Karen Hall v. City of Bryan, Texas ( 2011 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-10-00403-CV
    KAREN HALL,
    Appellant
    v.
    CITY OF BRYAN, TEXAS,
    Appellee
    From the 272nd District Court
    Brazos County, Texas
    Trial Court No. 09-002813-CV-272
    MEMORANDUM OPINION
    The City of Bryan annexed part of Karen Hall’s property in 1999. For the second
    time, she sued the City for disannexation. See TEX. LOC. GOV'T CODE ANN. § 43.141(b)
    (West 2008). Because the trial court did not err in failing to file findings of fact and
    conclusions of law or in granting the City’s plea to the jurisdiction, we affirm the trial
    court’s judgment.
    BACKGROUND
    On July 17, 1999, the City adopted an ordinance annexing part of Hall’s property.
    In 2004, she sought disannexation.      The trial court granted the City’s motion for
    summary judgment and Hall appealed. We affirmed the trial court’s judgment in 2005.
    See Hall v. City of Bryan, No. 10-05-00417-CV, 2006 Tex. App. LEXIS 10280 (Tex. App.—
    Waco Nov. 29, 2006, pet. denied) (mem. op.). In 2010, Hall again sued the City for
    disannexation. The trial court granted the City’s plea to the jurisdiction and, the trial
    court, if it had any jurisdiction, granted the City’s motion for summary judgment.
    FINDINGS OF FACT AND CONCLUSIONS OF LAW
    In her first issue, Hall argues that the trial court erred in failing to file findings of
    fact and conclusions of law.        Hall timely filed a request for findings of fact and
    conclusions of law and a notice of past due findings of fact and conclusions of law with
    respect to the trial court’s decision to grant the City’s plea to the jurisdiction. See TEX. R.
    CIV. P. 296; 297.       A trial court has no duty, however, to file findings of fact and
    conclusions of law when a case, like this one, has been dismissed for lack of subject
    matter jurisdiction and no evidentiary hearing has been held.               See Zimmerman v.
    Robinson, 
    862 S.W.2d 162
    , 164 (Tex. App.—Amarillo 1993, no writ); Timmons v. Luce, 
    840 S.W.2d 582
    , 586 (Tex. App.—Tyler 1992, no writ). See also Wion v. Thayler, No. 10-09-
    00369-CV, 2010 Tex. App. LEXIS 9153, 2-3 (Tex. App.—Waco Nov. 17, 2010, no pet.)
    (mem. op.) (trial court did not err in failing to file findings of fact and conclusions of
    law after plea to the jurisdiction granted). Accordingly, the trial court did not err in
    failing to file findings of fact and conclusions of law, and Hall’s first issue is overruled.
    PLEA TO THE JURISDICTION
    In her second issue, Hall asserts that the trial court erred in granting the City’s
    plea to the jurisdiction. The City’s initial argument is that Hall lacks standing to bring
    Hall v. City of Bryan                                                                     Page 2
    her claim.
    Standing is a prerequisite to subject matter jurisdiction and may be raised by a
    plea to the jurisdiction. DaimlerChrysler Corp. v. Inman, 
    252 S.W.3d 299
    , 313 (Tex. 2008).
    Whether a court has subject matter jurisdiction is a question of law. Tex. Natural Res.
    Conservation Comm'n v. IT-Davy, 
    74 S.W.3d 849
    , 855 (Tex. 2002). When a plea to the
    jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that
    affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Ass'n of Bus. v.
    Tex. Air Control Bd., 
    852 S.W.2d 440
    , 446 (Tex. 1993).         However, if a plea to the
    jurisdiction challenges the existence of jurisdictional facts, we consider relevant
    evidence submitted by the parties when necessary to resolve the jurisdictional issues
    raised as the trial court is required to do. Tex. Dep't of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 227 (Tex. 2004).
    Disannexation
    The Texas Constitution grants cities the power to annex, or bring within its
    jurisdiction, land. TEX. CONST. art XI, § 5. The Legislature establishes procedures to be
    used by cities in conducting annexations. See TEX. LOC. GOV'T CODE ANN. ch. 43 (West
    2008). When a city brings property into its jurisdiction, it must present a proposed plan
    for providing city services to the area being annexed. See TEX. LOC. GOV'T CODE ANN. §
    43.056 (West 2008). If the city then fails or refuses to provide services or fails or refuses
    to cause services to be provided to the area, a majority of the qualified voters of the
    annexed area may petition the city for removal of the annexed property from the city by
    a process called ―disannexation.‖ 
    Id. § 43.141(a).
    If the city fails or refuses to disannex
    Hall v. City of Bryan                                                                  Page 3
    the area within a specified time period, a lawsuit for disannexation may be brought by
    any one of the signers of the petition for disannexation. 
    Id. § 43.141(b).
    The district
    court shall enter an order disannexing the area if the court finds that the city ―failed to
    perform its obligations in accordance with an annexation service plan or failed to
    perform in good faith.‖
    But the process of disannexation, which an individual property owner has
    standing to do under section 43.141 of the Local Government Code, is distinguishable
    from complaints about the annexation process in the first instance. Complaints about
    the annexation process cannot normally be brought by individual landowners. See City
    of San Antonio v. Hardee, 
    70 S.W.3d 207
    , 211 (Tex. App.—San Antonio 2001, no pet.)
    (plaintiffs did not have standing to complain that city did not follow the procedures set
    out in section 43.052(b)-(c)); Alexander Oil Co. v. City of Seguin, 
    825 S.W.2d 434
    , 438 (Tex.
    1991) (plaintiff could not complain that notice given by city did not comply with statute;
    that city failed to conduct proper and timely hearings and failed to provide, and
    continued to fail to provide, a service plan as required; that city annexed the property
    for the purpose of levying ad valorem taxes; and that city had no ability or intention to
    provide service to the property); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer,
    
    904 S.W.2d 656
    , 658 (Tex. 1995) (plaintiff had no standing to challenge alleged failures to
    meet the notice and signature requirements). That is the crux of footnote one in our
    earlier opinion regarding Hall’s initial efforts to disannex her property. Hall v. City of
    Bryan, No. 10-05-00417-CV, 2006 Tex. App. LEXIS 10280, n. 1 (Tex. App.—Waco Nov.
    29, 2006, pet. denied) (mem. op.).
    Hall v. City of Bryan                                                                    Page 4
    Therefore, to determine if the trial court has jurisdiction of a disannexation suit,
    the nature of the landowner’s complaints have to be closely examined to determine if
    the complaint is about the annexation process or the implementation of the annexation
    plan. See City of San 
    Antonio, 70 S.W.3d at 210
    (Historically, a review of an individual
    party's standing to challenge annexation inquires whether the challenge attacks a city's
    authority to annex the area in question or simply complains of some violation of
    statutory procedure.); see also City of Wichita Falls v. Pearce, 
    33 S.W.3d 415
    , 417 (Tex.
    App.—Fort Worth 2000, no pet.). A misrepresentation by the city about the plan in the
    annexation process is the former type complaint, and an individual property owner
    does not have standing to sue for disannexation. In that instance, the only proper
    method for attacking the city's annexation of territory is through a quo warranto
    proceeding.1 Alexander Oil 
    Co., 825 S.W.2d at 436
    . On the other hand, a complaint that
    the city has failed to provide services to specific property that was annexed, under a
    service plan or in good faith, gives that individual property owner standing to sue the
    city to have the property disannexed. TEX. LOC. GOV'T CODE ANN. § 43.141(b) (West
    2008).
    Even an annexation and services plan that was not made in ―good faith‖ could
    nevertheless be implemented or attempted to be implemented in good faith. In effect,
    the motive for the annexation and the implementation of the annexation services plan
    are, and must remain, distinct because only a complaint about the latter gives an
    1Quo warranto proceedings are used by the State to protect itself and the good of the public through
    agents of the State who control the proceedings. City of Rockwall v. Hughes, 
    246 S.W.3d 621
    , 627 n. 8 (Tex.
    2008).
    Hall v. City of Bryan                                                                               Page 5
    individual landowner the right to complain, i.e. standing, and thus the right to have
    property disannexed.       See Alexander Oil 
    Co., 825 S.W.2d at 436
    n. 1. (―There is no
    provision for judicial inquiry into a municipality’s motives to annex land.‖)
    Thus we will closely examine the allegations in Hall’s petition to see if she is
    complaining about having been annexed in the first instance or whether she is
    complaining about the City’s lack of a good faith effort in its performance to provide
    services to the area.
    Hall’s Lawsuit
    Hall brought her disannexation suit strictly pursuant to the provision that the
    City failed to perform in good faith. She acknowledged in her first amended petition
    that
    The City’s failure to provide a statutorily adequate Service Plan was
    directly litigated in Hall v. City of Bryan, 2006 Tex. App. LEXIS 10280 (Tex.
    App.—Waco, Nov. 29, 2006, pet. denied). A copy of the Opinion is
    attached for the Court’s reference as Exhibit ―C.‖ The Court held that an
    individual citizen could only hold the City to what is promised in the
    Service Plan and not to what was required by TEX. LOC. GOV’T CODE §
    43.056. This petition is limited to the City’s lack of good faith in annexing Hwy.
    21 E. (Emphasis added).
    It is undisputed that the City is not providing full municipal services to the area
    annexed. Hall’s complaints with the City’s failure to perform in good faith, however,
    relate back to representations, or lack thereof, made by the City at the public hearings
    held prior to the annexation. The gist of Hall’s petition is that the City promised at
    those public hearings to provide services pursuant to section 43.056 of the Local
    Government Code (Provision of Services to Annexed Area) and failed to do so. Hall
    Hall v. City of Bryan                                                                        Page 6
    alleged in her petition that the City ―chose to be invidiously misleading, evasive or
    totally non-responsive to requests for information about the State of Texas mandated
    services.‖ She further alleged in the conclusion of her petition that
    Bryan’s deception during public hearings – by admission or omission –
    about services rural residents would receive after annexation is beyond
    disingenuous. Bryan never intended to meet that obligation and the flim-
    flam offered at those public hearings is further evidence of Bryan failing to
    perform in good faith.
    This is an attack on the validity of the annexation in the first instance, not that the City
    failed to perform in good faith. Hall’s attack is, therefore, not governed by section
    43.141(b). See City of Wichita 
    Falls, 33 S.W.3d at 417
    .
    Accordingly, because of the type of complaint made by Hall in her first amended
    petition, she has no standing to proceed with her petition for disannexation; and the
    trial court did not err in granting the City’s plea to the jurisdiction.
    Her second issue is overruled.
    CONCLUSION
    Having found that the trial court did not err in granting the City’s plea to the
    jurisdiction, we need not review Hall’s remaining two issues regarding the City’s
    motion for summary judgment. 2 The trial court’s judgment is affirmed.3
    2We note, however, that by finding it had no jurisdiction of the proceeding, the trial court could not
    properly dispose of the proceeding on the merits of the issue as presented in the summary judgment
    motions and resulting judgment.
    3 Our affirmance of the trial court’s judgment should not be construed as a validation of the process
    through which the City has annexed property and subjected the existing property owners to full city
    taxation without also providing full city services. If the annexation procedure does not provide for
    providing services to existing property owners without them having to pay for the services, it appears to
    be non-compliant with the annexation statute. See TEX. LOC. GOV’T CODE ANN. § 43.056(f)(2) (West 2008).
    Hall v. City of Bryan                                                                             Page 7
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed October 5, 2011
    [CV06]
    Thus, when the city service plan called for the extension of services to the annexed area only if the
    property owner/developer, including existing residents, paid for the extension of services, the plan
    appears to depart from the statute. Failure of the service agreement to provide for services to existing
    residents in the area annexed without those residents having to pay for the extension services to the area
    appears to be a deficient service agreement under the statute. Such a deficiency, if any, is a part of the
    annexation process about which Hall cannot complain in this proceeding. Her complaint is not that the
    service plan that was adopted and implemented was not complied with, but that the service plan that
    should have been adopted and implemented has not been complied with.
    Hall v. City of Bryan                                                                              Page 8