Withstanding Legal Attacks on Annexation By Brad Young 1 Bickerstaff Heath Delgado Acosta LLP May 13, 2016 In order to weather a legal challenge to your annexation, it is important to anticipate the types of annexation arguments that a plaintiff may raise. That way, you can be proactive and structure your annexation in a way that maximizes your ability to withstand an annexation challenge. A. Void or Voidable? In assessing a private party s standing to challenge an annexation, the court must decide whether the challenge relates to the city s underlying authority to annex or simply complains of a failure to follow the statutory procedure. A mere irregularity in the city s exercise of its annexation authority is not sufficient to cloak the party with standing. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex. 1991). Rather, a collateral attack by a private party must show an entire want of power on the part of the city to annex. See Hoffman v. Elliott, 476 S.W.2d 845, 846 (Tex. 1972) (an annexation that is not authorized by law or color of law is wholly void); Larkins v. City of Denison, 683 S.W.2d 754, 756 (Tex. App. Dallas 1984, no writ) (an annexation that exceeds the scope of a municipality s delegated powers is void); City of Houston v. Harris Co. Eastex Oaks Water & Sewer Dist., 438 S.W.2d 941, 944 (Tex. Civ. App. Houston [1 st Dist.] 1969, writ ref d n.r.e) (an act of annexation that is wholly beyond the powers of the municipality is void). If an annexation ordinance is voidable rather than void, the complaint must be brought by the State in a quo warranto action. 1. Void Ordinances Historically, Texas courts have held an annexation ordinance void when the annexation: (1) exceeds the statutory size limits; (2) attempts to annex areas within another city s jurisdiction; (3) attempts to annex areas not contiguous with city limits; or (4) attempts to annex an area with an open boundary description. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex. 1992); see also Werthmann v. City of Fort Worth, 121 S.W.3d 803, 806 (Tex. App. Fort Worth 2003, no pet.); City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex. App. Fort Worth 2000, no pet.). 1 Brad Young is a partner with Bickerstaff Heath Delgado Acosta LLP. He provides litigation and general counsel services to cities in land use, open government, employment, constitutional rights, and general civil matters. He represents clients before state, federal and municipal courts. Brad received his J.D. from the University of Texas School of Law in 2000 and his B.A. from Lyon College (Batesville, Arkansas) in 1997. His contact information is Brad Young, Bickerstaff Heath Delgado Acosta LLP, 3711 S. MoPac Expressway, Building One, Suite 300, Austin, Texas 78746, (512) 472-8021, (512) 320-5638 FAX, byoung@bickerstaff.com. 2016 Bickerstaff Heath Delgado Acosta LLP 1
a. Annexation that Exceeds Statutory Size Limits Texas courts have found annexations void for exceeding the statutory size limits in the following situations: (1) the city impermissibly annexed territory beyond its ETJ; (2) a general law city annexed territory that exceeded the total square mile limitation established for such general law city; or (3) the city annexed territory that exceeded the ten percent area limitation established by the statute. See, e.g., TEX. LOC. GOV T CODE 43.051 ( A municipality may annex area only in its extraterritorial jurisdiction unless the municipality owns the area. ); Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex. 1966) (annexation void if territory exceeds the ten percent area limitation); City of Burleson v. Bartula, 110 S.W.3d 561, 563 (Tex. App. Waco 2003, no pet.) (annexation ordinance void if some of property is outside ETJ); City of Wilmer v. Laidlaw Waste Systems, Inc., 890 S.W.2d 459, 466 (Tex. App. Dallas 1994), aff d, 904 S.W.2d 656 (Tex. 1995) (annexation impact on size limits of general law city); City of Northlake v. East Justin Joint Venture, 873 S.W.2d 413, 418-19 (Tex. App. Fort Worth 1994, writ denied) (annexation impact on size limits of general law city). TIP: Use your City Engineer and GIS Personnel to make sure that the area that you are annexing: (1) is in your current ETJ; and (2) does not exceed the 10 % statutory max for annexation. b. Annexation in Another City s Jurisdiction Attempts to annex within another city s jurisdiction include situations where a city tries to annex property within the corporate limits of another city, as well as attempts to annex property within the ETJ of another city. See, e.g., City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex. 1975) (annexation void because city annexed property in another city s ETJ); City of Irving v. Callaway, 363 S.W.2d 832, 836-37 (Tex. Civ. App. Dallas 1963, writ ref d n.r.e) (annexation void because city tried to annex property in another city s corporate limits). TIP: Before you annex, obtain the most up-to-date maps you can from your neighboring cities to make sure that you do not encroach on someone else s city limits or ETJ. c. Annexations that are Not Contiguous Historically, Texas courts have held an annexation ordinance void when the annexation attempts to annex areas that are not contiguous with city limits. Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex. 1992); see also Werthmann v. City of Fort Worth, 121 S.W.3d 803, 806 (Tex. App. Fort Worth 2003, no pet.); City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex. App. Fort Worth 2000, no pet.). Contiguous means touching upon or touching one another. Op. Tex. Att y Gen. No. GA-0014 (2003). In other words, contiguity anticipates that there be actual contact or uninterrupted connection between the entity and the territory it is annexing. TIP: Make sure that the area that you annex is contiguous to the current city limits. If not, see if there is a way to bridge the gap between your current limits and the proposed area. 2016 Bickerstaff Heath Delgado Acosta LLP 2
d. Annexations with an Open Boundary Description An annexation ordinance that contains an open boundary description after employing standard rules of construction and surveying practices is void. See State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 787-88 (Tex. 1965). In general, municipal boundary descriptions are to be construed more liberally than those contained in grants or contracts so that if the description in [an annexation ordinance] cannot be literally applied on account of inaccuracy, a reasonable construction is to be made of the whole ordinance provisions in order to carry into effect the intent of the body which enacted it. Id. (citing State ex rel. American Manufacturing Co. v. City of Fort Worth, 339 S.W.2d 707, 709 (Tex. Civ. App. Fort Worth 1960, writ ref d n.r.e.)). Some examples of situations in which a court might use rules of construction or surveying practices to construe the intent of the governing body and close the boundary include: Where the gap can be closed by running the call in reverse, a court might close the boundary. See id. at 787. Where an ordinance contains incorrect distance calls but the property descriptions also contain easily identifiable monuments and natural objects, a court might close the boundary. Id. at 788. Where a junior survey calls to begin at a senior, the junior beginning where the senior line is established, the distance and acreage of the junior survey must yield, since a call for adjoinder is like a call for natural or artificial objects. State ex rel. American manufacturing Co. v. City of Fort Worth, 339 S.W.2d 707, 709 (Tex. Civ. App. Fort Worth 1960, writ ref d n.r.e.). Maps body s 204 (Tex. published intent. Civ. See, App. San in conjunction e.g., Lower Antonio with Nueces 1955, the River annexation writ ref d Water n.r.e.). ordinance Supply Dist. may v. Cartwright, be evidence 274 of the S.W.2d governing 199, This does not mean that an inadvertently omitted call can simply be added through, for example, (1) testimony that the governing body intended the call to be included or (2) the examination of deed records not referenced in the ordinance. State ex rel Rose, 386 S.W.2d at 788; City of Missouri City v. Senior, 583 S.W.2d 444, 448 (Tex. App. Houston [1 st Dist.] 1979, writ ref d n.r.e.). The construction of an ordinance may not change the course of a line in the original field notes or create additional corners or touching points. State ex rel Rose, 386 S.W.2d at 789. The description in the ordinance must be relied upon to the exclusion of extraneous records, unless referred to in the ordinance, or unless a latent ambiguity arises from extraneous facts. Senior, 583 S.W.2d at 448; but see, Grisham v. Tate, 35 S.W.2d 264, 267 (Tex. Civ. App. Waco 1931, writ dism d) (looking to maps with the field notes marked upon them as evidence of intent even though the maps were not published or part of the act of calling the election for creation of a special district). TIP: If you describe the area proposed for annexation by metes and bounds, obtain a sealed survey from a surveyor that you trust. 2016 Bickerstaff Heath Delgado Acosta LLP 3
2. Voidable Ordinances Some examples of procedural irregularities that result in a voidable, rather than a void, ordinance include: Failure to have a quorum present at a public hearing. See, e.g., Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438-39 (Tex. 1992). Mistakes as to description of the property being annexed. See, e.g., May v. City of McKinney, 479 S.W.2d 114, 120 (Tex. Civ. App. 1972, writ ref d n.r.e.). Discrepancies between the property as described in the notice and the property described in the annexation ordinance. See, e.g., City of Houston v. Harris Co. Eastex Oaks Water & Sewer Dist., 438 S.W.2d 941, 948 (Tex. Civ. App. Houston [1 st Dist.] 1969, writ ref d n.r.e.). Irregularities as to the petition, when an election is necessary to undertake the annexation. See, e.g., City of Wilmer v Laidlaw Waste Systems, 890 S.W.2d 459, 464 (Tex. App. Dallas 1994), aff d, 904 S.W.2d 656 (Tex. 1995). Invalid service plan. See, e.g., Wichita Falls v. Pearce, 33 S.W.3d 415, 416-17 (Tex. App. Fort Worth 2001, no pet.). Failure to hear all persons attending public hearing and wanting to speak. See, e.g., City of Houston v. Savely, 708 S.W.2d 879, 889 (Tex. App. Houston [1 st Dist.] 1986, writ ref d n.r.e), cert denied, 482 U.S. 928. Failure to comply with statutory annexation plan requirements. See Werthmann v. City of Fort Worth, 121 S.W.3d 803, 806-07 (Tex. App. Fort Worth 2003, no pet.); City of Balch Springs v. Lucas, 101 S.W.3d 116, 121-22 (Tex. App. Dallas 2002, mand. denied). City of San Antonio v. Hardee 70 S.W.3d 207, 211-12 (Tex. App. San Antonio 2001, no pet.). TIP: Check and double-check your annexation calendar to make sure that you have properly scheduled all newspaper notices, public hearings, etc. B. Let the City Council Vote! Generally, a court will not invade the legislative arena by enjoining a city council from voting on a proposed annexation ordinance. City of Monahans v. State ex. rel. Cook, 348 S.W.2d 176, 179 (Tex. Civ. App. El Paso, writ ref d n.r.e.) stands for the general proposition that under the separation of powers doctrine, a court may not enjoin a home rule city from performing the legislative act of adopting an ordinance. Once the ordinance has been adopted, though, a plaintiff can sue to enjoin its enforcement. Texas courts have the authority to enjoin the enforcement of an invalid ordinance: 2016 Bickerstaff Heath Delgado Acosta LLP 4
There is no doubt that the courts, pursuant to their judicial power, can give relief from an arbitrary, oppressive, or unconstitutional ordinance through an action in quo warranto brought for the purpose of enjoining the enforcement of such ordinance. This would constitute a legitimate exercise of judicial power. City of Monahans v. State ex. rel. Cook, 348 S.W.2d 176, 179 (Tex. Civ. App. El Paso, writ ref d n.r.e.) (emphasis in original). C. Arbitration. Some provisions of Chapter 43 of the Texas Local Government Code provide for arbitration of annexation disputes between cities and property owners. For example, section 43.052(i) provides that if a property owner feels that a city has improperly attempted to circumvent the 3-year annexation plan requirement by separately annexing areas with fewer than 100 rooftops, the property owner can request arbitration of the dispute. TEX. LOC. GOV T CODE 43.052(i). In City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008), the property owner did just that, but the city council declined to grant the request. The property owner then sued the city to compel arbitration. The Texas Supreme Court held that once a group of landowners has submitted a petition to be included in a 3-year annexation plan and the city has denied the petition, the landowners' only recourse is to persuade the State to file a suit against the City through quo warranto. City of Rockwall stands for the proposition that arbitration provisions such as the one under section 43.052(i) are procedural annexation requirements that only can be challenged through a quo warranto proceeding. D. Statute of Limitations Annexations have their own special statute of limitations under section 43.901 of the Texas Local Government Code, which provides: 43.901. Circumstances in Which Consent to Boundaries or Annexation is Presumed A municipal ordinance defining boundaries of or annexing area to a municipality is conclusively presumed to have been adopted with the consent of all appropriate persons, except another municipality, 2 if: (1) two years have expired after the date of the adoption of the ordinance; and 2 The except another municipality clause only applies to an annexation ordinance that took effect on or after September 1, 2007. 2016 Bickerstaff Heath Delgado Acosta LLP 5
TEX. LOC. GOV T CODE 43.901. (2) an action to annul or review the adoption of the ordinance has not been initiated in that two-year period. The Texas Supreme Court has construed section 43.901 as a statute of limitations that bars a suit to challenge an annexation ordinance based on lack of consent. City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996). City of Murphy involved an annexation dispute between two neighboring cities. In City of Murphy, the Supreme Court addressed the specific question of whether section 49.901 bars a municipality s suit complaining of a nonconsensual annexation of land within its extraterritorial jurisdiction when it fails to challenge the annexation within two years. City of Murphy, 932 S.W.2d at 480 (emphasis added). At issue was the City of Parker s annexation of territory that was indisputably within the City of Murphy s ETJ. Id. Murphy challenged Parker s annexation on the grounds that Parker did not obtain Murphy s written consent to the annexation and that Parker illegally annexed territories outside of Parker s ETJ (because the disputed territories were in Murphy s ETJ). Id. Murphy argued that it did not provide actual consent to the annexation and that a municipality was not an appropriate person whose consent could be presumed under section 43.901 of the Local Government Code. Id. at 481. The Supreme Court disagreed, relying upon the Code Construction Act to determine that the term person, as used in section 43.901, did include municipalities. Thus, the Court held that the plain language of section 43.901 erects a complete statutory bar to any challenge of a municipality s annexation ordinance based on lack of consent. Id. The Court further found that Murphy s argument that Parker unlawfully annexed outside of Parker s ETJ into Murphy s ETJ was merely an extension of its consent argument, because Murphy had the statutory authority to consent to allow Parker to annex into its territory. City of Murphy, 932 S.W.2d at 482 (citing TEX. LOC. GOV T CODE 42.022). Therefore, the court summarized that the essence of Murphy s complaint is that Parker failed to obtain the requisite consent to the annexation, consent that is conclusively presumed to have been given after the expiration of two years under section 43.901. Id. at 482. In City of San Juan v. City of Pharr, the court of appeals held that even if section 43.901 barred a suit by a municipality to challenge a neighboring municipality s annexation, that section did not prevent the plaintiff from challenging the expansion of its neighbor s ETJ as a result of the otherwise void annexation. City of San Juan v. City of Pharr, No. 13 09 00422 CV, 2011 WL 2090236 (Tex. App. Corpus Christi, May 26, 2011, pet. denied) (mem. op.). The court of appeals held: We believe that [the former version of section 43.901, City of Murphy, and its progeny] stand for the proposition that a city's annexation i.e., the expansion of the city's city limits into another city's existing ETJ is conclusively presumed to be valid absent any action by the other city to challenge the annexation within two years.... However, by its second issue, San Juan asks us to enlarge this presumption, and resulting limitations bar, to an annexation ordinance's expansion of the annexing city's ETJ. We will not do so, as the statutory scheme governing ETJ discourages such a result. 2016 Bickerstaff Heath Delgado Acosta LLP 6
Id. at *7. The Texas Supreme Court denied the petition for review. In 2007, the Legislature amended section 43.901 to provide that the two-year limitation period does not apply to a challenge by another city to an annexation that took place after September 1, 2007. D. Annexation Challenges Under the Texas Open Meetings Act? Sometimes, an annexation may be subject to challenge under the Texas Open Meetings Act. For example, the Open Meetings Act contains notice requirements with which a municipality must comply. TEX. GOV T CODE 551.041 et seq. Generally, the notice must be sufficient to apprise the general public of the subjects to be considered during the meeting. KEN PAXTON, ATTORNEY GENERAL OF TEXAS, 2016 OPEN MEETINGS HANDBOOK VII(B) (2016). Information in a notice that is false or inaccurate is in violation of the Act. See Op. Tex. Att y Gen. No. JC- 0255 (2000) (determining that a misleading notice of a three percent raise for county officials that did not fully disclose an intent to raise salaries by six times that amount was no notice. ). Although it is not necessary that the notice state all of the consequences that may flow from the consideration of a topic, the notice must give the reader a full and adequate notice of the subject slated for discussion, particularly where the matter is one of special interest. Cox Enterps., Inc. v. Bd. Of Trustees of the Austin Indep. Sch. Dist., 706 S.W.2d 956, 958-59 (Tex. 1986). Thus, a notice posted by a school district s board of trustees that simply read, Personnel, was inadequate to inform the public that the board was going to select a new school superintendent. Id. A notice posted by a water district that simply read, Budget, was inadequate to inform the public that the district s board would consider and vote on a tax levy. Parr v. State, 743 S.W.2d 268, 272 (Tex. App. San Antonio 1987, writ denied). And a series of thirty-four separate meeting notices, all indicating separate meetings on the same date, and each of which identified a single annexation, did not give a member of the public sufficient notice that the city council was going to consider seventeen sequential annexations. See City of Port Isabel v. Pinnell, 207 S.W.3d 394, 406-08 (Tex. App. Corpus Christi-Edinburg 2006, no pet.) (trial court s findings of fact). The statute of limitations for a cause of action pursuant to the Texas Open Meetings Act is the residual four-year limitations period under section 16.051 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE 16.051; Rivera v. City of Laredo, 948 S.W.2d 787, 793 (Tex. App. San Antonio 1997, writ denied). TIP: In the event that you plan to annex successive, contiguous tracts of land in a compressed time period, schedule each annexation at least 72 hours apart at separate meetings under the Open Meetings Act. E. Conclusion The Texas annexation laws contain various procedural requirements and limitations on municipal annexation authority that can become traps for the unwary city. With a little careful planning, however, a city can structure its annexations to withstand potential legal challenges. 2016 Bickerstaff Heath Delgado Acosta LLP 7