Opinion
No. 10-05-00417-CV.
Opinion delivered and filed November 29, 2006.
Appeal From the 272nd District Court Brazos County, Texas Trial Court No. 04-002226-CV-272. Affirmed.
Before Chief Justice GRAY, Justice VANCE, Justice REYNA.
MEMORANDUM OPINION
The City of Bryan annexed part of Appellant Karen Hall's property, and several years later, Hall sued Bryan, seeking disannexation. The trial court granted Bryan's motion for summary judgment. Hall now appeals. We will affirm.
On July 17, 1999, Bryan adopted an ordinance annexing 105 acres, including part of a tract of commercial property jointly owned by Karen and Mark Hall. On April 12, 2004, in accordance with the Local Government Code, a petition seeking disannexation for failure to provide full municipal services was signed by 22 of the 34 qualified voters within the annexed area and was submitted to and accepted by the city secretary. See TEX. LOC. GOV'T CODE ANN. § 43.141(a) (Vernon Supp. 2006). After 60 days had passed without the city's taking action on the petition, Hall sued for disannexation. In her amended petition, Hall sought disannexation for (1) failure to provide waste-water (sanitary sewer) facilities and fire protection with fire hydrants and (2) failure to provide the annexed area with a level of services, infrastructure, and infrastructure maintenance comparable to those available in other similar parts of the city. She also sought a refund of property taxes.
Bryan moved for summary judgment, asserting as grounds: (1) Hall's lack of standing because she allegedly was not a qualified voter of the annexed area; (2) Hall's disannexation claims are procedural in nature, challengeable only in a quo warranto proceeding by the State, and Hall thus lacks standing; (3) Hall's allegation on the city's alleged failure to provide free fire hydrants and water and sewer line extensions is not a violation of the annexation service plan or the Local Government Code; and (4) Hall is not entitled to a tax refund.
The trial court granted the city's motion in an order that did not specify grounds; it then signed a final summary judgment ordering that Hall take nothing. The trial court apparently did not find that Hall lacked standing because if Hall lacked standing, the proper disposition would have been dismissal, not a take-nothing judgment on the merits of Hall's claims. Standing is a component of subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Without standing, a court lacks subject matter jurisdiction to hear the case; thus, standing may be raised for the first time on appeal. Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). We must therefore address the standing arguments made in the trial court.
Hall contends in one issue that the trial court erred in granting summary judgment. We review the decision to grant a summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Larsen v. Carlene Langford Assocs., Inc., 41 S.W.3d 245, 249 (Tex.App.-Waco 2001, pet. denied).
Hall was one of the signers of the petition for disannexation that was submitted to the city. She filed evidence that she was registered to vote in Brazos County with an address within the annexed area. In this respect, we find that Hall established her standing to sue. See TEX. LOC. GOV'T CODE ANN. § 43.141(a), (b) (providing that a majority of "qualified voters" may petition for disannexation and that any one signer may sue if city fails or refuses to disannex).
In a citizen's suit for disannexation under Local Government Code section 43.141, the "district court shall enter an order disannexing the area if the court finds that a valid petition was filed with the municipality and that the municipality failed to perform its obligations in accordance with the service plan or failed to perform in good faith." Id. § 43.141(b) (emphasis added); see City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex.App.-Fort Worth 2000, no pet.).
The gist of Hall's claim is that, 4 ½ years after annexation, the city had failed to provide full municipal services, as she alleges was required by section 43.056. She asserts that the service plan as written must be read in conjunction with section 43.056 and that the city failed to comply with the mandate in that section to provide "full municipal services." The applicable part of that statute in effect at the time of the annexation in July 1999 provided:
(a) . . . The municipality shall provide the services by any of the methods by which it extends the services to any other area of the municipality.
(b) The service plan must include a program under which the municipality will provide full municipal services in the annexed area no later than 4 ½ years after the effective date of the annexation, in accordance with Subsection (d).
Act of June 19, 1989, 71st Leg., R.S., ch. 822, § 1, 1989 Tex. Gen. Laws, 3770 (current version at TEX. LOC. GOV'T CODE ANN. § 43.056(a), (b) (Vernon Supp. 2006)).
Absent specific legislative authorization such as section 43.141(b), the only proper method for attacking the validity of a city's annexation is through a quo warranto proceeding, unless the annexation is wholly void. Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex. 1991); Pearce, 33 S.W.3d at 417. A challenge to the adequacy of the service plan-because it, for example, is inadequate under section 43.056-cannot be brought in a private challenge; it must be raised in a quo warranto proceeding brought by the State. Pearce, 33 S.W.3d at 417 (plaintiffs alleged service plan did not provide for extension of full municipal services because plan provided that extensions of water and wastewater systems must be paid for by residents). Requiring the State to bring the challenge in a quo warranto proceeding allows one judgment that binds all the property owners involved and settles the validity of the annexation ordinance. Id. (citing Kuhn v. City of Yoakum, 6 S.W.2d 91, 92 (Tex. Comm'n App. 1928, judgm't adopted)). Accordingly, to the extent that Hall's suit challenges the adequacy of the service plan because it does not include former section 43.056(b)'s requirement to provide "full municipal services" not later than 41/2 years after annexation, we would hold that Hall lacked standing to prosecute such a claim.
In an interrogatory answer, Hall admitted that she does not contend that Bryan violated the service plan in any manner other than by failing to extend water lines, extend sewer lines, and install fire hydrants free of charge to the residents or property owners in the annexed area.
In its motion for summary judgment, the city conclusively proved that it had complied with the service plan as written. The service plan provides: "As used in this plan, the term 'providing services' includes having services provided by any method or means by which the City may extend municipal services to any other area of the City, including the City's infrastructure extension policies and developer or property owner participation in accordance with applicable city ordinances." The service plan does not contain a commitment by the city to provide to the annexed area free extensions of water lines, free extensions of sewer lines, free fire hydrant installations, or services on terms more favorable than those offered to citizens in the rest of the city. The trial court thus did not err in granting summary judgment on the ground that the city conclusively proved that it had complied with the service plan.
Hall's complaint is essentially that former section 43.056(b)'s requirement to provide "full municipal services" not later than 4 ½ years after annexation ought to be legally engrafted into the service plan. We decline to go outside the strictures of section 43.141(b) and sanction a citizen disannexation suit to be based on legal duties outside of the service plan. See Larkins v. City of Denison, 683 S.W.2d 754, 756-57 (Tex.App.-Dallas 1984, no writ) ("Where a statute provides a particular remedy, the courts should be wary of reading into it other remedies which negate the protections for competing interests which the legislature considered when shaping the remedy."). Section 43.141(b) provides for disannexation only for the city's failure "to perform its obligations in accordance with the service plan " or for its failure to perform in good faith. TEX. LOC. GOV'T CODE ANN. § 43.141(b) (emphasis added). It does not provide for citizen disannexation for failure to comply with, for example, section 43.056.
The trial court did not err in granting the city's motion for summary judgment. We overrule Hall's issue and affirm the trial court's final summary judgment.