City of Murphy v. City of Parker , 932 S.W.2d 479 ( 1996 )

CORNYN, Justice,

delivered the Opinion of the Court,

in which PHILLIPS, Chief Justice, and HECHT, ENOCH and SPECTOR, Justices, join.

Section 43.901 of the Local Government Code provides:

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 if:

(1) two years have expired after the date of the adoption of the ordinance; and

(2) an action to annul or review the adoption of the ordinance has not been initiated in that two-year period.

Tex.Loc.Gov’t Code § 43.901. In this case we determine whether section 43.901 bars a municipality’s suit complaining of a noncon-sensual annexation of land within its extraterritorial jurisdiction if it fails to challenge the annexation within two years. We hold that it does.

The City of Parker and the City of Murphy are both located in Collin County, Texas. On November 28, 1988, the owners of a 27.55-aere tract of land petitioned Parker for annexation. After publishing notice in the Plano Star Courier and conducting public hearings, Parker passed an ordinance purporting to annex the tract on January 10, 1989. Approximately fourteen acres of the tract, known as the Dublin Road Estates, were within Murphy’s extraterritorial jurisdiction (ETJ) and thus outside Parker’s ETJ.

Murphy sued on September 1, 1993, seeking a declaration that the annexation was void. The trial court granted Parker a summary judgment, holding that the suit was barred under section 43.901 because it had been filed more than two years after the annexation. A divided court of appeals affirmed. — S.W.2d-, 1994 WL 500795.

Murphy raises two substantive challenges to the annexation. First, it contends that the annexation is void because Parker did not obtain Murphy’s consent.¹ Although Parker concedes that it lacked consent, the parties dispute whether section 43.901 bars Murphy from challenging the annexation. Second, Murphy argues that because some of the annexed land was outside Parker’s ETJ, Parker lacked authority to annex the land under any circumstances. See TexLoc.Gov’t Code § 43.051.

As a general rule, a city may not annex land in another city’s ETJ without that city’s consent. City of Duncanville v. City of Woodland Hills, 484 S.W.2d 111, 113 (Tex.Civ.App. — Waco), writ refd per curiam, 489 S.W.2d 557 (Tex.1972), overruled in part on other grounds, Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 439 (Tex.1991); see City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 908 (Tex.Civ.App. — Houston [1st Dist.]), writ refd per curiam, 608 S.W.2d 618 (Tex.1980). Consent to annexation of another city’s ETJ must be in writing. Tex Loc. Gov’t Code § 42.023. Parker undeniably failed to obtain written consent from Murphy.

Murphy argues first that because section 43.901 refers only to “all appropriate persons,” it does not apply to municipalities, only to individual landowners and residents in the annexed area. The Code Construction Act leads us to a different conclusion. The Act defines “person” as a “corporation, organization, government or government subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.” Tex Gov’t Code § 311.005(2). This definition clearly includes municipalities. Murphy also contends that examination of Article 974c-4 of the Texas Revised Civil Statutes, the predecessor to section 43.901, demonstrates legislative intent that the statute apply only to individual inhabitants of the annexed land. That statute provided;

Section 1. All city charters, city charter amendments, ordinances and proceedings of the governing bodies of all incorporated cities, including home rule cities, defining the boundaries of such incorporated cities or annexing thereto territory adjoining any such city with the consent of a majority of the inhabitants of such annexed territory, are hereby ratified and confirmed.

Section 2. After the expiration of two (2) years from the date of any ordinance defining boundaries of or annexing territory to any incorporated city, consent to the annexation and inclusion of such territory in such city shall be conclusively presumed if no action has then been commenced to annul or review such act.

Act of May 15, 1949, 51st Leg., ch. 508, 1949 Tex.Gen.Laws 930, repealed by Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 49(1), 1987 Tex.Gen.Laws 707, 1306-07 (current version at TexLoc.Gov’t Code § 43.901). We find no language in the predecessor statute suggesting that it did not apply to municipalities. We conclude 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.

Murphy further argues that if section 43.901 includes municipalities, it creates an alternate method by which a city may consent to reduction of its ETJ, and therefore conflicts with the written consent requirement of section 42.023. We disagree. The statute does not allow annexing cities to circumvent section 42.023, but mandates that any suit brought to challenge such action after two years is time-barred. Section 43.901 is, in effect, a statute of limitations. Of course, no statute of limitations directly addresses the merits of a claim to which it is interposed as a bar. Instead, limitations rest on a legislative policy judgment that requires the diligent pursuit of one’s legal rights at the risk of losing them if they are not timely asserted. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). This policy choice finds value in settled expectations and reliance interests.

In section 43.901, the Legislature has recognized the need for certainty in municipal boundaries. After annexing land, a municipality must provide services to the area, including police and fire protection, trash collection, and maintenance of roads, streets, water facilities, parks and playgrounds. Tex.Loc.Gov’t Code § 43.056(b). Residents depend on, and pay taxes for, these vital services. To invalidate a municipal annexation long after a city establishes these services would create confusion and hardship for the residents. The Legislature has directed that at a certain point in time, defects in an annexation must yield to the interests of stability. The statute conclusively presumes that after two years, all required consent to an annexation was given; thus all challenges based on lack of actual consent are barred.

We note that in designating ETJ, the Legislature’s purpose was “to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities.” Tex.Loc.Gov’t Code § 42.001. Murphy’s interpretation of section 43.901 is contrary to this purpose because it would bar residents and landowners, the parties most directly affected by an annexation, from challenging an annexation after two years, but would allow the adjacent municipality to challenge an annexation at any time.

Finally, Murphy challenges the annexation on the grounds that part of the annexed land was outside Parker’s ETJ. This argument, however, is merely an extension of Murphy’s argument that Parker illegally annexed land in Murphy’s ETJ. Had Murphy expressly consented to relinquish its jurisdiction over the land, Parker could have extended its ETJ to include it. Again, 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.

We reject Murphy’s argument that Parker failed to establish that it could have extended its ETJ by Murphy’s consent to include the disputed land. Murphy contends that Parker was not entitled to summary judgment on this issue because it did not present any evidence of its population at the time of the annexation. But Murphy erroneously assumes that Parker’s ETJ could have expanded only by operation of law based on the city’s population. A city’s ETJ may also expand by request of the land’s owners. Tex.Loc.Gov’t Code § 42.022(b). Here, the summary judgment evidence reveals that the landowners in question asked Parker to annex their land. This request would have been sufficient to permit Parker to expand its ETJ under section 42.022.

After two years, section 43.901 created the conclusive presumption that Murphy consented to the annexation, and barred any subsequent challenges by Murphy. Aceord-ingly, we affirm the judgment of the court of appeals.

BAKER, J., not sitting.

1 . The dissent contends that because the Legislature has not given Murphy the authority to annex the disputed land, its ordinance is void and “cannot be resurrected.” 932 S.W.2d at 484. We obviously disagree with that conclusion. The Legislature created the municipal annexation scheme, and given its undisputed power to create that scheme, it follows that it must also have the power to grant repose to potential annexation disputes by enacting curative legislation like section 43.901. Indeed, the Legislature has the power to entirely eliminate the requirement that a city give its written consent to a reduction of its ETJ. Our cases have expressly acknowledged the Legislature's power to ratify any act which it had the power to authorize, even if the act was void in its inception. Perkins v. State, 367 S.W.2d 140, 145 (Tex.1963); State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1078-79 (1932); City of Arlington v. City of Grand Prairie, 451 S.W.2d 284, 290 (Tex.Civ.App. — Fort Worth 1970, writ refd n.r.e.)