City of Patton Village, Texas v. Concerned Citizens Against Wrongful Annexation by Patton Village, Randall T. Hyde, Jonathan Fife, and Holly Hessong ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00368-CV
__________________
CITY OF PATTON VILLAGE, TEXAS, Appellant
V.
CONCERNED CITIZENS AGAINST WRONGFUL ANNEXATION
BY PATTON VILLAGE, RANDALL T. HYDE, JONATHAN FIFE,
AND HOLLY HESSONG, Appellees
__________________________________________________________________
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 20-02-02477-CV
__________________________________________________________________
MEMORANDUM OPINION
In this interlocutory appeal, the City of Patton Village (the “City”),
appeals the denial of its plea to the jurisdiction in a lawsuit filed by a
group of plaintiffs (the “Plaintiffs”), an unincorporated association named
Concerned Citizens against Wrongful Annexation By Patton Village, and
three owners whose lots were annexed by the City, Randall T. Hyde,
1
Jonathan Fife, and Holly Hessong. 1 In their petition, the Plaintiffs
alleged that defects in the procedures followed when the City adopted two
annexation ordinances, one in 1992 and the second in 2004, made the
annexation ordinances invalid. According to the Plaintiffs, the property
was not annexed because the two annexation ordinances were void,
leaving the areas the City annexed including the Plaintiffs’ lots outside
the then existing territorial boundaries of the City.
In response to the suit, the City filed a plea to the jurisdiction. In
its plea, the City asserted that the statutes of limitations that applied to
the Plaintiffs’ claims were statutory prerequisites to the court’s right to
maintain jurisdiction over the Plaintiffs’ suit against the City, a
governmental entity. And it asserted the statutes of limitation as
affirmative defenses to the Plaintiffs’ claims. The trial court considered
the City’s plea by submission and signed an order denying the plea. After
that, the City filed a timely notice of appeal. We note our jurisdiction over
the parties and the appeal.2
1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8) (authorizing
interlocutory appeal from denial of a plea to the jurisdiction).
2Id.
2
On appeal, the City challenges Hyde’s, Fife’s, and Hessong’s
standing to challenge the validity of the 1992 and 2004 annexation
ordinances. The City also challenges the trial court’s exercise of
jurisdiction over Hyde’s, Fife’s, and Hessong’s annexation claims.
According to the City, the statutes of limitations that apply to the
Plaintiffs’ claims are jurisdictional prerequisites to the Plaintiffs’ right to
maintain their suit. And for the first time, the City asserts the trial court
lacks jurisdiction over Hyde’s, Fife’s, and Hessong’s statutory- and
governmental-takings claims.
Turning to the claims of Concerned Citizens, the City argues that
the various statutes of limitations that apply to the Plaintiffs’ claims bar
all claims asserted by Concerned Citizens. The City also argues that the
statutes of limitation are jurisdictional prerequisites as to Concerned
Citizens claims too, which bars Concerned Citizens from suing because it
didn’t sue the City until 2020, long after the statute of limitations that
apply to any claims possibly held by the homeowners they represent had
expired.
Given the allegations in the Plaintiffs Original Petition, their live
pleading, we disagree with the Plaintiffs that the 1992 and 2004
3
Ordinances are void. We further conclude the Plaintiffs may not, more
than a decade after the annexation Ordinances were passed, challenge
the validity of the ordinances when they failed to establish the
Ordinances are void. Without establishing the Ordinances are void or
that Local Government Code Chapter 43.908’s limited waiver of
immunity applies, the trial court did not have jurisdiction over the
Plaintiffs’ claims challenging the validity of the Ordinances at issue
here.3 As we explain below, the Plaintiffs failed to establish the trial court
had jurisdiction over their claims, so we reverse the trial court’s order
denying the City’s plea.
I. Background
The City of Patton Village is a Type A general-law municipality,
located in Montgomery County. In July 1992, the City passed Ordinance
92-003 (the 1992 Ordinance), annexing a tract of property connected by
a road leading into the subdivision to what was then the City’s eastern
boundary, Tram Road. Through the 1992 Ordinance, the City proclaimed
it was annexing Section #1 of King’s Country Estates, a subdivision of
186.2875 acres in Block A-552, Montgomery County, in the W.S. Taylor
3Tex. Loc. Gov’t Code Ann. § 43.908.
4
Survey. A document attached to the 1992 Ordinance contains a legal
description of the tract being annexed, a description consistent with the
tract in the 1992 Ordinance. It describes the tract as a subdivision
comprised of four blocks containing 40 lots, owned by King’s Country
Limited. When the City passed the 1992 Ordinance, however, the City’s
mayor, Kenneth Jenkins, failed to have the ordinance recorded in the
official property records of Montgomery County within thirty days, which
is the period a municipality is allowed by Texas law to record an
annexation ordinance in the official property records maintained by the
county or counties where the property that was annexed is located.4
In 2004, the City passed a second ordinance, Ordinance 2004-001,
(the 2004 Ordinance). In the 2004 Ordinance, the City annexed another
tract of property, a tract adjacent to what was then the City’s existing
eastern boundary, Tram Road. Like the tract the City annexed in 1992,
the 2004 tract is in Block A-552 of the W.S. Taylor Survey. The 2004 tract
also shares part of its eastern border with the western border of the tract
annexed by the City in 1992. That said, the tract annexed in 2004 is a
smaller tract, and it doesn’t share its entire eastern border with the
4Id. § 41.0015 (Notice of Municipal Boundary Change).
5
western border of the tract the City annexed in 1992. The 2004 Ordinance
describes the area the City annexed that year as follows:
The area is less than one half mile in width and extends from
one half mile north of Short Street to one half mile south of
Long Street. The Western boundary is Tram Road (City of
Patton Village). The width of the area is one thousand four
hundred five feet (plus or minus). The area is partially
contiguous with King’s Country Estates on the east (which
was incorporated into Patton Village on 14 July 1992). 5
We have included a screenshot of the map taken from the documents the
City recorded in Montgomery County in 2004 after passing the 2004
Ordinance. The map depicts the area the City annexed in 1992, showing
the area on the map in stripes. The area, which is striped, is also marked
“SITE.” While not the purpose of the map attached below, the map in
general also shows the area the City annexed in 2004. Generally, the
areas just above and below a narrow strip of land tying the western
boundary of the area annexed in 2004 to Tram Road are included in the
territory the City annexed in 2004.
5The “on the east” clause in the 2004 Ordinance is ambiguous given
where the clause is placed. Yet from the maps and other evidence the
parties attached to their motions for summary judgment, the “on the
east” clause can be construed to mean: “The area [annexed in 1992] is
partially contiguous [on its eastern border] with King’s Country
Estates[.]” To be clear, no one has ever argued the 2004 Ordinance
describes a tract lying east of the tract the City annexed in 1992.
6
The documents the City filed of record in Montgomery County in
2004 include the following: (1) a copy of section 41.003 of the Local
Government Code, which under circumstances the statute describes
creates an irrebuttable presumption that the area a municipality
annexed is a part of the municipality; (2) a lot and block map, which
appears to have been taken from a survey map of Block A-552 of the W.S.
Taylor Survey of the area describing the four blocks and 40 lots owned by
King’s Country Limited; (3) a certified copy of the City’s 1992 Ordinance;
(4) a description of the area the City annexed in 1992, which describes
7
the King’s Country Estates as a subdivision of 186.2875 acres in Block A-
552 of the W.S. Taylor Survey, consisting of 40 lots and four blocks owned
by King’s Country Limited; and (5) the map, a copy of which we have
included above.
The 1992 Ordinance references a survey attached to the ordinance.
The survey consists of the lot and block map of the King’s Country
Estates, which was taken from a survey of Block A-552. We have included
the lot and block survey map the City filed of record in 2004 below.
8
In February 2020, Concerned Citizens, along with Fife, Hyde, and
Hessong sued the City asking the trial court for a judgment declaring the
1992 and 2004 Ordinances void. According to the Plaintiffs, the
descriptions in the 1992 and 2004 Ordinances used to describe the areas
the City annexed do not close—meaning the borders around each area
the City annexed do not describe shapes with sides that close on each of
the shape’s sides. The Plaintiffs’ petition alleges that by failing to
describe the areas in the annexations by using metes and bounds
descriptions that close, the two Ordinances were void from the date they
were passed. The Plaintiffs further alleged that the City of Patton Village
never provided services to the residents living in the areas it annexed in
1992 or 2004. 6 The Plaintiffs’ Original Petition raises five claims:
• A claim alleging the Ordinances are void, which Plaintiffs
based on their theory the descriptions of the areas annexed
are insufficient because the areas annexed are not described
by their metes and bounds and do not describe shapes that
close.
• A claim alleging the Ordinances are void, which the Plaintiffs
based on their claim that the City has no records to prove
those living in the areas annexed requested that the City
annex the areas and no records to show that before annexing
6According to the petition, “[t]he residents of the Area are provided
water by T&W Water Service, required to have their own private
propane, have independent septic systems not city sewer, etc.”
9
the areas the City treated the areas as part of the City by
providing the areas with services from the City.
• A constitutional-takings claim, which the Plaintiffs based on
their theory that the City had “taken the tax revenues, permit
fees, and other property of the Plaintiff[s] through what can
only be styled as eminent domain or an inverse taking.”
• A statutory-takings claim under the Private Real Property
Rights Preservation Act (PRPRPA), an Act that allows private
real property owners who comply with the requirements of the
Act to sue political subdivisions to determine whether a
“governmental action of a political subdivision results in a
taking under this chapter.” 7
• A Uniform Declaratory Judgments Act (UDJA) claim, which
Plaintiffs based on their claim that the 1992 and 2004
Ordinances, when passed, were void. Specifically, the
Plaintiffs’ UDJA claim requested the trial court to declare the
1992 and 2004 Ordinances “void and [to declare] the residents
of the Area[s] were never properly annexed into Patton
Village.”8
When the City answered, it asserted governmental immunity
prevented the Plaintiffs from suing the City on the claims in the
Plaintiffs’ petition. The City’s amended answer, its live pleading alleges:
• Section 43.901 of the Local Government Code bars the
Plaintiffs’ claims because no one sued the City seeking to
annul or review the 1992 or 2004 Ordinances within four
years of the City’s adoption of the Ordinances.
• Plaintiffs’ takings claims are barred because their claims are
untimely, so they are deemed to have consented to the
annexations, and the Plaintiffs do not have takings claims
because levying taxes and fees on the areas annexed do not
constitute takings under the Texas Constitution.
7See Tex. Gov’t Code Ann. § 2007.021.
8See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a).
10
• Plaintiffs’ takings claims are barred by the two-year statute
of limitations.
• The Plaintiffs lack standing to bring statutory-takings claims
against the City under the PRPRPA.
• Even assuming the PRPRPA waives the City’s immunity from
suit on one or more of the Plaintiffs’ claims, the Plaintiffs’
claims are still barred because they failed to sue the City
within the 180-day period the PRPRPA provides for
individuals to bring claims under the PRPRPA.
• Because Fife’s, Hyde’s, and Hessong’s claims are barred as a
matter of law, Concerned Citizens failed to establish it has
standing to assert a derivative claim on anyone’s behalf.
• And last, the Plaintiffs’ claims are barred by the doctrines of
laches, waiver, and estoppel.
After the City answered and before the City filed its plea to the
jurisdiction, the Plaintiffs and the City filed motions for summary
judgment. As relevant here, the summary-judgment evidence shows
Hyde, Fife, and Hessong bought their lots long after the City annexed the
areas where they live. The evidence shows the three individuals named
as parties in the suit acquired their deeds to their respective lots as
follows:
(1) Hyde ----- December 2013;
(2) Fife ----- November 2015; and
(3) Hessong ----- August 2014.
The summary-judgment evidence also shows no one before Hyde, Fife,
and Hessong had ever challenged the validity of the City’s 1992 and 2004
Ordinances.
11
When the trial court ruled on the motions for summary judgment,
it signed an order finding the City’s ordinances didn’t meet the statutory
requirements necessary “to constitute a legal annexation.” Relying on
that conclusion, the trial court granted the Plaintiffs’ motion and denied
the motion filed by the City. The trial court also granted the Plaintiffs’
request for declaratory relief. In granting declaratory relief, the trial
court declared in its order that those living in the areas the City annexed
in 1992 and 2004 “are not, and have never been, residents” of the City.
Still, because the trial court left open the Plaintiffs’ claims for monetary
damages, the trial court’s orders on the parties’ cross-motions for
summary judgment were not final. As to the damages claims, the trial
court said it would take the issue of damages up later and decide whether
the Plaintiffs were entitled to damages “as a question of fact.”9
Several weeks after the trial court’s ruling on the motions for
summary judgment, the City filed a plea to the jurisdiction. Mostly, the
City argued the City’s Ordinances were not void due to the lack of a metes
and bounds description. And it argued that when the various statutes of
9In
the same order, the trial court denied the City’s cross-motion for
summary judgment.
12
limitations were applied to the Plaintiffs’ claims, which the City argued
were jurisdictional prerequisites to the Plaintiffs maintaining the suit,
the Plaintiffs could not establish the legislature had waived the City’s
immunity from the Plaintiffs’ claims. The statutes of limitation the City
relied on in the trial court and that it relies on here are:
(1) The Local Government Code section 43.901, which creates a
conclusive presumption that persons in an area annexed have
consented to the area’s annexation if two years have expired
from the date an annexation ordinance is adopted and no
action challenging the municipality’s adoption of the
ordinance was initiated within two years;
(2) The Local Government Code section 51.003, which creates a
conclusive presumption of validity when no one challenges the
validity of an ordinance by the third anniversary of the date
the ordinance was passed; and
(3) The Texas Civil Practice and Remedies Code section 16.051,
which creates a residual, four-year limitations period for
actions to recover real property.10
The City argued that once the City established the legislature did not
require municipalities to describe property lying within the
municipality’s extraterritorial jurisdiction by a metes and bounds
description and that Plaintiffs’ claims were untimely, the burden shifted
10Tex.Loc. Gov’t Code Ann. §§ 43.901, 16.051; Tex. Civ. Prac. &
Rem. Code Ann. § 16.051.
13
to the Plaintiffs to demonstrate their claims were not barred by the
limitations periods that applied to their claims.
When the Plaintiffs responded, they argued that because they were
claiming the 1992 and 2004 Ordinances were void from the time the
Ordinances were passed, the statutes of limitation the City the City
relied on in its plea were irrelevant to their claims and the statutes did
not bar their claims. To explain why the Ordinances were void, the
Plaintiffs asserted the City’s failure to describe the areas it had annexed
by using a metes and bounds description that closed made both
Ordinances void. The Plaintiffs also noted the City had not proven that
it complied with other statutory requirements in proposing and adopting
the Ordinances. According to the Plaintiffs, since the City failed to
present evidence proving that it had complied with everything required
of it by the legislature when exercising its powers of annexation, the City
could not rely on the presumption that those living in the areas the City
annexed had consented to being annexed. According to the Plaintiffs, the
legislature could not have intended a conclusive presumption to arise
14
under section 43.901 when a municipality failed to comply with the notice
and filing requirements of Chapter 43. 11
As to the City’s argument that the Ordinances must be conclusively
presumed valid under the presumption created by Local Government
Code section 51.003, the Plaintiffs responded stating section 51.003 does
not apply to an act “that was void at the time it occurred.” 12 Last, relying
on their claim that the annexations are void, the Plaintiffs argued the
residual, four-year statute of limitations applicable to suits to recover
real property doesn’t apply to actions against governmental entities when
the act the governmental entity passed is void.
In November 2021 and without explanation, the trial court denied
the City’s plea to the jurisdiction. Shortly thereafter, the City filed its
notice of appeal. 13
II. Standard of Review
On appeal, the parties agree the City is a Type A general-law
municipality. 14 Under Texas law, municipalities are local governmental
11Tex. Loc. Gov’t Code Ann. § 43.901.
12Id.§ 51.003(b)(1).
13Tex. R. App. P. 26.1(b), 28.1(b).
14Tex. Loc. Gov’t Code Ann. § 6.001.
15
entities, which enjoy immunity from suit unless their immunity from suit
has been waived.15 When immunity applies to a governmental entity, it
“bars suit against the entity altogether.”16 Governmental entities may
raise governmental immunity claims in several ways, which includes by
filing a plea to the jurisdiction.17
We review a trial court’s ruling on a plea to the jurisdiction as a
question of law.18 In a plea to the jurisdiction, governmental units “may
challenge the pleadings, the existence of jurisdictional facts, or both.”19
When the governmental unit’s plea challenges the existence of
jurisdictional facts, the standard applicable to the motion mirrors the
standard applicable to a party’s traditional motion for summary
judgment under Texas Rule of Civil Procedure 166a(c). 20 Thus, the
15See id. § 271.151(3); Lubbock Cty. Water Control & Improvement
Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014).
16Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).
17Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 664 (Tex.
2019).
18Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex.
2016).
19Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770
(Tex. 2018).
20See Sampson, 500 S.W.3d at 384; Mission Consol. Indep. Sch. Dist.
v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
16
governmental unit carries the initial burden to present evidence
establishing the trial court does not have subject matter jurisdiction over
the plaintiff’s claims. 21 To avoid dismissal, the “plaintiffs must raise at
least a genuine issue of material fact to overcome the challenge to the
trial court’s subject matter jurisdiction.” 22
In our review, we consider all evidence the parties filed in the trial
court relevant to the jurisdictional issues to decide whether the trial court
ruled properly on the plea. 23 “When the evidence submitted to support
the plea implicates the merits of the case, we take as true all evidence
favorable to the plaintiff, indulging every reasonable inference and
resolving any doubts in the plaintiff’s favor.” 24
To decide whether the trial court erred in denying the City’s plea,
we must resolve three questions. First, we must decide whether the Local
Government Code requires municipalities like the City to include metes
and bounds descriptions when they annex property through their
exercise of their extraterritorial powers of annexation. Second, based on
21Sampson, 500 S.W.3d at 384.
22Id.
23Miranda, 133 S.W.3d at 227-28.
24Sampson, 500 S.W.3d at 384.
17
the Plaintiffs’ claim the Ordinances lack a sufficient description of the
areas the City annexed, we must decide whether the 1992 Ordinance and
the 2004 Ordinance are void because the areas the City annexed are not
described by their metes and bounds with descriptions that close. Third,
should we decide the Ordinances are not void, we must then decide
whether the trial court had jurisdiction over any of the Plaintiffs’ claims.
III. Analysis
A. Is a metes and bounds description required by statute?
In the trial court, the Plaintiffs alleged the 1992 and 2004
annexations are void, not merely voidable, because the City didn’t include
metes and bounds descriptions of the property in the Ordinances it
passed.25 According to the Plaintiffs, because metes and bounds
descriptions were not used, the areas the City annexed are not
sufficiently described so that by following the angles and markers
described in the Ordinance one may determine where the boundaries of
the territory annexed are and that the boundaries of the territory
annexed close.
25Metes and Bounds, BLACK’S LAW DICTIONARY (9th ed. 2009) (“The
territorial limits of real property as measured by distances and angles
from designated landmarks and in relation to adjoining properties.”).
18
On appeal, the Plaintiffs rely on Local Government Code section
43.012 to support their claim that a metes and bounds description in an
annexation ordinance is required. However, the Plaintiffs never cited
that statute in their petition or in their motion for summary judgment.
To be clear, section 43.012 requires a metes and bounds description in an
annexation ordinance when an area the municipality annexes is an area
that it owns. Section 43.012 provides:
The governing body of a Type A general-law municipality by
ordinance may annex [an] area that the municipality owns
under the procedures prescribed by Subchapter C-1. The
ordinance must describe the area by metes and bounds and
must be entered in the minutes of the governing body.
But section 43.012 has no application here. No one alleged or proved the
City owns any property lying in the area the City annexed in either 1992
or in 2004. The City didn’t annex those areas under the power the
legislature gave it to annex areas a municipality owns. Rather, the City
annexed the areas at issue here under the powers the legislature
delegated to municipalities to annex territory lying outside their existing
boundaries but within their extraterritorial jurisdiction, an area lying
within a defined distance from a municipalities’ existing territorial
19
boundary—a distance that varies depending on the population of the
municipality. 26
For our purposes, the Plaintiffs never claimed the areas the City
annexed in 1992 or 2004 don’t lie within the City’s extraterritorial
jurisdiction. The Ordinances and evidence in the record show that when
the City annexed the areas in 1992 and 2004, both areas had borders tied
to the City’s then existing eastern boundary, Tram Road. 27
The effect of a municipality’s annexation of property in its
extraterritorial jurisdiction is set out in Local Government Code section
42.022, which provides:
(a) When a municipality annexes an area, the extraterritorial
jurisdiction of the municipality expands with the annexation
to comprise, consistent with Section 42.021, the area around
the new municipal boundaries.
(b) The extraterritorial jurisdiction of a municipality may
expand beyond the distance limitations imposed by Section
26Tex. Loc. Gov’t Code Ann. § 42.021(a)(1) (one-half mile for
municipalities like the City with fewer than 5,000 inhabitants). We note
the Plaintiffs did not plead facts or claim that the City’s 1992 Ordinance
is arguably void, either in whole or in part, based on a claim that some of
the territory the City annexed in 1992 lies outside the City’s one-half mile
extraterritorial jurisdiction. We express no opinion about whether such
an argument might have merit, as appellate courts may not consider
issues not raised in the trial court. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 577 (Tex. 2006) (citing In re B.L.D., 113 S.W.3d 340, 350-52
(Tex. 2003)).
27Id.
20
42.021 to include an area contiguous to the otherwise existing
extraterritorial jurisdiction of the municipality if the owners
of the area request the expansion.
... 28
The legislature also recognized a difference between a municipality’s
owning property in an area and a municipality’s annexing property lying
in its extraterritorial jurisdiction. Local Government Code section 43.014
makes that clear, as it states:
A municipality may annex [an] area only in its extraterritorial
jurisdiction unless the municipality owns the area.
Thus, in section 43.014 the legislature required a metes and bounds
description when a municipality is annexing property it owns. However,
the legislature did not include that same requirement in the statute
authorizing municipalities to annex property lying in their
extraterritorial jurisdiction. 29 The legislature clearly may choose to
impose more stringent requirements on parties in some sections of a
statute than it does in others. 30 But when it does so, we are not free to
impose requirements on a party on a subject when the legislature chose
28Tex. Loc. Gov’t Code Ann. § 42.022(a), (b).
29Id. §§ 42.021, 42.022.
30See Waak v. Rodriguez, 603 S.W.3d 103, 111 (Tex. 2020).
21
not to, as instead we must comply with the legislature’s choice. 31 Thus,
we reject the Plaintiffs argument claiming the Ordinances are void
because they lack a metes and bounds description of the areas the City
annexed.
Next, we turn to whether the jurisdictional evidence conclusively
establishes the Ordinances describe boundaries that, to a reasonable
degree of certainty, can be construed to close. 32 On appeal, the Plaintiffs
argue the annexation ordinances don’t close because the property the
City annexed isn’t described by metes and bounds. But we’ve already
rejected that argument because the record shows the City annexed those
areas by exercising its extraterritorial powers and not by exercising the
power the legislature gave municipalities to annex areas they own.
Except for the Plaintiffs’ claim the boundaries are not described by their
metes and bounds, they have never explained why the jurisdictional
31See PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd. P’ship, 146
S.W.3d 79, 84 (Tex. 2004) (“When the Legislature includes a right or
remedy in one part of a code but omits it in another, that may be precisely
what the Legislature intended. If so, we must honor that difference.”).
32See State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 788-89
(Tex. 1965) (noting the accepted rules of construction for construing
municipal ordinances apply to annexation ordinances, allowing a court to
determine whether, after applying the rules of construction, the
boundaries of the area annexed can be construed to close).
22
evidence does not conclusively establish the boundaries close in the
respective territories annexed in 1992 and 2004. Still, because the trial
court might have construed the Plaintiffs arguments to require both a
metes and bounds description and a description describing a boundary
that closed, we must decide whether the boundaries close.
B. Do the boundaries of the areas close?
Generally, when a court is asked to construe an ordinance annexing
land, “[i]t is the function of a court to aid construction and validity of such
description rather than to destroy them.” 33 We start with the 1992
Ordinance. It defines the area annexed as section #1 King’s Country
Estates, 186.2875 acres of land in Block A-552 of the W.S. Taylor Survey
of Montgomery County, consisting of 40 Lots, 4 blocks, owned by King’s
Country Limited. A map containing the names of some of the streets in
Patton Village shows the general area the City annexed, and the map
was attached to the 1992 Ordinance. The map, which was recorded at
page XXX-XX-XXXX in the Montgomery County’s real property records,
identifies the area the City annexed in 1992 as “SITE.” According to the
33Stateex rel. City of West Orange v. City of Orange, 300 S.W.2d 705,
712 (Tex. Civ. App.—Beaumont 1957, writ ref’d n.r.e.).
23
recitals in the 1992 Ordinance, a survey of #1 King’s Country Estates was
attached to the ordinance. The survey referenced in the Ordinance
appears to be a document copied from a survey of Block A-552, which
depicts the part of Block A-552 containing the forty lots in King’s Country
Estates described in the 1992 Ordinance. We will refer to the document
copied from the survey as the Lot and Block Survey, as it is the document
the City recorded at page XXX-XX-XXXX in Montgomery County’s real
property records.
Importantly, the Lot and Block Survey contains latitude and
longitude points, which may be used to establish the boundaries of the
territory the City annexed in 1992. As relevant here, the Lot and Block
Survey shows (1) exactly where the four corners are of the territory
annexed in 1992, and (2) it shows the territory the City annexed has
boundaries that close on four sides. Thus, the summary-judgment
evidence shows the boundaries of the territory annexed in 1992 closes on
four sides.
Even though one may not identify the boundaries of the area the
City annexed in 2004 using the Lot and Block Survey alone, the
summary-judgment evidence nonetheless shows the boundaries of that
24
area also closes on four sides. The western boundary of the 2004
annexation is Tram Road. In general, the 2004 Ordinance includes a call
for distance describing that area’s width, thus defining the area that was
annexed eastern boundary as “one thousand four hundred five feet (plus
or minus)” from what was then the City’s existing eastern boundary,
Tram Road. The latitude and longitude points on the Lot and Block
Survey describe a large portion (but not all) of the eastern border of the
area annexed in 2004, and the fact that this shared boundary is not
exactly 1405 feet from Tram Road at every point is likely the reason there
is a plus or minus reference in the 2004 Ordinance.
That said, the parts of the eastern boundary of the 2004 annexation
not shown in the Lot and Block Survey can be located by using the calls
for distance in the 2004 Ordinance, the western boundary Tram Road,
and the latitude and longitude points in the Lot and Block Survey.34
34To locate the northeastern corner of the 2004 annexation, one
must draw a horizontal line from a point lying one-half-mile north of
Short Street and from that draw a line horizontally from west to east one-
thousand-four-hundred five feet starting from Tram Road. To locate the
southeastern corner of the 2004 annexation, one must draw a horizontal
line from a point lying one-half-mile south of Long Street and from that
draw a line horizontally from west to east one-thousand-four-hundred
five feet starting from Tram Road. The remaining part of the eastern
25
Those remaining parts of the eastern boundary that are not shared with
the 1992 territory lie north and south of Short Street and Long Street,
respectively, each by one-half mile. Those eastern boundaries not shared
with the 1992 territory are 1405 feet east of Tram Road and are one-half
mile north of Short Street and one-half mile south of Long Street.
The northern and southern boundaries of the territory annexed in
2004 may also be derived from the calls for distance from Short Street
and Long Steet by drawing a line to the eastern boundary described
above. As described in the 2004 Ordinance, the northern point called for
in the 2004 annexation is “one half mile north of Short Street[.]” The
southern point called for in the 2004 Ordinance in finding the territory’s
southern boundary is “one half mile south of Long Street.” To be sure,
Short Street and Long Street dead-end at Tram Road, meaning the two
streets don’t cross Tram Road to the east. Yet by extending a hypothetical
line from west to east across Tram Road by the call for distance (1405
feet from Tram Road), the northern and southern boundaries of the City’s
border, not shown in the 1992 Lot and Block Survey, may be located with
certainty by connecting those points to the 1992 annexation’s
northwestern and southwestern corners, which are identified by latitude
and longitude points in the Lot and Block Survey.
26
annexation may be determined with reasonable certainty. 35 Because the
evidence conclusively proves the boundaries of the respective areas the
City annexed intersect and close, we conclude the City’s Ordinances and
annexations are not void. 36
C. If the annexations are not void, does the trial court have
jurisdiction over the Plaintiffs’ claims?
In the trial court and on appeal, the City argued the Plaintiffs lack
standing to sue. We review rulings on standing under a de novo
standard.37
Standing is a threshold component of subject matter jurisdiction
and requires a real controversy between the parties. 38 Under Texas law,
among the requirements of standing, a plaintiff must establish he was
“personally injured—he must plead facts that demonstrate that he,
35See City of Patton Village, Google Maps,
google.com/maps/place/City+of+Patton+Village (last visited October 10,
2022); Tex. R. Evid. 201(b); Cent. Tex. Water Supply Corp. v. Kempner
Water Supply Corp., 645 S.W.3d 799, 803 n.3 (Tex. 2022) (taking judicial
notice of maps).
36See City of Bridge City v. State ex rel. City of Port Arthur, 792
S.W.2d 217, 235 (Tex. App.—Beaumont 1990, writ denied) (concluding
that the boundaries of the land described “in annexation ordinance could
be made, by construction, to be certain and was thus sufficient”).
37Heckman v. Williamson Cty., 369 S.W.3d 137, 149-50 (Tex. 2012).
38Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993).
27
himself (rather than a third party or the public at large), suffered the
injury.” 39 Standing also requires that a court carefully examine “a
complaint’s allegations to ascertain whether the particular plaintiff is
entitled to an adjudication of the particular claim asserted.” 40
If the Plaintiffs had shown that the Ordinances were void, we would
not question their right to complain about the Ordinances at issue here.
But having concluded the Plaintiffs’ failed to establish the Ordinances
are void, the question is whether the Plaintiffs established standing on
the record they created in the trial court on any of their claims.
The summary-judgment evidence shows no one challenged the
City’s 1992 or 2004 Ordinances until 2020, the year the Plaintiffs filed
this suit. As previously noted, Hyde, Fife, and Hessong each bought their
lots long after the City annexed the territory where they now live.41 Since
Plaintiffs failed to show that they brought their claims within two years
of the date the Ordinances were adopted and failed to show the
39Heckman, 369 S.W.3d at 154; Farmers Tex. Cty. Mut. Ins. Co. v.
Beasley, 598 S.W.3d 237, 241 (Tex. 2020) (cleaned up).
40Heckman, 369 S.W.3d at 156.
41We cannot determine from the summary-judgment evidence
whether the individual lots the Plaintiffs now own were in the 1992
annexation, the 2004 annexation, or as between the three lots, included
in both Ordinances.
28
Ordinances were challenged before they sued, we conclude they failed to
establish the legislature waived the City’s immunity from suit on their
claims seeking to enforce the statutory requirements of Chapter 43.42
Turning to Concerned Citizens and the claims of any members of
that organization who were never named or identified by the parties in
the suit, the Plaintiffs failed to present any evidence in response to the
challenge the City raised to Concerned Citizens’ standing to show that
any of Concerned Citizens’ members owned lots when the City adopted
the Ordinances at issue in the suit. Thus, the only evidence in the record
shows that all Plaintiffs with an interest in the litigation bought lots
more than two years after the City adopted the Ordinances at issue. Since
the Ordinances are not void, and because the Ordinances were not
challenged within two years after they were passed, we must presume
the Plaintiffs predecessor in title consented to the “municipal ordinance
42Tex. Loc. Gov’t Code Ann. §§ 43.901, 42.908(b). We have assumed
without deciding the two-year period under Chapter 43 that applies to
the presumption of consent did not begin until the City filed the
Ordinances of record in 2004. But even when the Plaintiffs are given the
benefit of any doubt about the effect of the City’s delay in filing the 1992
Ordinance, the Plaintiffs do not have standing to assert Chapter 43
claims in this suit.
29
defining [the] boundaries of or annexing the area[.]” 43 It follows that
Hyde’s, Fife’s and Hessong’s predecessors in title and all Concerned
Citizens’ members consented to the City’s adoption of the Ordinances at
issue here.
Besides failing to prove the Ordinances were void and that any of
the Plaintiffs held an ownership interest in the property the City annexed
in 1992 or 2004, the Plaintiffs also failed to show their predecessor in title
assigned any claims giving them a cause of action against the City. Under
Texas law, “[t]he right to sue is a personal right that belongs to the person
who owns the property at the time of the injury, and the right to sue does
not pass to a subsequent purchaser of the property unless there is an
express assignment of the cause of action.” 44 As to real property, “[i]t is a
fundamental rule of law that only the person whose primary legal right
has been breached may seek redress for an injury.” 45 For that reason,
“[w]ithout a breach of a legal right belonging to the plaintiff no cause of
43Tex. Loc. Gov’t Code Ann. § 43.901.
44Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 424
(Tex. 2010); see also Hous. Water-Works Co. v. Kennedy, 8 S.W. 36, 37
(Tex. 1888).
45Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976).
30
action can accrue to his benefit.”46 As to standing, once the City alleged
the Plaintiffs didn’t have standing and established that Hyde, Fife, and
Hessong didn’t acquire the deeds to their lots until long after the
ordinances at issue were adopted, the Plaintiffs—including Concerned
Citizens—had the burden to demonstrate that a member of Concerned
Citizens had standing to sue. 47
Yet when they responded to the City’s plea, the Plaintiffs failed to
show that any member of Concerned Citizens owned his or her lot when
the City annexed the territory at issue here. Concerned Citizens, like
Fife, Hyde, and Hessong also never presented any evidence showing they
held assignment from any previous owners who owned the lots when the
City passed the Ordinances in 1992 or 2004. So, having concluded the
Plaintiffs failed to establish a valid basis on which to claim the 1992 and
2004 Ordinances are void, we further conclude the only proper way
available to challenge the annexations was through a quo warranto
46Id.
47See Heckman, 369 S.W.3d at 150 (burden of proof on plaintiff to
establish standing); S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 308
(Tex. 2007) (to prove an association has standing, the members of the
association must show they have standing to sue on their own); Tex. Ass’n
of Bus., 852 S.W.2d at 447 (same).
31
proceeding—an action filed by the State challenging the City’s allegedly
irregular use of its annexation authority under the allegations in the
petition the Plaintiffs filed below. 48
We further conclude that the City is immune from the Plaintiffs’
remaining claims. As to the Plaintiffs’ PRPRPA claim, the Plaintiffs
never alleged or claimed the territory the City annexed was beyond the
City’s extraterritorial jurisdiction. Under the PRPRPA, a municipality’s
exercise of its extraterritorial powers of annexation is excluded from the
PRPRPA. 49 Despite the existence of a limited waiver of governmental
immunity under the PRPRPA, nothing in the limited waiver of immunity
in the PRPRPRA operates to waive a municipality’s immunity from suit
under the pleadings and summary-judgment evidence in the record
before us here. 50
The Declaratory Judgments Act claim also doesn’t survive the
City’s plea. Parties may not use the Declaratory Judgments Act to
circumvent the doctrine of sovereign immunity and recover damages
48See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436-37
(Tex. 1992).
49Tex. Loc. Gov’t Code Ann. § 2007.003(a)(3).
50Id. § 2007.004(a).
32
from the state. 51 And because we have determined the trial court lacked
jurisdiction over the Plaintiffs’ claims challenging the Ordinances, the
Plaintiffs cannot transform their claims into UDJA claims based on the
pleadings they filed in the trial court to avoid the City’s plea. 52 Because
the 1992 and 2004 Ordinances are not void on this record, the Plaintiffs
also don’t have standing to challenge the Ordinances by bringing a claim
under the UDJA.53
Turning to the Plaintiffs’ constitutional-takings claims, the
Plaintiffs globally alleged the City failed to strictly comply with the Local
Government Code when annexing their lots and applying them to a
public use. Yet the Plaintiffs alleged no facts to support their claim that
the City made a public use of their lots. Moreover, the evidence in the
record shows that Hyde, Fife, and Hessong live in homes built on their
lots. The evidence shows the City collects ad valorem taxes on the
appraised values assessed on the lots, values assigned by the
Montgomery County Appraisal District on the improvements and lots
51See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855-56 (Tex. 2002).
52See City of Hous. v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007)
(per curium).
53See Alexander Oil, 825 S.W.2d at 436-37.
33
Hyde, Fife, and Hessong own. The City also proved it has been levying
ad valorem taxes on the areas since at least 2012 based on the affidavit
of Sudie Dawson, the City’s Secretary, who averred in her affidavit that
she has personal knowledge of that fact since she began working for the
City in 2012. In response to the City’s evidence, the Plaintiffs didn’t
produce any controverting evidence to show that the City isn’t collecting
ad valorem taxes or to prove the City took their property and applied it
to a public use.
To be sure, we fail to see how the Plaintiffs have takings claims
when the evidence shows all the City has done is collect ad valorem taxes
on their property. The Texas Supreme Court put it this way: “The
constitutional inhibition against taking private property for public use
without compensation has reference solely to the exercise of the right of
eminent domain and not to taxation[.]”54 Without proof, Plaintiffs’
takings claims don’t survive the City’s plea when they did nothing more
than prove the trial court with a conclusory allegation claiming the City
took their property for public use.
54State ex rel. Pan Am. Prod. Co. v. Texas City, 303 S.W.2d 780, 782
(Tex. 1957).
34
IV. Conclusion
To sum it up: We conclude: (1) Texas law does not require areas a
municipality annexes lying in the municipality’s extraterritorial
jurisdiction to be described by its metes and bounds; (2) the summary-
judgment evidence shows the boundaries of the areas the City annexed
in 1992 and 2004 close; (3) the jurisdictional evidence shows the Plaintiffs
failed to establish the legislature waived the City’s immunity on the
Plaintiffs’ PRPRPA claim; (4) the Plaintiffs cannot circumvent the City’s
governmental immunity by recasting their claim as a claim under the
UDJA; and (5) the jurisdictional evidence shows the Plaintiffs lack
standing to sue the City on a constitutional-takings claim. 55 Accordingly,
we reverse the trial court’s order denying the City’s plea to the
jurisdiction and render judgment dismissing the suit without prejudice.56
55See Tex. Local Gov’t Code Ann. §§ 43.001-.908; see also Alexander
Oil, 825 S.W.2d at 436-37.
56To establish a court’s jurisdiction, the plaintiffs must show that
their injuries “will ‘likely’ . . . be ‘redressed by a favorable decision.’”
Heckman, 369 S.W.3d at 154-55 (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992)). On the record the parties developed below, we
cannot say the Plaintiffs could, if the case were remanded, establish their
standing to sue. Yet because the record is not fully developed, we will
dismiss the suit without prejudice so that if the Plaintiffs determine they
have a good faith basis to claim the City’s annexation ordinances are void
35
REVERSED AND RENDERED.
_________________________
HOLLIS HORTON
Justice
Submitted on March 23, 2022
Opinion Delivered November 3, 2022
Before Kreger, Horton and Johnson, JJ.
for a reason they didn’t plead below, they may file a new suit and plead
that claim. But because the petition now before us does not show the
Plaintiffs even have a claim that could result in a favorable decision, we
will dismiss and not remand.
36