City of Pasadena v. State Ex Rel. City of Houston

BELL, Chief Justice.

This is a case in which the trial court sustained a motion for summary judgment in favor of the State of Texas holding certain ordinances of the City of Pasadena invalid and ousting it from the territory described in said ordinances. The same judgment held valid certain ordinances of the City of Houston which had been attacked by the City of Pasadena in its answer to the quo warranto proceeding instituted by the State, and held that the territory described in such ordinance was validity within the limits of the City of Houston.

This appeal grew out of a quo warranto proceeding filed by the State of Texas on the relation of the City of Houston October 14, 1965 in the 61st District Court of Harris County, being Cause No. 684,547. The petition was subsequently amended, in which additional relators were named, and trial was had on the amended petition. We notice the number of the present suit because prior to June, 1962 two other suits had been filed and disposed of between Pasadena and Houston that will be discussed because they involved some of the ordinances of both cities that we will refer to in our opinion, and the judgments rendered in those causes are material to the disposition of this appeal.

The first of the prior suits was a quo warranto proceeding instituted by the State, on the relation of the City of Houston et al. against the City of Pasadena in the 55th District Court and was numbered 571,595. The second was instituted by the State on relation of the City of Pasadena against the City of Houston in the 129th District Court and was numbered 594,632. Judgments were rendered in both of these causes on June 22, 1962, upon the agreement of the parties thereto.

Because of the lengthy description in the ordinances and judgments involved, we are making a diagram a part hereof to demonstrate the areas encompassed in the various ordinances and judgments.

The following are the material ordinances passed in 1960 that were involved in Causes Nos. 571,595 and 594,632, in which agreed judgments were rendered on June 22, 1962:

1. On June 6, 1960, Pasadena passed on first reading Ordinance No. 1449 and passed it on second and final reading December 27, 1960. The ordinance described the territory shown on the diagram by parallel lines running northeast-southwest and lying north of Genoa-Red Bluff Road. We have placed in this area the number “1449” and the name “Pasadena”. Proceeding from the southwest corner of this tract it gave calls running generally southwest to a point on our diagram that we have marked with the letter “A”. The calls proceed to A, following substantially the path we have at intervals marked 1449 along the lower part of the shaded or closely dotted area. The long meandering line continues from point A substantially along the line marked B, C, D, E, F, G, H and I. The point I would represent the southeast corner we have designated with the parallel lines. This long meandering line would be the west, south and east boundary of the area purported to be annexed to Pasadena by Ordinance 1449, that lies south of the north line of Genoa-Red Bluff Road.

2. On June 22, 1960, the City of Houston passed on first reading Ordinance No. 60-989, annexing all territory lying in Harris County not already in the City of Houston or not validly incorporated in some other city.

After Ordinance 1449 was passed on second and final reading in December, 1960, the State of Texas, on the relation of the City of Houston and numerous individuals, filed a quo warranto proceeding in the 55th District Court of Harris County, against the City of Pasadena and the City of La Porte, it being numbered 571,595. The suit sought to oust Pasadena from certain extensive territory covered by Ordinance 1449 that had by earlier City of Houston ordinances become a part of Houston. The validity of the ordinance was also attacked because of defective description. While the City of La Porte was a respondent, the adjudication in that case as to La Porte is not material to the disposition of this controversy. The petition specifically put in issue the validity of Pasadena Ordinance No. 1449 and Houston Ordinance No. 60-989. Other Houston ordinances were alleged as having been passed several years earlier preempting territory by Houston and that part of such territory was entrenched upon by Pasadena Ordinance 1449, for which additional reason the latter ordinance was invalid. We need not specifically notice them, but mention them generally only to show that there were various issues between the parties which created uncertainty of the outcome of the suit as made by the petition in Cause No. 571,595 and Pasadena’s answer thereto which probably led to the agreed judgment of June 22, 1962. Houston was asserting the validity of Ordinance No. 60-989 and claiming it had by such ordinance preempted the territory involved in this case. In its answer to the petition in Cause No. 571,595, Pasadena attacked various ordinances passed by Houston and specifically attacked the validity of No. 60-989 that encompassed the territory involved in this case.

On May 18, 1962, the State of Texas, on relation of the City of Pasadena and the City of La Porte, was granted leave to file a quo warranto proceeding against the City of Houston. It was filed in the 61st District Court and was numbered 594,632. This petition attacked the validity of various Houston annexing ordinances, including No. 60-989. This was really a countersuit, though not in form a counterclaim or cross-action to Cause No. 571,595. It asserted entrenchment upon territory previously annexed by Pasadena. In the prayer it asked specifically for a declaration of the invalidity of Ordinance No. 60-989.

On June 19, 1962, the City of Pasadena passed Ordinance No. 1530 expressly authorizing the rendition and entry of the judgments that were finally rendered and entered in Causes Nos. 571,595 and 594,632. On June 20, 1962, by Ordinance No. 62-886, the City of Houston gave the same authority to its counsel.

On June 22, 1962, in Cause No. 571,595, final judgment was rendered and entered in the 55th District Court. This judgment made these significant adjudications:

1. That Pasadena was ousted from any jurisdiction or assumed jurisdiction over all territory described in Ordinance 1449 except the territory described in paragraph I of the judgment. The described area held to be lawfully annexed by Pasadena is substantially that lying north of the north line of Genoa-Red Bluff Road and represented on our diagram by the area marked “Pasadena” and also shown by diagonally drawn parallel lines. The description fixes the north line of Genoa-Red Bluff Road as the south city limit of Pasadena.

2. Ordinance 60-989 of the City of Houston, passed and adopted on first reading June 22, 1960, was expressly declared to have been validly introduced and passed on such date and that Houston thereby validly extended, claimed to extend, and at the time of judgment still claimed annexation jurisdiction over all territory in Harris County not theretofore in the City of Houston or not theretofore validly contained in some other city, town or village. It was adjudicated that by virtue of such annexation jurisdiction established in the City of Houston by Ordinance 60-989 all of the territory described in Pasadena Ordinance No. 1449, except that described immediately above in adjudication I, was validly preempted and claimed by Houston on June 22, 1960, and had been since that time and was at the time of judgment within the exclusive annexation jurisdiction of Houston.

3. There were other adjudications as to certain other territory covered by other ordinances that determined disputes between Houston and Pasadena, but they are not material to a decision of any issue before us in this case.

On June 22, 1962, in Cause No. 594,632, judgment was rendered and entered by the 129th District Court. This was the counter quo warranto suit filed by the State on the relation of Pasadena and La Porte in which they became movants against Houston and in which they affirmatively attacked, among other ordinances, Houston Ordinance 60-989 and sought to establish the validity of Pasadena Ordinance 1449. This judgment determined that the issues in the case had been finally adjudicated in Cause No. 571,595 and thus the cause had become moot. It declared that because of the other judgment there was no justiciable controversy between the parties as to the issues set out in the petition and information. These judgments became final and have in no way been changed.

Tranquility seems to have prevailed until December 5, 1962. On this date the City of Houston passed on first reading Ordinance 62-1766 which began annexation of a ten foot strip of land to the south of Pasadena. The north segment of the ten foot strip had for its north line the north line of Genoa-Red Bluff Road which was the south line of Pasadena as fixed by court judgment as above noted. The 10 foot strip is shown on our diagram beginning at PJoint A where it connected with land indisputably within the limits of the City of Houston. It proceeds from Point A between parallel lines, as shown on our diagram, substantially along the devious route marked at intervals by the City of Houston Ordinance 62-1766 and the letters B, C, D, E, F, G, H, I, J, K, L, M and N. Point N would mark the joinder of the 10 foot strip to the previously established limits of the City of Houston. This ordinance was passed on final reading January 16, 1963. The large area lying between the interior line of the 10 foot strip was not covered by Ordinance 62-1766. However, it was still covered by Ordinance 60-989, which had been passed on first reading and was still pending awaiting further action. The 10 foot strip was a part of the area that had by the above judgment been declared to be within the exclusive annexation jurisdiction of Houston. On February 13, 1963, Ordinance 60-989 was passed on second reading but deleted small areas from that contained in the ordinance when passed on first reading. Such deletions do not, however, in any way eliminate an area covered by the other ordinances involved in this suit.

The state of affairs remained static after the final passage of Houston Ordinance 62-1766, until August 18, 1965. On the latter date Houston passed Ordinances 65-1561 and 65-1555A.

It should here be noted that the Legislature of Texas in 1963 adopted the Municipal Annexation Act which we will refer to as Article 970a, Vernon’s Ann.Tex. Civ.St. We need here notice only the substance of Sections 6 and 7. Section 6 provides that before a city may institute annexation proceedings it shall provide an opportunity for all interested persons to be heard at a public hearing to be held not more than twenty days nor less than ten days prior to instituting such proceedings. Notice of the hearing is to be published in a newspaper of general circulation in the city and territory proposed to be annexed. The notice shall be published at least once not more than twenty days nor less than ten days prior to the hearing. Annexation of the territory shall be brought to conclusion within 90 days of the date on which the annexation proceedings were instituted or the annexation shall be null and void. So far as materiality here is asserted, Subdivision D of Section 7 provides that as to any annexation pending on or instituted after March 15, 1963, the annexation shall be brought to completion within 90 days after the effective date of the Act. Article 970a went into effect August 22, 1963. The dead line for completing proceedings that were pending was November 20, 1963.

Houston Ordinance 65-1561, as shown by its provisions, was the declaration of that City’s intention to institute proceedings to annex the area described, which is substantially as appears on the shaded or closely dotted area on our diagram. Section 2 called for the hearing to be held in the Houston Council Chamber at 11 a. m., September 1, 1965. Section 3 directed the City Secretary to publish the notice in a newspaper of general circulation in Houston and the territory to be annexed at least one time not more than twenty days nor less than ten days prior to the day of the hearing. Section 4 stated the passage of the ordinance was intended to comply with Section 6 of the Municipal Annexation Act, provided such Act was valid. Section 6 also provided the ordinance should not affect any ordinance already passed on one or more readings, but not finally passed, and in addition expressly made such assertion as to Ordinance 60-989 which was passed on first reading June 22, 1960, on second reading as amended on February 13, 1963, and on third reading as amended on December 16, 1964. The section also provided that the procedure for annexation by this ordinance was independent of any proposed and pending annexation of the territory described and such other proceedings should not be affected by it.

On the same day Houston passed on first reading Ordinance 65-1555A. This ordinance described the same territory as Ordinance 65-1561 and was passed on first reading. Section 2 of the ordinance contains the recital that the ordinance does not repeal, impair, modify or in anywise affect any annexation ordinance whether completed or pending, including Ordinance 60-989. Then there is the express provision that the ordinance shall not affect any ordinance theretofore or thereafter passed calling for a hearing and giving notice relative to the institution of any annexation proceedings. It also provided that proceedings under this ordinance were independent of any other proposed and pending annexation of such territory.

On September 21, 1965, after the date set for public hearing by Ordinance 65-1561, Houston Ordinance No. 65-1555B was introduced and passed on first reading. It described the same territory as contained in Ordinance 65-1561. On passage on first reading it was referred to the Ordinance Committee. It was amended and passed on second reading October 6, 1965, and was passed on final reading November 16, 1965. It is shown in the record as Houston Ordinance 65-1555BR. The letter “R” merely shows it was amended after it was introduced. It is significant that the ordinance as introduced or amended added no territory to that described in Ordinance 65-1561, but as amended and finally passed eliminated a small portion of the southwest part of the shaded area on our diagram. The portion eliminated did not disturb ad joinder along a substantial area of the existing limits of Houston as established since 1956 and did not destroy ad-joinder with the 10 foot strip covered by Ordinance 62-1766. The ordinance also eliminated two relatively small areas just west and northwest of the shaded area marked “Red Bluff”. This Houston Ordinance 65-1555BR was obviously the one passed pursuant to the intention to initate annexation proceedings expressed in Ordinance 65-1561. This was a proceeding under Article 970a, V.A.T.S.

Houston Ordinance 65-1555AR was passed on first reading August 18, 1965; amended and passed on second reading October 6, 1965, and finally passed November 16, 1965. This covered the same territory as Ordinance 65-1555BR. Quite obviously Houston, by Ordinance 65-1555AR, was following annexation procedure existing independently of said Article 970a, so that if the latter statute be invalid Houston would still have validly annexed the territory.

After Houston had passed Ordinance 65-1561 on December 18, 1965, and had on the same date passed Ordinance 65-1555A on first reading, the City of Pasadena became active.

On August 20, 1965, it passed Ordinance 1698 which really defined its existing boundaries and showed the north line of Genoa-Red Bluff Road to be the south city limit line of Pasadena as fixed by the judgment in Cause 571,595. On the same day Pasadena passed Ordinances 1699 and 1700 on first and final reading as emergency ordinances. Both ordinances were purportedly passed under the authority of Article 1183, V.A.T.S., Acts of 1913, p. 47, which in substance gives cities, located on navigable streams and operating under special charters, the right to annex territory on each side of the thread of such stream for a distance of 2500 feet in width and for a distance down said stream 20 miles or less in an air line from the ordinary boundaries of such a city. Such an annexation is for the limited purpose of establishing and developing wharf and navigational facilities for the use of industries and any inhabitants located within the area.

Pasadena Ordinance 1699 described an area for a width of 2500 feet on either side of “Middle Bayou” and extending southeasterly 1.51 miles in air line from the city limit line of Pasadena. It is significant that the beginning point is in the north right-of-way line of Genoa-Red Bluff Road 2500 feet east of the thread of the Bayou. The northwesterly line calls for an intersection with the north right-of-way line of Genoa-Red Bluff Road. From such point of intersection the call is to the place of beginning. This ordinance thus includes 5000 feet of the 10 foot strip covered by Houston Ordinance 62-1766. It also covers a part of the area covered by Houston Ordinances 65-1561 and 65-1555A that were passed two days earlier.

Ordinance 1700 is the same type of ordinance passed pursuant to Article 1183, V.A. T.S. It began at a point one mile south of what it called the “present” city limits of Pasadena and the south boundary of a strip of land included in Houston Ordinance 65-1555A, and 2500 feet east of the thread of the Bayou. It proceeded to the north shore line of Clear Lake, thence westerly along such shore line to intersect with a line 2500 feet west of the thread of the Bayou, thence to a line one mile south of the “present” south city limit line of Pasadena, thence to the place of beginning. The total distance of the two ordinances was 5.6 miles in an air line from the south boundary of Pasadena as established by Ordinance 1698 passed August 20, 1965. The territory covered by Ordinances 1699 and 1700 is shown on our diagram by the checkered area, except that the checkered protrusions on the east and west side of the east and lines that run 2500 feet from and parallel to the thread of the Bayou were not covered by these two ordinances. The protrusions were purportedly annexed by Pasadena Ordinance 1722. These two protrusions connected with portions of the lines fixed by Ordinance 1700. No part of such areas is adjacent or contiguous to the city limit lines as fixed by the judgment in Cause 571,595 or Ordinance 1698.

The quo warranto proceeding out of which this appeal arose sought ouster of Pasadena from the territory covered by Pasadena Ordinances 1699, 1700 and 1722 because they entrenched upon territory finally annexed by Houston Ordinance 62-1766 in January, 1963, more than two years before the introduction by Pasadena of the above three ordinances. Too, Houston asserted the territory covered by said ordinances invaded territory declared to be within the exclusive annexation jurisdiction by the final agreed judgments in Causes 571,595 and 594,632, and Pasadena was, therefore, estopped by said judgments to invade any of such territory. Further, Houston asserted that it also acquired priority in annexation jurisdiction by the passage of Ordinances 65-1561, 65-1555AR and 65-1555BR over the territory covered by the Pasadena ordinances.

Pasadena answered, contending, and here contends, in substance as follows:

1.The judgments do not operate as an es-toppel or res adjudicata because of changed conditions since their rendition, particularly the passage of Article 970a. Further, it says the judgment describing the area saved to Pasadena was defective. Too, it says its annexations under Ordinance 1699 and 1700 were pursuant to Article 1183 which was not affected by Article 970a. It purported, in the passage of Ordinance 1722, to comply with Article 970a.

2. Houston Ordinance 62-1766 did not annex territory adjacent to Houston but the territory was a long narrow strip of land unsuited to the economic needs of Houston.

3. Houston Ordinance 62-1766 was unreasonable and arbitrary and was passed solely to prevent Pasadena from expanding, and denied Pasadena its rights under the Ninth Amendment to the Constitution of the United States.

4. Houston Ordinance 65-1561 was not published as required by Article 970a, but was published by caption only and it follows that Ordinances 65-1555AR and 65-1555BR are invalid.

Both Pasadena and Houston filed motions for summary judgment. Pasadena’s motion was overruled and Houston’s was sustained.

The judgment declared that all territory described in Houston Ordinances 62-1766, 65-1555AR and 65-1555BR was validly annexed to the City of Houston and is a part of said City. It ousted the City of Pasadena from any usurped or pretended claim of municipal authority or annexation jurisdiction over all or any part of the territory described or attempted to be described in Pasadena Ordinances 1699, 1700 or 1722 encroaching on Houston’s finally annexed territory lying south of Pasadena’s city limits (the north line of Genoa-Red Bluff Road) set out in the final judgment of the 55th District Court in Cause No. 571,595 rendered on June 22, 1962. Too, Pasadena was perpetually enjoined from exercising or claiming any municipal authority or annexation jurisdiction within all or any portion of the territory attempted to be annexed by such Pasadena ordinances.

The trial court correctly sustained the motion for summary judgment of the City of Houston and correctly denied that of the City of Pasadena.

Insofar as Houston Ordinance 62-1766 is concerned, it was introduced December 5, 1962, and was finally passed January 16, 1963. It annexed a part of the territory that had been included in Houston Ordinance 60-989 that had been upheld by the judgment which judicially declared the territory was within the exclusive annexation jurisdiction of Houston. The main issue in Cause 571,595 and Cause 594,632 was whether said Ordinance 60-989 or Pasadena Ordinance 1449 had preempted annexation jurisdiction over the area south of the north line of Genoa-Red Bluff Road. By reason of the final judgment favorable to Houston, there having been no changed conditions prior to the final passage of Ordinance 62-1766, Pasadena is estopped by the judgments from asserting the area annexed by said ordinance was not adjacent to the City of Houston and exclusively within its annexation jurisdiction. This issue had once been litigated by the parties and could not be litigated a second time. Houston Terminal Land Company v. Wester-green, 119 Tex. 204, 27 S.W.2d 526; Permian Oil Company v. Smith, 129 Tex. 413, 107 S.W.2d 564, 111 A.L.R. 1152. At the time of the passage of Ordinance 62-1766 and thereafter, Ordinance 60-989 remained a live piece of legislation. The ordinance expressly provided that its passage should in nowise affect any ordinance theretofore passed on one or more readings but not finally passed, but any such ordinances, including 60-989, should remain and continue to be effective to their intent and purpose therein stated. Too, Ordinance 60-989 was passed on second reading February 13, 1963. Thus, the ordinance that had by the court in its previous judgments been held to have validly preempted annexation jurisdiction to Houston remained effective at the time a part of the territory was finally annexed by Ordinance 62-1766. Article 970a, V.A. T.S., had not become effective so as to affect the efficacy of Ordinance 60-989. Its terms were such as not to affect said ordinance until November 20, 1963; so that until such date the territory encompassed within it remained within the exclusive annexation jurisdiction of Houston. Red Bird Village v. State ex rel. City of Duncan-ville, 385 S.W.2d 548 (Tex.Civ.App), writ ref.

In addition to the fact, as we have just discussed, that Pasadena is judicially estopped from asserting that the area annexed by Houston Ordinance 62-1766 is not adjacent to the City of Houston and therefore its later Ordinances 1699, 1700 and 1722 are valid, we hold that Ordinance 62-1766 annexed territory that was adjacent to Houston under the decided cases. The agreed judgments fixed the south line of Pasadena. This left the land south of Pasadena and south and southeast of Houston mutually adjacent territory and it was such at the time Houston introduced and then finally passed Ordinance 62-1766. Pasadena did not initiate its Ordinances 1699, 1700 and 1722 until more than two years later. Houston, by first passing Ordinance 62-1766, was prior in right to annex. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134.

As shown by affidavits of two engineers, which are uncontroverted, the various ordinances and the judgment in Cause No. 571,595, described the territory annexed as we have depicted it on our diagram. Such affidavits and our laborious study of the descriptions establish to us that there were no deficiencies in description. Too, the uncontroverted affidavits and our study indisputably establish that Pasadena Ordinance 1699 runs across the strip previously annexed by Houston Ordinance 62-1766 and Pasadena Ordinances 1699, 1700 and 1722 encroach upon territory covered by territory described in Houston Ordinances 65-1561, 65-1555AR and 65-1555BR. There was, therefore, no fact issue concerning whether Pasadena’s ordinances attacked in this suit entrenched upon territory over which Houston claimed priority. The appeal will turn on the validity, as a matter of law, as shown by the record, of the ordinances.

Whether territory is adjacent to a city is a question of law. State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780.

We have stated above the substance of Pasadena’s attack, particularly on Ordinance 62-1766. We hold that the area encompassed within Ordinance 62-1766 was adjacent to the City of Houston under the principles set forth in the following cases: State ex rel. Pan American Petroleum Co. v. Texas City, supra; State ex rel. City of West University Place et al. v. The City of Houston, 322 U.S. 711, 64 S.Ct. 1159, 88 L. Ed. 1554; City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928; City of Gladewater v. State ex rel. Walker, 138 Tex. 173, 157 S.W.2d 641; State ex rel. Graves v. City of Sulphur Springs, 214 S.W.2d 663 (Tex.Civ. App.), ref., n. r. e.; State v. City of Waxahachie, 81 Tex. 626, 17 S.W. 348; Lefler et al. v. City of Dallas, 177 S.W.2d 231 (Tex. Civ.App.), n. w. h.; Bute v. League City, 390 S.W.2d 811 (Tex.Civ.App.), n. w. h.

There is nothing in the Constitution of the United States that invalidates any of said ordinances of Houston. It is for a state to determine the authority of its agencies to carry out the governmental powers of the state. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (U.S.S.Ct.); Hunter v. City of Pittsburg, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151; Risty v. Chicago R. I. & P. Ry. Co., 270 U.S. 378, 46 S.Ct. 236, 70 L.Ed. 641; State ex rel. City of West University Place et al. v. City of Houston et al., supra, and numerous authorities there cited.

The effect of our holding above is that the territory covered by Pasadena Ordinances 1699,1700 and 1722 lying below the north line of Genoa-Red Bluff Road is not validly a part of the City of Pasadena because the ordinances encompassed territory not adjacent to existing limits of such City when they were initiated and passed.

Pasadena’s contention that Ordinances 1699 and 1700 were valid because they were enacted pursuant to Article 1183, V.A.T.S., cannot be sustained.

Article 1187, V.A.T.S., places a limitation on the apparent authority of Article 1183. Article 1187 provides that the power granted shall not authorize the extension of the territory of any city for the limited purposes named so as to include any land which is already a part of any other city or town corporation or any land at the time belonging to any other city or town. Article 1183 in effect provides for annexation to begin at the ordinary boundary of an annexing city. Ordinance 1699 encroached upon land validly annexed to Houston and was, therefore, invalid. The validity of Ordinance 1700 depended on the validity of Ordinance 1699. It, too, is invalid. The validity of Ordinance 1722 insofar as it covered territory south of the north line of Genoa-Red Bluff Road depended on the validity of Ordinances 1699 and 1700. It is also invalid. See City of Galena Park et al. v. City of Houston, 133 S.W.2d 162 (Tex.Civ.App.), writ ref.

Ordinance 65-1555AR was, as we understand the record and appellees’ brief, passed as an independent annexation proceeding under the Charter of the City of Houston and under Article 1175, V.A.T.S., though it encompassed the same territory as Ordinance 65-1555BR. Since it was initiated after the effective date of Article 970a, it would not of itself operate to annex the territory described because under 970a, Section 6, it was necessary to give and publish notice of intention to annex. As stated in appellees’ brief, Ordinance 65-1555AR was passed under the charter and general law, so that if Article 970a was invalid Houston would still have a valid proceeding. However, Ordinance 65-1555BR was allegedly passed pursuant to the terms of Article 970a. By Ordinance 65-1561 the proceedings were initiated. This Ordinance was required to give notice of the intention to annex the described territory, and fix a time and place of hearing. This initiating ordinance must be published in its entirety. The record here does not affirmatively show that it was so published or that there was a public hearing. Pasadena in its answer had alleged it was not published. Stamped on the ordinance was this language: “Caption Published in Houston Chronicle — Date August 25, 1965.” Appellees argue that since the ordinance specifically directed publication by the City Secretary it will be presumed such public official performed her duty and the burden was on the appellant to, by an affidavit and not mere pleading, assert the want of publication.

It is true that normally there is a presumption that a public official performed his duty. This is a summary judgment case and the burden in on the movant to show that considering the pleadings, exhibits, depositions and affidavits there is no genuine issue of fact. The evidentiary facts are construed most strongly against the movant. If a reasonable inference may be drawn that a material ultimate issue exists, summary judgment may not be granted. The burden was on Houston to establish as a matter of law the validity of the ordinance as a part of its case. We are of the view that from the notation stamped on the ordinance that the “Caption” was published, a reasonable inference may be drawn that this was the only form of publication. We are not unaware that the City charter provides for publication of ordinances by caption, but this was a proceeding under Article 970a and publication by caption would not have been required nor sufficed. Therefore, a fact issue was raised concerning the validity of annexation under Ordinance 65-1555BR.

We would make it clear that the trial court correctly declared Pasadena Ordinances 1699, 1700 and 1722 invalid because they annexed land not adjacent to Pasadena because of Houston’s prior valid annexation under Ordinance 62-1766 and also for such reason correctly ousted Pasadena from the territory south of the northline of Genoa-Red Bluff Road. For this reason the trial court correctly granted the State’s motion for summary judgment. However, the State’s pleading prayed also for a judgment declaring that the territory covered by Houston Ordinances 65-1555AR and 65-1555BR had been validly annexed to the City of Houston. The trial court’s judgment made this declaration and determination. We have held, however, that a fact issue was raised concerning the validity of Ordinance 65-1555BR because of the fact issue concerning the publication of Ordinance 65-1561. Ordinance 65-1555AR really did not validly annex any territory because it did not comply with Article 970a. This presents us with a question of just what judgment we should render.

We have determined that the issues as to the validity of Ordinances 65-1555AR, 65-1555BR and 65-1561 and the causes of action they constitute are sever-able from the causes of action involving the validity of Houston Ordinance 62-1766 and Pasadena Ordinances 1699, 1700 and 1722. We, therefore, sever such issues and causes of action and remand them to the trial court with instructions to dismiss them without prejudice. We order such causes dismissed because Pasadena is the only defendant and it, in the light of our holding valid the other ordinance of Houston and invalid the specified Pasadena ordinance, leaves no respondent in the severed cause who has any legal standing to question such ordinances.

We affirm that part of the court’s judgment holding valid Houston Ordinance 62-1766 and holding the territory therein described validly annexed to the City of Houston and holding Pasadena Ordinances 1699, 1700 and 1722 invalid and ousting Pasadena from the territory covered by them that lies south of the north line of Genoa-Red Bluff Road.

Affirmed in part, and in part severed and as severed reversed and remanded with instructions.