City of Waco v. City of McGregor , 523 S.W.2d 649 ( 1975 )

McGEE, Justice.

The City of Waco (Waco) brought this action against the City of McGregor (McGregor) for declaratory judgment declaring the Annexation Ordinance No. 7058 of McGregor to be void. This ordinance was passed as an emergency measure, without publication or public hearing by the McGregor City Council on December 12, 1966. The ordinance purports to annex a strip of land 261 feet wide, beginning at a point in the east city limit line of McGregor and extending in a northeasterly direction down U.S. Highway 84, approximately five miles, at which point it extended in a northerly direction to include a 900 acre tract of land owned by McGregor and used as a municipal airport. The trial court entered a take-nothing judgment and the court of civil appeals affirmed. 510 S. W.2d 637.

We reverse the judgments of the courts below and render judgment that the Annexation Ordinance of McGregor is void.

At all relevant times McGregor is a general law city having a population of less than 5,000 inhabitants. Waco is a home rule city and there is a dispute in the record as to whether Waco’s population at the relevant time was in excess of 100,000 or fell into the 50,000-100,000 classification. Regardless of the applicable population bracket, the airport and part of the stem extending out to it lie within the exclusive extraterritorial jurisdiction of Waco. The following map shows that the ordinance attempts to annex a strip and the airport which lie outside the extraterritorial jurisdiction of McGregor and within the extraterritorial jurisdiction of Waco.

Article 970a, Vernon’s Tex.Rev.Civ. Stat.,¹ commonly referred to as the Municipal Annexation Act, became effective August 23, 1963. It establishes certain limits on annexation and establishes extraterritorial jurisdiction of cities. Section 3, subd. A provides as follows:

“In order to promote and protect the general health, safety, and welfare of persons residing within and adjacent to the cities of this State, the Legislature of the State of Texas declares it 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 (½) mile of the corporate limits of such city.

“(4) The extraterritorial jurisdiction of any city having a population of fifty thousand (50,000) or more inhabitants, but less than one hundred thousand (100,000) inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within three and one half (3½) miles 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.” (Emphasis added).

Section 7 A provides as follows:

“A city may annex territory only within the confines of its extraterritorial jurisdiction; provided, however, that such limitation shall not apply to the annexation of property owned by the city annexing the same.”

In City of West Lake Hills v. State ex rel. City of .Austin, 466 S.W.2d 722 (Tex. 1971) this court found that the legislature has consistently required the extension of any town or city to be limited to contiguous and adjacent areas.

When read together, Section 7A of the Municipal Annexation Act and City of West Lake Hills permit McGregor to annex all property which is within its extraterritorial jurisdiction or which it owns so long as the annexed land is contiguous and adjacent to its corporate limits. In the ordinance attacked here, McGregor has attempted to annex a strip of land which is neither owned by McGregor nor within its extraterritorial jurisdiction. If the annexation of this stem is invalid, then the airport, although owned by McGregor, is not validly annexed as it would not be contiguous to the corporate limits of McGregor. City of West Lake Hills, supra.

It seems clear that McGregor’s Annexation Ordinance No. 7058 was void when it was passed since it attempted to annex territory (the stem from its extraterritorial jurisdiction limits to the airport) which Section 7 of the Municipal Annexation Act prohibited McGregor from annexing. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.1966); State ex rel. Howard v. City of Wichita Falls, 465 S.W.2d 459 (Tex.Civ.App. — Fort Worth 1971, writ ref’d n. r. e.). McGregor does not contend otherwise. McGregor’s position is that the attempted annexation has been validated by Article 974d-12, a general validating statute which became effective June 18, 1967.

Article 974d-12 applies to home rule cities with a population of 6,900 to 7,100 and to all general law cities. Section 2 provides :

“The boundary lines of all such cities and towns, including both the boundary lines covered by the original incorporation proceedings and any subsequent extensions thereof, are hereby in all things validated. No boundary extension of any kind shall be deemed invalid by failure to comply with requirements of publication, whether such requirements are imposed by statute, general law or charter, and such extensions are hereby in all things validated. In the event of multiple annexations covering the same territory, the proceedings prior in time shall prevail despite any irregularities hereby validated.”

The outcome of this case thus depends on the applicability of the above validating act. The question is not one of the power of the legislature — we do not doubt that the legislature could validate an attempted annexation such as this. Rather the question here is one of construction of the validation act, whether the legislature intended to validate attempted annexations such as the one before us. Tex.Rev.Civ.Stat.Ann. art. 10, subd. 6; Calvert v. Texas Pipe Line Co., Tex., 517 S.W.2d 777 (1975).

McGregor asserts that Article 974d-12 is a curative and remedial measure and should be given a liberal construction, relying upon City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951), and similar cases. However, Mc-Gregor overlooks the important qualification, made clear in City of Mason, that curative statutes are liberally construed only to effectuate the intent of the legislature in enacting them and not to other ends. City of Mason v. West Texas Utilities Co., supra; Burch v. City of San Antonio, Tex., 518 S.W.2d 540 (1975); 2 Sutherland Statutory Construction § 41.11 (4th ed. C. Sands 1973). Therefore, the rule of construction cited by McGregor does not obviate our duty to determine and apply legislative intent.

McGregor’s interpretation of Article 974d-12 would impart to the legislature an intent to put its stamp of approval upon any conceivable annexation by any general law city, no matter how extensive or preposterous the annexation might be. We do not believe the legislature intended such a result by passing a validation act in the general terms of Article 974d-12. Rather we read Article 974d-12, as we read the validating statutes involved in City of West Lake Hills, supra, in the light of the traditional annexation requirements of contiguity and adjacency. As we said in City of West Lake Hills:

“We find no statute which has expressly permitted the creation or extension of a municipal area with intervening territory interrupting the contiguity and adjacency of the corporate area. The Legislature has repeatedly required the extension of any town or city to be limited to ‘contiguous and adjacent area,’ or ‘territory joining the limits of any city’ or ‘additional territory lying adjacent to said city’ or ‘the adjacent territory desired to be annexed’ or ‘the territory contiguous to said city and proposed to be annexed’. In view of the repeated requirement of adjacency in the statutes, we do not believe that the validating statutes should be construed to a different effect in the absence of specific and express provision.” 466 S.W.2d 722, 729.

We reaffirm our belief expressed above that the legislature in passing a general validating statute such as Article 974d-12 did not intend to validate the annexation of noncontiguous or nonadjacent territory.

The remaining problem is to determine whether the annexation attempted by Mc-Gregor falls within the scope of Article 974d-12. There is no doubt that the entire area of the attempted annexation is contiguous to McGregor since it is touching in a geographical sense. It seems obvious that the only purpose for including the stem along Highway 84 was to make the airport contiguous to McGregor.

The question of adjacency is more difficult to determine. We said in State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957), that the term “adjacent” is usually accorded “the meaning of ‘neighboring or close by’ or ‘in the vicinity of and not necessarily contiguous or touching upon.’ ” Adjacency is a question of law which must be determined in the context of the facts of each particular case. City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.1964) ; City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325 (Tex.1969).

It is not necessary in this case to explore the limits of adjacency since we are given some legislative guidance in our determination. The legislature anticipated that conflicting claims such as the one before us would become more frequent as cities in Texas continued to grow. To avoid such situations the legislature enacted 'the Municipal Annexation Act in 1963 and established the concept of extraterritorial jurisdiction to structure the growth of cities and to protect cities from intrusions by their neighbors. In keeping with the purpose of the Municipal Annexation Act, we hold that territory within the exclusive extraterritorial jurisdiction of one city is not adjacent to any other city as a matter of law. Absent specific and express provisions in a validating statute, we will not presume that the legislature intended to validate such intrusions in violation of the Municipal Annexation Act.

In summary, we hold that Mc-Gregor’s Annexation Ordinance No. 7058 was void when passed since it violated Sections 3 and 7 of the Municipal Annexation Act. Article 974d-12 was not intended to and did not validate the annexation of either noncontiguous or nonadjacent territory. The portion of the stem along Highway 84 which intrudes into the exclusive extraterritorial jurisdiction of Waco is not adjacent to McGregor and so Mc-Gregor’s attempted annexation of that portion of the stem was not validated by Article 974d-12. Since that part of the stem is not validly annexed, the airport is not contiguous to McGregor and so McGregor’s attempted annexation of the airport was not validated by Article 974d-12.

We therefore reverse the judgments of the courts below and render judgment that the City of McGregor’s Annexation Ordinance No. 7058 is void.

Dissenting opinion by POPE, J., in which WALKER and DANIEL, JJ., join.

ON MOTION FOR REHEARING

1 . All statutory references are to Texas Revised Civil Statutes.