement with the Town of Windcrest apportioning the overlapping extraterritorial jurisdiction under Article 970a, Sec. 3 B, first paragraph, between the two municipalities. This mutual agreement apportioning the overlapping area of extraterritorial jurisdiction was finally approved by the City of Windcrest on November 9, 1964, and therefore was consummated. On December 17, 1964, Ordinance No. 32874 (passed on first reading on November 5, 1964) was finally passed by the City of San Antonio, annexing all of the area covered by proposed incorporation of the Town of Stonegate.

On December 4, 1964, the County Judge of Bexar County, pursuant to an election ordered on November 6, 1964, declared the Town of Stonegate duly incorporated. On January 9, 1965, the Mayor and Aldermen of the Town of Stonegate were elected pursuant to an election called by the County Judge of Bexar County.

The Municipal Annexation Act, Article 970a, V.A.C.S., passed by the Legislature of the State of Texas 'In order to promote and protect the general health, safety, and welfare of persons residing within and adjacent to the cities of this State * * *' declared in such Act (Sec. 3) that it is '* * * to be the policy of the State of Texas that the unincorporated area, not a part of any other city, which is contiguous to the corporate limits of any city, to the extent described herein, shall comprise and be known as the extraterritorial jurisdiction of the various population classes of cities in the State and shall be as follows:

'(1) The extraterritorial jurisdiction of any city having a population of less than five thousand (5,000) inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within one half (1/2) mile of the corporate limits of such city. * * *'

'(5) The extraterritorial jurisdiction of any city having a population of one hundred thousand (100,000) or more inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within five (5) miles of the corporate limits of such city.'

Section 8A of this Article provides that 'No city may be incorporated within the area of the extraterritorial jurisdiction of any city without the written consent of the governing body of such city. * * *' If only a portion of the proposed new city lies within extraterritorial jurisdiction of an existing city (City of Windcrest) such consent must be obtained for that portion to be included as a part of the new city.

The unincorporated area of Stonegate was under the extraterritorial jurisdiction of the City of San Antonio and the City of Windcrest. It is undisputed that the incorporators of the Town of Stonegate did not seek or obtain the written consent of the governing bodies of the cities who exercised extraterritorial jurisdiction over the area sought to be incorporated by virtue of Article 970a, V.A.C.S. They neither sought nor obtained the written consent required under Section 8A of Art. 970a as to (1) the exclusive area within the extraterritorial jurisdiction of the City of San Antonio; (2) the joint authorization from the City of San Antonio and the Town of Windcrest comprising the overlapping area of extraterritorial jurisdiction; nor (3) the separate consent from the cities of San Antonio and Windcrest for the areas apportioned by mutual agreement between the two cities. Where the attempted incorporation violates a...