Opinion
No. 02-06-227-CV
Delivered: April 19, 2007.
Appeal from the 355TH District Court of Hood County.
PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
OPINION
After Granbury passed the Resolution, several owners of land included within the Disputed Tracts petitioned Cresson for their land to be included within Cresson's ETJ. Then, Granbury conducted two hearings on its five proposed annexation ordinances — as required by the Resolution and state law — on May 17, 2005 and May 19, 2005. On June 3, 2005, before the Granbury city council could vote on the annexation ordinances proposed in the Resolution, Cresson adopted and approved four ordinances accepting the landowners' petitions to include the Disputed Tracts within Cresson's ETJ and expanding Cresson's ETJ accordingly. On June 21, 2005, during one counsel session Granbury adopted the five sequential annexation ordinances proposed by the Resolution. The first ordinance annexed the one-mile tract already included within Granbury's then-existing ETJ; the second through fifth ordinances annexed the Disputed Tracts. Cresson had already passed an additional ordinance on June 14 and then passed another on June 28, 2005, expanding its ETJ to include additional property of the landowners who had petitioned to be included within its ETJ. None of this property was included within the area purported to be annexed by Granbury in accordance with the Resolution; however, Granbury nonetheless challenges these ordinances as void because it claims that the property described in those ordinances is now included within its ETJ as extended by its annexation of the Disputed Tracts.
Cresson filed suit seeking a declaration that the final four annexations adopted by Granbury on June 21, 2005 are void because the Disputed Tracts were already in Cresson's ETJ. Granbury filed an amended answer and counterclaim seeking to have all of Cresson's ETJ expansion ordinances declared void. The parties filed competing motions for summary judgment. The trial court granted Granbury's motion and signed a final judgment ordering that Cresson's ETJ expansion ordinances are void, and that the five sequential annexation ordinances adopted by Granbury on June 21, 2005 are valid.
The record contains a letter opinion from the trial judge indicating that it was his opinion that Granbury's "commencement of legal proceedings asserting legal authority over the territory in question resulted in its acquiring jurisdiction over such territory which cannot be defeated by [Cresson's] subsequent attempted jurisdictional activity." In other words, the trial court decided that the first-in-time rule applied to, and resolved, the conflict here.
Standard of Review
When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The reviewing court should render the judgment that the trial court should have rendered. Id.
A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See TEX. R. CIV. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. ofDesoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see TEX. R. CIV. P. 166a(b), (c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Mason, 143 S.W.3d at 798. Questions of law are appropriate matters for summary judgment. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 178 (Tex.App.-Fort Worth 2004, pet. filed) (op. on reh'g).
Issues on Appeal
Cresson contends that the trial court erred by concluding that its June 3, 2005 ordinances expanding its ETJ to include the Disputed Tracts, and its June 14 and 28, 2005 ordinances including land contiguous to the Disputed Tracts within its ETJ, are void and that Granbury's June 21, 2005 ordinances annexing the Disputed Tracts are valid. According to Cresson, Granbury's ETJ did not expand to include the Disputed Tracts when Granbury passed the Resolution; consequently, on June 3, 2005, Granbury had no claim to the Disputed Tracts and Cresson had the right to include the Disputed Tracts within its ETJ, making Granbury's subsequent annexation of the properties invalid under the local government code. See TEX. LOC. GOV'T CODE ANN. §§ 42.023, 43.051 (Vernon 1999). Granbury contends that the common law first-in-time rule controls and that by indicating in the Resolution its intention to sequentially annex the five tracts at the same time, it acquired priority over Cresson as to the Disputed Tracts upon passage of the Resolution.
Applicable Law
Before passage of the Municipal Annexation Act in 1963, cities' competing claims to property were governed by the common law "first-in-time" rule. City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 630 (Tex.App.-Fort Worth 2003, pet. denied). This rule provided that the first municipality to begin annexation procedures on unclaimed territory obtained exclusive jurisdiction over that property. City of San Antonio v. Boerne, 111 S.W.3d 22, 27 (Tex. 2003); City of Roanoke, 111 S.W.3d at 630; Village of Creedmoor v. Frost Nat'l Bank, 808 S.W.2d 617, 618 (Tex.App.-Austin 1991, writ denied). The Texas Supreme Court has described the effect of annexation in accordance with the first-in-time rule as follows:
This virtually unbridled annexation authority enabled cities to claim territory without incurring any obligation to provide new services or to formally annex the designated property. The result, as noted by one commentator, was that "cities were quick to engage in annexation wars and to stake [their] claim[s]."
Boerne, 111 S.W.3d at 27 (citations omitted).
The legislature enacted the Municipal Annexation Act in 1963 to resolve conflicting claims between growing and expanding cities. Id.; City of Roanoke, 111 S.W.3d at 630; Village of Creedmoor, 808 S.W.2d at 618. With the Municipal Annexation Act, the legislature created a statutory scheme, based upon the concept of ETJs, to determine whether a municipality may exercise jurisdiction over a particular area. City of Roanoke, 111 S.W.3d at 630; Village of Creedmoor, 808 S.W.2d at 618 (stating that whether a municipality first exercises jurisdiction over an area is no longer always determined by legal proceedings but by ETJ). In doing so, it declared that the policy of this state is to designate certain areas as the ETJ of municipalities to promote and protect the general health, safety, and welfare of persons residing in and adjacent to those municipalities. See Act of April 29, 1963, 58th Leg., R.S., ch. 160, article I, § 3.A., 1963 Tex. Gen. Laws 447, 447 (current version at TEX. LOC. GOV'T CODE ANN. § 42.001 (Vernon 1999)). A municipality may annex property only if it is included within its ETJ or if the municipality owns the property. TEX. LOC. GOV'T CODE ANN. § 43.051; Boerne, 111 S.W.3d at 27. A municipality may not annex land included within another municipality's ETJ without the other municipality's consent. TEX. LOC. GOV'T CODE ANN. § 42.023; City of Murphy v. City of Parker, 932 S.W.2d 479, 481 (Tex. 1996). The size of the unincorporated area that a municipality is allowed to claim as its ETJ is determined by its population and defined by statute. TEX. LOC. GOV'T CODE ANN. § 42.021; see supra note 3. A municipality may expand its ETJ in three ways: population growth, voluntary petition of a contiguous land owner, or extension of the municipal boundaries through annexation. TEX. LOC. GOV'T CODE ANN. § 42.022(b), (c). The expansion of one municipality's ETJ by any of these three methods cannot include any area that extends into the existing ETJ of another municipality. Id. § 42.022(c).
A city may expand its ETJ when contiguous landowners request inclusion of their property within the city's ETJ. Id. § 42.022(b).
Under the current statutory scheme, municipalities have ninety days to complete the annexation process. Id. § 43.064 (Vernon Supp. 2006). The mere institution of annexation proceedings does not conclude the annexation process. City of San Antonio v. Boerne, 61 S.W.3d 571, 576 (Tex.App.-San Antonio 2001), rev'd on other grounds, 111 S.W.3d 22 (Tex. 2003); City of Arlington v. City of Grand Prairie, 451 S.W.2d 284, 288 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e.); see TEX. LOC. GOV'T CODE ANN. § 43.064. Thus, a municipality does not acquire jurisdiction over property until final passage of an annexation ordinance. City of Arlington, 451 S.W.2d at 288. Likewise, because the plain language of section 42.022(a) provides that ETJ "expands with the annexation," a municipality's ETJ does not correspondingly expand until final passage of an annexation ordinance, rather than when annexation proceedings are first initiated. TEX. LOC. GOV'T CODE ANN. § 42.022(a) (emphasis added); City of Longview v. State ex rel. Spring Hill Util. Dist., 657 S.W.2d 430, 431 n. 2 (Tex. 1983); Boerne, 61 S.W.3d at 576; cf. Universal City v. City of Selma, 514 S.W.2d 64, 70-71 (Tex.Civ.App.-Waco 1974, writ ref'd n.r.e.) (holding that ETJ attaches only upon completion of incorporation of city), disapproved of on other grounds by Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434 (Tex. 1991). In other words, there cannot be new ETJ until there are new city limits. Boerne, 61 S.W.3d at 576.
But see Fuller Springs v. State ex rel. City of Lufkin, 503 S.W.2d 351, 352-53 (Tex.Civ.App.-Beaumont 1973) (holding that passage of annexation ordinance on first reading — rather than final passage — operated to extend ETJ so as to assert authority over territory in question), rev'd on other grounds, 513 S.W.2d 17 (Tex. 1974).
Analysis
Granbury acknowledges that its ETJ did not expand to include the Disputed Tracts until it actually passed the first of the five sequential annexation ordinances on June 21, 2005; however, it contends that even though the Disputed Tracts were not included in its ETJ until that time, Cresson was nevertheless prohibited from expanding its ETJ into that area. According to Granbury, the current statutory scheme is silent as to which city has priority over an area when one of the cities proposes to use the sequential annexation procedure used by Granbury here; therefore, the first-in-time rule should be applied as a gapfiller. See Village of Creedmoor, 808 S.W.2d at 618 (stating that "[t]he principle of first-in-time priority is still important in municipal law," but applying controlling statute — local government code section 42.041 — to resolve appeal); cf. City of Arlington, 451 S.W.2d at 291-92 (applying first-in-time rule to determine which of two ordinances should control when both were initially invalid but later made valid by legislative validating acts).
However, the current statutes adequately address Cresson's and Granbury's competing claims, so there is no need to resort to the common law first-in-time rule as a gapfiller. Granbury was not entitled to assert jurisdiction over the Disputed Tracts until final passage of the first of its five sequential ordinances on June 21, 2005; under sections 42.022(c) and 43.051 of the local government code, it did not acquire any ETJ in the Disputed Tracts until its first annexation was complete. TEX. LOC. GOV'T CODE ANN. §§ 42.022(c), 43.051; City of Longview, 657 S.W.2d at 431 n. 2; Boerne, 61 S.W.3d at 576; cf. Universal City, 514 S.W.2d at 70-71. Thus, when Cresson enacted its June 3, 2005 ordinances including the Disputed Tracts within its ETJ — which it was authorized to do under section 42.022(b) — no other city, including Granbury, had any jurisdictional rights to the Disputed Tracts. It follows that when Granbury finally adopted the first of its five annexation ordinances on June 21, 2005, its ETJ could not expand into the Disputed Tracts under section 42.022(c) because the Disputed Tracts were already included within Cresson's ETJ under section 42.022(b). Accordingly, Granbury's final four June 21, 2005 ordinances purporting to annex the Disputed Tracts are void. See City ofWaco v. City of McGregor, 523 S.W.2d 649, 652, 654 (Tex. 1975); City of Houston v. Savely, 708 S.W.2d 879, 887 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.), cert. denied, 482 U.S. 928 (1987).
Granbury contends that because the supreme court has approved of the immediately sequential annexation process that it used here, the first-in-time rule should operate to "save" the entire area proposed to be annexed according to that process. See City of Longview, 657 S.W.2d at 431 n. 2. But in City of Longview, there was no competing claim to the as-yet-created ETJ resulting from the sequential annexations. Id. at 431. There is no question that Granbury's ordinances annexing the Disputed Tracts would be valid if Cresson had not been able to properly include them within its ETJ by statute.
We hold that Granbury's final four June 21, 2005 annexation ordinances are void and that Cresson's June 3, June 14, and June 28, 2005 ETJ expansion ordinances are valid. Accordingly, the trial court erred by granting summary judgment for Granbury. We sustain Cresson's three issues. Because Cresson asks that we render judgment granting its competing motion for judgment and because Granbury raised several additional issues in response to Cresson's summary judgment motion, we must also address those issues in determining whether the trial court properly denied Cresson's motion.
Neither of the parties discusses these issues in their briefing, presumably because it is clear from the record that the trial court granted Granbury's summary judgment upon application of the first-in-time rule. However, because Cresson requests that this court render summary judgment in its favor — and because Granbury never expressly conceded these issues on appeal — we will address them in determining whether to render judgment for Cresson.
In its response to Cresson's motion for summary judgment, Granbury raised three matters that it contended create a fact issue precluding summary judgment: (1) that after Cresson's June 3 ordinance was adopted, a member of the city council instructed a citizen who asked questions about the ETJ expansions that he would talk to her about the matter after the meeting and that "[ i] f a quorum of Cresson's city council were present during this conversation, it would have been an illegal meeting under the Texas Open Meetings Act"; (2) that a hushed conversation occurred during the June 3 meeting between "a member of the governing body and another" concerning the ETJ expansions, at the very least raising a fact issue concerning a potential violation of the Open Meetings Act; and (3) that there is a fact issue concerning whether the agenda for the June 3 meeting was posted at least seventy-two hours beforehand. [Emphasis added.] The inadequate notice allegation cannot defeat summary judgment because it must be brought in a quo warranto proceeding. Alexander Oil Co., 825 S.W.2d at 436; City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex.App.-San Antonio 2001, no pet.). Moreover, the Open Meetings Act violation allegations fail to raise a fact issue because there is no evidence that any of the private conversations alluded to by Granbury occurred with a quorum of the city council present; nor is there any evidence regarding the content of those discussions so that it can be determined whether they qualify as a "meeting" under the Open Meetings Act. See TEX. GOV'T CODE ANN. § 551.002 (Vernon 2004). Accordingly, we also hold that the trial court erred by denying summary judgment for Cresson. We sustain all three of Cresson's issues.
Conclusion
Having sustained Cresson's three issues on appeal, we reverse the summary judgment in favor of Granbury and render summary judgment in favor of Cresson.