City of Murphy v. City of Parker

Petitioner, MURPHY, Texas, CITY OF PARKER, Texas, Respondent.

CITY OF 95-0086.

No.

Supreme Court of Texas. Sept.

Argued 16, 1996.

Decided Feb. July

Rehearing Overruled

CORNYN, Justice, delivered the Opinion Court, PHILLIPS, in which Chief Justice, HECHT, and ENOCH and SPECTOR, Justices, join.

Section 43.901 of the Local Government provides: defining A bound- aries of or area to a conclusively presumed to have been adopted appropriate with the consent of all persons if: years expired ordinance; adoption date of the of the (2) an action to annul or review adoption of the ordinance been two-year period. in that initiated 43.901. In this case we determine whether section 43.901 bars a complaining suit of a noncon- of land sensual annexation within its extra- if it territorial fails years. the annexation within two We hold that it does. City of of Parker and the Mur- County,

phy are both located in Texas. Collin 28, 1988, On November the owners of petitioned 27.55-aere tract of land Parker for publishing notice in annexation. After conducting public Plano Star Courier passed hearings, pur- an ordinance porting January tract to annex the Approximately fourteen acres of the tract, Estates, known as the Dublin Road juris- were within (ETJ) diction and thus outside Parker’s ETJ. September seek- sued on ing a declaration that the annexation was granted The trial court Parker a sum- void. mary judgment, holding that the suit was barred under section 43.901 because it had been filed more than two A af- annexation. divided court of Appeal Appeals, Fifth from Dallas Court of — S.W.2d-, 1994 WL 500795. firmed. District; Ovard, Judicial John Justice. Brown, Gilmore, Jerry F. Dal- C. Robert Murphy raises two substantive las, for Petitioner. First, challenges annexation. it con Allen, Rapier, Respondent. tends that the annexation is void because John E. for charters, city charter All Murphy’s consent.1 not obtain Parker did amendments, ordinances and that it lacked con- Although Parker concedes incorporated sent, dispute of all parties governing whether bodies cities, challenging cities, defining including 43.901 bars home rule Second, Murphy argues that be- incorporated cities annexation. of such the boundaries outside adjoining any of the annexed land was territory cause some annexing thereto ETJ, authority to Parker lacked majority consent of a such with the any land under circumstances. territory, annex the annexed of such the inhabitants hereby and confirmed. ratified TexLoc.Gov’t Code rule, city may not general a As a expiration of two After the Section 2. city’s without that land in another ETJ ordinance de- years from the date City v. city’s City Duncanville consent. annexing fining boundaries of (Tex. Hills, 111, 113 Woodland city, any incorporated to curiam, per writ 489 Civ.App. Waco), of such and inclusion annexation refd — (Tex.1972), part on overruled in S.W.2d 557 conclusively presumed in shall be such City v. grounds, other Alexander Oil Co. to if then been commenced no action has (Tex.1991); see Seguin, 825 S.W.2d annul or review such Webster, Bay City Nassau v. 508, 1949 May ch. (Tex.Civ.App. [1st —Houston Act repealed curiam, Dist.]), per writ refd R.S., 149, 49(1), (Tex.1980). Consent to annexation of 707, 1306-07 version writing. ETJ must be Tex find at We TexLoc.Gov’t § 42.023. Parker undeni Loc. Gov’t Code sug predecessor statute language ably written consent from failed to obtain municipalities. apply to gesting that it did not Murphy. language plain of sec We conclude that argues first that because to complete bar tion 43.901 erects a only appropriate “all section 43.901 refers to any challenge a annexation persons,” apply municipalities, it does of consent. ordinance based on lack only to individual landowners and residents argues that if sec Murphy further in the annexed area. The Code Construction municipalities, it creates tion includes 43.901 Act to a different conclusion. The leads us city may which a an alternate method “person” “corporation, orga Act defines ETJ, of its and there consent to reduction nization, government government or subdivi re the written consent fore conflicts with trust, estate, trust, agency, sion or business disagree. 42.023. We quirement of section association, legal partnership, other annexing allow cities 311.005(2). The statute does not entity.” Tex This Gov’t Code 42.023, but mandates that circumvent section clearly municipalities. includes definition challenge such action brought suit that Murphy also contends examination years is time-barred. Article 974c-4 of the Texas Revised Civil is, effect, limitations. a statute of 43.901, 43.901 Statutes, predecessor to section course, directly limitations no statute of Of legislative intent that the stat demonstrates of a claim to which it is addresses the merits only apply ute to individual inhabitants Instead, limitations rest interposed as a bar. provided; That annexed land. requirement power entirely that Legisla- eliminate that 1. The dissent contends city give to a reduction of its given Murphy its written consent ture has not acknowledged land, expressly cases have disputed “can- ETJ. Our its ordinance is void and ratify any Legislature's power to act which S.W.2d at We not be resurrected.” authorize, act was power to even if the obviously disagree had the with that conclusion. The State, inception. v. Perkins Legislature scheme, void in its created the (Tex. 1963); Bradford, State v. undisputed power given to create (1932); scheme, also have the it follows that it must Prairie, City Arlington Grand power grant repose potential annexation (Tex.Civ.App. Worth legislation disputes by enacting curative like sec- —Fort n.r.e.) Indeed, writ refd has the tion 43.901. given expira- legislative policy requires on a sumed to have been diligent pursuit legal rights tion of one’s of two under section 43.901. losing timely the risk of them if are not reject Murphy’s argument that We Murray Agen- asserted. See v. San Jacinto failed to establish that it could have extended Inc., cy, by Murphy’s its ETJ consent to include the policy This choice finds value settled ex- disputed that Par- land. contends pectations and reliance interests. summary judgment ker was not entitled to present any In on this issue because it did not recognized certainty population evidence of its at the time of the the need for in mu land, Murphy erroneously nicipal annexation. But as- boundaries. After expand- municipality provide sumes that Parker’s ETJ could have must services to the area, only by including police operation ed of law based on the protection, and fire collection, roads, city’s population. city’s may A trash and maintenance of ETJ also streets, facilities, expand by request of parks play water and the land’s owners. 42.022(b). 43.056(b). Here, § § grounds. Tex.Loc.Gov’t Code Tex.Loc.Gov’t Code for, summary on, judgment evidence reveals that the depend pay and taxes Residents in to an- question landowners asked Parker To invalidate a munici these vital services. request nex their land. This would have long pal annexation after a establishes expand permit sufficient to Parker to and been these services would create confusion its under section 42.022. hardship for the residents. The ETJ time, point has directed that at a certain in years, After two section 43.901 created the yield in an defects annexation must to the presumption con- conclusive stability. interests of The statute conclusive annexation, any sented to the and barred ly presumes years, required that after two all subsequent challenges by Murphy. Aceord- given; consent to an annexation was thus all ingly, we affirm the of the court of challenges based on lack of actual consent appeals. are barred. ETJ, designating Leg- note that in We BAKER, J., sitting. purpose promote pro- “to and islature’s was health, general safety, tect and welfare of Justice, GONZALEZ, joined by OWEN adjacent mu- persons residing ABBOTT, Justices, dissenting. nicipalities.” Tex.Loc.Gov’t Code Murphy’s interpretation of section 43.901 is Today magically transforms an contrary purpose unlawful, lawful, to this because it would bar void ordinance into a effec- landowners, parties residents and most by holding that a statute of limita- tive one annexation, directly by affected an from chal- imposed “persons” by on tions section 43.901 lenging years, an annexation after two but a of the Local Government Code “erects adjacent municipality would allow the to chal- statutory complete bar to of a lenge an annexation at time. annexation ordinance based lack of consent.” 932 S.W.2d at 481. It Finally, Murphy challenges an logic and common sense to hold that defies grounds part nexation on the into a valid one with void ordinance blossoms land was outside Parker’s ETJ. annexed passage of time. I would reverse however, merely an exten argument, This appeals and render judgment of the court of Murphy’s argument that Parker ille sion of annexation ordinance judgment that Parker’s gally annexed land in ETJ. Had is void. relinquish Murphy expressly consented to its land, Municipal legisla- land is a jurisdiction Parker could have annexation of over the Legislature has Again, it. tive function. The Texas extended its ETJ to include delegated to individual Murphy’s complaint is that Parker the task essence of municipalities, provided but the Local Gov- requisite to obtain the consent to the failed annexation, conclusively pre- Code a scheme are consent that is ernment the statute. We authorized consider required to follow. Alexander Oil Co. of Seguin, determining precise 438-39 other factors power, delegated As limitation on one this phrase. meaning of that Tex. Gov’t restricted the circumstances Specifically, §§ an anal- .023. Code municipality can annex land or under which ysis pre-code provision, of the relevant article upon encroach 43.901 was not indicates that section 947C-4,1 (ETJ). example, For a munici operate of limitations intended ETJ pality expanding is forbidden its against municipalities. include annexation to area within article ratified all 947c-4 existing municipality. of another ETJ made the consent of the annexations “with 42.022(c). Similarly, § un Loc.Gov’t majority of the of such annexed inhabitants land, a cannot it owns the less territory.” May Act of pres land that does not fall within repealed by ch. Finally, § ent Id. 43.051. with one ETJ. R.S. here, exception inapplicable the ETJ of a 49(1), municipality cannot be unless the reduced version body gives writing legislative its consent Section established a conclusive ordinance or Id. 42.023. resolution. years presumption of two consent case, Under the facts of instant it is the date of the Id. When the two ordinance. undisputed twenty-seven fourteen that of the provisions together, appears are read it that acres known as the Dublin Estates fell Road required 2 by the “consent” section necessar- Murphy’s undisputed within ETJ. It is also ily appearing refers to the definition sec- by relinquish that did not land the words, In other 947c-4 im- tion article By passing written consent. an ordinance posed presumption a conclusive after two acres, purporting to annex those fourteen years majority residents that beyond statutory power Parker went ordinance; area the annexed consented expand its own boundaries. See however, presumption no such was 42.022(c), §§ 43.051. imposed respect municipalities. with importantly, More unlaw- encroached Therefore, may op- while article have 947c-4 fully upon ETJ. See id. challenges to private erated as a bar reasons, For these void Parker’s ordinance is years, two there is indication that munici- no ab initio. subject palities were to a similar bar when acknowledges The Court that an- contesting illegal annexation ordinances. unlawful, nexation was but based on its mis- In its codification of section as section construction of section that concludes Code, 43.901 of the Local Government cannot claim its after two Legislative phrase years. Texas Council added the points municipali- The Court out that Yet, appropriate persons.” under “all exist- fall under the Act’s ties Code Construction law, ing from alter- “persons,” definition of Council is forbidden but fails to note sense, previ- ing meaning, did not effect of the define what it meant by 323.007(b); “appropriate persons” in the context of ous statute. Gov’t Code coiporated city, 1. Article 974c-4 of the Statutes the annexation Revised Civil consent to provided city territoiy as follows: inclusion of such in such shall be conclusively presumed if no action has then charters, city 1. All charter review such been commenced to annul or amendments, ordinances and provisions 2A. The of this Act shall not Sec. cities, governing incoiporated bodies of all apply any territory any city where cities, including defining rule home the bound- territoiy subject of such is the annexation incoiporated aries of such cities or any pending litigation passage at the time territory adjoining any thereto with such this Act. majority of a the consent of the inhabitants 508, Act of territory, hereby such annexed ratified and are 930, 1,May by repealed confirmed. 1987, 149, 49(1), expiration years R.S. ch. Sec. 2. After the of two 707, defining the date of 1306-07 version at from annexing territory in- boundaries of Tex Loc. Gov’t Palmer, see Palmer v. 831 S.W.2d 482 void” exceeded size limi 1992, writ); tations). (Tex.App. Min specifically Courts of —Texarkana Perez, (Tex.App.— ton v. applied this line of cases to hold that an 1990), appeal San Antonio dismissed as attempts ordinance which moot, (Tex.1992). Further within the ETJ of another more, in the event of a conflict between the See, e.g., Village void. Creedmoor v. Frost language of a former statute and a revision Bank, (Tex.App.— Nat’l Council, made the former con statute denied); City Austin writ Houston v. Worth, trols. Johnson v. Fort Savely, (Tex.App.— case, In this n.r.e.), Houston [1st Dist.] writ refd plain reading of article 947c-4 shows that it denied, cert. 482 U.S. 107 S.Ct. apply municipalities, did not and the Coun (1987); City L.Ed.2d 698 Missouri scope cil could exceed the of the former Senior, (Tex.Civ.App.— reworking it for when codification. n.r.e.). Houston [1st Dist.] writ refd Thus, concluding errs that sec acknowledge Court’s failure this con municipalities challeng tion 43.901 bars position nection or to harmonize its with our ing illegal annexation ordinances more than precedents highlights the flaw in its decis after their enactment. ion.2 analogous judg Parker’s ordinance is to a position, As a fallback the Court holds in a lacking subject ment rendered a court that, event, footnote matter or the to render particular judgment. illegal could This Court has have blessed this repeatedly judgments through held that such statute. With all due See, Cameron, e.g., void. Cook v. respect, point. I Court misses do 137, 140 (Tex.1987); Placke, Browning v. question Legislature’s authority not to 362, (Tex.1985); Indep. S.W.2d Austin approve any by a conceivable annexation mu- Club, 878, Sch. Dist. v. Sierra 495 S.W.2d 881 nicipality, pre- no matter how extensive or ap We have taken a similar posterous might the annexation be. Howev- proach respect with to annexation ordinances er, applicable the validation statutes in this express statutory that contradict the limita express Legis- ease the clear intention of the See, municipality’s authority. e.g., tions on a ratify lature not to validate or ordinances City Orange City v. West State ex rel. of such as the one at issue here. (Tex.1981) (find 236, Orange, 613 S.W.2d provision relevant to this case is arti- ing purported ordinance invalid because it 974d-40, cle statute. adjacent City city); annex land not predecessors, Like its article 974d-40 con- 649, City McGregor, Waco v. 523 S.W.2d general language validating tains annexations (Tex.1975) (opining that ordinance was attempted or annexations. passed” “void when it was it at Tex.Rev.Civ. 4(a). 974d-40, However, Stat. art. tempted contravention 5 states that the statute “does not validate statutory provision); City Lake West governmental proceedings relating Austin, acts or City Hills v. ex rel. State (Tex.1971) attempted or town’s annexation (holding territory in the annexation of attempting noncontigu ordinances city or without nonadjacent of another town ous and land violation of stat invalid); Euless, the consent of that in violation of City ute were Deacon v. town (Tex.1966) (declaring Chapters 42 and Local Government at words, although tempted annexation of “null and Id. 5. In other Code.” 436; Cook, today, at 140. Be 2. Under the view the Court takes void at see also 733 S.W.2d long they ordinances become valid as as remain cause Parker exceeded the annexation delegated Legislature, unchallenged period the ordinance for a certain of time. That to it any rights, power simply ment, judg- no cannot be the case. Like a void "cannot confer bestows performed subject anyone, justifies under to collateral no acts a void ordinance is Florence, attack; v. 131 Tex. cannot be resurrected the mere it.” Sharber Oil, 8). (Tex. passage 825 S.W.2d 193 of time. See Alexander This unneces- proceed- city or town without consent. any minor deficiencies n ratified, will create hav- Legislature expressly sary and unfortunate decision ings were uncertainty process. the annexation transgressions Parker’s oc and excluded like reasons, foregoing I dissent. void For the validation. ordinance remains by any legislative because it was saved Waco, 654; City at 523 S.W.2d See Hills, 729- City Lake at West 30; City, Missouri 583 S.W.2d 448-49; Price, Kyle v. (Tex.Civ.App. —Austin

writ). purpose stat- The basic of validation passed give effect to

utes is to an faith, plagued by procedur- in good but some ORGANIZA GENERAL RESOURCES State, al v. or minor defect. Richardson TION, INC., The of Manns Law Firm & (Tex.Civ.App. —Dallas Manns, Alphonso Manns, Dollie Stafford n.r.e.). They d are not intend- writ ref Manns, Acceptance Corporation, Future put Legislature’s stamp approval ed Phillips, Phillips, M. Eddie Otis Janice on otherwise void enactments. Petitioners, Mary Phillips, L. interpre- Finally, the Court that its states 43.901 tation of section as an effective of limitations “does not cities to circum- DEADMAN, allow D.A. Adam Glenn J. William Pty., son, vent section 43.023.” at 481. and Westrade Commodities However, exactly Ltd., Parker has Respondents. what go need than the done here. One no further No. 95-0973. case to facts of this determine that annex- requiring ordinances will now ation Supreme Court of Texas. effect, illegal, be given full even if long years pass anyone chal- as two before decision, today’s

lenges them. As result of Rehearing Aug. Overruled nullity. section 42.023 is Munici- rendered

palities police compelled will now feel each

other, distrust, fostering leading mutual to a

considerable waste Cash- resources. strapped particularly rural areas will feel Manns, Alphonso Bloomington, for Peti- burden, heavy must' now scramble tioners. ways neighbors’ monitor activi- find their Shaw, Deadman, Ronald J. San Glenn J. That not what in- ties. Antonio, Respondents. for tended when enacted the annexation scheme or the relevant validation statute. summary, In misconstrued GONZALEZ, Justice, concurring opinion Municipalities

the relevant statutes. Application for of Error. on Denial of Writ permitted in the ETJ gold involves scam which the and then be free This case damages land-grab jury approximately unlawful after two $1.3 assessed billion, exemplary passed. Municipal boundaries of which million were $800 granted trial a remitti- damages. secure For some The court should be more than that. reason, approximate- ignores and rendered for inexplicable Court tur million, million Legislature’s unequivocal ly clear state- of which were $175 $100 damages. court of exemplary statute does not ment judgment. governmental the trial court’s validate acts or affirmed points purport- petitioners’ 22. Because relating to an annexation ordinance merit, I concur in the denial this ing to include in the ETJ of another error lack

Case Details

Case Name: City of Murphy v. City of Parker

Court Name: Texas Supreme Court

Date Published: Jul 17, 1996

Citation: 932 S.W.2d 479

Docket Number: 95-0086

Court Abbreviation: Tex.